Ontario Superior Court of Justice

Court File No.: CR-23-0147-00
Date: 2025-03-31

Between

His Majesty the King
Applicant
R. Kozak and T. Bud, for the Crown

-and-

Khalid Mohamed
Respondent
A. Marchetti and S. N. Sookram, for the Accused

Heard: October 28, 29, 30, 31, November 1, 12, 13, 14, 18, 20, 2024, at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton

Criminal Decision

Overview

[1] Khalid Mohamed is charged with the second degree murder of Steven Burns on October 17, 2021.

[2] It is not disputed that Mohamed stabbed Burns and that the stabbing caused Burns’ death.

[3] What is disputed is whether Mohamed acted in self-defence when he stabbed Burns, or whether provocation would reduce the charge from second degree murder to manslaughter.

Evidence

[4] Twenty-one witnesses testified. Most of the witnesses, except those described below, were not present to see the confrontation between Mohamed and Burns.

The Location

[5] Mohamed stabbed Burns near the north entrance to the Gateway Casino (the “casino”) on Park Avenue in Thunder Bay. The casino takes up the width of a city block, with an entrance to the south on Pearl Street and an entrance to the north on Park Avenue. To the east of the casino both Park Avenue and Pearl Street intersect with South Cumberland Street.

[6] At 36 South Cumberland Street, between Pearl Street and Park Avenue, there is an apartment building. Apartment 3 at 36 South Cumberland Street was rented by Kylie Hancock. This apartment was used by Mohamed to sell drugs, (a location known as a “trap house”). Apartment 3 was on the second floor and was accessed by two staircases: one from Cumberland Street and the other from an alley at the rear, or west, of the property.

[7] The alley began at Park Avenue immediately east of the casino and headed south to Pearl Street but turned into a “dead-end” before reaching Pearl Street. Another “trap house” was located in a ground floor apartment, apartment 1-38 South Cumberland. This apartment was accessed through the alley.

[8] Immediately north of the alley entrance on Park Avenue, and across the street, was an apartment building in which several witnesses resided.

Mohamed in Thunder Bay to Sell Drugs

[9] Khalid Mohamed is 28 and was 25 in 2021. He lived in Toronto. He said that, in 2021, he was 6’2” and weighed about 150 pounds.

[10] He graduated from high school and dropped out of university after attending one year.

[11] He was in Thunder Bay to sell drugs. This was his second trip. Previously, in September 2021, he came to Thunder Bay and was set up in a “safe house”, a place where he could sleep and keep his drugs and cash. He was given another location to sell from, a “trap house.” This location did not generate sufficient business, so his contact put him in touch with a drug user who directed him to Kylie Hancock’s apartment at apartment 3 – 36 South Cumberland.

[12] Part of what he described as the “program” was to keep a low profile, so he travelled by bus from Toronto because identification was not required. He also dressed “disheveled”, like a drug user, to blend in. Most of the drugs and cash were kept at the safe house, and he would only have a small quantity of drugs (an ounce) and cash (less than $5000) on him at the trap house. Only small amounts were kept so the loss would not be great if he was robbed at the trap house and, if raided by the police, the charges would be less serious, with bail being more likely. Because he was located adjacent to the bathroom, he could flush the drugs if the police arrived. Giving the drugs and cash to a robber rather than resisting helped to maintain a low profile and avoid violence. In his experience, violence “begets” more violence. He would be resupplied by a runner from the safe house, who would pose as a buyer and bring more drugs and then return the cash to the safe house.

[13] He paid Kylie in drugs per hour for the use of her apartment (“house pay"). Kylie or another person would act as a runner or doorman to let in purchasers while Mohamed would remain secreted in a back room.

[14] In his first three or four-day trip to Thunder Bay, he made a little under $50,000 with an investment of about $7000 in drugs. He described this as an “amazing” return. Mohamed described the drug traffic as “ridiculous” and “extreme” due to the large number of people looking for drugs.

[15] Because his venture was so lucrative, he returned to the city on October 15, but brought more drugs – nine ounces of cocaine, three ounces of fentanyl, and 100 oxycontin pills – so he could make more money this time.

[16] He set up his trap house at Kylie’s apartment at 3-36 South Cumberland, again.

October 17, 2021

[17] Fern Chisel was Burns’ partner. Five days after Burns’ death she discovered that she was pregnant with his child.

[18] On October 17, Chisel and Burns had gone for a bike ride and then Burns, who had an addiction to fentanyl, asked her to take him to the ground floor apartment, 1–38 South Cumberland, in the alley beside the casino so he could get drugs. Ms. Chisel is not a drug user, but she took Burns there and entered this apartment shortly after Burns did. A woman, Brittany, was present along with others. When she entered the apartment, she could tell that Burns had taken drugs by his mood. He used “down”, or fentanyl. She was present in that apartment for fifteen to thirty minutes, told Burns she was leaving, told him she would come back for him in a couple of hours, and then left to meet her father. She left about 3:30 p.m.

[19] She returned to the apartment at about 7:30 p.m. but Burns was not there. Her cousin, Cloud Chisel, was present but he, and the others present, could not tell her where Burns had gone. She returned home and then began to check other places, “trap houses”, where Burns might be.

[20] About a week earlier, she had been with Burns when he bought drugs in the upstairs apartment.

The Robbery

[21] Mohamed testified that, at about 2 p.m., two men – Ricky Sakakeesic and Kiefer Jabic – came to Kylie’s apartment to buy drugs.[^1] Jabic was known to Kylie. They smoked their drugs there and then left.

[22] Later, Sakakakeesic and Jabic returned with Burns. Sakakeesic and Jabic asked to be put on consignment, that is, they would receive drugs from Mohamed and return with the cash once the drugs had been sold. They suggested that Burns could work as the door man. Mohamed was noncommittal, and Sakakakeesic and Jabic left while Burns remained.

[23] Mohamed was privately told by his runner/door man that Burns was known “for robbing traps” and Mohamed then told all the drug users in the apartment to leave and that he already had a door man.

[24] Brittany Muir was the occupant of apartment 1-38 South Cumberland Street and was selling drugs out of her apartment. She knew Sakakeesic and Jabic. She also knew Burns, but not well, as she had only met him about a month before. She said that these three men always carried knives because she had seen them use knives to cut crack. Sakakeesic, Jabic, and Burns were in her apartment, and she heard them talking about “going next door” to Kylie’s to rob somebody. She could not remember whether any of these three had knives then. She did not remember having seen the knife that Mohamed used to stab Burns.

[25] Mohamed testified that, at around 9:00 p.m., the doorbell rang, and Kylie went downstairs to let whoever rang the doorbell in. He heard Kylie return with others and assumed that a transaction was about to occur. Instead, Burns, Sakakeesic, and Jabic entered the back room where Mohamed was sitting.

[26] When he saw them enter, Mohamed moved to stand up but was pushed back down on the chair with Burns holding Mohamed’s right hand, Jabic holding his left hand, and with Sakakeesic in the middle in front of him. Sakakeesic had a large, serrated knife with two prongs at the end, Burns had a “silver dagger”, and Jabic had a blunt object. Mohamed described being punched by Burns, who was using his knife hand, and beaten by Jabic with a blunt object while Jabic was telling Sakakeesic to stab him.

[27] Mohamed testified that he was frightened and that he thought he was going to die. The three men asked him where the drugs and cash were located, and he told them that the cash and drugs were in his pocket.

[28] Sakakeesic cut and ripped off Mohamed’s left side pants pocket and took the fentanyl and about $5000 in cash. He said that he “has it” and then the three stopped beating Mohamed and left the room.

[29] As they left the room, Mohamed grabbed Jabic’s leg and asked them to “send my shit back”. Then, Jabic and Burns began to beat Mohamed. At this point, they were partly out of the door of the apartment and partly in the hallway, with Mohamed on the floor.

[30] During the beating, a gold watch on Mohamed’s wrist and jewelry around his neck were exposed. He had three chains around his neck that were tucked inside his shirt. Jabic took the watch from Mohamed’s wrist and Burns took the jewelry from around Mohamed’s neck.

[31] Once they took his watch and jewelry, Mohamed screamed the following: “Send back my chain. That’s important.”

[32] Mohamed testified that the watch and jewellery had both economic and sentimental value. His uncle purchased the watch for him in Saudi Arabia when their family was on a pilgrimage. He thought the value of the watch was a “couple thousand” dollars. Of the three necklaces, one was a “Hamsa” pendant worth a “little less than $10,000”. This necklace was gifted to him by a friend who died in 2018. The two other necklaces were valued at about $700 and $1200.

[33] When arrested later, Jabic had a Gucci belt and a sweater that had been in Mohamed’s “go bag”, which Mohamed had with him in the apartment. A knife resembling the knife used by Sakakeesic was found discarded a few blocks away. A surveillance camera captured images of two men with a backpack in that area at shortly after the approximate time of the robbery.

[34] About twenty seconds after Jabic and Burns left with his watch and jewellery, Mohamed decided to pursue Burns, who was the last of the three that he saw. He exited the apartment down the stairs to South Cumberland Street and headed towards Pearl Street.

[35] Markell Blankenbaker lived with his mother in an upstairs apartment at 36 South Cumberland Street across the hall from apartment 3. He heard what he described as an “argument, banging, swearing” from across the hall. He looked through a peep hole in his apartment door when the “argument” spilled out into the hallway. He saw fighting, which he described as two against one, but could not identify who was fighting. He did not see any weapons.

The Stabbing

The Casino Surveillance Video

[36] Video surveillance captured images of Burns, followed by Mohamed, approaching, entering, and exiting the casino, then entering and exiting the alley, Burns running from Mohamed, and then Mohamed grabbing Burns. The surveillance video does not record the further confrontation between Mohamed and Burns.

[37] This is a summary of what is depicted on the surveillance videos:

• 21:33 Burns walking west on Pearl Street with Mohamed following behind and on the other side of the street;
• 21:33:12 After looking behind, Burns opens door to casino on Pearl Street;
• 21:33:27 Mohamed enters the casino while covering his face with his hoodie;
• 21:33:53 Mohamed runs after Burns inside the casino;
• 21:33:54 Burns exits casino on Park Avenue and turns south;
• 21:34:02 Mohamed exits casino and turns north;
• 21:34:30 Mohamed checks a vehicle across street, then turns south;
• 21:33:59 Burns runs into the alley from Park Ave;
• 21:34:40 A white SUV driven by Fern Chisel enters the casino parking lot off of Park Ave;
• 21:34:49 Mohamed runs into the alley from Park Ave;
• 21:35:35 Burns runs out of the alley to Park Ave followed by Mohamed, also running;
• 21:35:38 Burns runs into rear corner of parked truck, Mohamed grabs Burns with his right hand, confrontation not seen;
• 21:35:58 Fern Chisel runs toward them;
• 21:36:20 Fern Chisel and Burns get up and walk away, Burns collapses;
• 21:37:28 Fern Chisel and Ken Cockburn attend to Burns on the pavement;
• 21:39:38 Police arrive.

[38] Observed in the surveillance videos are the witnesses Meagan Owen, Ken Cockburn, and Fern Chisel.

The Witnesses to the Confrontation

[39] Meagan Owen and her partner lived in an apartment building across the street from the casino. She was seated beneath the fire escape at street level while smoking and saw Burns[^2] exit the alley, followed by Mohamed about 15 feet behind. Burns started to run and was chased by Mohamed but Burns ran into the back of a parked truck, causing him to stumble, which allowed Mohamed to catch up to him. They struggled while standing, and she heard Burns say something like “I don’t have it”. She did not hear Mohamed say anything. They fell to the ground with Mohamed on top of Burns. She could not see much of what was happening between them, as Mohamed’s back obstructed her view. She saw Mohamed attempting to strike blows, but never saw Mohamed strike Burns.

[40] She saw Fern Chisel approach and attempt to pull Mohamed off Burns. Owen saw Mohamed stand up, and then saw Chisel help Burns up. She heard someone ask a question about someone having been stabbed. That is when she saw a knife in Mohamed’s right hand. Mohamed moved back into the alley, and she called 911. While talking to the 911 operator she saw Mohamed exit the alley and head towards Cumberland Street at a jog. She gave Mohamed’s description to the 911 operator.

[41] Later, she saw Mohamed in custody in a police cruiser.

[42] Ken Cockburn is Meagan Owen’s partner. He was in his car which was parked on Park Avenue. He saw Mohamed exit the casino and first walk towards Court Street and then turn and walk back toward Cockburn, past the casino exit and then into the alley. A short time later, he saw Burns run out of the alley, chased by Mohamed. As he was running, Burns “clipped” the back corner of a parked vehicle and stumbled, allowing Mohamed to catch up to him. They were in a “standing tussle” and then fell to the pavement, with Mohamed on top and punching Burns. He did not see any weapons, or a knife, and he did not see Burns “throw a punch or anything like that.” He did not see any motion by Mohamed that resembled a stab. He heard both men shout but could not make out what was said. He saw Fern Chisel approach and attempt to kick Mohamed, and then saw Mohamed run into the alley. Cockburn got out of his car to help Burns, who had collapsed to the pavement after having been helped up by Chisel.

[43] He also saw Mohamed in the police cruiser later.

[44] Brian Arbour lived in the same apartment building as Owen and Cockburn. He was on the fourth-floor fire escape. His testimony was inconsistent with the surveillance video and is, therefore, unreliable. He described Burns walking out of the alley with a woman and that Mohamed tripped Burns and straddled him. He did not see any punches or stabbing motions, nor did he witness Burns or Mohamed running.

[45] Fern Chisel returned to the casino area to look for Burns and pulled into the casino parking lot to a spot where she could observe the alley so she could see Burns enter or leave. While she was sitting in her vehicle, she saw two men running out from the alley. Initially, she did not recognize them, but then recognized Burns, who was being chased by Mohamed. She saw them “kind of like start to face each other and fight”. She jumped out of vehicle and ran to intervene. She thought that she tried to kick Mohamed off Burns, who was on the pavement with Mohamed on top of him. She heard Mohamed ask Burns, “[w]here’s my shit?” and heard Burns reply, “I don’t got nothing” or something like that. She then heard Mohamed say “[l]et go of me” to which Burns said “[n]o.” That is when she looked at their arms and saw that Burns was holding onto Mohamed and that Mohamed was “kind of” holding onto Burns too and that Mohamed had a knife.

[46] She saw blood on Burns’ face asked him, “[d]id he stab you”, to which Burns replied “yes.” She did not see Mohamed get off of Burns but remembered seeing Mohamed run away. She tried to call 911. As Burns stood up, she heard a splash on the ground. Burns said that he was dizzy and fell to the pavement.

[47] In cross-examination, she said that Burns would not carry a knife. She also said that she did not recall seeing Burns and Mohamed swing punches at each other, and did not see Mohamed stab Burns.

[48] Mohamed testified that once he left the apartment and got to South Cumberland Street, he could not see Jabic or Sakakeesic, but followed the last person he saw, which was Burns. He pursued him because he thought that if Burns got away, he was not going to get his jewelry back. He said he did not really care about the money and drugs, as the amount was “inconsequential”.

[49] As he followed Burns, he was not certain of the path they took. His glasses were broken in the robbery. He knew that he followed Burns through an establishment but did not know it was a casino. While following Burns he was telling Burns to “send back his stuff.” Mohamed admitted that he was angry.

[50] He lost sight of Burns once he left the casino, and thought that Burns had entered a car, so he went to look in a car that was pulling away from the curb. Not finding Burns, he headed back towards the casino, saw the alley, and thought that Burns must have gone there. When he got to the end of the alley, where there was no exit, he turned, and saw Burns running out of the alley.

[51] Mahomed testified as follows:

So, I chase him. While I’m chasing him, he hits a pickup truck and begins to stumble in another direction. I change, I change my direction mid-stride as well and I begin to stumble. I’m grabbing onto him. And as he’s stumbling, he falls, and I fall on top of him.

After I fall on top of him, I realize that he’s reaching for something over his left shoulder. I look up and it’s, it’s a knife he’s going for. At that point, I panic. I know for a fact that if he gets that knife in his hands, he’s going to use it on me. So, I do my utmost best to make sure that I get the knife. So, I’m doing my best to hit it out of his hand with my left hand while trying to grab for it in my right hand. In the course of doing that, I cut myself on my wrist, my left wrist. Once I’m able to obtain the knife in my right hand, he’s, he’s almost fanatical in doing his best to get that knife out of my hand. And he’s a lot stronger than me at that moment. I’m screaming at him, telling him to let go of me, let go of me. He’s not letting go of me. He’s pulling me closer to him and he’s trying to get control of the hand that had my, the knife in. So, I do what I thought was best in order to ensure that he wasn’t, to ensure that he can't get that knife. I tried to stab him. At first, I didn't even thought, I didn't even think I hit him because he’s still holding onto me and I’m doing my best to try to get him to let go of me. As he’s pulling me closer still, I try to stab him again. And then he’s still holding onto me. I didn't think I hit him again. But after a second or two, he lets go of me. And once he lets go of me, I get up and I run away.

[52] When he first saw the knife, with the blade open, it was on the pavement and Burns was reaching back for it over his left shoulder. Then Burns had the knife in his left hand and tried to “orientate it with his right hand”. At that point, Mohamed was hitting the hand that was going for the knife.

[53] Once Mohamed gained control of the knife with his right hand, he pushed down with his left hand and tried to get away from Burns but Burns grabbed him and pulled him closer and attempted to gain control of Mohamed’s right hand.

[54] In cross-examination he described what happened next:

Um, I tell him, I scream, “Let go of me.” He – I don’t, I don’t recall if he responds or not to be honest. I try to wrench my, my body away from him. I'm not successful. I try to do it twice. I'm not successful. Then he gets both hands onto my arm, the one that has the knife in it. He gets – the hand is locked on my elbow, and when that happens, I scream, “Let go of me,” again, and he doesn’t do it. So, then I, I try to stab him. At the time I didn’t even think I hit him because he still has both his hands on me and not letting go of me. I go again and try to stab him, and at the time again I didn’t think I hit him because he’s still holding onto me. And then after a second or two, he lets go of me. When he lets go of me, I'm not thinking about my jewelry anymore. I'm not thinking about anything that happened prior to this. I'm only thinking about escaping this possible life and death situation. And that’s, that’s what I do. I get up and I run away.

[55] Mohamed then stated the following:

“I thought – I was aiming for his stomach both times. I didn’t want to go for his chest or his face. I just wanted him to let go of me.”

Again, I did what I could to make sure that he let go of me. It wasn’t an accidental stabbing. I intended to stab him in order to stop him from trying to get the knife, in order for me to get him to let go of me. However, I did not intend to, to kill him. I just intended to honestly defend myself.

[56] While he struggled with Burns, Mohamed said that he was “thinking if he gets this knife, I’m dead.”

[57] Although he observed it on the video, he has no recollection of someone trying to kick him off Burns.

[58] As he ran away, he thought Burns was alive because he saw him get up.

[59] Mohamed first ran down the same alley and looked for a place to stash the knife that he took with him. He realized that he could not exit the alley, so he returned back to Park Avenue then headed towards Cumberland Street, where he was apprehended by police who were responding to the 911 call and had his description.

[60] Police photographs show the trail of Mohamed’s blood through the alley. Also found in the alley was the smallest of the chains he was wearing. The other jewellery was never located.

[61] The cruiser that Mohamed was in was the first on the scene where Burns was located, and the officers attempted to give first aid to Burns. The cruiser camera covering the rear seat shows Mohamed stashing the knife in his underwear. The cut to his left wrist is clearly visible and his arm, hands and clothing are covered with blood. Eventually, an officer wrapped gauze around his wrist. He was transported to the hospital and his injuries are treated. He received stitches for the cuts to his wrist and right ear. Booking room photos show injuries to his face, forehead, ear, wrist, hands, right knee, and left leg. Mohamed believes that the cut to his ear was from Burns punching with the knife in his hand.

[62] Later, he was transported to the police station and told that he was charged with murder. He testified the following: “And yeah, when I, when I hear first-degree murder, I’m floored. I’m completely shocked. I didn't think that Mr. Burns died.”

[63] The booking room video shows the conversation when a detective informed Mohamed that he was charged with murder and Mohamed asked the detective several times if Burns died.

[64] In cross-examination, he admitted that he would not be reporting a robbery to the police, since he was involved in criminal activity at the time of the robbery.

The Forensic Evidence

[65] Dr. Sonja Stadler is with the Centre of Forensic Sciences and was qualified as an expert in bodily fluid identification and DNA analysis and interpretation.

[66] She examined swabs taken from the knife blade and the knife handle. DNA from Burns was not found on the blade or handle, but Mohamed could not be excluded as the source of blood on the blade and the handle.

[67] She testified that there were many factors that might explain the absence of Burns’ DNA on the knife, including the fact that Mohamed’s blood may have overwhelmed any other DNA present on the knife.

[68] Dr. N. G. Escott performed the post-mortem examination. Burns was 36 years old. He was 192 cm. (6’4”) in height and 102 kg. (225 lb) in weight. He was described as muscular.

[69] Two stab wounds were found: one to the left lower chest and one to the left upper abdomen. The wounds were about 4.5 inches apart. The order in which the stab wounds occurred could not be determined. Three cuts were observed: one to the right forearm, one to the right index finger, and one to the left middle finger. Several contusions and abrasions were noted, predominately on Burns’ hands.

[70] The cause of death was exsanguination from the stab wound to the chest, which perforated the left ventricle of the heart.

[71] Blood analysis revealed the presence of fentanyl, methamphetamine, cocaine, and other chemicals associated with the manufacture of illegal drugs.

Position of the Parties

[72] Counsel for Mr. Mohammed submits that there are only two possible verdicts in this case: not guilty of second-degree murder on account of self-defence, or not guilty of second-degree murder, but guilty of manslaughter, on account of provocation.

[73] The Crown argues that, at its core, this case is about the reasonableness of all of Mr. Mohamed’s actions, not just his actions when confronted with the knife, but also his actions in pursuing Burns.

The Law

General Principles

[74] The basic tenet of criminal law is that everyone charged with an offence is presumed to be innocent, unless and until the Crown proves his or her guilt beyond a reasonable doubt.

[75] To prove any person’s guilt of the offences charged, the Crown must prove each and every essential element of those offences beyond a reasonable doubt.

[76] The phrase, “beyond a reasonable doubt”, is a very important part of our criminal justice system. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.

Assessment of Evidence

Statements of the Accused

[77] As instructed by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, if I believe the accused’s evidence that he did not commit the offence as charged, I must find him not guilty. If, after careful consideration of all the evidence, I am unable to decide whether to believe the evidence of the accused or the evidence in the Crown’s case, I must find the accused not guilty. Even if I do not believe the accused’s evidence, if I am left with a reasonable doubt about his guilt, then I must find him not guilty. Even if the accused’s evidence does not leave me with a reasonable doubt, I may only convict if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

Self-Defence

[78] Mr. Mohamed is not guilty of second-degree murder if the following three conditions were present at the time of the offence:

1. Mr. Mohamed believed that force, or the threat of force, was being used against him and Mr. Mohamed’s belief was based on reasonable grounds;
2. Mr. Mohamed committed the act for the purpose of defending or protecting himself from the use, or the threat, of force; and
3. Mr. Mohamed’s act was reasonable in the circumstances.

[79] Section 34(2) of the Criminal Code, RSC 1985, c C-46 lists factors for me to consider in determining whether the act committed is reasonable in the circumstances:

• (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.

[80] Justice Martin observed the following at paragraph 82 of R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948:

s. 34(2)(b) considers what alternatives the accused could have pursued instead of the act underlying the offence, such as retreat or less harmful measures, relative to the imminence of the threat. The question of proportionality under s. 34(2)(g) similarly juxtaposes the force threatened and the reaction of the accused. Both of these factors ask the trier of fact to weigh the accused’s response once the perceived threat has materialized. In this way, s. 34(2)(c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self‑defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident. [Emphasis added.]

[81] It is not up to Mr. Mohamed to prove that he acted in self-defence. Rather, it is up to the Crown to prove beyond a reasonable doubt that he did not.

[82] If the Crown proves beyond a reasonable doubt that at least one of these three conditions is absent, the defence of self-defence fails.

Analysis

[83] I begin with an assessment of Mr. Mohamed’s evidence.

[84] I am satisfied that Mohamed was robbed by Sakakeesic, Jabic, and Burns, that all three were armed, and that they assaulted Mohamed.

[85] Mohamed’s evidence that he was asking Burns to return his property was corroborated by both Owen and Chisel.

[86] I am satisfied that Mohamed fell upon Burns when they both stumbled, after Mohamed grabbed Burns.

[87] Mohamed’s evidence that he asked Burns to let him go, and that Burns refused, was corroborated by Chisel.

[88] A knife resembling the knife he described as being used by Sakakeesic was found a few blocks away, discarded by persons who were likely Sakakeesic and Jabic.

[89] One of Mohamed’s chains, which he alleged that Burns took, was found in the alley where he discovered Burns.

[90] The cut to Mohamed’s left wrist is consistent with a struggle to gain control of the knife from Burns.

[91] The location and proximity of the two stabs wounds are not inconsistent with Mohamed’s statement that he thought he “was aiming for his stomach both times”.

[92] His statement that he thought Burns was alive because he stood up is consistent with his questioning of the detective when he was told that he was being charged with murder.

[93] No witness saw Mohamed with a knife until after the confrontation with Burns.

[94] I find that Burns was in possession of this knife when Mohamed was robbed, and that Burns continued to possess the knife until Mohamed took the knife from him. I accept that the absence of Burns’ DNA on the knife was explained by the fact that Mohamed’s DNA would have overwhelmed any other DNA present.

[95] I accept Mohamed’s statement that Burns would not let go of him while they were struggling for control of the knife, and that Mohamed stabbed Burns to make him let go so that Burns could not get control of the knife.

Self-Defence

[96] I am satisfied that Mohamed believed that force, or the threat of force, was being used against him, and that Mohamed had reasonable ground to believe so.

[97] I am satisfied that Mohamed stabbed Burns twice for the purpose of defending himself.

[98] The next question is, therefore, whether the Crown has proven beyond a reasonable doubt that Mohamed’s act of stabbing Burns was not reasonable in the circumstances.

Was Mohamed’s Stabbing of Burns Reasonable in the Circumstances?

[99] It is tempting to look at Mohamed’s actions in pursuing Burns, a larger man who had robbed and assaulted him, as unreasonable. Had he not pursued and confronted Burns, the “perceived threat” – Burns reaching for the knife – would not have materialized. This behavior did not follow the “program”, which involved keeping a low profile.

[100] The nature of the force or threat used by Burns was life threatening. He was attempting to use a knife against Mohamed, who was seeking the return of his property. I accept Mohamed’s statement that he was “thinking if he get’s this knife, I’m dead.”

[101] When Burns reached for the knife, the threat was imminent. Had Mohamed not struggled for control of the knife, he could have been stabbed by Burns.

[102] Mohamed’s role in the incident was, initially, that of victim of a violent crime attempting to retrieve his property from someone who had just stolen from him. Mohamed’s pursuit of Burns, and his grabbing him, which would constitute an assault, was committed for the purpose of preventing Burns from taking his property. Grabbing Burns was, therefore, not an unreasonable act.[^3] Mahomed’s role then morphed into that of potential stabbing victim who reasonably believed that he was in imminent danger of being stabbed by Burns.

[103] It was Burns, not Mohamed, who possessed the knife and who was reaching for it when the confrontation began.

[104] I am satisfied that Burns was larger than Mohamed. He was described as muscular by the pathologist.

[105] Burns had previously threatened and used force against Mohamed while holding the knife.

[106] The confrontation between Mohamed and Burns lasted less than 40 seconds, not allowing Mohamed much time to consider and implement other options.

[107] In the circumstances, I am not satisfied beyond a reasonable doubt that the Crown has proven that Mahomed’s conduct in responding to the perceived threat that had emerged, by fighting for control of the knife and then stabbing Burns to make him let go, was not reasonable.

[108] Nor am I satisfied beyond a reasonable doubt that the Crown has proven that Mohamed’s role in the incident, attempting to retrieve his property, was not reasonable.

[109] Therefore, I find Mr. Mohamed not guilty of second-degree murder.

[110] I find that Mohamed’s actions in stabbing Burns occurred not as a result of provocation, but as a result of the emergence of an imminent threat of harm justifying self-defence. While provocation might have been relevant to the initial assault of Burns – when first grabbed by Mohamed – it is not relevant to what happened after Burns produced the knife.

“Original signed by”
W. D. Newton

Released: March 31, 2025

Footnotes

[^1]: At this point in time, Mohamed did not know the identities of these men, but it is not disputed that Sakakeesic and Jabic robbed Mohamed on October 17, 2021. Jabic entered a guilty plea to conspiracy to commit theft and possession of stolen property on December 9, 2022. Sakakeesic entered a guilty plea to conspiracy to commit theft on April 14, 2023.

[^2]: Although the witness did not know the names of Mohamed and Burns, Mr. Mohamed identified himself and Burns in the videos, so their names are being used for clarity.

[^3]: Defence of property is covered by s. 35(1) of the Criminal Code:

35 (1) A person is not guilty of an offence if
(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by law to do so,
(ii) is about to take the property, is doing so or has just done so, or
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person from the property, or
(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.