ONTARIO COURT OF JUSTICE
DATE: 2025 01 30
COURT FILE No.: Oshawa 23-28107197
BETWEEN:
HIS MAJESTY THE KING
— AND —
AHSANULLAH SALEHI
Before Justice Joseph Hanna
Heard on October 28 - 30, 2024; December 4 - 5, 2024; January 17, 2025
Oral Reasons Given on January 29, 2025
Written Reasons for Judgment Released on January 30, 2025
N. Rivers ................................................................................................ counsel for the Crown
P. Aubin ................................................................................................ counsel for Mr. Salehi
HANNA J.:
Introduction
[1] Ahsanullah Salehi was tried for various charges arising from events that occurred on October 5, 2023 at the Durham College Campus in Oshawa. The allegations involve two complainants, Ishaq Habibi and Hashmatullah Sherzad.
[2] On the day in question, Mr. Salehi had multiple interactions with Mr. Habibi during which he is alleged to have threatened him. Mr. Salehi also had an encounter with Mr. Sherzad and Mr. Habibi at which time it is alleged he retrieved an air pistol from his pocket, struck Mr. Sherzad with it, and threatened Mr. Sherzad. At the time of these alleged incidents, Mr. Salehi was subject to a probationary term to keep the peace and be of good behaviour.
[3] These are my reasons for judgment.
General Principles
[4] Mr. Salehi is presumed innocent. It is the Crown’s onus to prove his guilt of the offences charged beyond a reasonable doubt. I cannot convict Mr. Salehi if I merely believe that he is probably or likely guilty of an offence. In that situation, he would be entitled to an acquittal. While proof to an absolute certainty is not required, proof beyond a reasonable doubt falls much closer to an absolute certainty than to proof on a balance of probabilities. A reasonable doubt can arise from the evidence or from the absence of evidence.
[5] The principles in R. v. W. (D.), [1991] S.C.J. No. 26 apply in this case. In applying these principles, I am not required to proceed in any particular sequence: R. v. C.L.Y., 2008 SCC 2, at para. 12. What is essential is that I keep the Crown’s burden of proof in mind. Lack of credibility on the part of the accused or a defence witness does not equate to proof of guilt beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30 at para. 13.
Admitted Facts
[6] The defence concedes that Mr. Salehi was on probation on the date of the alleged offences and that the air pistol seized by the police was a replica firearm.
[7] It is not in dispute that Mr. Salehi was involved in interactions with the complainants on the day of the alleged incidents.
Ishaq Habibi’s Evidence
[8] Ishaq Habibi is a 20-year-old student.
[9] He testified that on October 5, 2023 he had four interactions with a male at the Durham College Oshawa campus, which was where he attended school. The defence admits that this male is Mr. Salehi.
[10] Mr. Habibi advised that he had only seen Mr. Salehi on one previous occasion while driving, about three months prior to the incident. He said that his friend, Aryan, had shown him a picture of this male before and told him that the male’s name was Ahsan.
[11] Mr. Habibi indicated that Mr. Salehi was with two females, one of whom was wearing shorts and a pink top. One of these females attended the same school as him. He believed her name to be Sadaf. Mr. Habibi advised that he understood Aryan, Ahsan, Sadaf, and Sadaf’s sister to be friends. Aryan used to date Sadaf, and he believed that Ahsan had been in a relationship with Sadaf’s sister. Mr. Habibi had learned all of this through conversations with Aryan.
[12] Mr. Habibi indicated that he and Mr. Salehi conversed in both English and Dhari during their interactions that day.
[13] He denied that he was in possession of a weapon on October 5, 2023.
The First interaction
[14] Mr. Habibi explained that at approximately 12:00 p.m. he was on campus with four or five of his friends. He said he was approached by Mr. Salehi. He testified that Mr. Salehi stared at him before approaching him, though he acknowledged in cross-examination that he had not mentioned that he had stared at him when he gave his police statement.
[15] Mr. Habibi said that Mr. Salehi told him: “What’s up? I know you; I’ll assassinate you” and made different kinds of threats towards him. In examination in-chief, he said his exact words were, “I know you, and I know your friends and I know where you live, and I’ll shoot you on the face.” In examination-in-chief, Mr. Habibi testified that he told Mr. Salehi he was in college and walked away. He indicated that Mr. Salehi did not say anything else during this interaction. In cross-examination, he added that when he had asked Mr. Salehi what his issue was, Mr. Salehi responded by saying that Mr. Habibi had parked his car beside his friend’s car and that there was an issue about the parking lot. He advised that he had been dropped off at the campus that day and had not seen either this Mr. Salehi or the females at that time. In cross-examination, he indicated that he did not remember Mr. Salehi’s exact words but that the threatening words mentioned earlier captured the meaning of what Mr. Salehi had said. When pressed on this point, Mr. Habibi said that Mr. Salehi had used these exact words but that there were other words Mr. Salehi had said that he could not remember. He also said in cross-examination that Mr. Salehi had said a lot of stuff, besides his threatening words, but he could not recall them. He also acknowledged that he and Mr. Salehi had cursed at each other during this interaction. When asked what he had said to Mr. Salehi, Mr. Habibi responded, “whatever he told me, I told him the exact same thing.” He denied however threatening Mr. Salehi or taunting him. He could not remember whether Mr. Salehi had said anything to him about Sadaf. He said whatever was going on during this interaction had nothing to do with Sadaf.
[16] Mr. Habibi said that Mr. Salehi was very close to him during this interaction, whispering in his ear. He said the females were about three steps back from them. He said his own friends were about three meters away during the interaction. In cross-examination he agreed that one of the females appeared to be stepping in between him and Mr. Salehi to ensure a fight did not occur.
[17] He testified that this interaction lasted between two and four minutes and half minutes. He agreed there was continuous talking during that time and that there was a lot more said during that period than he could now remember.
[18] Mr. Habibi agreed that he had told the police that his friends could provide information regarding this interaction but that he refused to provide the officers their names.
[19] He denied having an expectation that he would speak to this male again that day, however agreed that he told the police he had told Mr. Salehi at the end of the first interaction, “we're going to talk about it later if I have time.”
[20] Overall, I found that there were sufficient inconsistencies and gaps in Mr. Habibi’s evidence which caused me concerns about who said what to whom during this interaction.
The second interaction
[21] After the initial interaction, Mr. Habibi said he went to the cafeteria and then called his friend Hashma Sherzad to tell him what had happened. In cross-examination, he initially said this call occurred while he was in the cafeteria but later indicated that he had left the cafeteria when on the phone because he could not hear Mr. Sherzad due to the crowd in the cafeteria. Mr. Habibi said Mr. Sherzad told him they would call the police when he arrived to meet him at the school.
[22] He testified that while outside of the building Mr. Salehi approached him again and made further threats about shooting him in the face, killing him, killing his family, raping him, and raping his sister. In examination in-chief he advised that Mr. Salehi did not say anything else during this interaction. In cross-examination he added that Mr. Salehi was asking him to go off campus, where there would not be cameras, to fight. He also agreed that he probably cursed at Mr. Salehi during this interaction.
[23] Mr. Habibi indicated that he believed Mr. Salehi had a weapon during this interaction. He advised that the male had his hand inside the pouch of his hoodie. It appeared as if he was holding a gun inside the pouch. In cross-examination he explained that he could see the shape of the gun through the hoodie.
[24] He initially said in cross-examination that there was no physical interaction between him and Mr. Salehi and that he could not recall any pushing occurring between the two of them. When confronted with his police statement he agreed that he had told the police that the two males were pushing each other.
[25] Mr. Habibi also indicated in cross-examination that Mr. Salehi reached to his pocket and pushed him. At this point Mr. Habibi recalled grabbing Mr. Salehi’s hand. He said, “once he pushed me, then I grabbed his hand.”
[26] I found Mr. Habibi’s inconsistency regarding whether there had been any physical interaction between him and Mr. Salehi concerning.
The third interaction
[27] Afterwards, Mr. Salehi and two females left. Mr. Habibi said he then waited for Mr. Sherzad to arrive and met him at the gym building. The two got into Mr. Sherzad’s Silver Honda Civic and drove towards student services. Mr. Sherzad was driving and Mr. Habibi was in the passenger seat.
[28] He testified that while driving he observed Mr. Salehi in a white Corolla which was driving in the opposite direction. He described this vehicle as having a large Islamic logo on the back window.
[29] Mr. Habibi advised that he told Mr. Sherzad, “that is this guy” and that Mr. Sherzad then made a U-turn to follow the vehicle for the purposes of recording its licence plate. He said they then stopped their vehicle directly behind the white Corolla which was stopped at a stop sign. In cross-examination, Mr. Habibi denied hearing Mr. Sherzad honk their vehicle’s horn at the Corolla.
[30] According to Mr. Habibi, Mr. Salehi exited the Corolla and approached the driver’s side of the Honda Civic. He said Mr. Salehi opened the driver’s side door and hit Mr. Sherzad with a black pistol, two times. He said Mr. Salehi was about to hit Mr. Sherzad in the face but that he hit Mr. Sherzad’s hand when the latter defended himself. He believed the second blow was to the area between Mr. Sherzad’s shoulder and neck. He advised that Mr. Salehi hit Mr. Sherzad with the top portion of the gun, the part where a bullet would come out. In cross-examination, Mr. Habibi maintained he was 100 percent positive that he saw the gun at this point.
[31] He advised that during this interaction inside the Honda Civic, while Mr. Salehi was holding the gun, he told Mr. Sherzad, “you see this, I will shoot you”; “I will come after you.” Mr. Habibi said that Mr. Salehi was saying these words while he was hitting Mr. Sherzad or after he had hit him.
[32] Mr. Habibi stated that he was shocked at this point. After about five seconds he got out of the vehicle for the purposes of separating the fight and to defend himself and his friend.
[33] While outside the vehicle, he said he exchanged pushes with one of the females. Mr. Salehi then got back into the other vehicle and he and the females left.
[34] Mr. Habibi agreed in cross-examination that at the time of the incident he believed the gun was real and that it scared him. He agreed he thought he and his friend might get shot. He was confronted with his police statement wherein he described the gun as “like a BB gun or something fake.” Mr. Habibi explained that while at the police station, prior to giving his statement, a detective had told him that the gun was not real.
[35] Mr. Habibi agreed that because he had thought the gun was real at the time, he did not want to put himself in a situation where he might get shot. He said he got out of his car despite this because he wanted to defend himself. He denied he was trying to get into a physical altercation with Mr. Salehi, but maintained he was trying to defend himself. When asked what his plan was, he responded that he did not remember and that he had been mad at the time. He then added that he had been scared and mad.
[36] Mr. Habibi agreed that he forgot to tell the police that he had exited his vehicle and approached the Corolla. He explained that when he gave his statement, his “brain was… all around” given what had just happened.
[37] He testified that the white Corolla had been driving fast prior to stopping at the stop sign. He maintained this position after being shown in court surveillance video of the incident. I found Mr. Habibi’s insistence on this point undermined his credibility somewhat.
[38] Much of what Mr. Habibi described of this interaction was supported by other evidence, in particular the evidence of Mr. Sherzad and the video surveillance evidence. When I consider the evidence as a whole, Mr. Habibi exiting his vehicle does not cause me to doubt his account of having seen Mr. Salehi with a gun. As he explained, he was both scared and mad. His anger provides an explanation for why he would approach Mr. Salehi despite what had just happened.
The fourth interaction
[39] Following the incident at the stop sign, Mr. Habibi advised that he and Mr. Sherzad drove to the gym building. He said while he was standing outside the building there was another interaction with Mr. Salehi.
[40] In examination-in-chief, he described Mr. Salehi rolling down the passenger window of his vehicle and threatening him again, saying: “I’ll come after your house, I’ll kill you, and kill your friends.” In cross-examination, he indicated that Mr. Salehi said “I will rape you. I will rape your family, your friends, and your whole existence.”
[41] In examination in-chief, Mr. Habibi said he and Mr. Salehi were cursing at each other during this interaction. In cross-examination, Mr. Habibi said he was quiet the whole time and that he was in shock. When asked in cross if he said anything during this interaction, Mr. Habibi responded, “no, nothing.” I found Mr. Habibi’s inconsistency here regarding his involvement during this incident negatively affected his reliability about this incident.
[42] Mr. Habibi testified that during this incident the females in the Corolla did not say anything. When confronted with his police statement he acknowledged that he had told the police that one of the females had cursed during the interaction. He explained that this inconsistency was due to his having forgotten about that happening.
[43] Mr. Habibi said that while he was standing in front of the gym building, Mr. Sherzad called 911. He said the 911 call would have been between 12:40 and 12:57.
Hashmatullah Sherzad’s Evidence
[44] Mr. Sherzad is also a 20-year-old student. He testified that on October 5, 2023 Mr. Habibi called him to inform him that he had been threatened. Mr. Sherzad advised that he then attended Durham College for the purpose of getting Mr. Habibi somewhere safe to call the authorities.
[45] He described picking up Mr. Habibi and driving towards the student services building, at which point Mr. Habibi pointed out a white Corolla and said, “that’s the car.” Mr. Sherzad then made a U-turn to follow the vehicle and obtain its licence plate number.
[46] Mr. Sherzad testified that the white Corolla stopped at a stop sign. A male, which it is agreed was Mr. Salehi, exited the Corolla and approached his vehicle. Mr. Sherzad said Mr. Salehi opened Mr. Sherzad’s door, retrieved a gun from the front pocket of his hoodie, racked it once, and said “you see this gun? I’m coming after you and your family too.” Video of the incident confirms that Mr. Salehi attended at Mr. Sherzad’s door and leaned inside the vehicle for three seconds.
[47] Mr. Sherzad testified that Mr. Salehi swung twice at him with the gun. He indicated that Mr. Salehi attempted to hit him in the head with the gun, but he blocked the first blow. He said he was struck in the hand but demonstrated in court that he meant the forearm area. He stated that Mr. Salehi swung again with the gun, and that he leaned back to avoid being hit. He again demonstrated this in court by leaning back in his chair. My mention of Mr. Sherzad’s actions in court are meant to simply explain the way he described the events. I am aware of the limitations of demeanor evidence, and I do not put significant weight on it in this case: R. v. Rhayel, 2015 ONCA 377, at para. 85; R. v. J.L., 2022 ONCA 271, at para. 6.
[48] The defence argued that Mr. Sherzad’s account was implausible given the video footage of this incident depicted a very brief interaction. I disagree. In my view, the video shows Mr. Salehi in a position for a long enough period to commit the acts described by Mr. Sherzad. Mr. Sherzad indicated the gun was pulled out “as soon as” Mr. Salehi was at his door. In cross-examination, he agreed he was being hit immediately after the gun was racked. I appreciate that at one point in examination-in-chief, Mr. Sherzad agreed with Crown counsel that the hitting motions occurred after the threat. In cross-examination he indicated the threats were being made while he was being hit. I do not find this minor discrepancy regarding the precise sequence of events to be significant. Ultimately, I find that Mr. Sherzad was describing a very quick event and that there was sufficient time for it to have occurred.
[49] Mr. Sherzad testified that Mr. Salehi and Mr. Habibi had a verbal altercation in front of Mr. Sherzad’s vehicle. Mr. Salehi then went back to his car. He mentioned there being two females present at the time. One of these females exited the Corolla and was pushing Mr. Habibi. He opined that Mr. Habibi was trying to defend them.
[50] Mr. Sherzad stated that Mr. Salehi and the female got back into their vehicle and left. He and Mr. Habibi then drove to the gym building. Mr. Sherzad entered the building and called 911. When he came out, he heard Mr. Habibi and Mr. Salehi yelling at each other. He said he heard Mr. Salehi say “I’m coming after you. I know where you live.” He agreed that Mr. Habibi was probably saying things. He said that he did not hear anything and that he was not involved in the situation. He acknowledged he told the police that Mr. Salehi had been cursing for five minutes during this interaction and agreed after watching video of the incident that the interaction was closer to a minute. I do not find this inaccurate time estimate undermined the credibility or reliability of his evidence regarding the core of his allegations. When confronted, he admitted that he told the police one of the females had been cursing. He explained that he had forgotten this given that the event occurred over a year ago.
[51] Mr. Sherzad advised that the police arrived within minutes of his 911 call.
[52] He testified that while he had seen pictures of Mr. Salehi on social media prior to the incident, he had only seen him once in real life while driving with Mr. Habibi. On that occasion, Mr. Habibi drew his attention to Mr. Salehi, who was passing by in another vehicle. He agreed that in his police statement, when asked if he had ever interacted with Mr. Salehi before, he responded, “never, ever. I have, this is my first time that I have seen him in my whole life.” He explained that he had meant that he had never interacted with Mr. Salehi before and indicated that he should have been more focused in his response to the officer. I found Mr. Sherzad’s explanation for this purported inconsistency to be reasonable.
[53] Mr. Sherzad was shown photographs of his arm taken by the police following the incident. He testified that a mark on his forearm visible in the photographs was caused by being assaulted by Mr. Salehi. When it was suggested to him that he had not been hit by the gun, Mr. Sherzad responded, “you’ve seen the picture”, referring to the photographs filed of his arm. I find that the photographs of this injury provide some confirmatory support for Mr. Sherzad’s allegations.
[54] Mr. Sherzad initially agreed in cross-examination that Mr. Salehi had not pointed the gun at him as if to shoot him, stating rather that, “he racked it.” He then said he could not remember and explained that he did want to say something in court that he was not sure of. Defence counsel asked Mr. Sherzad if he was sure from watching the video surveillance of the incident in court that Mr. Salehi had not pointed the gun at anyone outside of the vehicle. Mr. Sherzad agreed he was.
[55] On this issue, Mr. Aubin cross-examined Mr. Sherzad about a portion of his police statement.
Q. So, I’m gonna take you to page 29 of your transcript from the October 5th, 2023 video statement that you give to police. Okay. And the officer says to you, “and did he point it at you and your friend”, and you said “no, he first pointed at me”, and the officer says, “yeah”, and then you say, “and then when he went to step in the car, my friend was outside of my [1] car again and he was pointing at him.” Do you recall saying that to the police?
A. I said that he was pointing the gun at me inside the car, and he was pointing the gun at my friend.
[56] My observation was that when Mr. Sherzad gave this response his intonation was indicative of him asking a question as opposed to making a statement. I have listened to the audio recording of this portion of his evidence. In my view, it confirms that Mr. Sherzad used a clarifying intonation.
[57] Mr. Aubin responded to Mr. Sherzad by stating, “outside of the car, yes.”
[58] The exchange in court then continued:
P. AUBIN: Q. Do you want me, do you want me to read it to you again?
A. I get it but I told you I was at a state of my mind that was worried about my life. It happened two hours after, the statement happened two hours after the incident, so that’s why.
Q. So, you’re agreeing that’s wrong, what you tell the police there. That didn’t happen?
A. I, I was out of the state of my mind, yeah.
Q. I understand that’s your explanation for why it’s wrong, but you’re agreeing that that’s wrong when you said that to the police?
A. Yes. I think, yeah.
THE COURT: Mr. Aubin, can you give me the question and answer that you read out?
P. AUBIN: Yes.
THE COURT: Page 29.
P. AUBIN: Of, of the transcript from the October 5th, 2023 video statement, and what I read out was, the officer says, “and did he point it at you and your friend?”, question mark, and then the answer was, “no, he first pointed at me, and then when he went to step in the car, my friend was outside of my car, and he came out of the car again, and he was pointing at him.
[59] After some clarification from the Court, the questioning continued:
P. AUBIN: Q. Sir, would you agree with me that that’s a pretty serious thing to get wrong in your police statement, to tell the police that somebody pointed a gun at your friend when that didn’t happen?
A. Yes. As I said, I wasn’t in the state of my mind; I was worried about my life, and this happened out of everything that day was short(ph). The statement happened two hours after that, so I wasn’t physically and mentally there.
[60] I do not find that Mr. Sherzad was seeking to mislead the officer. First, when the officer asked Mr. Sherzad whether he had pointed “it” and him and his friend Mr. Sherzad responded “no”. This appears to be an odd response if his intention was to indicate to the officer that he had pointed a gun at them. Second, Mr. Sherzad in this portion of his police statement referred to Mr. Salehi pointing at him, stepping into his car, exiting his car again and pointing at Mr. Habibi. There is no mention in this part of the statement of an item being pointed at Mr. Sherzad or Mr Habibi outside of the vehicle. He does not mention he pointed a gun. Third, the video evidence is consistent with the actual words used by Mr. Sherzad in his statement. Namely, Mr. Salehi entering his vehicle, exiting his vehicle, and gesturing towards Mr. Sherzad and Mr. Habibi. Fourth, I find that when Mr. Sherzad was confronted with this portion of his statement, he sought clarification regarding what he had said. Fifth, even if Mr. Sherzad had been indicating to the police that Mr. Salehi pointed the gun while outside of the vehicle, it would be reasonable for him to have been mixed up shortly after the events, given the mental stress of having just been hit by a gun combined with the fact that Mr. Salehi did in fact enter his vehicle, exit, and gesture towards Mr. Sherzad and Mr. Habibi.
[61] Mr. Sherzad denied being in possession of any weapon that day or showing a weapon to Mr. Salehi. He was not challenged on this point in cross-examination.
[62] Overall, I found Mr. Sherzad to be a credible and reliable witness. He testified in a straightforward manner. He was neither evasive nor argumentative in cross-examination. Furthermore, the core aspects of his allegations were not undermined through cross-examination or other evidence led at trial. On the contrary, I find that there is substantial evidence which confirms Mr. Sherzad’s testimony.
The Surveillance Footage
[63] Surveillance footage from Durham College was introduced at trial. I have reviewed it several times. I also zoomed in on it at certain points, particularly during the sequence of events leading up to and during the stop sign incident. I will highlight the portions of video evidence I consider most relevant.
[64] At 12:40:10 p.m. the White Corolla driven by Mr. Salehi is seen driving west on Founders Drive while the Honda Civic being driven by Mr. Sherzad is driving east. The Civic does a U-turn and then drives west.
[65] At 12:40:24 the White Corolla is stopped at a stop sign at the intersection of Founders Drive and Avenue of Champions. The vehicle is on Founders Drive, facing west. The Honda Civic is stopped a few feet behind it.
[66] At 12:40:28, Mr. Salehi is seen exiting the driver’s door of the Corolla and walking towards the driver’s door of the Civic. At 12:40:32 Mr. Salehi is as at the driver’s side door of the Civic and the door opens. At 12:40:33 Mr. Salehi’s body is leaned inside the driver’s side door. When the video is zoomed in, some movement can be seen from within the vehicle. At 12:40:36 Mr. Salehi backs out from the doorway and the door closes. At this point, a female who has exited the Corolla is now near the front the Civic.
[67] At 12:40:38 Mr. Habibi exits the passenger door of the Civic. At 12:40:43 Mr. Salehi has entered the driver’s side of the Corolla and closed the door. The female and Mr. Habibi interact with each other. The female appears to be trying to prevent Mr. Habibi from approaching the white Corolla. At 12:40:48 Mr. Habibi is near the driver’s side door of the Corolla. The female’s body is between him and the door. At 12:40:51 the female pushes Mr. Habibi away with one hand and he takes a few steps back. At this point the driver’s door of the Corolla is slightly open and Mr. Salehi’s foot is visible on the ground. The female then continues to keep her body in front of Mr. Habibi, who is now closer the Civic. Between 12:40:57 at 12:41:05 Mr. Salehi makes gestures in the direction of Mr. Sherzad and Mr. Habibi. This can be seen when the video is watched zoomed in. At 12:41:10 Mr. Habibi is standing in front of the Civic and gestures in the direction of Mr. Salehi.
[68] At 12:41:11 Mr. Salehi closes the driver’s door. Between 12:41:16 – 12:41:18, the female then enters the back seat of the Corolla and Mr. Sherzad and Mr. Habibi enter the Civic. The Corolla then proceeds west on Founders Avenue and is off camera at 12:41:23. The Civic turns left on Avenue of Champions, going south, and is off camera at 12:41:33. At 12:41:45 the Corolla is seen driving eastbound on Founders, and then turning south on Avenue of Champions at 12:41:48.
[69] At 12:42:10, the Honda Civic is seen arriving near the gym building. Mr. Sherzad and Mr. Habibi exit the vehicle. At 12:42:32 the Corolla arrives near the gym building. A van is in front of it blocking its path of travel. At 12:42:40 the Corolla is stopped parallel to the Civic near the building. The van is still in front of the Corolla. At 12:43:12, the van has parked and is no longer in the Corolla’s path. The Corolla moves closer towards the Civic. At 12:43:28 the Corolla begins to drive away and has left the area of the gym building by 12:43:37.
[70] At 12:46:46 the Corolla is driving east on Commencement Drive approaching Simcoe Street. The vehicle then turns south onto Simcoe Street.
Mr. Salehi’s Arrest and the Discovery of the Air Pistol
[71] At 12:42 p.m., Police Constable Ryan Banstra was dispatched in relation the alleged incident which occurred at the Durham College. He participated in Mr. Salehi and his girlfriend, Sarah Khulmi’s, arrest. The arrest occurred near the intersection of Taunton Road and Simcoe Street. Footage from P.C. Banstra’s body worn camera shows that Mr. Salehi was ordered at gunpoint to exit the driver’s seat of the Corolla at 1:03 p.m. He was immediately taken into police custody.
[72] Police Constable Natasha Tymcio searched the Corolla. She located a beige tote bag on the front passenger floor. She opened the bag and observed what appeared to be a handgun. The firearm’s report filed relating to this item describes it as a 6 mm calibre CO2 semi-automatic pistol fitted with a detachable CO2 magazine. It is further described to resemble with near precision a 1911-A1 semi-automatic pistol. The pistol was not in firing condition given that it lacked a CO2 canister and had a faulty magazine.
[73] Photographs filed of the pistol show that it contains a slide which can be moved. No DNA or fingerprints were located on the item.
Mr. Salehi’s Statement to the Police
[74] Following his arrest, Mr. Salehi provided a video recorded statement to Detective Trafford of the Durham Regional Police Service. The defence concedes that this statement is voluntary and admissible.
[75] Mr. Salehi’s police statement is a mixed statement. It contains both potentially inculpatory and exculpatory aspects: R. v. M.P., 2018 ONCA 608, at paras. 60–61. The principles in W.D. apply to the exculpatory parts of it: R. v. Bucik, 2011 ONCA 546, at paras. 32-34.
[76] The statement is not particularly detailed and the narrative jumps from event to event. There are portions of the statement which lack sufficient context to fully understand what Mr. Salehi is referring to. For example, Mr. Salehi often mentions pronouns without elaboration of who he is referring to. At times during his statement, Mr. Salehi exercised his right to silence. It is important to emphasize that I cannot draw any inference against him for doing so: R. v. Hill, 2015 ONCA 616, at paras. 43, 46.
[77] The statement’s lack of detail poses some difficulty to assessing Mr. Salehi’s credibility and reliability. This is not a reason to reject the exculpatory parts of Mr. Salehi’s statement. It only highlights the importance of considering his denials in the context of the evidence as a whole: R. v. R.M., 2024 ABCA 321, at paras. 10–23; R. v. Van Deventer, 2021 SKCA 163, at paras. 16–25; R. v. Vigon-Campuzano, 2022 ONCA 234 at paras. 24, 38; R. v. Hoohing, 2007 ONCA 577 at para. 15.
[78] When asked what happened, at p. 7 of the transcript, Mr. Salehi told the detective “that guy had a thing too in his hand and he poked me right here. You can see the marks on here.” When saying this, Mr. Salehi points to near his right hip area and lifts his shirt. Despite pausing and zooming in on the video, I was unable to observe any marks. No evidence was led of there being any marks on Mr. Salehi’s body and Detective Trafford was not asked whether he saw any. While it is not completely clear which interaction Mr. Salehi is referring to, contextually, I find that it is most likely that he is referring to his second interaction with Mr. Habibi.
[79] Mr. Salehi told the detective that he was supposed to clean “her” car and pick it up from the college. He said that his girlfriend’s sister had a problem with the guys that he saw. He stated that this problem related to them bothering her and scratching her car. He indicated that he had dropped “her”, presumably his girlfriend’s sister, off.
[80] Mr. Salehi agreed that he initially had an altercation with just one of the males. He described exchanging looks with this person and that the male called him a “motherfucker” in Farsi. He said he told his girlfriend to stay put while he conversed with the male. He described postering between him and the male and that they exchanged words about each looking at the other. He told the detective that “Nothing happened and just walked away.”
[81] Mr. Salehi stated that he saw the male again. The male was on the phone with a friend who Mr. Salehi appears to have assumed was Mr. Sherzad.[2]
[82] He next described leaving and that he saw the male and his friend following their car and that “he” was honking at them. He said that he stopped and went to talk to “him”.
[83] He indicates that the driver showed him a big knife. Mr. Salehi then states, “I had that – I go to the thing. I have that Air – Airsoft” and that “we go with that thing, laser tags and stuff, yeah. But I – I never like touched him or anything, like… I never like got physical with them.” While Mr. Salehi denied any physical interaction, it is clear to me that he was acknowledging that he had the airsoft pistol on him at the time he was at Mr. Sherzad’s vehicle.
[84] Mr. Salehi denied threatening the males with the gun. He also denied pointing the gun. He indicated that words were exchanged about their mothers.
[85] Mr. Salehi mentioned knowing one of the male’s friends. He stated:
I know – not him, like his other friends, Ari (ph) and Riel (ph)…Yeah, I know him. He used to be with my friends and he was trying to like be with my girlfriend…Like he was trying to like go after her. I found out about that, like.
[86] It is not clear who Mr. Salehi is referring to about trying to be with his girlfriend.
[87] Mr. Salehi mentioned going to the same high school with a male, but he does specify who he is talking about. When Detective Trafford asked Mr. Salehi what he used the gun for, he responded “air tag.” He advised that he bought the pistol online and that he would go paintballing with friends. When asked if he kept the gun in his car, he responded “no, that’s not my car. No.” When asked if he carried it with him, he responded, “no.” Detective Trafford then asked him why he would have the gun and Mr. Salehi responded, “it was in the car, her car” and said, “like from the last time probably we went.”
[88] When asked again if he pointed the gun, Mr. Salehi answered, “No, I didn’t point it. No, no, no.” The officer then asked if he brought it out at any point, to which Mr. Salehi responded, “It was in my pocket.” The detective then asked if he brought it out of his pocket; Mr. Salehi responded “no.” The officer asked if anyone was able to see it. Mr. Salehi made a thinking sound and responded, “I don’t think so.”
[89] Mr. Salehi then stated that “they have the same guns too, the big ones.” He clarified that he was referring to paintball guns and indicated that “they have it in their car too.” He then stated, “we used to go with them but they stopped talking with us because he trying to be with my girlfriend.”[3] Again, it is not clear who the “he” is that Mr. Salehi is referring to.
[90] Towards the end of the statement, at p. 23 of the transcript, Mr. Salehi asked if “the guy” would be charged. He said that he had “put” a knife on him. I consider it most likely that Mr. Salehi was referring to the same incident he had mentioned at p. 7 of the transcript when he described being “poked”, and not the point when he was at Mr. Sherzad’s door. I draw this inference because when describing his interaction with Mr. Sherzad at Mr. Sherzad’s vehicle Mr. Salehi mentions being shown a knife but does not indicate being touched by one.
[91] When describing the knife being “put” on him, Mr. Salehi points on video to the left side of his waist. The officer asked him if the male had stabbed him and Mr. Salehi responded, “no, he’s just like, ‘I’m going to put it in if you don’t walk away.’ Then I walked away with my girlfriend.” Mr. Salehi said that this event occurred when they were in between two buildings. Given his description of this event, it is apparent that Mr. Salehi was referring to his second interaction with Mr. Habibi while outside. Ms. Khulmi testified she was present for this incident and very close by. She was obviously motivated to assist Mr. Salehi. She did not testify to observing Mr. Habibi brandishing a knife. I find it unlikely that she would have forgotten that or failed to mention it if she had observed it.
[92] If Mr. Salehi was talking about the same incident when he describes being poked by a knife and when he mentions a knife being “put” on him, it is somewhat odd he demonstrates two different sides of his body on video. With the passage of time, it would be perfectly reasonable to forget which side of one’s body one was touched. In this case, Mr. Salehi is describing being touched with the knife just hours prior. Moreover, he claimed moments earlier in his statement that he had marks on his body as a result. In this context, I find it less likely that he would get mixed up about which side of his body was touched by a knife. If Mr. Salehi was claiming to have been touched twice with a knife, then that might explain why he pointed to two different sides of his body.
Sarah Khulmi’s Evidence
[93] The only defence witness was Mr. Salehi’s girlfriend, Sarah Khulmi. She is 19 years, has no criminal record, and is a student at Ontario Tech University. Her sister is Sadaf Khulmi.
[94] Ms. Khulmi acknowledged in cross-examination that she wanted to protect Mr. Salehi and would do whatever she could to try and help him stay out of jail.
[95] She testified that on the day in question her sister was going to attend school at Durham College and lend the white Toyota Corolla to her and Mr. Salehi so they could go to the Eaton Centre.
[96] She said she was with Mr. Salehi the entire day until their arrest. She testified that while at Durham College, her sister pointed out a male to her and Mr. Salehi and advised them that this male had sexually assaulted her a week prior. While she was unable to name this person in court, the witness was clearly referring to Mr. Habibi. I will therefore refer to him by name when summarizing her evidence. She acknowledged that Mr. Salehi seemed somewhat angry at hearing this.
[97] Ms. Khulmi said that Mr. Habibi approached Sadaf when Mr. Salehi stepped between them. She remained close enough to see what was happening and hear what was said. She maintained in cross-examination that she was within a metre of Mr. Habibi during the interaction. She insisted that she could hear the two men speaking. She denied that Mr. Salehi made any threats during this interaction. When it was suggested to her that she would not have heard if Mr. Salehi had quietly made a threat, she responded that she would have heard it.
[98] She described the interaction as follows: Mr. Habibi told Mr. Salehi to get out of the way. Mr. Salehi responded that Mr. Habibi was not going to go near Sadaf. Mr. Habibi asked him what he was going to do about it. Mr. Habibi then repeatedly told Mr. Salehi to come outside. In examination-in-chief, she said she did not recall Mr. Salehi saying anything in response. In cross-examination she indicated that Mr. Salehi told Mr. Habibi to get away and asked him what he was doing. She said Mr. Salehi was not being aggressive at all.
[99] Ms. Khulmi said the interaction ended when she pulled Mr. Salehi away as Mr. Habibi was yelling. She testified that Mr. Salehi did not threaten or touch Mr. Habibi. She said Mr. Salehi did not have anything in his hands nor did he have any weapons.
[100] She described a second interaction with Mr. Habibi while walking through a field. She said Mr. Habibi was screaming at them. He was swearing at them in Farsi. She said that Mr. Habibi charged at Mr. Salehi and pushed him. She described Mr. Habibi taunting Mr. Salehi, trying to provoke him. In cross-examination she said that Mr. Salehi said, “get the fuck out of here.” She said she was about a metre away during this interaction. She said that she and Sadaf pulled Mr. Salehi away.
[101] The three then got into the Corolla. Mr. Salehi was driving. She was in the front passenger seat and Sadaf sat in the back. While driving to drop off Sadaf, she said the vehicle with Mr. Habibi and his friend passed them, and repeatedly honked at them. She testified that this vehicle then came right behind them and was honking “even more.” She said the vehicle honked more than 10 times. In cross-examination she said they were honking over and over again. She said Mr. Salehi put the vehicle in park and approached the other vehicle. From the vehicle she saw Mr. Salehi talk to the driver of that car and return to the Corolla. She said she only looked in that direction for a second. In cross-examination she said she did not believe it was possible that Mr. Salehi opened the door to the other vehicle. She explained that she believed she would have heard that.
[102] She said Mr. Habibi then came up to the window. He was screaming at Mr. Salehi to come out of the car. Sadaf then got out of the car to tell Mr. Habibi to go back inside his car. Sadaf then entered the car and they drove to a building where there were firetrucks.
[103] While at that building, they encountered Mr. Habibi and his friend again. Ms. Khulmi said the men cursed at them in Farsi. She and Mr. Salehi then dropped Sadaf off and began driving towards downtown. Shortly after, they were pulled over and arrested.
[104] Ms. Khulmi denied seeing Mr. Salehi with any weapon that day. She also denied seeing the air soft pistol that day prior to the police locating it. She testified that she did not know Mr. Salehi to own an airsoft gun. When asked if he had any use for having something like that on that day, she said he used to go paintballing like a year ago. When asked if he had a plan to go that day, she responded, “I’m not sure if it was that day, but he did mention that he did want to go.” When pressed about whether she was suggesting that there may have been a plan to go paintballing that day she insisted that she was not suggesting that. She said:
I’m not suggesting that the was the plan for him to go paintballing, I said him and his friends had plans later on, not later on that week, but some time to go paintballing. I’m not suggesting it was that day they that they were gonna go, ‘cause me and him made plans to go shopping that day, exclusively just shopping.
[105] Ms. Khulmi claimed to not know who the bag which was by her feet in the car containing the pistol belonged to. She testified that she did not believe it was possible that Mr. Salehi had a gun in his pocket.
[106] When asked if it was possible there was a gun in his hoodie that she did not see she responded, “no.” She explained that she had hugged Mr. Salehi frequently that day and would have probably felt it.
[107] Ms. Khulmi was obviously motivated to help Mr. Salehi. She admitted as much. While she denied she would lie for him, and I cannot assume she would, her feelings towards Mr. Salehi are a relevant factor for me to consider when assessing her evidence: R. v. Tash, 2013 ONCA 380, at para. 41.
[108] I did not find Ms. Khulmi to be a believable witness nor does her evidence leave me in a reasonable doubt.
[109] First, I found that she at the very least exaggerated when she testified about the complainants’ vehicle honking. She said this occurred more than 10 times and that it was honking over and over again. The video of the relevant period shows eight pedestrians who do not appear to react whatsoever prior to Mr. Salehi getting out of the vehicle. While I do not rule out the possibility that the vehicle honked, I consider it contrary to human experience that there would have been repeated honking to the extent Ms. Khulmi testified about without eliciting some visible reaction from the pedestrians. To put it bluntly, honking is loud and generally startling.
[110] Second, Ms. Khulmi’s confidence that Mr. Salehi did not open the door to the complainants’ vehicle was not credible. Her explanation that she believed she would have heard him open the door made no sense. I consider it implausible that she would have expected to be able to hear the door open from where she was. Furthermore, I am puzzled about how the noise a door would make could have any impact on her belief regarding whether Mr. Salehi opened the door. It appeared clear to me that Ms. Khulmi was simply unwilling to agree to a suggestion which she believed may make Mr. Salehi look bad.
[111] Third, Ms. Khulmi testified that she did not believe it was possible that Mr. Salehi could have had a gun in his pocket. Mr. Salehi acknowledged in his statement that he had the gun in pocket at least at some point during the day. I found the confidence with which Ms. Khulmi ruled out the possibility to be unbelievable.
[112] Fourth, I consider it implausible that Ms. Khulmi would not have seen the pistol at some point during the day of the incident. Her evidence was that she had been with Mr. Salehi throughout the period while they were at the college right until the time of their arrest. She was seated in the front seat of the vehicle and her sister was seated in the back seat. Her evidence was that Sadaf was dropped off after the stop sign incident and that she and Mr. Salehi then drove towards downtown before being arrested. The arrest occurred within a very short period after Sadaf would have been dropped off. The bag containing the pistol was found by Ms. Khulmi’s feet. As indicated earlier, Mr. Salehi admitted to the police that he had had the gun in his pocket at some point. Indeed, I interpret Mr. Salehi’s statement as acknowledging he had the pistol when he was at Mr. Sherzad’s vehicle. Given this constellation of factors, I consider it unlikely that Ms. Khulmi did not observe the pistol at any time.
[113] Fifth, Ms. Khulmi’s evidence about Mr. Salehi potentially having plans to go paintballing was problematic. She initially left open the possibility that Mr. Salehi may have had plans to go paintballing that day but when confronted her evidence became that Mr. Salehi had plans to go paintballing not even later that week, but some time later on. She further confirmed that the plans for the day of the incident exclusively involved going shopping. It appeared clear to me that Ms. Khulmi floated the possibility of an innocent explanation for why Mr. Salehi would have had the pistol that day but then quickly abandoned it when questioned further on the topic.
[114] Aside for the credibility concerns I have regarding Ms. Khulmi’s evidence, I note that she testified that she only momentarily looked towards Mr. Sherzad’s vehicle while Mr. Salehi was at the door. On her own evidence, I conclude she therefore would not have been able to see what transpired during that interaction.
Conclusion Regarding the Threatening Count Relating to Mr. Habibi
[115] To prove the actus reus of the offence of threatening the Crown must prove that a reasonable person, aware of all the circumstances in which the words were uttered, would have perceived them to be a threat of death or bodily harm. To establish the mens rea, the Crown must demonstrate the accused subjectively intended the threatening words to intimidate or to be taken seriously: R. v. McRae, 2013 SCC 68, at paras. 9, 10–29.
[116] Given the concerns I highlighted relating to Mr. Habibi’s testimony, I am unwilling to ground a conviction on his evidence without sufficient support from other evidence. I do not doubt that he and Mr. Salehi exchanged words, but I simply am not satisfied to the requisite level as to who said what. I believe it likely that Mr. Salehi made threatening comments towards Mr. Habibi, but I am not sure what if anything Mr. Habibi was saying to him. Context matters in determining whether the Crown has proven both the actus reus and mens rea of the offence. I have considered whether Mr. Sherzad’s evidence relating to the incident outside of the gym building provides sufficient support to establish a conviction for a threat towards Mr. Habibi. Given Mr. Sherzad’s acknowledgment that he lacked much of the context of what was being said and that he was not involved in the discussion I have concluded that it does not. I am not satisfied beyond a reasonable doubt of Mr. Salehi’s guilt on this charge.
Conclusions Regarding the Alleged Offences Relating to the Stop Sign Incident
[117] In assessing whether the Crown has met its burden of proof with respect to the remaining counts, I have considered whether there is confirmatory evidence. Evidence can provide confirmatory weight even if it does not directly confirm the key allegations or directly implicate the accused, where it is capable of confirming or supporting certain aspects of a witness's credibility or reliability in the context of the specific challenges made by defence counsel: R. v. Varghese, 2024 ONCA 555, at paras. 48–49; R. v. J.B., 2022 ONCA 214, at para. 34; R. v. Primmer, 2021 ONCA 564, at paras. 33, 38-42, leave to appeal refused, [2021] S.C.C.A. No. 462, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff'd 2019 SCC 11, [2019] 1 S.C.R. 568; R. v. J.B., 2022 ONCA 214, at paras. 34. The degree to which confirmatory evidence advances the Crown's case is a matter of weight for the trial judge to resolve and "is part of the broader assessment of the complainant's credibility and reliability that trial judges must make based on the entirety of the evidence": J.B., at para. 34; Demedeiros, at para. 10; R. v. G.H., 2023 ONCA 89, at para. 20.
[118] Having considered the evidence as a whole, I am satisfied beyond a reasonable doubt that the Crown has proven the charges arising from the stop sign incident. The following factors in combination support my conclusion that the Crown has met its onus regarding these allegations.
[119] First, as already explained, I found Mr. Sherzad to be a convincing witness whose evidence was not significantly undermined. I accept his evidence.
[120] Second, the evidence of Mr. Habibi regarding what transpired in Mr. Sherzad’s vehicle was consistent in its material aspects with Mr. Sherzad’s account. While I was unwilling to rely on Mr. Habibi’s evidence alone to ground a conviction on the threatening charge involving himself, I can obviously accept some, none, or all of a witness’s evidence. I found his evidence to be supportive of Mr. Sherzad’s.
[121] Third, the surveillance footage is confirmatory of Mr. Sherzad’s evidence. It reveals Mr. Salehi leave his vehicle, approach Mr. Sherzad’s vehicle and lean his body inside the doorway of Mr. Sherzad’s vehicle for three seconds. In this context, I consider Mr. Salehi’s action of leaning into the vehicle to be consistent with an intention to engage in an altercation.
[122] Fourth, I find that the injury to Mr. Sherzad’s arm as depicted in the photographs filed to be confirmatory of the allegations involving him.
[123] Fifth, Mr. Salehi admits in his police statement that he had the pistol in his pocket. Furthermore, when talking to the detective about his interaction with Mr. Sherzad, he states “I had that – I go to the thing. I have that Air – Airsoft.” I conclude from these statements that Mr. Salehi acknowledged that he had the gun on his person during his encounter with Mr. Sherzad.
[124] Sixth, the circumstances in which Mr. Salehi was in possession of the gun. Mr. Salehi told the police that the gun was in Sadaf’s vehicle. He therefore chose to put it in his pocket. There is no evidence that Mr. Salehi was planning on going to play paintball that day. More importantly, the air pistol was found to be inoperable. Accordingly, there does not appear to be any innocent purpose for why he would be carrying this item.
[125] Seventh, the police’s discovery of the airsoft gun inside the vehicle Mr. Salehi was driving is confirmatory of Mr. Sherzad’s account. The police discovered this item very soon after the events. Photographs of the item reveal that it looks real. Moreover, the pistol has a slide at the top which is consistent with Mr. Sherzad’s evidence that Mr. Salehi racked the gun.
[126] Eighth, for the reasons stated earlier, Ms. Khulmi’s evidence does not leave me in a reasonable doubt, nor does it contribute to a reasonable doubt. I emphasize that in addition to her credibility problems, her own evidence does not provide her with a sufficient opportunity to observe what happened inside the doorway of Mr. Sherzad’s vehicle.
[127] Mere acceptance of a complainant’s evidence cannot lead automatically to rejection of an accused’s evidence: R. v. A.I.B., 2023 ONCA 557 at paras. 16–18; Van Deventer, at paras. 15, 25. In this case, I reject Mr. Salehi’s denials of guilt contained in his statement based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence: R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53. Mr. Salehi’s exculpatory statements to the police when considered along with the formidable Crown evidence do not leave me in a reasonable doubt: R. v. Vigon-Campuzano, 2022 ONCA 234, at para. 38.
[128] When I consider the evidence in its entirety, as well as the absence of evidence, I am satisfied beyond a reasonable doubt that Mr. Salehi retrieved a pistol which was concealed in his hoodie, hit Mr. Sherzad with it, and made threatening remarks towards Mr. Sherzad.
[129] The weapons charges are particularized as involving an imitation firearm. The only reasonable inference is that the gun used by Mr. Salehi to hit Mr. Sherzad is the air pistol seized by the police. There is no dispute that this item meets the definition of an imitation firearm. The way I find the pistol was used obviously qualifies it as weapon. Furthermore, I have no doubt that Mr. Salehi meant to conceal the pistol in his pocket as he approached Mr. Sherzad’s vehicle.
[130] Based on my findings of the fact, I am satisfied beyond a reasonable doubt that Mr. Salehi is guilty of count 1 (carrying a concealed weapon); count 3 (possession of a weapon for the purpose of committing an offence); and count 6 (assaulting Mr. Sherzad with a weapon).
[131] I am also satisfied beyond a reasonable doubt that a reasonable person would view Mr. Salehi’s words towards Mr. Sherzad to be a threat to cause death. I am further satisfied beyond a reasonable doubt that Mr. Salehi intended to intimidate Mr. Sherzad when he made the threatening remarks. I consider these to be obvious conclusions based on the content of his words and the context in which he said them – holding an item that looked like a real gun. I accordingly find him guilty of count 8.
[132] Finally, it was admitted that Mr. Salehi was on probation with a condition to keep the peace and be of good behaviour. Based on my findings, he was plainly in violation of that term and is therefore also guilty of count 9.
Disposition
[133] For the reasons given, I find Mr. Salehi guilty of counts 1, 3, 6, 8, and 9. I find the defendant not guilty of count 7.
Released: January 30, 2025
Signed: Justice Joseph Hanna
[1] The correct wording of the statement is “the car” not “my car.” Mr. Aubin read the correct wording out in court twice afterwards.
[2] He refers to the person the male is talking to as “the guy that followed after.”
[3] The transcript, at p. 21, lines 7–9 reads: “[indiscernible] that he was my gun friend.” I find the transcript to be incorrect on this point.