R. v. Draid

2016 BCSC 423 R. v. Draid IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Draid, 2016 BCSC 423 Date: 20160308 Docket: 26454 Registry: Vancouver Regina v. Sami Hashmi Mohamed Draid Before: The Honourable Mr. Justice Butler Oral Reasons for Judgment Counsel for the Crown: W. Kerr Clark, Q.C. Counsel for the Accused: Robert W. Bellows Place and Date of Trial: Vancouver, B.C. December 3, 4, 7, 8, 11 and 14-16, 2015 Place and Date of Judgment: Vancouver, B.C. March 8, 2016 [1] Sami Draid faces three charges arising from an altercation with David Sarraf on September 13, 2012. He is charged with: 1) attempted murder of Mr. Sarraf by stabbing him with a knife; 2) aggravated assault of Mr. Sarraf; and 3) operating a motor vehicle in a manner that was dangerous to the public. [2] In September 2012, Mr. Draid was working for Mr. Sarraf as a labourer at a commercial building (the "Building"), which was under renovation at the corner of West 6th Avenue and Fir Street in Vancouver. The circumstances giving rise to the charges are unusual. The Crown led evidence about three encounters Mr. Draid had on the day in question. The first involved Phillo Bobadilla, another employee of Mr. Sarraf. In the second encounter, the Crown says that Mr. Draid jumped Mr. Sarraf from behind and stuck a drywall knife into his neck. The third encounter took place when Mr. Draid got into his car to leave and drove onto the sidewalk where Mr. Sarraf was standing. Mr. Draid gave evidence at the trial. His evidence regarding the history of the relationship between the two men and the events of the day in question is quite different from the evidence of Mr. Sarraf. [3] I will describe the events of the day by reference to the evidence of the parties and, in doing so, will set out my findings of fact about the three encounters. I will then explain the conclusions I have arrived at regarding the charges. In the course of giving my decision, I will, for the sake of convenience, refer to the three men only by their surnames. I mean no disrespect by doing that. Evidence of the Three Encounters [4] Draid was born and raised in Libya where he worked as a fireman and a mechanic. He is the father of two teenage sons who still live in Libya. He came to Canada as a landed immigrant in 2008. His first language is Arabic and he is Muslim. In British Columbia, he has work experience in construction as a labourer. In July 2012, about nine weeks before the incident that gave rise to these charges, Draid was looking for work and saw Sarraf standing outside of the Building, which was obviously a construction site. He approached Sarraf and asked if he needed workers. After some negotiation over wages, Sarraf hired Draid to do cleanup and general labour work at the Building. [5] Sarraf is a commercial real estate developer. The Building was one of approximately 30 commercial buildings he owned in Vancouver at the time. He now owns 50 buildings. He is 63 years old and has been in Canada for 41 years. He was born and raised in Israel and spent three years in the armed forces before he emigrated. When Draid approached him, he was nearing the end of an extensive renovation project at the Building which was being carried out by his general contractor, Yusuf Hayiun (the "Contractor"). Sarraf needed someone to clean up the construction site each day and perform tasks which were outside of the scope of work of the Contractor, and so he hired Draid to do that work. On occasion, the Contractor paid for some of the work that Draid performed, but most of the work was done for and paid by Sarraf. [6] Draid owned an older red Honda Civic which he drove to the worksite each day. After working for Sarraf for about four weeks, Draid asked if he could stay overnight in the Building. He was permitted to do that and parked his car at the site. Sometime later, Sarraf agreed to pay Draid to stay overnight in the Building because the Contractor and his crew were leaving tools in the Building and were concerned about theft. This situation continued up to September 13, 2012. The Encounter with Bobadilla [7] On September 13, 2012, the project was nearing completion. Around mid-day, the Contractor purported to fire Draid and told him he could do no more work at the Building site. I heard little evidence about that discussion or dispute, probably because it was clear on the evidence that Draid was employed by Sarraf. Sarraf was present when the Contractor purported to fire Draid. Sarraf thought that Draid did good work and told him that he could continue to work for him at the Building, regardless of what the Contractor said. [8] In any event, later in the day, Sarraf wanted to have some touch-up painting done on the high ceilings in the Building. He was anxious to complete it that day because the scissor lifts that had been used at the site were going to be returned to the equipment rental company. Sarraf asked Bobadilla, a long-time employee who worked at Sarraf's other buildings, to do the painting along with Draid. They worked together for 30 to 45 minutes late in the afternoon after the Contractor's crew had left for the day. [9] Bobadilla and Draid did not know one another as this was the first and only time they worked together. Bobadilla described an incident which occurred when he was up on the scissor lift with Draid. The two men had an argument. Bobadilla asked Draid about the troubles in Draid's home country. (This was right after the incident at the U.S. Embassy in Benghazi, Libya - although in evidence Bobadilla said he asked Draid about the troubles in Syria, not Libya.) He also asked Draid about "Mohammed", and explained that he was Catholic and did not know anything about the Prophet. Bobadilla said that Draid responded angrily to these questions and pushed him on the lift when they were up in the air. After he was pushed, Bobadilla was upset and asked for the lift to be lowered so he could leave, as he did not want to spend more time with Draid. He only told Sarraf about this encounter four or five days later, even though he spoke with Sarraf each day. [10] Draid's version of the time the men spent on the scissor lift is very different. He said the two men did the painting work as directed by Sarraf and that they did not have any conversation about Libya or Mohammed. Draid denied any argument with Bobadilla and denied pushing him. He said that Sarraf remained in the room where they were working and directed the painting from below. He said they finished the work without incident. [11] Sarraf testified that he and Draid had been working on the painting that had to be done from the scissor lift before he asked Bobadilla to take his place. After asking Bobadilla to take over, he left the two men to work on their own. When he came back to the room, the work was mostly finished and Bobadilla was leaving. Sarraf heard no argument between the other two men. Neither of them told Sarraf about any incident on the scissor lift before Bobadilla left. After he left, Sarraf and Draid were the only two people remaining at the Building. [12] The Crown asks the Court to accept Bobadilla's version of events and submits that Draid's behaviour on the lift with Bobadilla is relevant to what happened later in the encounter with Sarraf. I am unable to accept either of these submissions. Bobadilla's version is somewhat inconsistent with the recollections of the other men. When I consider the evidence of all three men, I conclude it is unlikely that Bobadilla and Draid had any sort of serious argument or dispute. If they had such a dispute, Sarraf would likely have heard the argument, been told about it, or otherwise become aware of it before Bobadilla departed. It seems unlikely that Bobadilla would have acted as if nothing had happened as he was leaving the Building. In addition, it seems unlikely that he would have waited almost a week after Sarraf was hospitalized to tell him about it. Bobadilla and Draid may have had an argument, but if they did, it was minor. Having reached that conclusion, I need not determine exactly what happened on the scissor lift. This is because it seems highly unlikely that the minor dispute on the scissor lift could have any relevance to the later encounters between Draid and Sarraf. The Drywall Knife Encounter [13] Sarraf described the events which give rise to the charges. His evidence was given in a direct and matter of fact fashion, but he provided few details. He said that after Bobadilla left, he spoke to a woman who was passing by the Building at about 7:00 p.m. Shortly after that, he said goodbye to Draid and told him he would see him in the morning. He denied having any kind of argument or dispute with Draid. Sarraf said he was inside the Building standing near a door when he suddenly felt something heavy land on top of him from behind and he fell to the floor. He did not know what it was. He kicked and struggled to get the weight off of him and, in doing so, realized the weight was Draid, who had his legs wrapped around him. [14] After Sarraf realized that Draid was on top of him, he fought to get free. In the course of that, he felt something in his neck. He did not know what it was, but reached up and found that he had a drywall knife stuck in his neck. He did not see Draid put the knife in his neck but assumed that Draid had stabbed him. When he felt the knife, he pulled it out of his neck and placed it in his pocket. He later gave it to the police. [15] There was a pile of drywall in the immediate area of the encounter. The photographs show that there was also a piece of drywall or wood leaning up against the window in the area where the struggle occurred. Sarraf did not see any tools or tool belts on the floor in the area when they were moving the scissor lift around. He was wearing a tool belt, but was not carrying a drywall knife. Sarraf denied threatening Draid with the drywall knife after their struggle. He says he simply went outside and tried to get some help as he was bleeding badly. When outside, he was almost struck by Draid's car, which drove up on the sidewalk in his direction. I will describe his evidence on that encounter later in these reasons. [16] Draid also described what happened in the brief struggle which ended with Sarraf falling to the ground and the drywall knife in his neck. His evidence was given through an interpreter. At all times, Draid spoke earnestly and appeared intent on providing a full account of his actions. He gave detailed answers which were generally responsive; although he had a tendency to provide details about irrelevant or collateral matters. In addition to describing the incidents of September 13, 2012, he gave evidence about a series of interactions with Sarraf in the preceding weeks during which he was allegedly hit and pushed by his employer. [17] On September 13, after Bobadilla left the Building, Draid went to add water to his car. Sarraf chastised him for only thinking about his car and himself. He told Draid to do some more painting on the ceiling before quitting. Draid explained to the Court that Sarraf always spoke to him in a loud and assertive way and did so that evening. When Draid came down from the lift, Sarraf instructed him about other tasks and, in particular, told him to recharge the batteries for the scissor lifts. Draid was following Sarraf towards the door when all of sudden Sarraf hit or pushed him firmly with the side of his arm and told him to go and start recharging the lift batteries. Draid thinks Sarraf pushed him because he was upset that Draid did not immediately follow his instructions. [18] This was the fourth time Draid had been pushed by Sarraf and it upset him. Draid says he responded by pushing back at Sarraf just as hard as he had been pushed. When he did that, Sarraf fell and, in doing so, knocked down a board which fell on top of him. When that happened, Draid says he tried to help Sarraf get up and he lifted the board off of him. However, Sarraf became very angry and started to fight. Draid says he does not know how the drywall knife got in Sarraf's neck. He denied stabbing Sarraf with the knife and says he did not have such a knife or know where it came from. After the fall, Sarraf got up and threatened Draid with the drywall knife that was in his hand. Draid says Sarraf pointed or stabbed the knife in his direction and so he had to run out the door and hold it shut so that Sarraf could not stab him. [19] Draid described in some detail the prior instances when Sarraf pushed him. The first one occurred about three weeks after Draid started work. Sarraf was inspecting painting done by Draid and became angry when he saw a spot of paint on the floor. Sarraf then pushed Draid in the chest with his arm when they were on the stairs in the Building. Draid was very upset and complained, saying that he had done a good job and that there was no reason to push or hit him. He indicated that he was going to quit and wanted the back pay owed to him. Sarraf apologized profusely and eventually Draid accepted the apology and agreed to continue working. [20] The second time Sarraf pushed Draid occurred on August 23, 2012. Draid knows the date because of the events that happened after the pushing incident. Sarraf asked him to dig a hole to expose a sewage pipe both inside and outside the Building. The job took some time, and at some point as Draid was working, the two men had an argument. Draid asked for his outstanding pay and, in the course of the argument, Sarraf again pushed or hit him with the side of his arm in a fashion similar to what had occurred the first time. Draid almost fell in the hole. He was upset and asked why Sarraf kept hitting him. He went outside to have a smoke and then got in his car to drive to a mosque as it was close to prayer time. On the way he decided to report the "assault" to the police. He called 911 and was told to come to the police station. [21] Draid went to the police station and parked in a lot two blocks away. He went in and was told that two officers would see him. He waited for some time, but no one came to see him. He then made two phone calls: one to the police and one to Sarraf. He produced phone records which confirmed both the 911 call and the subsequent calls. When he spoke to Sarraf, he told him that he was at the police station to file a complaint about Sarraf assaulting him. Sarraf urged him to come back to work. Eventually Draid spoke to two police officers outside the police station. He was upset and had difficulty explaining himself in English. The officers tried to calm him down. One of the officers gave Draid a business card and said he should call if there were further problems. [22] When Draid went back to his car it was gone; it had been towed. He called Busters Towing (again, confirmed by phone records) and went to pick up his car. However, Busters would not release it to him because his driver's licence had expired. Draid called Sarraf and asked him to come and help him pick up his car. Sarraf and the Contractor came and did that, driving Draid's car back to the Building for him. Draid decided to continue to work with Sarraf in spite of his anger at being pushed. He came to that decision because he thought that Sarraf would not push him again knowing that Draid had complained to the police. In addition, he had calmed down and was thankful for the help he received in retrieving his car. [23] The third pushing incident occurred on the scissor lift. Draid and Sarraf were on a lift and Sarraf was replacing some lights. Sarraf needed a screwdriver, but had the wrong one and asked Draid to get the correct one. Draid started to lower the lift and Sarraf again hit or pushed him with the side of his arm and told him to just jump down as the lift was close to the ground. Draid did not threaten to quit on this occasion, although after it happened the two men had an argument when Draid asked for some money he was owed and Sarraf offended him by telling him to get his money from Mohammed. Draid was upset, but the Contractor, who overheard this, suggested that Draid not pay any attention to what Sarraf said. [24] It was apparent from Draid's evidence that he had difficulty with the way that Sarraf treated him. He said that Sarraf often called him a "hmar" - the Arabic word for donkey. Draid found it demeaning. The term is used to indicate that someone is stupid and Sarraf used it frequently in reference to Draid. Sarraf agreed that he used the word, but said it was always done in a joking way. [25] Sarraf was cross-examined about the incidents where he allegedly pushed Draid. He denied ever doing so. However, he had little recollection of many of the events described by Draid. He does recall going to help pick up Draid's car at Busters, but denied that he had pushed Draid that day or knew that Draid went to the police station to complain about an assault. He suggested the story was a fabrication. He also denied making jokes about Mohammed to Draid. He denied any recollection of other incidents described by Draid which did not involve any argument or aggression on Sarraf's behalf. For example, he denied ever having Draid load his van with rocks or concrete taken out during work at the Building, a task that was described in some detail by Draid. [26] There is other evidence that has some relevance to the attempted murder count. Sophie Brodovitch testified that at 6:45 p.m. on September 13 she was walking down Fir Street to go for a run. She saw a tall man, who she said was similar in appearance to Sarraf, and a man with a beard matching Draid's appearance, having a one-sided argument by the door to the Building. It was one-sided because only the tall man - that is, Sarraf - was speaking. Forty minutes later when she was on the way home from her run, she saw the tall man running down stairs in the Building and yelling that he had been stabbed in the neck. [27] Draid's statements made at the time of his arrest are also of significance. After he left the Building, he drove to Templeton Park where he performed his evening prayers. Constables Chris Bowater and Jennifer Simms were tasked with arresting him as he had been traced to that location by his cell phone. The evidence of the two officers was somewhat contradictory. Constable Bowater told Draid that he was under arrest. He did not notice that English was not Draid's first language. He said that Draid spoke clearly and his answers were all appropriate. He did not think that Draid spoke quickly or in an excited fashion. He read the Charter rights from his card and Draid indicated that he did not need a lawyer as the Lord was his lawyer. Constable Bowater testified that Draid then stated: "I tried to take his tongue but I did not succeed. I wanted to kill him." [28] Constable Simms' evidence was quite different. She said when they first arrested Draid, he was speaking in a stream of consciousness way. His hands were cuffed behind his back. Draid was speaking very fast and it was obvious his first language was not English. He was talking about the Koran and Allah. She wrote in her notes that Draid said: "that guy said "I want to kill you! I want to kill you."" At the preliminary inquiry she said "that guy" referred to "David", the other person with Draid. At trial, she was less sure of this. She thought it might be that Draid was the one who said he wanted to kill "David". Constable Simms said that Draid said that David made fun of his religion and called him a "donkey". Draid also said that "he wanted to cut his tongue out." In support of this comment, her notes indicated that when Draid made that statement, he made a motion of holding onto a tongue with one hand and cutting with the other. At trial, Constable Simms admitted that this note could not be accurate because it would have been impossible for Draid to make that motion as he was handcuffed at the time. Constable Simms ultimately conceded in cross-examination that her notes are ambiguous. Further, she said she had no present recollection as to what was said. [29] Draid denied ever saying that he wanted to cut Sarraf's tongue out or that he wanted to kill Sarraf. He said that he intended to tell the police that he hoped Allah would cut Sarraf's tongue out because of the way he had been treated. However, he is not sure if that is how he expressed himself. He agreed that he was very upset at the time of arrest. [30] The Crown also put in evidence, the video of the statement made by Draid when he was in custody. It was a long and rambling statement. While the English words Draid spoke were usually comprehensible, most answers were not responsive to the questions and the intent of his statements was often unclear. Based on my review of the video statement, I agree with Constable Simms that Draid spoke in a "stream of consciousness" manner and that it would have been immediately apparent to anyone that English was not his first language. Draid had difficulty understanding the questions posed and had trouble expressing himself. [31] Having seen the video statement and heard Constable Simms' evidence, I conclude that Constable Bowater's assessment of Draid's language capabilities was so inaccurate that it clouds all of his evidence. If he did not notice or could not recall such an obvious and important feature of what was said at the time of his arrest, it calls into question all of his evidence about the substance of Draid's comments. [32] In addition, having heard how Draid expressed himself in English during the lengthy video statement, I would find it difficult to place any reliance on a statement made by him at the time of arrest without the aid of an interpreter. Further, Constable Simms' ambivalent testimony is such that I cannot conclude that Draid made an inculpatory statement when he was arrested. Accordingly, the findings of fact regarding the drywall knife encounter must be based on my assessment of the contradictory evidence of the two main protagonists: Draid and Sarraf. I will set this out below. Driving on the Sidewalk [33] Sarraf described the incident giving rise to the dangerous driving charge. It occurred when he was outside of the Building on the street trying to get the attention of someone to call the police or an ambulance. He saw Draid's small red car driving at him. He had to dodge out of the way and hide between parked vehicles. He then went on the sidewalk and Draid's car drove at him a second time and he ran into a doorway to avoid the car. Draid drove his car in Sarraf's direction a third time and, once again, Sarraf ran between parked cars to avoid being hit. After that Draid drove away. [34] Michael Tranmer also gave evidence about the incident with the car. He saw a man on the sidewalk saying that he had been cut by another man. He then saw a small red car driving erratically in an abnormal fashion at the intersection of Fir Street and West 6th Avenue. The car came onto the sidewalk and almost hit the injured man, Sarraf. He said the car was going fast for the space in which it was driving. It got within a metre or two of Sarraf and then stopped. When the car went back onto the road, it turned around and tried to strike the injured man again. His best guess is that the red car tried to strike Sarraf three or four times. [35] Rebecca Tranmer was with her husband and also saw the red car targeting the injured man on the sidewalk. She said that, initially, the driver of the red car was just getting into the vehicle and was shouting at the injured man on the sidewalk. The red car then drove towards the injured man. She saw the wheels of the red car go up onto the sidewalk. The driver made two runs at the man on the sidewalk, but she only saw the car's wheels go on the sidewalk once. She said that the car came "pretty close" to the man on the sidewalk who had to jump out of the way. She said that the red car was going fast and that it was alarming. It looked to her as if the driver of the red car was trying to hit the man on the sidewalk; although she agreed in cross-examination that the driver may have been trying to just scare him. [36] Draid stated that he was upset and unable to focus on things when he was trying to leave the Building. He ran to his car which was on West 6th Avenue. When he got in, Sarraf approached the car. Draid was trying to drive away, but Sarraf jumped in front of the car and was trying to stop him. He reversed the car and tried to manoeuvre it so he could drive away. He admits to driving up on the sidewalk and driving close to Sarraf, but says that happened because Sarraf was trying to stop him from leaving. He says he does not know how the car went up on the sidewalk and that it was a mistake to have driven there. [37] After Draid drove away, he decided to come back because he thought he should tell the police about what had happened. He thought it would not look right if the police thought he was fleeing the scene. He denied trying to hit Sarraf with his car after he came back to the corner of Fir Street and West 6th Avenue. He agreed that someone watching what happened might think he was trying to hit Sarraf, but he denied doing that. He said that Sarraf got in front of his car twice, and both times he stopped and even reversed the car. [38] Eventually Draid decided to leave when he saw fire in the Building. He drove away to find a place to pray. [39] In the video statement taken by Sergeant Kubicsek, Draid denied that he was trying to hit Sarraf with his car. However, he did admit that he was trying to scare him. Count 1 - Attempted Murder by Stabbing with a Knife Positions of the Parties [40] The Crown says it has proved the essential ingredients of the attempted murder charge beyond a reasonable doubt. The Crown argues that Sarraf was a good witness and that his evidence should be accepted on all matters in preference to Draid's evidence. The Crown says that Draid was not a credible witness. He was evasive, did not respond to the key questions and often went off on tangents in order to avoid direct responses. The Crown says his evidence at trial about the events and his statements to Constables Bowater and Simms were reconstructions designed to mislead the Court. The Crown argues that I should conclude that Draid stabbed Sarraf because of pent-up anger over the way he had been treated. The Crown says I can find that he had the necessary intent to kill Sarraf based on all of the evidence, but, in particular, based on the statement made by Draid to the arresting officers. [41] The defence says that Draid was a credible witness. The defence acknowledges that he was excitable and had obvious difficulty expressing himself in English and, to a lesser extent, in Arabic. However, he adamantly denied stabbing Sarraf and this was consistent with his video statement to the police. In contrast, the defence says that Sarraf was a poor witness who had almost no recollection of the interactions between the two men which were described by Draid. The defence says I should accept Draid's version of the drywall knife encounter and that, if I do so, I should conclude that Draid used reasonable force in responding to Sarraf's push. If I accept his version of events, I must conclude that the way in which the drywall knife became stuck in Sarraf's throat is unexplained, but that it was unintended by Draid. [42] Alternatively, the defence says that the evidence as a whole raises a reasonable doubt as to how the incident occurred and how Sarraf was cut in the neck with the drywall knife. Accordingly, the defence says Draid should be acquitted of the charge of attempted murder. Analysis [43] The decision on this count depends, to a very large extent, on my assessment of the evidence of Sarraf and Draid. I must make two key findings: how did the fight between the two men start; and did Draid stab Sarraf in the course of that encounter. Their evidence about these events conflicts dramatically and there is no evidence from an independent witness to assist in resolving the conflicts. Draid's explanation about the event involved his recitation of a series of prior incidents between the men. Sarraf either denied the existence of, or could not recall, those prior events. Again, the conflict in their evidence is stark. [44] The oft-cited decision in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), provides guidance on how to test conflicting evidence of interested witnesses: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. (Faryna at 357) [45] The probabilities surrounding the events of September 13 do not favour Sarraf's description of the fight. If I were to accept his evidence, it would mean that Draid suddenly attacked him from behind for no apparent reason. Moreover, this occurred shortly after Sarraf had supported Draid by assuring him he still had a job when the Contractor purported to fire him. The Crown points to the alleged incident with Bobadilla as establishing a motive or explanation for the attack. I reject that submission. There is no rational explanation as to why Draid would have stabbed Sarraf because of an argument which took place 45 minutes earlier with another man. Further, I have already concluded that whatever transpired on the lift between Draid and Bobadilla was unlikely to have occurred as described by Bobadilla and has no relevance to the drywall knife incident. [46] Draid's explanation as to what instigated the struggle is much more consistent with the probabilities about that event. In other words, it is much more likely that the fight between the two men was prompted by something said or done at that particular time. Draid's explanation as to how the fight started has the ring of truth and his testimony regarding his trying relationship with Sarraf was compelling. The two men, both from the Middle East, had an unusual relationship, marked by very different backgrounds and social positions. There was a substantial power imbalance between the two men. Sarraf was an educated, successful commercial developer from Israel who had long ago adapted to his new home in Canada. Draid was uneducated, had few job skills, limited finances, spoke marginal English and was without a place to live. [47] It was evident that Draid's interactions with Sarraf and his work at the Building were very important to him. He was upset with the way Sarraf treated him, but, at the same time, respected him and was beholden to him as his employer and the owner of the Building in which he was allowed to reside. Sarraf's encounters with Draid were much more important to Draid than they were to Sarraf. Indeed, the latter had 30 commercial buildings under his ownership and care. The employment of one man to do odd chores at the Building was of little consequence to him. [48] Further, it was evident from the whole of his evidence that Sarraf focused on his business activities and took little note of matters which he considered to be of little or no import to those activities. He had no self-awareness of the way he acted towards Draid. This was evident from the evidence of Ms. Brodovitch. She testified to seeing a one-sided argument between two men in the doorway of the Building in which the larger man (Sarraf) was speaking loudly to the bearded man (Draid). Draid confirmed that Sarraf often spoke to him in a forceful or aggressive manner. However, Sarraf denied the one-sided argument on the night in question and his aggressive attitude in general. [49] Sarraf could not recall any of the incidents where he pushed Draid. I accept Draid's evidence about those events, including his attempt to make a complaint to the police. The supporting evidence, including his phone calls to the police and the towing of his vehicle, is persuasive. Sarraf's denials show that he either has a very poor memory or that he simply does not care about events that he perceives as irrelevant to his personal interests. [50] There was a clear example of Sarraf's poor recollection during the trial. On the application of the defence, I permitted Sarraf to be recalled and directed that he be asked to bring phone records regarding the August 23 incident with him to court. Three days later when Sarraf attended to give evidence, he was asked if he had located his phone records and brought them to court. He did not have his phone records and firmly denied being asked to bring them. Crown counsel appropriately advised the Court that he did advise Sarraf of my direction regarding his phone records. It was clear that Sarraf, who had no interest in locating or bringing his phone records, immediately forgot about or dismissed the request. I conclude that his approach to the Court's direction is reflective of how he dealt with Draid. In other words, he paid little attention to his interactions with Draid because they were unimportant to him and not worth remembering. Quite simply, he treated Draid dismissively and, accordingly, had limited recollection of their interactions. [51] I must reject Sarraf's denial of hitting and pushing Draid in the incidents prior to September 13. I find that he did push or hit Draid three previous times as described by Draid. I conclude that Sarraf often taunted or belittled Draid. He did not realize the impact his actions had on Draid. I also conclude that Sarraf pushed Draid on September 13 when he thought that Draid was not following his directions. Given the history between the two men and Draid's pent-up frustration, he responded by suddenly pushing back. Sarraf did not expect to be pushed back and so stumbled and fell. I also accept Draid's evidence that when Sarraf stumbled after being pushed, a piece of drywall or wood fell on top of him. This is how the fight or scuffle on the floor of the Building was initiated. [52] While I can find as a fact that the encounter began as described by Draid, it is more difficult to conclude that the drywall knife accidently ended up in Sarraf's neck in the course of the fall and subsequent struggle. The Crown argues that Draid's frustration about Sarraf's treatment of him provides a motive for the stabbing. The Crown says that if Draid pushed Sarraf out of frustration, it is likely that he seized a readily available tool and stabbed him as well. Further, the Crown argues it is unlikely that a drywall knife could create such a deep wound in Sarraf's neck without the application of force by another individual. In other words, the Crown says the circumstances are such that it is far more probable that Draid stabbed Sarraf than that he was accidently impaled by a drywall knife in the course of the fall and subsequent struggle. [53] One of the difficulties facing the Court is that there is no direct evidence to support the assertion that Draid stabbed Sarraf. While Sarraf says he was stabbed by Draid, his evidence is not highly probative. He did not see Draid with a knife in his hand nor did he observe Draid stabbing him. Indeed, Sarraf did not even know he had a knife in his neck until he felt his neck and found the knife. His assertion that Draid stabbed him was an assumption based on the surrounding circumstances. [54] While I found Draid's evidence about the prior encounters between the two men to be convincing, his evidence about the struggle is less so. There are a number of reasons for this. First, as I have already indicated, it seems unlikely that a drywall knife could cause the kind of wound suffered by Sarraf without the handle being held and directed into the neck. Second, Draid admitted to Sergeant Kubicsek that he wanted Sarraf to die. In the course of that interview he said: "I ask the God he die but from himself not me." [55] In the circumstances, my conclusion about how the knife ended up in Sarraf's throat must be based primarily on my assessment of Draid's credibility. He was an unusual witness. He was totally engaged with his testimony in court and appeared to be very anxious to explain his actions. He did not, as suggested by the Crown, avoid answering questions, although his answers were sometimes hard to understand. His chain of logic was difficult to follow. I conclude that some of that related to language difficulties and cultural differences. However, Draid maintained throughout, in an earnest and persuasive manner, that he did not stab Sarraf and did not intend to cause him harm. [56] When I consider all of the evidence and the probabilities arising from the circumstances presented, I cannot conclude that I believe Draid's evidence about the stabbing. Nevertheless, I also find that I cannot reject his explanation; there is a reasonable possibility that the drywall knife was lying on the floor and somehow in the course of the fall and struggle it ended up in Sarraf's neck. In other words, it is reasonably possible that Draid did not stab Sarraf with the drywall knife; rather, the cut was accidental. [57] The defence relied in argument on R. v. W.(D.), [1991] 1 S.C.R. 742, and the proposition that a finder of fact must acquit not only where he believes the evidence of the accused, but also where he is left with a reasonable doubt about that evidence. That is my conclusion here. I cannot accept as true, Draid's version as to how the drywall knife ended up in Sarraf's neck, but I am left with a reasonable doubt about the circumstances of that incident. Accordingly, I must conclude that the Crown has not proved the facts necessary to establish the actus reus of a stabbing with the drywall knife. Accordingly, I find Draid not guilty of the charge of attempted murder. Count 2 - Aggravated Assault [58] The findings of fact I have made regarding the attempted murder charge dictate the verdict on the offence of aggravated assault. Having found that the Crown has failed to establish that Draid stabbed Sarraf, the charge of aggravated assault must fail. The essential elements of the charge include the requirement that the Crown prove beyond a reasonable doubt that the victim was wounded, maimed, disfigured or had his life endangered, that this occurred as a result of the accused's conduct in the assault and, further, that a reasonable person would inevitably have realized that such an assault would subject the victim to the risk of bodily harm. [59] I commence my findings on this count by noting that the Crown did not argue that if I failed to convict Draid of the attempted murder charge, I should nevertheless find him guilty of aggravated assault. I suspect this is because of the unusual circumstances. In any event, I find the Crown has failed to prove the second and third elements of the offence of aggravated assault. As I have already explained, I cannot conclude that Draid stabbed Sarraf; the cut to his neck may have been an accident which occurred in the course of Sarraf's fall and the subsequent struggle. Accordingly, the Crown has failed to prove that Draid wounded, maimed, disfigured or endangered the life of Sarraf. [60] However, this does not end my consideration of this count. Assault causing bodily harm and assault simpliciter are included offences to this charge. Again, the Crown put forward no argument on these included offences. The defence position on these charges is that Draid defended himself using reasonable force in response to Sarraf's assault. I have concluded that Draid's push in response to Sarraf's similar assault was carried out in self-defence and that Draid used reasonable force in doing so. [61] Having raised the defence of self-defence, the Crown must establish beyond a reasonable doubt that it does not apply. The three elements necessary for application of that defence are that Draid must have believed on reasonable grounds that force was being used against him. Second, Draid's act must have been committed for the purpose of defending or protecting himself from that use of force. Lastly, Draid must have acted reasonably in the circumstances. In determining reasonable force, s. 34(2) of the Criminal Code enumerates non-exhaustive considerations that are to be taken into account. [62] I have taken all of those considerations into account and have concluded that Draid acted in self-defence and that his actions were reasonable in the circumstances. As the Crown failed to prove that Draid stabbed Sarraf with the drywall knife, the allegation that he did so was not a factor for consideration. [63] In summary, I find Draid not guilty of Count 2, aggravated assault and not guilty of the included offences. Count 3 - Dangerous Driving [64] Section 249(1)(a) of the Criminal Code provides as follows: 249. (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. [65] The leading case remains R. v. Beatty, 2008 SCC 5, where Charron J. restated the applicable tests for the mens rea and actus reus of the offence. She emphasized that the actus reus is made out by the manner in which the accused drives, not by the consequences of that driving. At para. 43, she noted that the test for the actus reus is set out in the language of the section, while the test for mens rea is a modified objective test. In order to satisfy that test, the Crown must prove that the accused's manner of driving was a marked departure from the norm. She describes the proper approach to both at para. 43 of her decision: [43] I would therefore restate the test reproduced above as follows: (a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place". (b) The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. [66] I conclude that the Crown has proved the actus reus of the offence of dangerous driving beyond a reasonable doubt. In arriving at that conclusion, I accept the evidence of the independent witnesses, Michael and Rebecca Tranmer. Their evidence was not seriously challenged in cross-examination. They saw Draid's car driven in a fashion that was unexpected in light of the surrounding circumstances and posed a hazard to people on the sidewalk. Their evidence was consistent with Sarraf's description of Draid's operation of his red car. Draid drove up onto the sidewalk and came very close to hitting Sarraf. He circled around at least once and perhaps two or three times and repeated his attempt to strike, or come very close to Sarraf with his car. In doing so, Draid was driving quickly at a speed which appeared dangerous to the independent observers. In other words, the car was driven around the intersection two or three times in a manner which was dangerous to Sarraf and other members of the public who might have been at the intersection or on the sidewalk. [67] I also conclude that the Crown has proved the mens rea of dangerous driving beyond a reasonable doubt. In other words, I am satisfied on all of the evidence that his driving amounted to a marked departure from the standard of care that a reasonable person in the accused's circumstances would observe. In arriving at that decision, I have taken into account the accused's evidence as to his state of mind. He said that he was confused and only trying to escape from Sarraf. I accept that he was operating under some stress and confusion; however, I do not accept that he was merely trying to escape from Sarraf. The suggestion that he drove onto the sidewalk only because he was backing his vehicle up in order to get away from Sarraf is not credible. It is completely at odds with the evidence of the independent witnesses. Rather, he intentionally drove onto the sidewalk towards Sarraf. To drive at some speed towards a person on a sidewalk at 7:00 in the evening in a busy part of a large city is a marked departure from the standard of care a reasonable person would observe. [68] Further, Draid's assertion that he had no intention of hitting Sarraf, even if I were to accept it, is not a defence. In his statement to Sergeant Kubicsek, Draid admitted that when he drove towards Sarraf he was trying to scare him. That admission is enough to satisfy the mens rea component of the offence. Driving on a sidewalk at some speed in an attempt to scare a person on the sidewalk is a marked departure from the standard of care that a reasonable person would observe. A reasonable person in his circumstances ought to have been aware of the risk involved in driving on the sidewalk in the direction of a pedestrian. Indeed, I conclude that he was aware of that risk; he admitted at trial that his driving on the sidewalk "was a mistake". [69] In summary, I find that the Crown has proved the necessary elements of the offence of dangerous driving beyond a reasonable doubt and find Mr. Draid guilty of Count 3. [70] That concludes my reasons. "Butler J."