Court File and Parties

Court File No.: YC-24-50000002-0000

Date: 2025-10-24

Ontario Superior Court of Justice

Between:

His Majesty the King

and

E.J. (A Young Person)

Counsel

For the Crown: A. Bradstreet and C. McNeill

For E.J.: S. Fishbayn and S. Rinas

Hearing Dates

September 8, 10, 12, 15-17, 22, 24-25; October 1, 3, 2025

Reasons for Judgment

Schreck J.:

I. INTRODUCTION

[1] Auptin Abedini-Senoubari was only 18 years old when he died of a single knife wound to the chest during a senseless altercation between two groups of teenagers. E.J., who was 17 years old at the time, was holding the knife that caused the wound.

[2] E.J. and Mr. Abedini-Senoubari did not know each other. They had both attended the same after-hours party with their respective groups of friends. E.J. had been evicted from the party and was arguing with a security guard outside when Mr. Abedini-Senoubari and his friends began to taunt him and video record him with their phones. E.J. became angry and he and his friends soon began exchanging taunts and insults with the other group. Eventually, both groups ended up in a nearby parking lot, where there were physical altercations between the members of both groups. One of those was between Mr. Abedini-Senoubari and E.J.

[3] The physical altercation between Mr. Abedini-Senoubari and E.J., most of which was captured on security surveillance video, lasted for less than 10 seconds. At some point, a knife E.J. was holding in one of his hands caused the wound that later killed Mr. Abedini-Senoubari. The altercation ended when E.J. fell to the ground, where he was kicked and stomped on by Mr. Abedini-Senoubari and one of his friends. The two groups then separated. Mr. Abedini-Senoubari collapsed about 12 seconds later and never recovered. By then, E.J. and the rest of his group had left the scene.

[4] E.J. was charged with second degree murder and elected to have a judge-alone trial in this court. After the evidence was heard, Crown counsel advised the court that they accept that the evidence does not support a charge of murder and have asked the court to return a finding of guilt for manslaughter.

[5] E.J. acknowledges that he caused Mr. Abedini-Senoubari's death, but takes the position that he was acting in self-defence at the time. The Crown accepts that there is an air of reality to this defence, but takes the position that the stabbing was motivated by animus, not self-preservation, and that in any event the force used was not reasonable in the circumstances.

[6] The following reasons explain the verdict I have reached.

II. EVIDENCE

A. Overview of the Evidence

(i) The Area

[7] On the evening of July 7, 2022, an "all ages" event took place at the Cleopatra Lounge located at 1027 Finch Avenue West in Toronto. The events at issue in this case occurred in the general area of the Cleopatra Lounge that evening and into the early morning hours of July 8, 2022.

[8] The Cleopatra Lounge is in an "L-shaped" building that also contains a Mandarin Restaurant, as shown in a map attached to these reasons as Appendix A. The entrance to the Cleopatra Lounge is at the corner where the horizontal and vertical lines in the "L" meet (directly below Camera #1 in Appendix A). A cannabis store which is not indicated on the map is just north of the entrance to the Cleopatra Lounge.

[9] The Mandarin parking lot is north of the restaurant (to the right of Camera #1 in Appendix A) and leads directly to Finch Avenue. There is a north-south laneway next to the Mandarin parking lot. Another north-south laneway to the east runs parallel to it, and the two laneways are separated by a strip of grass. The second laneway is next to a building that is just east of the building housing the Cleopatra Lounge. At the north end of that building is a car dealership called Mr. Motor, in front of which there is a parking lot (directly above Cameras #3 and #4 in Appendix A).

[10] At the south end of the building is a business called Get Movers, which is not indicated on the map. There is a parking lot to the south of the building (directly below Cameras #6-9 in Appendix A) where trucks belonging to Get Movers are parked. Directly to the east of the building is a restaurant called St. Louis Bar and Grill. An Esso gas station is slightly north of this restaurant.

(ii) Video

[11] Video evidence comprises the bulk of the evidence in this case. Most of it is in the form of security surveillance video captured by cameras at various locations in the area where the events took place. Some of the videos have sound, but most do not and the quality of the video varies significantly. The locations of the cameras and the areas each captured are set out in Appendix A. Some of the videos are timestamped, although not all of the times are accurate, in which case counsel have agreed on the adjustment required to synchronize them.

[12] Also in evidence are clips of cell phone videos made by people who were present. Two of these were made by the deceased, Mr. Abedini-Senoubari. Three were made by unidentified individuals. Counsel agree that all of the videos are accurate depictions of the events they recorded.

(iii) Witnesses

(a) Crown

[13] Although numerous people were present during the events giving rise to the charge, only eight testified. None of them observed the altercation that resulted in Mr. Abedini-Senoubari's death. The Crown witnesses were:

Athena Oliver: Mr. Abedini-Senoubari's girlfriend, who was 19 years old at the time of the events. She observed some of the events leading up the physical altercations but not the altercations themselves.

Abubaker Alemi: A friend of Mr. Abedini-Senoubari who was 17 years old at the time. He observed some of the events and was involved in a physical altercation with E.J.

Mustafa Abdulsamed: An acquaintance of Mr. Abedini-Senoubari who was 18 years old at the time. He observed many of the events of the evening but was not involved in them.

Adam Saab: A friend of Mr. Abedini-Senoubari who was about 20 years old at the time. He had little memory of the events. His evidence was brief and not relied on by either party.

Eimal Ahmadi: An adult employed at the plaza who attempted to act as a peacemaker. He was present for most of the relevant events, but did not observe the fatal altercation.

(b) Defence

[14] The defence witnesses were:

Luke McKenzie: A friend of E.J.'s younger brother, Y.J., and 14 years old at the time. He was part of the group E.J. was with for most of the night.

Jayden Whyte: Another friend of Y.J. as well as E.J. who was 15 years old at the time. He was part of E.J.'s group and involved in some of the physical altercations.

Daniel Vorobiov: Another friend of Y.J. who was 15 years old at the time. He was part of E.J.'s group and present for many of the events of the evening.

(iv) Text Messages Sent by E.J.

[15] Text messages were sent by E.J. to a friend of the deceased a few days after the altercation, the contents of which are described later in these reasons. Their admissibility is challenged by the defence.

(v) Agreed Facts

[16] Counsel worked diligently to narrow the issues and have agreed on a number of facts.

B. The Sequence of Events

(i) The Arrival of E.J. and His Group

[17] E.J.'s younger brother, Y.J., and his friends Mr. McKenzie, Mr. Whyte, Mr. Vorobiov and Idan Berkovits (who did not testify) arrived at the Cleopatra Lounge at some time around 8:30 or 9:00 p.m. They did not immediately enter the Cleopatra Lounge and instead shared most or all of a bottle of Hennessy cognac somewhere near the St. Louis restaurant. Mr. McKenzie, Mr. Whyte and Mr. Vorobiov all testified that they were not experienced drinkers and were intoxicated by the time they finished drinking.

[18] After drinking the cognac, Y.J. and his friends went to the parking lot outside the Cleopatra Lounge, where they saw E.J., who had arrived separately. E.J. was also consuming alcohol. Eventually, they all entered the Cleopatra Lounge and remained inside for some time.

[19] It is an agreed fact that while E.J. was in the Cleopatra, he obtained a blue-handled knife from his brother, which appears from a photograph of it to be a switchblade. This was the weapon that later caused the fatal injury. There is no evidence as to why E.J. obtained the knife from Y.J., but there is no suggestion that his doing so had anything to do with the events that occurred later in the evening.

(ii) The Arrival of Mr. Abedini-Senoubari and His Group

[20] Mr. Abedini-Senoubari also attended the event at the Cleopatra and arrived there with Ms. Oliver and a friend. They briefly entered the lounge but mostly stayed outside.

[21] According to Ms. Oliver, there were a few people there that she knew and Mr. Abedini-Senoubari knew, the number of which she estimated to be between two and four. One of them was Mr. Alemi, who testified that he had texted Mr. Abedini-Senoubari inviting him to come to the Cleopatra because "everybody that we know is here." Mr. Abdulsamed testified that as far as he knew, most of the people at the party were Mr. Abedini-Senoubari's friends. Video from Camera #1 shows Mr. Abedini-Senoubari talking to several people at various points in time, including Mr. Saab and an individual the parties agree was called Deon.

(iii) E.J.'s Eviction From the Premises

[22] At some point, security personnel at the Cleopatra evicted E.J. from the premises, apparently because he had gone onto the stage. Once E.J. left the premises, he began to argue with a security guard immediately outside the door of the Cleopatra near where Mr. Abedini-Senoubari and his friends were. The security guard was trying to get E.J. to leave, which he did not want to do. For some reason, Mr. Abedini-Senoubari took an interest in this argument and also told E.J. to leave the area.

[23] E.J. began to walk away, at which point Mr. Abedini-Senoubari began making a video of him with his phone. E.J. noticed this and became upset, leading to an exchange of words between him and Mr. Abedini-Senoubari in the Mandarin parking lot. According to Mr. Abdulsamed, Mr. Abedini-Senoubari said something like "look how many people are here" to E.J. and gestured to all of his friends. He then said something like, "You'll get fucked up, you're stupid." One of Mr. Abedini-Senoubari's friends told E.J. to look around because there were 20 to 30 people there.

[24] At some point, E.J. walked towards the north of the parking lot and Mr. Abedini-Senoubari returned to where his friends were in front of the cannabis store. He can be heard on the audio from Camera #1 saying, "Yo, that was so jokes, the second he sees all you mens come out, the man dipped." Audio from Camera #1 also captured Mr. Saab saying, "Just leave him alone, Fam, it's not worth it" to Mr. Abedini-Senoubari. Mr. Abedini-Senoubari was heard saying "I'll run ones with him any time," which several witnesses testified was a reference to having a one-on-one fight. Deon was heard on the recording saying, "Auptin will stomp that nigger," after which he made a stomping motion with his feet. At another point, Mr. Abedini-Senoubari said, "I'll fuck him up." There is no evidence that E.J. heard any of these utterances.

[25] At some point shortly after this, Y.J. and his friends exited the Cleopatra. They had not known of E.J.'s eviction and learned of it once they were outside.

(iv) The Argument at the North End of the Mandarin Parking Lot

[26] Video from Camera #2 shows E.J. at the north end of the Mandarin parking lot. He initially had some kind of interaction with Mr. Saab and then with the security guard he had been arguing with earlier. At one point, the guard pushed E.J. into the side of a car.

[27] Mr. McKenzie, Mr. Whyte and Mr. Vorobiov all testified that they saw the security guard push E.J. and walked over to where he was to assist him. Video from Camera #2 shows the five of them walking to where E.J. and the guard were standing. A few seconds later, a larger group of people, including Mr. Abedini-Senoubari and some of his friends, walked to where E.J. and the others were. It appears from the video that this second group consisted of approximately 17 or 18 people. Mr. McKenzie testified that people in this group and the members of his group began to yell aggressively and taunt each other. About 30 seconds after the larger group began to walk over to where E.J. and the security guard were, E.J. and his group walked away from the area, heading north.

[28] Mr. Ahmadi went to the area to try to de-escalate the situation. According to him, he was focussed on E.J. because he was "a bit little violent," by which he meant that he was "yelling, swearing, threatening and stuff." Mr. Ahmadi testified that E.J. was "call[ing] them to come fight and stuff … with their hand gestures." He could not recall any specific words that were spoken and in cross-examination adopted his evidence at the preliminary inquiry that he had assumed that E.J. wanted to fight because he was the loudest person and was moving his hands. Mr. McKenzie testified that he never heard anybody in his group inviting anybody to fight.

(v) E.J.'s Group Goes to the Mr. Motor Parking Lot

[29] Video from Camera #5 shows the feet of a group of people at the top of the screen. Based on the white pants worn by one of them, the appearance of the shoes and the number of individuals, this appears to be E.J.'s group. They stopped in the north end of the parking lot for just under two minutes, moved about and then continued to walk north at approximately 00:22. Immediately after this, the group is seen on Camera #3 walking north towards the Mr. Motor parking lot, followed closely by Mr. Ahmadi.

[30] As E.J. and his group were approaching the Mr. Motor parking lot, E.J. gestured towards the other group, which was behind them. Mr. Whyte picked a bottle up from the ground and smashed it. He testified that he could not recall why he did this.

[31] At around 00:22, Mr. Abedini-Senoubari made a 17-second video of E.J.'s group walking towards Mr. Motor. On the video, Mr. Abedini-Senoubari is heard shouting the phrase, "Walk that shit, nigger" repeatedly throughout the video. At one point, he also said, "You're not on me." Mr. Whyte is seen on the video throwing something, but what it was and where it landed is unclear. He testified that he did not recall throwing anything. Mr. Ahmadi can be seen directing Mr. Whyte to walk towards the Mr. Motor parking lot, which he did.

[32] E.J.'s group began to enter the Mr. Motor parking lot at 00:22, as seen on Camera #4. After entering the parking lot, E.J. turned around to face south and raised his left arm, which he moved back and forth quickly in what the Crown submits was a gesture indicating that he was beckoning somebody to come to where he was.

[33] Mr. Ahmadi stepped in front of E.J., who then moved into the parking lot. Mr. Ahmadi testified that at this point, he told E.J. to walk away and not to fight and E.J. "appeared to be listening, cooperative."

(vi) E.J.'s Group Leaves the Mr. Motor Parking Lot

[34] Camera #4 shows that as E.J. and Mr. Ahmadi were talking, Mr. Whyte and Mr. Vorobiov suddenly walked out of the parking lot back towards where they had come from. Mr. Whyte testified that he went back to "answer the taunts" and "taunt back," but he did not intend to engage in a physical fight. He believed that the members of the other group would not want to fight with him because he was 15 years old. Mr. Vorobiov testified that he went back to engage in a verbal altercation with the other group because he was upset by what they were saying and wanted to tell them to stop. According to him, Mr. Whyte had tried to hold him back. The other members of the group and Mr. Ahmadi followed them. The group was in the parking lot for approximately 30 seconds.

[35] According to Mr. Abdulsamed, as E.J. and his group left the Mr. Motor parking lot, E.J. "waved for people to come" and specifically waved at Mr. Abedini-Senoubari to come to where he was. He also testified that "everybody" was waving. The video evidence contradicts this. When shown the video during his testimony, Mr. Abdulsamed said, "It's in my memory, if it didn't happen, it didn't happen."

[36] Camera #3 shows Mr. Vorobiov jogging southbound, followed by Mr. Whyte, who was walking. A few seconds later, the other members of the group and Mr. Ahmadi can be seen also walking southbound. Within a couple of seconds of the group's appearance on the camera, E.J. began running. According to Mr. Ahmadi, at this point members of the other group had started to run towards the area of the Mr. Motor building.

[37] Camera #5 shows that Mr. Whyte and Mr. Vorobiov stopped on the grassy section separating the laneway that runs north from the Mandarin from that which runs next to the Mr. Motor building. Mr. Whyte smashed another bottle on the ground, but again could not recall why he did so. A number of people were walking towards them, although only their feet are visible on the video. Mr. Whyte testified that there were about 14 or 15 people coming towards them.

[38] At this point, the rest of the group were running south with E.J. in the front. E.J. ran past where Mr. Whyte and Mr. Vorobiov were standing and was no longer visible on the screen by 00:23:09. The rest of the group slowed down and Mr. McKenzie went to where Mr. Whyte and Mr. Vorobiov were. Mr. McKenzie testified that he said, "Get out of here" or words to that effect to Mr. Whyte and Mr. Vorobiov because the large group of people were approaching and "we were vastly outnumbered." Mr. Whyte testified that he also felt outnumbered at this point. Mr. McKenzie, Mr. Whyte and Mr. Vorobiov then left the grassy section and ran south in the direction E.J. had gone, leaving.

[39] The group began running in the same direction as E.J. had gone, leaving the screen at about 00:23:16. Mr. McKenzie testified that they were heading towards the exit from the parking lot leading to the gas station, which he believed was a "safe area." At some point, E.J. picked a bottle up from the ground. Mr. McKenzie, Mr. Whyte and Mr. Vorobiov all denied that there was any plan to engage in a fist fight with the other group. Video from a camera facing southbound in the Mr. Motor laneway (which is not indicated in Appendix A) shows E.J. and the rest of the group running southbound and then turning eastbound into the Get Movers parking lot, which the last of them entered at about 00:23:25. Mr. Ahmadi was no longer with them and he could not recall where he was at that point.

(vii) Both Groups Enter the Get Movers Parking Lot

[40] Video from the same camera in the Mr. Motor parking lot shows that within a few seconds of E.J.'s group entering the Get Movers parking lot, a number of people can be seen entering the same parking lot from somewhere to the west.

[41] Camera #7 shows Mr. Berkovits entering the Get Movers parking lot at 00:23:20, running eastbound. After running some distance, he turned around at 00:23:24, at which point the rest of the group can be seen entering the parking lot walking backwards. They were followed by a larger group of people, which included Mr. Abedini-Senoubari, Mr. Alemi and Deon. Mr. McKenzie testified that at that time, he thought there were over 60 people in the group, although he acknowledged that this was likely an overstatement. The video shows at least 18 people. Mr. Vorobiov testified that he saw at least one person with a knife.

[42] Mr. Vorobiov can be seen on the video making a fist with his right hand and then slapping it with his left hand. He testified that he did this because he was "just getting my hands ready in a fighting position just in case they all jump on me" and because "it's kind of like I'm telling everybody back up, go go." E.J. was holding a bottle in his right hand. Mr. McKenzie testified that the people in the larger group were "saying aggressive things" and that he was in fear for his life.

[43] At 00:23:32, all of the members of the group except E.J. and Mr. Whyte turned around and began running eastbound. They were chased by three members of the other group, one of whom was Mr. Alemi, who testified that he chased them because he viewed them as a threat to his friends.

(viii) E.J. Trips and Mr. Ahmadi Tries to Take the Bottle From Him

[44] E.J. and Mr. Whyte continued to walk backwards as the other group walked towards them. At 00:23:35, both of them tripped on a loading ramp and fell backwards. Mr. Abedini-Senoubari is seen on Camera #7 standing nearby waving his right arm and appearing to be saying something. Mr. Whyte got up immediately and began running eastbound. E.J. got up a few seconds later, at 00:23:39. As he did so, Mr. Ahmadi put his arms around him in an unsuccessful attempt to take the bottle from him, but E.J. slipped away.

[45] Mr. Abdulsamed testified that while E.J. was standing near the loading ramp, he looked over at him and said, "I don't have a problem with you." Mr. Abdulsamed could not recall if this was before or after E.J. tripped on the ramp. Mr. Abdulsamed noticed that E.J. was holding a "smallish kitchen knife." He and another individual known as "Mo" immediately began to shout, "He has a knife." According to Mr. Abdulsamed, Mr. Ahmadi (whom he described as a "Persian man" with a blue shirt) also yelled, "He has a knife," although he acknowledged that he could have been mistaken about this. Mr. Ahmadi denied saying this and denied seeing a knife. He agreed that he would not have attempted to put his arms around E.J. if he believed him to be armed with a knife.

(ix) The Altercation Between Mr. Whyte, Deon and Another Person

[46] While Mr. Ahmadi was trying to take the bottle from E.J., Deon and another male were standing near them on the loading ramp and several other people, including Mr. Abedini-Senoubari, were standing nearby. Mr. Whyte testified that as he ran, he looked back and it appeared to him that E.J. was surrounded by members of the other group. He ran back and punched one of the males on the ramp in the face in an attempt to distract him so that E.J. could get away. Mr. Whyte can be seen on the video punching Deon at 00:23:43, after which he immediately backed away and one of his shoes fell off.

[47] Deon and another male followed Mr. Whyte with their fists raised. Mr. Whyte also raised his fists and was moving backwards. All three of them were behind E.J., who was walking backwards away from the loading ramp. Deon and the other man began punching Mr. Whyte at 00:23:51. Mr. Whyte testified that while this was happening, he "felt like there was at least 40 people, I guess, in front of me" and that he "saw so many people coming at me."

[48] At 00:23:51, E.J. turned around and saw Deon and the other male punching Mr. Whyte. At 00:23:53, E.J. swung the bottle in his right hand at the second male, but missed him. At 00:23:56, Mr. Whyte fell to the ground, where he was kicked by Deon and the other man. He got up and continued to physically engage with Deon and the other man while E.J. stood nearby.

(x) The Altercation Between E.J. and Mr. Abedini-Senoubari

[49] While Mr. Whyte was engaged in the fight with Deon and the other male, Mr. Abedini-Senoubari was standing near the loading ramp. He tried to move eastwards but was blocked by Mr. Ahmadi and another man (who was described by witnesses as another "peacemaker") who can be seen on the video attempting to stop Mr. Abedini-Senoubari from moving forward. Mr. Ahmadi testified that he tried to push Mr. Abedini-Senoubari back because he was pointing at the other group and yelling, although he could not recall what he was saying, and because he appeared to be angry. At 00:23:56, Mr. Abedini-Senoubari broke away from Mr. Ahmadi and began running towards the area of the physical altercation between Mr. Whyte and the other two men.

[50] A cell phone video made by an unidentified person shows Mr. Whyte fighting with Deon and the other male. Two other males were standing close to where Mr. Whyte was and moving back and forth. Mr. Abedini-Senoubari suddenly ran up to Mr. Whyte and swung at him, but missed. Mr. Whyte stepped back and Mr. Abedini-Senoubari then began to move towards him. There is no time stamp on the cell phone video. However, Mr. Abedini-Senoubari can be seen running on Camera #7 until 00:24:00, when he leaves the screen, so he must have swung at Mr. Whyte at around that time.

[51] Between 00:24:01 and 00:24:02, E.J., who was standing nearby, ran up behind Mr. Abedini-Senoubari and swung the bottle at his head twice, but did not make contact. This was captured on Camera #6 as well as another cell phone video taken by an unidentified person. One second later, Mr. Abedini-Senoubari turned toward E.J. and moved towards him while swinging at him with his right arm. At the same time, E.J. extended his left arm towards Mr. Abedini-Senoubari's chest. E.J. was holding the knife at the time and it was at this time that the fatal wound was caused.

[52] According to the cell phone video, E.J. extended his left arm towards Mr. Abedini-Senoubari's chest approximately two seconds after he finished swinging the bottle and one second after Mr. Abedini-Senoubari advanced towards him while swinging at him. The swinging of the bottle is captured on Camera #6 at 00:24:01, and Mr. Abedini-Senoubari advanced towards E.J. and appeared to make contact with him at 00:24:03, although the movements of E.J.'s arms cannot be seen from this vantage point. E.J. can be seen extending his left arm on Camera #8 at timestamp 00:12:42. The parties agree that Camera #8 is 11 minutes and 25 seconds slow, which would mean that the fatal wound occurred at 00:24:07. There is obviously a discrepancy of about three seconds, suggesting that the fatal wound actually occurred at 00:24:04.

[53] About one second after E.J.'s arm made contact with Mr. Abedini-Senoubari, E.J. lost his balance and began to fall, hitting the ground at 00:24:05 (according to Camera #6). At the same time, Mr. Alemi approached him from behind and he and Mr. Abedini-Senoubari began to kick and stomp on E.J. while he was on the ground while several other males ran over to where they were. Mr. Alemi testified that he noticed that E.J. was holding a knife so he stomped on him for about 30 seconds until his grip on the knife loosened and he managed to take it from him. The video shows that E.J. was only on the ground for about three seconds, after which he got up. An unidentified male grabbed him, but he pulled away and then turned and began walking eastbound out of the parking lot at about 00:24:10.

[54] Mr. Alemi testified that after he took the knife from E.J., he threw it away so that nobody could use it. The knife was later found by the police.

[55] Meanwhile, Mr. Abedini-Senoubari, who thus far did not appear to have reacted to having been stabbed, walked westbound towards the middle of the parking lot and stopped next to a group of people who were standing there. At 00:24:22, he collapsed onto the ground. He later died of his injury.

(xi) The Departure of E.J.'s Group

[56] By this point, Mr. McKenzie, Mr. Berkovits and Y.J. had noticed that E.J. and Mr. Whyte were not with them, so they returned to the parking lot, where they saw E.J. on the ground being kicked. E.J. got up from the ground and joined them, after which the group proceeded east to an Esso gas station. A while later, an individual called Artiem picked some of them up in a vehicle and the rest of them walked away. Mr. McKenzie and Mr. Whyte could not recall who had called Artiem or when. Mr. Vorobiov testified that it had been his understanding that Artiem was to pick them up since before the group entered the Get Movers parking lot, although he could not remember who told him this.

C. Text Messages

[57] On July 17, 2022, E.J. used an Instagram account that was operated by him but was not in his name to send two messages to another account operated by a friend of Mr. Abedini-Senoubari. The first message read: "Everybody know u and ur homie a bitch." The second read: "Ur homie dropped like a fly that day."

[58] The same day, E.J. used a second Instagram account operated by him but not in his name to send messages to the same individual. The messages included the following:

Yous a bitch

Suck ur mom

Ur homie dropped like a fly

Also transmitted was a video of Mr. Abedini-Senoubari while he was on the ground after being stabbed. There is no suggestion that E.J. made the video. The message then continued with:

Ur homie dropped like fly

Kid

Don't worry bitch

Ur homie was a bitch

Certified

We got sticks brother don't worry

Idk who tf s1 is

Ur right we had to yoke your homie we had to make it personal

U think I'm scared come to my crib watch what happens

Don't slip bc if you do u gon have to say what's up to Auptin for me

Bro who lied to you

Yea yea [two "laughing emojis"] with my own sticks

Go get some money and a stick then talk to me.

[59] The individual to whom E.J. sent messages had also sent messages to him, but they were not available and not tendered in evidence.

III. ANALYSIS – EVIDENCE OF PRIOR DISCREDITABLE CONDUCT

A. Overview

[60] The Crown seeks to have the text messages admitted. There is no issue that they are evidence of prior discreditable conduct on the part of E.J. and therefore prima facie inadmissible. It is uncontroversial that if the Crown wishes to displace the presumption of inadmissibility that applies to evidence of prior discreditable conduct, it bears the onus of establishing on a balance of probabilities that the probative value of the evidence on a particular issue outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. Tsigirlash, 2019 ONCA 650, at para. 26.

B. Probative Value

[61] Assessing the probative value of the evidence requires a consideration of its cogency in relation to the inferences the Crown seeks to have drawn, so the Crown must identify those inferences: Handy, at paras. 73-74, 82. The Crown submits that the text messages support an inference that E.J. bore an animus against Mr. Abedini-Senoubari, which in turn supports an inference that he specifically targeted him and inflicted the fatal wound with an intent to harm him rather than in self-defence.

[62] Relying on R. v. Hunter (2001), 54 O.R. (3d) 695 (C.A.), at paras. 14-22, counsel for E.J. submits that since the text messages constitute only one part of the conversation between E.J. and the other individual, there is insufficient context to permit any meaning to be ascribed to the words in the text messages.

[63] Hunter was an application of principles that were earlier explained in R. v. Ferris, [1994] 3 S.C.R. 756, aff'g 1994 ABCA 20, 149 A.R. 1. It was recently held in R. v. Schneider, 2022 SCC 34, [2022] 2 S.C.R. 619, at para. 72, that "Ferris is good law, but must be read carefully." It was made clear in Schneider, at paras. 43-54, that "evidence does not need to be unequivocal to be relevant" and as long as the trier of fact can give meaning to the words in a manner that is non-speculative in light of all the evidence, they are admissible: R. v. Merritt, 2023 ONCA 3, 165 O.R. (3d) 413, at paras. 68, 73; R. v. R.V.A., 2025 ONCA 501, at para. 24. Any lack of context is a matter of weight, not admissibility: Merritt, at paras. 78-79. In my view, the words in the text message can be given meaning in a manner that is non-speculative. Indeed, there can be little doubt as to their meaning. However, the lack of context must be considered when assessing the probative value of the evidence.

C. Prejudicial Effect

[64] The court must also assess the prejudicial effect of the evidence, that is, the extent to which it creates a "risk that the accused will be stigmatized as a bad person and convicted on that basis": Tsigirlash, at para. 35. The text messages depict E.J. as a callous and uncaring person who is proud of having inflicted a fatal injury.

D. Weighing Probative Value and Prejudicial Effect

[65] Having identified the probative value and prejudicial effect of the evidence, the court must determine whether the former outweighs the latter. The concept of "weighing" implies that it is not the absolute value of either variable that will ultimately determine admissibility, but, rather, how each compares relative to the other. Evidence that is only moderately probative may nonetheless be admitted if its prejudicial effect is minor. On the other hand, evidence that is very probative or even conclusive may nonetheless be excluded if the prejudicial effect is very significant: Handy, at para. 74.

[66] As has been repeatedly recognized, the risk of the type of prejudice at issue in this case is "not a significant concern in a judge-alone trial": R. v. Nolan, 2019 ONCA 969, 150 O.R. (3d) 647, at para. 44; R. v. J.H., 2018 ONCA 245, at paras. 22-24; R. v. T.B., 2009 ONCA 177, 243 C.C.C. (3d) 158, at para. 26; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 56, 69. While the text messages may not put E.J. in a good light, there is no risk that I would convict him because of this if the Crown failed to prove his guilt beyond a reasonable doubt on the basis of properly admissible evidence.

[67] As I will explain later in these reasons, the probative value of this evidence is not significant, but it does outweigh its negligible prejudicial effect. The evidence is accordingly admissible.

E. Text Messages Tendered by the Defence

[68] The defence seeks to tender other text messages found on E.J.'s phone. These are parts of conversations between E.J. and friends of his. Some sent on July 13, 2022 suggest that E.J. was receiving threats from unidentified individuals. Counsel submits that these show that E.J. may have sent the messages tendered by the Crown in order to appear to be tough and dangerous in an attempt to deter the individual who had threatened him from carrying out the threats.

[69] In a message sent to a friend on July 23, 2022, E.J. said, "I should've taken that yutes place that day," which counsel submits shows that he did not bear any animus towards the deceased.

[70] I would not admit this evidence. The messages about the threats were sent four days before the messages tendered by the Crown and there is no evidence that E.J. thought there was any connection between those threats and the individual to whom he sent the texts. The message from July 23, 2022 is a self-serving out-of-court statement and inadmissible on that basis: R. v. Simpson, [1988] 1 S.C.R. 3, at p. 22; R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at paras. 30-32.

IV. ANALYSIS – SELF-DEFENCE

A. The Defence of Self-Defence

(i) Overview of the Issue

[71] E.J. does not dispute that he inflicted the wound that caused Mr. Abedini-Senoubari's death. He maintains, however, that he was acting in self-defence when he did so. The Crown accepts that there is an air of reality to this defence and that it bears the onus of disproving the defence beyond a reasonable doubt: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 50-53.

(ii) Section 34 of the Criminal Code

[72] The defence of self-defence is governed by s. 34 of the Criminal Code, an amendment to the much-criticized earlier self-defence provisions created by the enactment of the Citizen's Arrest and Self-Defence Act, S.C. 2012, c. 9, s. 2. Section 34 now provides as follows:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[73] If the Crown disproves one or more of these components in s. 34(1) beyond a reasonable doubt, the defence will fail. In R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 51, the Court labelled the three inquiries as (1) the catalyst; (2) the motive; and (3) the response. The Crown accepts that the catalyst existed in this case, that is, that E.J. reasonably believed that Mr. Abedini-Senoubari was using force against him at the relevant time. I will therefore focus on the other two components.

(iii) The Moral Foundation for the Defence

[74] As was made clear in Khill, the amendments do more than alter the statutory criteria for the application of the defence. They also alter the moral foundation for it. Self-defence was usually previously thought of as a justification, that is, a circumstance in which an otherwise wrongful act is morally right. This is in contrast to defences that are categorized as excuses, which are those in which the act, although morally wrong, is forgiven based on a recognition of human frailty in certain circumstances: D.M. Paciocco, "The New Defense Against Force" (2014), Can. Crim. L. Rev. 269, at p. 274; C. Fehr, "The Moral Foundation of Criminal Defences and the Limits of Constitutional Law" (2023), McGill L.J. 291, at pp. 297-300. The majority in Khill, at para. 48, explained how this distinction has been "blurred" by s. 34:

The 2013 amendments further obscure the moral foundation of self-defence. The new provisions retain the underlying principle that the accused's actions are a response to an external threat to their bodily integrity. However, unlike the old law, the self-defence provisions no longer use the language of justification. Section 34 simply states that the accused "is not guilty of an offence" where the requirements of the defence are met. Further, the elimination of an "unlawfu[l] assaul[t]" (per the previous s. 34(1)) or an "apprehension of death or grievous bodily harm" (per the previous s. 34(2)) as discrete triggering features arguably removes any residual boundary between the "morally justifiable" and "morally excusable" categories of the defence. Some argue that the new s. 34 may accommodate a continuum of moral conduct, including acts that are merely "morally permissible" where the threat and response meet a reasoned equilibrium (Fehr, ["Self-Defence and the Constitution" (2017), 43 Queen's L.J. 85] at p. 102). This suggests the defence is neither purely a justification nor an excuse, instead occupying a middle ground of "permissibility" between rightfulness and blamelessness. As will become apparent, the line between justification and excuse has been blurred by the amendments, and this must be taken into consideration in interpreting the new provisions.

See also D. Stuart, "R. v. Khill: The Supreme Battles at Length to Interpret Uncertain Self-Defence Provisions" (2021), 74 C.R. (7th) 324.

B. Assessment of Evidence

(i) Witnesses

[75] Although I will discuss specific factual findings later in these reasons, I wish to make two general comments about the evidence in this case, one with respect to the testimony of the witnesses and one with respect to the video evidence.

[76] My general impression of the witnesses was that for the most part, they were all credible in that they were doing their best to recount the observations they made, although some of them were intoxicated at the time, which affects their reliability. Mr. McKenzie, Mr. Whyte and Mr. Vorobiov all acknowledge that they were intoxicated. Mr. Alemi denied that he was intoxicated and claimed that he never consumed alcohol because he is a devout Muslim. However, text messages he exchanged with Mr. Abedini-Senoubari before going to the Cleopatra Lounge make it clear that he intended to consume a significant amount of alcohol that evening, and it is likely that he did so.

[77] Courts have always relied on the testimony of witnesses to determine the facts of a case, and have done so trusting that the memories of witnesses are generally reliable such that an honest witness's memory of events is an accurate account of them. This case has shown that that trust may sometimes be misplaced.

[78] The memories of the witnesses who testified have been shown by the video evidence to be unreliable in some respects. Not only were the witnesses unable to recall some details, which is to be expected, but many of them also recalled events which the video shows simply did not occur. Following are some examples:

• Mr. Alemi testified that he saw E.J. fighting with Mr. Abedini-Senoubari, so he approached E.J. from behind, pulled him down to the ground, and then stomped on his face for about 30 seconds. The video shows that this is not what happened. E.J. fell to the ground prior to Mr. Alemi's arrival and was only on the ground for about three seconds.

• Mr. Ahmadi testified that E.J.'s group ran to the Get Movers parking lot after the other group had already gone there, and while they were running towards the lot, he took a bottle away from E.J. and put it behind a truck. The video shows that nobody was in the Get Movers parking lot when E.J.'s group arrived there. Although Mr. Ahmadi tried to take a bottle from E.J. when he was already in the parking lot, he was unsuccessful in doing so.

• In a statement made soon after the events, Mr. Abdulsamed told the police that he recalled seeing a number of things which he later acknowledged were wrong, including seeing E.J. with a knife when he left the Mr. Motor parking lot and witnessing the stabbing. He also acknowledged that he may have been wrong about seeing E.J. gesturing to the other group.

• Mr. McKenzie testified that he had gone to the party directly from E.J.'s house, but later acknowledged that he had in fact gone to Mr. Vorobiov's house first. He also had no recollection of Mr. Whyte smashing a bottle even though the video shows that he was present when this occurred.

• Mr. Whyte testified that he had no recollection of picking up a bottle and smashing it, although the video shows that he did so twice.

• Mr. Vorobiov recalled being picked up by Artiem a minute or two after the group arrived as the gas station, but the video shows that they waited there for over seven minutes.

[79] Based on these discrepancies, I intend to exercise caution before accepting the evidence of any witness that is not confirmed by the video evidence, and I do not accept any evidence that is inconsistent with the video evidence. I do, however, generally accept what any witness said about his or her state of mind at the time. As a matter of human experience, witnesses are much less likely to be mistaken about this than they are about recalling factual details.

(ii) Video

[80] The video evidence was played repeatedly throughout the trial. Every witness was shown portions of the video, and counsel made extensive reference to them in their closing submissions. I also spent hours viewing the videos in my chambers. I and counsel sometimes used the zoom function to obtain a closer view of portions of the videos. We played them in slow motion, and sometimes frame-by-frame (it was an agreed fact that each frame represented 1/30th of a second). Still images of the videos were extracted and relied upon.

[81] This type of review of the video evidence was entirely appropriate. As noted, the witnesses were unreliable in some respects. The video provided an objective and accurate account of what took place and greatly facilitated the fact-finding process.

[82] All of that said, some caution must be exercised in relying on the video evidence. There is a risk that this type of viewing of the video evidence will create a false impression as to how the events would have been perceived by the individuals who were present at the time, in particular with respect to the speed at which the events unfolded. For example, while days of court time were spent reviewing the video of what took place in the Get Movers parking lot, the events there from the time E.J.'s group arrived to when Mr. Abedini-Senoubari collapsed all occurred within less than 60 seconds.

[83] Based on this, while I rely heavily on the video evidence in making findings of fact, I do so keeping in mind that while the video can accurately depict what happened, it is limited in its ability to recreate what the events were like to those who experienced them.

C. Motive

(i) The Crown's Position

[84] As noted, the first component of self-defence, the catalyst, is not in issue. The second component is the requirement that "the act be undertaken by the accused to defend or protect themselves from the use of threat or force" and "not undertaken for the purpose of vigilantism, vengeance or some other personal motivation": Khill, at para. 59.

[85] The Crown submits that E.J.'s motive for the stabbing was not to protect himself, but rather to harm Mr. Abedini-Senoubari, whom he recognized as the person who had taunted him and made a video of him earlier. Crown counsel relies on the text messages, which she submits shows that E.J. had an animus against Mr. Abedini-Senoubari and targeted him specifically.

(ii) Self-Defence Need Not be the Only Motive

[86] The motive component requires that the accused acted for a defensive purpose, but it does not require that this be his or her only purpose. This element of the defence is made out if self-defence was at least part of the accused's purpose in undertaking the act in question. The defence fails only "[i]f there is no defensive or protective purpose": Khill, at para. 59. This was explained in R. v. Zsombor, 2023 BCCA 37, at para. 29:

I accept that an accused's purposes may be layered, in that they may act for a defensive purpose in addition to another purpose. However, for the defence of self-defence to succeed, the accused must have acted for a defensive or protective purpose, regardless of what other purposes may have co-existed.

See also R. v. Jeremschuk, 2024 ABCA 268, 75 Alta. L.R. (7th) 242, at paras. 28-29.

[87] Given the speed at which the events occurred and the fact that at the time of the fatal injury, E.J. appeared to be moving away from Mr. Abedini-Senoubari, who was advancing on him, the Crown has failed to satisfy me beyond a reasonable doubt that E.J. had no defensive or protective purpose at the time he stabbed Mr. Abedini-Senoubari.

(iii) The Text Messages

[88] I recognize that the text messages, in particular the one which states "Ur right we had to yoke your homie we had to make it personal," suggests that E.J. targeted Mr. Abedini-Senoubari. However, without the context of the other party's portion of the conversation, I am not inclined to put much weight on the text messages. In any event, given E.J.'s age and the overall immature tone of the messages, I am of the view that the messages were largely an expression of juvenile bravado rather than a genuine description of his state of mind.

D. Reasonableness

(i) Overview

[89] The real issue in this case is whether E.J.'s act was "reasonable in the circumstances" as required by s. 34(1)(c). The decision in Khill outlines several important points about what is meant by "reasonable in the circumstances," which can summarized as follows:

• The purpose of the reasonableness requirement is to ensure that the law of self-defence conforms to community norms of conduct, that is, the conduct expected of a reasonable person in the circumstances: Khill, at para. 62.

• The reasonableness requirement "casts a wide net of inquiry" that must take into account how the act happened and the role each person played: Khill, at para. 64.

• The inquiry is concerned with what a reasonable person would have done in similar circumstances, not what the accused thought at the time of the act: Khill, at para. 65. In other words, the issue is the reasonableness of the accused's actions, not his or her beliefs. However, reasonable beliefs held by the accused as to the nature of the threat are relevant, even if mistaken: Khill, at paras. 65-67.

• It is not the accused's perspective that must be considered. Rather, it is the perspective of a reasonable person with some of the accused's qualities and experiences, such as his or her physical characteristics (e.g. age, size, gender, etc.) as well as the prior history, if any, between the parties: Khill, at paras. 64, 67.

• Because s. 34 "blurs the line" between justifications and excuses, the term "reasonable" is not restricted to acts which are morally right. However, where an accused seeks to excuse his or her actions as being morally involuntary, the extent to which he or she contributed to the creation of the threat is an important consideration: Khill, at paras. 47-48; 105-107.

• The trier of fact must consider all of the factors enumerated in s. 34(2) that are relevant in the circumstances of the case, but may consider other factors as well. No one factor is necessarily determinative and the weight to be given to each factor is for the trier of fact to determine: Khill, at paras. 42-44, 68.

[90] This framework requires me to assess E.J.'s conduct in the context of a broader social perspective on what constitutes acceptable behaviour: Khill, at para. 2. This requires me to apply an objective standard of reasonableness. However, it must be a "modified" objective standard that takes into account the accused's personal circumstances, characteristics and experiences: R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at paras. 56-57; Khill, at para. 64. E.J. did not testify, so I know little about his circumstances and nothing about his experiences. However, I do know that at the time of the events in question, he was 17 years old, and the objective standard I apply must be modified to account for this.

(ii) Section 34(2) Factors

(a) The nature of the force or threat

[91] Mr. Abedini-Senoubari was clearly about to assault E.J. at the time of the alleged offence. However, the nature of the force or threat cannot be limited to that moment and the entire factual context must be considered. This case involved a conflict between two groups. By the time of the physical altercation between E.J. and Mr. Abedini-Senoubari, all of E.J.'s group except for Mr. Whyte had fled, while several members of Mr. Abedini-Senoubari's group remained.

[92] The existence of a group dynamic and its relevance to the factor in s. 34(2)(a) was recently considered in R. v. Sels, 2025 ONCA 592, at paras. 17-20:

The factors set out in s. 34(2) contemplate that for purposes of self-defence, an "incident" may involve multiple parties. An accused may perceive a threat of force emanating from one individual, or from a group acting in concert. The statutory criteria are broad and flexible. They require consideration of the whole of the circumstances. A group dynamic, where relevant, can impact on all three stages of the analysis: the catalyst, the motive, and the response.

A group dynamic stands out as particularly relevant to one aspect of s. 34(2), namely the direction in subsection (a) to consider "the nature of the force or threat". The animating purpose of self-defence is "defending or protecting" oneself or another from a force or threat: s. 34(1)(b). As the intensity of a force or threat increases, so too does the range of reasonable responses.

The force or threat posed by a group will often be qualitatively different - that is different in nature - than that posed by an individual acting alone. An accused who is outnumbered in a physical dispute may face a heightened risk of danger. A coordinated assault from multiple assailants may be more formidable than an assault from an individual assailant, or even a series of assailants.

[93] The heightened threat posed by a group was illustrated in this case by events that occurred immediately prior to the altercation between E.J. and Mr. Abedini-Senoubari. At least two and possibly more people were circling Mr. Whyte and assaulting him in concert, conduct which Mr. Abedini-Senoubari joined in by swinging at Mr. Whyte. The threat posed by the group was also illustrated by what occurred immediately after Mr. Abedini-Senoubari was stabbed, when he and Mr. Alemi both kicked E.J. while he was on the ground, although this occurred afterwards and would not have been known to E.J. at the relevant time.

[94] Overall, this factor supports a finding that E.J.'s act was reasonable.

(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

[95] It is clear that at the time of the act, the use of force by Mr. Abedini-Senoubari was imminent and escape was not a realistic possibility. There were, however, other means available to E.J. to respond to the use of force. He could have struck Mr. Abedini-Senoubari with his fists or kicked him. He could have hit him with the bottle he had in his hand, as he had attempted to do moments earlier.

[96] That said, I must bear in mind the well-established principle that an accused who claims self-defence is not required to "weigh to a nicety" the amount or type of force used in response and "the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection": R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7; R. v. R.S., 2019 ONCA 832, 440 D.L.R. (4th) 165, at para. 38.

[97] Leaving aside for the moment the fact that E.J. used a weapon, which is considered later in relation to the factor in s. 34(2)(d), given the speed at which events unfolded, this factor also favours a finding that the act was reasonable.

(c) The person's role in the incident

(1) The scope of s. 34(2)(c)

[98] E.J.'s role in the incident is a significant factor in this case. The scope of s. 34(2)(c) was recently explained in Khill and can be summarized as follows:

• Unlike many other factors in s. 34(2) which are temporally bounded by the threat of force and the accused's reaction to it, "the person's role in the incident" includes a consideration of the accused's conduct over the minutes, hours or days leading up to the violent confrontation, from the beginning to the end of the incident, including before the threat materialized: Khill, at paras. 82-83.

• Where both parties engaged in aggressive and confrontational behaviour, s. 34(2)(c) does not demand a "zero‑sum" apportionment of responsibility. Instead, it recognizes the complexity of human interaction and "allows triers of fact to appropriately contextualize the actions of all parties involved, rather than artificially fragmenting the facts": Khill, at para. 83.

• The term "role" is intended to be an abstract concept and can include "acts and omissions, decisions taken and rejected and alternative courses of action which may not have been considered." It includes conduct that is lawful and unlawful, and that which is blameworthy and that which is not, and allows for a finding that the accused contributed to the situation even if he or she does not bear full responsibility for it: Khill, at para. 84.

• The purpose of considering the accused's role is its relevance to the reasonableness assessment where the accused's role created, caused or contributed to the incident because "[t]he extent to which the accused bears responsibility for the ultimate confrontation or is the author of their own misfortune may colour the assessment of whether the accused's act was reasonable": Khill, at paras. 85-87.

• Section 34(2)(c) does not involve a simple application of a "but for" causative test. It is not restricted to situations where the accused provoked the confrontation and includes other conduct that falls short of provocation but contributes to the development of the situation giving rise to the act. This includes anything the accused did to escalate or de-escalate the situation: Khill, at paras. 88-90.

(2) Did E.J. intend to participate in a consensual fist fight?

[99] A central part of the Crown's theory in this case is the contention that after walking to the Mr. Motor parking lot, E.J. and the others in his group decided not to leave the scene but to instead go south to the Get Movers parking lot for the purpose of having a consensual fight with the members of the other group, whom E.J. and others had beckoned to come there for that purpose.

[100] If E.J. had been involved in provoking the other group into engaging in a consensual fight, then he would have played a significant role in creating the situation that led to him resorting to force to protect himself. Up to that point, there had been no physical altercations between the two groups. In these circumstances, inviting the other group to engage in a fight would have been a deliberate choice to escalate the situation rather than retreat, which would be a relevant consideration: R. v. Willemsen, 2022 ONCA 722, 418 C.C.C. (3d) 353, at para. 20.

[101] Having carefully considered all of the evidence, I do not accept that E.J. attempted to initiate a consensual fight with the other group, although Mr. Whyte and Mr. Vorobiov may have done so earlier. I draw this conclusion for several reasons.

[102] First, there is no reliable evidence that E.J. communicated to the other group that he wished to engage in a consensual fight. No witness testified to hearing E.J. say anything that amounted to an invitation to the members of the other group to fight. The Crown submits that video from Camera #5 taken after E.J.'s group left the Mandarin parking lot shows that they continued to verbally engage with the other group. The video shows the feet of E.J.'s group moving around, but there is no audio and no evidence as to where the other group was at this point. I am not prepared to speculate about what, if anything, was being said. In any event, it appears from the placement of their feet that E.J.'s group was standing in a circle rather than facing the other group.

[103] Mr. Ahmadi testified that E.J. was "call[ing] them to come fight and stuff … with their hand gestures" and Mr. Abdulsamed said that he "waved for people to come" and specifically waved at Mr. Abedini-Senoubari. However, virtually all of E.J.'s movement from the time he arrived at the Mr. Motor parking lot onwards were captured on video, and other than one movement of his arm seen on Camera #4, he did not wave or make any gesture that can be interpreted as an invitation to fight. For the reasons I have explained, I have significant concerns about the reliability of the witnesses' evidence with respect to events that were not captured on video. With respect to the arm movement that E.J. can be seen making on Camera #4, it is, in my view, ambiguous. No member of the other group seeing it could reasonably have concluded that it was an invitation to go to the Get Movers parking lot for a consensual fight.

[104] Second, the Crown's theory is based, at least in part, on the fact that instead of leaving the area from the Mr. Motor parking lot, which they could easily have done, the members of E.J.'s group went to the Get Movers lot. However, the fact that they did so can be explained by Mr. Whyte's and Mr. Vorobiov's unwise decision to confront the other group. I accept that at that point, Mr. Whyte and Mr. Vorobiov may have been trying to initiate a physical confrontation. Mr. Whyte had been breaking bottles and throwing objects, and I have difficulty accepting his evidence that he did not believe anybody would fight with him because he was 15 years old. However, the other members of the group, including E.J., did not join Mr. Whyte and Mr. Vorobiov. Instead, they moved away from the area. Mr. McKenzie's evidence that he told Mr. Whyte and Mr. Vorobiov to "get out of here" is consistent with his movements on the video. He approached them, after which they all immediately began running south. While Mr. Whyte and Mr. Vorobiov may have gone to the grassy area to have a physical confrontation, it appears that they abandoned that intention once the larger group began approaching them and instead followed their friends southbound.

[105] The video evidence does not support the Crown's submission that E.J. began running southbound before any members of the other group began approaching Mr. Whyte and Mr. Vorobiov. Camera #5 shows that as E.J. was running south and Mr. Whyte and Mr. Vorobiov were leaving the grassy area, several pairs of feet were moving northbound towards where Mr. Whyte and Mr. Vorobiov had been standing. Once Mr. Whyte and Mr. Vorobiov began running southbound, the feet turned and also moved southbound. From the vantage point of E.J. and the others, the other group would have been visible before their feet appeared on the video.

[106] Third, E.J.'s group consisted of six individuals, five of whom were 15 years old or younger. The other group was much larger. While the exact number is unclear, when the larger group first approached the smaller group in the Mandarin parking lot, the video shows that there were at least 17 people in it. The southbound facing camera in the Mr. Motor laneway shows that immediately after E.J.'s group turned the corner into the Get Movers parking lot, the other group that followed them in numbered at least that many. This is the group that E.J. and the others would have seen approaching the grassy area where Mr. Whyte and Mr. Vorobiov had been standing.

[107] By the time E.J.'s group entered the Get Movers parking lot, it would have been obvious to them that they were outnumbered and a fight with the other group would inevitably lead to them being defeated, humiliated and possibly seriously injured. I agree with Crown counsel that intoxicated adolescents sometimes make unwise choices, and it appears that Mr. Whyte and Mr. Vorobiov may have initially have done so, but I find it unlikely that all six members of the group intended to confront the larger group in the Get Movers parking lot. I accept the testimony of Mr. McKenzie that there was no plan for a consensual fight between the two groups.

[108] Fourth, the behaviour of E.J.'s group in the Get Movers parking lot, as seen on Camera #6, is inconsistent with them planning to engage in a fight. Mr. Berkovits immediately ran to the middle of the lot. The others all began to back away as soon as they entered the lot. Within six seconds, all of them except for E.J. and Mr. Whyte, both of whom had tripped, turned and ran away. While Mr. Vorobiov did move his fist into his hand three times, he immediately turned and ran after doing so. I accept his evidence that he was merely preparing to defend himself if necessary.

[109] The Crown seeks to explain the group's behaviour by postulating that they intended to have a consensual fight, but ran away when the other group turned out to be larger than expected. That may have been the case for Mr. Whyte and Mr. Vorobiov while they were on the grassy section between the laneways. However, by the time the whole group was in the Get Movers lot, they would already have known that the other group was much larger.

[110] For these reasons, I am unable to conclude that E.J. and his group planned to have a consensual fight with the other group in the Get Movers parking lot. It is far more likely that they entered the lot with the intention of leaving the area through the exit near the St. Louis Bar and Grill restaurant.

(3) Did E.J. initiate the altercation?

[111] The Crown correctly points out that E.J. swung the bottle at Mr. Abedini-Senoubari just prior to the fatal altercation and submits that he therefore initiated the altercation and cannot reasonably claim to have acted in self-defence. Whether the accused initiated the altercation is an important consideration under s. 34(2)(c) and can often be dispositive of whether he or she can successfully claim to have acted in self-defence: Khill, at para. 88.

[112] As was made clear in Khill, at para. 83, the effect of s. 34(2)(c) is that "judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing the actions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts." This means that I cannot simply consider the events beginning at the moment that E.J. swung the bottle at Mr. Abedini-Senoubari.

[113] It is important to note that prior to Mr. Whyte punching Deon, there had been no physical contact between the two groups and the altercation had been entirely verbal. Mr. Whyte's punch had the effect of changing the nature of the confrontation, so it is helpful to consider what occurred from that point, as well as the speed at which events unfolded.

[114] The important events and the times at which they occurred were as follows:

Time	Event
00:23:43	Mr. Whyte punches Deon.
00:23:44	Mr. Whyte runs away from Deon and loses his shoe.
00:23:46	Deon follows Mr. Whyte and they face each other and raise their fists.
00:23:49	A second individual approaches Mr. Whyte.
00:23:50	Mr. Whyte retreats and the other two follow.
00:23:52	The second man punches Mr. Whyte.
00:23:53	E.J., who was walking backwards, turns and sees Mr. Whyte, Deon and the other man.
00:23:54	E.J. swings the bottle at the second man and misses while Deon and the man swing at Mr. Whyte.
00:23:56	Mr. Whyte falls to the ground. Mr. Abedini-Senoubari breaks away from Mr. Ahmad and begins to run to the area where Mr. Whyte is.
00:23:57	Deon and the other man kick Mr. Whyte on the ground.
00:23:58	Mr. Whyte gets up.
00:24:00	Mr. Abedini-Senoubari arrives to where Mr. Whyte is and swings at him.
00:24:01	E.J. swings the bottle at Mr. Abedini-Senoubari and misses.
00:24:02	E.J. swings the bottle again and misses.
00:24:03	Mr. Abedini-Senoubari advances towards E.J. with his arm raised and appears to make contact with him.
00:24:04	E.J. extends his left arm, stabbing Mr. Abedini-Senoubari in the chest.
00:24:05	E.J. falls to the ground, where he is kicked by Mr. Abedini-Senoubari and Mr. Alemi.

[115] This entire sequence of events took 22 seconds. During this time, E.J. swung the bottle three times: once at the unidentified male who was punching Mr. Whyte together with Deon and twice at Mr. Abedini-Senoubari right after he had joined the other two and swung at Mr. Whyte. The time that elapsed between when Mr. Abedini-Senoubari swung at Mr. Whyte and when E.J. stabbed him was four seconds.

[116] In my view, it is not accurate to say that E.J. initiated the confrontation with Mr. Abedini-Senoubari. Rather, he became involved in an existing confrontation that was initially between Mr. Whyte and Deon, but which the unidentified male and Mr. Abedini-Senoubari then joined. E.J. was not the initial aggressor, nor was he the person who made the fight uneven.

[117] When all of the evidence is considered, it is clear that E.J.'s role in the incident is not straightforward. He initially failed to take any steps to de-escalate the conflict and failed to leave the area when he could have done so from the Mr. Motor parking lot. He was not responsible for the altercation becoming physical, but he chose to use a weapon when others did not. However, he did so in circumstances where he and Mr. Whyte were outnumbered. While some aspects of E.J.'s role support the conclusion that his act was unreasonable, other aspects support the opposite conclusion. All form part of the matrix of factors that must be considered in determining whether the act was reasonable.

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

[118] E.J. used two weapons: the bottle he swung at Deon and then at Mr. Abedini-Senoubari and the knife. There is no reliable evidence that any other party used or threatened to use a weapon. While Mr. Vorobiov testified that he saw someone with a knife, his evidence on this point was unreliable.

[119] The parties do not agree about when E.J. first produced the knife. The Crown maintains that he did so at the time he tripped on the loading ramp. The Crown relies on two stills from one of the cell phone videos. The first shows E.J. at the time Mr. Ahmad took hold of him in an effort to take the bottle from him. His left arm is raised and there appears to be a long and narrow white shape above his hand, which the Crown suggests is the light reflecting off the blade of the knife. The second shows E.J. while he was standing near the area where Mr. Whyte was fighting with Deon and the other individual before he swung the bottle at the second man. There again appears to be a narrow object in his left hand.

[120] I am not prepared to make a finding that E.J. produced the knife when he fell on the loading ramp. The shape relied on by the Crown is indistinct and can only be seen in two frames of the video, each of which represents 1/30th of a second. The white shape above E.J.'s hand appears to be slightly curved, which the knife blade was not. More importantly, if E.J. had been holding the knife up as the Crown suggests, it would have been apparent to Mr. Ahmad. However, he testified that he did not see a knife and would not have grabbed E.J. if he had, and I accept his evidence.

[121] I am satisfied that E.J. did have the knife out when he was standing near where Mr. Whyte was fighting with the other two people. The video is clearer, the object is apparent for at least nine or 10 frames, and it is clearly moving together with E.J.'s hand. Furthermore, E.J. would not have had time to take the knife out when Mr. Abedini-Senoubari was advancing on him.

[122] The finding that E.J. had the knife out prior to swinging the bottle can be said to "cut both ways." On the one hand, it suggests that E.J. may have been prepared to use the knife before anybody had threatened him. On the other hand, it shows that he opted to use the bottle on the unidentified male and initially on Mr. Abedini-Senoubari despite having the knife available. Overall, I do not find the timing of E.J.'s production of the knife to be of much assistance in determining whether his actions were reasonable. The fact that he had a knife, however, is of some significance.

[123] Crown counsel submits that E.J. broke an unwritten "rule" against "bringing a knife to a fist fight." That he did, which weighs against a finding that his actions were reasonable. The reason for the "rule" is that where only one participant in a fight is armed with a knife, they are not evenly matched and the fight is unfair. However, once again, the entire context must be considered and the presence of a group dynamic is a relevant factor. The use of a weapon in an altercation puts the other party at a disadvantage, which may make the act said to constitute self-defence unreasonable. However, where the armed individual is facing a threat from a group, he or she is at a disadvantage and the use of a weapon may be reasonable to counter that disadvantage.

[124] E.J.'s decision to use a weapon when nobody else was armed is also relevant to the proportionality factor, which is discussed later in these reasons. Overall, E.J.'s use of weapons detracts from the reasonableness of his response, although this factor is not conclusive: R. v. Nelson, 2024 ONSC 1815, at paras. 128, 135; R. v. P.S., 2022 ONSC 3894, at paras. 288-291; R. v. Jobe, 2021 ONSC 7508, at paras. 130, 136-145.

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

[125] There was evidence that Mr. Abedini-Senoubari was somewhat taller than E.J. and he appeared on the video to be slimmer and more muscular. However, the differences in their relative sizes were not, in my view, of much significance. They were of the same gender and approximately the same age. This is not a relevant factor in the circumstances of this case.

(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

[126] I will consider these two factors together are they are related. There is some overlap between this factor and E.J.'s role in the incident.

[127] E.J. and Mr. Abedini-Senoubari did not know each other. They first interacted outside the Cleopatra Lounge when Mr. Abedini-Senoubari made a video of E.J. arguing with the security guard, which E.J. took exception to. After that, members of their respective groups became involved and taunts and disrespectful language were exchanged between them. Some of Mr. Abedini-Senoubari's utterances of this type can be heard on the video he made while E.J. and his group were walking towards Mr. Motor. Some of E.J.'s words were captured by the camera outside the Cleopatra lounge, and several witnesses testified that he was shouting and speaking aggressively.

[128] There is no evidence that either E.J. or Mr. Abedini-Senoubari threatened each other. There is evidence that when he was outside of the Cleopatra lounge, Mr. Abedini-Senoubari said, "I'll run ones with him any time" and "I'll fuck him up," which were comments that were apparently about E.J. However, there is no evidence that E.J. was present at the time or knew about these utterances.

[129] According to Mr. Ahmadi, once E.J. was in the Mr. Motor parking lot, he appeared to be listening and was cooperative. However, he left the Mr. Motor parking lot after Mr. Whyte and Mr. Vorobiov went to confront the other group. There is no evidence that he said anything to Mr. Abedini-Senoubari after this point.

[130] Mr. Ahmadi testified that Mr. Abedini-Senoubari was yelling and appeared to be angry in the Get Movers parking lot immediately before he broke away from him and ran towards Mr. Whyte, although Mr. Ahmad could not recall what he said.

[131] In my view, both E.J. and Mr. Abedini-Senoubari made poor decisions at different points and chose to escalate or continue the altercation rather than end it.

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

[132] E.J. stabbed Mr. Abedini-Senoubari in the chest with a knife. The Crown is no longer alleging that E.J. intended to kill Mr. Abedini-Senoubari or intended to cause him serious bodily harm he knew was likely to cause death. However, stabbing a person in the chest with a knife is clearly very dangerous.

[133] The proportionality of the response is a more difficult question. At one level, stabbing an unarmed person in the chest in response to a threat of being punched is disproportionate: Jobe, at para. 144. However, as noted earlier, the group dynamic must be considered: Sels, at para. 20; P.S., at paras. 288-291. The threat E.J. was facing was more than a punch from Mr. Abedini-Senoubari. Rather, it was a group assault by several individuals. This was in fact what occurred immediately after the stabbing when Mr. Abedini-Senoubari and Mr. Alemi kicked and stomped on E.J. when he was on the ground.

[134] Also relevant here is the principle alluded to earlier that an accused is not required to "weigh to a nicety" the measure of force required as a defensive action. There is no requirement for strict proportionality, and the accused may be mistaken about the level of force required as long as the mistake is reasonable: R. v. Kong, 2005 ABCA 255, 53 Alta. L.R. (4th) 25, at paras. 208-210, per Wittman J.A., dissenting, rev'd (dissent adopted) 2006 SCC 40, [2006] 2 S.C.R. 347; P.S., at para. 291. As was noted in R. v. Hodgson, 2024 SCC 25, 494 D.L.R. (4th) 501, at para. 78, "[a] person in a threatening situation need not carefully assess the threat and thoughtfully determine the appropriate response."

[135] Given the speed at which the events unfolded, the group dynamic and the fact that there was only one stab wound, I do not consider the force used to be disproportionate.

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

[136] This factor is not applicable.

(iii) Balancing the Factors and Assessing Reasonableness

[137] Having considered the statutory factors in s. 34(2), the ultimate question that must be determined is whether E.J.'s act in stabbing Mr. Abedini-Senoubari was reasonable, or, more accurately, whether the Crown has proven beyond a reasonable doubt that it was not.

[138] One the one hand, E.J. participated in the disrespectful language and taunting that was exchanged between the two groups, thereby escalating rather than de-escalating the conflict. While he initially appeared to be prepared to leave, he failed to do so after other members of his group decided to re-engage with the other group. However, I do not accept that he intended to have a consensual fight. Rather, by the time E.J. and the others were in the Get Movers parking lot, they intended to leave and were pursued by the other group.

[139] E.J. used not one, but two weapons in circumstances where nobody else was armed. The threat E.J. faced from Mr. Abedini-Senoubari was the result of having swung a bottle at him. On the other hand, Mr. Abedini-Senoubari was part of a larger group, the members of which had demonstrated that they were not above ganging up on others, and who had been assaulting the much younger Mr. Whyte.

[140] I have carefully considered all of the relevant factors in s. 34(2) of the Code. As noted, some favour a finding that E.J. acted reasonably, while some favour the opposite finding. While I view this as a close case, I am ultimately not satisfied beyond a reasonable doubt that E.J.'s actions were unreasonable and the Crown has therefore failed to disprove that he acted in self-defence.

V. DISPOSITION

[141] The Crown accepts that the evidence does not support the charge of second degree murder alleged in the indictment and E.J. is found not guilty of that charge. For the foregoing reasons, E.J. is also found not guilty of the lesser and included offence of manslaughter.

[142] The verdict in this case is the result of an application of the law to the facts, keeping in mind that the Crown bears the heavy burden of proving the charge beyond a reasonable doubt. The verdict is not intended and should not be taken as condoning the conduct of E.J. or anybody else. This case involved the tragic and senseless loss of the life of a young man who had his whole future ahead of him. The altercation that led to this involved the escalation of a dispute over nothing of any importance and was fuelled by machismo and unfocussed, immature and unjustified aggression by adolescents apparently attempting to emulate some sort of gangster culture. E.J. and most other people who were involved in these events could have made different and better choices that would have resulted in a different outcome.

[143] I would be remiss if I did not thank counsel for the manner in which they conducted this trial. All counsel worked cooperatively to agree on facts and legal issues where possible while still discharging their respective roles and advancing their positions forcefully and effectively. They conducted themselves throughout with civility and while showing respect for the court, each other, the witnesses and the family members of those affected by this case.

Justice P.A. Schreck

Released: October 24, 2025

APPENDIX A

Map showing approximate locations of Cameras #1-9 (indicated with numbered black dots) and areas of coverage (indicated with red triangles).