His Majesty The King v. Malik Ahmad, 2022 ONCJ 675

ONTARIO COURT OF JUSTICE DATE: 2022 12 14 Brampton Courthouse

BETWEEN:

HIS MAJESTY THE KING

— AND —

MALIK AHMAD

Before: Justice D. F. McLeod

Heard on: September 14, 19, 20, 22, 23, 2016, December 6, 7, 2018, July 10, 11, 2018, June 13, 14, 2019, September 6, 7, 2022

Reasons for Judgment released on: December 14, 2022

Counsel: A. Lepchuk, counsel for the Crown D. Paradkar, A. Pillay, counsel for the accused Mr. Ahmad

D.F. McLeod J.:

[1] Mr. Ahmad is charged with one count of Manslaughter against the deceased Mr. Baig.

Crown's Position

[2] The Crown’s submits that Mr. Ahmad and Mr. Mirza Baig engaged in a consent fight at the Westwood Square Mall. During that consent fight, Mr. Ahmad pushed Mr. Baig with such force that he fell directly backward and hit the back of his head on the circular locking mechanism on the floor. As a result of this, Mr. Baig sustained a catastrophic head injury that ultimately resulted in his death on February 26, 2015.

[3] The Crown further submits that Mr. Ahmad committed an unlawful act and this unlawful act caused Mr. Baig’s death.

[4] Further, It is the crown's position that on the evidence before this court, the only reasonable inference is that what occurred between Mr. Ahmad and Mr. Baig was a consent fight. Accordingly, I am asked to consider whether or not consent was vitiated pursuant to the SCC decisions in Jobidan and Paice.

Defence Position

[5] The defence contend that the evidence in this case, at its highest, is that the deceased fell down during mutual pushing and shoving. Similarly, there is no evidence as to the degree of force Mr. Ahmad used during this incident. There is also no eyewitness evidence of whether there was any physical contact made by Mr. Ahmad and the deceased immediately prior to the deceased falling down. Therefore, the Crown has failed to prove the actus reus of the offence beyond a reasonable doubt.

[6] Furthermore, there is no evidence that Mr. Ahmad intended to cause serious bodily harm to Mr. Baig. To the contrary, the evidence shows there was mutual pushing sometime before the actual fall.

[7] In light of the above the Crown’s case falls short of proving the charge of manslaughter beyond a reasonable doubt.

I. Relevant Evidence

Farina Mirza

[8] Ms. Farina Mirza is the wife of the deceased Mr. Baig. She was called to provide the court with evidence as it pertains to her observations of her husband prior to leaving the home the day of the incident.

[9] Ms. Mirza testified that her husband always wore eyeglasses and would routinely do so because of his need for bifocals. When she was presented with a picture of what was believed to be her husband’s glasses, she indicated that when he left the home his glasses were not broken as was illustrated in the exhibit that was shown to her. Ms. Mirza was also able to identify her husband’s jacket as well as his cell phone. All items that were located at the scene.

[10] When asked about her husband’s physical well being prior to leaving the home, Ms. Mirza gave evidence that her husband was “perfectly fine” and did not have any injuries to the side of his face, bridge of his nose, his mouth, nor did he have any bruising on his arm.

Shanmugan Kuganesan (Nessan)

[11] Mr. Kuganesan was employed by OBN which is the security company that monitors Westwood Mall.

[12] At the time of the incident the Westwood Mall was undergoing an extension and as a result there was a section of the mall that was under construction. The area under construction was referred to as “Westwood East Square.”

[13] On the 24th of February 2015 Mr. Kuganesan arrived for his shift at 11:30. At approximately 11:46, Mr. Kuganesan received a phone call from a colleague (Gurpreet) indicating that two people were fighting in the new plaza area of the mall and requesting that he attend and help.

[14] Upon his arrival Mr. Kuganesan to Mr. Ahmad store he observed two people. Mr. Kuganesan was unfamiliar with Mr. Baig who was on the floor but did notice Mr. Ahmad who he was familiar with. Mr. Kuganesan also observed blood on the floor behind the head of the man on the ground.

[15] Whilst at the scene Mr. Kuganesan saw Gurpreet open the door for another security guard, “Ramesh.” Who eventually accompanied him to contact the police. Upon their return Ramesh was cradling the person on the ground while Gurpreet was attempting to wake him up however the individual on the ground never regained consciousness nor did he make any utterances to them.

Ramesh Inder Singh Rai

[16] As Mr. Rai is making his way to the altercation between Mr. Ahmad and Baig he is able to observe both men pushing each other. He categorized the shoving as “not serious.” Further, Mr. Rai also did not see any punches being thrown or landing on either of the gentlemen involved. Mr. Rai also testified that he did not witness Mr. Baig fall or how he got to the floor.

[17] When Mr. Rai arrived at the scene of the altercation, he observed Mr. Ahmad standing and Mr. Baig on the ground – At which point he called 911.

Gurpreet Singh

[18] Mr. Singh worked as security at Westwood Square at the time of the alleged altercation between Mr. Baig and Mr. Ahmad. On the day in question, he was working between the hours of 4pm to midnight.

[19] Mr. Singh was also familiar with Mr. Ahmad and knew him as one of the shop owners in the new facility.

[20] At approximately 11:40 pm, Mr. Singh heard noises - “to the best of his memory it was the shouting noise like somebody’s fighting. Like argument going on.” – Transcript June 14, 2019 – (page 5). Mr. Singh made his way towards the noise and when he arrives, he sees Mr. Ahmad in an argument with another person who he is not familiar with.

[21] At the time that he sees the physical interaction between Mr. Ahmad and the other male party they are situated behind the counter in the store. Mr. Singh gave evidence that the men were holding each other at chest level. He described the men as fighting but not in an aggressive manner. It appeared to Mr. Singh as if they were trying to resist each other. Mr. Singh further testified that neither of the men was more aggressive than the other.

[22] Mr. Singh did not witness any punching or kicking between either of the men during the times he witnessed them grappling. Mr. Singh did recall Mr. Baig was wearing glasses at the that he came in contact with him.

[23] Mr. Singh also recalls Mr. Baig saying “let me go, leave me tools” this did not appear to be a verbatim recount however Mr. Singh stated this was the best he could remember. He also recalls Mr. Ahmad saying something but could not recall what was said during his testimony.

[24] When Mr. Singh arrived at the store, he attempted to separate the two men and was trying to tell them to let go and just cool down, but to no avail. Mr. Singh eventually left the store in order to get some help from one of his colleagues Nessan, (Mr. Kuganesan) who was on duty.

[25] Mr. Singh advised the court that while the altercation was taking place and he was standing outside of the store he observed a colleague Ramesh Rai who was about to start his shift and relieve him. From his vantage point he could see Mr. Rai in the parking lot which was across from Westwood Square (which is opposite the main doors). Mr. Singh then rushes towards the doors to let him in. Mr. Singh felt that with some help he may be able to calm the situation between the two men.

[26] Mr. Singh recalls getting to the door to let Mr. Rai in. According to his testimony he took a short time to explain to Mr. Rai what was taking place and then they made their way to where the incident. Upon their arrival Mr. Rai recalls the men were outside of the store and were still grappling in a similar manner to how they were holding each other when he saw them inside the store. Mr. Singh described the grappling between the men as holding each other on the shoulders around chest level and pushing back and forth.

[27] Mr. Singh gave evidence that he recalls seeing Mr. Baig falling backwards towards the ground. Mr. Singh did indicate for the court that he could not recall what caused Mr. Baig to fall. Once he sees Mr. Baig fall to the ground, he tells Ramesh that he should call 911.

[28] Mr. Singh recalls that once Mr. Baig falls to the ground he is basically unresponsive and does not get up or regain consciousness. Mr. Singh recalls clapping near Mr. Baig’s ears, checking his breathing, as well as tilting his head to ensure that he did not choke.

[29] At some point Mr. Singh looked over at Mr. Ahmad who was standing near them according to Mr. Singh he appeared to be “in shock.” Mr. Singh also gave evidence that at some point he did see blood coming from the head of Mr. Baig and also noticed blood on the floor in an around where Mr. Baig’s head had been situated.

[30] Mr. Singh recalls Mr. Rai attempting to support Mr. Baig’s back and at times trying to help him to sit up however Mr. Baig continued to slip into unconsciousness. When recounting what things were done by Mr. Ahmad who was standing there with them. Mr. Singh recalls him going to get water and upon his return was sprinkling water on Mr. Baig’s face.

[31] In terms of physical characteristics Mr. Singh recalls Mr. Ahmad being taller and better built than the other individual and according to his statement he felt Mr. Baig was a thin man with a medium build.

PC Derick Rice

[32] At 11:52 PC Rice received a radio call with respect to a male party who had fallen and hit his head possibly as a result of an assault.

[33] PC Rice and his partner PC Makin were guided up to the area where the altercation had taken place. Upon their arrival PC Rice recalls seeing Mr. Baig being cradled in the arms of one of the security guards. He noticed that Mr. Baig had a small two millimetre cut just above one of his eyes, which appeared fresh, however, the officer was not sure which eye. Mr. Baig, was also mumbling something however he was unable to make out what was being communicated. He also gave evidence that Mr. Baig was moving his hands in an attempt to touch the back of his head (or at least it appeared that way).

[34] Whilst on the scene PC Rice also observed a pool of blood and hair nearby Mr. Baig as well as a pair of glasses to his left, just outside of the storefront entrance on the floor. The glasses appeared broken and one of the lenses was missing as well as one of the arms. Eventually PC Rice was able to locate the missing lens.

[35] PC Rice also gave evidence that from the moment the victim was being treated by the paramedics the entire scene was frozen until they had learned the extent of the victims injuries.

Dr. Jayantha Herath

[36] Dr. Herath was called by the crown to give expert evidence in the area of forensic pathology, specifically the examination of the human body and the causes of death, injury and illness.

[37] Dr. Herath followed the 5 investigative steps according to the Ontario Forensic Pathology Service guidelines. Which he outlined as follows;

(i) To acquire the necessary history and circumstances. (ii) The collection and external examination; (iii) The internal examination; (iv) Any ancillary investigations, such as laboratory test, toxicology or any other relevant testing; (v) An amalgamation of all the pieces together and providing their medical and medical/legal opinion.

[38] Dr. Herath reviewed the coroner’s warrant for post-mortem examination and was also briefed by the police officer present. The doctor was also provided with some notes from the coroner hospital records from the William Osler Health Centre and Trillium Health Centre as well as digital photographs which were provided by the police of the scene as well as photographs from the hospital.

[39] Dr. Herath testified that his office conducted a layered dissection, which consisted of a layer-by-layer dissection of the front of the chest and abdomen and layered dissection of the neck.

[40] Dr. Herath also observed some signs of medical intervention done in hospital, as a result they listed them from one to eight in signs of therapy and medical intervention. Mr. Baig had a tube through the nose, EKG pads, IV lines and catheter, a urine catheter, as well as a probe in the rectum. The doctor also observed some injuries in the head/face area and in the neck area. There were also no significant natural disease process identified by external examination.

[41] When questioned with respect to blunt force injuries Dr. Herath was able to articulate the types of injuries caused by a blunt object. Dr. Herath went on to state a blunt object can be a weapon, or hand, or any other instrument inflicting on the body or the body being dragging on a hard surface. Dr Herath described two ways a body can receive blunt forced injuries, one way striking the body with the blunt instrument or blunt object. The second way the body striking on a hard surface like the ground. With respect to Mr. Baig Dr. Herath observed blunt force injuries in the face, neck and in the skelp.

II. Injuries to Mr. Baig

A. Black or Dark Contusion – Dark area inside the oval

[42] This injury was not observable prior to the dissection. However, the doctor indicated on the record that this injury was also recent as in within one or two days of bleeding.

[43] Dr. Herath went on to state that this type of injury can be caused by a blow to the area or some type of compression to the area.

To compress this area means either from a hand, like, like compressing the neck or again compressing the neck by a paramedic or a medical person in order to resuscitate.

Transcript – June 13, 2019, 1(pg. 22)

[44] In terms of the amount of pressure required to cause this type of injury Dr. Herath gave evidence that although the exact is difficult to determine it would be more than required for the indentation or the abrasions in light of the fact that this was a deeper injury/contusion.

B. Contusion to the right upper neck

[45] Dr. Heath in his evidence advised the court that Mr. Baig at some point during the medical process was placed in what is termed a “Philadelphia Collar” as a result of medical intervention.

[46] It was the doctor’s testimony that the soft tissue injury observed by him to this area could be the result of medical intervention from putting the collar on Mr. Baig.

C. Mucosal Hemorrhage (inside of Upper lip)

[47] This is a red and black area described as a contusion or hemorrhage. Again, the doctor explained that the contusion that was noticed is caused either by a direct blow or compression of the area by fingers or any other device.

[48] When asked if this injury could be made possible either by compressing that area by a thumb or index finger or due to any medical intervention like intubation it was the doctor’s evidence that this type of injury was also possible with this type of activity.

The doctor goes on to add the following;

Q. And when you say it could be a pressure for index finger or thumb, what do you mean by that? A. So if someone like to compress the neck area people use the, the hand, thumb on one side and the rest of the fingers on the other side. The same way the medical people use to hold the area, so either someone like to throttle the neck, I would say, compress the area or insert a medical device applying pressure. Q. So you said throttle the neck? A. Yes, yes. Q. Okay. You mean by strangulation? A. Yes, like manually compressing that area. Q. Or it could be through medical intervention? A. Yes. Q. And you can’t say which one that is? A. I cannot say that.

[49]

D. Contusion found on the inside of the Mouth

[50] The doctor testified that this was a recent injury caused b a blunt force injury. The doctor went on to qualify his response and stated the following;

Q. And again, the blunt force injury that could cause examples of -- is it the same as the previous injury or is it a different? A. So it is different from that injury in the nose, but if someone apply one or more blows in this areas, or even this can call -- this can cause by different mechanisms. I can suggest three ways for example. One is something like a punch, the second thing falling onto face, the third mechanism can be by medical staff, for example, like the paramedics or physician trying to intubate or resuscitate him. Q. Okay. And in this scenario do you know if there was medical intervention on Mr. Baig? A. Yes. Q. Okay. So you can’t say for certain if it’s -- which one those are, those are all the possibilities which can cause that? A. Yes, so all of those are possibilities.

E. Right Corner of the Complainants Mouth (inner surface of the subcutaneous tissue)

[51] Colloquially speaking these are the injuries/contusions near the corner of Mr. Baig’s mouth near his chin and just below the corner of his mouth.

[52] When asked how these specific injuries could have occurred as well as when did the injuries take place Dr. Herath stated as follows;

A. So when I examined this area after the dissection, the way how the blood appears we call the colour, it’s very fresh, more red to dark red appearing, so it means it’s a recent injury. Q. And can you say how recent? A. So within one to two days. Q. And what can cause this type of injury? A. So again I can give you three mechanisms to cause this type of injury. So there has to be a blunt force trauma like punch in that area. The second thing is fall into this area, on a hard surface. The third mechanism is continuous application of pressure in this area. So if someone tried to grab the mouth area in a fight or any healthcare worker, if they have to attend resuscitation for a prolonged period, it is also a possibility. Q. And when you say resuscitation, what kinds of things are you suggest -- what would that be? A. Yes, so resuscitation can be either holding that area and pulling the head backwards to facilitate breathing or holding that area for intubation, we insert a tube usually into the trachea, or the other one is putting some device on top of the mouth for breathing purposes.

She further stated…..

A. We usually hold -- actually not us, during the autopsy but during the resuscitation either paramedics or doctors hold this area, so either side of the mouth and then move the head backwards. Q. Okay. A. So that way someone can breathe easily. Q. So for the record you’ve taken your thumb and your forefinger and placed them on either side of your mouth and made a motion of moving your head back and forth so the... Q. Okay. And the third one is putting a device on the mouth, I think to assist with breathing? A. Yes. So we can put the, the -- like to -- like we call ambu bag, the bag on top of the mouth and then compress it, but I see only on one side and if you compress the, the jaw area for resuscitation, usually we see on the both sides. Q. And just for the record you, when you talked about putting a device on the mouth you just used your hand as if to show something going over top of the mouth? A. Yes. Q. Okay. So you said usually when it, when it’s these healthcare intervention you usually see it on both sides?

Transcripts – June 19, 2019 (pg. 18 – 21)

F. Nasal Injuries and associated Hemorrhages

[53] When asked in cross examination about the possible significance of the eyeglasses that had been located at the scene Dr. Herath stated that he could not be certain that the eyeglasses caused any of the injuries to the face and nose area. He also went on further to state that with respect to the three injuries that are present on Mr. Baig’s face inclusive of the two abrasions and the indentation of the nose he could not determine if they were associated with each other. Meaning he would not be able to advise the court as to the timing of those injuries as to if one occurred prior to the other.

[54] Dr. Heath also gave evidence that the injuries present on the face of the deceased in image 6064 could also have been caused by a ventilator being used at the time he was being cared for.

[55] So, these injuries can cause directly impact with the blunt object or this type of injury I have seen in my practice when someone is wearing spectacles, and then if someone punches on top of those spectacles or if he falls while wearing the glasses. Because there are guards in -- near the nose so they can compress and cause indentation of the, we call it the bridge of the nose.

Q. And could those glasses have caused the abrasions? A. Yes. So it is possible these abrasions could have been caused by these glasses, especially I am referring to these type of parts, where are the, the moving parts, regarding either side of the nose. And this is the, the bridging part of two lenses, so that can cause either that or these two moving parts can cause the indentation.

THE COURT: These two moving parts?

MS. LEPCHUK: Q. And just, just for the record your, your motioning -- can you just describe in words what you’re actually referring to?

A. Yes, so when we see the middle part of the lens, so one lens is missing here and there is the part in the medial or the middle part where (indiscernible) is touching the nose, so those are the parts I am referring to.

Transcript – June 13, 2019 (page 8)

[56] The pathologist was also questioned with respect to the approximate timing of the injuries with respect to the abrasions to this he replied –

“so they are recent injuries because when I examined closely I usually use a magnifying glass to examine the small injuries. They were fresh and very early healing, so it’s within a day or two like -- so presenting the reason.”

Transcript – June 13, 2019 (pg. 9)

[57] When asked about the amount of force required to cause the abrasions as well as the nasal bone fracture the doctor responded that not much force is required however it would require more pressure to cause the nasal fracture that the abrasions.

[58] When asked by the court for further explanation as it relates to the abrasions Dr. Herath responded as follows:

THE COURT: Maybe just for me then, the indentation is different than the fracture, which is different than the abrasion?

MS. LEPCHUK: Yes.

THE COURT: All three are different. And on Exhibit D, are we only seeing the indentation and the, and the abrasion but not the fracture?

MS. LEPCHUK: Q. So just to confirm His Honour’s questions then, the abrasion, the indentation and the fracture are three separate things?

A. Yes, Your Honour, they are three different things but at the same time I would say one injury can cause all these three. Like one blow or one fall can cause -- if he falls onto -- in a forward manner it can cause or one blow to face also can cause all these injuries together.

Crown Concession

[59] It is important to note, in her submissions the crown stipulated that given the testimony of Dr. Herath and the fact that Mr. Baig had been intubated it is a reasonable inference that the following injuries

(i) Contusion on the upper lip (ii) contusion of the inner surface of the subcutaneous tissue at the level of the right angle of mouth (iii) the soft issue contusion of the upper neck (slide 10 & 11) and (iv) the mucosal hemorrhage of the right upper pharynx were as a result of intubation. Given the doctor testified there was intubation done on Mr. Baig,

[60] In furtherance of that concession that crown submits that the injuries noted above will not form part of their submissions with respect to injuries that were caused by Mr. Ahmad in light of the doctor’s testimony. The crown submits that the injuries with respect to the abrasions and fractured nose and not the mouth or throat should be attributed to the actions of Mr. Ahmad.

[61] Further, given the indentation does not appear to be visible in the series of photographs taken at the hospital, Ms. Lepchuk is suggesting that it not form part of the evidence of a punch to the nose.

G. Skull Injury

[62] Dr. Herath testified that he had located a big blood clot situated beneath the thick membrane of the brain called the subdural hematoma. This blood clot had 60cc of blood drained out of it by Dr. Herath. Further, there was a contusion of the brain or bruise of the brain and complications due to a head injury.

[63] When Dr. Herath was asked about the potential cause for the myriad of skull injuries, she responded with the following evidence;

[64] MS. LEPCHUK: Q. And just to step back if you -- the series of slides that we’ve looked at now since the break, starting with that circular injury to the back of the head, leading up to this, how are they related to each other?

A. So one, unexpected sudden fall and hitting the back of the head on a hard surface can cause all these injuries. Q. So everything that we’ve seen this afternoon is it -- is that your opinion, is that how all these injuries could be caused by that one thing, falling back and hitting your head? A. Yeah, so the forces due to sudden deceleration, so the -- even on standing height if someone fall onto a, a hard surface unexpectedly because the person’s body weight also can affect as a force and suddenly the head is heavier, usually, and the neck is very flexible so a head if it impacts suddenly onto hard surface, the forces can be transmitted through the skull even up at the front and cause fractures. ‘Cause those are the soft areas. The thin bones and they can cause fractures. Q. And so does it -- is it your opinion then that you believe -- what about a hit to the head, could a hit to the head cause the same kind of injuries, like a, a hit, a blow to the head with another object, for example, could it cause these kinds of injuries? A. Yes, so there are some reported cases so other than falls. Striking the head, stationary head, if someone is lying flat, for example and impact sudden heavy impact on the back of the head can cause similar injury.

[65] Dr. Herath testified he noticed bleeding on Mr. Baig’s orbital plates – inside the eye sockets. This is typical for backward fall. Dr. Herath went of to state;

“When I compare injury pattern from back of the head, there was a pattern injury and there was a back of the skull, there was a pattern injury, a skull fracture, the injury pattern seen in the brain as well as in this particular injury, everything together I can collectively explain from a backward fall (37)

[66] Dr. Herath testified the doorstopper located on the floor in front of Mr. Ahmad’s store could have caused the injury to the back of the head. It was raised and that’s why there was a deep press fracture meaning the injury was – “driven in.” The doorstopper was projecting and in turn corresponds with the injury on Mr. Baig.

Evidence Regarding Age of Injuries

[67] Dr. Herath in cross examination was quick to agree with the suggestion that its difficult to determine the age of particular injuries keeping in mind the dating of injuries is not an exact science. In relation the matter before me it was also clear that Dr. Herath is unable to particularize the timing of the various injuries as well, in that he is unable to determine the order in which the injuries occurred even if both injuries presented in the same area on the body.

H. Cause of Death

[68] When asked about the potential cause of death Dr. Herath stated Considering the injury pattern, based on the evidence of the injury, it appears to be by an unexpected fall because people, if they are falling they try to fall forward and they avoid the head area. The doctor went on to suggest if people have an awareness that they are going to fall, they fall on their arms. So instead of head injury, fracture of wrist, elbow or hip fracture which was not seen in the matter before me.

[69] Dr. Herath went on further to state the following

Q. Okay. So back to your slide 37 and your opinion. So the cause of death then was essentially the injury to the head? A. Yes, so the cause of death is to the injury to the head. I call it head because the head include the brain. I consider the brain is part of the head, so the injury to the head, including the brain is the reason for his death. And this type of injury, so the contusion of the brain and the one I described, subdural hematoma, it means the big bleeding inside the thick membrane. Difficult to save their lives usually. Q. And based on your expertise are you able to say if this was a push or a slip? A. I cannot say that.

I. Challenge to Expert Report

[70] Mr. Pillay submits to the court that the medical expert and the report proffered by the crown should not be relied upon by the court. The premise for this submission is that Dr. Herath was biased, partial and conclusory in his report as well as when giving viva voce evidence.

[71] Defence argued this bias was most evident when Dr. Herath was giving an account of the injuries to the nasal area of the deceased, Mr. Baig. This bias and one-sided manner in which the report was prepared was a key ingredient in the defence opposition to the report and the request for the expert’s evidence to be disqualified.

[72] The Crown suggest that the report was not done in a biased fashion. Ms. Lepchuk on behalf of the crown submits that Dr. Herath did not give conclusions in his report but rather provided the court with a series of possibilities and generally qualified his responses without the aid of absolutes. Ms. Lepchuk suggests that Dr. Herath aided the court by providing tools for the court to make a decision rather than pointing the court to particular outcomes. Ms. Lepchuk went further to opine that experts are not infallible. The ability to make mistakes or reach problematic outcomes should not take away from the veracity of their testimony or qualifications.

[73] Ms. Lepchuk also directs the court to the viva voce evidence of Dr. Herath when it was clear that multiple times other inferences and fact scenarios were proffered to him and many times, he did not reject the suggestions out of hand but rather adopted the proposed scenarios and agreed with the defence propositions.

[74] Mr. Pillay pointed the court to the doctor’s evidence in cross examination where Dr. Herath admitted that the injuries to the nasal area of Mr. Baig could have been caused by a series of other inferences aside from the alleged altercation not considered by him in his report, such as an item falling on the deceased and or medical intervention. Both scenarios were presented to the doctor as potential rationales for the fracture to the nose yet according to the defence neither scenario was entertained in the medical report.

[75] Mr. Pillay went on in his submissions to show a grouping of injuries to the nasal/facial area of Mr. Baig that were initially grouped together as possibly being inflicted by the same object and or instrument in this case it was the glasses of Mr. Baig.

[76] Mr. Pillay made argument to the court to not qualify Dr. Herath as an expert in this matter due in large measure to a perceived lack of transparency and what defence believed was a clear degree of favouritism for the crown and the crown theory of the case.

[77] I have reviewed the doctors extensive curriculum vitae, his training and experience. I have also taken into account the rationale given for his conclusions, the suitability of the methods he relied upon and the rest of the evidence in his matter. This court is not prepared based on the record before me to disqualify Dr. Herath as an expert. However, I am challenged to a large degree by the various mis-steps that are evident with respect to categorizing the various injuries and the causes for them. Perfection cannot be the standard by which this court judges its experts for such a threshold would be impossible to meet.

[78] The evidence before me however coupled with the viva voce evidence of Dr. Herath does cause me some pause. Although I am not prepared to discount his expertise or his evidence in its entirety this court is not prepared to give it as much weight as I would in the normal course of expert testimony especially as it relates to the nasal injuries.

[79] The evidence with respect to the indentation on the nose although reliable in one sense should also be adjudicated in conjunction with the other scenarios posited and agreed to by Dr. Herath. The troubling aspect from the court’s perspective centers around the apparent lack of important information that did not factor itself into the doctors analysis. During cross examination it was apparent that the doctor was not clear as to the continuity of the body in terms of what happened with Mr. Baig when he was transported or what medical attention he received while he was at the scene. There was no cataloguing of the care that was shown to Mr. Baig at the scene or its potential impact on the apparent injuries on his person.

[80] This court is not of the opinion that Dr. Herath should be able to analyze every issue that could be canvassed by the defence. This would not be possible or reasonable. Criminal law is a very organic exercise, this exercise should also be cognizant of the fact that the number of permutations can be endless and to anticipate them all would not be feasible no matter how decorated an expert would appear. That being said in the matter before me, it is apparent that salient information was lacking at the time the report was being prepared which could have altered the findings considerably.

III. The Law

[81] Manslaughter is defined in s. 234 Criminal Code as “culpable homicide that is not murder or infanticide.”

[82] Culpable homicide” is defined in s. 222(5):

(5) A person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act; (b) by criminal negligence

[83] In R. v. Creighton, the Supreme Court of Canada held that in order to sustain a conviction for manslaughter, it is not necessary for the Crown to establish foresight of the risk of death. However, the Crown must establish foresight of the risk of bodily harm that is neither trivial nor transitory. As McLachlin J. (as she then was) wrote for the majority:

While s.222(5)(a) does not expressly require foreseeable bodily harm, it has been so interpreted...The unlawful act must be objectively dangerous, that is, likely to injure another person. The law of unlawful act manslaughter has not, however, gone so far as to require foreseeability of death...

So the test for the mens rea of unlawful act manslaughter in Canada, as in the United Kingdom, is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act.

R. v. Creighton (1993), 83 C.C.C. (3d) 346 at 371-73

[84] To make out the actus reus of unlawful act manslaughter, the Crown must prove:

a) that the accused committed an unlawful act, and b) that the unlawful act caused the victim’s death.

R. v. Javanmardi, 2019 SCC 54, para. 25. See also R. v. Creighton, [1993] 3 S.C.R. 3;

An unlawful act:

An unlawful act is any offence under federal or provincial statute except for absolute liability offences: DeSousa, p. 957.

Although older case law refers to a requirement that the unlawful act also be objectively dangerous, the Supreme Court has confirmed that “objective dangerousness” is not part of the actus reus for unlawful act manslaughter. Dangerousness and risk should be considered as part of the mens rea analysis: Javanmardi, paras. 26-30.

The unlawful act caused the victim’s death

The unlawful act must be a significant contributing cause of the victim’s death: R. v. Maybin, 2012 SCC 24, para. 1.

The accused’s unlawful actions need not be the only cause or direct cause of death. As long as the accused’s actions contributed significantly, it does not matter, for example, that timely medical treatment might have saved the victim’s life or that the accused’s conduct accelerated the victim’s death from a pre-existing condition: Maybin, para. 47; s.226 Criminal Code; R. v. Talbot, 2007 ONCA 81.

[85] To make out the mens rea for unlawful act manslaughter, the Crown must prove:

a) the mens rea for the underlying offence, and b) objective foreseeability of the risk of bodily harm that is neither trivial nor transitory.

R v. Javanmardi, para. 31. See also Creighton and DeSousa.

[86] Foreseeability of death is not required. In Creighton, McLachlin J. (as she then was) upheld the constitutionality of the mens rea for manslaughter, writing at p. 56:

[R]etention of the test based on foreseeability of bodily harm accords best with our sense of justice… Causing the death of another through negligence or a dangerous unlawful act should be met by a special sanction reflecting the fact that a death occurred, even though death was not objectively foreseeable… The criminal law must reflect not only the concerns of the accused, but the concerns of the victim and, where the victim is killed, the concerns of society for the victim's fate. Both go into the equation of justice.

Foreseeability of the risk of bodily harm

[87] Once the mens rea for the underlying offence is established, the remaining question is whether a reasonable person in all the circumstances would have foreseen the risk of bodily harm which is neither trivial nor transitory: Creighton.

[88] The reasonable person standard is informed by the activity in question. The care required by some activities is greater than the care required by others. For example, brain surgery requires more attention and skill than applying an antiseptic. Where an accused undertakes an activity either carelessly or without the requisite training and experience, he or she has breached the reasonable person standard: Creighton, pp. 71-73; Javanmardi, paras. 36-37.

[89] The accused’s personal characteristics, such as age, education or psychological predisposition, should not be considered when assessing what a reasonable person would have done in the circumstances. This is subject to one caveat: if the accused is incapable of appreciating the consequences of his or her actions or the nature of the risk involved with the activity in question, the mens rea will not be satisfied: Creighton, pp. 60-71.

The Meaning of Reasonable Doubt

[90] The Supreme Court has said the following about the meaning of reasonable doubt:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

[91] As outlined above, the Supreme Court of Canada has made it clear that absolute certainty is not required. Having said that the Supreme Court has said that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R. v. Layton (2009), 2009 SCC 36, 244 C.C.C. (3d) 417 at para. 36 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.

[92] A reasonable doubt is a doubt based on reason-on the logical processes of the mind. It is not a fanciful or speculative doubt, nor is a doubt based on sympathy or prejudice. It is the sort of doubt which you can attach a logical reason to by way of answer to the question “why do I doubt?” A logical reason means a reason connected either to the evidence itself, including any conflict you may find exists after considering the evidence as a whole, or to the absence of evidence which in the circumstances of the case the judge believes is essential to conviction (the foregoing is part paraphrase and part direct quote from Watt, Watt’s Manual of Criminal Jury Instructions (second edition) at page 266).

IV. Analysis and Application

Did Mr. Ahmad cause Mr. Baig’s death?

[93] In many respects this matter is a very simple narrative however the consequences are not only serious for the accused but have been life altering for the deceased and his family.

[94] I find as a fact that Mr. Ahmad and Mr. Baig were both party to a physical altercation that began in Mr. Ahmad’s store and proceeded outside into the hallway of the mall just outside of his business.

[95] The manner in which the men were holding each other was similar to grappling and at times both men were holding each other by their arms as they were pulling and tussling with each other. The nature of the physical interaction was not overly excessive or aggressive however it was clear that the men were not happy with each other and were not prepared to concede and or cease the physical interaction even at the point they were asked to by the security staff of the mall.

[96] According to the civilian witness evidence neither man had the upper hand on the other however the physical interaction did not stop even though they appeared quite evenly matched. With neither man prepared to relent.

[97] At the point that the men are outside of Mr. Ahmad’s store the narrative becomes much more difficult to piece together. What is certain to this court is that at some point Mr. Baig falls to the ground and does not use any part of his body to break his fall (according to Dr. Herath). Based on the evidence that I do accept the interaction between the two men is brief. Aside from the evidence of Mr. Baig falling and the medical opinion that is provided there is no conclusive evidence to enlighten the court as to how Mr. Baig fell to the ground or what caused it. There was no evidence before me to illuminate the court if he was pushed, shoved, punched, tripped or slipped prior to falling to the ground.

[98] It is not lost on this court that the injuries sustained by Mr. Baig were not transitory or insignificant and ultimately cost him his life.

[99] There was the suggestion made by the defence that the floor in the hallway could have been slippery. However, this was not suggested to every witness by the defence and would call for strong speculation on the part of the court. That being said the common-sense approach to a fight is that it ebbs and flows. The dynamics of a physical altercation can change in an instant and to ascribe a narrative based solely on one’s belief as to how an altercation such as this would have unfolded would be fool hearty in this courts estimation.

[100] Based on the evidence I am unable to deduce how Mr. Baig fell to the ground. This court is confident that Mr. Baig fell in a backwards motion, and I am also confident that he was unable to break his fall. However, what this court is less confident to resolve is what precipitated the eventual fall.

[101] There is no evidence before me as to whether Mr. Baig was pushed, punched, kicked, or slipped prior to falling to the ground.

[102] However, this court does believe that as a result of the two men grappling with each other a consequence of that action was Mr. Baig falling to the ground and striking his head against the locking mechanism located on the floor at the entrance of Mr. Ahmad’s store.

Was the grappling/pushing an Unlawful Act?

[103] This court is not satisfied beyond a reasonable doubt, based on the evidence before me that what took place between Mr. Ahmad and Mr. Baig was an unlawful act.

[104] There is evidence both circumstantial and real that could draw this court in several competing directions some consistent with the actions of Mr. Ahmad being interpreted as unlawful and other factual scenarios that would render the actions of Mr. Ahmad lawful. The possibilities and permutations are not inexhaustive however several plausible scenarios are available to the court.

[105] The evidence before me amounts to two men grappling with each other in a manner that is not overly aggressive and when asked to stop the activity neither man is prepared to let got of the other. Eventually Mr. Baig is observed falling backwards. There are no witnesses to what precipitates the fall.

[106] The following are a few plausible scenarios that can be found based on the evidence before me that I do accept.

(i) As a result of the physical interaction between Mr. Baig and Mr. Ahmad Mr. Baig lost his footing and fell backwards hitting his head on the metal locking device; (ii) As a result of the physical interaction between Mr. Baig and Mr. Ahmad, Mr. Baig was punched with significant force rendering him unconscious as he fell to the floor hitting the metal locking device. loosing (iii) Mr. Ahmad was protecting himself as he was being assaulted by Mr. Baig (who was the aggressor). Eventually in an attempt to protect himself Mr. Ahmad struck Mr. Baig.

Assessment of Nasal Injuries

[107] In light of this court's findings with respect to Dr. Herath’s report I am not prepared to categorize some of the facial injuries endured by Mr. Baig as being caused as a result of the physical interaction between he and Mr. Ahmad. This court is unable to conclusively state when and how those injuries occurred. Except that they may have taken place prior to Mr. Baig falling however I am not in a position to state beyond a reasonable doubt that it was immediately prior to the fall or as a result of medical intervention.

[108] It is conceivable that the injuries to the nasal area of Mr. Baig could have occurred as a result of a strike to his face which could have occurred outside the store in the hallway potentially breaking Mr. Baig’s glasses. However, this court is not able to find that as a fact beyond a reasonable doubt when looking that all of the other competing evidence and inferences before me.

[109] Although the crown ascribes significance to the words uttered by the security guards that are at the scene when asking the men to separate from each other, as well as their views as it relates to their interpretation of Mr. Ahmad movements and or words this court cannot draw many conclusions from their interpretations. There is very little evidence before me as to how well or long have the security guards known Mr. Ahmad aside from in a business setting.

[110] Crown counsel made submissions that the utterances made by Mr. Ahmad just after the men arrive to help Mr. Baig are suggestive of him being the one who pushed Mr. Baig to the floor. This court does not view the utterances exclusively in the manner the crown has suggested them. This court believes that the utterances when taken on their face can also be suggestive of remorse for having been in a physical scuffle with Mr. Baig or an expression of regret for the fact that things got out of hand.

Conclusion

[111] After reviewing the evidence, viva voce testimony, the various exhibits and submissions of counsel I am not satisfied beyond a reasonable doubt that Mr. Ahmad caused Mr. Baig’s death unlawfully and as such Mr. Ahmad will be acquitted of the count of manslaughter before this court.

Released: December 14, 2022 Signed: Justice D.F. McLeod