IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Murid Hadi Ghulam (“Mr. Ghulam”) is charged with the Attempt Murder of Abdishukri Dek Abdileyl (“Mr. Abdileyl”).

[2]         The charges arise out of a stabbing of Mr. Abdileyl by Mr. Ghulam, part of which was captured by Closed Circuit Television (“CCTV”), at the Columbia Skytrain station in New Westminster (“Columbia Station”) in the early hours of May 29, 2021. 

[3]         Mr. Abdileyl, who was uncooperative with police and did not testify, received a stab wound to the stomach and lower back, and two serious cuts to his arm. There was significant blood loss and he required intubation and surgery. The medical experts stated he would have died without treatment.

[4]         Mr. Ghulam testified in his own defence. He admits that he stabbed Mr. Abdileyl, three or four times. He says that he believed he was in danger of being robbed and possibly shot by Mr. Abdileyl. Despite his initial testimony that “It was his life or my life”, Mr. Ghulam denied an intention to kill him.

[5]         The primary issues are these: (1) Was Mr. Ghulam acting in self defence when he stabbed Mr. Abdileyl?; (2) If not, has the Crown proven that Mr. Ghulam was attempting to kill Mr. Abdileyl?

[6]         A number of “admissions of facts” were made by Crown and defence, allowing the evidence to come in without the necessity of proving continuity and formal identification of certain items, including DNA, fingerprints and some photographs, as well as admitting such things as jurisdiction and arrest identification.

[7]         Other admissions allowed the introduction of some text messages retrieved from Mr. Abdileyl’s cell phone, as well as medical recordings from his time in the hospital.

[8]         The Crown’s evidence included a continuous compilation of video taken from a series of cameras (“CCTV compilation”) put together by, and identified through the testimony of, Detective Camping of the New Westminster Police Department (“NWPD”).

[9]         That CCTV compilation captured a group of four men, one well in front and three others walking and talking together behind him, arriving by foot from the Quayside/Pier Park area (“Quayside park”). This CCTV compilation covered their travel over a lengthy distance of a few hundred metres, including up a long set of stairs and along the street. They are seen to have arrived to the mostly empty concourse area of Columbia Station. It is around 1:30 a.m. on May 29, 2021.

[10]      The four men then appear to be briefly hanging around and chatting together seemingly on good terms. By admission, one of the parties in a still photograph taken from the CCTV is Mr. Ghulam. Two of the men then say good bye, including a friendly fist pump, and they leave in the direction of the Columbia Station Skytrain landing.

[11]      The two remaining men, Mr. Ghulam, a huskily-built man, and Mr. Abdileyl, a tall thin man who appeared to be slightly less steady on his feet, have a brief interaction when Mr. Ghulam points to the area of the store. At first Mr. Abdileyl enters the Circle K convenient store located adjacent to the Columbia Station and then quickly exits again, before they both then enter the Circle K convenience store, Mr. Adbileyl behind Mr. Ghulam. Mr. Ghulam briefly speaks on the phone, and proceeds to the purchase counter, with Mr. Abdileyl nearby, when Mr. Ghulam points and directs Mr. Abdileyl towards the door. Mr. Abdileyl follows that direction and exits the store, while Mr. Ghulam completes a purchase of cigarettes. Mr. Ghulam, who is steady on his feet, and coordinated in his movements throughout, appears “in charge” in his dealings with Mr. Abdileyl.

[12]      Mr. Ghulam then exits the Circle K store and is immediately in close proximity to Mr. Abdileyl, following which Mr. Abdileyl falls to the ground, coming into view in front of the Columbia Station doorway, located immediately adjacent to the Circle K door. Mr. Abdileyl, clearly in physical distress and struggling to briefly get to his feet, falls again to the ground, while Mr. Ghulam walks beside and over him, glancing down.

[13]      Mr. Ghulam then left briefly out the Columbia Station doors to the left and quickly returned. Mr. Abdileyl, on his knees and still in significant distress, is then struck by Mr. Ghulam in the back, in a stabbing or punching motion. Mr. Ghulam then exited out the front Columbia Station doors, leading to Columbia Street. Mr. Abdileyl crawls just outside the open Columbia Station doors to the right. Mr. Ghulam returns to the area of Mr. Adileyl one more time, but then Mr. Ghulam leaves.

[14]      The CCTV compilation also captured a worker, who appears to be mostly concentrating on the use of his phone, standing inside the Columbia Station concourse not far from the area where Mr. Abdileyl falls to the ground and where Mr. Ghulam is seen to strike him in the back.

[15]      The CCTV compilation also captures a Royal City Taxi performing a u-turn and stopping in front of the Columbia Station soon after these events.

[16]      In cross examination, Detective Camping confirms the seizure of Mr. Abdileyl’s cell phone, found near him, which included a text received on May 19, 2021 (10 days before the stabbing), that read: 

[17]      Detective Camping acknowledged that “strap up” is often slang for carry a firearm. This text communication and opinion was later made an admission of fact.

[18]      Detective Camping also recognized Mr. Abdileyl from hospital photographs, and had some history with him as a Skytrain Transit officer and a “crime reduction unit” in Surrey back in 2014 and 2015, when Mr. Abileyl’s group were youths, and would give false names and dates of birth when he did curfew checks. He recalled something of investigations for street level robberies, but did not know Mr. Abdileyl’s criminal record. When shown a NWPD General Patrol document suggesting Mr. Abdileyl had several robbery charges and conditions, he had no knowledge of that, but no reason to dispute the information.

[19]      Cst. Sutton has been a Police Officer with NWPD since 2017, but was also formerly a Transit Officer. He was one of a number of NWPD officers that attended the scene by running from the NWPD station, located just a few hundred metres from the Columbia Station, after receiving a 911 call about a stabbing at that location.

[20]      He found a tall thin black male lying on his side just outside the Columbia Station, groaning and holding his intestines on the left hand side. There was lots of blood pooling. Cst. Sutton also observed a “small” cut of 1-2 inches in his mid rear back area. He had a brief discussion, but described him as barely conscious. He located a cell phone nearby.

[21]      Cst. Sutton recognized the victim of the apparent stabbing as Mr. Abdileyl, having known him from his time with Transit Police. Mr. Abdileyl hung around Surrey Central Skytrain station with his friends. In cross examination, he said Mr. Abdileyl was known during that time to be associated to a group that committed property offences, and thinks he arrested him a couple of times.

[22]      Cst. Ferguson, also a NWPD Officer, attended the scene, secured it and made similar observations of the injuries to Mr. Abdileyl. After some first aid at the scene, he accompanied Emergency Services with Mr. Abdileyl to the Royal Columbian Hospital and remained there, observing much of his treatment by a team of medical people. He also took pictures of the scene and the injuries, including pictures of two serious cuts to Mr. Abdileyl’s left arm.  

[23]      Sukhjit Grewal (“Mr. Grewal”) confirmed he was the clerk in Circle K captured on the CCTV in the early morning hours of May 29, 2021, but had no recollection of anything of significance regarding the transaction with Mr. Ghulam or the presence of Mr. Abdileyl. He may have gone into the back of the store, after serving Mr. Ghulam, such that he would not have seen or heard anything that occurred just outside. 

[24]      The worker seen in the CCTV compilation also offered evidence. He was a contract cleaner named Jorawar Gill (“Mr. Gill”). He described what was generally observable from the Columbia Station camera in the CCTV compilation.

[25]      He testified that he observed a group of three young men (which included Mr. Ghulam and Mr. Abdileyl), who initially appeared to be “all laughing and having a talk”. Then he just saw two men, and was unsure where the third man went. He saw one man (Mr. Abdileyl) collapse to the ground in the Columbia Station doorway, and saw the later strike to his back by the other man (Mr. Ghulam). He says that Mr. Abdileyl, was saying, “I’m sorry, bro’, I’m sorry”, to Mr. Ghulam.

[26]      After Mr. Ghulam left, Mr. Gill attended to Mr. Abdileyl on the ground outside the Columbia Station, and was told by him to call the police, which he did. He remained on the scene until the police arrived.

[27]      In cross examination, Mr. Gill was shown additional CCTV camera coverage, which captured that, after the stabbing incident, he briefly stood and waited before slowly walking over to and out the door, to where he tended Mr. Abdileyl. The CCTV camera also captured an unrelated individual walking in the Columbia Station concourse and through the same exit doors where the stabbing took place, approximately three minutes later, which Mr. Gill did not recall.

[28]      A taxi driver, Mr. Jaspal Singh (“Mr. Singh”), operating Royal City taxi #89, testified that he had recently given a ride to a man he knew as “Mike”, and they had exchanged phone numbers.

[29]      “Mike” then called him in the early morning hours of May 29, 2021 and the driver was nearby and arrived right away, performing a u-turn to the area just outside the Columbia Station. While picking up “Mike”, he also noticed a man on the sidewalk, on his back and turning, and assumed it was likely someone affected by drug use. He took “Mike” into Vancouver as requested, with only a stop at a McDonald’s drive thru, insisted upon by “Mike”. “Mike” was very nice to the driver, although “Mike” had some phone discussions with others with a raised voice. He noticed a little blood on “Mike”.

[30]      A photo was taken by a security camera into the back seat of the taxi on May 29, 2021, which was identified by Mr. Singh as “Mike”, and entered into evidence.

[31]      By admission, samples of blood taken from taxi #89 matching the DNA of Mr. Abdileyl, were introduced into evidence.

[32]      Mr. Abdileyl had less than two dollars and no credit/debit cards on his person.

[33]      Dr. Iain MacPhail was qualified to give expert evidence in the area of Emergency and Trauma Medicine.

[34]      He was the emergency physician on call when Mr. Abdileyl was brought into Royal Columbian Hospital (“RCH”) on May 29, 2021. He described the injuries as a viscerated bowel, meaning that the intestines had protruded out from a wound to his abdomen. There was also a wound to the left side of his back, close to his lower ribs, and two lacerations to his left arm.

[35]      Dr. MacPhail said that Mr. Abdileyl was not able to breath on his own and was placed on a ventilator. Mr. Abdileyl’s blood pressure was half of normal, with a fast heart rate, likely the result of blood loss. Because of that, a massive transfusion protocol was initiated and he received 12 units of blood, which Dr. MacPhail described as moderate to high in a setting of severe trauma. Since it was apparent to Dr. MacPhail that surgery was necessary to address the eviscerated bowel, he called for a general surgeon.

[36]      Dr. MacPhail’s opinion was that, without medical intervention, Mr. Abdileyl would have died, likely within the first hour from internal blood loss.

[37]      In cross examination, Dr. MacPhail was asked about drug and alcohol readings from blood and urine tests performed on Mr. Abdileyl during his treatment at RCH. Dr. MacPhail confirmed a 17 mg reading for alcohol, just slightly over double the allowable level to drive, as well as some benzodiazepan, which he said could be for treatment, including in the ambulance, or could be obtained “on the street”.

[38]      Dr. Michelle Goecke was qualified to give expert medical opinion in the area of General Surgery and Trauma Medicine.

[39]      Dr. Goecke was the General Surgeon called in to treat Mr. Abdileyl. She described the areas of injury, including the abdominal injury, the back injury, and the lacerations to the left arm.

[40]      She initially observed three areas of transection (cuts to) the bowel, and a dark area of the bowel where a “kink” had caused a blockage and decrease in blood flow (“ischemia”), which would in effect kill the bowel. The back injury, which she described as 1.5 centimetres in size, based on her own index finger being placed within it, also revealed a rib fracture or “cut”.

[41]      As a result, Dr. Goecke performed emergency surgery called a trauma laparotomy, which required opening Mr. Abdileyl’s abdomen to view the internal organs. Dr. Goecke then identified (or confirmed) the small bowel transections, splenic lacerations with active bleeding, diaphragm wound (from the back injury), damage to the muscles and vessels in the retro peritoneum (the compartment behind the organs), and left hemopneumothorax (blood and air in left area of chest).

[42]      During that surgery, Dr. Goecke first drained the air and blood from the chest, and then cut out and removed the damaged portions of the bowel, and stapled the healthy parts back together again. Dr. Goecke also repaired the lacerations to the left arm with sutures. A valve placed in the back wound was explained by Dr. Goecke as allowing any air from a damaged lung to escape and relieve pressure. 

[43]      When asked about possible causes of death without medical intervention, Dr. Goecke said the left hemopneumothorax would mean an inability to breathe, such that the breathing tube was necessary. Without the bowel resection, sepsis would have set in and caused Mr. Abdileyl’s death. Finally, Dr. Goecke says that the retroperitoneal injuries would have likely lead to blood loss, shock and ultimately death.

[44]      As for the size of the abdominal injury, in cross examination she described this as a penetration/stab wound that was, in relative terms, “actually quite small … an inch or up to two inches”. Although the intestines may protrude from an opening as small as 2 centimeters, the amount of the intestine protruding in this case suggested an opening much smaller than those that she may have seen in the past, such as five or six inches.

[45]      Mr. Ghulam identified himself in the CCTV compilation and confirmed that he indeed stabbed Mr. Abdileyl on May 29, 2021, just outside the Circle K store after immediately exiting. He says that instead of lighting a smoke, as Mr. Abdileyl expected, he “stabbed him up”. He also admits, as the CCTV compilation showed, to leaving briefly after the initial stabbing and returning to stab Mr. Abdileyl again in the back. He estimates he stabbed him 3 or 4 times in total. This essentially confirmed the circumstances of the stabbing of Mr. Abdileyl at the Columbia Station on May 29, 2021.

[46]      He also said that he had called a taxi driver for a ride, when he was in the Circle K store. He said that he knew the driver from a previous ride and they exchanged numbers. He entered the taxi upon its arrival after the stabbing and travelled to Vancouver to pick up some construction tools, while stopping on the way at a McDonald’s restaurant drive thru. He identified himself in the picture taken in the taxi on May 29, 2021.

[47]      Turning to the circumstances leading to the stabbing, Mr. Ghulam says that he was “drinking” and “hanging out” with the people seen in the CCTV compilation. He explains that the evening started out at “The Met” bar, close to the Columbia station, where he and Ali, who is one of the men that is seen to leave before the stabbing, drank for some time together.

[48]      He initially says that he gave Ali $100, who was walking to Quayside park, to get some more alcohol. He said he had to go see a friend at the Braid Skytrain station, and was gone for 20-30 minutes. But later he said that when he gave the $100 to Ali, at the same time he “flashed” $5,000 he had in his wallet, which occurred on the way with “the group” to Quayside park.

[49]      He was vague as to who was present and where and when that occurred. He was equally vague about whether Mr. Abdileyl, who was certainly later present at the Quayside Park, was also at “The Met”, at first saying he was not there and later saying “all of a sudden” he was just there.

[50]      He says that he and Ali were with two others at Quayside park, Mr. Abdileyl and another, who he had only met a few times and whose name he cannot recall. He had met Mr. Abdileyl through a friend who was in jail with him, about two or two and a half years earlier. He said that Mr. Abdileyl’s “whole crew was known for robbery”, but he had spent time together with him and had never had any problems before May 29, 2021.

[51]      He describes a lot of alcohol, as well as coke and “weed” at the Quayside park. He says that he and Mr. Abdileyl got into an argument, who he described as:

[52]      According to Mr. Ghulam, Mr. Abdileyl kept “calling [him] out all night” and “trying to take [him] on”, but Mr. Ghulam thought he was “joking around the whole time”. However, Mr. Ghulam says he was “drunk and high” himself, which he repeated often, despite his claim that he doesn’t “get drunk that easy”. He says that effected what was “in his mind”, when Mr. Abdileyl kept “egging [him] on”.

[53]      He says that he and the others were trying to convince Mr. Abdileyl to go home because he “wasn’t in the right mindset”. Mr. Ghulam says he told Mr. Abdleyl to go home and sleep it off, but he wouldn’t listen.

[54]      Mr. Ghulam says that while they were at Quayside park, someone had produced a gun, which was on the table, and that “they”, everyone else in the group, were playing with it. It was being “waived around”. He did not know who it belonged to, or who produced it. Mr. Ghulam had a blade knife in his pocket, which he commonly carried. 

[55]      After the group walked to Columbia Station, Mr. Ghulam admits that the CCTV compilation confirms that there was general good nature dealings between the parties, including his offer to get something for anyone in the group from the store.

[56]      But, after the other two had left, he says that he stabbed Mr. Abdileyl because he was sure he was going to rob him. He says Mr. Abdileyl had it in his mind all night to rob him. He had hung around after the others had left and suddenly appeared “edgy”. He said, “it was his life or my life”.

[57]      He repeated that he was not afraid of Mr. Abdileyl, but was concerned about the gun, although he admitted that he didn’t know that Mr. Abdileyl had the gun at Columbia Station. He says he assumed that and could not explain why. He also says that when he returned to where Mr. Abdileyl was on the ground after the initial stabbing, he was looking for a possible gun, which he didn’t find.

[58]      When asked by the Crown about the reason he stabbed Mr. Abdileyl in the back, he simply said, “I was more worried about myself”. He also denied knowing Mr. Abdileyl was injured after the initial stabbing or seeing any blood.

[59]      When suggested by the Crown that there was no gun present on this night, Mr. Ghulam maintained that there was. When it was suggested that by stating, “it was him or me”, it was his intention to kill Mr. Abdileyl, Mr. Ghulam says that was not his intention.

[60]      By admission, the texts exchanged between Mr. Abdileyl and an unknown person about “strapping up” and the PO’s opinion that often refers to carrying a gun, came in, as did the extended CCTV showing an unknown person, a few minutes after the stabbing, walk through the Columbia station concourse and the doors where the stabbing took place.

[61]      The defence of self defence is put forward in this case. The current language in the Criminal Code as regards self defence is as follows:

[62]      The recent R. v. Khill, 2021 SCC 37 decision of the SCC addresses that current wording in regard to the defence of self defence, which simplified the approach by describing the three elements as: the “catalyst” (s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; the “motive” (s. 34(1)(b), the subjective purpose must be to protect oneself or others; and the “response” (s. 34(1)(c), the accused response must be reasonable in the circumstances. (paras. 37, 51).

[63]      Although the language in the Criminal Code in regard to self defence has changed since the Supreme Court of Canada (“SCC”) decision in R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3 (“Cinous”), it remains the leading case in regard to the “air of reality” analysis.

[64]      The “air of reality” analysis performs a gate-keeper function, so that “outlandish defences” are not put to the trier of fact. Although this function may seem to be more relevant to juries, they apply equally to Judge alone determinations.

[65]      At this stage, the accused bears the burden of establishing an evidentiary foundation for the defence (Cinous para. 52), but the threshold is low, in that there must simply be some evidence supporting each of the requirements. The analysis does not allow for determinations of credibility, weighing of the evidence, making findings of fact, or factual inferences.

[66]      However, even at this stage the SCC says that the question to be asked is:

[67]      And in Cinous, where the accused observed someone inside his vehicle outside his home, and then shot them twice in the chest, alleging threat of harm, the SCC said this:

[68]      I have come to the conclusion that there is no air of reality to the defence of self defence in this case.

[69]      Taking Mr. Ghulam’s testimony, on the basis that what he says is true, and all other evidence in its most favorable application to his defence, I do not find that his belief that he was under threat of force, of being robbed and possibly shot by Mr. Abdileyl, was reasonable. Nor do I find that “a properly instructed jury acting reasonably could have concluded that the accused’s purported perceptions were reasonable under the circumstances” (Cinous para. 93).

[70]      The basis for Mr. Ghulam’s belief that he was under threat of being robbed and possibly shot, and for his decision to stab Mr. Abdileyl, was as follows:

[71]      On the basis of all of that, and without any other conduct on the part of Mr. Abdileyl, other than his simple presence just outside the Circle K store, Mr. Ghulam testified that he was “prepared” and he “stabbed him up”.

[72]      Even accepting Mr. Abdileyl’s past reputation for the commission of robberies (not of specifically robbing those he was in association with or spent his time), and the possibility of an incentive produced by Mr. Ghulam’s “flashing” of the $5,000, there was no alleged conduct by Mr. Abdileyl, or other evidence, subtle or otherwise, consistent with an intention to rob Mr. Ghulam, or certainly to be in possession of the gun, when Mr. Ghulam took his action to stab him. Accepting that Mr. Abdileyl displayed drunken belligerence, hung around and even appeared “edgy”, provides no reasonable basis for believing Mr. Abdileyl intended to rob Mr. Ghulam, and no evidence that he possessed a gun. Indeed Mr. Ghulam acknowledged that he had no fear of Mr. Abdileyl but for the gun.

[73]      Rather, Mr. Ghulam expressed, on a number of occasions, a strong reliance on his perceived “innate ability” to know the thoughts and intentions of Mr. Abdileyl to rob him, without reference to Mr. Abdileyl’s conduct or any other evidence. That perceived “innate ability” is not evidence providing grounds for his belief.

[74]      Other potential evidence suggested by the defence in support of the threat of robbery and possession of the gun, includes the fact that Mr. Abdileyl had little to no money on him, and that there was a 10 day old text message referring to possible advice from an unknown person to carry a gun, both of which were unknown to Mr. Ghulam, don’t make the grounds of his belief more reasonable. The confirmation in Mr. Abdileyl’s medical records of high alcohol consumption and illicit drug use, which the defence says I can conclude would have made him less inhibited, simply explains the drunken belligerence. 

[75]      Applying the analysis set out by the SCC in Cinous, I find that Mr. Ghulam expressed a “subjective belief” that there was a threat of harm. Indeed, having heard all of Mr. Ghulam’s evidence, I am unable to conclude that he did not genuinely believe, based on his perceived “innate ability”, that Mr. Abdileyl presented as a threat to him.

[76]      However, I find that there is no evidence on the record upon which a “properly instructed jury acting reasonably could have concluded that the accused’s purported perceptions were reasonable under the circumstances.”(Cinous, para. 93). And indeed, there is no “evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true”. For that reason, the defence fails the “air of reality” analysis in regard to s. 34(1)(a) of the Criminal Code.

[77]      I would add that in regard to Mr. Ghulam’s decision to stab Mr. Abdileyl in the back, after returning to him on the ground and in significant distress, and by his own admission having determined that there was no gun, there was clearly no evidence that he acted at that time in self defence.

[78]      Had I found that there was an “air of reality” to the defence of self defence in this case, I would have found that the defence fails in any event, based upon my assessment of the evidence I accept, with respect to both the unreasonableness of any belief of threat, and the unreasonableness of the actions taken by Mr. Ghulam, pursuant to s. 34(1)(c) and the considerations in s. 34(2) of the Criminal Code.

[79]      Having found that the defence of self defence fails, I now turn to the issue of whether the Crown has proven the charge of Attempt Murder.

[80]      Attempt Murder is a specific intention offence. (see R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225).  Therefore, the Crown must prove beyond a reasonable doubt that Mr. Ghulam intended to kill Mr. Abdileyl.

[81]      The nature of these stabbings, and the medical evidence, are not in dispute. In addition to the serious, but not life threatening cuts to Mr. Abdileyl’s arms, the single stab wound to the abdomen, where I find it is common knowledge that many of our vital organs are located, and to the back, were serious enough to have resulted in Mr. Abdileyl’s death in a relatively short time without medical intervention.

[82]      In this case, perhaps unlike many others, there is also the testimony of Mr. Ghulam that when he stabbed Mr. Abdileyl, “it was his life or my life”, suggesting he was indeed attempting to kill him. On the other hand, in cross examination, Mr. Ghulam testified that, notwithstanding that statement, he did not intend to kill Mr. Abdileyl.

[83]      Therefore a determination of Mr. Ghulam’s intention, in part at least, requires an assessment of his testimony and indeed raises the R. v. W(D) 1991 CanLII 93 (SCC), [1991] 1 SCR 742 (“WD”) analysis. I will quote from the Crown’s additional written submissions, which fairly describes this analysis:

[84]      The Crown, who submitted that Mr. Ghulam was neither credible nor reliable, would encourage me to find, in addition to the presumption that a person intends the natural consequences of their actions, the “his life or my life” testimony as truthful of his intention. They argue it is a more spontaneous utterance in his direct, than his apparent correction in cross examination.

[85]      The defence says I can accept his testimony that, despite that statement, he did not intend to kill Mr. Abdileyl, or at least I should be left with a reasonable doubt.

[86]      Turning to an assessment of Mr. Ghulam’s credibility, it seems to me that with Mr. Abdileyl not cooperating or offering evidence, Mr. Ghulam might well have dishonestly presented a much stronger evidentiary basis for his fear of robbery, by alleging words or conduct by Mr. Abdileyl, including right before the initial stabbing (just out of view of the CCTV camera), without risk of contradiction. The fact that Mr. Ghulam did not do so provides some basis for a positive finding of credibility.

[87]      Despite that, the inconsistency of Mr. Ghulam’s testimony, its vague and ever-changing nature, led me to find him not generally believable, or indeed, to find him not to be reliable.

[88]      In particular, his inconsistent versions of when, and in whose presence, he says he “flashed” the $5,000; the vagueness of how the gun appeared and who held it, and the baseless assumption, without further evidence, that Mr. Abdileyl possessed the gun after Quayside park; his self description as heavily affected by drugs and alcohol, when no other witnesses observed that and the CCTV compilation captures his actions as highly coordinated; his denial of knowledge of the extent of injury to Mr. Abdileyl after the initial stabbing, when the CCTV compilation reveals immediate and obvious distress; as well as the absurdity of the purpose of his taxi to Vancouver, well after 1:30 a.m., in order to get construction tools.

[89]      I also found his perceived “innate ability” to get into the mind and intentions of Mr. Abdileyl, made his testimony generally less reliable.

[90]      That is not to say that I reject all of his evidence, but that I am cautious to accept it on its face.

[91]      Having considered Mr. Ghulam’s testimony, together with all of the evidence, most of which is not in dispute, I find the following:

[92]      Although the Crown suggests I could conclude that belligerence as a form of disrespect to Mr. Ghulam and what precipitated the stabbing, there is no need to determine Mr. Ghulam’s motives. In the end, it is not apparent why Mr. Ghulam stabbed Mr. Abdileyl, or why Mr. Abdileyl was apologizing as that occurred. But that is not the question to be asked. The question for this court is simply: Did Mr. Ghulam intend to kill Mr. Abdileyl?

[93]      With respect to that, I return to the statement in Mr. Ghulam’s testimony that “It was his life or my life” in direct, as opposed to his statement in cross examination that he did not intend to kill Mr. Abdileyl.

[94]      The reference to “his life or my life” could have been an effort to emphasize the perceived threat and justify the stabbings as self defence, although he needn’t have acknowledged an apparent intention to end Mr. Abdileyl’s life of necessity. He could have simply said he stabbed him, without an intention to kill, to allay the threat towards his own life. Having said that, it may simply have been a colloquial statement to capture the perceived threat, rather than his true intention. 

[95]      Moreover, as stated earlier, I do not find Mr. Ghulam reliable, such that I put little weight on either statement. Although an admission contrary to interest can be given more weight, I find that Mr. Ghulam’s unreliability even extends to this inculpatory statement.

[96]      And so on the WD analysis, I find that, not believing Mr. Ghulam’s testimony, nor being left in a reasonable doubt by it, I must consider the evidence I do accept in order to find whether I am convinced beyond a reasonable doubt by that evidence of his guilt.

[97]      Therefore, I turn to the nature of the stabbings themselves in order to assess whether the Crown has proven Mr. Ghulam’s intention was to kill Mr. Abdileyl. And while a person is assumed to cause the natural consequences of their actions, and those consequences were very serious and nearly caused Mr. Abdileyl’s death, there are a number of factors that give rise to a reasonable doubt in regard to that intention.

[98]      Firstly, the court is not aware of the size of the knife or a specific depth to which it entered Mr. Abdileyl’s abdomen or back, although the internal injuries certainly suggest something well beyond a stabbing at the surface of the skin. Indeed, the evidence of Dr. Goecke was of an opening (width) to be “an inch and up to two inches”, although speaking in relative terms, found the cut to the abdomen to be “small”. It is of some relevance if the knife was large, in regard to both width and length, which may presume to cause very serious damage, as opposed to the expectations that a pocket knife might do damage, but without an expectation of causing death.

[99]      Secondly, the stabbing to the abdomen was a single stab wound, albeit to an area well-known to contain vital organs, rather than a series of stabbings, which would be more consistent with an intention to bring about death. Although the cuts to the arm, which occurred at the time of the stabbing to the abdomen, may be some evidence of additional attempt to effect harm, that was unclear and inconclusive. They could have occurred as initial defensive wounds, or incidental to, or at the same time as the stabbing to the abdomen.

[100]   Thirdly, the stab to the back was grotesque in that Mr. Abdileyl was clearly seriously injured and presented no threat. However, the single stab to the back, unlike the abdomen, does not raise the same level of expectation to put life at risk. For that reason, I am uncertain that was meant to bring about death, rather than effect additional harm without that intention. Another stab to the abdomen or to the chest or neck, or other area well-known to contain vital organs or put life at risk, might have satisfied the basis for the intention to cause death.

[101]   Fourthly, the location of the stabbing was a public place, which would expect to draw attention fairly rapidly. Although it was in the very late hours and there were few occupants, the presence of Mr. Gill on the concourse, the presence of the Mr. Grewal in the Circle K store, and the fact that an unknown person proceeded through the area of the stabbing a few minutes later, illustrate that. If death was the goal, these two stabbings were not certain to achieve that with help nearby.

[102]   In summary, with respect to whether Mr. Ghulam had the intention to kill Mr. Abdileyl, I am left with a reasonable doubt.

[103]   Since the defence has quite properly admitted the basis for a finding of Aggravated Assault as the lesser included offence, I find Mr. Ghulam guilty of Aggravated Assault.