COURT FILE NO.: CR-18-70000226

DATE: 2019/04/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SPIRO RUSHA

Defendant

Vicki Hentz, for the Crown

J. Randall Barrs, for the Defendant

HEARD: April 1 – 5, 2019

SPIES, J. (Orally)

Introduction

[1] The defendant Spiro Rusha (“Spiro”) admitted, when giving evidence at this trial, that on the night of December 8, 2016, at around 10:30 pm, he stabbed Kadri Okurlu (“Kadri”) and Taylon Harris (“Taylon”) with a knife, while they were sitting in a vehicle that was situated on the driveway between 69 and 85 Gamble Ave. in city of Toronto. As a result, he is charged with four offences including aggravated assault, assault causing bodily harm and assault with a weapon, namely a knife. He re-elected trial by judge alone and pleaded not guilty to all of the charges. It is his position that he should not be found guilty of these offences as he was acting in defence of his mother in accordance with s. 34 of the Criminal Code.

[2] I heard a considerable amount of evidence, from both Crown and Defence witnesses, about the events leading up to the stabbing that involved four young men who were friends or acquaintances at the time. Era Nustafa (“Era”) was the driver of the vehicle where the stabbing took place, but he was not called as a witness by either party.

[3] Both Kadri and Taylon were stabbed in their upper leg. Spiro made several admissions including the fact that Kadri suffered injuries that satisfy the definition of aggravated assault and that Taylon’s injuries satisfy the definition of assault causing bodily harm. Kadri gave evidence in some detail about his injuries and the five surgeries he has had to undergo to deal with those injuries and the permanent impact that the knife wound has had on him physically. He is lucky to be alive but since the repercussions of the knife wound may also prematurely end his career in the armed services, clearly the impact is much more than physical. As for Taylon, he was relatively fortunate and did not suffer permanent injuries from this stabbing.

[4] No weapon was ever recovered but based on the evidence of the complainants and Spiro, I have no doubt that Spiro used a knife to stab each of the complainants. He testified that it was a paring knife with a three-inch blade that he obtained from the kitchen of his apartment.

[5] It is therefore clear that the Crown has proven beyond a reasonable doubt that Spiro committed all four of the offences that he has been charged with. The main issue in this case is therefore whether or not the Crown has proven beyond a reasonable doubt that the defence of self defence is not available to Spiro.

The evidence and PRELIMINARY findings of fact

[6] Before considering the evidence and making my preliminary findings of fact, I will first make some general findings with respect to the credibility and reliability of the various witnesses, although I recognize that assessing the evidence of a witness is not an all or nothing proposition.

[7] None of the witnesses had a criminal record. Taylon admitted that he had a matter in Youth Court when he was 17 that was withdrawn. I did not permit cross-examination on this as it is not relevant and likely confidential. It was also argued that he was the local drug dealer at the material time. Although on the evidence I find that on a few occasions he both sold and gave cocaine to Spiro, there was no evidence to find that he was a local drug dealer, or an addict dealer as submitted by Mr. Barrs. Taylon testified that he had and is still dealing with a cocaine addiction. I have considered this evidence only to the extent it might be relevant to what happened, not with respect to his credibility as a witness.

General Assessment of the Credibility and Reliability of the Witnesses

(a) Kadri

[8] I found Kadri to be a very credible witness for the most part. His evidence remained internally consistent despite a vigorous cross-examination by Mr. Barrs, who had a habit of making comments about answers to questions, making it clear he did not believe what Kadri was saying. I regret not intervening on this point with Kadri but there was no objection from the Crown and the fact Kadri was cross-examined in this aggressive fashion in fact has strengthened my view of his credibility.

[9] On occasion Kadri did push back on questions from Mr. Barrs but it was usually when Mr. Barrs was making suggestions that he clearly found repugnant given what he went through. I did not consider this as suggesting that he was not a fair witness. His answers on cross-examination were responsive to Mr. Barr’s questions and despite the manner of cross-examination he was very firm in what his evidence was.

[10] I considered whether or not Kadri still feels animus toward Spiro. Obviously, there is some and he still does not understand why he was stabbed as in his mind he did nothing to Spiro. I do not find that any animus impacted his evidence in any material way. The only time it came up indirectly was in cross-examination when Kadri was asked if he agreed that in the storage locker where they were hanging out, Taylon gave Spiro a “good beating”. Kadri agreed that that most likely happened but said that for “somebody who almost killed me and I went through five surgeries, I would describe that fight as a decent beating”. He was not asked to clarify this response and I am not sure what he meant. In any event, I do not find that any animus Kadri feels towards Spiro materially coloured his evidence.

[11] In considering the reliability of Kadri’s evidence I considered the fact that he had consumed three tall boys of beer. For reasons that I will come to, I reject the suggestion that he was high on cocaine and shared a bottle of Hennessey. Although Kadri fairly admitted that the beers that he consumed had an impact on him, in my view this quantity of alcohol did not impair his memory of the events and it did not have a material impact on his behaviour at the time. I do believe however, that some of the details where his evidence is at odds with others could be as a result of the severity of his injury and the fact that it was some time before he was able to give a statement to police.

[12] Kadri did not recall it, but I accept that when he was in hospital, he told DC Olver that he did not know who stabbed him. Mr. Barrs argued that Kadri knew who stabbed him but that he did not want to tell police this because this was a neighborhood where you don’t snitch and Kadri knew why he had been stabbed. I do not accept this submission. Kadri had no recollection of speaking to DC Olver, which is not surprising given the condition he was in. It was never suggested to him by Mr. Barrs that he would not have wanted to tell police that it was Spiro who stabbed him. Finally, Kadri reasonably believed that he had done nothing to Spiro and in fact testified that he believed Spiro intended to stab Taylon not him. For reasons I will come to, I accept that evidence.

[13] As I will come to, there are a few places where I do not accept Kadri’s evidence or I have found that he may have forgotten something or been mistaken but overall, I found him to be by far the most reliable and credible witness as to the events that evening.

(b) Taylon

[14] In terms of reliability, Taylon clearly did not have as clear a memory as Kadri of the events that evening, possibly because he could have had as many as five tall boys of beer. Taylon testified that he does not really get drunk on four beers, but he admitted that he was “pretty touched” that night. However, generally when he was taken to his statement to police or evidence at the preliminary inquiry, he readily admitted that he must have forgotten what he gave evidence about before and he adopted as true those earlier statements.

[15] As for Taylon’s credibility, I found that he generally tried to downplay his role in the various fights, sometimes significantly. However, again in cross-examination he generally agreed with the suggestions concerning the extent of the force he used on Spiro. For example, he admitted that given his size, if he punched Spiro a couple of times that he would hurt him and that he was mostly in the wrong because he started the fight. There were certain statements that he made however, when he testified, that he wanted to retract once he appreciated the significance of them. For these reasons and others as I will explain, I did not believe many aspects of Taylon’s evidence and for the most part where it was at odds with the evidence of Kadri I preferred Kadri’s evidence.

(c) Irina Terzieva

[16] Ms. Terzieva is, and was at the material time, the superintendent of 65 Gamble Avenue and I have no hesitation in finding her to be a credible witness. She showed no partiality to any witness and if anything would have favoured Spiro and his mother as they were and are her tenants. The only issue is the reliability of her evidence. She had no memory of a few details. When Ms. Hentz asked her to review her statement to police (in the form of notes taken by police) and her evidence at the preliminary inquiry, in order to refresh her memory, she quickly acknowledged that her memory was much better at that time and that what she said then was true.

[17] Although the issue of whether or not Spiro and his mother came back into the apartment building and went out a second time was something that she had no memory of when she testified at the trial, I have considered that evidence as past recollection recorded because clearly, even after reviewing her statement to police, Ms. Terzieva’s memory was not refreshed. Ms. Terzieva was interviewed by police immediately after the incident, she testified that she told them the truth and she adopted as true what was in her statement. Mr. Barrs raised the fact that Ms. Terzieva did not have an interpreter when she spoke to police, but I agree with her assessment that that was not necessary.

(d) Other Crown Witnesses

[18] The Crown also called two police officers and a tenant from the building; Todor Dvitchev and their credibility was not challenged nor could it be in my view. The only issue with Mr. Dvitchev’s evidence is what exactly did he see and what is the significance of that. I will come back to that.

(e) The Defence Witnesses

[19] Spiro testified along with his mother, Lefteria Queska. In addition, he called his girlfriend at the time, Edna Koci and Jason Mohamed. I found both Mr. Mohamed and Ms. Koci to be credible witnesses. Mr. Mohamed however admitted that he needed glasses for distance which he was not wearing at the time so there are concerns I will come to about the reliability of some of his evidence.

(f) Spiro Rusha

[20] As for Spiro, I accept that he had not been drinking and if he used some cocaine that it did not affect the reliability of his evidence. However, I had a lot of difficulty with the credibility of his evidence. There were serious internal inconsistencies in his evidence. Often in cross-examination, when Ms. Hentz asked questions that clearly revealed a weakness in his evidence in chief, Spiro just gave an answer that he thought would answer that weakness, but that answer was often inconsistent with his earlier evidence. One example is how Spiro flipped on how strong his mother was. When Ms. Hentz challenged his evidence that he tried to stop his mother from running downstairs he said she was strong and able to break away from him. When she suggested that his mother was strong enough to make the car move up and down by pushing on the hood, when it was in park, he said she was not strong enough to pick up a computer. I will review some other examples as I review the evidence.

[21] I also found that Spiro’s evidence about the state of intoxication of Taylon and Kadri escalated as his evidence continued. By the end of his evidence he said that both Taylon and Kadri were drugged with cocaine and alcohol and were “acting like animals”. This was consistent with his exaggeration of what Taylon did to him. As well his evidence in chief about a fight often escalated in cross-examination. Most significantly, for reasons I will explain, I found Spiro’s evidence about the supposed involvement of Kadri as encouraging Taylon’s assaults on him and Kadri’s role in them to be untrue. I believe he gave this evidence in part to explain why he stabbed Kadri as well as Taylon.

[22] I also found that Spiro was able to give a surprising amount of detail that in my view would be impossible to remember if he were being entirely truthful. For example, I would not expect him to be able to remember exactly what Taylon was yelling at him nor the precise number of times Taylon struck him each time they fought each other.

[23] Spiro was not responsive to the many of the Crown’s questions and virtually every answer included a brief statement as to his overall position that his life and his mother’s life was in danger, that he was scared and that he had no intention of hurting anyone. I agree with Ms. Hentz that this demonstrated a propensity to try to avoid answering some difficult questions. As Spiro got angrier in the stand, his comments even included Ms. Hentz although she was being perfectly civil in her manner of questioning.

[24] For these reasons and others as I will explain, I did not believe many aspects of Spiro’s evidence. There were parts however that I did accept and of course in light of R. v. W. (D.),[^1] as I will come to, I considered whether his evidence raised a reasonable doubt on the elements of self defence.

(g) Lefteria Queska

[25] Ms. Queska came across as a reliable and credible witness and she seemed fair and responsive in cross-examination. However, for reasons I will come to, there is evidence she gave that I do not accept.

Possibility of Collusion

[26] Mr. Barrs suggests that Kadri and Taylon talked about what happened and that this impacted the veracity of their evidence. The Crown takes the position that Spiro and his mother concocted their evidence right after Spiro stabbed Kadri and Taylon, while they were waiting for police.

[27] Kadri denied the suggestion that when his friends came to visit him in hospital that they talked about the fighting or Taylon selling cocaine. The only thing he wanted to know was what happened once he went unconscious. Taylon testified that he gave a statement to police the same night. He also testified that he and Kadri had no discussion about what happened when he visited Kadri at the hospital. Although both Kadri and Taylon gave consistent evidence on how the first fight between Taylon and Spiro started, in many other respects their evidence was at odds with one another. It seemed the opposite of evidence that had been discussed and rehearsed.

[28] Furthermore, I note that any concern about collusion is mitigated to a large extent by the fact that Taylon and Era could not have discussed the events with Kadri at the scene as he was in and out of unconsciousness and had been rushed to hospital for emergency surgery.

[29] As for Spiro and his mother, Ms. Queska’s evidence was completely consistent with her son’s. I appreciate that could be a hallmark of her being truthful but given my concerns about Spiro’s evidence, I find it may be that it is as a result of their coming up together with a unified position. I have considered this possibility in making my preliminary findings of fact.

Chronology of Events and Preliminary Findings of Fact

[30] In terms of the events leading up the brief period of time before the stabbings, I will not review the evidence in detail as these events are not the subject matter of the charges. This evidence is primarily important to the extent that it informs my assessment of what Spiro reasonably believed when he decided to stab both complainants as well as my consideration of the credibility and reliability of the evidence of the witnesses.

[31] The chronology of events, as I have found it, is as follows.

[32] Although Taylon suggested it was earlier, I find that Kadri and Taylon met up on December 8, 2016 at around 7 - 7:30 pm, as that time fits with the timing of the events that followed. Kadri drove them to the beer store in his father’s car. Kadri had written an exam that day and wanted to relax. He bought three tall boy beers and Taylon bought four to five tall boys. Mr. Barrs suggested that Kadri would have bought the same amount as Taylon, but I see no reason why that would be the case and this was never put to him. The plan was to hook up with Era at his place at 80 Gowan Avenue to consume the beer in the basement of his building where cars are parked and there is a storage area.

[33] Taylon testified that he and Kadri went to McDonalds to get some food after the beer store. Taylon said they saw Spiro there and he invited Spiro to join them. Spiro admitted that he saw Kadri and Taylon at the McDonalds, but he was very unsure of the chronology, which I would usually attribute to a lack of memory. In this case however it has some importance. Spiro first testified that he met up with a friend whom he had known since childhood, who was two years older than him, who had bought a 26-ounce bottle of Hennessey for him that he wanted for a birthday celebration he was planning with his girlfriend on the next day at a hotel. According to Spiro, Taylon asked him to bring the Hennessey to show it to him at the McDonalds and so he went to meet them at McDonalds. This is important given the defence theory that during the third altercation between Taylon and Spiro, Taylon robbed Spiro of the Hennessey as it suggests Taylon had an interest in the Hennessey bottle. However, Spiro then testified that he saw Taylon and Kadri by chance at the McDonalds on Pape Avenue and that he got the bottle of Hennessey after leaving McDonalds. In any event there is no dispute that Spiro saw Taylon and Kadri at McDonalds and at that time Taylon told him to come to chill with them later.

[34] I do not accept the suggestion that was put to Taylon and Kadri, which was denied, that Taylon invited Spiro to join them so that Taylon could sell cocaine to Spiro. In fact, as I will come to, that was not Spiro’s evidence. Furthermore, for reasons I will come to, I have found it more likely that Spiro was the one who had cocaine in his possession.

[35] Coming back to the chronology, after leaving McDonalds, Kadri and Taylon left Kadri’s car at his place and walked to Era’s place at 80 Gowan Avenue. They went to the basement of the building and into Era’s parents’ storage locker to drink their beers. This was a cramped storage area where they would hang out, particularly as this was early December and it was cold outside.

[36] There is no dispute that shortly afterwards Spiro arrived. According to Spiro about 30 minutes after seeing Taylon at McDonalds he called him and then went to Era’s place. Taylon put Spiro’s arrival at about 30 minutes after they arrived at Era’s place. There is also no dispute that Spiro had an unopened 26-ounce bottle of Hennessey in a box with him and that no one drank any of this bottle while in this storage area. Significantly there is no evidence that anyone asked Spiro to open the bottle or any evidence that anyone attempted to take it from him while they were in the storage area.

[37] Kadri and Taylon had at least two beers in the storage area. Kadri said that he was “buzzed” but he denied that he was drunk. Taylon said he was “a little tipsy”. Era and Spiro did not drink. Kadri testified that Spiro smoked a small joint while in the storage locker. Spiro denied this. Whether or not he did is not material to my decision.

[38] As for cocaine – both Kadri and Taylon testified that Spiro came with some cocaine that he pulled out after he arrived and that the fight between him and Taylon began when he refused to give a line to Taylon. According to Kadri, when Spiro refused to give Taylon some, Taylon told him that he had always given Spiro some when he did not have any and that Spiro responded, laughing that he shouldn’t have. Taylon testified that he did not have any cocaine and when he asked Spiro for some of his Spiro said, laughing to his face, that “at least I never have to pay”. Taylon admitted this made him mad because he felt that he was being taken advantage of by a friend. Later in his evidence Taylon stated that he believed Spiro was saving the cocaine for his birthday the following day. This may tie into the evidence of Spiro that he and his girlfriend were going to have a party at a hotel the following day.

[39] Spiro denied having any cocaine in his possession. He testified that he went to the storage locker just to say “hi” and that he was probably going to ask Taylon for “a half” for his birthday party the next day, although he then said that he made a mistake by using the word “party” and that he was just going to be with his girlfriend. I don’t know why he did not want to use the word “party” as Ms. Koci testified that she believed that Spiro knew about what was supposed to be a surprise party, but I did not consider this important. However, this evidence suggests that Spiro was going to ask Taylon for the cocaine when they met in the storage locker, but he did not suggest that he expected Taylon to give him that cocaine in the storage locker. Furthermore, Spiro also testified that he already had asked Taylon for some cocaine and that Taylon had told him that he had it if he wanted it. Taylon denied the suggestion that Spiro had asked him for cocaine and Spiro did not testify that this purchase was discussed in the storage locker. In fact, Spiro testified that it was Taylon’s cocaine and he asked for some because he felt the urge to have some, seeing Taylon and Kadri doing lines. Spiro said that Taylon told him to “fuck off” and that he would have to pay. Taylon denied this suggestion. In any event Spiro testified that when Taylon refused to give him some cocaine he thought that was “an asshole move” and that under his breath he said something like “you asshole” or “you bitch”. That is when Taylon went crazy.

[40] Spiro admitted that he had used cocaine before; initially he said two to three times before, but he then upped this to five times. He said that he used to grab half a gram from Taylon and that he paid for it. He then admitted however that sometimes Taylon would give him some for free. Spiro then said that he had paid Taylon for cocaine four times before at least and that he got it for free one to two times from Taylon. Spiro did not describe Taylon as a dealer. This evidence provides some support for Kadri and Taylon’s version of events.

[41] Kadri testified that he had never snorted lines of cocaine before but this time he “tested a little piece” of the cocaine by putting some to his lips. It gave him a burning sensation. It seems he was curious about it but there is no doubt in my mind that touching some to his lips would not have an impact on him. He was in the armed services and testified that had Taylon been selling cocaine or if he had known that Taylon had cocaine on him that he would not have let him into the car. I accept that evidence. Although that does not rule out the possibility that Taylon was in possession of a small amount of cocaine that Kadri was not aware of, in my view this is one of the areas where Spiro’s evidence escalated as he continued giving it. I do not find that either Kadri or Taylon were high on cocaine at the material times as suggested by Spiro

[42] Considering all of the evidence, in my view it is most likely that Spiro had some cocaine in his possession when he went to the storage locker. He already had a bottle of Hennessey and given the party was to be the next day it is most likely that he had already picked up the cocaine from someone. I appreciate Ms. Koci had never seen him use cocaine but he testified that she would not judge him about this.

[43] I do not draw any adverse inference against Spiro because he had used cocaine in the past but I do believe he gave this evidence so that he was not the one with cocaine and to support his position that both Taylon and Kadri were doing lines of cocaine in the storage locker and that they were high on cocaine and acting like “animals”.

[44] I do find however that if either Taylon or Spiro consumed some cocaine in the storage locker it would not have been enough to make an impact on the events that followed.

First Fight – Storage Locker

[45] All of the witnesses agree that whatever the cause, Taylon got angry with Spiro and that there were two physical altercations between Taylon and Spiro in the storage locker.

[46] In chief Spiro testified that Taylon got angry when he called him an “asshole” and that Taylon grabbed him and pulled him back and punched him in the face three times. He couldn’t get free until Kadri broke it up. In cross-examination he stated that he was being pummeled and that maybe he tried to push off Taylon’s chest. Taylon testified that he grabbed Spiro by his shirt and put him up against the wall. He did not recall who swung first but admitted that he hit Spiro a couple of times and testified that Spiro hit him in the chin. After 20-30 seconds Kadri broke them up. According to Taylon, Spiro was then telling him that he was going to “call people on you,” which he took as a threat.

[47] Mr. Barrs refused to call this and the other altercations “fights” even though Spiro often referred to them that way in his evidence. Mr. Barrs preferred to call them assaults. I agree that it what they were from a legal perspective. However, although it is not clear how many times Taylon hit Spiro each time, I do not accept Spiro’s evidence that he just protected his face and did not strike back. Although he was seriously overpowered by Taylon given their size difference, Spiro had his arms free and I accept the evidence of Kadri and Taylon that he struck back. Clearly Taylon was able to overpower him but in the next two fights he was able to get away from Taylon and as Kadri stated, he was agile. Spiro was not as helpless as he suggested in his evidence. That said, Taylon assaulted him without cause and given the size difference he could have caused significantly more damage to Spiro than he did.

[48] Both Spiro and Taylon agree that Kadri intervened and broke up this first fight by going between Taylon and Spiro and pushing their chests apart. Kadri testified that he followed this with what he described as a “mini lecture,” chastising them for what they were doing as they were friends. This evidence was not challenged. This is important. It is one of the reasons that I accept the evidence of Kadri and Taylon that Kadri was not an instigator or someone encouraging Taylon. In fact at different points during the night he was the person who intervened to stop Taylon from hitting Spiro further. Kadri testified that he knew it would not be a fair fight and that Taylon would dominate and that he stopped Taylon from “seriously hurting this little kid”.

Second Fight – Storage Locker

[49] Although Taylon did not remember this until his memory was refreshed, I find that there was a second fight in the storage locker as Kadri and Spiro testified to. I find that after the first fight between Taylon and Spiro, that they were all mad and/or upset and that they decided to leave the storage locker. As they were leaving another fight broke out between Taylon and Spiro.

[50] Spiro testified that as “we” were fighting, he slipped and was on the floor on his knees covering his face but that he picked himself up and grabbed the Hennessey bottle and he was able to get away and run out of the garage. He testified that as he ran, he told Taylon that he was going to call police and to leave him alone. This is one of the other factual disputes-whether Spiro threatened to call police or just “people” although I don’t give it the significance that Mr. Barrs did. There is no dispute that Kadri did not intervene this time. He said that he could not do anything this time because it was cramped. This evidence was not challenged - Spiro also said that it was cramped.

Exit from the Garage

[51] There is no dispute that Spiro left the garage on his own with his bottle of Hennessey. There is a dispute whether or not he walked away or was running. According to Kadri he walked and there was no reason for him to run as they were all walking out. Taylon did not remember how he left. I am prepared to accept Spiro’s evidence on this point that he ran given that he had had two fights with Taylon by this point.

[52] There is no dispute that Kadri, Taylon and Era got into Era’s father’s car and drove out of the garage. Era was driving, Kadri was in the front passenger seat and Taylon was seated behind him. There is a dispute over their purpose-were they going after Spiro?

[53] The evidence of Kadri was that their plan was to go into Era’s dad’s vehicle and drive somewhere and stay in it and drink. There was no discussion where they were going as they left the garage. Kadri testified that they did not leave the garage immediately and did not know which way Spiro went. He denied that suggestion that their intention was to go after Spiro. Taylon testified that he was still angry and that he wanted to talk to Spiro. He then testified that “we got into the car to look for him”. However, he added that he did not remember if his reason for getting in the car was discussed with Kadri and Era.

[54] Mr. Barrs picked up on the fact that Taylon testified that “we” got into the car to look for Spiro, but I do not attribute significance to his choice of words. I find that Taylon may have wanted to go after Spiro, but I accept that this was not something discussed or agreed to with Kadri and Era. Furthermore, given the undisputed fact that Kadri broke up the fight in the storage locker, in my view he would never have agreed to do this, and it was far more likely that he wanted nothing more to do with Spiro that night. Furthermore, there was no dispute between him and Spiro and so he had no reason to go after Spiro. I accept his evidence that he was upset by what had happened as he only wanted to relax after an exam and that t was Taylon who seemed obsessed about going after Spiro. In my view Kadri was looking for ways to cool Taylon down so that would not happen so that he could get on with his evening.

[55] Spiro testified that Taylon and the others were coming behind him as he left but he was running and they “had” to get into Era’s car, implying that they could not catch him as a result, at least in the garage. When I asked about his use of the word “had” Spiro fairly acknowledged that this was not the case, but he denied that if Taylon tried to run after him that he would have caught him. In my view however, that is clearly not correct. If the intent of Taylon or any of the others was to “hunt” down Spiro as he said countless times in his evidence, it would have been easy for them to catch him at this point as he admitted that he was in a panic and scared and that he was not able to immediately see which exit he should go to. Since Taylon did not catch Spiro in the garage I believe that as Kadri said, they did not get into Era’s car right away and that Spiro left the garage before they did.

Fight on Gowan Avenue

[56] In any event regardless of their purpose, when Era exited the garage and made a left onto Gowan Avenue, Kadri was in the front passenger seat and Taylon was in the back-passenger seat. I accept Kadri’s evidence that they did not know which way Spiro had gone. It was dark and he was wearing a black Canada Goose jacket. Era turned left and as they were driving east, they saw Spiro on the sidewalk in front of 130 Gowan Ave. Whether Spiro walked or ran there, clearly, he was some distance from them, which is also consistent with my finding that they were not “hunting” him as he testified to. Taylon asked Era to stop the car so he could get out. Era complied. Taylon testified that he told them that he wanted to talk to Spiro but in cross-examination he admitted that his purpose was to assault Spiro again. That was clearly the case given the evidence about what happened and was a clear example of how Taylon was trying to minimize the violence he used on Spiro.

[57] Spiro testified that as he was running on Gowan Avenue towards Pape Avenue he felt dizzy and nauseous. He was carrying the Hennessey bottle in one hand like a football. He looked back and saw a dark vehicle pulling up to him at high speed. He denied that all he could see was the headlights and testified that he could see Era and that when the car stopped both Kadri and Taylon jumped out of the car.

[58] There is no dispute that when Taylon got out of the car he assaulted Spiro a third time. Kadri testified that Taylon ran to Spiro and that he was yelling and pushing Spiro and that the Hennessey bottle fell to the ground and Taylon picked it up. Kadri then saw Spiro pull a knife and that is when he got out and he- Kadri- grabbed Spiro’s hand and shook it and the knife fell to the ground. That evidence is supported by the evidence of Spiro except that he and Taylon have Kadri getting out of the car with Taylon.

[59] In chief Spiro testified that as Taylon was running towards him he reached into his pocket and pulled out a Swiss Army multi tool knife but that it fell to the ground as Taylon was “rag dolling” him and punching him five to six times in his jaw. Neither Taylon nor Spiro could describe the knife although they denied it was as small as a Swiss Army knife. In any event it seems that both Taylon and Kadri saw a blade. According to Spiro at that point Taylon grabbed the bottle and said that he was taking it and asked Spiro what he was going to do. Spiro also testified that he was yelling for help and that Taylon was yelling. Spiro testified that he told Taylon that he was going to call the police and Taylon called him a rat. Spiro also testified that he heard yelling coming from people on a balcony at 130 Gowan Avenue. He had not given that evidence before, but I accept that was possible. Spiro did not explain how he got away from Taylon in chief. In cross he testified that Taylon stopped hitting him because he was going into his pocket to get his knife and that he had it in his hand and Kadri then body checked him, and it fell.

[60] According to Spiro, Kadri did not try to intervene this time and he testified that he thought Kadri was instigating the whole thing. The only evidence he gave to support this was that he first heard Kadri say “he’s there” and that then he saw the headlights of the car. I do not believe this evidence. At this point there is no reason for any of the windows to be down in Era’s car. It was a December night and Kadri said it was raining ice. Furthermore, given I have already found that Kadri had no interest in going after Spiro I do not believe he would have said such a thing. Again, he was the one who intervened to disarm Spiro and Spiro agrees with this.

[61] Both Taylon and Spiro testified that when Taylon got out of the car that Kadri did as well although Taylon was unsure about this. Kadri denied this and testified that he stayed in the car and that he could see from the car that Taylon was pushing Spiro and he saw them fighting on top of some garbage bags. He saw that the Hennessey bottle dropped and Taylon grabbed it. According to Kadri at this point Spiro pulled out a knife and that is when he got out of the car and he grabbed Spiro’s hand and shook it and the knife fell to the ground. As events unfolded quickly, I do not think it is an important issue as to exactly when Kadri got out of the car. I expect that he did get out sooner than he remembers since there was no delay in his disarming Spiro. What is important is that there is no evidence that Kadri was involved physically in the fight that followed and in fact like before, he deescalated it by disarming Spiro. There is no evidence that after he did this that Taylon continued to assault Spiro.

[62] There is an issue about whether or not Taylon kept the Hennessey bottle. It is the position of the defence that Taylon kept the bottle and that he and the others drank it later in the car. Taylon said that he thought he gave the bottle back to Spiro who then ran away towards Pape Avenue. He denied keeping the Hennessey bottle and drinking it at the park. Kadri also testified that Spiro picked up the bottle and his knife and started walking east on Gowan while Taylon was yelling at him. The evidence of Kadri that was not challenged was that Era was not drinking in the storage locker. There was no suggestion that Era was drinking at the school. Even if he was, had the three of them consumed a 26-ounce bottle of cognac on top of the beers that Kadri and Taylon consumed they would have been far more intoxicated, and I do not expect they would have had much memory of the events.

[63] It seems that once Spiro produced the knife Taylon was prepared to retreat and even though the knife had fallen to the ground Spiro was able to get away. Furthermore, there are photos of the inside of Era’s vehicle that were taken by police and there is no evidence of a Hennessey bottle or the box it was in. There is a can of beer in the console, but I heard no evidence about that. Mr. Barrs submitted that they would have tossed the bottle and box because it was stolen but that was never put to Kadri or Taylon. Furthermore, had Kadri and Taylon polished off the Hennessey bottle I would not have expected them to have much if any recollection of what happened. At least with respect to Kadri, I found his evidence to be internally consistent and much of it was corroborated by the evidence of Spiro.

[64] Considering all of the evidence I find it likely that Spiro recovered his bottle of Hennessey just as he had before and that he likely recovered his Swiss Army knife and that he then ran off going east on Gowan Avenue.

[65] Taylon said that once he was back in the car, he asked Era to take him home as he realized that he was a “little bit too much under the influence”. However, Kadri testified that after this incident he was furious with Taylon and that he wanted to calm him down and so they decided to go to the William Burgess School, one block north of Pape Avenue and Torrens Avenue on Woodville Avenue. Taylon also stated that he just wanted to go to the school to have a cigarette and he denied wanted to go after Spiro. I find then that they did go to the school after this altercation.

Did Era almost run Spiro over at the corner of Gowan Avenue and Pape Avenue?

[66] Spiro testified that when he looked back, Taylon and Kadri were back in the car and it was speeding towards him. His plan was to run across Pape Avenue and into the McDonalds on Pape Avenue just north of Cosburn Avenue. At this point Pape Avenue is two lanes wide; one lane in each direction. Spiro said that he looked both ways and then started running across Pape Avenue. This was an example of a detail I do not believe Spiro would remember. He testified that the car pulled up fast and turned left but I am not sure what would have drawn his attention to it as he said he did not hear or see the car until he was in the middle of the road and he saw the headlights coming at him. Later he said that he heard the car at the corner and saw the car go through the stop sign and that he was already midway across Pape Avenue and that when it sped up his “life flashed before my eyes”. This is an example of an internal inconsistency that caused me concern with Spiro’s credibility. Spiro testified that the car “drifted” to the point where it was one to two feet away from him. Later in cross-examination he said it was less than one foot away and that he “dolphin jumped” to get out of the way and “slid all over the snow” and in the course of that twisted his ankle. He thought that they were trying to kill him. Spiro testified that he heard both Taylon and Kadri yelling at him that he was a rat etc. and that they were laughing as the car continued down the street. He could see that they were both on the passenger side of the car and testified that at least one of the windows was down.

[67] Mr. Mohamed was outside smoking at the East York Bar and Grill that was on the east side of Pape Avenue south of Cosburn Avenue. From his vantage point he believed that Spiro was actually hit by the car as he was crossing the street. However, he wore glasses for distance at the time which he was not wearing and there is no dispute that the car did not make contact with Spiro. Mr. Mohamed testified that he saw Spiro fall down and get up and continue walking up the street towards him. He did not think Spiro was limping but again he did not have his glasses on. Mr. Mohamed asked Spiro if he wanted an ambulance and he “pushed him” on the suggestion that they should call police. There is no dispute that Spiro said no. Mr. Mohamed testified that it did not look like he wanted to hang around. Spiro testified that when Mr. Mohamed asked if he needed help, he told him that he just wanted to go home.

[68] Kadri testified that as they got to the corner of Gowan Avenue and Pape Avenue that Spiro was on the west side of Pape Avenue. I accept that there is a stop sign at the corner for cars exiting Gowan Avenue. Taylon lowered his window and was yelling at Spiro. Kadri described this as another opportunity for Taylon to “pick” on Spiro. Kadri was telling Era to go. He testified that Taylon was out of control and he wanted to cool him down. Kadri testified that Era was confused because it was “mayhem” in the car, with all the yelling back and forth. Kadri denied the suggestion that Era tried to drive Spiro over or that Taylon was yelling to Era to run Spiro down. He did say that it was raining ice that night and that it “could have been a misunderstanding”. Kadri did not see Spiro on the roadway. I find that hard to believe but it is possible given that Spiro testified that he did a dolphin dive and that the car kept going and of course it was dark.

[69] Taylon testified that when they got to the corner Spiro was in the middle of the road. He was not sure if Era was trying to hurt Spiro or if the car slid out but they came as close as ten feet from Spiro. He thought he saw that Spiro had to jump out of the way, but he denied that they were laughing about it.

[70] I find that when Era turned the corner onto Pape Avenue that his car “drifted” as Spiro said-in other words I find it slid as the roads were slippery and that Spiro jumped out of the way. Furthermore, there is no evidence that Taylon made any further efforts to interact with Spiro along Pape Avenue even though as I will come to, Spiro walked toward the bar and then to the McDonalds and then to a gas station. I do not find that Era was deliberately trying to run Spiro down as he had no beef with Spiro. What is important to this event is whether or not Spiro reasonably believed that Era was trying to kill him. I do not believe he seriously believed that given his conduct that followed but I do accept that he was shaken by the assaults by Taylon and then this near miss and that he was afraid of Taylon.

Events at William Burgess School

[71] There is no dispute that after the incident Era, Kadri and Taylon went to William Burgess School Park. Both Kadri and Taylon testified that they were at the school for 10 to 15 minutes. Kadri said that he thought it was enough time for Spiro to get to his home at 65 Gamble. He did not want to hang out with Taylon any more as he was furious with him and so he told Taylon that they would drop him at his home which was at 85 Gamble. His plan was to continue hanging out with Era thereafter.

[72] Kadri testified that he had perhaps half of the beer he had with him while they were at the school-if he had only three tallboys in total then this means he had a half tall boy. He said that he was “maybe one up from buzzed”. He denied consuming any drugs.

[73] There is an issue about the route Era took when leaving the school as Mr. Barrs argued that again that they deliberately went in a direction that increased their chances of seeing Spiro. When Spiro testified, he repeatedly stated that Taylon, Kadri and Era were “hunting” him down but if that was their intent in my view it is unlikely that they would have gone to the school parking lot for so long or at all. Mr. Barrs argued that they got out of the area because Era had almost run Spiro over but they would not have realized there was a witness to this at the time. It was never suggested to Taylon or Kadri that there was any discussion in the car that they should stop to see if Spiro was hurt and given the evidence of Spiro that he heard laughter, I do not believe that they would have been concerned about what had happened if they were truly intent on hunting Spiro down.

[74] On this issue I prefer Kadri’s evidence. He denied this suggestion and testified that although he thought Spiro would be home, there was a greater chance of running into him on Pape Avenue and so he did not want them to leave by going south on Pape Avenue. Instead they went along Woodville Avenue to Broadview Avenue and then left on Gamble. This did mean that they would pass by Spiro’s building before getting to Taylon’s but at no time were they on Pape Avenue in the area where they last saw Spiro.

[75] For these reasons I do not find that when Era, Taylon and Kadri left the school that there was any intention of hunting Spiro down. I do not believe that Spiro thought this at the time either given his behaviour.

Spiro’s Conduct in making his way Home

[76] After his conversation with Mr. Mohamed, Spiro continued on walking to the McDonalds although he also said that he was “more than scared” for his life. He felt the McDonalds was the safest spot as they would not come inside there. He said that he wanted to go inside and catch his breath, calm himself down and “be safe”. When Spiro got to the McDonalds, he asked to borrow a phone and he called his girlfriend. She was nearby. He did not call his mother even though they had two vehicles at home, because he did not want to stress her out. He was going to tell her what happened once he got home. I found Spiro’s evidence that he was scared for his life and just wanted his mother hard to believe in light of his decision to wait to tell his mother.

[77] For some reason that Spiro did not explain, he told his girlfriend to meet him at a gas station that was just north of Cosburn Avenue on Pape Avenue, which meant that he had to leave the safety of the McDonalds. According to Mr. Mohamed, McDonalds was 30 metres away but there is a street to cross. Furthermore, Spiro testified that he did not feel safe outside and so he made sure there were no cars and ran to the gas station although his ankle was hurting. This decision also seemed odd if Spiro was as scared as he wanted me to believe.

[78] In any event Ms. Koci testified that when she saw Spiro, he was frantic and that it looked like he had been really beaten up. Her girlfriend, who was with her, bought a big bag of ice – the type used to fill a cooler-which Spiro testified he put to his face. Spiro did not remember that Ms. Koci’s friend was also in the car and that she was the one who bought the ice. I considered whether that impacted the reliability of his evidence, but I agree with Mr. Barrs that in the scheme of things this would not have been memorable. However, Spiro testified that after this point “everything was on and off from there”.

[79] Spiro testified that his girlfriend drove him home and dropped him off in front of his building. Ms. Koci said that she offered to go upstairs with Spiro to his apartment but that he said no. She did not wait for him to go inside his building after dropping him off. Spiro testified that his girlfriend told him to go upstairs to his apartment, but he did not do so even though he testified that he was scared because Taylon and Kadri knew where he lived.

[80] Spiro testified that he just wanted a cigarette as he was so stressed. He leaned against the building, had a cigarette and was holding the bag of ice to his face as he watched his girlfriend drive away. He said that he stopped in front of the building to get his “mind straight” so that he knew what to tell his mom. In cross examination he said that he had “so much anxiety, panic” because they were “hunting me down” and that he was not thinking straight and just wanted to go to his mom. When it was pointed out that he stayed outside his building even though he said he was scared because they knew where he lived and that Taylon lived close by, Spiro said that he did not think that they would come to his house and that he did not think they were that crazy. This is an example of a flip flop in his evidence to address weaknesses in his evidence, put to him by the Crown. Furthermore, I found his decision to refuse to have his girlfriend go up with him and instead stay outside to be odd if indeed he was as scared as he told me.

[81] Mr. Dvitchev was a tenant in an apartment below Spiro’s apartment and he knew Spiro and his mother. He testified that on the night in question he had been at a friend’s house but not drinking as he was driving. As he drove onto the driveway between 51 and 65 Gamble, he saw Spiro at the front of the building just outside the front doors. He said that Spiro looked calm and he did not recall that he was holding anything. He just assumed that he was waiting for his mother to drop the keys down from the balcony. He recalled that he just nodded at Spiro as he drove past him to the back of the building to park his car. Spiro did not recall this, but he would have no real reason too. I find that this occurred before Era drove his car onto the driveway.

[82] I accept the evidence of Mr. Dvitchev. Although I recognize that he may not have noticed that Spiro was stressed out, I find it hard to believe that he would have missed Spiro holding a cooler sized bag of ice to his face. Although it is a minor point, I do not accept that Spiro still had the ice.

Events when Era stopped the car between 51 and 65 Gamble Avenue

[83] While they were driving on Gamble there is no dispute that Taylon saw Spiro again and saw that he was standing in front of the entrance to 65 Gamble. I note that Taylon had Spiro walking on the sidewalk on Gamble but that is clearly incorrect. I attribute that mistake to the unreliability of his evidence. There is no dispute that Era stopped the vehicle at Taylon’s request on the driveway between 51 and 65 Gamble and that they were facing south. Kadri testified that he was not expecting to see Spiro until Taylon asked Era to stop the car.

[84] Spiro testified that as he watched his girlfriend drive away, he was enjoying his cigarette. Just as she was about to turn left (he did not say onto which street, but it had to be Logan Avenue or Broadview Avenue) he saw a car approaching really fast and once it got to 45/51 Gamble Avenue, he realized it was Era’s car. As it got closer, he saw Era pull up on the driveway between 51 and 65 Gamble Avenue. In cross-examination he testified that when he saw Taylon and Kadri hop out of the car he dropped everything and tried to run inside his building. It is not clear to me why he waited to get into the building until he saw them get out of the car. In any event Spiro testified that he got into the first door of the building, which is never locked but that he needed his keys to open the inside door and he fumbled with the keys.

[85] According to Spiro, both Taylon and Kadri were out of the car and yelling “Spiro you fucking rat- we’re going to kill you”. It was loud and he could hear this echo. Spiro testified that Taylon grabbed the inside door and then grabbed him by the neck and shoulders and was rag dolling him. Taylon was punching him in the face and all he could do was use his hands to cover his face. He said that he was hit five times and started dragging himself closer to the superintendent’s door to get her attention. He was also yelling at Taylon to stop and leave him alone. The elevator door was open. Taylon was still hitting him and kicking him in the ribs and Spiro said that at one point he was on the floor. He saw Kadri at one point outside between the entrance doors yelling. He did not allege that Kadri was involved in the assault.

[86] Taylon testified that he was still feeling threatened that the next day someone would try to hurt him and so he got out of the car to confront Spiro. According to Taylon, Spiro was holding the inside door so he could not get in and so he started yelling “Spiro” repeatedly. He denied calling him a rat and threatening to kill him. According to Taylon, Spiro then actually let him into the lobby. When asked by Mr. Barrs why he would do that if Spiro had a knife, he said that it was “to do some diplomacy I guess”. I do not accept that response as I believe that however he got in, Taylon was intent on assaulting Spiro yet again.

[87] Kadri testified that since Taylon was not listening to his various lectures he decided not to intervene this time. He saw Spiro run into the building and the lobby door closed behind him. Kadri said that Taylon was then yelling Spiro’s name. Kadri denied that Taylon was yelling that he was going to kill Spiro. Kadri genuinely seemed to think that the inside door was locked and that after Taylon’s yelling Spiro let him in. He was observing these events from the car and he readily admitted that he did not know how Taylon got into the building. His belief appears to have been based on the fact that getting in was the only reason Taylon would have had to be yelling Spiro’s name. I agree with Mr. Barrs that it makes little sense that Spiro would have let Taylon in, but as I will come to, Ms. Queska also testified that she heard someone yelling “get out”.

[88] In any event there is no dispute that Taylon got into the lobby where Spiro was. Taylon testified that he then asked Spiro if he was going to call people on him and Spiro said “no”. Despite this response, Taylon threw a swing and a kick at Spiro, which he claimed did not make any contact, and Spiro got into the elevator. He admitted that Spiro did not hit him and that Spiro “was running away from me to his house”. Taylon testified that a female, whom he believed was the superintendent, came out and said that she was calling the police, at which point he ran back to Era’s car.

[89] In cross-examination Taylon was taken to his evidence at the preliminary inquiry where he admitted to punching Spiro in the face twice but not kicking him. He readily adopted this evidence and admitted that he must have forgotten he threw a kick at Spiro once he got into the elevator. He denied that Spiro was lying on the floor of the elevator. Taylon testified that the superintendent opened her door after the elevator door closed and told him that she was calling the cops. That is when he ran. Spiro however testified that he was by the elevator and the superintendent said she was calling the police and then she repeated this. She then asked Spiro if he was OK. He just wanted to go home and get some sleep as he had “had enough of this”. Spiro’s evidence is supported by the superintendent’s evidence.

[90] Ms. Terzieva, the superintendent was home at this time and still up. Her apartment is next to the elevator on the east side and she heard noise coming from the lobby. She first looked out the peep hole on her door and she saw one guy who must have been Taylon. As she opened the door and got out, she asked what was going on. She did not remember saying she would call police but given her other evidence and the evidence of Taylon and Spiro, I find that she did say that. In any event as she opened the door Taylon very quickly left the building. It was not suggested to her that she chased Taylon and she testified that she did not think that she went outside. Ms. Terzieva testified that she then saw Spiro standing in the elevator. His face was red as if someone had punched him. He was upset and could not answer her questions normally. He went up in the elevator. Spiro testified that he did not feel safe and did not know if they would come to his apartment door.

[91] Ms. Queska testified that she was in her kitchen with the balcony door open because that is where the cat litter is and that she heard someone yelling “Spiro-pussy-get out, I’m going to kill you”. In cross-examination she added that she heard the word “rat”. She ran out onto her balcony and could hear her son but could not see anything. In cross-examination she said that she saw a car by the side of the building, but she did not see anyone around it and that it did not catch her attention at the time. She did not see Era smoking a cigarette outside the car and did not think that he did, although I note that this is part of the defence theory.

[92] Ms. Queska testified that she concluded that something was going on and waited a few minutes and then heard the elevator coming. She grabbed her keys and when she opened her apartment door, she saw her son and saw that he had been beaten up. Ms. Queska testified that she lost her mind. She wanted to know who did this to him but denied that she was angry with whomever did it. I do not accept that evidence as she must have been angry given what she believed happened to her son. In any event Ms. Queska testified that she asked her son what happened but did not say that she got an answer and she then told her son to go into the apartment. Ms. Queska testified that Spiro screamed at her not to go and he grabbed her arm to hold her but there was no way she could see her son that way and not find out what happened. She took the stairs down to the lobby.

[93] Spiro testified that he took the elevator to the fourth floor and that he saw his mother outside of their apartment running in a panic in the hall. She asked him “who are these guys” and told him that she was calling the police. In chief Spiro testified that his mother had left the apartment door open and that he was “scared for my life” and so he grabbed a paring knife with about a three-inch blade from the kitchen and followed his mother. He said that he just wanted to “scare them”. He could not remember if he took the stairs or the elevator.

[94] Significantly in his evidence in chief, Spiro made no reference to trying to stop his mother from going downstairs. In cross-examination he repeated that when he saw his mother as he got out of the elevator she was running outside of the apartment and she ran down the stairs. At first he said that he did not remember what he said to her and that she just ran. Then he said that he told her not to go outside and that now her life was in danger. He gave evidence for the first time that he grabbed her hand – later he said it was with one of his hands, but that she was strong and pushed him off and ran. He did not know what to do and was now scared for her life because what was stopping them from doing anything to his mother? He did not go after her right away and got the paring knife, which only took a couple of seconds. Again, he testified that he was just trying to scare them. The fact that Spiro did not give any evidence in chief about trying to physically stop his mother seriously undermines his later evidence that he did. The fact that Ms. Queska gave the same evidence does not alleviate my concern as I am convinced that they discussed their evidence. I am not critical in that I would expect that to have happened shortly after the incident, but it does at the very least impact the reliability of Spiro’s evidence.

[95] When Ms. Hentz suggested to Spiro that he could have used force to stop his mom from going downstairs instead of getting the knife he said that his mother was strong and that his arms could barely move as his ribs were hurting. Ms. Hentz then asked if the fact he would experience pain was keeping him from saving his mom to which he asked her whether she thought that the pain was on his mind when his mom was going to a bunch of hooligans. This is yet another example of where his evidence shifted in order to address an obvious weakness in the evidence he had given. In my view if Spiro in fact was as concerned about his mother going downstairs, he would have been able to physically prevent her from doing so given their relative sizes and age.

[96] Another concern is that Spiro testified in cross-examination that his mother had seen that he had been beaten up and that she heard the guys say they were going to kill him and that she wanted to stop them and call police but of course he would have had no way of knowing what she knew at the moment he saw her as he did not testify that he gave any information to his mother or that he received any information from her at the time. On his evidence he had no idea of what she knew or why she was running downstairs other than she saw that he had been beaten up. When it was put to Spiro that Era and the others had already left, he testified that he “knew for a fact” that they were behind the building and that they were on cocaine and could kill his mom and not even know. This was another example of how he continued to exaggerate the state of intoxication of Taylon and Kadri. Furthermore, on his evidence Spiro would have had no way of knowing that Era had driven behind their building. Era could have gone the other direction and exited behind other buildings on the west end of Gamble Avenue. Again, the fact Spiro made reference in his evidence to matters he could not have known or would not have known at the time is likely in my view because he and his mother have discussed their evidence together in some detail.

[97] According to Ms. Queska she took the stairs and saw Taylon running and going into the car. She ran after him and was yelling “stop” and asking him what happened and telling him that she was calling police. Ms. Queska testified that she was right behind the car so they could not back out. They then drove away, speeding, and she watched as they got to the back of the building and turned east. Ms. Queska testified that she ran across the front of the buildings to the North West corner of 95 Gamble Avenue so she could get in front of the car to make them stop.

[98] Kadri testified that Taylon was yelling enough that he saw Spiro’s mother on the balcony of the building and at that point he got out of the car and ran to the building to tell Taylon to stop what he was doing and that they should leave. He could see Taylon and Spiro fighting all the way to the elevator. He did not see the superintendent. Kadri testified that he was “fed up” and so he went back to the car and told Era, who was still in the car, to leave. He never saw Era out of the car smoking a cigarette at this time. Kadri testified that he then saw Taylon running back to the car and Taylon jumped into the car.

[99] There is an issue as to whether or not Ms. Queska actually got downstairs and ran behind the vehicle while it was parked between 51 and 65 Gamble Avenue. Both Taylon and Kadri denied seeing her before they got between 85 and 95 Gamble Avenue. Kadri testified that he did not think that Era knew how to back up and so that that is why they took the route they did.

[100] Ms. Terzieva was inspecting a whole in the wall of the lobby that was presumably made during the fight. She testified that she saw Spiro’s mother get out from the elevator and go out the front door. She said she was in a hurry to get outside. Almost immediately afterward she saw Spiro come from the stairs and go after his mother and he left via the front entrance too. She did not see anything in their hands. When Ms. Terzieva spoke to police, she told them that Ms. Queska and her son came back and used the elevators to go upstairs and that a minute later Spiro came down the stairs with his mother and they went out again a second time. This is the evidence I have accepted as past recollection recorded for reasons I have already explained.

[101] Mr. Dvitchev testified that he took his time parking and stayed in his car for a short period of time-he estimated five to six minutes. He then went towards the side entrance to the building, which was between the middle and last balcony on the west side. As he got there, he saw a car, which was running with the headlights on just before this entrance. He recognized the car as Era’s car and he saw Era, whom he knew, in the driver’s seat, but it had been a long day and he did not want to get into a conversation with him. He did not see anyone else but as he opened the side door and went into the lobby, he saw someone, who he thought was Spiro, running out of the building with a woman he believed was Ms. Terzieva, the superintendent, chasing him. He could not really say which way they turned. He went upstairs to have a shower and when he finished, he heard sirens, which would have been the primary response to the scene.

[102] Mr. Dvitchev testified that he thought the male was Spiro because of his haircut although he could not describe it. I did not find that unusual as Spiro was someone he would have seen regularly and he had known him for about four years.

[103] Based on the evidence of Mr. Dvitchev I find it is likely he saw Spiro running out of his building with his mother behind him. I appreciate he believed the woman was Ms. Terzieva but he seemed reasonably confident that the male was Spiro. He had him a little taller than he is, but I do not believe it is possible that he would have confused Taylon for Spiro. Furthermore, it was not suggested to Ms. Terzieva that she chased Taylon by running him out of the building.

[104] This evidence is significant as it puts Spiro and his mother running out of the building at the same time as Era’s car is still on the driveway between 51 and 65 Gamble Avenue. I will come back to this.

[105] I do not believe that Ms. Queska would have had enough time to run into Spiro, take the elevator downstairs and run with or without Spiro to Era’s car quickly enough to block him from the back. The evidence suggests that Era was not outside the car smoking and that Taylon was running to get to the car. I do find however that she must have made it outside in time to see the car turn the corner behind the building and head east and I accept her evidence that she than ran across the front of the buildings and that Era’s car was then in the driveway between 85 and 95 Gamble Avenue.

[106] The Crown suggested that it is possible that Spiro and his mother ran downstairs one after the other and saw that Era was driving down the side of the building and that they both went upstairs and Spiro got the knife and they came down a second time. Although this is possible, particularly given the evidence of Ms. Terzieva, if that happened, I think it likely that Era would have already dropped Taylon off and been on his way by the time they made it down a second time. I have already explained why I believe that Ms. Queska would not have had time to get behind Era’s vehicle and adding a second trip upstairs and down would obviously have taken even more time.

[107] There is no dispute that after Kadri and Taylon were back in the car that Era drove his car south and then went along the back of 65 and 69 Avenue and then north between 69 and 85 Gamble Avenue until Spiro’s mother was there in the driveway between those two buildings, blocking their way.

Events when Era’s car was situation between 69 and 85 Gamble Avenue

[108] The next factual issue I must consider are the events that took place when the car Era was driving was “situated” between 69 and 85 Gamble Avenue. I use the word “situated” as there is a dispute as to whether or not the car stopped and was put in park or whether or not it was rolling forward by Era applying the gas and then the brake repeatedly. This is important to the reasonableness of Spiro’s evidence that he believed that the car was going to run his mother over.

[109] Before getting to the evidence of the witnesses, based on some of the photographs entered into evidence you can see that cars are parked on a bit of an angle along the west side of 85 Gamble Avenue. There is also a photo taken by police that shows Era’s car where I find it ultimately stopped and you can see the west side of 69 Gamble Avenue. This evidence makes it clear that Era would not have been able to get by Ms. Queska when she was standing in the middle of the driveway.

[110] Ms. Queska testified that when she got to the corner of 85 Gamble Avenue, she saw the car approaching very fast and that she continued to say “stop” and that she was calling police. She testified that the driver was pressing the gas and the brakes at the same time and she had her hands on the hood trying to “hold the car” to make them stop. The car however was moving with the application of gas and brakes. She was backing up. Ms. Queska testified that she heard the people in the car swearing at her and saying “bitch-get out of the way” and that someone said, “I’m going to kill you”. In cross-examination her evidence was different. Ms. Queska testified that she had just turned the corner, that she was not moving and that she was stopped because she saw them coming. That evidence makes more sense because even though I expect she was mad, I would not expect Ms. Queska to step in front of a car that was approaching very fast and put her hands on the hood. I also do not believe that anyone said they were going to kill her.

[111] Spiro testified that when he got downstairs, he did not see anyone outside, but he heard his mother yelling “stop the car – I’m calling police”. He later testified that he also heard voices saying “go-go”, “drive” and “reverse”. He said that when he heard his mother’s voice he was “more than scared” and that he was “scared underline five time”. He followed her voice and ran towards 85 Gamble Avenue. Later in cross-examination he added that they were yelling “bitch-get out of the way” and “move bitch” and “stop” and “go” and that this was vivid in his mind. This was another one of those times I found Spiro was exaggerating his evidence from what he said in chief and just making things up.

[112] When Spiro got around the corner of the building, he testified that he saw his mother’s hands on the hood of Era’s car, pushing off the car, that the car was moving towards her; jerking back and forth, and he could hear Era pressing the brake on and off. Later he said that he heard someone press on the brakes hard and he heard them creaking and that he remembered this clearly. Even later in his evidence he said that he heard the engine revving as the car was “rolling towards her” and that when he pushed his mother, he heard the brakes again. He said that he could see the wheels moving toward her but did not see her feet moving back although later he said that his mother took a number of steps and that he saw the car move/roll forward a full foot.

[113] Kadri’s evidence was very clear that Era stopped the car and put it in park when Spiro’s mother appeared, blocking the driveway yelling that she was going to call the police. Kadri denied that the car was lurching and insisted that it remained in park. There is no dispute that the car was running when the police arrived. He testified that they were going to wait for the police to come. Kadri also said that Taylon was scared about what was going to happen when the police came and he told Taylon that he did not know what would happen but that it was his problem. Kadri admitted that Taylon was probably yelling “let’s go” but that he told him police were coming and he had to deal with it. Kadri denied the suggestion that Era was worried about almost running Spiro over at the corner of Pape Avenue and Gowan Avenue and that he also wanted to get away. He testified that if Era was making a left and Spiro suddenly decided to run across the street how would that be Era’s fault?

[114] Taylon testified that once Era parked the car next to his building, they all lit up a cigarette. He did not recall Era leaving the car but according to Kadri, Era left the car and was outside leaning against the driver’s door having a cigarette. Kadri testified that he was smoking a cigarette inside the car and that is why his window was down. His evidence that his window was down was not challenged but in any event, this was clearly the case. Kadri added that he regrets having that cigarette because if he had not, his window would have been up and there would have been no way for Spiro to stab him – this has haunted him every night since the incident.

[115] Spiro testified that based on what he saw all he could do was to push his mother out of the way. At this point in chief Spiro said that he just wanted to scare them and that he was scared for his life and his mother’s. He testified that the only way to stop them was “to do what I did”; presumably a reference to the stabbing and that he never had a plan to hurt anyone. He was asked a leading question by Mr. Barrs: “Did you think your mother’s life was in danger” to which he responded that he thought they were going to run his mother over. According to Spiro, since they had tried to run him over and since they were “hunting me down the whole night” he thought they would run his mother over.

[116] Both Spiro and his mother testified that he pushed her to the left, which would be towards the parked cars. Sprio added that maybe he “threw her hard” behind him and that she fell to the ground where the parked cars were, but he was still scared for his life. Ms. Queska however said that she felt someone pull her and she fell and that she then realized it was Spiro. She also said that she fell close to the cars; a reference to the parked cars. Mr. Barrs reminded her of this evidence and then asked if she felt safe at that point. Ms. Queska responded that she was “safer” because her son got her out of the car which she was in danger of; a reference to Era’s car.

[117] Spiro testified that he got his mother away from the vehicle but said that his life and his mother’s was “on the line” and that he wondered “what’s going to stop them from running both of us over at that point”? He admitted then that he stabbed both Kadri and Taylon repeating that he was just trying to scare them. He denied stabbing them out of anger or vengeance and said that he was not even mad. He obviously was mad and so I do not accept that evidence-he showed anger on the stand as well. Spiro added that there was no one there to help him when he needed help. As Ms. Hentz pointed out of course, he had not accepted several offers of help to that point.

[118] According to Kadri they waited with the car in park for one to two minutes waiting for the police. Kadri testified that at this point he saw Spiro running from Gamble Avenue up to the car although he did not see Spiro push his mother out of the way. What he saw was that Spiro put his hand in through the window and stabbed him and then Taylon. Kadri testified that he did not realize he had been stabbed right away until Taylon said that he had been and Kadri then looked down and saw a huge amount of blood. According to Kadri as he exited the vehicle Spiro’s Mom was right behind him and he heard her ask what they had been doing. He also testified that he heard her say “good”. He did not know where Spiro was.

[119] Taylon testified that when Spiro came sprinting towards the car his mother was behind him yelling “stop” and Spiro stabbed Kadri and then looked at Taylon and went over Kadri to stab him - Taylon even though Taylon’s window was down. He said that to do so Spiro’s body was half inside the car. Taylon assumed that Spiro’s mother was trying to calm him down to stop him from stabbing him and Kadri. He testified that Kadri got out of the car and collapsed. He was pretty sure he had a word with Spiro’s mother but then said that he actually did not know. After the stabbing Spiro ran back to his apartment.

[120] Ms. Queska testified that after her son pulled her and she fell, she fell on the side where the cars were parked and that Spiro then started running to go home and that she ran after him. She did not see him stab anyone or throw the knife and she denied saying “good”. I note that by running she necessarily would have given up at this point on keeping the car from moving and waiting for police which she had been so adamant about to this point. In my view, Ms. Queska saw what her son had done and no longer wanted to wait for police. She did not offer any first aid to Kadri or Taylon.

[121] In cross-examination Spiro gave evidence for the first time that he struggled with Kadri when he got to the car. This was never put to Kadri. Spiro said that he did not have the knife in his hand when he pushed his mother out of the way although he could not remember where it was. Spiro said that Kadri was swinging – I presume his arm: from inside the car and that this is when he tried to open the car door telling Kadri to get out of the car. Kadri was fighting back. Spiro said that he wanted the police to come because of what they had done to him. He testified that he did not leave because if he had they would run them both over because they had been “doing coke all day” and that he knew “what type of people these are”. According to Spiro, Kadri was telling Era to drive but he would not let them leave because they would drive his mother over. He also said that he saw them trying to grab something in the car and he saw Taylon moving while he was fighting with Kadri. Ms. Hentz did not follow up with this later evidence from Spiro.

[122] I found that all of this new evidence was made up, likely as Spiro was testifying in an attempt to justify his stabbing of Kadri. I do not believe any of it. It is also another example of how Spiro escalated how intoxicated he believed Taylon and Kadri were as his evidence continued.

[123] When Ms. Hentz put to Spiro that Era was outside of the car smoking, he denied it and said that he was thinking straight at the time and that no one had time to have a cigarette. He said that the reason he did not stab Era was that he “had nothing to do with this” and added that Era had brain damage and a mental illness. Of course, this evidence totally undermines Spiro’s evidence that the car Era was driving tried to run him over-tried to kill him. Obviously if he was really concerned about the car running his mother over the logical person to attack would have been the driver; Era.

[124] Despite this assertion by Spiro that he was “thinking straight,” when it was suggested that all he had to do was to move with his mother between the parked cars, Spiro said that he had to do some “fast thinking”. When it was suggested to him again that he would have tried to stab the driver, Spiro said that he went to the closest person that had a window open and that only one window-namely Kadri’s, was open. When it was suggested that there was no reason to stab a person in the rear of the car and that the only reason for that was for revenge, Spiro repeated that he was not angry and did not act out of anger and that he was scared. He denied that he wanted to get back at them.

[125] Spiro testified that after he stabbed Taylon he ran to his building and that on the way he threw the knife across the street. He testified that he mother was chasing after him. She caught up to him when he went into the building. He took the stairs up and his mother went upstairs, I presume by elevator, as Spiro testified that he got upstairs before her.

[126] Spiro testified that once they were home, he told his mother what he had done and they waited for police. This was Ms. Queska’s evidence as well. Spiro said that once they got upstairs they heard the sirens which were really quick.

[127] Kadri testified that he knew that he had to act fast to save his life given the amount he was bleeding. He yelled at Era to get his phone and called 911 and started to walk towards the sidewalk. He told the dispatcher that he had been stabbed and that there was a lot of bleeding. That was the last thing he remembered before losing consciousness and waking up in the hospital. This is not surprising as he lost 2 litres of blood at the scene and another litre in transit to hospital. Given the severity of his injury he was fortunate to have been taken to St. Michael’s Hospital.

[128] The most objective evidence of Spiro’s condition as a result of the assaults by Taylon comes from the Injury Report prepared by PC Cheng at the time Spiro was arrested and taken to the station on the night of the incident. PC Cheng noted that the right side of Spiro’s face was swollen, his lips were swollen with a minor cut to his bottom lip and he was walking with a slight limp. PC Cheng testified that Spiro advised that he had injuries to his face, right forearm and right ankle. She saw an ankle support on Spiro’s ankle when he was arrested. Spiro also said that he thought his ankle was broken but he was not taken to hospital, so I presume that was not a real concern. Certainly, based on this evidence it was reasonable for Spiro’s mother to believe that he had been beaten when she saw his face.

ANALYSIS

W.(D)

[129] First of all in making my decision, given that Spiro testified, the principles set out in W.(D)apply. The Crown must prove beyond a reasonable doubt that the defence of self-defence cannot succeed. Accordingly, with respect to the defence of self-defence, if I believe Spiro's evidence and find that he was acting in self-defence in accordance with the law of self-defence I must find him not guilty of all counts. Even if I do not accept Spiro's evidence and any other evidence in support of his defence of self-defence, but I am left with a reasonable doubt by it, I must also find him not guilty. Finally, even I am not left with a reasonable doubt by the evidence in support of the defence of self-defence, I must still go on to determine whether or not, on the whole of the evidence I am satisfied beyond a reasonable doubt that he is guilty of these offences.

[130] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Spiro, I am entitled to consider it in the context of all of the other evidence.[^2] However, I must remind myself that this is not a credibility contest.[^3] W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of Kadri and Taylon and the other Crown witnesses to that of Spiro and his mother.[^4] As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.[^5]

Self-Defence

[131] Spiro testified that he committed these offences in order to save his mother’s life as he believed she was being run over by the vehicle that was being driven by Era, when he saw his mother in front of the vehicle when it was situated between 69 and 85 Gamble Avenue.

[132] Section 34 (1) of the Criminal Code provides that defence of another person must originate in a reasonable belief on Spiro’s part that force was being used or threatened against his mother, his purpose must have been to defend or protect her from that force and what he did based on that reasonable belief and that purpose must be reasonable in the circumstances as Mr. Rusha knew or reasonably believed them to be.

[133] I did consider the fact that Spiro stabbed two people and that theoretically my analysis could be different for his stabbing of Kadri versus his stabbing of Taylon. However, given my findings of fact, making this distinction did not become important in the sense that I could have concluded that Spiro was acting in lawful self-defence with respect to force threatened by Kadri as opposed to Taylon. They were both passengers in the vehicle and the fact Spiro stabbed them both was considered together as Spiro did not give different reasons for stabbing Kadri as opposed to Taylon.

[134] There are therefore three questions to consider and I have instructed myself as I would a jury.

1) Has Crown counsel proven beyond a reasonable doubt that Spiro did not believe, on reasonable grounds, that force was being used or threatened against his mother?

[135] The first question I must consider is whether or not Crown counsel has proven beyond a reasonable doubt that Spiro did not believe, on reasonable grounds, that force was being used or threatened against his mother? This question relates to the reasonable belief element of defence of another and has to do with Spiro’s belief at the time when he decided to stab Kadri and Taylon. The question is not whether force was actually being used or its use threatened against his mother but rather whether or not Spiro reasonably believed in the circumstances that force was being used or threatened against his mother. Spiro may have been mistaken in his belief about the use or threatened use of force against his mother as long as his mistake was reasonable in the circumstances as he knew or believed them to be.

[136] There are really two issues to consider in answering this question. First, did Spiro honestly believe (even if he was mistaken in some or all of his belief) that force was being used or threatened against his mother? Second, Spiro’s belief must have been reasonable in light of all of the circumstances as he knew or honestly believed them to be. I must consider whether a reasonable person in the same circumstances as Spiro would have a similar belief that force was being used or threatened against his mother. In other words what was his state of mind?

[137] An important part of my consideration of this issue are the events that led up to Spiro following his mother and running to the vehicle Era was driving and the impact of those events on Spiro both physically and mentally. Although I have found that Spiro tended to exaggerate the fights in his evidence and in particular the force used against him by Taylon, there is no doubt that he had been beaten by Taylon twice in the storage locker and once on Gowan Avenue and although I have not found that it was deliberate, I find that he reasonably believed that Era had almost deliberately run him over when he was crossing Pape Avenue at Gowan Avenue. Furthermore, Taylon had just beaten him up again in the lobby of his building-his home. All of these acts had taken place over a short period of time and I find that Spiro reasonably might have believed that Taylon was not finished with him or as Mr. Barrs put it in argument, that he was being terrorized by Taylon. I am also prepared to find that Spiro heard Taylon repeatedly tell him that he was a “rat” and that he was going to kill him.

[138] I have also found however that Spiro did not believe that Kadri was involved in what Taylon had done to him and that in fact he knew that Kadri had intervened on some of those occasions to stop Taylon from beating him further. I also find that as far as Spiro reasonably knew, Era had no beef with him although since Era had been driving the vehicle, Spiro could have reasonably believed that he was following direction from Taylon. In fact, in cross-examination Spiro said that he did not stab Era because he “had nothing to do with this”.

[139] Notwithstanding the fact that to that point Spiro could have reasonably believed that Era was following Taylon’s direction and presuming that he did in fact hear Taylon yelling to “go” and to “drive”, I find it hard to believe that he would reasonably think that Era would actually run his mother over. However, I will give him the benefit of the doubt on this as he was agitated and given his own experiences that night this could have been on his mind.

[140] In deciding this first question however, a lot depends on whether or not Era’s vehicle was in park as Kadri and Taylon testified to or it was moving towards Ms. Queska by Era pressing on gas and brake repeatedly and backing her up. If Spiro did not see the car moving as he alleges then in my view there would have been no reasonable basis for him to believe that Era was going to run his mother over.

[141] As I have already reviewed, Spiro testified that when he ran around the corner of the building, he saw his mother’s hands on the hood pushing off the car, the car was moving towards her; jerking back and forth, and he could hear Era pressing the brake on and off. He also said that he could see the wheels moving and that his mother took five to ten steps backwards. As he did elsewhere, Spiro escalated what he said he heard the occupants of the car saying and what he was hearing from the brakes and the engines.

[142] As I have already explained, Ms. Queska’s evidence on this was not consistent and I have found it unlikely that she would step in front of a car that was approaching very fast and put her hands on the hood. I also find that if the car was in fact moving forward, forcing her to back up, that it is unlikely she would remain in that position, for fear of falling or being run over.

[143] Kadri was firm in his evidence and as I have said, I found him to be the most reliable of the witnesses. I prefer his evidence that the car was in park and that they were waiting for police. I agree with Mr. Barrs that Taylon would not have wanted this but there is no evidence that Taylon tried to open the car door and run and he clearly could have done so. They were right next to his building and Ms. Queska could not have stopped him. Taylon knew of course that Spiro and his mother knew who he was and where he lived. Mr. Barr’s seized upon the fact that Kadri testified that if Spiro’s mother had not blocked them that “we could have escaped” but I did not find his choice of words significant in the context of all his evidence. Kadri had no reason to “escape”.

[144] There is also Kadri’s evidence that he reacted once he saw Spiro’s mother on the balcony and at that point tried to get Taylon to stop his beating of Spiro. He clearly did not want to be in a situation with Spiro’s mother involved but once that happened in my view, he would not have disregarded her demands. I have found that he did absolutely nothing wrong. He would have had no reason to be afraid of the police coming.

[145] Furthermore, the evidence is that Era was at least an inexperienced driver, possibly without his licence, and according to Kadri he could not back out. That evidence was not challenged. I find it extremely unlikely that he and Kadri would try to get Ms. Queska to back up in the manner she and Spiro testified too. That would be incredibly dangerous behaviour and even if Era was capable of pulling off such a maneuver, which seems unlikely, I do not believe they would have taken such a risk for Taylon even though he was a good friend.

[146] For these reasons I find that the evidence of Spiro and his mother that the car was moving forward with the application of the gas and brake was false. I find that the car was not in fact moving and was in park. I do not believe that Era was taking it out of park and hitting the gas and the brake.

[147] Having made this finding, I must consider whether or not Spiro could have been mistaken about this and in fact reasonably thought the car was moving. I accept that he would not have been able to assess the situation in a calm unrushed fashion. However, I find that it was not possible that he mistakenly thought the car was moving when in fact it was not. He did not suggest that he could not see the car or the wheels and he testified that both were moving and that his mother was being pushed backwards. Even if he believed that Era had tried to run him down, there is no way that he could have been mistaken and believed that the car was pushing his mother backwards when the car was in fact not moving forward. Furthermore, Spiro went along side of the vehicle to stab Kadri and Taylon and it would have been obvious to him at that point that the car was not moving. In fact he had enough time to assess the situation to see that Kadri’s window was down.

[148] Even if I accepted Spiro and his mother’s evidence, that is not the end of the matter. I have to consider whether or not at the time Spiro stabbed Kadri and Taylon the Crown has proven that Spiro did not believe, on reasonable grounds, that force was being used or threatened against his mother.

[149] Once Spiro pushed his mother to the side by the parked cars, despite his and her protests otherwise, even if the car was lurching forward, in my view she would no longer be in danger of being run over by the car. In fact Ms. Queska said that she felt safer because her son had gotten her out of danger. If as Spiro testified to, once his mother fell, it was still possible for Era to run her over - in fact he said both of them - surely Spiro would not have left her on the ground and moved to the passenger side of the car. Surely he would have tried to stab the driver. He did neither. This ties into his purpose in stabbing Kadri and Taylon, the next issue I will consider in more detail.

[150] I have considered whether or not I have a reasonable doubt on this first issue as I appreciate that it is not enough to prefer the evidence of Kadri and Taylon to that of Spiro and his mother. On this subject however the evidence of Kadri accords with common sense and the actions of Spiro after he pushed his mother out of the way and I do not find that Spiro and his mother’s evidence raises a reasonable doubt. Furthermore, on the evidence I do accept, for the reasons stated, I find that the Crown has proven beyond a reasonable doubt that Spiro did not believe, on reasonable grounds, that force was being used or threatened against his mother at the time he decided to stab Kadri and Taylon.

[151] This finding is sufficient to find that Mr. Rusha was not acting in self-defence, but I will consider the remaining two Questions.

2) Has Crown counsel proven beyond a reasonable doubt that Spiro did not stab Kadri and Taylon for the purpose of defending or protecting his mother from the use or threat of force?

[152] The second question is has Crown counsel proven beyond a reasonable doubt that Spiro did not stab Kadri and Taylon for the purpose of defending or protecting his mother from the use or threat of force. His conduct must be for the purpose of defending or protecting his mother from the use or threatened use of force. This defence of another is not something to be used to get even or because one is angry.

[153] Again I am considering Spiro’s state of mind including the events that he experienced leading up to his stabbing of Kadri and Taylon. I have already summarized those with respect to the first question.

[154] Given my finding that the car was in park and not moving and not threatening to run over Spiro’s mother, I find that Spiro’s purpose in stabbing Kadri and Taylon must have been for revenge for what Taylon had done to him. I find that he had no reason to stab Kadri and that that was likely not intended. As Kadri said he was stabbed and then Spiro realized he got the wrong guy and leaned over him and stabbed Taylon.

[155] Even if I consider this question assuming that I answered the first question finding that Spiro reasonably believed that his mother was going to or might be run over by the car, I would come to the same conclusion. Spiro’s behaviour is simply not consistent with defending his mother.

[156] Accepting for the purpose of this question that Spiro pushed his mother to the side, he knew that she fell and yet he immediately went to the passenger side of the car and stabbed Kadri and Taylon and then he ran. He refused to admit that he mother was safe once she fell by the parked cars but yet he took no further steps to ensure her safety. If he truly believed his mother was still not safe, in my view Spiro would have checked where she fell and helped her up and he could have easily secured her safety running back to the building with her or moving her between the parked cars. He did neither. What he did do was leave his mother on the ground and move to the side of the car and after he stabbed Kadri and Taylon he ran. I do not accept Spiro’s evidence that he knew his mother was running after him. He did not even suggest that he checked that she had not hurt herself when he pushed her hard and she fell to the ground. Further as I have already said, he made no effort to stab Era and clearly the car could only move forward with Era at the wheel. Even if the decision was to stab Taylon, since he was the person Spiro perceived to be a threat, he stabbed two people.

[157] My conclusion is strengthened by the evidence Spiro gave for the first time that he struggled with Kadri when he got to the car. I have already reviewed that evidence and explained why I do not accept it but accepting for the moment that Spiro was telling me the truth it revealed that he tried to open the car door telling Kadri to get out of the car because he wanted the police to come for what they had done to him.

[158] Accordingly, regardless of whether or not Spiro reasonably believed that the car was going to run over his mother, I find that Crown counsel has proven beyond a reasonable doubt that Spiro did not stab Kadri and Taylon for the purpose of defending or protecting his mother from being run over by the vehicle. In my view Spiro’s only reason in stabbing Kadri was that in the heat of the moment he mistook him for Taylon and then he realized Taylon was in the back seat and he decided to stab him as well.

3) Has Crown counsel proven beyond a reasonable doubt that Spiro stabbing Kadri and Taylon was not reasonable in the circumstances?

[159] The third question I considered is whether or not Crown counsel has proven beyond a reasonable doubt that Spiro stabbing Kadri and Taylon was not reasonable in the circumstances. Again in considering this question I have applied the summary of the law I would tell a jury including:

a) Anyone who defends or protects another person cannot be expected to know exactly how to respond to or deal with the situation or to know how much force to use to achieve his purpose. What is reasonable may include several alternatives. The issue here is not whether Spiro believed on reasonable grounds that he had no other course of action available to him, but rather whether what he did was a reasonable thing to do in the circumstances as he knew them or reasonably believed them to be.

b) A reasonable person is a sane and sober, not exceptionally excitable, aggressive or fearful. He has the same powers of self-control that we expect our fellow citizens to exercise in our society today. However, in order to answer this question I must consider a reasonable person who has the same characteristics and experiences as Spiro that are relevant to the ability to respond to what he reasonably believed was the use or threatened use of force against his mother. The reasonable person is a person of the same age, gender, physical capabilities as Spiro and who has the same past interaction and communication Spiro had with Taylon, Kadri and Era and his mother. On this issue in my view the fact Taylon had beaten Spiro several times and the fact Spiro was very young-just a day past 18 are important factors.

c) The danger that his mother was in, or that Spiro honestly and reasonably believed his mother to be in does not have to be immediate although that is a factor I can consider in assessing the honesty and reasonableness of his belief.

d) Although in answering question (c) I recognize that reasonableness is to be assessed in accordance with the findings that I have made in relation to what the relevant facts were at the material time. I must also consider whether Spiro was honestly mistaken about the circumstances in which his mother was in. If he was mistaken about those circumstances, I must make my assessment of the reasonableness of his conduct in accordance with the circumstances as he honestly believed them to be, so long as his mistake was a reasonable mistake. If his mistake was not reasonable, it is irrelevant for the purposes of my assessment of the reasonableness of his conduct.

[160] Again in answering this question I have considered all of the evidence and my view of that evidence. In doing so I have considered the factors referred to in s. 34 (2) of the Criminal Code except for ss. (h) which is not applicable. This list is not exhaustive and as I will come to, I have considered an additional factor.

(a) The nature of the force or threat.

[161] I have already found that the car Era was driving was in park and not moving and that Spiro could not reasonably have been mistaken about this. I have also found that he did not reasonably believe that his mother’s safety was threatened at the time he stabbed Kadri and Taylon.

(b) The extent to which the use of force was imminent and whether there were other means available to Mr. Rusha to respond to the actual or potential use of force

[162] As I have already reviewed, Spiro pushed his mother out of the way from the front of Era’s car. I have also found that if after he pushed his mother, he truly believed she was still not safe, he would have checked where she fell and helped her up and he could have easily secured her safety running back to the building with her or moving her between the parked cars. He did neither.

(c) Spiro’s role in the incident

[163] I did not find this factor to be relevant as Spiro was not at fault for what happened once he ran around the corner of 69 Gamble Avenue and saw his mother blocking Era’s car.

(d) Whether anyone involved in the incident used or threatened to use a weapon

[164] The weapon in this case, on the evidence of Spiro, is Era’s car. He testified at one point that Kadri carried a knife but I do not accept that evidence-it was not put to Kadri and there was no suggestion by Spiro that he was ever even hit by Kadri let alone threatened with a weapon by him.

(e) The size, age, gender and physical capabilities of each of the persons involved in the incident

[165] The relative sizes of Kadri, Taylon, Era and Spiro are relevant to my assessment of the evidence in this case.

[166] Kadri was 19 at the time, 5’10” tall and weighed around 175 to 180 lbs. Taylon is 23 now and said he was 22 at the time but that must be incorrect. He must have been 20 or so at the time – he thought Spiro was one or two years younger. He was 6’1” or 6’2” tall and at the time of the incident weighed 220 pounds. Era was estimated to be the tallest in the group at 6’2’ and he was skinny compared to Taylon.

[167] Spiro turned 18 the day before the incident. He testified that at the time he was 5’5” or 5’6”, weighed between 130 to 135 pounds and that he was a “pretty athletic guy”. He has lost 20 pounds since this incident due to surgery and other health problems he has experienced, unrelated to this incident.

[168] The relevance of the relative sizes of Kadri, Taylon, Era and Spiro is that it informs Spiro’s state of mind as to what kind of danger his mother was in. This was based in part on his experience to that point with Taylon beating him up. Taylon admitted that in any fight with Spiro that it would be “no contest” given their relatives sizes. I find that that is clearly the case and that Taylon fought with Spiro several times and that Spiro could legitimately have been fearful of Taylon that night. I have also found however that Kadri never attempted to assault Spiro or intimidate him and that in fact he tried on at least three occasions to stop Taylon. There is no evidence that Spiro would have any reason to fear Kadri save for his knowledge that he was a close friend of Taylon.

[169] Also relevant to my analysis is that Spiro’s mother was at the time 5’ 2” tall and although Spiro said that she weighed the same as him, I doubt that based on her appearance at trial. I considered her size relative to her son’s in coming to my finding that Spiro could have stopped her physically from going downstairs had he wanted to. Apart from credibility, the only relevance to this finding is an inference that Spiro was not as afraid for his mother’s safety as he testified to.

(f) The fact that Taylon and Kadri had been drinking.

[170] This is an additional factor that I have considered in answering this question. I have already explained why I do not find that they were high on cocaine.

[171] The level of intoxication of Taylon and Kadri may be relevant in three ways. First of all did this affect their ability to remember certain details, second, did it affect their behaviour and third, what reasonable expectation would Spiro have had based on what he knew or believed they had had to drink?

[172] I have already reviewed the evidence as to the beer purchased and consumed by Taylon and Kadri and my views on how it impacted the reliability of their evidence. In my view. although it would have affected their behaviour to some extent, given the period of time over which they consumed the beers it would not be that significant. Taylon had consumed more than Kadri and that may explain in part why he was “out of control” as described by Kadri.

[173] Where this is relevant is that in my view although again I believe that Spiro was exaggerating when he testified that he was being “hunted by animals” certainly he could reasonably have thought that Taylon was out to get him, although as I have explained I do not believe that he could reasonably have thought that about Kadri.

(g) The nature, duration and history of any relationship among the persons involved in the incident, including any prior use or threat of force and the nature of that force or threat;

[174] There was an issue raised by the defence as to whether or not Taylon, Kadri and Spiro were friends or just acquaintances. The evidence is that these young men were all childhood friends in a tightly knit neighborhood for many years and it does not seem that a year or two age difference made much of a difference. Spiro testified that he had a close friend who was Kadri’s age.

[175] What is important is that until December 8, 2016, there had been no issues between any of these friends-no fights or arguments of any serious nature. Everything that Spiro could reasonably believe might happen to his mother must have been based on his experience with these friends the night of the stabbing.

(h) Any history of interaction or communication between those involved in the incident

[176] I have reviewed in detail the events that transpired prior to the stabbing. As I have said this evidence is relevant to Spiro’s state of mind at the relevant time.

(i) The nature and proportionality of Spiro’s response to the use or threat of force

[177] This is a very important factor in this case. The issue when considering this factor, in light of all the other factors, is the proportionality of Spiro’s decision to stab Kadri and Taylon in order to protect his mother. In other words, was his decision to stab Kadri and Taylon excessive in relation to the harm to his mother that it was intended to prevent?

[178] The injuries suffered by Kadri as a result of the stabbing were very serious and as he put it, the doctors say that he made a miraculous recovery and he is lucky that he survived. However Kadri testified that this “means nothing” since his life will not be the same anymore. I recognize however that in considering this factor the seriousness of the resulting injuries is not the determining factor although those injuries may provide some evidence of the nature of the force used by Spiro. Rather it is the nature of the act of stabbing Kadri and Taylon in the leg that should be considered.

[179] In this regard I accept the defence position that by stabbing Kadri and Taylon in the leg that Spiro did not intend to kill them although I appreciate Kadri’s evidence that such a stab wound could be fatal given the major arteries in that location. Although the injury inflicted on Kadri by Spiro could easily have been fatal, I am prepared to find that had Spiro intended to kill Kadri and Taylon that he would have aimed for their chest or neck.

[180] That said, given my conclusion that Spiro did not reasonably believe that his mother was still in danger, he had no reason to stab Kadri and Taylon. Spiro said that he wanted to stop this – a reference to the beatings that he had had from Taylon, but the decision to stab Kadri and Taylon was not to protect his mother from Taylon. He never suggested that they might get out of the car and attack him or his mother.

[181] I have considered the amount of time that Spiro had to assess the situation but he said that he was thinking straight and he had enough time to determine that the front passenger window was open. Had he seen the car moving in the manner that both he and his mother describe and he attempted to stab the driver, Era, that might be one thing but that is not what Spiro did. In my view his reason for stabbing Taylon at least was for revenge because of the beatings that Taylon had inflicted on him that night. Although I can understand why Spiro was angry and upset about what had happened, he was not entitled to take the law into his own hands.

[182] Considering all of these factors and my factual conclusions, for all of these reasons I find that Crown counsel has proven beyond a reasonable doubt that Spiro stabbing Kadri and Taylon was not reasonable in the circumstances.

[183] For all of these reasons I have found that the crown has proven beyond a reasonable doubt that Spiro was not acting in lawful self-defence when he stabbed Kadri and Taylon.

Disposition

[184] Mr. Rusha would you please stand.

[185] For the reasons I have given I find that the Crown has proven beyond a reasonable doubt that you were not acting in lawful self-defence when you stabbed Kadri and Taylon. As a result, I find you guilty of counts 1, 2, 3 and 4.

Spies J.

Oral Reasons Given: April 30, 2019

Written Reasons Released: October 4, 2019

COURT FILE NO.: CR-18-70000226

DATE: 2019/04/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Plaintiff

v.

SPIRO RUSHA

Defendant

REASONS FOR JUDGMENT

SPIES J.

Oral Reasons Given: April 30, 2019

Written Reasons Released: October 4, 2019

[^1]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [^2]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). [^3]: R. v. J.H.S., supra at para. 9. [^4]: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23. [^5]: R. v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 at p. 155 (BCCA).