COURT FILE NO.: CR/15/70000/5940000 DATE: 20170510

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN - and - OSAMA FILLI

Counsel: Mr. G. Crisp and Mr. M. Giovinazzo, for the Crown Mr. J. Norris and Ms. M. Conway, for Mr. Filli.

HEARD: January 9, 10, 12, 16, 17, 18, 19, 20, 23, 24, 25, 27, 30, 31; February 2, 3, 6, 8, 9, 10, 13, 14, 15, 16, 17, 28; March 2, 3, 6, 7, 8, 9, 2017

M. FORESTELL J.

REASONS FOR JUDGMENT

I Overview

[1] Osama Filli is charged with the second degree murder of Nahom Berhane. He pleaded not guilty to this charge and the trial proceeded before me without a jury.

[2] Mr. Berhane and Mr. Filli fought in the early morning hours of September 27, 2014 outside a café on Danforth Avenue near Greenwood Avenue. Although they had acquaintances in common, they had not met before the fight. In the fight, Mr. Filli stabbed Mr. Berhane with a knife that Mr. Filli had bought about nine hours earlier. He inflicted two stab wounds.

[3] Mr. Berhane’s death was caused by a massive hemothorax and hemopericardium as a result of one of the stab wounds that entered through Mr. Berhane’s back and pierced his lung and heart. Another stab wound on Mr. Berhane’s back played no role in his death as it did not enter the body cavity. The two stab wounds were located approximately in the middle of Mr. Berhane’s back, slightly to the left of the midline.

[4] Mr. Filli sustained a small cut on the lower palm of his right hand and a small cut on the outer part of his left palm near his wrist.

[5] Mr. Filli testified that he was outnumbered in a three-on-one fight with Mr. Berhane, Maarg Abraha and Selim Ademnur when he stabbed Mr. Berhane. He stabbed him because he feared that he would be killed or seriously harmed.

[6] Maarg Abraha testified that Mr. Filli and Mr. Berhane were fighting in a one-on-one fight when Mr. Berhane was stabbed. Mr. Abraha testified that he tried unsuccessfully to intervene and stop the fight.

[7] The issues in this trial are whether the Crown has disproven self-defence beyond a reasonable doubt and, if so, whether the Crown has proven that Mr. Filli had the intent for murder.

[8] In these reasons I will first set out the evidence and my approach to the evidence. I will then set out the legal framework and, finally, my analysis and findings in the context of the legal framework.

II evidence

Overview

[9] The only witnesses to the actual stabbing of Mr. Berhane were Mr. Filli and Selim Ademnur. Mr. Maarg Abraha witnessed the fight that preceded the stabbing, but he did not see Mr. Filli stab Mr. Berhane. Other witnesses saw fragments of the fight. Video surveillance of the area does not capture the area of the fight, but shows the participants arriving and leaving. Several witnesses testified as to the activities of Mr. Berhane, Mr. Filli, Mr. Abraha and Mr. Ademnur during the hours leading up to the fight, including their alcohol consumption and level of intoxication.

Background

[10] The background of the individuals involved, their relationships and their activities in the hours leading up to the fight are relevant to the assessment of the credibility and reliability of the witnesses and to the assessment of the subjective belief and objective reasonableness of the belief of Mr. Filli that he needed to defend himself. Many of the background facts are not in dispute.

[11] Mr. Berhane was employed at a community organization called Access Alliance. He was well known to many individuals in the Eritrean Canadian community. He was 34 years-old at the time of his death.

[12] After work on the evening of September 26, 2014, Mr. Berhane attended a meeting of the alumni of a program known as “City Leaders” at Church Street and Wellesley Street. The meeting ended around 9:00 p.m. Mr. Berhane then met a friend, Henok Aklome, at a bar called Awash in the area of Greenwood and Danforth. Two doors from Awash was a café called Lumar. Both Awash and Lumar were frequented by members of the Eritrean Canadian community in Toronto. Awash served alcohol. Lumar did not serve alcohol.

[13] Mr. Berhane and Mr. Aklome met at Awash and then at 10:00 or 10:30 p.m., went to view a nearby business premise that they were thinking about renting for a business venture. The meeting went well and Mr. Berhane seemed to be in a good mood when he returned to Awash with Mr. Aklome at around 11:00 p.m.

[14] Mr. Berhane drank alcohol at Awash. The estimate of his blood alcohol level at the time of death at 3:00 a.m. September 27, 2014 was 178 mg of alcohol in 100 ml of blood. According to the toxicologist, Ms. Betty Chow, if Mr. Berhane began drinking at 9:30 p.m. and died at 3:30 a.m., he likely consumed between 7½ to 9¼ standard drinks between those times. A standard drink is 12 fluid ounces of beer, 1.5 fluid ounces of distilled spirits or 5 ounces of wine. Mr. Berhane was seen to drink 1 or 2 beers that night as well as gin and tonic. The precise number of drinks that he consumed is unknown.

[15] Evidence was led as to the usual drinking habits of Mr. Berhane. Witnesses who knew Mr. Berhane testified that he seldom drank more than two beers. According to the friends and acquaintances who testified, when he drank, Mr. Berhane’s personality and behaviour did not change. The evidence concerning Mr. Berhane’s normal drinking pattern was not challenged.

[16] Maarg Abraha is a Crown witness who was present for the fight that resulted in the death of Mr. Berhane. Mr. Abraha immigrated to Canada from Eritrea. When he came to Canada, Mr. Abraha met Mr. Berhane because of Mr. Berhane’s work at Access Alliance. Mr. Abraha testified that Mr. Berhane counseled him and was a mentor to him. Mr. Abraha felt that Mr. Berhane was like a brother to him.

[17] Mr. Abraha had seen Mr. Filli prior to September 26, 2014 but did not know him well or consider him to be a friend. He had seen Mr. Filli sweeping the sidewalk with a cane about a week before September 26, 2014. As I will discuss in more detail below, Mr. Abraha drank in a park with Mr. Filli and others in the hours before the fight. Mr. Abraha did not know Mr. Filli’s name when he first spoke to the police after the stabbing. Mr. Abraha made inquiries to find out Mr. Filli’s name after his first statement to the police on the morning of September 27, 2014.

[18] Mr. Abraha testified that he, at times, drank 13-14 beers on a weekend. He said that the consumption of this amount of alcohol would make him want to “sing and chat”. It would not make him intoxicated. He believed that he would need to drink about 20 beers to be drunk.

[19] Selim Ademnur also emigrated from Eritrea to Canada. Mr. Ademnur was a friend of Mr. Abraha and of Mr. Berhane. He knew Mr. Filli, having seen him in the area of Greenwood and Danforth, but he was not a friend of Mr. Filli. Mr. Admenur had also seen Mr. Filli a few days before the incident sweeping the ground with a cane. Mr. Ademnur was present at the fight and was one of the men drinking in the park with Mr. Filli, Mr. Abraha and others before the fight. He gave statements to the police after the stabbing. He did not testify at the preliminary inquiry or at the trial. Mr. Ademnur left Canada and returned to Eritrea around the time that the police were attempting to serve him with a subpoena to testify at the preliminary inquiry.

[20] On April 11, 2016, Det. Sgt. Carbone spoke with Mr. Ademnur via conference call. Mr. Ademnur advised the officer that he would be returning to Canada on June 20, 2016. The officer provided Mr. Ademnur with his phone number and asked Mr. Ademnur to contact him when he returned. Mr. Ademnur did not return at the time of trial. He did not make contact with any member of the Toronto Police Service at any time before the end of the trial.

[21] Mr. Ademnur gave three statements to the police on September 27, 2014. Mr. Ademnur’s statements to the police were admitted into evidence for the truth of their contents.

[22] Nur Hussein worked as a manager of the Lumar Café on the night of the fight. The fight occurred on the sidewalk outside that café. Mr. Hussein is also Eritrean and emigrated from Saudi Arabia. He knew Mr. Berhane and had seen him on the night of September 26, 2014, before the fight. Mr. Hussein also knew Mr. Filli. Mr. Filli is Eritrean and emigrated from Saudi Arabia. Mr. Hussein mentored or counseled Mr. Filli after he came to Canada. Mr. Hussein saw and spoke to Mr. Filli on the night of September 26, 2014 before the fight. Mr. Hussein knew Mr. Abraha as someone who spent time around the area of the Lumar Café. Mr. Hussein testified that he has a head injury that affects both his short term and long term memory. He testified as well that he has poor eyesight. In court Mr. Hussein had difficulty seeing the Crown when he was 25 feet away. He said it was “a little blurry”.

[23] Mr. Filli was born in Saudi Arabia to Eritrean parents. Mr. Filli came to Canada in December 2012. He was 22 years-old in September of 2014. In his statement to the police after his arrest, Mr. Filli indicated that when he first came to Canada he lived with an aunt in Whitby. He moved from his Aunt’s home to an apartment on Pharmacy Avenue. In April of 2014, he moved to a rented room around Eglinton and Keele. From that residence he moved to a basement apartment that he shared with another Eritrean immigrant. Mr. Filli remained in the apartment for two months. In September he moved to a shelter. He spent two weeks in one shelter and had been in a second shelter for two weeks before the fight on September 27, 2014.

[24] It is an admitted fact that a man named Abdulanes Yuanes knew Mr. Filli and had known him for 16 months before September 27, 2014. Mr. Yuanes spoke to Mr. Filli in August 2014 about Mr. Filli’s trouble paying rent. In that meeting, Mr. Filli spoke to Mr. Yuanes about needing a gun. Mr. Filli explained in his testimony that he asked Mr. Yuanes about getting a gun in the context of being concerned about people entering his residence and taking his things. Mr. Yuanes saw Mr. Filli on September 21, 2014 in the area of Danforth and Greenwood sweeping the sidewalk in the area around the Lumar Café. Mr. Filli testified that he cleans up garbage from the streets. He carries gloves with him for the purpose of picking up garbage.

[25] On September 14, 2014, after Mr. Filli had moved to a shelter, two of his acquaintances, including a man named Mahmoud Adderahman, took a knife away from Mr. Filli. Mr. Filli became upset when his knife was taken from him. He said that he needed a knife to protect himself because he believed that people wanted to harm him, that he wanted to protect people in the shelter, that he needed to walk with his knife and that he was being hunted. In his testimony at trial, Mr. Filli said that he was upset when his knife was taken from him. He explained that when he said he was being hunted, he was referring to the fact that he had been robbed and beaten up on the streets. He had also been forced into performing a sexual act in the washroom of a bar. He was upset with the individuals who took his knife from him because they did not understand “the life that he was leading”.

[26] Mr. Filli was prescribed Risperidone by a nurse practitioner, Duncan Eby, at Access Alliance, on September 25, 2014. Mr. Filli reported to Mr. Eby that he had run out of his prescription for chlorpromazine two days earlier. He reported that he was taking chlorpromazine for stress and that he sometimes had “crazy ideas.”

[27] Mr. Filli testified about his usual drinking pattern. Initially he said that it would take 15-20 shots before he would be drunk. He later corrected this evidence and said that he could not go over 10 shots without being drunk. He testified that he would generally order two double shots at a bar.

[28] With that general background, I will now turn to the evidence of the events of September 26 and 27, 2014 leading up to the confrontation between Mr. Filli and Mr. Berhane.

Events of September 26-27, 2014 leading up to the fight

Osama Filli

[29] At 5:38 p.m. on September 26, 2014, Mr. Filli entered a Canadian Tire Store in downtown Toronto and purchased a large knife and a sheath. Mr. Filli left the Canadian Tire store at 5:55 p.m. with the knife. Mr. Filli wore a “fanny pack” around his waist. He attached the sheath with the knife to the belt of the fanny pack. His shirt covered the sheath. Mr. Filli testified that he purchased the knife that day to replace the knife that had been taken from him. He could not replace it earlier because he did not have enough money. He received money from social assistance on September 25th and 26th, 2014.

[30] By around 8:00 p.m. Mr. Filli was in the area of Greenwood and Danforth. He attended at a hair salon where he had his hair braided. This took about one hour. After having his hair braided, he offered liquor to the hairstylist and went to find glasses. He did not return to the hair salon.

[31] Mr. Filli testified that at around 10:00 or 10:30 p.m. he went to a park in the Danforth and Greenwood area with Mr. Abraha, Mr. Ademnur, and three other men identified as Temesgen, Emmanuel and Khalid. Mr. Abraha, Mr. Ademnur, Temesgen and Emmanuel were friends who had been together earlier. Khalid was a friend of Mr. Filli who also knew Mr. Abraha. Mr. Filli had a 26 ounce bottle of Jack Daniels in his backpack that he brought to the park and shared with the others. Mr. Abraha had beer that Mr. Abraha drank in the park. The others, except for Khalid, drank the liquor that Mr. Filli had brought. The men remained in the park drinking until around 12:00 or 12:30 a.m. Mr. Filli estimated that he, Mr. Ademnur, Temesgen and Emmanuel had five or six shots each. Mr. Abraha was drinking beer. Khalid was not drinking. They all smoked marihuana. Mr. Filli said that he was picking up garbage in the park. He had gloves with him that night and he testified that he may have been wearing them in the park to pick up the garbage. Temesgen, Emmanuel and Mr. Abraha were speaking loudly. Mr. Filli was not comfortable and suggested leaving the park. He and the others left the park. Khalid went home and the others went to Awash.

[32] Mr. Filli testified that he did not stay long at Awash. He drank from a flask in the washroom with Emmanuel, one of the men from the park. He stood for a short time outside the washroom, but the bar was crowded and Mr. Filli left. He went from Awash to Lumar. The manager of Lumar, Mr. Hussein, testified that he saw Mr. Filli in Lumar and that he spoke to Mr. Filli. Mr. Filli testified that he stayed at Lumar until after 2:00 a.m. He left Lumar and walked towards the subway sometime after 2:00 a.m. He found that the subway was not running. He returned to the area outside Lumar. He sat on a planter on the sidewalk.

[33] Around this time, Mr. Filli testified that he saw Mr. Berhane speaking with a group of young men outside the bar. Mr. Filli testified that Mr. Berhane appeared to be “reproaching” or “blaming” the men for something. Mr. Filli could not hear what was being said, but he testified that Mr. Berhane was shouting and that the other men were looking at the ground.

Maarg Abraha

[34] Mr. Abraha’s evidence did not differ significantly from that of Mr. Filli with respect to the movements of the group prior to the fight. Mr. Abraha testified that he went to the beer store and was on his way to the park with Mr. Ademnur, Emmanuel and Temesgen when they saw Mr. Filli and Khalid outside Lumar. They invited Khalid to come with them and Mr. Filli came as well. Mr. Abraha testified that he did not specifically invite Mr. Filli, but he had no problem with him coming along. They went to the park and drank. Mr. Abraha testified that he had “6, 7, 8 or maybe 10” beers with him. He testified that he drank “6 or 7 or 8” beers in the park. He said that the others were drinking from Mr. Filli’s bottle and may have had 6-7 shots each. Mr. Abraha only had one shot from the bottle of liquor.

[35] Mr. Abraha testified that at one point Mr. Filli took Temesgen’s telephone that they were using to listen to music. Temesgen appeared to want to fight Mr. Filli. Mr. Abraha got in the middle of the two and got the phone back. At another point, Mr. Filli was standing behind them on a table in the park and Mr. Abraha told him to stop. Mr. Filli began massaging Mr. Ademnur and Mr. Ademnur told him to stop. Mr. Filli then began circling the group. Mr. Filli was picking up garbage in the park. Mr. Abraha testified that Mr. Filli was wearing gloves on both hands. He was wearing a hat and sunglasses and was carrying a bag.

[36] Mr. Abraha did not like the situation at the park and suggested leaving. Mr. Abraha, Emmanuel, Mr. Ademnur and Temesgen walked to Awash. Before leaving, Mr. Abraha suggested to Khalid that he should take care of Mr. Filli. Mr. Abraha testified that he thought that Mr. Filli was either drunk or mentally ill because of his behaviour. He agreed that he did not want to be around Mr. Filli because of Mr. Filli’s odd behaviour. When Mr. Abraha arrived at Awash with the others he saw Mr. Berhane in the bar. Later, he saw Mr. Filli in the bar, standing near the washroom.

[37] Mr. Abraha drank more beer at Awash. He did not know how many beers he consumed.

[38] Over the course of the evening, Mr. Abraha went in and out of Awash to smoke. He generally smoked outside Awash and the Lumar Café. His habit was to walk back and forth and chat with people outside.

[39] Mr. Abraha remembered talking with Temesgen, Emmanuel, Mr. Ademnur, Mr. Berhane and a white man outside Awash on the evening of the fight. Mr. Berhane was giving advice to Temesgen. Mr. Abraha also testified that he saw Mr. Berhane counselling a group of young men. Mr. Berhane, at some point, told Mr. Abraha to take care of Temesgen.

[40] Mr. Abraha testified that he and Mr. Ademnur walked Temesgen to the bus stop. He testified that Temesgen was younger and was drunk. Mr. Abraha felt it was their responsibility to ensure that he left the area and went home. Mr. Abraha said that after 2:45 a.m. when the bar closes is a bad time around the bar and he felt that he had to be sure to get Temesgen on the bus.

[41] After walking Temesgen to the bus, Mr. Abraha walked back towards Lumar and Awash with Mr. Ademnur. Mr. Abraha described seeing the fight between Mr. Filli and Mr. Berhane begin after he returned from the bus stop.

Selim Ademnur

[42] In his statements, Mr. Ademnur also described the events before the fight. His account was essentially the same as that of Mr. Filli and Mr. Abraha. Mr. Ademnur said that on the evening of September 26, 2014 Mr. Ademnur was with Mr. Abraha on the Danforth. They got beer. Mr. Filli had liquor. Mr. Filli came with them to the park. Mr. Filli gave them some liquor and they gave Mr. Filli some beer. At the park Mr. Filli started “acting up”. They were all drunk. Mr. Ademnur said that Mr. Filli had a glove on one hand. Mr. Ademnur and his friends went to Awash. Mr. Filli came with them but they separated from him. Mr. Ademnur and Mr. Abraha left Awash and went outside. He took a friend to the bus stop sometime around 3:00 a.m. Mr. Ademnur described speaking to Mr. Berhane outside Awash and telling him that he was going to smoke. He described seeing Mr. Filli and Mr. Berhane begin fighting after he left to smoke a cigarette.

Henok Aklome

[43] Henok Aklome described seeing Mr. Berhane in Awash, handing glasses to the server after Awash stopped serving alcohol. This was likely after 2:15 a.m. Mr. Berhane went outside sometime later. He left his jacket over the back of his chair. His friends assumed that he had gone out for air and was coming back.

Nur Hussein

[44] Mr. Hussein was working at Lumar on the night of the fight. He received a complaint from a young man about Mr. Filli. The man told Mr. Hussein that Mr. Filli had a Quran in his possession and had taken it into a bar (Awash). Mr. Hussein spoke to Mr. Filli about this and Mr. Filli told Mr. Hussein that he would not do that again. Mr. Filli then left the café. When Mr. Hussein spoke to Mr. Filli, he did not notice any signs of intoxication.

The Fight

[45] Although the accounts of the events leading up to the fight are fairly consistent between the witnesses, Maarg Abraha and Selim Ademnur gave an account of the fight that differed fundamentally from the account given by Mr. Filli. The other witnesses observed only parts of the fight. I will review the accounts given by Mr. Abraha, Mr. Ademnur and Mr. Filli with reference to the evidence of the other witnesses who testified that they saw some part of the events.

Maarg Abraha

[46] Mr. Abraha testified that when he got back to the area outside the Lumar Café, he saw Mr. Filli and Mr. Berhane sitting on a planter on the sidewalk outside the restaurant. The two were talking. Mr. Abraha heard Mr. Berhane say, “I am not afraid.” Mr. Filli said, “You’re not afraid? You’re not afraid?” repeatedly. Mr. Abraha approached the two men and said to Mr. Berhane, “[l]et’s go.” Mr. Berhane replied, “You –you go to your home.” Mr. Abraha said to Mr. Berhane, “[i]f I am to go home, you should go as well.”

[47] Both Mr. Berhane and Mr. Filli got up off the planter. Mr. Abraha stood between them. He held them apart and tried to calm them. The two men pushed him out of the way and started fighting. They hit each other. They fought against a car that was parked by the curb. While they were fighting, Mr. Filli was just off the sidewalk on the street and Mr. Berhane was on the sidewalk. After he was pushed aside, Mr. Abraha pulled back to look for help.

[48] At one point during cross-examination, Mr. Abraha, in describing the fight, said that Mr. Ademnur, “was behind me because I told him to stand there…because he may not be able to…get involved to just break up the fight. And the way Nahom did everything for us, supporting us, I did not want to get any further trouble for Nahom.” Later in his testimony, he agreed that Mr. Ademnur may have been standing next to him during the fight.

[49] Within seconds, Mr. Berhane was bent over and appeared to be hurt. Mr. Berhane took two to three steps and started falling. Mr. Abraha went to catch him. Mr. Abraha fell to his knees holding Mr. Berhane.

[50] After Mr. Berhane fell, Mr. Abraha grabbed Mr. Filli’s hand and asked, “[w]hat did you do?” Mr. Abraha believed that this occurred out on the street. Around that time, he heard Mr. Hussein’s voice. He thought he heard Mr. Hussein say “[s]top”.

[51] Mr. Abraha testified that after the fight ended he saw the blood on his clothes and was shocked. He told a bystander to call 911. He did not have a phone. He then left and walked eastbound. He reached the corner and saw a friend, Yoel Ghabracristos. Mr. Abraha asked Yoel to give him his clothes. Mr. Abraha took off his shirt and pants and put on the shirt and pants of his friend Yoel. He asked Yoel to keep his clothes for him. Mr. Abraha then returned to where Mr. Berhane was lying on the sidewalk. Mr. Abraha spoke to the police when they arrived at the scene. By 3:52 a.m. he told the police about changing his clothes.

[52] Yoel Ghabracristos testified that Mr. Abraha told him to take the clothes. Yoel took them with him in a taxi. On the way, he saw that the clothes were soaked in blood. He got out of the taxi at a gas station and threw the clothes in the garbage. He testified that he did not want to bring the clothes home.

[53] Although in his testimony Mr. Abraha denied that he changed his clothes because he was concerned that he would be blamed in some way for what had occurred, in his statement to the police on September 27, 2014 Mr. Abraha said, “[i]s this serious? Like blood on my clothes and shit. And now I know, you know. I would fight, I would fight, but like I know I’m going to go to jail, you know. Like I didn’t care….”. Mr. Abraha testified that what he meant was that he knew that in Canada if you got into fights you would be held in custody and that he would not get into fights like that.

[54] It was put to Mr. Abraha that there were two stages to the altercation: an initial argument between Mr. Filli and Mr. Berhane at which time he took Mr. Berhane away from the area, followed by Mr. Berhane returning to the area to engage in a physical fight. Mr. Abraha denied this suggestion. He was taken to the notes of P.C. Perk, the officer who spoke to Mr. Abraha on the scene. The notes indicated:

Abraha advised saw suspect and victim fighting on street/sidewalk. He stepped between the two. Victim and suspect got into verbal. Abraha took victim away but victim went back to suspect. Abraha didn’t see stabbing. Suspect ran and victim fell to the ground, saw blood and realized victim had been stabbed.

[55] Mr. Abraha agreed that he had seen Mr. Filli and Mr. Berhane fighting on the sidewalk near the street. He agreed that he stepped between them but said that he did so before the fight. He agreed that Mr. Filli and Mr. Berhane yelled at each other. Mr. Abraha also agreed that he attempted to convince Mr. Berhane to leave with him and go back to Awash. He denied that he physically took Mr. Berhane away. He denied that Mr. Berhane left Mr. Filli and then returned. Mr. Abraha suggested that his English was not good and that there must have been confusion about what he said to the officer.

Selim Ademnur

[56] Mr. Ademnur, in his statement, said that he went outside to smoke with Mr. Abraha and “was chilling there”. He saw Mr. Filli outside. He saw Mr. Berhane standing with Mr. Filli. Mr. Ademnur said,

There was three of us. I went there to Nahom, I said like, ‘Nahom, I’m gonna smoke.’ When I left, as soon as I –I look back, they had started they fight. I’m like, ‘Hey, what happened?’ I –I try to reach them, you know?...to push them away, the guy had like a – I can’t even see, took the gun—the knife and stabbed him. Like what, I grab his arm…I grab like this like ‘hey, what are you doing?’ …I told him like you can go to jail for that. He said like ‘yo, move, move.’

[57] At a later point in the statement, Mr. Ademnur said that when he and Mr. Abraha went outside, Mr. Filli was sitting on a planter. Mr. Berhane was sitting on the same planter “after that”. He saw Mr. Filli and Mr. Berhane start arguing. He was not close to them when the argument started. He was also very drunk. He remembered hearing words like “yo, let’s fight.” Mr. Ademnur went back towards the two men. Mr. Abraha was there and was saying “yo, guys, chill out, chill out.” They continued to say words like, “I wanna fight, I wanna fight.” They started to fight and Mr. Filli took out the knife and stabbed Mr. Berhane. Mr. Ademnur did not see where the knife came from but believed it was from a pocket. He saw Mr. Filli stab Mr. Berhane in an overhand motion. He only saw Mr. Filli stab Mr. Berhane once. Mr. Ademnur said that Mr. Berhane did not get in any punches. After the stabbing, Mr. Ademnur grabbed Mr. Filli’s hand and asked what he was doing. Mr. Filli told him to move and he let him go. Mr. Filli ran westbound in the street.

[58] Mr. Ademnur said repeatedly that he was “too drunk” on the night of the incident.

Nur Hussein

[59] Mr. Hussein did not see the part of the altercation that led to the death of Mr. Berhane, but saw the end of an earlier altercation involving Mr. Filli. Mr. Hussein was in the kitchen of the café which was located at the front of the café with a window facing the Danforth. He was preparing a sandwich for a customer because the cook had left. Mr. Hussein saw movement outside the window and heard a “commotion”. He could see a group of people and he could hear them talking loudly. They seemed to be arguing. He went outside. It took him some time to get outside because he needed to go back through the restaurant to the door. When he got outside he saw many people coming from the bar and they were arguing. He did not know what they were arguing about. He saw Mr. Filli and 3 to 4 other people on the sidewalk. Mr. Hussein testified that the people were together “as if they were hitting”. He saw them holding each other. Mr. Hussein had told the police in his statement that he saw them hitting and punching and fighting but in his testimony he explained that he did not actually see this but saw them holding each other as if they had been fighting.

[60] He testified that Mr. Abraha appeared to be in the middle and seemed to be separating people. Mr. Hussein said to the group, “[p]lease, I don’t want any trouble.” Mr. Filli moved west and the others moved to the east. In the group of 3 or 4 that moved east, Mr. Hussein recognized Mr. Abraha. He also described a man with Mr. Abraha who matched the description of Mr. Ademnur. He did not remember Mr. Ademnur’s name but he recognized him. Mr. Hussein did not know the other two men in the group. Mr. Hussein went back inside immediately when he saw that the group appeared to be dispersing.

[61] Mr. Hussein was asked whether he saw Mr. Berhane in the group. He said, “I don’t think so”. When he was then asked if he could say for sure, he said, “I am sure, yes”.

[62] Mr. Hussein returned to the kitchen and continued to prepare the sandwich for the customer. A short time after Mr. Hussein saw the first altercation, his attention was again drawn to the sidewalk outside. He heard loud voices and saw a gathering of people. There seemed to be another altercation outside. Mr. Hussein finished making a sandwich and went to the cash for the customer to pay for the food. He then went outside to see what had happened. Although he told the police in his initial statement that about two minutes had passed between the first time he went out and the second time, Mr. Hussein testified that this could not be correct because before going out he went to the cash and took the payment for the sandwich. When he went outside, he saw Mr. Abraha, the second man (Mr. Ademnur) and Mr. Filli. A body was lying on the ground. Mr. Hussein was told that it was Mr. Berhane on the ground. Mr. Filli was walking westbound in the middle of the street. Mr. Filli was holding something with his hand up and his fist clenched.

[63] Mr. Hussein was cross-examined on his prior statement to the police and his testimony at the preliminary inquiry when he said that Mr. Berhane was “falling to the ground” when Mr. Hussein came outside. Mr. Hussein said that he meant that Mr. Berhane was already on the ground or had fallen to the ground. He explained that he had been giving the statement in English and testifying in English. At one point in the statement he said, “[t]he guy is fell down on the floor”. At another point he said “I see the guy on the floor.” The statements that referred to “falling” to the ground are not inconsistent with Mr. Hussein’s testimony at trial given his explanation and his difficulty with English. He conceded that it was possible that at the moment that he stepped out of the restaurant Mr. Berhane could have been falling to the ground, but that he did not see Mr. Berhane until he was on the ground.

[64] Mr. Hussein testified that Mr. Berhane was lying on the sidewalk near the curb and not close to the restaurant.

Fanieal Abraha

[65] Fanieal Abraha was at Awash with Mr. Berhane the night of his death. He testified that he left the bar sometime after 1:00 a.m. and was smoking outside. He saw Mr. Berhane outside closer to Lumar, talking with Maarg Abraha and two other men. One of the men met the description of Mr. Ademnur. Mr. Fanieal Abraha could not make out what was being said. Mr. Fanieal Abraha was only outside for 5-6 minutes and was not watching the whole time. Fanieal Abraha went back inside Awash. When he went outside again, Mr. Berhane was on the ground and Maarg Abraha was nearby. He did not see Mr. Filli at all that night. Given the very limited time that Fanieal Abraha observed Mr. Berhane outside, his evidence was of no value in determining the factual issues.

Hassan Hassan

[66] Mr. Hassan had been at the Lumar Café the night of the fight. He was not drinking or consuming drugs. He left Lumar to smoke a cigarette. When he left Lumar he saw Mr. Filli and Mr. Berhane standing in front of Lumar Café. He believed that there were two other men with them. He could not remember who the two other men were. Mr. Hassan walked to the area in front of Awash and began talking to friends. There was no fight when Mr. Hassan first saw Mr. Filli and Mr. Berhane outside Lumar.

[67] Mr. Hassan was talking to his friends when he noticed that a fight had started near Lumar. He saw Mr. Filli and Mr. Berhane throwing punches at each other. He saw two people breaking up the fight. He did not know who the two people were who were trying to break up the fight.

[68] He explained that he thought that the two people were trying to break up the fight because the fight would have been bigger if the two were involved in the fight. Mr. Hassan also testified that the hand motions of the two men appeared to him to indicate that the men were trying to break up the fight.

[69] Mr. Hassan was not watching the fight continuously because he believed it to be a regular fight and because it appeared to be under control. Mr. Hassan saw Mr. Berhane fall to the ground. Mr. Berhane fell to the ground soon after the fight began.

[70] Mr. Hassan called 911 immediately.

[71] Mr. Hassan did not know how or why the fight started.

[72] After Mr. Berhane was on the ground, people surrounded him. Mr. Hassan did not see what happened to Mr. Filli after Mr. Berhane fell. Mr. Hassan went in and out of Lumar after the fight and was talking to the 911 operator.

[73] Mr. Hassan knew Mr. Filli before the night of the fight though he rarely saw him. He also knew Mr. Berhane. He was not friends with either. Mr. Hassan knew Mr. Abraha. Mr. Abraha was a good friend of Mr. Hassan. Mr. Hassan was not sure that he had seen Mr. Abraha that night. He said he may have seen Mr. Abraha after the fight.

[74] Mr. Hassan was asked about his memory of the hand gestures that he said he observed which led him to believe that the two men were breaking up the fight. He agreed that at the preliminary inquiry he said he did not remember what behaviour he had observed that led him to believe that the men were breaking up the fight. He agreed that when he was asked at the preliminary inquiry whether the men could have been participating, he said he did not remember.

[75] Mr. Hassan agreed that he told the 911 operator that he was in Awash but he had made a mistake. He said that he was upset at the time. He testified that as he was speaking to the 911 operator he was going in and out of Lumar. During the call he spoke to people near him in Arabic. He was telling them to shut the doors so that nobody came after them. He agreed that he spoke to a police officer in Lumar after the police arrived. He may have told the officer that he was inside Lumar the whole time and only learned of the incident when the ambulance came. He did not remember what he said to the officer.

[76] It is an agreed fact that the 911 call from Mr. Hassan was received at 3:05:29 a.m. on September 27, 2014.

William Puritch

[77] A 911 call from William Puritch was received at 3:07:44 a.m. Mr. Puritch testified that he had walked westbound on the Danforth at around 3:00 a.m. on September 27, 2014. He lived in the area and was walking to the store to buy cigarettes. He walked on the north side of Danforth and then crossed to the south side before reaching the area outside Awash and Lumar. He was watching the activity outside carefully because he knows that there are often fights after the bars close and because he has balance issues. He saw no fights as he walked past the area and entered the store. He bought cigarettes at 3:02 a.m. according to his receipt. He stayed in the store for a short time talking to the clerk. He left the store, lit a cigarette and walked to the sidewalk on the south side of Danforth Avenue. As he began to walk eastbound, he heard a woman yell for help and ask him to call 911. When he looked across the street he saw the woman with someone on the ground. He also saw a man running westbound on the sidewalk about 30-40 meters from the man on the ground. Mr. Puritch called 911 and crossed the road.

[78] Mr. Puritch helped attend to Mr. Berhane. Mr. Berhane was lying on the sidewalk near the road. Mr. Puritch stood on the road between two parked cars and was right in front of Mr. Berhane. He recalled that one of the parked cars honked at him to move. That car then left.

Osama Filli

Statement to the Police

[79] Mr. Filli, in his statement to the police on September 28, 2014, said that he had been sitting on the planter outside Lumar and Mr. Berhane came and sat beside him. Mr. Berhane was acting crazy, yelling and screaming. Mr. Filli said to Mr. Berhane, “[i]f you’re drunk you can go home.” At another point in his statement, Mr. Filli said that he told Mr. Berhane to “respect the place”. Mr. Berhane then swore and yelled at Mr. Filli. Mr. Berhane pointed at Mr. Filli and then he left. Mr. Berhane then returned with other people and wanted to fight with Mr. Filli. Mr. Filli said “I start to—I tried to move him back, he don’t wanna move back. The people that with him they were pushing me to the street. And I so like there is not choice anyways I have to defence – if I didn’t defence then they’ll kill me, the three of them.”

[80] At another point in his statement when asked to describe what each of the three men were doing in the fight, Mr. Filli said that Mr. Berhane was hitting him and the other man (describing Mr. Abraha) was standing between them. Mr. Abraha pushed Mr. Filli towards the street and hit Mr. Filli with his head. The third man was standing beside him.

[81] The officer asked Mr. Filli about a small cut on his hand and Mr. Filli said that he fell down during the fight.

[82] Mr. Filli expressed disbelief that Mr. Berhane had died. He said that he did not want to kill him, he said, “I was about just push him back- like give him scratch or something.”

Examination-in-Chief

[83] In his examination-in-chief, Mr. Filli testified that Mr. Berhane came and sat beside him on the planter. Mr. Berhane seemed upset. Mr. Filli said that Mr. Berhane was talking about something but he could not remember what he was talking about. Suddenly, Mr. Berhane got angry. He yelled and swore and pushed Mr. Filli. Mr. Berhane said something like, “[g]et out of here.” The two men stood and they yelled and screamed at each other. Mr. Filli was asking Mr. Berhane why he pushed him. Mr. Berhane was swearing. Mr. Hussein came out of Lumar. Mr. Abraha was close by. Mr. Abraha said something like, “let’s go” to Mr. Berhane. Mr. Berhane and Mr. Abraha moved east. Mr. Filli sat back down on the planter.

[84] Mr. Abraha, Mr. Ademnur and Mr. Berhane subsequently returned to Mr. Filli. Mr. Filli testified that Mr. Berhane punched him on the left side of his face. Mr. Filli stood and pushed Mr. Berhane. Mr. Abraha and Mr. Berhane pushed him back. Mr. Filli said that “Selim pulled me or something like that. I fell down to the ground.” After he fell to the ground, both Mr. Abraha and Mr. Ademnur began kicking him. Mr. Filli stood up. Mr. Abraha held him by his shirt. Mr. Berhane was behind Mr. Abraha, trying to hit Mr. Filli. Mr. Filli tried to step back from them. Mr. Ademnur was standing to Mr. Filli’s right side. Mr. Ademnur was not doing anything, but was blocking his way. Mr. Filli then began to step forward because he was scared of the traffic behind him.

[85] Mr. Filli was asked what Mr. Abraha was doing while he held Mr. Filli’s shirt. Mr. Filli said that Mr. Abraha was talking and screaming and yelling, but Mr. Filli could not understand what he was saying. He was shaking Mr. Filli and pushing him. Mr. Filli was asked why he did not run away. He said that he could not run away. Mr. Abraha was in front of him holding his shirt. Mr. Ademnur, who was a large man, was standing beside him. He was between two parked cars and the street was behind him. He was getting pushed out into the street.

[86] Mr. Filli testified that he was scared that they were going to kill him or something. He decided to take out his knife and use it. He planned to just “give him some pain to distract him.” He planned to use the knife on Mr. Berhane because “he’s the one who started the fight and the guys were kicking me and angry for me because he was…upset from me. And I thought like if I stop him, they’re going to stop too.” Mr. Filli took out the knife and stabbed Mr. Berhane. He tried to hit Mr. Berhane on his arm or shoulder. After striking at Mr. Berhane the first time Mr. Filli did not believe that he had hit him, so he swung a second time. He believed that he struck Mr. Berhane in the shoulder the second time. He saw Mr. Berhane step back towards Lumar. Mr. Hussein came out of Lumar as Mr. Berhane fell to the ground near the Lumar Cafe. Mr. Abraha and Mr. Ademnur stepped back from Mr. Filli. Mr. Abraha said something like, “you carry a knife.”

[87] Someone else said “run away” and Mr. Filli ran. He testified that he was scared that other people would attack him. Mr. Filli went back to the shelter where he was staying.

[88] The next evening Mr. Filli went to see his friend Faisal Berhan to try to find out what had happened to the man he had stabbed. He was not able to find out. He went back to the shelter. He was arrested the next morning.

Cross-Examination

[89] In cross-examination, Mr. Filli testified that when Mr. Berhane came and sat on the planter with him he was initially happy because someone was sitting with him. However, Mr. Berhane was whispering and looking at the ground. Mr. Berhane was talking to himself. He got louder and was swearing. Mr. Filli could not remember what Mr. Berhane was talking about. Mr. Filli said something to Mr. Berhane. He may have told him to show respect. He may have told him that he could go home if he was drunk. He may have said “what’s wrong? What happened?” Then Mr. Berhane pushed Mr. Filli. They began yelling at each other. Mr. Filli was saying things like “you don’t need to push me”.

[90] After the yelling and pushing, Mr. Hussein came out of Lumar. Mr. Abraha took Mr. Berhane away. Mr. Hussein asked Mr. Filli what happened and he told him that “these guys are drunk and trying to fight with me.” Mr. Filli testified that Mr. Hussein then spoke to Mr. Abraha and Mr. Berhane and went back into Lumar. Mr. Filli went back to the planter and sat down.

[91] Within a very short time Mr. Berhane came back to the planter and punched Mr. Filli. Mr. Filli could not say where Mr. Ademnur and Mr. Abraha were when Mr. Berhane punched him. Mr. Filli stood and pushed Mr. Berhane. It was at this point that Mr. Abraha and Mr. Ademnur became involved. Mr. Filli was asked in cross-examination: “and then they sort of grab you and pull you to the road? How does that work?” He answered: “I don’t know how is it happened. It was quick. But I ended up falling to the ground.”

[92] Mr. Filli testified that after he fell to the ground, Mr. Abraha and Mr. Ademnur both kicked him. They were strong kicks. When he got to his feet from the ground, Mr. Abraha was holding him and Mr. Berhane was trying to hit him from behind.

[93] Near the end of his second day of cross-examination, Mr. Filli testified that Mr. Abraha head-butted him as he was getting up from the ground.

[94] Mr. Filli was asked why he did not leave after the first altercation. He said that he thought everything was fine after Mr. Hussein came out. He was asked why he did not leave after Mr. Berhane punched him. He said, “yeah but they made it to get involved him and so I pushed him.” He agreed that he could have retreated after the punch. He said, “[o]bviously there’s a reason for getting punched in the face, so I gotta know…” He was asked, “[y]ou were angry enough or upset enough to push him back?” And he replied,” [i]t’s a normal reaction I believe that anybody get.” The Crown asked Mr. Filli, “[s]o at that point you’re thinking, you want to fight, let’s fight? Before Maarg and Selim get involved, you were saying, okay, let’s go, let’s fight?” Mr. Filli said, “I thought it’s a regular fight, yeah”.

[95] At another point Mr. Filli explained that, “if somebody come and punch you, just you’re going to sit down and wait for him you know. I think—of course there is a reaction.” He was asked, “you were going to get in a fight with him? And he answered, “[a]fter I—exactly yeah”. He was asked, “you could have left? And he answered, “Why would I leave?” The Crown then said, “[e]xactly. Why would you leave? You wanted to fight, correct?” and Mr. Filli said “no, but I had no reason to leave. Like, okay, like for example, you’re sitting and I came and punched you, are you going to leave?” At a subsequent point, Mr. Filli said that he did not want to fight.

[96] Mr. Filli was asked whether the only reason that he did not run was because Mr. Abraha was holding him. He said, “he was holding me and I was not thinking clearly, cause I want to know what—how this—why all this happening, you know.” He said that he was scared for his life. He was asked, “so Maarg held you and if he didn’t hold you, you would have left?” He answered, “I don’t know…It’s just happen quick, I can’t tell you how do I felt between these seconds…”

[97] Mr. Filli was asked why he did not stab Mr. Abraha or Mr. Ademnur if these were the people who had tried to push him into traffic and who had kicked him on the ground. He said, “Maarg by himself can’t do nothing to me.” At the time that he took out his knife, Mr. Ademnur was not doing anything.

[98] Mr. Filli also explained that he reached past Mr. Abraha to stab Mr. Berhane because “they did that because the other guy was mad at me.”

[99] Mr. Filli said that he stabbed Mr. Berhane and ran. He was afraid that others would attack him.

[100] Mr. Filli agreed that he had not said anything to the police about being kicked by Mr. Ademnur and Mr. Abraha. He said that when he spoke to the police he was not very accurate with the details.

[101] Mr. Filli testified that he had spoken to his friend Faisal Berhan about what had happened the night before his arrest. He said that he was not detailed. He left before Mr. Yuanes arrived because he did not like Mr. Yuanes. Mr. Filli denied that he left to avoid being arrested for the stabbing.

[102] Mr. Filli was asked about his thinking around the time of the incident. He agreed that he told a nurse practitioner on September 25, 2014 that he was having “crazy ideas.” He testified that by this he meant that he was homeless and under stress and having unusual ideas.

[103] Mr. Filli denied that after his arrest he told Nurse Edmondson at the Toronto South Detention Center that Risperidone makes him do some crazy things and that was why he was in jail.

[104] Mr. Filli denied that he was having crazy thoughts at the time of the fight with Mr. Berhane.

[105] Mr. Filli was questioned about telling the police in his statement, “they start pushing… me on the street so they can take [their] time, you know.” He said,

So much thing was going on in my head, you know, so I was shocked. I was okay with these people and now they are fighting with me. So I thought like…too much thing was going on in my mind. I thought they were going to kidnap me. I thought they were going to kill me, I thought they…too much thing was going on at that time.

[106] When asked in cross-examination about his belief that they would kidnap him, Mr. Filli said, “[o]ne of the things that was going on in my brain, cause they –they were okay with me and then they came and attack me, so too much thing was going on. I was thinking like…what is all this about, you know? I didn’t do nothing wrong. So these guys are up to something dangerous, so I gotta do something before I get killed.”

Neil Monck

[107] Neil Monck was called as a witness by the defence. He testified on February 17, 2017 and was recalled to the stand on March 6, 2017. Mr. Monck was a tow truck driver. He was driving on the Danforth in the early morning hours of September 27, 2014.

[108] Initially in his evidence Mr. Monck said that he had been driving home from work in his personal vehicle and was not driving a tow truck. He was driving eastbound on the Danforth. When he passed Greenwood Avenue he noticed a green Lamborghini parked on the south side of Danforth east of Greenwood. He saw a man get out of the driver’s side of the Lamborghini and get involved in a fight with about 5 other men in the middle of Danforth Avenue. Mr. Monck testified that the Lamborghini was parked just east of Ladysmith Avenue. The fight was in the middle of the street west of the Lamborghini. Mr. Monck testified that he slowed to a crawl. It took him 20 to 30 seconds to pass the area. His attention was focused first on the car and then on the fight. He testified that the fight was in the westbound lane of the road, sufficiently close to the center line of the roadway that he had to swerve into the curb lane to avoid the fight.

[109] Mr. Monck described the fight. He said that he saw a man on the ground who was being kicked. The man from the Lamborghini was one of 5 or 6 men involved in the fight. Mr. Monck did not see the man from the Lamborghini punch or kick anyone. Mr. Monck could not say how many people kicked the man on the ground. He described the driver of the Lamborghini as being in his early 20’s, skinny and 5’7” to 5’10” tall. He said he had dark skin and curly hair. Mr. Monck could not describe anyone else in the fight.

[110] His description of the man from the sports car was similar to the description given by Mr. Hussein of a customer who had a sports car. Mr. Hussein testified that around September 2014 there was a Saudi student who owned a Porsche and had rented a car similar to the one described by Mr. Monck. Mr. Hussein did not know when the man had rented the car. The man was described by Mr. Hussein as being around 22 years-old. He was skinny and around 5’6” or 5’7” tall. His skin was light brown. Mr. Hussein did not see this man in the early morning of September 27, 2014. He did not see him involved in the fight. Mr. Hussein did not see the sports car that night.

[111] Mr. Monck described in detail his route across the intersection of Greenwood and Danforth. He said that he saw the Lamborghini just after he went through the intersection at Greenwood and Danforth. He then saw the fight.

[112] He did not stop but continued eastbound. He stopped around Main and Danforth to try to get some food. He heard on his handheld police scanner that there had been a stabbing at Greenwood and Danforth. He returned to Greenwood and Danforth to tell the police what he had observed. He parked his car on the north side of the Danforth, east of the area of the fight. He could not drive through because the road was blocked.

[113] Mr. Monck was shown the video surveillance footage of the area around the fight. He was asked whether he could identify his car but he could not do so. Mr. Monck stated with certainty that he was not driving a tow truck when he drove by and saw the fight. He said that he heard about the fight on the scanner which is used in the tow truck but that he had taken the handheld scanner from his tow truck and turned it on in his car. Mr. Monck described in detail where he had left his truck. Mr. Monck was adamant that he could not have been driving a Ford tow truck that morning because he did not drive Ford trucks.

[114] Mr. Monck agreed that, when he spoke to the police the morning of the event, he did not tell police that he saw a person on the ground being kicked. He told the police that there were “five or six of them fighting” and that they were “going at it”. When he was asked if he saw what the people, other than the driver of the sports car, looked like, he told the police “I didn’t really ’cause they were all bundled—you know what I mean—they were fighting—so I didn’t really…”.

[115] Mr. Monck said that he did not mention the kicking because the police did not ask about it. He agreed that he frequently saw fights in the area around Greenwood and Danforth, before and after this incident. He said that he has seen fighting in the street and people being kicked.

[116] Mr. Monck was certain that the fighting was not on or near the sidewalk.

[117] Mr. Monck was cross-examined about the vehicle he was driving. He denied that it was a tow truck and specifically denied that it was the tow truck that appears in the video surveillance. He denied giving the police officer who took his statement his license plate number. He denied that the police officer walked him back to his vehicle after taking his statement.

[118] After Mr. Monck’s testimony the Crown sought to call reply evidence that contradicted Mr. Monck’s testimony. I ruled that the proposed reply evidence was not collateral and would be permitted. I also ruled that in fairness, the defence should be permitted to recall Mr. Monck to address the evidence that contradicted aspects of his testimony. He was recalled.

[119] Mr. Monck, when he was recalled, agreed that he was driving a tow truck the morning of September 27, 2014. It was a Ford tow truck. He identified his tow truck on the surveillance video. The video shows the tow truck drive by the area of the fight before Mr. Abraha and Mr. Ademnur walk back from the bus stop, that is, before the fight starts.

[120] Mr. Monck agreed that he approached the intersection from the south and not from the west. He agreed that he came back and gave his statement to the police, leaving his truck in the Esso station on the southeast corner of Greenwood and Danforth. He agreed that as shown in video footage, the officer walked him to his tow truck after the statement. He agreed that he had been mistaken about all of these matters when he first gave his evidence.

[121] Mr. Monck insisted that he was sure about his memory of a fight in the middle of the Danforth and that he saw 5 or 6 men kicking someone on the ground. Mr. Monck was certain that the fight was going on when he drove past and that he had to move to the right to be sure to avoid hitting them.

Video Surveillance

[122] The video surveillance from 1196 Danforth Avenue (Exhibit 11) assists with the timing of some of the events. The surveillance does not show the fight between Mr. Filli and Mr. Berhane.

[123] A person identified as Temesgen walked westbound on the north side of Danforth Avenue at 2:49 a.m. followed by Mr. Abraha about 40 second later and Mr. Ademnur about 30 seconds after Mr. Abraha. Mr. Abraha is easily identifiable on the video because he had a blonde streak in his hair that night.

[124] At 2:59 a.m. a tow truck identified by Neil Monck as the tow truck he was driving, turned right onto the Danforth from Greenwood Avenue and proceeded eastbound at 2:59 a.m.

[125] At 3:00 a.m. Mr. Ademnur and Mr. Abraha walked eastbound back towards the area of the Lumar Café.

[126] At 3:02 a.m., an individual walked westbound on the south side of Danforth and turned right into the “On the Run” store where William Puritch testified he bought cigarettes at 3:02 a.m. An individual can be seen leaving the “On the Run” and walking eastbound at 3:03:35 a.m.

[127] At 3:04:58 a.m., a green sports car drove westbound on Danforth and turned left to go south on Greenwood.

[128] At 3:05:19 a.m., Mr. Filli ran westbound on the north sidewalk of Danforth Avenue.

[129] At 3:10:22 a.m., the green sports car pulled into the gas station on the southwest corner of Danforth and Greenwood and remained there until 3:10:54 a.m. when it drove westbound on Danforth Avenue.

[130] It is an agreed fact that Mr. Hassan called 911 at 3:05:29 a.m. It is also agreed that the 911 call from William Puritch was received at 3:07:44 a.m. The police arrived on scene at 3:11:27 am.

III approach to the evidence

General Principles

[131] With that review of the evidence, I will now set out some general principles governing my approach to the evidence before turning to my analysis and findings on the issue of self-defence.

[132] In determining the issues in this trial, I have considered and weighed the evidence as a whole.

[1] Mr. Filli testified and said that he acted in self-defence. He gave an account of the fight and of his reasons for stabbing Mr. Berhane. As with any witness, I must assess the credibility and reliability of Mr. Filli’s evidence and I must do so in the context of all of the evidence. The focus in this case has been on the divergent versions of the fight offered by Osama Filli and Maarg Abraha. The assessment of Mr. Filli’s evidence is not a contest between his version of events and the version advanced by the evidence of the Crown witnesses, in particular by Maarg Abraha.

[2] If I accept Mr. Filli’s evidence or if it raises a reasonable doubt, I must acquit Mr. Filli. Even if I reject Mr. Filli’s evidence, I may only convict him if the Crown has satisfied me beyond a reasonable doubt that Mr. Filli did not act in self-defence.

[133] In assessing the credibility and reliability of the witnesses to the fight, other than Mr. Filli, I have considered their possible motivation to lie to protect themselves or others.

[134] I have considered the prior statements of witnesses that are inconsistent with their testimony and any explanation offered for the inconsistency.

[135] In assessing the evidence of the witnesses in this case I have considered that the reliability of the observations and recollections of the witnesses may have been affected by the conditions under which the observations were made and the ability of the witness to remember the events. In this case, the fight that ended with the fatal stab wounds to Mr. Berhane was a dynamic and fast-moving situation. The situation was extremely stressful for all who observed it. Intoxication affected the reliability of the observations and recollections of several witnesses.

Approach to the Evidence of Maarg Abraha and Selim Ademnur

[136] I have approached the evidence of Maarg Abraha with caution. Mr. Abraha’s evidence was problematic in several ways.

[137] Overall, Mr. Abraha was an evasive witness. He declined to answer questions. He questioned why he needed to answer questions about his conduct on the night of the stabbing.

[138] Mr. Abraha was vague regarding the amount of alcohol that he had consumed. He testified that he drank 6 or 7, or 8 beers at the park when asked in his examination-in-chief. He said that he drank more at the bar but did not know how much. He said that friends had bought beer for him. His evidence regarding his level of intoxication was not credible. He testified in his examination-in-chief that on an average weekend night he would consume 13 or 14 beers if he “wanted to” do so. Mr. Abraha testified that after having 13 or 14 beers he would just want to “sing and chat”. He testified that it would take about 22 or even 30 beers to make him drunk. He said that he was “not really too drunk that night”.

[139] Mr. Abraha did not tell the police about drinking in the park with Mr. Filli when he gave his statement to the police on September 27, 2014. He testified that this was because of his poor command of the English language. He testified that when he told them that Mr. Filli drank everywhere and drank from a bag, he was talking about Mr. Filli’s drinking in the park.

[140] Mr. Abraha’s conduct in changing his clothes after the fight and his explanation for that conduct raise concerns.

[141] I have approached the evidence of Mr. Abraha with caution in light of these issues.

[142] There are also reasons to approach the evidence of Mr. Ademnur’s statements with caution. There was no opportunity for cross-examination. Mr. Ademnur left the country at the time that the police were trying to subpoena him to give evidence at the preliminary inquiry. He did not return for the trial although he was aware of the trial date. By his own admission, Mr. Ademnur was very drunk the night of the fight.

[143] Mr. Ademnur and Mr. Abraha were together outside the Lumar Café before the police arrived. P.C. Perks arrived on scene at 3:14 a.m. and was directed to Mr. Abraha and Mr. Ademnur. He spoke to them separately and remained with them after that point until he took them to the police station to give statements. Both Mr. Ademnur and Mr. Abraha gave statements on the morning of September 27, 2014. They then left the police station together and spoke with one another before returning during the evening for the photo line-ups and further statements. Mr. Ademnur insisted on remaining with Mr. Abraha at the scene and when they were initially taken to the police station. The two men had an opportunity to collude when the police were not with them.

[144] I have approached the statements of Mr. Ademnur with caution in light of these problems.

Approach to the Exculpatory Statement of Osama Filli

[145] The exculpatory statement of Mr. Filli to the police following his arrest on September 28, 2014 was admitted into evidence. The Crown sought a ruling at the outset of the trial that the statement was voluntary in order to be able to use the statement to cross-examine Mr. Filli should he testify. Mr. Filli conceded voluntariness. Mr. Filli then sought to lead the statement as part of his defence. In a previous ruling, I admitted the statement and indicated that I would determine the weight to be given to different portions of the statement at the end of the trial.

[146] The statement is a videotaped statement made by Mr. Filli to the police about 7 hours following his arrest and almost 40 hours after the stabbing. The night before his arrest Mr. Filli had attended at Faisal Berhan’s apartment to try to find out what had happened to the person with whom he had fought. Mr. Berhan did not tell him. Mr. Filli testified that he first learned that Mr. Berhane had died during the police interview. Mr. Filli also said that he had not believed that he had seriously injured Mr. Berhane or that he would be facing a criminal investigation before his arrest on September 28, 2014.

[147] Counsel for Mr. Filli argued that Mr. Filli’s entire statement to the police was spontaneous. Counsel submitted that the statement, although not admissible for the truth of its contents, is relevant to show Mr. Filli’s reaction to the information that Mr. Berhane had died and it is relevant to Mr. Filli’s credibility because of its consistency with his trial evidence.

[148] I find that the portion of Mr. Filli’s statement in which he expressed disbelief and then dismay at the information that Mr. Berhane had died was spontaneous. Mr. Filli appeared to be genuinely surprised to learn that Mr. Berhane had died from his wounds. Based on the totality of the evidence, I accept that Mr. Filli did not know that Mr. Berhane had died until his arrest.

[149] I do not find the other parts of the statement to be spontaneous. Mr. Filli had 40 hours to think about the fight and his use of the knife. Although he may not have expected to be investigated and charged by the police, he was aware that he had stabbed a man. While Mr. Filli may not have considered his version of events for the purpose of a police investigation, he did consider his version of events for the purposes of explaining himself. Mr. Filli attended at Faisal Berhan’s house to find out about the condition of the man he stabbed. Mr. Filli testified that he told Mr. Berhan it was a three on one fight. Mr. Filli testified that he left Mr. Berhan’s apartment because he knew that Mr. Yuanes was coming over and he did not like Mr. Yuanes. Mr.Filli knew Mr. Yuanes to be an older member of his community who had taken an interest in Mr. Filli’s affairs in the past. I find that Mr. Filli must have been thinking about the justification for his actions in the 40 hours before his police statement. Other than the part of the statement that shows Mr. Filli’s reaction to the death of Mr. Berhane, I give the statement no weight as evidence showing consistency with Mr. Filli’s trial testimony.

Approach to the Statement of Mr. Filli to Nurse Edmondson

[150] I previously ruled that the Crown could lead evidence of a statement that Ms. Cheryl Edmondson, a nurse at the Toronto South Detention Centre, recorded as having been made by Mr. Filli after his arrest and detention. Mr. Filli testified that he did not believe that he made the statement as recorded by Ms. Edmondson. The recorded statement is the following: “[o]n Risperidone, believes he has mental health issues. Believes Risperidone makes him do crazy things – that’s why in jail.”

[151] The record was made in the course of a medical assessment. Mr. Filli’s words were not recorded verbatim. Ms. Edmondson’s focus was on her assessment of Mr. Filli’s medical needs. The statement, as I indicated in my ruling, is somewhat ambiguous. Mr. Filli testified and denied having made the statement. Having considered the statement in the context of the trial evidence including Mr. Filli’s testimony, I cannot conclude that Mr. Filli said the words attributed to him in the statement. I find the statement to have no probative value.

Post-offence Conduct Evidence

[152] The Crown relies on the evidence of Mr. Filli’s flight from the scene as post-offence conduct evidence.

[153] As set out by the Court of Appeal for Ontario in R. v. Peavoy: [1]

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact's appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact to determine what inference, if any, should be drawn from the evidence.

[154] The post-offence conduct evidence in this case must be weighed in the context of all of the evidence, including the explanation offered by Mr. Filli. Mr. Filli testified that he fled because he heard someone tell him to run and he was afraid that other people would come after him. This explanation makes sense in the circumstances. There were a number of people in the area after the stabbing. Some were friends of Mr. Berhane. Mr. Hassan, one of the witnesses, can be heard on the 911 recording telling Mr. Hussein to lock the doors of the Lumar Café so that no one could come after them. Maarg Abraha testified that when he returned to the scene after changing his clothes people told him to leave. On all of the evidence, the explanation by Mr. Filli for fleeing the scene is reasonable and I cannot reject it. I therefore give no weight to the evidence of flight.

IV self-defence – Legal Principles

[155] Section 34 of the Criminal Code provides as follows:

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[156] The onus is on the Crown to disprove self-defence. The Crown may disprove self-defence by demonstrating beyond a reasonable doubt that one or more of the requirements for the defence does not apply.

[157] There is a subjective and an objective component to self-defence.

[158] In R. v. Pétel, [2] Lamer C.J.C. described the subjective and objective aspects of the elements of the former s. 34(2):

… the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable. Accordingly, this is an objective determination.

[159] Doherty J.A. in R. v. Craig, [3] explained the subjective and objective components of the prior self-defence provisions as follows:

The elements of self-defence in s. 34(2) as described in Pétel have both a subjective and objective component. For example, an accused must actually apprehend the risk of death or grievous bodily harm. This is a subjective inquiry into the mind of the accused at the relevant time. That apprehension, however, must be reasonable in the circumstances as perceived by the accused. This is an objective inquiry that serves to limit the defence to circumstances where the accused's conduct would be seen as normatively justified. [Citations omitted.]

[160] Intoxication may affect the subjective perception of the accused. However, the objective reasonableness component of self-defence is based on a sober person facing the relevant threat of force. [4] Individual factors may be considered in determining reasonableness. As articulated by the Supreme Court of Canada in R. v. Lavallee, “the issue is not however what an outsider would reasonably have perceived but what the accused reasonably perceived given [his] situation and [his] experience.” [5]

[161] The current self-defence provisions maintain the subjective and objective components of the defence. As summarized by the New Brunswick Court of Appeal in R. v. Cormier: [6]

Section 34(1) enumerates three criteria, all of which must be present for the defence to be available. In other words, self-defence is not applicable if the prosecution proves beyond a reasonable doubt that one of these criteria has not been met. They are:

1. Reasonable belief: the accused must reasonably believe that force or threat of force is being used against him or someone else (the subjective perception is objectively verified);

2. Defensive purpose: the subjective purpose for responding to the threat must be to protect oneself or others (this is a subjective state of mind); and

3. Reasonable response: the act committed must be reasonable in the circumstances (this is objectively assessed).

[162] In assessing the reasonableness of the response under s. 34(1)(c), other principles enunciated under the prior self-defence provisions remain applicable. An accused need not wait until he or she is assaulted before acting, and an accused is not by law required to retreat before acting in self-defence. [7] The imminence of the threat, the existence of alternative means to respond and the actions taken by the accused are factors that a trier of fact must consider to determine if the act committed by the accused was reasonable in all the circumstances. An accused is not required to “weigh with nicety” the force used in response to the perceived use or threat of force. The defensive action need not be strictly proportionate to the threat faced by the accused. The proportionality of the force is a factor to be considered in assessing the reasonableness of the force. [8]

V analysis on the issue of self-defence

[163] For self-defence to apply, s. 34(1)(a) requires that the person using force to defend himself believe on reasonable grounds that force is being used against him or that a threat of force is being made against him. In this case, it is agreed that Mr. Filli believed on reasonable grounds that force was being used against him or that a threat of force was being made against him.

[164] The Crown has not conceded s. 34(1)(b). This subsection requires that the act be committed for the purpose of self-defence. The Crown must disprove this element beyond a reasonable doubt in order to disprove self-defence. The Crown’s position is that Mr. Filli acted in a targeted manner against Mr. Berhane who was unarmed and did not present a danger to Mr. Filli at the time that Mr. Filli used the knife.

[165] Even if Mr. Filli has raised a reasonable doubt with respect to his purpose under s. 34(1)(b), it is the Crown’s position that the act of stabbing was not reasonable as required by s. 34(1)(c) and that self-defence has therefore been disproven.

[166] The three elements of self-defence under s. 34(1) cannot be considered in isolation. The nature of the force or threat of force faced by Mr. Filli must be considered in assessing the reasonableness of the act said to be committed in self-defence. The nature of the act committed and the circumstances are relevant to the determination of whether the acts were for the purpose of self-defence.

[167] In assessing whether the Crown has disproven self-defence beyond a reasonable doubt, I must take into account the nature of the threat that Mr. Filli reasonably believed he faced at the time that he stabbed Mr. Berhane.

[168] The evidence diverges on whether Mr. Filli faced one or three assailants. He clearly faced the threat of force from Mr. Berhane. Mr. Berhane was a stranger to Mr. Filli. I find that Mr. Berhane was intoxicated.

[169] The evidence is clear that Mr. Berhane had been drinking in the hours leading up to the fight. I accept the evidence of the witnesses that Mr. Berhane was not a person who generally became intoxicated. He would generally only drink about two beers and would not be affected by alcohol. Mr. Berhane drank much more than two beers on the night before his death. I do not accept the evidence of his friends who testified that he was unaffected by the alcohol that he consumed. Mr. Berhane was unaccustomed to drinking 7 to 9 drinks. He would have been intoxicated. Mr. Berhane was not someone who was known to fight when he drank. However, he drank much more than usual and it is clear from the evidence that he willingly fought with Mr. Filli. Mr. Berhane initiated the fight with Mr. Filli. He would not be dissuaded from fighting in spite of the efforts of Mr. Abraha.

[170] When the fight began, it was a fight between Mr. Filli and Mr. Berhane. Mr. Filli had also been drinking although he had stopped drinking about two and a half hours before the fight.

[171] There were two stages to the fight. In the first, there was pushing and yelling between Mr. Filli and Mr. Berhane. This first confrontation ended when Mr. Hussein came out of Lumar and when Maarg Abraha led Mr. Berhane away from Mr. Filli.

[172] In making this finding, I reject Mr. Abraha’s evidence on this point. Mr. Abraha’s testimonial denial that there were two stages to the confrontation is inconsistent with his original statement to the police officer at the scene in which he said that he “took [Mr. Berhane] away.” His evidence at trial was that he made an effort to convince Mr. Berhane to leave the area. His trial evidence was convoluted on this point. Although he said that he tried to convince Mr. Berhane to leave, it is unclear when this could have occurred in the sequence he describes. Mr. Abraha had been drinking a great deal on the night of the fight. While he denied that alcohol affected his memory, I find that Mr. Abraha’s ability to observe and recall the details and sequence of events in the fight was affected by his impairment. Considering the evidence as a whole, I find that there was an initial confrontation that was ended by Mr. Hussein coming out and by Mr. Abraha leading Mr. Berhane away.

[173] In reaching this conclusion I rely on the evidence of Mr. Filli which was supported by the evidence of Nur Hussein. I find that Mr. Hussein was a credible witness. Mr. Hussein had not consumed any alcohol. He appeared in his testimony to be trying to be as accurate as possible. He admitted to weaknesses in his ability to observe and recall. He was consistent however in his account of the central events. He was certain that there were two incidents of conflict outside the Lumar Café and that the second incident ended with the stabbing death of Mr. Berhane.

[174] With respect to the first conflict, although Mr. Hussein did not see Mr. Berhane, he did see a conflict between Mr. Filli and others. He saw Mr. Abraha intervening to de-escalate the conflict. He saw Mr. Abraha and a man I infer was Mr. Ademnur walking away with two other men. Mr. Hussein has poor eyesight and although he said that he did not see Mr. Berhane, I find that Mr. Berhane was part of the group that left the first confrontation.

[175] In the first stage of the fight, Mr. Berhane and Mr. Filli yelled at each other and pushed each other. There was no serious physical violence. The situation appeared to be defused when Mr. Hussein came out of the restaurant and when Mr. Abraha led Mr. Berhane away from Mr. Filli.

[176] The second stage of the fight and the involvement of Mr. Abraha and Mr. Ademnur is central to my determination of whether the Crown has disproven self-defence. The first stage of the fight provides a backdrop to the subsequent confrontation.

[177] Mr. Filli’s account at trial of the details of the second part of the fight was in many respects inconsistent with his statement to the police. Mr. Filli failed to tell the police that he was kicked; he failed to tell the police that he was held; he failed to tell them that Mr. Ademnur applied force to him. These inconsistencies between his statement upon arrest and his testimony at trial are troubling.

[178] While I accept Mr. Filli’s evidence that Mr. Abraha intervened in the fight and used force against Mr. Filli, I do not accept that Mr. Abraha and Mr. Ademnur kicked Mr. Filli on the ground.

[179] I have considered the evidence of Mr. Puritch and Mr. Hassan. Mr. Puritch was in the store across the street for the duration of the fight. Mr. Puritch was not present for the fight. Mr. Hassan was not paying attention to the whole of the fight, believing it to have been broken up when the two men intervened. The evidence of these witnesses has some value when considered in light of the totality of the evidence. The fight could not have started until about 3:02 a.m. when Mr. Puritch was in the store. Mr. Filli had run away by 3:05:19 a.m. Mr. Hassan saw the fight begin, saw people intervene and de-escalate the fight and then saw Mr. Berhane injured and falling within a very short period of time.

[180] I find that Mr. Abraha did more than stand passively between the two fighting men, holding out his arms and telling them to calm down. Mr. Abraha’s evidence that he stood passively between Mr. Filli and Mr. Berhane was implausible. Mr. Berhane was a good friend; he was like a brother to Mr. Abraha. Mr. Abraha believed Mr. Filli to be drunk or mentally ill. He had separated himself from Mr. Filli earlier.

[181] In rejecting Mr. Abraha’s evidence that he did nothing more than stand between the two men and try to hold them apart, I have taken into account Mr. Abraha’s conduct in leaving the scene of the fight to change his clothes while his good friend lay dying. His conduct is not adequately explained by his professed shock at seeing blood on his clothes. His conduct is consistent with a person engaged in deliberately hiding his involvement in a violent incident. This conclusion is supported by Mr. Abraha’s statement to the police after the fight: “[i]s this serious? Like blood on my clothes and shit…”. I find that Mr. Abraha changed his clothes because he was concerned about his involvement in a fight that had ended in a stabbing. He was concerned because he had used force against Mr. Filli.

[182] I accept the evidence of Mr. Filli, that Maarg Abraha pushed and head-butted him but I do not accept his evidence that he was kicked on the ground. Mr. Filli was questioned about the details of the fight when he was interviewed by the police. He gave a detailed account of the actions of each of the participants. His account at trial was materially inconsistent with his statement. He did not say that he was kicked. Mr. Hassan saw no fighting on the ground and saw the fight begin and end quickly. This is supported by the evidence that Mr. Puritch saw no fight just before 3:02 a.m., but saw Mr. Filli running away and Mr. Berhane on the ground at about 3:05 a.m. There was insufficient time for Mr. Filli to have been pushed to ground, kicked, held and then pushed into traffic. I reject Mr. Filli’s evidence that he fell to the ground and was kicked by Mr. Abraha and Mr. Ademnur.

[183] Mr. Filli’s evidence that he was kicked by Mr. Abraha and Mr. Ademnur is not supported by any other reliable witness. I do not rely on the evidence of Neil Monck. Mr. Monck testified about circumstances that were demonstrably false: driving a car rather than a tow truck; where he had left his tow truck; his route along the Danforth in his car; and, where he parked when he returned to the scene. While these details are not central to his observations, his certainty on these issues and the level of detail he provided on these issues make it unsafe to rely on any part of his evidence without confirmation by other evidence. The only part of his evidence that is confirmed by other evidence is that there was a fight and there was a green sports car in the area of the fight around the time of the fight.

[184] Mr. Monck told the police that he saw someone get out of the car and go to the fight in the middle of the road. Mr. Filli and all other witnesses put the fight on and near the sidewalk. The only time that participants went to the middle of the road was after the stabbing when Mr. Filli ran out into the road and Mr. Ademnur and Mr. Abraha may have followed him. Mr. Filli did not say that any kicking occurred at that point. Mr. Monck, in his original statement to the police, just said that people were ‘going at it’ and were ‘bundled’. He did not mention that anyone was on the ground or kicked.

[185] As Charron J.A. (as she then was) observed in R. v. Miaponoose: [9] “…much of what one thinks one saw is really perpetual filling-in…It is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence…thus the final recreation of the event in the observer’s mind may be quite different from reality.” I find that Mr. Monck has filled in the gaps in his memory and that while he was trying to be accurate and truthful, his current recollection is wholly unreliable.

[186] I accept that Mr. Abraha pushed, head-butted and held Mr. Filli. Although Mr. Filli said that the head-butt occurred as he got up from the ground and as Mr. Abraha held his shirt, I do not accept that Mr. Abraha head-butted him at this point. Mr. Filli explained the sequence of events at least three times in his testimony before he said that Mr. Abraha head-butted him as he rose from the ground. Mr. Filli told the police in his statement that Mr. Abraha head-butted him, but described it happening when Mr. Abraha was pushing him.

[187] Mr. Filli, in his statement to the police and in his testimony, spoke of being pushed into traffic. He said that he did not know the intentions of the men. He told the police that he feared being kidnapped. I find that Mr. Abraha did push Mr. Filli towards the street. Mr. Abraha was attempting to push Mr. Filli away from Mr. Berhane. While I reject Mr. Abraha’s evidence as to his specific actions in the fight, I accept that his objective in becoming involved in the fight was to prevent its continuation. I find that in his testimony, Mr. Abraha minimized the amount of force that he used to accomplish his purpose.

[188] I find therefore that in the second part of the fight Mr. Filli began fighting with Mr. Berhane. Mr. Berhane punched Mr. Filli and Mr. Filli responded by punching and pushing Mr. Berhane. Mr. Filli could have left. He did not leave, but willingly engaged in the fight. Mr. Filli testified, “I gotta know why I’m getting hit, what’s the reason…I wouldn’t just leave like that.”

[189] Mr. Abraha became involved in the fight after it began. He pushed Mr. Filli and head-butted him. Mr. Filli may have fallen to the ground when he was pushed away from Mr. Berhane.

[190] I find that Mr. Ademnur simply stood by to assist if he was needed. Mr. Filli told the police that Mr. Ademnur “stood here”. Mr. Filli testified that Mr. Ademnur was not doing anything but standing nearby at the point that Mr. Filli stabbed Mr. Berhane.

[191] Mr. Filli did not take out and use his knife until after the pushing and head-butting. He testified that Mr. Abraha held his shirt and he could not leave.

[192] I find that Mr. Filli could have left the fight.

[193] Mr. Filli was not overpowered by Mr. Abraha. Mr. Abraha was smaller than Mr. Filli. Mr. Filli testified that he would have no problem dealing with Mr. Abraha alone. He said, “Maarg by himself can’t do nothing to me.” At the point that Mr. Filli took out his knife and stabbed Mr. Berhane, Mr. Abraha was holding Mr. Filli and attempting to prevent the continuation of the fight between Mr. Filli and Mr. Berhane. At the point that Mr. Filli took out and used his knife, Mr. Ademnur was doing nothing. He was standing nearby.

[194] When Mr. Filli took out his knife, Mr. Berhane was the only person who was continuing to attempt to hit Mr. Filli. Mr. Berhane was not successful in hitting Mr. Filli or harming him because Mr. Abraha was between the two men.

[195] Mr. Filli’s explanation for why he stabbed Mr. Berhane in the context of his description of the fight did not make logical sense. Mr. Berhane had not caused any harm to Mr. Filli. Even if I had accepted Mr. Filli’s version of events, that he was kicked by Mr. Abraha and Mr. Ademnur, Mr. Filli’s explanation for stabbing Mr. Berhane does not make logical sense. Mr. Filli was facing Mr. Abraha and was being held by him. He did not attempt to break free. He did not leave the area. He did not use his knife on Mr. Abraha. Instead he reached around Mr. Abraha and stabbed Mr. Berhane.

[196] Mr. Filli testified that at the time that he stabbed Mr. Berhane, he was scared that he would be kidnapped or killed. He said,

So much thing was going on in my head you know, so I was shocked. I was okay with these three people and now they are fighting with me. So I thought like…too much thing was going on in my mind. I thought they were going to kidnap me. I thought they were going to kill me, I thought they…too much thing was going on at that time.”

[197] When asked about his belief that they would kidnap him, Mr. Filli said, “[o]ne of the things that was going on in my brain, cause they –they were okay with me and then they came and attack me, so too much thing was going on. I was thinking like…what is all this about, you know? I didn’t do nothing wrong. So these guys are up to something dangerous, so I gotta do something before I get killed.”

[198] I find as a fact that Mr. Filli believed that he was in danger from Mr. Berhane. Mr. Filli perceived the situation as gravely dangerous. There were, as he described, “many things” going on in his mind. Eleven days before the fight Mr. Filli told Mahmoud Adderahman that he needed a knife and that he believed he was being hunted. Within a month before that, he told Mr. Yuanes that he needed a gun. Mr. Filli believed that he was vulnerable and at risk before this altercation. During the altercation he believed that he could be kidnapped or killed. I find, based on all of the evidence, that Mr. Filli had a heightened sense that he was in danger before the commencement of this confrontation. This sense of vulnerability and sense that he was in danger was a factor in Mr. Filli’s perception of events and his response to the confrontation and ensuing altercation.

[199] Having considered all of the evidence, I accept Mr. Filli’s evidence that, at the moment that he stabbed Mr. Berhane, he believed that he was in danger and acted for the purpose of defending himself. I accept that he had been assaulted by both Mr. Berhane and Mr. Abraha and that he acted subjectively for the purpose of defending himself from a further attack that he believed was imminent. Mr. Filli stabbed Mr. Berhane because he believed that Mr. Berhane would kill him or kidnap him and that Mr. Berhane would engage the assistance of others to do so. Mr. Filli believed that the danger to him came from Mr. Berhane and for that reason he targeted Mr. Berhane and stabbed him. Mr. Filli’s conduct in the days and weeks leading up to the incident shows that he was concerned about his safety and felt that he was in danger.

[200] I therefore conclude that the Crown has not disproven the elements in ss. 34(1)(a) or (b).

[201] Subsection 34(1)(c) requires that the act committed be reasonable in all the circumstances.

[202] I have concluded that the Crown has proven beyond a reasonable doubt that the force used by Mr. Filli was not reasonable in all the circumstances.

[203] Mr. Filli subjectively believed that he faced the risk of serious harm, killing or kidnapping from Mr. Berhane, but that belief was not objectively reasonable.

[204] Mr. Filli faced the threat of force from Mr. Berhane and from Mr. Abraha as long as he remained engaged in the fight with Mr. Berhane. Neither man was armed with any weapon, Mr. Filli had the option of retreating from the fight at any time following Mr. Berhane’s approach and confrontation. Mr. Filli chose not to retreat. Mr. Filli was pushed forcibly away from Mr. Berhane by Mr. Abraha but continued to try to fight. Mr. Filli was head-butted by Mr. Abraha but continued to try to engage in the fight. He was held by Mr. Abraha to keep him from fighting with Mr. Berhane. Mr. Filli continued to attempt to fight with Mr. Berhane.

[205] I find that he did so because, as he said, he thought that the three men might kidnap or kill him and there were too many things going on in his brain. I find that Mr. Filli’s assessment of the nature and level of threat to him was not objectively reasonable. He faced a possible physical assault from Mr. Berhane. He had no reasonable belief that Mr. Berhane was armed. Mr. Abraha had pushed him forcibly away from the altercation. Mr. Filli was not prevented from retreating. His choice to remain engaged in the fight and to use a weapon against unarmed men was not reasonable given the nature of the force that he faced and the options that he had to avoid that threat of force. I appreciate that the ability to retreat is not determinative of self-defence. It is merely a factor to be considered. However, in the circumstances of this case, I find the opportunity to retreat to be a significant factor in assessing the reasonableness of Mr. Filli’s act of stabbing Mr. Berhane.

[206] In reaching this conclusion, I have taken into account the fact that Mr. Berhane was a stranger to Mr. Filli. Mr. Filli did not know Mr. Berhane’s background or propensity for violence. An unprovoked attack by a stranger is a frightening event and I accept that Mr. Filli was pushed and hit for no reason by Mr. Berhane who was a stranger to him. I have also considered the fact that Mr. Berhane was intoxicated and that his intoxication would have been apparent to Mr. Filli. However, Mr. Abraha and Mr. Ademnur were known to Mr. Filli. Mr. Ademnur did nothing to threaten Mr. Filli. Mr. Abraha pushed and assaulted Mr. Filli, but in a manner directed at causing Mr. Filli to leave the fight.

[207] Mr. Filli misapprehended the situation and his misapprehension was not reasonable. He believed that Mr. Berhane was causing Mr. Abraha and Mr. Ademnur to turn on him. He believed it was necessary to stop Mr. Berhane from kidnapping or killing him by stabbing him with the knife. Mr. Filli did not face a threat of kidnapping or death. He faced a threat of being hit and pushed if he remained in the fight. His response to the force that, objectively, he did face was grossly disproportionate. It was unreasonable.

[208] I therefore find that self-defence has been disproven beyond a reasonable doubt.

Intent for Murder-Applicable Legal Principles

[209] Having concluded that self-defence is not available, the stabbing of Mr. Berhane was an unlawful act and the homicide was culpable. The subsection of the Criminal Code relevant to the intent for murder is s. 229 (a).

[210] The intent in s. 229(a)(i) is straightforward: the accused must be shown to have intended to kill. There are two elements to the mens rea in s. 229(a)(ii): subjective intent to cause bodily harm and subjective knowledge that the bodily harm is of such a nature that it is likely to cause death.

[211] The Supreme Court of Canada addressed the mens rea for murder under s. 229(a)(ii) in R. v. Nygaard, [10] and again in R. v. Cooper. [11] Cory J., writing for a unanimous court in Nygaard, explained the meaning of the intent in s. 229(a)(ii) as follows at pp. 1087-88: “[t]he essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought…”

[212] Intoxication is a relevant consideration in determining the intent of the accused. [12]

Analysis and Conclusion on Intent

[213] Mr. Filli testified that he did not intend to kill Mr. Berhane. He testified that he was shocked to hear that Mr. Berhane had died. His reaction in the police statement provides powerful confirmation of this evidence. Mr. Filli appears genuinely shocked and upset when he accepts that Mr. Berhane has died. Mr. Filli’s evidence that he intended to strike Mr. Berhane on the arm or shoulder is credible. I have considered the size and type of knife used by Mr. Filli. This was not a small pocket knife. It was a weapon that was clearly capable of causing serious harm. I have considered that the wounds to Mr. Berhane were located on his back. One wound was about midway down the back and close to the midline. The location and path of the wounds are consistent with Mr. Filli stabbing Mr. Berhane as he turned to leave the fight. However, the wounds are also consistent with Mr. Berhane turning to protect himself from the knife.

[214] Both Mr. Filli and Mr. Berhane were moving at the time that Mr. Filli stabbed Mr. Berhane. Mr. Filli had to reach past Mr. Abraha to strike Mr. Berhane. Mr. Filli was intoxicated as a result of his consumption of alcohol and marihuana. I have found that Mr. Filli targeted Mr. Berhane in the fight. I am satisfied that Mr. Filli intended to wound Mr. Berhane. Mr. Filli had to have known that by stabbing him he would cause him bodily harm. Mr. Filli stabbed Mr. Berhane twice because he did not believe that his first attempt was successful. While I am satisfied that Mr. Filli intentionally caused bodily harm, I am not satisfied beyond a reasonable doubt that Mr. Filli intended to cause bodily harm of such a ‘grave and serious nature’ that he knew that it was likely to result in Mr. Berhane’s death.

[215] I find that the Crown has not proven that Mr. Filli intended to kill Mr. Berhane or to cause him bodily harm that he knew was likely to kill Mr. Berhane.

VI Conclusions

[216] For these reasons, I find Osama Filli not guilty of the second degree murder of Nahom Berhane, but guilty of manslaughter.

Forestell J.

Released: May 10, 2017

COURT FILE NO.: CR/15/70000/5940000 DATE: 20170510

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

HER MAJESTY THE QUEEN - and - OSAMA FILLI

Reasons for Judgment Forestell J.

Released: May 10, 2017

[1] R. v. Peavoy, [1997] O.J. No. 2788 (C.A.), at paras. 26-27 [2] R. v. Pétel, [1994] 1 S.C.R. 3 at pp. 12-13 [3] R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61 at para. 36 [4] R. v. Reilly, [1984] 2 S.C.R. 396, at p. 405 [5] R. v. Lavallee, [1990] 1 S.C.R. 852 at para. 51 [6] R. v. Cormier, 2017 NBCA 10 at para 40; see also R. v. Bengy 2015 ONCA 397 [7] R. v. Sinclair, 2017 ONCA 38, R. v. Cormier, 2017 NBCA 10 [8] R. v. Levy, 2016 NSCA 45, 337 C.C.C. (3d) 476 at para. 112; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.) [9] (1996), 30 O.R. (3d) 419 at para. 11 [10] R. v. Nygaard, [1989] 2 S.C.R. 1074 [11] R. v. Cooper, [1993] 1 S.C.R. 146 [12] R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523