COURT FILE NO.: 379/18

DATE: 20190925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Inmar Kheder

N.C. Kuehn, for the Crown

L. Afolabi, for the Defendant

HEARD: July 3, 2019

grace j. (ORALLY)

A. Introduction

A. Introduction

1A November 5, 2017 incident resulted in Mr. Kheder being charged with two offences: carrying a weapon for a purpose dangerous to the public peace and carrying a concealed weapon, contrary to ss. 88(2) and 90(2) respectively of the Criminal Code.

2Counsel conducted an efficient trial on July 3, 2019. Decision was reserved until today.

B. The Crown’s evidence

B. The Crown’s evidence

3Joao Simas was the only witness called by the prosecution. I start by summarizing his evidence.

4Mr. Simas told the court that he had been living in Canada for more than twenty-five years. While able to understand and speak some English, he received the assistance of a Portuguese interpreter while testifying.

5The witness was heading to work in the early morning hours of November 5, 2017. His route involved driving eastbound on Dundas Street in London, Ontario. He planned to stop for coffee at a McDonald’s restaurant along the way. As he approached his destination, the interaction between a male and female caught his attention. While unfamiliar to him at the time, the identities of those persons are now known to be Mr. Kheder and his then romantic partner Winter Ripski. From now on I will refer to them by name.

6Mr. Simas said the pair were fighting. Specifically, he saw Mr. Kheder grab Ms. Ripski’s arm. She tried to pull away while screaming “leave me alone”.

7The witness recalled pulling into the parking lot. He stopped near the couple, rolled down the driver’s side window and told the man to leave the woman alone. As he spoke to Mr. Kheder, Ms. Ripski pulled away from the defendant and ran quickly toward the McDonald’s restaurant.

8Mr. Kheder responded to Mr. Simas. He thought Mr. Kheder asked, “Do you want any problems?” The witness said that he did not. The Crown’s witness testified that during this short exchange he saw the blade of a small knife Mr. Kheder had withdrawn from inside the front of his pants. The defendant pointed it in the direction of the witness and asked again whether Mr. Simas wanted any problems. Mr. Simas repeated his negative response and told Mr. Kheder that he only wanted him to leave the woman alone. Since Ms. Ripski had already left the scene, Mr. Simas drove away.

9Video recorded by surveillance cameras mounted inside and outside the McDonald’s restaurant was shown during the trial. Ms. Ripski was seen entering the establishment at 5:46 a.m. Mr. Kheder followed about five seconds later.

10In examination-in-chief, Mr. Simas was asked about the quality of the lighting given the time of day. He said that the sun was starting to rise and that the parking lot was lit. He was also asked about the effects of injuries suffered in an October 2018 motor vehicle accident. The witness said that his memory had been affected. He had forgotten some of the details of the brief incident he described but was confident that he had accurately described the things he was able to remember.

11Mr. Simas’ ability to make accurate observations was challenged during cross-examination for reasons beyond the aftermath of the accident in which he had been involved. Defence counsel suggested that Mr. Simas did not have the ability to see what he described because of darkness, rainfall and poor eyesight.

12Images captured by a surveillance camera mounted on the exterior of McDonald’s were shown to the witness. Ms. Ripski was approaching the establishment with Mr. Kheder trailing behind. No sunlight had begun to break the dark of night.

13When asked about the weather conditions, Mr. Simas said that rain had paused and did not commence again until he was in the process of providing a statement to a police officer many minutes later. Mr. Simas acknowledged that rainfall was clearly visible in the McDonald’s surveillance video. Nonetheless, his resolve that it was not raining at the time of his interaction with Mr. Kheder did not waver.

14During his testimony at the preliminary hearing the witness said that he was having trouble seeing the monitor that had been set up for him. When asked about his vision, Mr. Simas said that he required glasses only when watching television or reading.¹ The witness was adamant that he was able to see the events he described.

15Mr. Simas’ memory of the words exchanged was also challenged. The proposition that he had misunderstood Mr. Kheder because of a limited grasp of the English language was advanced and rejected. He disagreed with the suggestion that the words actually used by the defendant were “this isn’t your problem”.

C. The Defence evidence

C. The Defence evidence

16Mr. Kheder testified although he had no obligation to do so. He readily acknowledged an early morning encounter with Mr. Simas on the day in question. The defendant offered some background information.

17Mr. Kheder and Ms. Ripski were romantically involved. They lived together. She had been at a party without him. Mr. Kheder joined her later. Ms. Ripski was intoxicated. Soon after his arrival, Ms. Ripski got into an altercation of some kind. She was furious that Mr. Kheder had not intervened.

18The drive home was not harmonious. Ms. Ripski screamed at Mr. Kheder. She kicked him. Somewhere along the way, there was a change of destination. Mr. Kheder decided to drop Ms. Ripski off at her mother’s. The keys to the home the parties shared were in Ms. Ripski’s possession. He wanted them. She refused to hand over.

19When the kicking and screaming continued, he pulled into the parking lot of the Salvation Army Thrift Store, just east of McDonald’s. Mr. Kheder and Ms. Ripski got out of the car. When asked in-chief what they were doing when Mr. Simas pulled up, Mr. Kheder said he was asking for the keys and that Ms. Ripski was not agreeing.

20In cross-examination he said that after exiting the motor vehicle Ms. Ripski continued to scream at and kick him. Mr. Kheder testified that he was disappointed with Ms. Ripski’s behaviour but remained calm. He simply continued to ask Ms. Ripski to give him his keys. He denied yelling or pulling at her. When asked in cross-examination if he touched Ms. Ripski, he said he could have “subconsciously – she is my girlfriend”.

21The defendant recollected a short conversation with Mr. Simas. He agreed that the Crown’s witness said something like leave her alone. In-chief Mr. Kheder said that he responded by telling the would-be Samaritan that the situation was not his problem. During cross-examination he told the Crown attorney that he ignored the comment at first. In that phase of the trial, he remembered the response being uttered when Mr. Simas “kept saying stuff”.

22According to the defendant a knife was not produced at any time. Mr. Kheder told the court that he did not have one in his possession. The accused said that after addressing Mr. Simas he jogged after Ms. Ripski before joining her inside the McDonald’s.

23During direct examination, the defendant was asked to watch video taken of the front counter at the fast food restaurant. Ms. Ripski had just entered the establishment and walked to the far end of the service area. She was joined there by a McDonald’s employee. After entering, Mr. Kheder paused briefly, then walked forward and joined the duo. Audio was not captured. However, a conversation clearly took place.

24Mr. Kheder said that he continued to ask Ms. Ripski for the house keys. When the McDonald’s employee interjected, the defendant said he told him to mind his own business and that the situation was not his problem. He acknowledged that Ms. Ripski asked him to leave and that the McDonald’s employee did too. The discussion ended soon after the fast food worker pointed in the direction of the camera. Almost immediately Mr. Kheder walked toward the exit. He confirmed that he left the premises as requested. In cross-examination he agreed that he re-entered the restaurant about twenty minutes later and again asked Ms. Ripski to return the keys to the residence the couple shared.

D. The Position of the Parties

D. The Position of the Parties

25I turn briefly to the parties’ positions.

26The defence argues that the Crown has not proven that Mr. Kheder had a knife in his possession on November 5, 2017. The credibility and reliability of the evidence provided by Mr. Simas was challenged.

27Honesty was questioned on the basis that: (i) the witness insisted rain was not falling at the time of his interaction with Mr. Kheder even in the face of the surveillance video played during his cross-examination; (ii) Mr. Simas said he only needed to wear glasses while watching television during the preliminary hearing but said he also needed them to read when cross-examined at trial; and (iii) the witness refused to make reasonable concessions. For example, the estimate of the length of the incident provided by Mr. Simas was five minutes when it could only have been seconds long.

28Counsel for the defendant argues that Mr. Simas’ account of what he heard and saw is unreliable because: (i) eyewitness testimony is inherently problematic, even when expressed with confidence; (ii) Mr. Simas has a limited grasp of the English language; (iii) it was dark at the time of the incident; (iv) ongoing precipitation limited the ability of the witness to make accurate observations; (v) Mr. Simas has poor eyesight; (vi) the interaction was brief; (vii) the video shows that Mr. Kheder was wearing loose fitting jogging pants making the presence of a knife unlikely; (viii) Mr. Kheder’s demeanour inside the McDonald’s restaurant was calm and unthreatening; and (ix) the account provided by Mr. Simas was contradicted by credible and reliable evidence given by Mr. Kheder.

29The accused’s counsel contends that the court should believe Mr. Kheder. Alternatively, his testimony should leave the court with a reasonable doubt. Even if his account does not have that effect, the rest of the evidence, when properly considered, assessed and weighed, does not meet the criminal standard of proof: R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

30The Crown acknowledges that the principles set forth in R. v. W. (D.) apply but argues that Mr. Kheder was not credible or reliable. The Crown submits that Mr. Simas, on the other hand, provided an account that was, in all material respects, truthful and accurate.

31The prosecution relies on an often-quoted passage drawn from R v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.). At para. 53, Doherty J.A. said in part:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.²

32The Crown argues that after considering the entirety of the evidence, a finding of guilt should be made.

E. The Applicable Principles

E. The Applicable Principles

33The usual, fundamental and accepted principles apply. Mr. Kheder is presumed innocent. He does not have to prove a thing.

34The onus of proof is borne by the Crown throughout. A finding of guilt can only be made if all of the elements of the offences with which Mr. Kheder has been charged have been proven beyond a reasonable doubt. In that regard, the defence identified the sole question that is in dispute in this trial at the commencement of the case, namely, whether the Crown has met its onus of proving to the criminal standard that Mr. Kheder was in possession of a knife.

35While absolute certainty is an impossibly high standard, probable guilt is not enough. The court must be sure that Mr. Kheder carried a knife at the material time as is alleged. Nothing less will do.

36Mr. Kheder has denied being in possession of a knife on November 5, 2017. I have mentioned R. v. W.D. To summarize the principles it established, if Mr. Kheder’s testimony is believed, he must be found not guilty because the Crown will have failed to prove an essential element of the charges he faces under ss. 88(1) and 90(1) of the Criminal Code.³ Even if not believed, the same result follows if his testimony leaves the court with a reasonable doubt as to whether he carried the weapon Mr. Simas described. If his evidence does not have either effect, a conviction can still only be entered if, on the totality of the evidence that is accepted, the court is sure that Mr. Kheder was carrying a knife at the time of the alleged offences.

F. Analysis and Decision

F. Analysis and Decision

37I start with the observation that many of the facts of this case are not in dispute. These are the most significant examples of the events that occurred outdoors. They were the subject of oral evidence given by the defendant and the prosecution’s witness and an external surveillance camera.

38There was a heated argument involving the accused and Ms. Ripski. The participants were in plain view as Mr. Simas approached.

39The dispute caught the witness’ attention. He stopped his vehicle near the two individuals he had observed. There was a brief conversation involving Mr. Kheder and Mr. Simas. Mr. Simas’ words are not in dispute. He told Mr. Kheder to leave Ms. Ripski alone. As the surveillance cameras confirm, Ms. Ripski ran toward the McDonald’s. Mr. Kheder followed some distance behind.

40I turn briefly to the events that occurred inside the McDonald’s. Mr. Simas could offer no assistance there. He had already driven off. This narrative is drawn from the testimony given by Mr. Kheder and the images captured by internal surveillance.

41As noted, Ms. Ripski entered the restaurant a few seconds before Mr. Kheder. She immediately moved as far away from him as she could. Even without the benefit of sound, it is clear her conduct attracted the almost immediate attention of a McDonald’s employee. Ms. Ripski did not welcome Mr. Kheder as he advanced towards her. Tension was palpable despite the absence of any physical contact. After a short interaction, Mr. Kheder was directed to leave the premises and did so.

42The witnesses disagree about two things: (i) what Mr. Kheder said in response to Mr. Simas; and (ii) whether Mr. Kheder produced a knife from the inside of his pants.

43In my view, nothing turns on the first point. The second is, of course, crucial.

44I return to Mr. Kheder’s version first. While he conceded disappointment, even eventual anger, he emphasized to the court that he remained calm throughout the sequence of events that culminated in the charges he faces. An inebriated girlfriend initiated an argument because he did not come to her aid during an earlier confrontation with someone else.

45She screamed and kicked him as he drove toward home. That behaviour continued outside the car while he simply, albeit repeatedly, asked Ms. Ripski to hand over the house keys. Only in cross-examination did he acknowledge the possibility that he made physical contact with his partner. The choice of “subconsciously” to describe his state of mind was a curious one. The immediate reference to Ms. Ripski as his girlfriend to explain or justify touching, if it occurred, was even more so.

46Bluntly, I reject Mr. Kheder’s testimony on this point completely. An argument that involved only the exchange of words would not have caused Mr. Simas to intervene. I accept his evidence that he saw a physical altercation, specifically Mr. Kheder grabbing Ms. Ripski by the arm and her unsuccessful effort to extricate herself.

47Furthermore, Mr. Simas would have had no reason to direct his initial remark to the defendant if matters had unfolded as the accused explained. Why would Mr. Simas tell the defendant to leave Ms. Ripski alone if she was the aggressor and Mr. Kheder was passively receiving the blows she delivered? If Mr. Kheder was told to leave Ms. Ripski alone in the circumstances he described, why would the defendant first ignore Mr. Simas and then, when pressed, respond by telling Mr. Simas the confrontation was not his problem? His reaction defies common sense.

48The sequence of events that follows does not fit with Mr. Kheder’s version either. Ms. Ripski was the one that left the scene. In a hurry. In the time that she was seen in McDonald’s no effort was made to place an order. She was clearly seeking sanctuary – distance from Mr. Kheder and assistance from the staff. Mr. Kheder – the person who was allegedly kicked repeatedly – is the one seen approaching. There was almost no hesitation and no sign of discomfort or fear. To the contrary, once on the move he advanced steadily and with purpose. He did not withdraw until directed to do so.

49That brings me to the key allegation; the production of a weapon. Mr. Simas said he saw Mr. Kheder reach into the front of his pants and pull out a small knife. The handle was not visible, only the blade. The weapon was pointed in Mr. Simas’ direction when the final words were spoken. The event happened quickly. It caused an immediate reaction. The witness said he did not want any problems and he left, abandoning for a time his plan to buy a cup of coffee at McDonald’s.

50Mr. Kheder denied having a knife let alone producing one. Then what did Mr. Simas see? Nothing? No. Mr. Simas saw exactly what he described. That is why he left the area immediately and did not return until he saw a police presence at the McDonald’s about twenty minutes later. With respect, the defence suggestion that a knife could not have been concealed within Mr. Kheder’s pants is not grounded in the evidence. It is sheer speculation.

51On the key points that I have referenced, I did not believe Mr. Kheder. His testimony did not leave me with a reasonable doubt. The surveillance evidence, both inside and outside the McDonald’s, provided important context.

52Mr. Simas was a credible witness. While brief, this was a dramatic and memorable event for him. Despite imperfections in his recollection concerning rainfall and sunrise, the occasional need for corrective lenses and an inability to accurately estimate the duration of the incident, I have no hesitation in concluding that the details of the incident as relayed by Mr. Simas were accurate in every material respect.

53After considering all of the evidence introduced at trial as summarized in these reasons, I am certain that Mr. Kheder was in possession of, carried and pointed a knife in the direction of Mr. Simas. The Crown has proven beyond a reasonable doubt the element of the alleged offences that is in dispute.

G. Conclusion

G. Conclusion

54For the reasons given, I find the defendant guilty of:

i. Carrying a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code; and

ii. Carrying a concealed weapon without being authorized under the Firearms Act, contrary to s. 90(1) of the Criminal Code.

55Convictions are hereby entered.

Footnotes

1. 1Mr. Simas said that he was unable to read.
2. 2See, too, R. v. R.A., 2017 ONCA 714 at paras. 55-56, aff’d 2018 SCC 13, [2018] S.C.J. No. 13.
3. 3The indictment refers to ss. 88(2) and 90(2). Those are the subsections that deal with penalty. I have referred to the subsections that outline the offences.