ONTARIO COURT OF JUSTICE
DATE: 2025 03 17
COURT FILE No.: Toronto Region 24-48125201
BETWEEN:
HIS MAJESTY THE KING
— AND —
Muhammed BATCHILLY
Before Justice Cidalia C.G. Faria
Heard on March 14, 2025
Reasons for Judgment released on March 17, 2025
Nicholas Burrell .................................................................................. counsel for the Crown
Chris Hynes ................................... counsel for the defendant Muhammed BATCHILLY
Faria J.:
I. Introduction
[1] Muhammed Batchilly is charged with the offence of assault with a weapon and possessing this weapon in contravention of a release order contrary to ss. 267(a) and 145(5)(a) of the Criminal Code.
[2] On March 14, 2025, he had a very short trial before me. The Crown called one witness and filed four photos as exhibits. Mr. Batchilly testified in his own defence.
[3] The Defence conceded date, identity, jurisdiction, and that Mr. Batchilly was on a release not to be in possession of a weapon at the time of the alleged assault with a weapon.
II. Evidence summary
[4] Aseef Khan testified for the Crown. On August 17, 2024, he went to the Galleria Supermarket in Toronto to buy eggs. He heard a commotion, and glass shattering. When he approached the checkout area, he saw 2 female and 1 male store staff trying to hold Mr. Batchilly. One store staff member, the male, grabbed Mr. Batchilly, demonstrated to be like a bear hug, after Mr. Batchilly had knocked additional products to the ground. The two men tussled. The store staff member forced Mr. Batchilly into a chair. Mr. Batchilly’s feet were bleeding.
[5] Mr. Khan observed Mr. Batchilly sitting in the chair and use a knife to “shave stuff” off the bottom of his bleeding feet. Mr. Khan assumed that Mr. Batchilly had stepped on the shards of glass he had seen on the floor of the grocery store.
[6] The male staff member who had placed Mr. Batchilly in the chair after the tussle left the area and returned with paper towels and a first aid kit. He approached Mr. Batchilly.
[7] Mr. Khan testified he saw Mr. Batchilly raise the knife he was using on his feet to chest height, and holding it with bended elbow, he said “get away from me”. The male staff member threw band aides at Mr. Batchilly and backed away.
[8] Police were called, they attended, they arrested Mr. Batchilly and took a statement from Mr. Khan.
[9] Mr. Khan recalls hearing Mr. Batchilly asking for a receipt in varying amounts, $50, $100, and $200. He testified that Mr. Batchilly never got up from his chair and did not “protrude” the knife forward, and that the store member approached slowly when he returned with the medical supplies.
[10] None of this evidence is in dispute.
[11] Mr. Batchilly testified he suffers from a brain injury and takes medication for a bi-polar diagnosis. He testifies he shopped at Galleria Supermarket often and wanted a receipt for a previous purchase. He recalls getting scared and either throwing or dropping a juice bottle. He testified the store staff put their hands on him, they dragged him around and his feet were bleeding.
[12] He had a knife he uses to cut oranges and mangos and he was using it on his feet to “scrape it off”, presumably the glass he had just walked on that caused the bleeding. He wanted to “scare them away from me” as they had pushed him, and “when they see the knife they stay away”. He testified he had no intention of hurting anyone, he did not attack anyone, and he was not “wielding” the knife, though he admits he talks with his hands.
[13] When asked how he felt, Mr. Batchilly testified he was disappointed and hurt that the staff called the police rather than an ambulance to help with his bleeding feet. “They pushed me and dragged me and I was walking on glass on the floor”.
III. Position of the Parties
[14] The Crown submits it has proven every element of the offences, and that there was no threat to Mr. Batchilly, so his response, to lift the knife in his hand, was not reasonable in the circumstances as self-defence.
[15] The Defence submits that the Crown did not call the person to whom Mr. Batchilly spoke to when he had the knife in his hand, and so has not proven the elements of assault with a weapon.
[16] In the alternative, Mr. Batchilly’s response to the approach of the person who had grabbed him, moved him over shards of glass causing his feet to bleed, and forced him into a chair, was a reasonable apprehension of a threat, and his response, to raise the knife, which he acknowledges became a weapon at that moment, and say “get away from me” is self-defence.
IV. Legal Principles
[17] Mr. Batchilly is presumed innocent. The onus is on the Crown to prove every element of both offences beyond a reasonable doubt. This is a high standard of proof that lies “much closer to absolute certainty than to a balance of probabilities”, R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.
[18] I must consider the credibility and reliability of the witness evidence. Credibility relates to whether a witness is speaking the truth as they know it, and reliability relates to the actual accuracy of the testimony.
[19] Section 265(1)(b) of the Criminal Code defines an assault as when a person:
(b) attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose
[20] An assault with a weapon per s. 267(a) is when committing an assault, the person:
(a) carries, uses, or threatens to use a weapon or an imitation thereof.
V. Analysis
[21] Both witnesses, Mr. Khan for the Crown, and Mr. Batchilly on his own behalf are credible. It is not in dispute that they both testified to what they believe to be true.
[22] Mr. Khan was straightforward, and clear about what he saw, easily admitted what assumptions he made and reasons he made them. He also admitted that he observed only part of the interaction between Mr. Batchilly and the staff, about 6 minutes of 10 minutes, he estimated.
[23] Mr. Batchilly testified to the best of his ability given his challenges with his brain injury, his mental health condition, and his medication. Certainly, the Crown did not submit, nor do I find, that Mr. Batchilly was untruthful to the court.
[24] Reliability, the essential elements of the offence, and self-defence are the issues.
Assault with a weapon
[25] I find Mr. Khan reliable. He was close to both Mr. Batchilly and the person alleged to be the victim of the assault with the weapon. He saw the tussle, saw Mr. Batchilly being forced onto a chair, the staff member leave and come back with medical supplies. He saw the staff member approach Mr. Batchilly slowly, then back away when Mr. Batchilly raised the knife, and told him to “get away”. He saw the staff member throw Band-Aids at Mr. Batchilly.
[26] It is clear Mr. Khan saw and perceived Mr. Batchilly to be using the knife as a weapon and to intimidate the staff member when he raised it from his feet to chest height and at the same time told him to get away.
[27] However, there is no evidence from the staff member that he saw the knife raised, and he perceived it the same way. There is no direct evidence that Mr. Batchilly’s gesture caused the staff member to believe on reasonable grounds that Mr. Batchilly had “the present ability to effect his purpose”, an essential element of the offence.
[28] The Crown asks the court to make this inference based on the evidence that the staff member approached Mr. Batchilly slowly and then backed away when the knife was raised.
[29] That is a reasonable inference.
[30] However even if the staff member saw the knife Mr. Batchilly was using to shave off shards of glass from his feet, there is no evidence he saw the raised knife gesture, and that is why he approached no closer. Gesture or no gesture, the staff member could have intended to toss the medical supplies to Mr. Batchilly who was acting oddly.
[31] There is both an absence of evidence on one of the essential elements of the charge, and an available alternative inference as to how the complainant perceived Mr. Batchilly, in addition to Mr. Batchilly’s evidence that he had no intention to intimidate or injure but rather to protect himself and be left alone to tend to his injuries.
[32] I therefore need not review the Defence’s alternative self-defence submission.
Failing to Comply
[33] Mr. Batchilly was on a release order to “not possess any weapon(s) as defined by the Criminal Code (for example …anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person., contrary to section 145, subsection (5), clause (a) of the Criminal Code of Canada”.
[34] Mr. Khan provided direct evidence that he saw Mr. Batchilly go from using a knife to shave off shards of glass from his feet, to raising the knife to chest height and yelling at a staff member to “get away”.
[35] Mr. Batchilly himself testified that he wanted to “scare” the staff member to “stay away” when he raised the knife they saw the knife.
[36] I find, Mr. Batchilly was in possession of a knife, and he used it to intimidate a person.
VI. Conclusion
[37] The Crown’s burden is high. He must prove that Mr. Batchilly assaulted a person with a knife beyond a reasonable doubt. For the reasons above, he did not. I find Mr. Batchilly not guilty of an assault with a weapon.
[38] On the count of failing to comply with a release order, that of being in possession of a weapon, a knife, I find the Crown has met its burden and am satisfied beyond a reasonable doubt that Mr. Batchilly is guilty of that count.
Released: March 17, 2025
Signed: Justice Cidalia C. G. Faria