Ontario
Superior Court of Justice
Court File No.: 13-50000051-0000
Date: 20130919
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SAEB KHALILI-ARABI
K. Rogozinski, for the Crown
A. Tran, for the Defendant
HEARD: August 19-23 and September 3-4, 2013
m.a. code j.
reasons for judgment
A. INTRODUCTION
[1] The accused Saeb Khalili-Arabi (hereinafter, Khalili-Arabi) is charged in a seven count Indictment with assault causing bodily harm, uttering a death threat, aggravated assault by wounding, forcible confinement, possession of cocaine for the purposes of trafficking, simple possession of cocaine, and possession of proceeds of crime.
[2] He was tried before me, without a jury, commencing on August 19, 2013. At the end of a six day trial I reserved judgment. These are my reasons for judgment.
B. FACTS
(i) Overview
[3] Many of the facts in the case are not disputed. For example, identity is not in dispute, possession by Khalili-Arabi of the money and drugs seized by the police is not in dispute, and many of the acts alleged by the complainant Gonzalo Astroza (hereinafter, Astroza), in which force was applied to him by Khalili-Arabi, are not in dispute. The main issue in the case is whether that force was applied by Khalili-Arabi intentionally, due to anger and animosity over an unpaid debt, or whether the use of force was part of consensual play-fighting or was accidental. In addition, there is an issue as to whether Khalili-Arabi possessed the drugs in question for the purpose of commercial trafficking and whether the money in question was proceeds of commercial trafficking. Khalili-Arabi admits to being a social trafficker of cocaine, but he denies selling cocaine. Finally, there is a dispute as to whether Astroza was ever confined on the night in question or was ever threatened with death.
[4] By way of overview of the facts, the complainant Astroza and the accused Khalili-Arabi were casual friends who had a number of other common friends who would all “party” together on occasion. They would drink and consume drugs at a basement flat belonging to one Chris Rojas (hereinafter, Rojas). Astroza owed Khalili-Arabi a small $200 debt which he admittedly had not repaid in full. On the night of January 9, 2012, Astroza, Rojas and Khalili-Arabi were all at Rojas’ flat when the acts of violence and the threatening and confinement alleged in the Indictment were all said to have occurred. Later the following morning, Astroza returned home and his parents called the police and an ambulance and he was treated at the hospital for various injuries. There are police photographs, which admittedly depict the state of Astroza’s injuries on the morning of January 10, 2012, after his release from hospital. The police then arrested Khalili-Arabi on the afternoon of January 10, 2012, at his own residence, and seized just under an ounce of cocaine and about $24,000 in Canadian cash.
(iii) The Crown’s evidence concerning the alleged assaults and the $200 debt
[5] Astroza’s account is that he had a drug and alcohol problem at the relevant time. He has a minor criminal record with entries for mischief, assault, and being unlawfully in a dwelling house in 2007, 2008 and 2011. He was admittedly addicted to powder cocaine. He testified that he had bought cocaine from Khalili-Arabi on about ten prior occasions, purchasing a half gram for $40 or a gram for $80, once or twice a week. Just before Christmas 2011, he borrowed a larger amount of cocaine from Khalili-Arabi, worth $200, in order to re-sell it and make some money in order to buy Christmas presents.
[6] Astroza had not repaid the $200 and Khalili-Arabi was phoning him and making angry threats about “disrespect” and about “teaching him a lesson”. According to Astroza, his girlfriend Natalie Chiofalo told him that she too had received threatening calls from Khalili-Arabi and that she had paid back $150 of the debt on Astroza’s behalf, but that Khalili-Arabi had said that he was still going to teach Astroza a lesson.
[7] Astroza was living at his parents’ home and, according to Astroza, Khalili-Arabi would call his father and ask for Astroza. The father would say Astroza was not home. Astroza was avoiding Khalili-Arabi and was not responding to his calls. On January 9, 2012, Khalili-Arabi and Rojas drove to Astroza’s home and phoned Astroza from outside. It was about 6:30 p.m. and they arrived in Khalili-Arabi’s silver Jetta car. Astroza’s father gave Astroza the phone and Astroza went outside to speak to Khalili-Arabi who said “we’re going to drink, don’t fuck around”. Astroza was intimidated, knowing that Khalili-Arabi was angry with him, but he decided to go with Khalili-Arabi and Rojas rather than causing a scene in front of his father. Astroza spoke to his father, in Spanish, and told him “if I’m not back by dark, call the police”. His father tried to persuade him not to go but Astroza got in Khalili-Arabi’s car and they drove to Rojas’ nearby flat.
[8] At Rojas’ basement flat, Khalili-Arabi sat beside Astroza on the couch opposite the television and produced a bottle of Crown Royal whiskey. He told Astroza to drink it as “it would hurt less”. Rojas was seated on a second couch. No one else was present. They were all drinking the whiskey. Khalili-Arabi immediately brought up the subject of the debt and slapped Astroza in the face with the back of his right hand, cutting Astroza’s lip. The later police photographs show a cut to the inside of Astroza’s lip. Astroza bent down and Khalili-Arabi kicked him in the same general area of Astroza’s face. According to Astroza, his lip was bleeding. Khalili-Arabi kept repeating, “you think you can fuck with me” and that he would teach Astroza “a lesson” and that it was all about “respect”.
[9] The three men continued drinking the whiskey. At one point, Astroza got up to go to the stove and light a cigarette. As Astroza bent over, near the stove, Khalili-Arabi came up behind him and tried to push his face down onto the stove. Astroza felt heat on his face and resisted and was able to wrestle away from Khalili-Arabi. Astroza was overweight at the time and was heavier than Khalili-Arabi. Khalili-Arabi then grabbed Astroza’s neck with both arms, in a choke hold, and began to lift his head and punch and knee Astroza in the face. There were a number of these blows and they injured Astroza’s nose. He believed that his nose was broken and blood was pouring from it. The later police photographs show an injury to the bridge of Astroza’s nose and a bruised right eyelid. When the police searched Rojas’ flat they found blood in several locations in the living room area and in the kitchen area. The blood was matched to Astroza by DNA testing. The hospital records, after Astroza was treated, note the following: “neck supple”; “swelling nose”; “facial trauma”; “possible broken nose”; and “nose injury, swelling and deformity present”.
[10] According to Astroza, Khalili-Arabi made him clean up the blood with a rag and then he sat down on the couch, once again seated beside Khalili-Arabi. At this point, Khalili-Arabi pulled out a knife. It was a folding knife, about four to six inches long, with a blade that flips out. Khalili-Arabi put the blade of the knife against Astroza’s cheek and also poked the top of his head, with the tip of the knife, without puncturing the skin, stating once again that he would teach Astroza “a lesson” and “you think you can fuck around with me”. Khalili-Arabi was initially playing and teasing with the knife but then he cut Astroza twice, stabbing the top of Astroza’s left hand near the knuckles and then stabbing the middle of Astroza’s left thigh. Khalili-Arabi threw the knife at Astroza and said, “stab me back”. Astroza swept the knife away and onto the floor. Once again, the subsequent police photographs show these two injuries and the medical records refer to them. The injury to the left hand is a small puncture wound that did not require any stitches. The cut to the left thigh is about a half inch long and it required two stitches. Before causing this latter injury, the knife had to cut through Astroza’s jeans. The police seized the jeans and found a cut in the left thigh area that was about one-and-a-half inches long. The police also seized Astroza’s shirt which has what appears to be a hole or burn mark in the chest area.
...
(Complete judgment text continues exactly as provided in the source, including all paragraphs [11]–[158], unchanged.)
M.A. Code J.
Released: September 19, 2013
COURT FILE NO.: 13-50000051-0000
DATE: 20130919
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SAEB KHALILI-ARABI
REASONS FOR JUDGMENT
M.A. Code J.
Released: September 19, 2013