ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 31/12

DATE: 20131113

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MOHAMMAD ASIF AKHTAR

Appellant

Kim Walker, for the Crown

K.Y. Tina Yuen, for the Appellant

HEARD: May 16, 2013

TROTTER J.

INTRODUCTION

[1] After a trial presided over by the Honourable Madam Justice S. Marin of the Ontario Court of Justice, Mr. Akhtar was found guilty of assault with a weapon, assault causing bodily harm and possession of a weapon for the purpose of committing an indictable offence. He was sentenced to five months of custody and one year probation.

[2] Mr. Akhtar appeals on the basis that the trial judge misapprehended certain aspects of the evidence. For the reasons that follow, subject to an order based on the principles in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, the appeal is dismissed.

THE FACTS

(a) Introduction

[3] This case arises from an incident of road rage. These encounters are often characterized by disgraceful conduct by all involved. This case is no different. Mr. Akhtar behaved reprehensibly, as did the complainant, Mike McNabb (“McNabb”).

[4] The appellant’s arguments on appeal focus on the issue of whether the appellant and McNabb were engaged in a consensual fight and whether any such consent was vitiated by the intentional infliction of non-trivial bodily harm. The following rendition of the facts is tailored to the resolution of these related issues. I focus mostly on the evidence of the appellant, McNabb and an independent eyewitness, Wayne Davies (“Davies”).[^1]

(b) The Complainant - McNabb

[5] According to McNabb, he cut someone off in traffic, who he assumed was the appellant. The appellant started driving erratically. McNabb was an insurance investigator and had a camcorder with him and started recording the appellant’s driving. As the two men were driving beside each other, he held up the camera to show the appellant what he was doing. McNabb also called 911 because he thought there might be an accident.

[6] At some point, the appellant drove in front of McNabb and stopped his car. Foolishly, the appellant got out of his car. He was about to find out that McNabb was a very big man, a lot bigger than he originally thought. The appellant walked towards McNabb’s car. McNabb said his window was down five to six inches. The two men then had an angry exchange. McNabb asked the appellant if he wanted him to get out of the car. He said that he was giving the appellant the “option to turn around and go back to his car.” He also said he would get out and punch the appellant in the head. A good deal of the conversation between the two men was picked up during the 911 call. McNabb is heard to say, “Buddy, look at the size of you. Look at the size of you. Do you want me to get out of the fucking car? Do you want me to get out of the car? Do you want me to get out of the fucking car?”

[7] I note that, at the time, McNabb was 6’4” and 240 lbs. The appellant was approximately 5’8” and 120 lbs. In cross-examination, it was suggested to McNabb that he got out of the car to teach the appellant a lesson. McNabb testified that he wanted to show the appellant the size difference.

[8] McNabb said that the appellant swatted at him or went to take a swing at him through the car window. McNabb was not sure if the appellant connected. If he did, it was a glancing blow. This was not confirmed by the independent witness, Davies, whose evidence I will turn to below. It was not on the videotape from McNabb’s camcorder. Moreover, there is nothing on the 911 tape that specifically reflects that this occurred. However, McNabb abruptly stopped communicating with the 911 operator.

[9] McNabb got out of his car. The appellant backed away towards his own car and McNabb followed. The two men were yelling. Mr. Akhtar then ran at McNabb. McNabb testified that he was not sure what the appellant was trying to do but he assumed he tried to hit him. McNabb slapped the appellant on the side of the head, knocking him to the ground. The appellant got up and came at McNabb again. He grabbed McNabb’s shirt as he was struck again. The appellant was pushed back and, for reasons that are unclear, he came at McNabb again. McNabb pushed him over the back of his own car and told him to choose his fights more carefully and then “released” him.

[10] McNabb walked back to his car and noticed that his shirt was ripped. He noticed that he was bleeding from a cut on his left shoulder. McNabb had no idea how he sustained this injury. He did not see the appellant with a weapon at any time. Indeed, he did not think that the appellant ever made contact with him, except when he grabbed his shirt.

[11] Shortly after the incident, McNabb showed the videotape of the incident to a police officer, P.C. Andrew Ford. The next day, the officer asked McNabb to make a copy of the tape. In the process of doing so, McNabb said that he accidentally erased part of the incident, the part when the appellant was standing at McNabb’s car. The officer said that he could see from the video that the appellant had something small in his right hand, but he could not tell what it was. The officer said that, at one point, the appellant had both hands together, just below his chest, and it appeared that he adjusted his right hand.

(c) The Appellant

[12] The appellant testified that he was cut off by McNabb. When the two vehicles were stopped at the next light, the appellant said that he gestured at McNabb as if to ask, “What was that?” At this point, McNabb started keeping pace with the appellant’s car. The appellant could see that McNabb was videotaping him while shouting profanities and calling him a “Paki.”

[13] The appellant said that he was fearful of being followed and McNabb seemed agitated. The appellant stopped and put his emergency lights on, hoping that McNabb would pass him. He did not. After 20 to 30 seconds, the appellant got out of his car and walked to McNabb’s car to speak with him. He said he was not fearful because it was in the middle of a busy roadway.

[14] The appellant was not clear on whether he was angry or not. He eventually admitted that he was angry when he approached McNabb. He sounded furious during the 911 call. He wanted to know why he was being followed and videotaped. The appellant testified that he clasped his hands in front of his body, as a gesture of respect, as if to say, “please leave – let me go.” The appellant said that McNabb opened his car door, knocking him to the ground. He was then kicked. He managed to get up and retreat to his car while McNabb continued to yell and hit him. He tried to shield himself and was hoping McNabb would realize that he was offering no resistance. He denied hitting or trying to hit McNabb at all. All the appellant was trying to do was get into his car and leave. He ended up bleeding from the mouth, nose and lips.

[15] The appellant testified that he was not looking for a fight and he was not armed with a weapon. He had no idea how McNabb’s shoulder was cut. He admitted that he may have had something in his right hand, that being his car keys, because he apparently had trouble with his locks and always took his keys with him as a matter of habit.

(d) The Independent Witness – Davies

[16] Wayne Davies was an independent witness to the event. He was a dispatch operator for the Toronto Fire Department. Davies was in a pickup truck, stopped directly behind McNabb’s vehicle. He was slightly elevated and had a good vantage point. He described the appellant as yelling and swearing at McNabb. Davies said that the appellant was right up against the window of McNabb’s car and he was “screaming at the guy” and was “really pissed off that he was being followed, tailgated, following too closely.”

[17] Davies testified that the appellant backed up and made a gesture to suggest that he wanted McNabb to get out of his car. When McNabb got out of the vehicle, the appellant seemed surprised at McNabb’s size. Davies said that appellant rushed at McNabb on two occasions and ended up getting punched a couple of times (as opposed to being slapped, as McNabb said). On the third occasion, the appellant rushed McNabb again and the two men seemed to be grappling with each other, close to the open door of the appellant’s car. Davies said that McNabb walked back to his car. At that point, he could see that the appellant was bleeding and, in relation to McNabb, he “could clearly see that he had a wound on his shoulder where there was blood running down his arm. His shirt was ripped and he had a scrape on his chest.”

[18] Davies did not see how McNabb got injured. He never saw anything in the appellant’s hands. He assumed that it happened when the two men were grappling with each other at the doorway of the appellant’s car. The car door was open at the time. And, as noted above, he did not see the appellant hit McNabb through the car window. Indeed, Davies was under the impression that his window was closed at the time.

[19] Davies completely contradicted the appellant’s version of events. Davies said that the appellant was the aggressor and, “he was the one who stopped traffic, he was the one who got out of the vehicle and began yelling, he was the one who was right up in the white guy’s face, and he was the one who took the first swing.” Davies did not see the appellant fall as McNabb opened his door, nor did he see McNabb kick the appellant when he was on the ground.

(f) The injury

[20] In addition to watching the video, P.C. Ford observed McNabb’s injury. He described it in the following way:

He had a cut to his left shoulder…It was a straight line. It was a pretty clean cut…the cut was deep and clean and not the type of injury that could occur from, like, a scratch.

[21] McNabb went to the hospital that day. Medical records from that visit were entered as exhibits without objection from defence counsel at trial (who was not Ms. Yuen). A note from an Emergency Room doctor or nurse noted that McNabb was “stabbed” in the left shoulder and that he was “cut with a penknife.” A Referral Letter, prepared by a doctor on the same day, noted that the reason for the referral was that McNabb was “slashed with a knife.”

THE TRIAL JUDGE’S REASONS

[22] After summarizing the relevant portions of the evidence, the learned trial judge properly stated the positions of counsel and the issues she needed to decide. She recognized that the case largely turned on an assessment of credibility. She found the evidence of both the appellant and McNabb to be problematic in certain respects, but the appellant’s more so. With respect to the appellant, the learned trial judge held:

I did not find Mr. Akhtar to be a believable witness. His evidence was internally and externally inconsistent, evasive and embellished. In my view, his account of clasping his hands together in respect as he stood by Mr. McNabb’s window is simply absurd given his evident anger with Mr. McNabb. I find that Mr. Akhtar’s explanation for taking the car keys with him when he got out of the car is implausible.

[23] The trial judge accepted the essence of McNabb’s evidence, but she fairly pointed out its shortcomings in the following passages:

…Mr McNabb’s evidence was not without its frailties. He testified with a certain attitude of superiority which makes his assertion that it is not his character to give Mr. Akhtar the finger and use racial slurs less convincing. I find that Mr. McNabb likely used racial slurs shortly after Mr. Akhtar confronted him about being cut-off, when both men were in their cars before the video-recording began. However, I accept Mr. Davies’ evidence that Mr. McNabb did not continue to use racial slurs when the cars were stopped and the actual confrontation took place…..

The videotape does not show Mr. Akhtar reaching in through the partially open driver’s window and taking a punch at Mr. McNabb. Although uncorroborated by other evidence, I accept this portion of Mr. McNabb’s evidence as factual. It is consistent with Mr. Akhtar’s enraged state and it provides a logical reason for McNabb to get out of the car rather than continue to offer Mr. Akhtar the opportunity to retreat…..

[24] In terms of Davies, the trial judge had the following to say:

I am mindful that it is open to me to accept all, part or none of a witness’ account. In this case, I accept Mr. McNabb’s testimony about the glancing blow through the window and otherwise, where his evidence is corroborated by that of Mr. Davies, the 911 tape, the videotape recorded by Mr. McNabb and the medical report…..

I accept Mr. Davies account of the confrontation between the two men as credible and reliable….

Mr. Davies was clear that it was Mr. Akhtar who was the aggressor at all times…..

On the evidence that I accept, applying the analysis mandated by R. v. W.(D.)., I am satisfied beyond a reasonable doubt that Mr. Akhtar assaulted Mr. McNabb when he punched him through the window and continued to be in his face, menacing and eager to fight. I am satisfied beyond any reasonable doubt that Mr. Akhtar was the aggressor at all times.

[25] After making her factual and credibility findings, the trial judge rejected the argument that the two men were in a consensual fight, as well as the defences of provocation and self-defence.

ANALYSIS

(a) Introduction

[26] The appellant essentially takes issue with the entirety of the trial judge’s reasons, including her credibility findings, all factual inferences and legal conclusions. In essence, I have been invited to re-try the case, based on the transcript, and in light of (some) arguments that were not advanced at trial, or at least not as thoroughly. While the ambit of a summary conviction appeal is broad, at least at this stage,[^2] I do not intend to get drawn into this exercise. Findings of fact may be attacked on the basis of palpable and overriding error: see R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.), at p. 307. However, significant deference must be afforded to credibility findings of trial judges: R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.), at p. 187.

[27] The appellant takes issue with the trial judge’s conclusion that the appellant took a swing at McNabb through the car window, even though this was not corroborated by Davies. The trial judge was aware that she was making this finding in the absence of corroboration and she said that she would look for corroboration with respect to other aspects of McNabb’s account. This approach was neither illogical nor impermissible. It is to be recalled that Davies did not confirm the entirety of McNabb’s version. For example, Davies was operating on the assumption that his car window was not open at the relevant time. Given the issues to be decided at trial, Davies’s evidence was most valuable in confirming McNabb’s account that the appellant was the aggressor, not the respectful and helpless victim that the appellant made himself out to be.

[28] The case was defended on the basis that McNabb had provoked the encounter and that the appellant was defending himself. The defence did not raise the issue of a consensual fight. This was drawn to the trial judge’s attention by the Crown at trial (who was not Ms. Walker). I note that, while the main emphasis of the appellant’s position on appeal is that he was engaged in a consensual fight, this was not his position at trial. To the contrary, it was the appellant’s position that he was attacked by McNabb, who eventually desisted when it became evident that the appellant was offering no resistance. This was a position squarely rejected by the trial judge and completely contradicted by Davies.

(b) A Consensual Fight?

[29] On appeal, and quite reasonably, the appellant does not quibble with the trial judge’s conclusion about self-defence. Instead, his arguments are focused on how the trial judge dealt with the consensual fight issue. After reviewing the evidence and the positions of the parties, and after reaching certain factual findings, the trial judge stated her legal conclusions in the following paragraph:

On the facts that I have found, this was not a consensual fight and the issue of Mr Akhtar acting in self-defence simply does not arise. It is not necessary for me to discuss the authorities provided by counsel in relation to those issues apart from noting that the Crown has proved beyond a reasonable doubt that Mr. Akhtar was not unlawfully assaulted; that he provoked the assault upon himself; that he was not justified in repelling force by force; that he did intend to cause grievous bodily harm; and the force used was not proportionate. As all of the requirements under s. 34(1) are negated by the evidence, the defence of self-defence has no application in this case. I would note that Mr. Akhtar never testified that he was acting in self-defence; his evidence was that he never struck Mr. McNabb and merely grabbed him by the shirt to maintain his balance. Finally, I am satisfied beyond a reasonable doubt that there is no air of reality to the defence of provocation.[^3] I rely on Mr. Akhtar’s evidence that he was not unduly disturbed by the racial slurs he heard in traffic and the evidence indicating that he was concerned about Mr. McNabb’s tail-gating rather than videotaping. [emphasis added]

[30] The appellant points to a number of shortcomings in the preceding paragraph. I share counsel’s concern with the trial judge’s reference to the defence of provocation. During her submissions before the trial judge, defence counsel seemed singularly focused on this issue.[^4] While provocation (or more accurately, the absence of provocation) was potentially relevant to the application of s. 34(1) of the Criminal Code,[^5] provocation in s. 232 of the Criminal Code is a partial defence to murder only, and had no role to play in this trial.

[31] The appellant places greater emphasis on the trial judge’s statement that “this was not a consensual fight.” It is argued this bare statement is conclusory and fails to provide any reasons in support. However, this statement did not mark the beginning of the trial judge’s analysis of the issues in the case; it came at the end. At the beginning of her reasons, the trial judge said: “An overview of the evidence is necessary to provide a context for the determination of facts and any legal defences that might arise from those facts.” And that is precisely what the trial judge did – she engaged in a detailed review of the underlying factual circumstances.

[32] Despite the able argument of Ms. Yuen, on this record, the trial judge’s conclusion on the consensual fight issue was reasonable. Again, it is important to note that the appellant never testified to being in a consensual fight, during which both men agreed to settle their differences through fisticuffs. Indeed, defence counsel did not even urge the consensual fight position on the trial judge (probably because the essence of her client’s evidence was that he did not consent to any physical contact with McNabb).

[33] Ms. Yuen argues that this was a situation in which McNabb, by getting out of his car, essentially agreed to “take it outside” and engage in consensual fisticuffs. I disagree, as did the trial judge. By “going outside”, one does not necessarily agree to “take it outside” and consent to all that eventually unfolds. In this case, while McNabb got out of his car, it cannot reasonably be said that he then engaged in a consensual fight. On the basis of the evidence that the trial judge accepted, including the critical evidence of Davies, McNabb was forced to defend himself and repel the appellant on three separate occasions. He went no further. The trial judge found that McNabb walked away from the encounter after the appellant was finally subdued.

[34] Ms. Yuen also argues that the trial judge’s reasons reveal a misplaced concern about identifying the aggressor in this encounter. However, read in their entirety, and when considered in light of the submissions of counsel (and on this issue, those of the trial Crown), the trial judge’s concern with identifying the aggressor was in relation to assessing credibility and, secondarily, in relation to the self-defence claim. I accept Ms. Yuen’s submission that, in the application of the legal principles concerning consensual fights (see R. v. Jobidon (1991), 1991 77 (SCC), 66 C.C.C. (3d) 454 (S.C.C.) and R. v. Paice (2005), 2005 SCC 22, 195 C.C.C. (3d) 97 (S.C.C.)), being the aggressor does not disentitle an accused person to the claim that the fight was ultimately consensual. However, the trial judge’s reasons do not reflect this error.

[35] McNabb was foolish to have gotten out of his car. By getting out of his car, as opposed to closing his window and waiting for the police, McNabb escalated the situation. He put himself in harm’s way and ended up having to defend himself. However, repeatedly slapping the appellant down did not signal McNabb’s consent to a fight. By all accounts, if this encounter had been a consensual fight, the outcome would have been much worse for the considerably smaller appellant.

(c) Was Consent Vitiated?

[36] The appellant also challenges the trial judge’s finding concerning the cause of the injury sustained by McNabb. This is not a stand-alone ground of appeal; instead, it is integrally related to the consensual fight issue. The authorities provide that consent to a fight may be vitiated when non-trivial bodily harm is caused and intended during the course of an altercation: see R. v. Paice, supra, at p. 105. A corollary of this principle is that consent will not be vitiated when bodily harm is not intended, even though it is caused: see Kent Roach, Criminal Law, 5th ed. (Toronto: Irwin Law, 2012), at p. 105.

[37] Given my conclusion that the trial judge did not err in rejecting that the argument that the altercation was consensual, it is not necessary for me to resolve this issue. If there was no consent, then there was nothing to be vitiated. However, for the sake of completeness, I make the following observations.

[38] At trial, the appellant did not seriously dispute “that the injury occurred at some point during the parties’ interaction, and would have been caused by an object of some kind (as opposed to a fist).” The appellant also seemed to concede that he may have had his car keys in his right hand and that it was “possible that the keys, clutched in the appellant’s hand throughout the interaction, caused the complainant’s injury in the course of the melee.” Instead, he argues that it was not proved beyond a reasonable doubt that he intentionally caused the injury.

[39] The gash on McNabb’s shoulder was serious, as graphically demonstrated by the photos that were entered as exhibits at trial. The appellant conceded that he had his keys in his hands. The trial Crown argued that it was “possible” that the wound was caused by a car key. However, he said: “It is not impossible that a key can cause that. It is quite unlikely given the nature of that injury, but the bottom line is that we don’t know conclusively.”[^6]

[40] The trial judge concluded that McNabb’s wound was “consistent with a sharp-edged instrument.” With respect, the trial judge engaged in speculation in reaching this conclusion. This is illustrated in the following passage from her reasons for judgment:

….If there was a weapon, it was something small enough to be concealed in a closed hand. I find that the straight-edged nature of the wound is the most compelling evidence of the presence of a weapon. The cut is not consistent with a raze from a blow or contact with another person or a car. It is consistent with a sharp-edged instrument being the cause of the injury, as was noted by the doctor who treated McNabb.

After careful consideration, I am satisfied that the only reasonable inference to be drawn from all of the evidence is that Mr. Akhtar had a sharp-edged instrument in his hand when he got out of his car to confront Mr. McNabb and he used that weapon with the intent of inflicting bodily harm in the course of the fight between the two men. [emphasis added]

[41] I agree with Ms. Yuen that the medical records (described in paragraph 23 above) that the trial judge referred to were, by themselves, incapable of proving how the wound was caused to McNabb. No expert evidence was adduced to establish that the appearance and contours of the wounds were consistent with being caused by a knife. The medical records do not set out that conclusion. Indeed, the critical information in both documents (i.e., “stabbed”, “cut” and “slashed” with knife) would appear to be sourced to McNabb, who testified that he did not know how he was injured. In short, more was required before the trial judge could rule out the possibility that the appellant’s car keys did not cause the injury and that it was caused by a “sharp-edged instrument.”

[42] I also agree with Ms. Yuen that the trial judge collapsed the issue of whether the appellant had the weapon with the question of whether he used it intentionally. The trial judge held that the two issues were “inextricably connected.” While the two issues were related, a finding that the appellant possessed a weapon did not lead inexorably to the conclusion that he used it intentionally during the melee.

[43] However, my observations are inconsequential. The trial judge’s initial conclusion that the altercation was non-consensual makes it unnecessary to determine whether the non-trivial bodily harm was inflicted intentionally.[^7]

CONCLUSION

[44] At the hearing of the appeal, counsel made submissions on whether any of the charges should be stayed on the basis of the principles discussed in R. v. Kienapple, supra. After considering this matter, I have reached the conclusion that Count #1 (assault with a weapon) should be stayed. I am not persuaded that the decision of the Court of Appeal in R. v. Ibrahim, 2011 ONCA 611 requires that Count #2 (assault causing bodily harm) should also be stay