R. v. Henein, 2019 ONCJ 642

ONTARIO COURT OF JUSTICE CITATION: R. v. Henein , 2019 ONCJ 642 DATE: 2019 09 13 COURT FILE No.: 18-6470 BETWEEN: HER MAJESTY THE QUEEN — AND — IBRAHIM HENEIN Before Justice ORSINI Reasons for Judgement released on September 13, 2019 C. Heron................................................................................................ counsel for the Crown K. Heathcote.................................................. counsel for the defendant Ibrahim Henein ORSINI J.: Introduction 1 . Pegida Canada is an organization which opposes what it believes to be the “Islamisation” of Canada.

Courtney McIntosh opposes Pegida Canada because she believes it promotes hatred. 2 . On the morning of March 14, 2018, Ms McIntosh went to City Hall. She did so to protest against members of Pegida Canada who were holding a rally at that location. 3 . She left with a bloodied nose. 4 . It is alleged that Mr. Heinen used his cane to assault Ms McIntosh during the course of the rally. As a result, he is charged with assault with a weapon. 5 . The Crown called two witnesses in support of the charge, namely Ms McIntosh and her friend, Ms Hembruff , who attended the rally with her.

6 . The defence called several other witnesses who were present at the rally, including the defendant and his 11-year-old son. 7 . The court also had the opportunity to view several video recordings of the incident itself. Issues 8 . Counsel for the defendant does not dispute that the defendant’s actions towards Ms McIntosh were assaultive in nature. In this regard, the video evidence speaks for itself. In addition, the defendant testified that he raised his cane towards Ms McIntosh as if to hit her. 9 .

Instead, it is argued that these actions were justified in defence of the defendant’s son, who Ms McIntosh had allegedly threatened to kill. There is also evidence that he was acting to prevent Ms McIntosh from taking his cane. 10 . The available defences are proscribed by sections of the Criminal Code relating to Defence of Person (section 34) and Defence of Property (section 35). 11 . I hasten to add what this case is not about. It is not about taking sides in a public debate. It is not about deciding who occupies the moral high ground.

It is most certainly not about whether the defendant was a member of Pegida Canada on the day in question. 12 . While this case touches on the right to peacefully protest in a free and democratic society, the central issue to be decided is whether the Crown has proven the guilt of the defendant beyond a reasonable doubt. This necessarily involves an assessment of the evidence, including the credibility of the witnesses and the defences advanced in this case. Evidence 13 . Ms McIntosh alleged an unprovoked assault on her by the defendant.

She said he used his cane to strike her several times, including once in the face, causing a bloodied nose. 14 . She denied threatening the defendant or his son. She denied grabbing his cane other than to defend herself against his attack. 15 . Ms McIntosh was shown a video recording of the rally that had been posted on the Facebook Page of Pegida Canada. Its authenticity was conceded by the defence, as were other recordings of the incident taken on the day in question. They constitute objective evidence of what occurred and what was said in the time leading up to, during and following the incident. 16 .

At approximately 7 mins and 30 seconds into the Facebook video, Ms McIntosh and Ms Hembruff can be seen approaching the rally in front of City Hall from the west. Ms McIntosh is carrying a large yellow sign in one hand and ringing a cow bell in the other. 17 . Ms McIntosh confirmed that this portion of the Facebook video captured her arrival at the rally that morning with Ms Hembruff. I accept this evidence. It is corroborated in the following respects: (

a) From this point in the video, up until the time of the alleged assault approximately 6 minutes later, Ms McIntosh can be heard and seen consistently and loudly ringing her cow bell. No cow bell can be heard, nor is Ms McIntosh or Ms Hembruff seen, in the seven-and- a-half minutes leading up to this point in the video; and (

b) In cross-examination, the defendant was shown the same portion of the Facebook video. He confirmed that it depicted the arrival of

Ms McIntosh and Ms Hembruff at the rally that morning. He said this was the first time he had ever seen them. 18 . Ms McIntosh testified that she remained in the general area in front of City Hall. She denied ever having attended toward the far east side of the building at the entrance to underground parking garage. I also accept this evidence. It is corroborated by the Facebook video which shows Ms McIntosh in the immediate area in front of City Hall throughout. 19 . For his part, the defendant explained how he and his son came to be at the rally. He said they went out for breakfast that morning .

It was March break. When they were on their way home, he remembered he was supposed to attend City Hall to pick up a loudspeaker he was going to repair for a friend, Jenney, who would be attending the rally that morning. 20 . He drove to City Hall and parked his vehicle in the church parking lot across the street. He met Jenny in the same parking lot where she herself had just parked her own vehicle. According to the defendant, she told him she would give him the loudspeaker after the rally. As a result, he said he decided to wait with his son in his vehicle until the rally was over. 21 .

Ultimately, he said he took his son across the street to observe the rally. He said he did this to satisfy his son’s curiosity about what was going on. He said they stood some distance from the rally at the far east side of the City Hall building next to the entrance to the underground parking garage. 22 . He maintained he would never knowingly put his son in any danger . He said if he had seen any sign of danger he would never have taken his son across the street. 23 . According to the defendant, Ms McIntosh confronted them at the parking garage entrance.

In addition to using insulting and profane language, he claimed she threatened to kill his son. He described how she attempted to grab his son on more that one occasion. He said he used his body to block her from doing so and pushed her away. He said that she grabbed onto his cane on two separate occasions during this confrontation. 24 . He said Ms McIntosh then went back to the area of the rally in front of City Hall. 25 . Thereafter, he confirmed that he and his son went to the same general area.

He said he did this because he wanted to speak to the other demonstrators to find out who Ms McIntosh was and also to ask Jenny for the loudspeaker so that he and his son could leave. He acknowledged that this would put them in closer proximity to Ms McIntosh . In spite of this, he said he had no concerns for his son’s safety. 26 . While standing in front of City Hall, he said Ms McIntosh threatened to kill his son a second time by saying, “I’m going to kill you, you little bastard”. He said this occurred following a separate interaction between Ms McIntosh and another protester. 27 .

The defendant said he responded by raising his cane toward Ms McIntosh. He said he pretended he was going to hit her with it in order to scare her off. He said he was afraid for his son as a result of the threat. 28 . According to the defendant, Ms McIntosh kept coming forward, grabbed onto his cane in hug and wouldn’t release her grip. He said he kept telling her, “let go of my cane, let go of my cane”. He said he didn’t want any conflict with her. He said she refused to let go of his cane while saying, “I’m going to get your little boy, I’m going to get him”. 29 .

He said he did not intend to strike Ms McIntosh with his cane. He said at one point she was pulling on the tip of the cane which came off. He said the force used in doing so may have caused the tip to come back and strike her in the face. 30 . The defence also called Darlene Burgess who was at the rally as a supporter of Pegida. It was apparent from her evidence that she and Ms McIntosh are known to one another as a result of previous demonstrations. She described Ms McIntosh as a “confrontational lady” who “brings loud bullhorns in our ear” and who once hit her husband over the head “with her communist flag”.

31. She testified that at some point she heard Ms McIntosh say the words, “I’m going to kill.” She said she did not know who MsMcIntosh was talking too or when during the event the threat was made. Later in her evidence, Ms Burgess testified that she saw MsMcIntosh pulling on the end of the defendant’s cane.

When asked whether she heard what was being said at that time she said, “The onlything like I said I don’t know exactly when all this was, but I heard “I’m going to kill.” She followed this by saying, “I thought I saw herlunge at the little boy.” While testifying, she demonstrated the lunge that she thought she saw by reaching out with her two hands. 32. Ms Burgess was cross-examined her statement to the police which she made within a few hours of the incident.

She acknowledgedtelling the police at that time, “I’m not sure what happened but I think she tried to grab at Abe’s cane and that’s how she got hit in theface. I’m not sure”. 33. Towards the end of her cross-examination, Ms Burgess’s memory, as to when the threat was made by Ms McIntosh, improved. Shesaid Ms McIntosh made the threat “during the tussle”, presumably referring to the altercation with the defendant. 34. Joanne Thomas, another Pegida supporter in attendance at the rally, also gave evidence. She was shown the video surveillance fromCity Hall on the day in question.

Like the Facebook video, this video also captured the incident between the defendant and Ms McIntosh. 35. Ms Thomas recalled observing Ms McIntosh lunge at the defendant’s son. She said this occurred in the same area captured by theCity Hall surveillance video. However, she said this occurred prior to the time captured in the video. 36. The defendant’s 11-year-old son, Adam, was the last witness called by the defence. He testified that Ms McIntosh came over to theentrance to the underground parking garage where he and his father were standing.

He said she called him a “little Nazi in training” and“a cross-eyed midget”. He said she lunged at him multiple times. When asked how many times she lunged at him he said, “probablyaround two.” 37. At no point did he claim to have been threatened by Ms McIntosh while standing with his father at the entrance to the parking garage. 38. He said Ms McIntosh returned to the area immediately in front of City Hall where the rally was occurring, as did he and his father.When asked whether he or his father were carrying signs or screaming he said, “No.

My dad couldn’t actually barely talk cause he hadlike angioedema in his throat and he just had surgery, so they had to put a hole in his throat, so he couldn’t really talk at all”. 39. He recalled Ms McIntosh pushing other protesters around. He said his father went to assist them and was pointing his cane at MsMcIntosh “just telling her to stop”. Up until this point in his evidence, he may no claim of being threatened by Ms McIntosh. 40. He was then shown the surveillance video from City Hall up to and including the interaction between his father and Ms McIntosh.

He said it was during this time Ms McIntosh said, “ I’m going to kill you, you little bastard “. He referenced the point in the video wherehis father pointed his cane towards Ms McIntosh. He said the threat was made “before that happened”. Whether he meant immediatelybefore or minutes before is unclear. Analysis 41. Give that the defendant gave evidence in his own defence, I remind myself of the principles enunciated by the Supreme Court ofCanada in Regina v. WD. (SCC), [1991] S.C.J. No. 26: 1.

If I believe his testimony that he did not commit the offence with which he is charged (because he acted reasonably in defence of hisson or his property), I must find him not guilty; 2. Even if I do not believe his testimony in this regard, if it leaves me with a reasonable doubt as to his guilt, I must find him not guilty;and 3. Even if his testimony does not leave me with any reasonable doubt as to his guilt, I may only find him guilty if, based on the evidencethat I do accept, I am satisfied beyond a reasonable doubt of his guilt.

42. I also remind myself that criminal trials are not credibility contests. It is not a matter of who I believe but rather whether the Crown has discharged its burden of proving the defendant’s guilt beyond a reasonable doubt. 43. For the reasons that follow, I reject the defendant’s evidence and specifically the claim that his actions were taken in defence of his son or his property. His evidence does not leave me with a reasonable doubt in this regard. 44. As indicated above, I am satisfied that the Facebook video shows the arrival of Ms McIntosh at a given point in time.

On reviewing both the Facebook video and the City Hall surveillance video, I am satisfied that at no point in time did Ms McIntosh attend at or near the entrance to the City Hall parking garage prior to the altercation with the defendant. In addition, those same videos depict the defendant and his son in the immediate area in front of City Hall from the time of Ms McIntosh’s arrival up to and including the time the altercation in question. 45.

The video evidence proves that neither Ms McIntosh, nor the defendant and his son, were ever in the area of the City Hall parking garage following Ms McIntosh’s arrival at the rally. 46. As a result, I find the defendant and his son fabricated their evidence with respect to the confrontation they claim occurred in that area. I find that their evidence in this regard was nothing more than a deliberate attempt to mislead the court into thinking that the defendant had a legitimate concern for his son’s safety in the moments leading up to the ultimate confrontation. 47.

Given my findings in this regard, I reject the evidence of defendant and his son with respect to any threats alleged to have been made by Ms McIntosh. 48. With respect to Darlene Burgess, her evidence was inconsistent with the statement she gave to police a short time after the incident. It was obvious that she had a clear animus toward Ms McIntosh as a result of prior confrontations between the two. She told the police that she was not sure if Ms McIntosh had grabbed the defendant’s cane or if that is what caused her to be struck in the face.

Before this court, she recalled how Ms McIntosh grabbed the end of the defendant’s came. 49. In addition, Ms Burgess gave evidence clearly inconsistent with what is seen on the video recordings of the incident. She testified that she thought she saw Ms McIntosh lunge at the defendant’s son. She demonstrated what she thought she saw by out stretching both of her hands. Having reviewed the video, it is clear that at no time does Ms McIntosh lunge at the defendant’s son prior to the confrontation with the defendant. 50.

With respect to her evidence that Ms McIntosh uttered the words “I’m going to kill”, she initially claimed not to know when this was said. Later in her evidence she said these words were spoken by Ms McIntosh during the course of the “tussle” with the defendant. 51. Given these discrepancies, I find Ms Burgess to be an unreliable witness. Here evidence does not leave me with a reasonable doubt as to the defendant’s guilt. 52. The evidence of Joanne Thomas was also inconsistent the video evidence in this case.

She was certain that Ms McIntosh lunged at the defendant’s son before the time captured on the City Hall surveillance video but in the same area. In this regard, it is important to note that the portion of the City Hall video that was put into evidence clearly commences after the arrival of Ms McIntosh. The Facebook video however, which captures the time between Ms McIntosh’s arrival and her altercation with the defendant, does not disclose the incident testified to by Ms Thomas.

In addition, neither the defendant nor his son testified to an incident of this nature having occurred at the time and place specified by Ms Thomas. 53. The Facebook video is the best evidence as to what occurred on this occasion. The defendant can clearly be seen walking toward Ms McIntosh. He raises his cane and points it in the direction of her face in a threatening manner. Ms McIntosh responds by quickly brushing the cane downward with her right hand.

54. Contrary to the defendant’s evidence, Ms McIntosh is not seen advancing toward him or hugging his cane. To the contrary, the video clearly shows that she immediately backed away from the defendant after brushing his cane away from her face. It is difficult to see if she had grabbed his cane at that moment. However, if she did, I find it was momentary and clearly in an effort to defend against his attack upon her. She is clearly not holding onto his cane as he begins to thrust it at her in an aggressive manner.

He thrusts it towards her abdomen and ultimately her face as she continues to back away from him. 55. Having reviewed the video evidence, I am satisfied beyond a reasonable doubt that the defendant was not acting in defence of his property. While the defendant may have been upset at the fact that Ms McIntosh grabbed his cane, I find she would have been completely justified in so doing and that any such grabbing was momentary. 56.

Even were I to find that the defendant was acting in defence of his son or his property, having considered the relevant provisions of the Code related to such defences, I would find that his actions were not reasonable in the circumstances. 57. I also note the Facebook video, as well as that supplied by Ms Hembruff, shows the defendant immediately following the altercation with Ms McIntosh. He can be heard repeatedly and loudly proclaiming that Ms McIntosh grabbed his cane. He appears to have no difficulty whatsoever in speaking.

Although not determinative given my findings above, it is noteworthy that he is never heard to complain that she had threatened to kill his son. In spite of this, he would have this court believe that he was more concerned for his son at that time than his cane. In addition, his son would have this court believe his father could hardly speak at the time. 58. Having reviewed all of the evidence in its entirety, including the video evidence, I am satisfied beyond a reasonable doubt that the defendant was not acting in defence of his property or his son.

I reject the evidence of the defendant and his son in this regard. I am not left in a reasonable doubt on the issue of defence of others or defence of property by the other evidence in this case. 59. Having reviewed the evidence in its entirety and having rejected the evidence of the defendant, I am also satisfied beyond a reasonable doubt that the defendant assaulted Ms McIntosh with his cane resulting in her being struck in the face and causing her to have a bloodied nose. I accept the evidence of Ms McIntosh in this regard. I find that she testified in a straight forward and honest manner.

She did not exaggerate her evidence and was not significantly contradicted in cross-examination. Her evidence was also corroborated by the video evidence. CONCLUSION 60. For all of the above reasons, I find the defendant guilty. Dated at London, Ontario this 13 th day of September 2019 Justice G. Orsini