ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-A11518
DATE: 2012/01/13
BETWEEN:
HER MAJESTY THE QUEEN – and – WALID ABDULSELAM SARAJ
Stephen J. Donoghue, for the Crown
Michel L. Bisson, for the Accused
HEARD: October 24, 25, 26 and 31 and November 1 and 10, 2011
REASONS FOR DECISION
R. SMITH J.
Overview
[ 1 ] The accused Walid Saraj is charged with one count of aggravated assault contrary to section 268(2) of the Criminal Code . He is alleged to have assaulted Mr. Abdirisaq Abdulahi, a Blue Line taxi driver, with a metal rod and to have kicked the taxi driver several times while he was laying on the ground after he was punched and knocked to the ground by the accused’s friend, Mr. Bradley Bell.
[ 2 ] The issues are as follows:
(1) Did the accused hit the taxi driver with the metal rod or kick him as he lay on the ground?
(2) Was there objective foresight that by hitting the taxi driver with a metal rod or by kicking him that he would cause some kind of bodily harm?
(3) Did the hit with the metal rod or the kicks by the accused maim or endanger the life of the taxi driver?
(4) Was the accused a party to the offence of aggravated assault committed by Mr. Bell?
(5) Did Mr. Abdulahi consent to being hit with a metal rod or to being kicked by the accused?
Positions
[ 3 ] The accused admitted that he was present when his friend Bradley Bell punched the taxi driver knocking him to the ground unconscious. However, he denied that he hit the victim on the back of the head with a metal rod and denied that he kicked the victim when he was lying on the ground. The accused also denied that he assisted Mr. Bell in any way in committing the aggravated assault on the taxi driver.
[ 4 ] The accused testified that it was the taxi driver who came after him wielding a “baton”, and he simply tried to avoid being struck. According to the accused, Mr. Bell punched the taxi driver to prevent the taxi driver from striking the accused with the baton. The accused’s version of events was supported by the evidence of his friend Mr. Bell, who pleaded guilty to aggravated assault.
[ 5 ] The defence submits that the evidence of the accused and Mr. Bell should be believed and if not, has raised a reasonable doubt under R. v. W. (D.), 1991 SCC 93 , and as such, the accused should be acquitted.
[ 6 ] The Crown’s position is that the three independent witnesses all testified that they observed the accused strike the taxi driver with a metal rod shortly before Mr. Bell punched the victim. The three witnesses all testified that the accused kicked the victim several times as he lay defenceless on the ground. The three independent witnesses all testified that the taxi driver did not have a metal rod and that it was the younger black male passenger (the accused) who struck the taxi driver with a metal rod.
[ 7 ] The Crown submits that the evidence of the three independent witnesses should be accepted and that the whole of the evidence proves beyond a reasonable doubt that the accused struck the victim with a metal rod and kicked the victim while he was on the ground. The Crown further submits that the evidence called by the accused should not be believed and has not raised a reasonable doubt.
[ 8 ] In the alternative, the Crown submits that the accused was a party to the offence of aggravated assault committed by Mr. Bell as he assisted Mr. Bell by kicking the accused and pulling the accused away to assist him to escape from the scene, when someone said the police had been called.
Issue #1 Did the accused hit the taxi driver with the metal rod or kick him as he lay on the ground ?
Findings of Fact and Credibility Findings
[ 9 ] The taxi driver, Mr. Abdulahi, testified that on the evening in question, he was driving a taxi for Blue Line Taxi. He testified that he picked up a fare from Lebreton Flats and then drove them to Elgin Street. He then remembered picking up another fare on Elgin Street, in front of the Elgin Street Diner and then he turned right on Gladstone Avenue. He did not have any further memory of what transpired after this until waking up in the hospital five (5) days later.
[ 10 ] When he was in the hospital, he was advised that he had suffered a head injury. He suffered from headaches and from dizziness and spent nineteen (19) days in the Civic Hospital before being released. He testified he suffered a lot of pain. He had difficulty expressing himself, problems focussing and problems concentrating and that he did not have these problems before the incident.
[ 11 ] He also testified that he had a constant headache, and that his balance was affected. When released from the hospital, the doctor recommended and he attended for three (3) weeks of rehabilitation at the Rehabilitation Centre.
[ 12 ] The victim testified that following rehabilitation he improved gradually but that he still suffers from headaches twice per day, has lost his sense of smell, is more irritable than he was before the assault, and has more problems concentrating.
[ 13 ] I accept the evidence of the taxi driver of the extent of the injuries suffered by him. His evidence is uncontradicted and is supported by the evidence of Dr. Tsai, the neurosurgeon who testified that he suffered a serious head injury and was in a coma for approximately five (5) days and hospitalized for nineteen (19) days. He also testified that he has suffered from a continued injury to his brain, including permanent loss of his sense of smell as a result of injuries sustained when he was assaulted.
[ 14 ] The taxi driver’s evidence that he picked up the accused and Bradley Bell in front of the Elgin Street Diner was contradicted by the evidence of Tracy Loriault and by the accused and Mr. Bell. Ms. Loriault testified she observed the accused enter a Blue Line taxi cab at the OC Transpo bus stop on the Mackenzie King Bridge between midnight and 12:30 a.m. on July 5, 2009. Ms. Loriault identified the accused in a photograph line up.
[ 15 ] Ms. Loriault testified that she saw four young males approach the bus stop who were intoxicated. She observed the accused and the other three young men swearing and acting in a boisterous manner, while engaged in a dispute. She testified that the accused was out of his mind. She described the accused as swearing loudly, drawing attention to himself, he was very intoxicated and she was sure he was stoned. Ms. Loriault felt unsafe with her son and a friend in the circumstances. She testified she felt she should warn the taxi driver that picking up the accused and his friend was dangerous, but she was too afraid to get involved.
[ 16 ] The video camera installed in the taxi also confirmed that the accused entered the taxi approximately five minutes before the assault occurred. Based on the video evidence and the evidence of Ms. Loriault which I found to be very credible, I find that the taxi driver was mistaken and in fact picked up Mr. Bell and the accused at the Mackenzie King Bridge rather than in front of the Elgin Street Diner. However, in the circumstances this contradiction is of no importance as where the taxi driver picked up the fares and is of no consequence and the inaccuracy in his evidence is explained by the taxi driver’s loss of memory of the incident as a result of suffering a serious head injury.
[ 17 ] Mr. Abdulahi testified that he never carried a metal rod in the taxi. He also denied that he had ever initiated a physical altercation, that this was impossible as he had never been involved in an argument or fight in the past twenty‑five (25) years. I accept Mr. Abdulahi’s evidence that he never carried a metal rod in his taxi. I found his evidence to be credible other than where he picked up the accused and Mr. Bell.
[ 18 ] Three eye witnesses were called by the Crown who testified that they observed the accused strike the taxi driver with a white metal rod or a stick.
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[ 76 ] For the above reasons, I find that the Crown has proven beyond a reasonable doubt on the whole of the evidence that the accused is guilty both as a co‑perpetrator in committing the aggravated assault as charged and as a party to the offence of aggravated assault by assisting Mr. Bell by hitting the victim with a metal rod on the back of the head and also by delivering more than one kick to Mr. Abdulahi’s body while he lay unconscious on the ground.
[ 77 ] As a result, the accused is found guilty of aggravated assault.
R. Smith J.
Given orally on: January 13, 2012
COURT FILE NO.: 09-A11518
DATE: 2012/01/13
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN – and – WALID ABDULSELAM SARAJ
REASONS FOR DECISION
R. Smith J.
Given orally on: January 13, 2012