Court File and Parties

NEWMARKET COURT FILE NO.: CR-18-9378-00 DATE: 20200207 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SAMUEL YZRAIIB Defendant

Counsel: Melissa Henry, for the Crown Mary Cremer, for the Defendant

HEARD: January 27, 28, 29, and 30, 2020

Reasons for Decision

Delivered Orally

de Sa J.:

Overview

[1] The trial proceeded before me last week. At the close of the evidence and after hearing submissions of counsel, I reserved my decision.

[2] These are my reasons.

Summary of Facts

[3] On November 8, 2018 at approximately 7:00 p.m. a fight occurred outside Entrance #4 at the Promenade Mall in Vaughan, Ontario between a group of young persons.

[4] One of those males was Amir Agronov. By the time security and police arrived on scene, Mr. Agronov was no longer at the Promenade Mall. Police received a dispatch to attend MacKenzie Health Hospital in Richmond Hill at 7:30 p.m. as Mr. Agronov had attended there and was suffering from multiple stab wounds. During the course of the fight at Promenade Mall, Mr. Agronov sustained wounds to his left chest/flank – two on the anterior side, and 1 to the posterior.

[5] Mr. Agronov spoke to police in the early morning of November 9, 2018 and described the other person he was in a physical fight with as a male in an orange jumpsuit.

[6] Mr. Agronov was not available to testify at the preliminary hearing and is not available for trial because on December 22, 2018 Amir Agronov died in an unrelated matter.

[7] Another male involved in the dispute on November 8, 2018 at the Promenade Mall at approximately 7:00 p.m. was the defendant, Samuel Yzraiib. He was wearing an all red track suit, with a red sweater and red pants that had white lines down the side. Mr. Yzraiib is known to mall security by the name of “Hungalo”.

[8] Security located Mr. Yzraiib at Entrance 4 of the Promenade Mall just after the fight concluded. Mr. Yzraiib had obviously sustained injuries during the fight. He was hunched over, dazed, and was struggling to walk. Security asked if he needed assistance, but Mr. Yzraiib did not respond. With the assistance of a female who was at the scene, Mr. Yzraiib got up and began to walk away. A blood trail was coming from Mr. Yzraiib as he crossed the mall parking lot and walked towards the library.

[9] Forensic identification officers attended the scene on the evening of November 8, 2018. They found blood at the scene and took swabs of blood from the ground and in the parking lot of the Promenade Mall. A total of three swabs of blood were taken. Testing revealed that the blood from the three swabs at the scene belonged to the defendant, Samuel Yzraiib.

[10] Packaging from two separate knives was located proximate to the fight scene. Mr. Yzraiib’s prints were identified on one of the packages.

[11] A male matching the description of Mr. Yzraiib and wearing a tracksuit had attended the Dollarama earlier that evening with another male. The other male asked the cashier if they sold knives/switchblades. They rushed out of the store and did not purchase anything. However, the knife packaging located at the scene was consistent with knives that were sold at the Dollarama.

The Fight

[12] Justin Gibson is a delivery driver for Gordon Food Services. He was called as a witness by the Crown.

[13] Mr. Gibson arrived at Entrance 4 of the Promenade Mall at around 7 p.m to make a delivery to Starbucks. He pulled along the curb and observed a group of people that appeared to be yelling at each other. At the time, he was more focussed on making his delivery.

[14] Mr. Gibson prepared his paperwork, exited the cab of his truck and released the air from the trailer. As he lifted the latch to the rear door of his trailer, he observed two males shoving each other. One of the males was in a red tracksuit. Shortly thereafter, the male in the red track suit pulled out a knife and he appeared to lunge at the other male. Mr. Gibson was about 30 feet away at the time this occurred. The knife appeared to be a pairing knife, approximately 6 inches in length.

[15] Fearing for his own safety, Mr. Gibson returned to the cab of his truck and waited inside for the fight to conclude. As he waited, Mr. Gibson could see the two males wrestling around on the pavement through the right-side mirror of his vehicle. At one point, the larger male looked to be on top of the male in the red jumpsuit. According to Mr. Gibson, the entire encounter only lasted a few minutes.

[16] Video of the actual confrontation between Mr. Yzraiib and Mr. Agronov was played at trial. While the person who took the video was not called to testify, the parties agree that it is a video of the actual confrontation between Mr. Yzraiib and Mr. Agronov on November 8, 2018. From the video, it is clear that Mr. Yzraiib and Mr. Agronov were involved in a fight on the evening in question.

Analysis

[17] Mr. Samuel Yzraiib is charged with the following offences:

1. That on or about the 8th day of November in the year 2018 at the City of Vaughan in the Regional Municipality of York, in committing an assault on Amir Agronov, would, maim, disfigure or endanger the life of the said Amir Agronov, and thereby commit an aggravated assault, contrary to section 268, subsection (2) of the Criminal Code.
2. That on about the 8th day of November in the year 2018 at the City of Vaughan in the Regional Municipality of York did possess a weapon, namely a knife, for the purpose dangerous to the public peace, contrary to Section 88, subsection (2) of the Criminal Code.

[18] The video tendered in evidence of the fight, together with the evidence of Mr. Gibson, the admitted facts, the evidence of the mall security guards, and the videos from inside the Promenade Mall just before 7:00 pm satisfies me beyond a reasonable doubt that Mr. Yzraiib was engaged in a fight with Mr. Agronov at Entrance 4 of the Promenade Mall on the evening of November 8, 2018.

[19] I am also satisfied beyond a reasonable doubt that Mr. Yzraiib was in possession of a knife on the evening in question. Given Mr. Agronov’s injuries and his statement, Mr. Gibson’s observations, together with the video of the fight, I am also satisfied that Mr. Yzraiib wielded the knife during the confrontation with Mr. Agronov and injured him.

[20] The defence argues that even if Mr. Yzraiib possessed a knife and used it against Mr. Agronov during the fight, Mr. Yzraiib’s actions would be lawful. The video of the fight makes it clear that Mr. Yzraiib was merely defending himself from Mr. Agronov who is a much larger man. He was clearly being overcome by Mr. Agronov during the encounter.

[21] The self-defence provisions contained in s. 34(1) of the Criminal Code state that a person is not guilty of an offence if:

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from the use or threat of force; and (c) The act committed was reasonable in the circumstances.

[22] In determining whether the act committed is reasonable in the circumstances, the court is required to consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors listed in s. 34(2) of the Criminal Code:

(a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[23] As explained in R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29, self-defence is not something which one “intends” in the criminal law sense. The phrase “defensive purpose” is apt and refers to the intention to assault an aggressor using only as much force as is necessary to repel or thwart the attack. R. v. Kerr, [2004] 2 S.C.R. 371, 2004 SCC 44, at para. 28. A pre-emptive strike may be warranted provided the conduct is reasonable in the circumstances: R. v. Fougere, 2019 ONCA 505.

[24] While the conduct is expected to be “reasonable” in the circumstances, a person under attack is not expected to react with detached reflection and to weigh their defensive force with nicety: R. v. Baxter (1975), 27 C.C.C. (2d) 96 at 111 (Ont. C.A.), R. v. Kandola (1993), 80 C.C.C. (3d) 481 at 489 (B.C.C.A.): R. v. Levy, 2016 NSCA 45 at para. 112. R. v. R.S., 2019 ONCA 832.

[25] The defence of self-defence is only in play if there is an evidential foundation (air of reality) for it. That foundation can arise from the surrounding circumstances. The accused need not testify: R. v. Finta, [1994] 1 S.C.R. 701, at page 847; R. v. Clark (1983), 1983 ABCA 65, 5 C.C.C. (3d) 264 (Alta C.A.), at page 266; R. v. Druken, 2002 NFCA 23, R. v. LaKing.

[26] In this case, the video tendered at trial makes clear that Mr. Yzraiib and Mr. Agronov were involved in a physical confrontation. From a review of the video footage, I am satisfied that in the context of that confrontation, Mr Yzraiib had to take steps to defend himself.

[27] The video itself is hardly complete. The footage is taken at night. There are also various moments during the confrontation that are not captured on film. In fact, the precise moment when the knife was used is not clear from the video. At various points, it is difficult to make out exactly what is transpiring.

[28] What is clear is that Mr. Agronov is much larger that Mr. Yzraiib and was overpowering Mr. Yzraiib for most of the fight. What is also evident is that other males were assaulting both Mr. Yzraiib and Mr. Agronov at different points during the encounter.

[29] Notably, at the end of the fight, Mr. Yzraiib ended up beaten up and on the ground. Mr. Agronov was on top of him.

[30] In the circumstances, I cannot say that Mr. Yzraiib’s actions or his use of a knife to defend himself was unreasonable in the circumstances.

[31] The evidence is unclear as to what led Mr. Yzraiib to obtain the knife, whether it was obtained from the Dollarama or whether it was obtained in the seconds leading up to the fight.

[32] I agree with the Crown that the evidence suggests the knife was obtained by Mr. Yzraiib at the Dollarama prior to the fight. Even if this is the case, however, I cannot say what led Mr. Yzraiib to obtain the knife, and whether it was obtained with a view to protecting himself from an imminent threat. If that were the case, I agree with the defence that he would be entitled to possess it for his own safety.

[33] It is the absence of evidence that leaves me with a doubt regarding the charges.

[34] Accordingly, the accused is acquitted on both charges.

Justice C.F. de Sa

Released Orally in Court: February 7, 2020

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.