Court File and Parties

COURT FILE NO.: CR-23-40000295 DATE: 20240621 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Martin Sabat and Geocelyne Meyers for the Crown

- and -

AHMED RAFIN Adam Weisberg and David Hakim for Mr. Rafin

HEARD: January 29 – 31, February 1, 2, 5, 7, 8, 9, 12, 13, 16, 19, 20, 22, 2024.

Reasons for Judgment

CORRICK J.

Introduction

[1] Maahir Dosani, a 15-year-old grade 11 student at Victoria Park Collegiate Institute, (“VPCI”) was tragically stabbed and killed during a brutal swarming incident on November 16, 2021. One of his closest friends, Ahmed Rafin, is charged with manslaughter in connection with Mr. Dosani’s death. Mr. Rafin was tried by me without a jury.

Overview

Events Leading to November 16, 2021

[2] The events in this case occurred in 2021. Mr. Dosani was new to VPCI in September and did not know anyone at the school. He became close friends with two classmates, Huma Ludin and Lara Alhamoud. Ms. Alhamoud had a younger brother, Mohammad Alhamoud, who was 14 years old and in grade nine at VPCI.

[3] Mr. Dosani, Ms. Alhamoud and Ms. Ludin regularly ate lunch together and travelled on the bus home together after school. On October 27, the three of them went to investigate the new all-gender washroom at VPCI. They walked into the washroom, took a video, and left.

[4] At the lunch break that day, another student told Mohammad Alhamoud that he had seen Mr. Dosani flirting with his sister in the all-gender washroom. This angered and embarrassed Mr. Alhamoud. He approached Mr. Dosani outside the school exit and without warning, punched Mr. Dosani in his face. When Mr. Dosani fell to the ground, Mr. Alhamoud and other students, who had gathered, kicked him. When someone tried to help Mr. Dosani get up, another student shoved him back to the ground. A video recording of the attack made on a cell phone captures the laughter and cheering of the gathered students during the attack.

[5] The video of the attack circulated amongst the students on social media. Mr. Dosani was humiliated by this event, having been beaten by a grade nine student in the presence of a large crowd of students. A copy of the video was discovered on Mr. Dosani’s cell phone after his death.

[6] Mr. Dosani felt that the only way he could restore his reputation was to have a one‑on‑one fight with Mr. Alhamoud. He told his friend, Daoli Onnon, that he was going to fight Mr. Alhamoud and asked him to be present to make sure that it remained a one-on-one fight. Mr. Dosani also told Mr. Onnon that he had asked Mr. Rafin to be present to “watch his back.”

Relationship between Ahmed Rafin and Maahir Dosani

[7] Mr. Rafin and Mr. Dosani were close friends. They met on an Instagram Group Chat in late 2018 or early 2109. Although Mr. Rafin was four years older than Mr. Dosani, the two became close friends. They both were from the Muslim community, lived in the same part of town, and loved playing video games. Although they spent most of their time together online, they got together once or twice a month.

[8] Ms. Alhamoud testified that Mr. Dosani introduced her to Mr. Rafin in September as his best friend, someone akin to his brother. Mr. Onnon testified that Mr. Dosani introduced Mr. Rafin to him the same way. Mr. Rafin testified that he considered Mr. Dosani like his little brother.

Events of November 16

[9] Mr. Dosani planned to have his one-on-one fight with Mr. Alhamoud after school on November 16. He asked Mr. Rafin to come to VPCI that day. CCTV footage from VPCI shows Mr. Onnon opening the door at Exit 11 of the school at 2:37 p.m. to allow Mr. Dosani and Mr. Rafin to enter. The three young men proceeded to a washroom in the school where they stayed until 2:41 p.m. At approximately 2:43 p.m., Mr. Rafin and Mr. Dosani left the school by Exit 11.

[10] While outside of Exit 11, Mr. Dosani and Mr. Rafin learned that Mr. Alhamoud had left school property and therefore would not be fighting Mr. Dosani that afternoon.

[11] Until this point in the sequence of events, there is nothing significant in dispute between the parties. Later in these reasons, I will detail the evidence I heard about the events that led to Mr. Dosani’s death. For now, I will simply sketch out the main events.

[12] A large crowd of students had formed outside of Exit 11 after school. It followed Mr. Dosani and Mr. Rafin as they walked to the field. Once on the field, the crowd of 40 to 50 students surrounded Mr. Dosani and Mr. Rafin. Mr. Rafin removed a knife from his pocket and displayed it to the crowd. Someone in the crowd struck Mr. Rafin, and Mr. Rafin was immediately swarmed by ten to fifteen people, who kicked him, punched him, and stomped on him while he was on the ground.

[13] Many of the bystanders recorded the swarming on their cellphones, and several videos were filed as exhibits. They depict the attack on Mr. Rafin, and Mr. Dosani’s attempts to assist him by pulling people away from him. Some of the videos show a knife in Mr. Rafin’s hand during the attack. Two students who participated in the swarming, Baber Ali, and Hadi Kheirallah, sustained severe cuts to their legs during the attack.

[14] The attack lasted slightly more than one minute. When it was over, someone noticed Mr. Dosani lying lifeless on the field. Several students attended to him. He was bleeding profusely. The students attempted to staunch the bleeding and performed CPR until paramedics arrived. Sadly, Mr. Dosani died from his wound.

Postmortem Examination

[15] It was not contested that Mr. Dosani died from a single stab wound to his right lower neck just above his collar bone. Dr. Williams, the pathologist who conducted the postmortem examination of Mr. Dosani’s body on November 17, was qualified to give expert opinion evidence in forensic pathology. He testified that any bladed instrument with a honed edge and a blunt edge could have caused the injury. The blade pierced Mr. Dosani’s skin and went down into his right chest cavity, damaging the right jugular vein, the right subclavian artery and perforating the top of his right lung. Bleeding would have been immediate and profuse.

[16] According to Dr. Williams, the wound would not have required much force as it only went through soft tissue, rather than bone or cartilage. Dr. Williams was unable to opine on whether the wound was caused by the blade being pressed against Mr. Dosani’s body or Mr. Dosani’s body pressing or falling against the blade.

Fundamental Legal Principles

[17] There are several fundamental legal principles that govern all criminal trials. The first is the presumption of innocence. Mr. Rafin began this trial presumed to be innocent. This presumption has remained with him throughout the trial. It is only displaced if I am satisfied that Crown counsel has proven the charge beyond a reasonable doubt.

[18] The second is that the Crown has the burden of proving the charge against Mr. Rafin. Mr. Rafin does not have to prove that he is innocent of this crime.

[19] Proof beyond a reasonable doubt is a very high legal standard. Likely or probable guilt is not enough. It is not proof of guilt beyond a reasonable doubt. On the other hand, the Crown is not required to establish guilt with absolute certainty. Nevertheless, proof beyond a reasonable doubt is much closer to absolute certainty than it is to proof of probable guilt: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242. Before I convict Mr. Rafin of the offence, I must be certain that he committed it. If I am not sure, I must acquit him.

Positions of the Parties

[20] I am going to set out the positions of the parties to provide a context for the evidence review.

[21] Crown counsel submits that the evidence proves beyond a reasonable doubt that Mr. Rafin is guilty of unlawful act manslaughter, and that the court can find that Mr. Rafin committed several unlawful acts to ground a manslaughter conviction.

[22] Crown counsel submits that first, Mr. Rafin committed the offence of assault with a weapon or assault causing bodily harm by intentionally swinging the knife to try to stab his attackers during the course of which he stabbed Mr. Dosani.

[23] Crown counsel submits that second, if the court does not find that Mr. Rafin intentionally stabbed at his attackers, the court can find that he committed the offences of possession of a weapon dangerous to the public peace and threatening to cause bodily harm by pulling the knife out of his pocket and displaying it to the crowd before anyone had drawn a weapon, and when the crowd was telling him to put the knife away. Mr. Rafin continued to hold the knife throughout the altercation during which Mr. Dosani was fatally wounded by the knife.

[24] Defence counsel submits that there are three routes to the acquittal of Mr. Rafin. First, there is no unlawful act as Mr. Rafin acted in self-defence. Second, the Crown has failed to prove that Mr. Rafin had the intent to harm anyone during the swarming. Third, the Crown has not established beyond a reasonable doubt that Mr. Rafin stabbed Mr. Dosani, causing his death.

Evidence Review

[25] I heard the evidence of eleven young people who were present at the attack on Mr. Rafin during which Mr. Dosani was wounded. Some of the young people were by-standers, others participated in the beating of Mr. Rafin. Assessing the reliability of the evidence of these witnesses is challenging. The death of Mr. Dosani and the events that led up to it were obvious topics of conversation between the students at VPCI, including the witnesses. Several videos of the attack were circulated among the students and the witnesses. It was often difficult to discern whether a witness was describing something the witness had seen on the field that day or something seen in a video the witness watched later. Similarly, witnesses often reported what they “had heard” rather than what they had observed themselves.

[26] In addition to the young people who witnessed the attack, the Crown called the following witnesses:

• Dr. Williams, the pathologist who conducted the post-mortem examination
• Gregory Kord, a paramedic who transported Mr. Dosani to the hospital
• Randy Still, a forensic scientist who performed DNA testing
• Several police officers
• Mohammad Alhamoud, the young person who assaulted Mr. Dosani on October 27, 2021
• Lara Alhamoud, Mohammad Alhamoud’s sister, and friend of Mr. Dosani
• Lascelles Grant, vice-principal of VPCI
• Maria Neag, vice-principal of VPCI

[27] Six videos of the swarming taken by witnesses on their cell phones were filed as exhibits together with still photographs captured from those videos. Video from surveillance cameras at VPCI and nearby homes and from police officers’ body worn cameras was also filed.

[28] Mr. Rafin also testified.

[29] Although I do not refer to all of the viva voce evidence and exhibits in these reasons, I have reviewed it and considered it in making my findings.

Mr. Dosani’s plan for November 16, 2021

[30] Officer Brennan worked in the Homicide Squad in November 2021. His responsibilities in this case included analyzing information that was extracted from the cell phones of Mr. Dosani, Baber Ali and Hadi Kheirallah. He prepared a report (Exhibit 31) outlining the contents of Mr. Dosani’s cell phone that were relevant to this investigation.

[31] On November 15, Mr. Dosani had a four-way chat on Instagram with Mr. Rafin (whose nickname was Juno), someone called BD, and an unknown person. During this chat, BD told Mr. Dosani that his “beef is a waste of time.” Two minutes later, when BD indicated that he wanted to talk about “tomorrow,” Mr. Rafin stated, “Off this gc.” Mr. Rafin testified that this meant that they should not talk about “tomorrow” on the group chat because it was not a private conversation.

[32] In an Instagram chat on November 16 starting at 11:44 a.m., between Mr. Dosani, Mr. Rafin, BD and an unknown person, BD told Mr. Dosani that he is not coming to the fight, and that Mr. Dosani’s “beef is stupid.” Mr. Rafin wrote nothing during that chat.

[33] Later, starting at 12:41 p.m., Mr. Dosani and an unknown person communicated on Instagram. During the conversation, Mr. Dosani wrote, “We gonna jam dis kid.” He asked the unknown person to be there at 2:45.

[34] On November 16, Mr. Dosani called Mr. Rafin five times between 11:41a.m. and 1:35 p.m.

[35] Daoli Onnon was a grade 11 student at VPCI. He was Mr. Dosani’s friend. Mr. Onnon testified that Mr. Dosani planned to have a “one-on-one” fight with Mohammad Alhamoud after school on November 16. Mr. Dosani asked Mr. Rafin and Mr. Onnon to help him by making sure that the fight remained a “one-on-one.”

Mr. Rafin arrives at VPCI

[36] Mr. Onnon was in the school on November 16. Surveillance video from VP shows that at 2:37 p.m., he opened the door at Exit 11 to let Mr. Dosani and Mr. Rafin into the school. The three of them went into the boys’ washroom for four minutes. When they left the washroom, they split up. Mr. Dosani and Mr. Rafin left the school through Exit 11, at the southeast corner of the school. Mr. Onnon left through Exit 12, at the southwest corner.

Events Outside of Exit 11

[37] Mr. Onnon testified that he was with Mr. Dosani and Mr. Rafin when they learned that Mohammad Alhamoud was picked up from school by his father and would not therefore be fighting. Mr. Onnon agreed in cross-examination that, at that point, he thought the whole affair was over. Messrs. Dosani and Rafin left and went across the field.

[38] Mr. Onnon had noticed a large crowd outside of Exit 11. The crowd moved to the field.

[39] Baber Ali was a grade 9 student at VPCI. He had known Mohammad Alhamoud since middle school. He had heard about the fight on October 27 between Mr. Dosani and Mr. Alhamoud.

[40] When Mr. Ali left school on November 16, he saw Messrs. Dosani and Rafin outside Exit 11. He heard them ask a large group of students where Mr. Alhamoud was.

[41] A large crowd started to form near Exit 11. The vice-principal, Mr. Grant, arrived and spoke to Messrs. Rafin and Dosani. After Mr. Grant spoke to them, Messrs. Rafin and Dosani started to walk away towards the field. Mr. Grant left the area, and a large crowd of 25 to 30 people started following Messrs. Rafin and Dosani. Mr. Ali followed with the crowd. When he was about six feet away from Mr. Dosani, he told him that Mohammad Alhamoud was not there. He did not recall any response from Mr. Dosani.

[42] Mohamad Hadi Abdul Hadi left school through Exit 11. He saw Mr. Grant telling Messrs. Dosani and Rafin to leave school property. Messrs. Rafin and Dosani walked on to the field. A large crowd of students followed them.

[43] Mr. Grant testified that 90% of the students leave the school through Exit 11 because it is a short walk from there through the field to a residential street that leads to Victoria Park Avenue.

[44] At 2:45 p.m. on November 16, Mr. Grant saw a large number of students congregating around Exit 11. He saw someone he did not recognize as a student of VPCI. It is admitted that Mr. Grant interacted with Mr. Rafin outside of Exit 11. Mr. Grant asked Mr. Rafin what his business was. Mr. Rafin replied that he was picking up his brother who was in grade nine. Mr. Grant asked Mr. Rafin to leave and wait for his brother at Tim Hortons. Mr. Grant escorted Mr. Rafin to the parking lot and showed him the way to Tim Hortons through the field. Mr. Grant testified that Mr. Rafin complied with his request and began to leave.

[45] Mr. Grant estimated that there were 50 students in the crowd around Exit 11.

[46] Ms. Bakola was a grade 12 student at VPCI. On November 16, she left school with her boyfriend, Alex Hudson, and others through Exit 11. A large crowd of 20 students had formed near Exit 11, and there was talk of a fight. Mr. Grant arrived and told everyone to leave school property.

[47] The crowd moved towards the field. She followed. As she was heading to the field, she saw a pocketknife in Mr. Dosani’s unzipped side jacket pocket. She did not know Mr. Dosani. She told Mr. Dosani not to use the knife. He said “okay” and went into the crowd.

[48] Mr. Maguinda was a grade 12 student at VPCI. When he left school on November 16, he saw a large group of students near the parking lot. It looked like a fight was going to happen. He walked over to the group. Mr. Grant also walked over to the group and asked everyone to leave. Someone told Mr. Grant that they were going to have a “rap battle.” Mr. Grant left.

[49] Mr. Maguinda moved back towards Exit 11. After Mr. Grant left, the crowd got bigger and began to move to the field.

[50] Hadi Kheirallah was a grade 11 student at VPCI. When he left school on November 16, he saw a crowd of 100 people outside of Exit 11. He started to walk toward the field when he noticed someone who was not a student. That person was Mr. Rafin. He asked Mr. Rafin why he was there. Mr. Rafin said something about “doing a lick,” which is slang for committing a robbery. Mr. Kheirallah did not remember Mr. Rafin’s exact words, but he remembered that it was a friendly conversation, and they both laughed about it. Mr. Kheirallah thought that Mr. Rafin was joking.

[51] Maya McKoy-Gilmore was a friend of Aaliyah Bakola. She was a grade 12 student at Senator O’Connor High School, a school nearby VPCI. On November 16, she met Aaliyah at VPCI after school at Exit 11. They heard that there was going to be a fight.

[52] A large crowd of students was forming on the field. She walked over to see what was happening. She spoke to Mr. Rafin, who told her that he was not there to fight. He said that he was there to “stain someone,” another slang term for robbing someone.

A Fight Breaks Out

[53] Witnesses provided varying accounts about what happened on the field. How the fight started is important to my analysis, so I will discuss the evidence related to that point in some detail.

[54] Many of the witnesses testified that Mr. Rafin was walking backwards away from the crowd as the crowd surrounded him.

[55] Mr. Onnon testified that he did not see the very beginning of the fight. He heard the crowd yelling, “fight, fight.”

[56] Baber Ali testified that Mr. Rafin was backing up slowly, facing the crowd. He had his hands in his hoodie pocket. A crowd of 25 to 30 people came towards Mr. Rafin. Mr. Rafin pulled a knife from his pocket and showed the crowd the handle. A boy in a blue sweatshirt grabbed Mr. Rafin and threw him to the ground. The crowd, including Mr. Ali, then began kicking Mr. Rafin. He did not see a knife in Mr. Rafin’s hand during the ensuing fight. Mr. Ali kicked Mr. Rafin a few times. His leg was cut when he kicked Mr. Rafin.

[57] Mohamad Hadi Abdul Hadi testified that he saw Mr. Rafin and Mr. Dosani backing up from a crowd of 30 or 40 people. He heard someone say that someone had a knife. He did not see a knife. Mr. Rafin had his hand in the right pocket of his hoodie. Mr. Dosani had his hands by his side. They were surrounded and then a fight broke out. He did not see how the fight broke out.

[58] Alexander Hudson was a student at VPCI. He testified that he saw a crowd of 20 or 30 people encircling two people, one of whom was Mr. Rafin. Mr. Rafin was backing up and walking away with his hand in the pocket of his pants. Mr. Hudson heard something about a knife. A boy in a dark blue hoodie pulled Mr. Rafin back into the circle, and 10 to 15 people began punching and kicking Mr. Rafin.

[59] During the attack, Mr. Rafin was holding a knife. He was swinging his arms to ward off kicks and punches while he was on his knees on the ground. When Mr. Rafin tried to get up, he was kicked backwards.

[60] Tiffany Laflamme, another VPCI student, testified that a large crowd followed Messrs. Rafin and Dosani across the field and then surrounded them. Mr. Dosani was standing beside Mr. Rafin, who had his hands in his pockets. She heard people in the crowd talking about someone coming to their school with a knife. She heard Mr. Rafin say to Mr. Dosani, “I thought we were coming here to hit a lick”. Ms. Laflamme testified that it sounded like Mr. Rafin was making up a “tough guy excuse” to get out of a fight.

[61] The crowd started kicking and punching Mr. Rafin. Mr. Rafin was on the ground. She could not see what was happening because everyone was on top of Mr. Rafin. Mr. Dosani was trying to help Mr. Rafin.

[62] When Mr. Maguinda saw the crowd of approximately 50 people around Messrs. Dosani and Rafin on the field, Mr. Rafin had a knife in his right hand. His right arm was down by his side. He was not waving the knife. Someone in the crowd told him to drop the knife. As Mr. Rafin was backing up to try to get away, the crowd surrounded him on all sides. Someone came up from behind Mr. Rafin and struck him in the head. Then approximately 20 people began punching and kicking Mr. Rafin. Mr. Rafin was kicked in the head multiple times. He tried to get up once but was kicked back down.

[63] At one point, Mr. Rafin was lying on the ground with his arms above his head. He was knocked out. People were still hitting and kicking him. Mr. Maguinda saw the knife beside Mr. Rafin’s hand. He picked it up and put it in his pocket to prevent anyone from using it.

[64] Ms. McKoy-Gilmore testified that she heard people in the crowd telling Mr. Rafin to leave, they were not going to fight him if he has a knife. She saw Mr. Rafin back up slowly to leave. He was surrounded by angry people. She thought the whole thing was over. Then someone punched Mr. Rafin, and more than ten people began fighting him.

[65] Ms. McKoy-Gilmore testified that during the fight, she saw one knife being swung around. She also testified that she saw a video of the fight that showed Mr. Dosani being stabbed. She saw Mr. Rafin on the ground swinging the knife to get people away. The knife was pointed upwards. Mr. Dosani tripped and fell on the knife. Mr. Dosani is not seen on the video afterwards.

[66] Ms. McKoy-Gilmore did not know who sent her the video. She deleted it approximately one month later after watching it a few times. She did not give it to the police. Ms. McKoy- Gilmore identified Exhibit 34A as the video she saw. It had been recorded by her friend, Aaliyah Bakola. After watching the video in court, Ms. McKoy-Gilmore agreed that Mr. Dosani is not seen falling on the knife. She testified that the quality of the video was much clearer when she originally watched it on her cell phone.

[67] Ms. Bakola testified that when she first saw Mr. Rafin on the field, he was backing up trying to walk away from an angry crowd of 40 or 50 people who were yelling at him. As he backed up, he was holding out a knife at hip level. He looked worried and upset. Someone punched him in the face, and then 20 people swarmed him. As people were beating him, Mr. Rafin was swinging the knife “like windshield wipers.”

[68] Ms. Bakola testified that she did not see how Mr. Dosani was injured during the swarming. However, she remembers seeing Mr. Dosani fall on the knife in a video of the swarming that she watched later. Mr. Rafin was on the ground being hit and stomped on. He had a knife in his hand. Mr. Dosani fell forward.

[69] Emma Lake, a grade 11 VPCI student, saw Messrs. Dosani and Rafin when they were on the field surrounded by a large group of people. She is “pretty sure” that she saw Mr. Rafin do a jabbing motion while he was standing on the field with a knife in his hand. Soon after she saw the jabbing motion, everyone attacked Mr. Rafin.

[70] Hadi Kheirallah was cut in the leg during the swarming. He testified that he did not see how the fight started. He saw Mr. Rafin surrounded by 40 or 50 people and saw 20 of them attacking him. When the fight started, Mr. Kheirallah got closer to try to stop it. Mr. Rafin was on the ground swinging the knife, trying to hit anyone he could. The other people were trying to protect themselves. Mr. Rafin was being hit, punched, and kicked by multiple people. After he was cut, he began kicking and punching Mr. Rafin. When Mr. Rafin was unconscious on the ground, Mr. Kheirallah kicked him in the head and said, “Get the fuck out of here pussy. What the fuck are you stabbing at?”

[71] A young man with an extendable baton is depicted in the video. None of the witnesses saw this baton during the attack, although it is clearly visible in the videos. Zion McLeod, a grade nine VPCI student, testified that he found the baton on the field and picked it up because he did not want anyone to use it as a weapon. He denied striking Mr. Rafin with the baton.

[72] Several videos of the swarming were filed as Exhibits. The outbreak of the fight is not depicted in any of them. Mr. Rafin is knocked to the ground almost immediately. When he tries to get up, he is knocked down again. Mr. Dosani can be seen on the videos trying to help Mr. Rafin by pulling people away from him.

[73] Mr. Rafin had a knife in his right hand throughout the attack. No other knives are seen on the videos. None of the witnesses testified that they saw anyone, other than Mr. Rafin, with a knife during the attack.

[74] At the end of the fight, Mr. Rafin was lying on his back motionless. Mr. Kheirallah kicked Mr. Rafin in the head. Another person spit on Mr. Rafin’s face. Zion McLeod pointed the extendable baton at Mr. Rafin’s face and told him that if he came back, he would end his life.

Aftermath of the Attack

[75] Emma Lake testified that after she saw Mr. Rafin lying on the ground semi-conscious, she looked around and saw Mr. Dosani lying in the grass with blood on his chest.

[76] Tiffany Laflamme testified that she saw Mr. Dosani lying on the ground approximately ten or 15 feet away from where Mr. Rafin was lying on the ground. She screamed, and most of the people fled.

[77] Mr. Maguinda saw Mr. Dosani on the ground and went to tend to him. He testified that someone had unzipped Mr. Dosani’s jacket and it was full of blood. He applied pressure where he thought Mr. Dosani’s wound was. Mr. Maguinda was wearing black wool gloves. He had Mr. Rafin’s knife in his pocket.

[78] He heard people saying that Mr. Rafin was running away. He went to chase him after others began performing CPR on Mr. Dosani. Mr. Maguinda removed the knife from his pocket with his gloved hands and dropped it on the field near where the fight occurred. He testified that he was nervous hanging on to it.

[79] Ms. Bakola testified that she saw Mr. Rafin get up, fall, get up again and leave the area.

[80] Ms. McKoy-Gilmore testified that she saw Mr. Rafin get up, pick up the knife and try to run. He collapsed twice before he was able to run away. After watching a video (Exhibit 35A) that showed Mr. Maguinda taking the knife from Mr. Rafin’s right hand, Ms. McKoy-Gilmore testified that she still recalled Mr. Rafin picking up the knife and running away. She admitted that she was possibly mistaken.

[81] Mr. Maguinda followed Mr. Rafin out of the field into the residential area. Mr. Rafin had no shoes on and appeared confused and disoriented. Mr. Maguinda described him as “not all there”. His clothing was ripped. He was scared and asked Mr. Maguinda not to hurt him. Mr. Maguinda told him that his friend was bleeding and Mr. Rafin voluntarily followed Mr. Maguinda back to the field where he waited for police and was arrested.

[82] First responders took Mr. Dosani to Sunnybrook Hospital. Tragically, Mr. Dosani died of his injury. Death was pronounced at 3:41 p.m.

[83] After Mr. Dosani was placed in the ambulance, Officer McKown saw a knife on the ground near where Mr. Dosani was found. The knife had the image of a bear on it. It was found in the closed position.

Mr. Rafin’s Arrest

[84] Officer Spicer arrived at the scene at 3:11 p.m. and arrested Mr. Rafin for attempted murder. Officer Spicer testified that Mr. Rafin appeared dazed and confused but was compliant. His responses to her questions were delayed. It was apparent to her that Mr. Rafin had a head injury. Officer Spicer’s body-worn camera recorded her interactions with Mr. Rafin.

[85] When he was arrested, Mr. Rafin said, “I didn’t do anything. I got beat up. I didn’t do anything.” He further said, “I just came here to meet up with my friend and they beat me up for no reason.” He said that he did not know his age. He had trouble focusing on Officer Spicer. When the officer asked him if he had been stabbed, he said, “I have no idea. … They used big weapons on me. Black. Something that came out.” He told the officer that his head was hurt. While speaking with the officer, Mr. Rafin passed out very briefly.

[86] Officer Spicer accompanied Mr. Rafin in an ambulance to the hospital. En route, she attempted to read him his rights to counsel, but Mr. Rafin was unresponsive. In response to the paramedic’s questions, Mr. Rafin said that thirty people beat him about the chest and head with metal sticks and fists.

[87] In the hospital, at approximately 4:32, Mr. Rafin told Officer Spicer that thirty people had punched and kicked him. He said, “What did I do to them? They brought big sticks, black metal that open up and beat me up with that.” Mr. Rafin had a visceral response upon seeing Officer Spicer’s police baton. He clung to the side rails of the hospital bed and was visibly shaking.

DNA Evidence

[88] The knife that Mr. Maguinda took from Mr. Rafin’s hand was sent to the Centre of Forensic Sciences (“CFS”) for DNA testing. Randy Still, a biologist at CFS, testified that swabs were taken from blood detected on the blade and handle of the knife. The swabs were subjected to DNA analysis.

[89] There was insufficient DNA on the blade of the knife to generate a sample for comparison. There was a small amount of blood near the pivot point of the folding knife. Mr. Dosani could not be excluded as the source of that DNA. DNA was detected on the handle of the blade. Mr. Rafin could not be excluded as the source of that DNA.

[90] Mr. Still testified that there are several ways that DNA can be transferred onto an item. DNA testing cannot determine the means of transference. Primary transference is the direct transference of DNA by a person to an object. Secondary transference is the transference of DNA from a person to another object or person to an object. He testified that wet bodily fluids transfer more easily than dry fluids.

[91] In response to hypothetical questions from counsel, Mr. Still agreed that DNA could have been transferred onto the pivot area of the knife if the knife had touched wet blood on the ground or if someone with bloody hands touched the knife.

Mr. Rafin’s Evidence

[92] At the time of the trial, Mr. Rafin was 21 years old. On November 16, he was 19. He was born in Bangladesh and immigrated to Canada with his parents and sister in April 2016. At the time of the offence, he was a student at Ryerson University studying business technology management.

[93] Mr. Dosani told Mr. Rafin that he was being bullied at school and that he had been beaten up by a grade nine student and his friends. This humiliated Mr. Dosani. The day before the offence, Mr. Dosani told Mr. Rafin that the bully was Lara Alhamoud’s younger brother, Mohammad. Mr. Dosani wanted to have a one-on-one fight with Mohammad to redeem his honour and stop the bullying.

[94] Mr. Dosani asked Mr. Rafin, another friend named Sash, and others to attend the fight to make sure that it remained a one-on-one fight and that he was not jumped by others. Mr. Rafin agreed to attend. He testified that he did not try to dissuade Mr. Dosani from this fight because he wanted to support his friend and not let him down. Mr. Rafin testified that he was immature and stupid not to have tried to put a stop to Mr. Dosani’s plan because he knew that Mr. Dosani was a gentle person and not a fighter.

[95] Once Mr. Rafin arrived at VPCI at approximately 2:45 on November 16, he, Mr. Dosani, and Mr. Onnon went into the boys’ washroom. While there, they vaped and discussed vaping flavours. Mr. Rafin denied having any conversation with anyone about the fight that was going to happen after school.

[96] Mr. Rafin and Mr. Dosani left the school and waited near Exit 11 for Sash to arrive. Someone said that Mohammad Alhamoud had left school property. Mr. Rafin thought the whole thing was over. He was relieved that Mr. Dosani was not going to fight.

[97] He heard some students arguing with Mr. Dosani. Mr. Rafin approached them and said that he and Mr. Dosani were leaving to do a “lick,” slang for a robbery. Mr. Rafin testified that this was not true. He said it only to give Mr. Dosani “street cred,” and make other students think that Mr. Dosani had tough friends.

[98] Vice-principal Grant approached Mr. Rafin and asked him what his business at the school was. Mr. Rafin said that he was waiting for his little brother. Mr. Grant asked him to leave and suggested that he wait for him at the Tim Hortons. He showed Mr. Rafin the route to the Tim Hortons. Mr. Rafin and Mr. Dosani started to leave the school by crossing through the field into the residential area.

[99] As he walked, Mr. Rafin called Sash to tell him to meet them at the Tim Hortons. Mr. Rafin spoke to Sash through his earbuds, which were later found, damaged, in the field. As he was on the phone, Mr. Rafin noticed a large group of students following him and Mr. Dosani, and then quickly surround them. The students were very angry. He told the students that they were leaving, and they did not want to fight. The crowd became angrier.

[100] Mr. Rafin saw two or three people with their hands in their pockets showing the handles of knives they were carrying in their pockets, one person displaying an open blade inside his jacket, and one person carrying an extendable metal baton. Mr. Rafin repeated that he was just there to “grab his boy and go and do a lick.”

[101] Mr. Rafin testified that he was afraid. He and Mr. Dosani were outnumbered and completely surrounded by an angry crowd of students, some of whom had weapons. He believed that the crowd was about to attack them. He reached into his pocket and took out a knife that he always carried. He opened the blade of the knife as he was backing away and showed it to the crowd. He expected the crowd to back away and allow him and Mr. Dosani to leave. Out of nowhere, someone punched him, knocking him to the ground. He was then swarmed by several people and kicked, punched, and struck with sticks. He believes that he lost consciousness multiple times during the swarming.

[102] Mr. Rafin held the knife in his hand during the attack. The video showed Mr. Rafin holding the knife by the handle with the blade sticking out from his pinkie finger. He testified that he held on to the knife instinctively. He did not use the knife to randomly stab at people. He was focused solely on trying to get away. He does not know if he caused the injuries to Messrs. Ali, Kheirallah, or Dosani. He did not know where Mr. Dosani was during the swarming. He knew that at one point, Mr. Dosani was close to him, trying to protect him.

[103] At the end of the attack, Mr. Rafin “came to.” People were around him. Someone threatened to kill him. He noticed that he no longer had his knife. He was not wearing any shoes. He feared that he would be attacked again. He wanted to get out of there. He got up to leave but fell back down again. He ultimately made his way into the residential area. He saw a person from the swarming following him. He was frightened. The person told him that Mr. Dosani was hurt, so Mr. Rafin followed him back to the field, where he was immediately arrested.

[104] Mr. Rafin testified that he had collected and traded “cool-looking” knives since high school. It was one of the interests that he had in common with Mr. Dosani. The knife Mr. Rafin had in his pocket on November 16 was unusual because it had holes in the handle. The knife that was found near Mr. Dosani was also unusual. It depicted a bear on the handle. Mr. Rafin testified that he did not know that Mr. Dosani was carrying a knife that day. Mr. Rafin testified that he always carried a knife in his pocket. He used it as a utility tool and to cut marijuana. He worked at Tim Hortons and used the knife to open boxes. When the knife is in the closed position, he could also use it as a screwdriver.

Applicable Legal Principles

Unlawful Act Manslaughter

[105] To prove that Mr. Rafin is guilty of manslaughter, the Crown must prove beyond a reasonable doubt that he committed an unlawful act that caused Mr. Dosani’s death: R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at para. 25.

[106] The Crown must also prove that the unlawful act was of such a nature that a reasonable person, in the same circumstances as Mr. Rafin, would recognize that it would subject another person to the risk of bodily harm that is neither trivial nor transitory: R. v. Creighton, 1993 CarswellOnt 115, at para. 12; [1993] 3 S.C.R. 3, at pp. 44-45.

Self-Defence

[107] When self-defence is raised, the burden falls on the Crown to satisfy the court beyond a reasonable doubt that Mr. Rafin was not acting in self-defence. Mr. Rafin does not have to establish that he acted lawfully.

[108] Self-defence, as set out in s. 34 of the Criminal Code, has three elements. The Supreme Court of Canada has described the elements as follows:

1. The catalyst: the defendant must believe on reasonable grounds that force is being used or threatened against him: s. 34(1)(a). This element has both subjective and objective components. The defendant must believe that force is being used or threatened against him, and that belief must be reasonable in all of the circumstances.

2. The motive: the defendant’s act that is said to constitute the offence must be done for the purpose of defending or protecting himself or others: s. 34(1)(b).

3. The response: the defendant’s act that is said to constitute the offence must be reasonable in the circumstances. This element also has subjective and objective components. To assess the reasonableness of the defendant’s actions, the circumstances and experiences of the defendant must be considered: s. 34(1)(c): R. v. Khill, 2021 SCC 37, at para. 5.

[109] A list of non-exhaustive factors the court should consider when examining the reasonableness of Mr. Rafin’s response is set out in s. 34(2) of the Criminal Code. I will address these factors later in these reasons. I am required to consider the relevant circumstance of Mr. Rafin, the other parties, and the act in question.

[110] I must bear in mind that people in stressful and dangerous situations do not have time for subtle reflection, and errors in interpretation and judgment will be made: R. v. Cunha, 2016 ONCA 491, at para. 7.

After the Fact Conduct

[111] Evidence has been led about Mr. Rafin’s conduct after the offence. Evidence of what a person did following the alleged commission of an offence is circumstantial evidence, which in some circumstances, can give rise to reasonable inferences about what the person did in relation to the offence: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para. 157.

[112] After the fact conduct must be treated cautiously to guard against jumping to the conclusion that a defendant is guilty based on how he acted after the fact. I must consider whether there are alternative explanations for the after the fact conduct such as, “panic, embarrassment, fear of false accusation or some other innocent explanation”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 117.

[113] In this case, the after the fact conduct relates to Mr. Rafin fleeing from the scene of the attack once he regained consciousness. I have found it of little probative value in determining Mr. Rafin’s role in the events. He had just been beaten by several people, and Zion McLeod had pointed a metal baton in Mr. Rafin’s face and told him that he would end his life if he came back. When Mr. Maguinda approached him, Mr. Rafin asked him not to hurt him. As soon as Mr. Maguinda told him that his friend was hurt, Mr. Rafin freely returned to the scene. He remained on the field when the police arrived, and he was arrested.

[114] Mr. Rafin’s after the fact conduct is not consistent with someone trying to escape capture but is consistent with someone trying to escape a further beating.

Assessments of Credibility and Reliability

[115] To arrive at a verdict in this case, I am required to determine issues of the credibility and reliability of witnesses, particularly Mr. Rafin. In doing so, I must remain mindful that the onus remains on the Crown to prove the case against him beyond a reasonable doubt.

[116] Credibility and reliability are different concepts. Reliability relates to the accuracy of a witness’s testimony and involves a consideration of the witness’s ability to accurately observe, recall and recount events. Credibility speaks of a witness’s willingness to speak the truth.

[117] When considering the issue of credibility and proof beyond a reasonable doubt, I am required to follow the approach laid down by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742. The approach is not formulaic and must be adapted to the facts of each case.

[118] In Mr. Rafin’s case, the approach must be modified to account for the objective component of self-defence: R. v. Reid, 2003 CarswellOnt 2701 (Ont. C.A.), at para. 72. In a case where self-defence is raised and a W. (D.) instruction is required, Moldaver J.A. (as he then was) held that the W. (D.) jury instruction should be modified as follows:

• If you accept the accused’s evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

• Even if you do not accept the accused’s evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

[119] Of course, the third step of W. (D.) still applies. Even if Mr. Rafin’s evidence does not leave me with a reasonable doubt, I may only find him guilty if I am satisfied on the basis of the evidence that I do accept that the Crown has proven the charge beyond a reasonable doubt.

[120] The evidence of Mr. Rafin must be considered in the context of the evidence as a whole and not in isolation.

Findings and Analysis

[121] I am going to begin with the evidence of Mr. Rafin. I found him to be a credible and reliable witness. He testified in a straightforward manner. His account of the events of November 16 was coherent, internally consistent, and supported by other evidence.

[122] I accept his explanation for attending at VPCI on November 16 and for having a knife in his pocket that day. It is not unreasonable that he would carry such a knife to use at work or to cut marijuana. Consistent with his evidence that he collected unusual knives, the knife in question had an unusual design.

[123] I want to address some of the Crown’s arguments about Mr. Rafin’s role.

[124] The first is that Mr. Rafin wanted to participate in a violent confrontation, helped plan the confrontation between Mr. Dosani and Mohammad Alhamoud, and encouraged Mr. Dosani in his plan. The evidence does not support this. Mr. Rafin admitted that he was stupid and immature not to try to dissuade Mr. Dosani from his plan to have a one-on-one fight with Mohammad Alhamoud but testified that he wanted to support his friend and did not want to disappoint him.

[125] The fact that Mr. Rafin did not attempt to dissuade Mr. Dosani from fighting Mohammad Alhamoud during the Instagram chat on November 16 is not evidence that he helped to plan the fight, nor is it evidence that Mr. Rafin encouraged Mr. Dosani. Mr. Rafin wrote nothing during that conversation. Similarly, the fact that Mr. Rafin suggested that Mr. Dosani and BD not talk about the fight while on an Instagram chat on November 15 is not evidence that Mr. Rafin helped to plan the fight or that Mr. Dosani planned anything more than a one-on-one fight.

[126] The second is the submission that Mr. Rafin did not leave school property when he was asked to do so by Mr. Grant but chose to stay around the school to participate in a fight. Mr. Rafin testified that he left the school when he was asked to. He and Mr. Dosani were walking through the field to head to Tim Hortons when the crowd of students followed them.

[127] Mr. Rafin’s evidence is confirmed by other witnesses. Mr. Grant testified that he told Mr. Rafin to wait at the Tim Hortons. He took Mr. Rafin to the parking lot and showed him the way to Tim Hortons. Walking through the field to the residential area, which leads to Victoria Park Avenue, is a route to a Tim Hortons, according to Mr. Grant. Mr. Grant testified that Mr. Rafin complied with his request and began to leave.

[128] Mohamad Hadi Abdul Hadi and Baber Ali testified that after Mr. Grant told Mr. Rafin to leave school property, Mr. Dosani and Mr. Rafin started to leave and were followed up on to the field by a large crowd. Tiffany Laflamme testified that Mr. Rafin and Mr. Dosani walked across the field. A crowd followed them and surrounded Mr. Rafin.

[129] Mr. Sabat also argued that, although Mr. Dosani was not Mr. Rafin’s intended target, there were intended targets. Mr. Sabat did not identify the intended targets. I find that the evidence does not support this. Mr. Rafin testified that he thought the fight was off when he learned that Mohammad Alhamoud had left school property. He was leaving and did not expect to be attacked by an angry mob of students. I do not believe that Mohammad Alhamoud was Mr. Rafin’s intended target.

[130] Finally, I want to address Mr. Sabat’s argument that Mr. Rafin committed the unlawful acts of assault with a weapon and assault causing bodily harm by intentionally stabbing at the people who were attacking him, and stabbing Mr. Dosani in the course of that.

[131] Mr. Rafin testified that he had the knife in his hand when someone punched him, knocking him out a bit. He fell to the ground and multiple people kicked and punched him and stomped on him. When he tried to escape, he was quickly taken back down to the ground and beaten more. The attack is well depicted in the many videos filed as exhibits.

[132] Mr. Rafin testified that once he was punched, he held on to the knife instinctively. This is not unreasonable in my view given the brutality of his attackers. Holding on to the knife prevented the attackers from using it on him. Mr. Rafin testified that he did not deliberately swing the knife in an attempt to stab his assailants.

[133] I do not intend to repeat in detail the evidence of the eyewitnesses that I outlined previously.

[134] In brief, Mr. Hudson testified that he saw Mr. Rafin swinging his arm out from the elbow when he was on his knees. He saw Mr. Rafin do this more than once but could not say how many times. When Mr. Rafin tried to get up off the ground, he was kicked backward. Mr. Hudson did not see the knife connect with anyone.

[135] In cross-examination, Mr. Hudson agreed that Mr. Rafin was making these movements while he was being beaten to the ground and trying to get up. He did not see Mr. Rafin make these movements when he was standing. He agreed that it was possible that Mr. Rafin was not using a swinging motion but was moving his arms in reaction to being punched and kicked and pushed around by his attackers.

[136] Ms. Bakola testified that while 20 people were beating Mr. Rafin, he was swinging the knife in a horizontal direction. She described the motion as akin to the motion made by windshield wipers. In cross-examination, she agreed that the movement could have been the result of Mr. Rafin being kicked in different directions.

[137] Ms. McKoy-Gilmore testified that during the fight, she saw a huge pile of people and a knife swinging around. She acknowledged that at the preliminary hearing held in February 2023, she testified that she did not see a knife during the fight. She only saw a knife on the ground after the fight. She testified that she was telling the truth at the preliminary hearing and that was how she remembered things in 2023. However, she testified that in 2024, she remembers things differently. She agreed in cross-examination that it was possible that the swinging motion she saw was the natural movement of Mr. Rafin’s arm as he was being beaten from different directions.

[138] Baber Ali participated in the beating of Mr. Rafin. His leg was cut during the beating. He testified that he kicked Mr. Rafin a few times. He acknowledged that his leg was cut while he was kicking Mr. Rafin.

[139] Hadi Kheirallah was the only witness who testified that Mr. Rafin was swinging the knife trying to hit anyone he could. He testified that Mr. Rafin swung the knife between 10 and 15 times while he was lying on his back. People were trying to protect themselves. Mr. Kheirallah testified that his leg was cut on Mr. Rafin’s third swing of the knife.

[140] Mr. Kheirallah was not a credible witness. His evidence at trial was inconsistent with his evidence at the preliminary hearing and with the statements he gave police at the scene and later at the police station. He lied under oath on several occasions.

[141] It is clear from a review of the videos of the attack that the attackers were not avoiding contact with Mr. Rafin to protect themselves from his knife. On the contrary, when Mr. Rafin had a few seconds to break free, the attackers continued after him, knocking him back to the ground.

[142] Mr. Kheirallah’s leg was injured, and he did not flee after the fight. He told an officer who arrived on the scene that he had not been involved in the fight. He said that his leg was cut when Mr. Rafin was pushed towards him, and the knife hit his leg.

[143] Later that night, Mr. Kheirallah was interviewed at the police station. He told police then that Mr. Rafin was pushed his way and accidentally hit him with the knife. He repeated that Mr. Rafin cut him accidentally, not on purpose. He said that Mr. Rafin was flailing and trying to catch his balance.

[144] At the preliminary hearing, Mr. Kheirallah testified that he thought that he was cut by accident when Mr. Rafin was pushed into him. All of Mr. Kheirallah’s previous statements are contrary to the evidence he gave at trial.

[145] Mr. Kheirallah lied under oath at the preliminary hearing when he denied, three times, that his voice can be heard at the start of one of the cellphone videos, Exhibit 22. At trial, he acknowledged that it was his voice and testified that he did not know why he had lied about it.

[146] Mr. Kheirallah also lied under oath at the trial. In chief, Mr. Kheirallah testified that he did not retrieve his telephone while he was in the hospital. The police had seized it, and he had been instructed by Officer McKown, who was with him in the hospital, not to touch it. Video footage from Officer McKown’s body worn camera shows Mr. Kheirallah removing his phone from the property bag and using it for approximately 13 minutes. Officer McKown was alerted to this when the phone fell on the floor.

[147] Mr. Kheirallah also lied under oath when he testified that he was not avoiding the police in order to avoid coming to court to testify. He was supposed to testify on February 7. He did not attend, and police officers were unable to contact him. On February 13, he spoke to an officer who advised him of the consequences of failing to appear in court pursuant to a lawful order. Mr. Kheirallah acknowledged that he laughed at the officer and told him that he would have to find him first.

[148] It would be dangerous to rely on the evidence of Mr. Kheirallah. I reject it.

[149] I have reviewed the videos several times and do not see any part where Mr. Rafin is intentionally swinging the knife in an attempt to assault anyone who was attacking him.

[150] In considering all the evidence on this point, I have instructed myself on the inherent dangers of eyewitness testimony. I believe that Mr. Hudson, Ms. Bakola and Ms. McKoy-Gilmore are honest witnesses, and they did their best to recount the events of that day. This event happened very quickly. The scene was chaotic and disturbing. After reviewing all the evidence, I am not satisfied beyond a reasonable doubt that Mr. Rafin intended to assault his attackers with the knife or to cause them harm.

[151] I turn now to Mr. Sabat’s argument that Mr. Rafin also committed the unlawful acts of possession of a weapon dangerous to the public peace and threatening bodily harm.

[152] I am going to begin with an analysis of whether Mr. Rafin acted in lawful self-defence on November 16. If I have a reasonable doubt about whether he was acting in lawful self-defence, I must find him not guilty. I turn to the three elements of self-defence set out in s. 34(1) of the Criminal Code.

Did Mr. Rafin believe on reasonable grounds that force was being used or threatened against him or another person?

[153] As Mr. Rafin and Mr. Dosani walked across the field to leave, they were surrounded by a group of between 30 and 50 students. The crowd was angry and yelling. Mr. Rafin testified that he was fearful. He was backing up and telling the crowd that he was not there to fight and that he was leaving. He testified that he saw someone carrying an extendable metal baton and saw two or three other people showing the handles of closed knives they had in their pockets. He also saw one person display a knife with an exposed blade inside the person’s open jacket.

[154] Video footage of the attack on Mr. Rafin shows Zion McLeod wielding an extendable metal baton and using it while threatening to end Mr. Rafin’s life.

[155] Mr. Sabat argues that I should reject Mr. Rafin’s evidence that he saw others with knives because there is no evidence that any other knife was involved in the attack. I accept that there is no evidence of any other knife involved in the attack. I am dealing only with what Mr. Rafin saw before the attack.

[156] There is a good deal of evidence that it was not unusual for students at VPCI to carry knives and other weapons and to be involved in physical fights. Mr. Grant testified that violence was a particular problem at VPCI, and the school had previously been locked down after a weapon had been found. He would not be surprised if several students from VPCI had knives. Other witnesses who testified about the prevalence of violence at VPCI and the likelihood that students at that school carried knives included Mohamad Hadi Abdul Hadi, Alexander Hudson, Tiffany Laflamme, Emma Lake, John Maguinda, Aaliyah Bakola, and Maya McKoy-Gilmore.

[157] When Ms. Bakola testified that she saw a knife inside Mr. Dosani’s pocket, I asked her how she was able to see it. She responded, “At VP everybody … there were so many fights, like, everybody knows what a pocketknife looked like.”

[158] The fact that none of the witnesses saw anyone displaying a knife or extendable baton is understandable. The witnesses were focused on Mr. Rafin. Mr. Rafin’s perspective was different. He was focused on the crowd.

[159] The only witness who testified that he had not seen people at VPCI carry knives was Baber Ali. At the preliminary hearing, he testified that students at VPCI commonly carry knives to cut up weed. At trial, he testified that he had lied about this. Mr. Ali was interviewed by police twice on November 16, once under oath. On six occasions throughout those interviews, Mr. Ali told police that he saw multiple people in the crowd at the swarming carrying knives. At the preliminary hearing, he testified that he was mistaken on those six occasions.

[160] Mr. Ali also lied when he told the police that he was not one of Mr. Rafin’s attackers. When asked why he lied, he testified that he did not expect the police to come into possession of video footage showing him to be one of the attackers. He lied at the preliminary hearing when he said that he did not know that the fight between Mr. Dosani and Mohammad Alhamoud was connected to the swarming. When asked why he lied about that, he said that he was only worried about getting himself out of trouble.

[161] Mr. Ali is not a credible witness and I do not accept his evidence that it is not common for students at VPCI to carry knives.

[162] I accept Mr. Rafin’s evidence that he saw students displaying knives and an extendable baton. I also accept his evidence that the crowd was angry and yelling before he displayed his knife. A crowd of up to 50 students followed him and Mr. Dosani on to the field before anyone mentioned the presence of a knife. There must have been a reason for that, but it is not known to me.

[163] In accepting Mr. Rafin’s evidence on this point, I have not relied on his statement to Officer Spicer made in the hospital hours later that his attackers had knives. In my view, that statement has very little weight. It was not a spontaneous statement made when Mr. Rafin was first confronted with the accusation that he had stabbed someone: R. v. Edgar, 2010 ONCA 529.

[164] I am satisfied that Mr. Rafin believed on reasonable grounds that a threat of force was being made against him and Mr. Dosani before he displayed his knife. The Crown has not disproven the first element of self-defence beyond a reasonable doubt.

Did Mr. Rafin take the knife out and display it to defend or protect himself and Mr. Dosani from the threat of force?

[165] Mr. Rafin testified that he removed the knife from his pocket and opened it as he was backing away from the crowd. He believed that once the crowd saw that he had a knife, it would back away and allow him and Mr. Dosani to leave.

[166] Several witnesses testified that Mr. Rafin was backing up, facing the crowd just before the attack: Mohamad Hadi Abdul Hadi, Baber Ali, Aaliyah Bakola, Alexander Hudson, and Maya McKoy-Gilmore.

[167] Mr. Ali testified that as Mr. Rafin and Mr. Dosani walked backwards, the crowd came forward. Mr. Rafin had his hand in his pocket and pulled out a knife to show the handle. Then someone grabbed him and threw him to the ground.

[168] Ms. Bakola testified that Mr. Rafin was walking backwards to leave, and he was holding the knife at hip level with the blade pointing straight out when he was punched in the face. She demonstrated to the court by holding a pen at hip level, fairly close to her body.

[169] Mr. Hudson testified that Mr. Rafin was surrounded by students. He was in the middle of the circle with his hand in his pocket. He began to back up to walk away. A student wearing a dark blue hoodie pulled Mr. Rafin back into the circle, and between 10 and 15 people started kicking and punching him.

[170] Tiffany Laflamme testified that she did not see Mr. Rafin do anything with the knife before 30 people attacked him.

[171] Emma Lake testified that when she first saw Mr. Rafin on the field, he had the knife in his hand. She was “pretty sure” that she saw Mr. Rafin do a jabbing motion with the knife just before he was attacked. In cross-examination, she agreed that the jabbing motion was consistent with Mr. Rafin pulling a knife out of his pocket and showing the crowd that he had it.

[172] John Maguinda testified that Mr. Rafin and Mr. Dosani were inside a big circle of people. He saw Mr. Rafin standing with a knife in his right hand. Mr. Rafin’s right arm was down by his side, slightly away from his body. As Mr. Rafin was backing up trying to get away, the crowd shifted towards him and surrounded him on all sides. Someone came up behind Mr. Rafin and struck him in the head. Everyone then swarmed him. He did not see Mr. Rafin waving the knife.

[173] I am satisfied that Mr. Rafin took the knife out of his pocket and displayed it to the crowd to defend himself and Mr. Dosani from the threat posed by the crowd of angry students, some of whom had weapons. The Crown has not disproven the second element of self-defence beyond a reasonable doubt.

Was it reasonable in the circumstances for Mr. Rafin to display the knife to the crowd?

[174] The third element of self-defence requires an examination of Mr. Rafin’s response to the threat of force. Reasonableness is measured according to “the relevant circumstances of the person, the other parties and the act:” Criminal Code, s. 34(2). The standard of reasonableness in this element blends objective and subjective considerations. The reasonable person test is modified to account for certain characteristics of the defendant, such as his size, age, and capabilities, and for certain experiences of the defendant: Khill, at para. 64.

[175] Although the relevant circumstances of the defendant can include any mistaken beliefs reasonably held by the defendant, the focus must remain on the reasonableness of the defendant’s action and not his mental state: Khill, at para. 66.

[176] Section 34(2) of the Criminal Code sets out a list of non-exhaustive factors for the court to consider in determining whether Mr. Rafin’s actions were reasonable in the circumstances. It provides as follows:

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

(a) the nature of the force or threat;

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

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

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

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

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

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

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

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

[177] No single factor is determinative: Khill, at para. 69.

The nature of the force or threat: s. 34(2)(a)

[178] On the facts as I have found them, Mr. Rafin was facing a hostile crowd of between 30 and 50 students, some of whom were armed. Mr. Sabat submits that no one had touched Mr. Rafin before he displayed the knife, and no one had shown him any weapons. This ignores the objective evidence from the video showing Zion McLeod wielding an extendable baton. It also ignores the fact that Mr. Rafin and Mr. Dosani were vastly outnumbered.

[179] I agree with the defence submission that even if the crowd had no weapons, Mr. Rafin faced the threat of serious physical injury by being beaten by an angry mob.

[180] I accept that Mr. Rafin was facing a significant threat to his physical safety.

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: s. 34(2)(b)

[181] The use of force was imminent. I have found that the threat of force existed before Mr. Rafin displayed the knife. The crowd was hostile. As Mr. Rafin walked backwards retreating from the crowd, the crowd advanced on him. He and Mr. Dosani were surrounded, making escape impossible. Mr. Grant had left that area to go to the front of the school. He testified that it was possible that there were no other teachers near the field when the attack started.

[182] Mr. Sabat submits that Mr. Rafin could have put the knife away when told to by the crowd and then run away. It is highly speculative that the crowd would have permitted Mr. Rafin to leave had he done that. I find that certain members of the crowd were intent on assaulting Mr. Rafin. That is why they followed him on to the field in the first place.

[183] I find that the use of force against Mr. Rafin was imminent and that there were no other means available to him to respond.

The person’s role in the incident: s. 34(2)(c)

[184] This factor requires an examination of the extent to which Mr. Rafin played a role in bringing about this conflict. I am required to consider all of his conduct from beginning to end that is relevant to determining whether the act (in this case, the display of the knife) was reasonable in the circumstances: Khill, at paras. 123-124.

[185] Some of the findings I have already made are relevant to this factor. Mr. Rafin did not plan the confrontation between Mohammad Alhamoud and Mr. Dosani. He did not encourage or counsel Mr. Dosani to fight Mohammad Alhamoud. He did not take a knife to VPCI because he thought he might have to use it. As I have already indicated, he did not cause the confrontation by displaying the knife. The crowd was already confronting him and Mr. Dosani when they followed them on to the field.

[186] I have considered that Mr. Rafin exercised poor judgment throughout this incident. He knew that Mr. Dosani looked up to him as a big brother and valued his advice. Yet he failed to try to dissuade Mr. Dosani from a potentially dangerous confrontation with Mohammad Alhamoud even though he knew that Mr. Dosani was not a fighter. Even if Mr. Rafin did not think he could have persuaded Mr. Dosani not to go through with his plan, he did not even try.

[187] Mr. Rafin also foolishly tried to appear to be a “tough guy” to the students in the crowd by saying that he and Mr. Dosani were going to do a robbery and were not there to fight. He testified that he did this to give Mr. Dosani “street cred” in the eyes of the students so that the bullying of Mr. Dosani would stop. I do not believe that he was going to rob anyone. The witnesses who testified that they heard Mr. Rafin’s comment did not take him seriously. Ms. Laflamme testified that she thought he was making an excuse to get out of a fight and make himself look tough. Mr. Kheirallah testified that he thought Mr. Rafin was joking, and the two of them laughed about it. I do not know if others in the crowd heard Mr. Rafin’s comment and what their reactions were.

[188] Mr. Rafin did not initiate the violence that occurred in the field. I have found that as he was leaving the school premises as asked by Mr. Grant, he was confronted by an angry mob of students. He displayed his knife when he thought he was at risk of being attacked by several people, some of whom were armed. He was retreating when he was attacked.

Whether any party to the incident used or threatened to use a weapon: s. 34(2)(d)

[189] Mr. Rafin displayed the knife after seeing someone carrying an extendable metal baton and others displaying knives in their pockets and inside their jackets. He held the knife at his side hoping that it would cause the crowd to retreat and allow him and Mr. Dosani to leave. He did not brandish the knife at the crowd or even point it at the crowd. He did this while he was retreating.

[190] Video footage shows Zion McLeod using the baton during the attack. Near the end of the attack, Zion McLeod is seen pointing the baton at Mr. Rafin, who is lying on the ground, and is heard saying, “come back and I will fucking end your life.” Zion McLeod denies saying this to Mr. Rafin. Zion McLeod was not a credible witness. I find that he did utter those words.

The size, age, gender and physical capabilities of the parties to the incident: s. 34(2)(e)

[191] Mr. Rafin turned 19 on August 19, 2021, three months before this offence. Mr. Dosani was 15 years old. Mr. Rafin weighed approximately 145 lbs. It appeared from video footage that he was slightly taller than Mr. Dosani. According to the post-mortem report, Mr. Dosani weighed 132 lbs. and was 5'6" tall.

[192] The students who participated in the attack on Mr. Rafin were younger than he was. The cellphone videos filed as exhibits show them kicking, punching, and stomping on Mr. Rafin. They were clearly physically able, and they significantly outnumbered Mr. Rafin.

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: s. 34(2)(f)

[193] Mr. Rafin knew that Mohammad Alhamoud and others had assaulted Mr. Dosani at VPCI several weeks prior to the offence. He did not know the people who attacked him. Given that, there is no prior use or threat of force to consider. The lack of any relationship between the parties is not entirely irrelevant, however. Mr. Rafin was confronted with a large group of angry students. He did not know why they had followed him and Mr. Dosani and what had made them so angry. It is reasonable to believe that he did not know how dangerous the crowd was or how far it would go.

[194] There was a close relationship between Mr. Dosani and Mr. Rafin. They were very close friends. Mr. Rafin was at VPCI that day at the request of Mr. Dosani.

Any history of interaction or communication between the parties to the incident: s. 34(2)(f.1)

[195] There is no history of interaction or communication between the parties to the incident.

The nature and proportionality of the person’s response to the use or threat of force: s. 34(2)(g)

[196] Mr. Rafin’s response of removing the knife from his pocket, opening it and holding it down by his side while he was walking backwards retreating from the crowd was proportionate to the imminent threat posed to him and Mr. Dosani by the angry crowd. The estimated number of students in the crowd was between 30 and 50. Hadi Kheirallah estimated it to be 100. The crowd was yelling at Mr. Rafin and advancing on him. Even if Mr. Rafin had not seen any weapons in the crowd, his response would have been proportionate given how outnumbered he was.

[197] I cannot agree with Mr. Sabat that Mr. Rafin could have simply withdrawn. His avenues of escape were blocked by the students.

Whether the act committed was in response to a use or threat of force that the person knew was lawful: s. 34(2)(h)

[198] This factor is not applicable on the facts of this case.

[199] In the final analysis, after taking into account all the relevant factors listed in s. 34(2), I conclude that the Crown has not proven that Mr. Rafin’s response was unreasonable in all of the circumstances. Mr. Rafin found himself quickly surrounded by hostile strangers and he resorted to a folding knife that he always carried with him. He did nothing more than show it.

[200] The Crown has not disproven the third element of self-defence beyond a reasonable doubt.

[201] I find that Mr. Rafin was acting in lawful self-defence when he displayed the knife to the crowd.

Conclusion

[202] In conclusion, for all of the above reasons, I am not satisfied beyond a reasonable doubt that Mr. Rafin committed an unlawful act that caused the death of Maahir Dosani. I therefore find him not guilty.

Corrick J. Released: June 21, 2024