The Charges

[1] Mr. Gajraj is charged that, on September 4, 2009, he committed an aggravated assault by wounding Mr. Mohammad Thaher and committed an assault on Mr. Thaher with a weapon.

The Crown Evidence

[2] The Crown's case consisted of the evidence of Mr. Thaher, Mr. Shivbarran, and certain admissions.

[3] Essentially, the Crown's evidence was that both Mr. Thaher and Mr. Gajraj attended at the school parking lot to engage in a fist fight over an earlier disagreement. A fist fight ensued between these two persons. During the fight Mr. Gajraj pulled a knife from his back pocket. Mr. Gajraj started to swing at Mr. Thaher with the knife. Mr. Thaher was stabbed in the chest, causing a serious injury to his chest requiring surgical intervention. At some point Mr. Thaher grabbed the blade of the knife to stop Mr. Gajraj from stabbing him, causing serious cuts to his hand.

[4] The Crown relies on the stabbing to the chest as the assault which is the subject of the charges.

The Defence Evidence

[5] The Defence called Mr. Gajraj.

[6] Mr. Gajraj testified that he came to the school parking lot prepared to fight. He denied bringing or having a knife in his pocket that evening. The fight ensued between him and Mr. Thaher. During the fight Mr. Gajraj testified, while on the ground, "out of nowhere" he saw the knife. He was concerned that Mr. Thaher would stab him if Mr. Thaher got the knife so Mr. Gajraj decided to grab the knife. Mr. Gajraj grabbed the handle end of the knife. At the same time Mr. Thaher grabbed the blade end of the knife. They were fighting for the knife while on the ground. Once Mr. Gajraj got the knife, he testified he threw it away. Mr. Gajraj denied stabbing and testified he doesn't remember stabbing Mr. Thaher in the chest. Mr. Gajraj testified the chest stabbing must have happened sometime during the fight. Mr. Gajraj testified he didn't even know Mr. Thaher had been stabbed in the chest until after he had gone home.

The issues at trial

[7] On the evidence of all the witnesses, Mr. Gajraj was the only person who ever held the knife’s handle. Mr. Gajraj admitted there was no one else who could have stabbed Mr. Thaher in the chest. There is no evidence that Mr. Thaher stabbed himself in the chest with the knife. Except for Mr. Thaher, no one saw the actual stabbing of Mr. Thaher’s chest.

[8] Mr. Gajraj’s evidence that he did not stab Mr. Thaher in the chest (notwithstanding there was considerable evidence from Mr. Gajraj that he didn’t know whether he had stabbed Mr. Thaher in the chest), requires that the jury determine the issue of whether Mr. Gajraj held the knife when Mr. Thaher was stabbed in the chest.

[9] The most significant issue at this trial is whether, while Mr. Gajraj was holding the knife, the stabbing of Mr. Thaher’s chest was accidental or intentional.

[10] Both counsel agree the following issues, either if not established by the Crown beyond a reasonable doubt, would be a complete defence to both charges, should be included in the final charge:

a) Given that Mr. Gajraj denied stabbing Mr. Thaher, the jury will have to determine whether Mr. Gajraj was the person who stabbed Mr. Thaher in the chest; and

b) If Mr. Gajraj was the person who stabbed Mr. Thaher in the chest, whether Mr. Gajraj intentionally stabbed Mr. Thaher in the chest or was it accidental.

Self Defence

[11] The defence asks this court to put the defence of self defence to the jury. Initially, defence counsel suggested that ss. 34, 35 and 37 of the Criminal Code be put to the jury. Subsequently, defence counsel submitted the jury should be charged on ss. 34 (2) and 37.

[12] The issue is whether there is an air of reality to self defence.

[13] Self-defence can only be put to the jury where, on the totality of the evidence, there is a basis upon which a reasonable jury, properly instructed, could give effect to it. R. v. Cinous, [2002] 2. S.C.R. 3 at paras. 81-82.

[14] The trial judge should not weigh evidence or engage in making findings of fact. The most favourable construction of the evidence to the accused should be accepted by the trial judge to determine whether there is any evidence capable of supporting a particular finding of fact(s) necessary for each of the essential elements of the defence proffered.

S. 34(2) of the Criminal Code

[15] In Cinous, supra at paras. 93 - 95, the Supreme Court described the essential elements and the application of the air or reality test for self defence as follows:

In Pétel, supra, at p. 12, Lamer C.J. stated the three constitutive elements of self-defence under s. 34(2): “(1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary”. All three of these elements must be established in order for the defence to succeed. The air of reality test must therefore be applied to each of the three elements. If any of these elements lacks an air of reality, the defence should not be put to the jury. See Hebert, supra; Latimer, supra.

Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused’s perception of the situation is the “subjective” part of the test. However, the accused’s belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second and third conditions. Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault. With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances.

The air of reality analysis must be applied to each component of the defence, both subjective and objective. Evidence capable of supporting a particular finding of fact with respect to one component of the defence will not necessarily be capable of supporting other components of the defence. In the case of a defence of self-defence under s. 34(2), the testimony of the accused as to his perceptions does not necessarily constitute evidence reasonably capable of supporting the conclusion that the perception was reasonable.

[16] Reviewing the evidence in this case leads to the conclusion that:

a) if the stabbing of Mr. Thaher’s chest with the knife was accidental, self defence is not available to Mr. Gajraj because self defence requires the accused to have committed an assault – an intentional act; or

b) if the stabbing of Mr. Thaher’s chest with the knife was intentional, then self defence is available but only if Mr. Gajraj can establish a subjective belief that it was not possible to preserve himself from harm/defend himself except by intentionally stabbing Mr. Thaher in the chest with the knife.

i) Intentional Act

[17] The accused must have intentionally committed an assault which forms the basis of the offence. It is an essential element of the offence. Here Mr. Gajraj denies he committed or intentionally committed the assault in question - the stabbing of Mr. Thaher in the chest. Mr. Gajraj gave no evidence that he intended to commit an assault on Mr. Thaher's chest with the knife.

[18] The defence submitted that it is open for the jury to conclude the stabbing of Mr. Thaher's chest was intentional based on the Crown's evidence.

ii) Reasonable belief that self-preservation required the commission of the intentional act

[19] If the defence position is accepted that it is possible for the jury to conclude Mr. Gajraj intentionally stabbed Mr. Thaher in the chest, it immediately raises the issue as to whether Mr. Gajraj had the necessary reasonable belief, both the subjective and objective component, to intentionally commit the act – stabbing Mr. Thaher in the chest - for self-preservation. Mr. Gajraj gave no such evidence.

[20] The defence then submitted that Mr. Gajraj had the necessary subjective belief when he reached for the knife on the ground because he believed Mr. Thaher would grab the knife and would stab him if Mr. Thaher got the knife.

[21] If the essence of the charge was the assault to Mr. Thaher's hand when Mr. Thaher grabbed the blade end of the knife, this might very well be sufficient to meet the air of reality that the assault to Mr. Thaher's hand was, if intentionally committed, to protect Mr. Gajraj from personal harm. Although, I must state, I still have difficulty accepting how both men reaching for the knife on the ground would have been an intentional assault with the knife by Mr. Gajraj on Mr. Thaher's chest.

[22] The essence of the charge is the assault committed when Mr. Thaher was stabbed in the chest with the knife. This assault occurred sometime later when Mr. Thaher was not holding the blade end of the knife. Is there any evidence that Mr. Gajraj had the subjective believe that he had to stab Mr. Thaher to protect himself from personal harm? The answer is no. The only evidence is that Mr. Gajraj didn’t stab Mr. Thaher with the knife, but if he did so, he didn’t intend to stab Mr. Thaher in the chest.

[23] Lastly, the defence submitted that perhaps the stabbing to Mr. Thaher’s chest occurred inadvertently when the two men were reaching for the knife. The problem with this defence theory would be that there is no evidence of an intentional assault by Mr. Gajraj to stab Mr. Thaher in the chest. This simply takes you back to the stabbing in the chest as being accidental which is a complete defence to the charge of stabbing Mr. Thaher in the chest. It is not self-defence.

[24] Despite the multiple speculative theories raised by the defence, the defence failed to put forward any theory where the "intentional assault" (the intentional stabbing of Mr. Thaher's chest with the knife) and the "subjective belief" (that Mr. Gajraj believed that he had to stab Mr. Thaher in the chest for self preservation) occurred within the same actus.

[25] In my view, there is no evidence which meets the evidentiary threshold for self defence under s. 34(2) of the Criminal Code to be put to the jury in this case.

S. 37 of the Criminal Code

[26] This provision requires that the accused must have used intentional force (R. v. E. (T.K.), (2005) 2005 NBCA 27, 28 C.R.(6th) 366 (N.B.C.A.) and that the force used must be proportionate to defend himself ( R. v. McIntosh, (1995), 1995 CanLII 124 (SCC), 36 C.R. (4th) 171 (S.C.C.)

[27] The difficulties the defence faces described above does not change because there must be some evidence that when Mr. Gajraj used (i) intentional force (the stabbing of Mr. Thaher's chest with a knife) (ii) Mr. Gajraj used the intentional force to defend himself. It is not necessary to consider the proportionality of the responding force.

[28] In the same manner as above, finding a defence theory where the intentional force and the use of the force was reasonably believed necessary to defend oneself, does not materialize during the same actus on the facts of this case.

Conclusion

[29] Put simply, there is no evidence that, at the time Mr. Thaher was stabbed in the chest, Mr. Gajraj was intentionally wielding the knife in a self defensive manner – i.e. for self preservation.

[30] There is no air of reality to the self defence in this case.

Ricchetti J.

Date: December 17, 2012

COURT FILE NO.: CR-11-897-00

DATE: 20121217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Deodat Gajraj

BEFORE: Ricchetti J.

COUNSEL: C. Valerzo, for the Crown

S. Wilson, for the Defence

ENDORSEMENT ON

SELF-DEFENCE RULING

Ricchetti J.

DATE: December 17, 2012

R. v. Gajraj, 2012 ONSC 7199

Case Summary

The Charges

The Crown Evidence

The Defence Evidence

The issues at trial

Self Defence

S. 34(2) of the Criminal Code

S. 37 of the Criminal Code

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 1