R. v. Afshar Date:, 2012 BCPC 202

Citation: R. v. Afshar Date: 20120430 2012 BCPC 0202 File No: 57037-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ABBAS MAYEL AFSHAR ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: G. Oh Counsel for the Defendant: P. Whyte Place of Hearing: North Vancouver , B.C. Date of Judgment: April 30, 2012 [ 1 ] THE COURT: The defendant Abbas Mayel Afshar is charged with assault of Rakeshkumar Patel, a taxi driver. The

[ 1 ] THE COURT: The defendant Abbas Mayel Afshar is charged with assault of Rakeshkumar Patel, a taxi driver. The incident took place at the Petro-Canada gas station at Capilano Road and Marine Drive in North Vancouver shortly after 2:00 a.m. on July 31st, 2011. It was caught on video. The issue is whether the defendant reasonably believed he was acting in self-defence or with consent, which I view as a related concept, but that did not figure too prominently in the submissions here. Facts [ 2 ] Looking at Mr. Patel's evidence, he testified that his taxi had broken down at the gas station.

He was sitting in it, waiting for a tow truck, parked to the side of the gas pumps. Mr. Mayel Afshar arrived at the pump area and had to pull around Mr. Patel's car to get to the pump. Patel says that as he passed by, Mayel Afshar started saying things to him like "You fucking taxi driver, you do not know how to park a car." Patel says he ignored him, but could hear him through his window.

He does not recall hearing Mayel Afshar honk his horn. [ 3 ] In his evidence Patel said he opened his door to get out and tell Mayel Afshar to stop swearing at him, he had not done anything; that his car was broken and he was waiting for a tow. Patel says that at this point Mayel Afshar took the gas nozzle out of the pump and started pouring it toward Patel. Patel denied that he had moved toward Mayel Afshar while he was at his car putting gas in, and he said they were 15 feet apart. [ 4 ] Patel denied that he was angry. He said he was finished work and just wanted to go home.

He just tried to explain to Mayel Afshar why he was there. As he saw Mayel Afshar take the hose out he stepped back. Most of the gas went on the road, but he said that some went on the cab as well and some on the front of his jacket. Mayel Afshar moved toward Patel as he pointed the nozzle, coming within about nine feet, Patel said. As he did this he was continuously swearing. [ 5 ] When the gasoline sprayed in his direction Patel stepped back and said, "Are you crazy? What are you doing?" but Mayel Afshar kept swearing and pointing the nozzle at him.

Mayel Afshar put the nozzle down and picked up a nearby traffic cone. Patel said he pushed him with it on the front of his left shoulder two or three times. He was holding the thin part and moving the bottom toward Patel. Mayel Afshar then put both hands on it and struck Patel with it harder, he said. Patel got away from him as soon as possible. He did not fight back. He was worried the man would do something even weirder, so he ran into the gas station. [ 6 ] Patel was not injured, but was frightened by Mayel Afshar's behaviour. Mayel Afshar did not follow Patel into the station. He left the station.

Patel got his licence number and called the police, or had the police called that he gave them the number. [ 7 ] In cross-examination Patel said he could hear Mayel Afshar swearing from inside his car as he was trying to pass the cab. He said Mayel Afshar's window was open. He said he got out after that. He said he got out because Mayel Afshar was shouting so loudly and he wanted to make sure that he was able to get to the pump. As he pulled in his car he thought he had a problem. His window was open. He was shouting so loudly that Mr.

Patel did not know how to park or words to that effect, and Patel says he got out to see if he could do anything, but acknowledged his car was not able to move. Patel did not really recall Mayel Afshar honking his horn at all. [ 8 ] Patel was asked why he opened his door just as Mayel Afshar's car passed, and he said it was because Mayel Afshar was telling him that he did not know how to park and was swearing at him. Later he said that Mayel Afshar was referring to “cabbies”, but obviously he knew it was him. He said "Obviously, I would get out to see if I can do something about it," or words to that effect.

He said that Mayel Afshar was yelling so loud even the gas attendant could hear him. He wanted to tell him that his car could not move, it was broken down. [ 9 ] It was Patel's evidence that right after that for no apparent reason, Mayel Afshar pulled the nozzle out and started pouring it on him. He kept swearing, but Patel said he was just telling him the car would not move. He says he told him that four times and said nothing else to him. He agreed he stood and faced Mayel Afshar and said again, “obviously”, that he did so because he was going to see the person who was swearing at him.

Patel agreed he was speaking to Mayel Afshar as he went to get back into his car or to open the door, but said he was still just explaining that the car would not move. He maintained he did not get irritated or make any threat to Mayel Afshar. He said he was crouching behind his door to avoid the gas. He agreed that Mayel Afshar was pushing him with the cone and that once he left the back of the vehicle, Mayel Afshar dropped it. [ 10 ] Raymond Cristobal, the attendant at the gas station, said that Patel came in and told him his car was broken and asked if he could park somewhere.

Cristobal told him to try to push it out of the way so it was not blocking while he waited for a tow. [ 11 ] Cristobal said the defendant, whom he calls Abbas, is a regular customer. His attention was drawn outside when he heard a commotion. He looked out to see Abbas holding a traffic cone, trying to push the cab driver, who ran toward the store. When he saw them, the defendant was holding the traffic cone, trying to push the cabbie toward pump number 10, he said.

The cabbie ran toward the store and asked Cristobal to call the police. [ 12 ] Cristobal called the police, he said, because he thought there had been a fight, or an argument, that he perceived. The cabbie looked scared, said he had been sprayed with gas, and smelled of gas. Cristobal said he could not hear what was going on, it was too far away. He said the defendant's face and body language looked like they were having an argument or something. The defendant left shortly after the cabbie came inside. He had prepaid for his gas.

Cristobal did not hear if he had said anything as the cabbie came in. [ 13 ] Cristobal thought it looked like an argument from the body language. The two were looking at each other as if something was wrong, like a confrontation while the defendant was pumping his gas. [ 14 ] The video evidence shows that Patel's cab is close to the back pump, and as Mayel Afshar arrives in his car he has to adjust to pull around it. It also shows Patel getting out of his vehicle earlier than he said he did. In fact, just as the defendant's vehicle passes Patel's driver's door, Patel opens it.

The defendant continues to the forward pump.

[ 15 ] Patel remains out of his vehicle at this point and throughout, at least throughout this part. They appear to be having words, but there is no audio on the tape. The defendant has his back to Patel, but he is gesturing, the defendant. He then turns and sprays toward Patel as Patel appears to be getting back into his vehicle. Patel is seen crouching down beside the driver's side of the cab, and then he gets up and goes toward the back of the cab. Mayel Afshar drops the nozzle. Patel takes a step toward his trunk and Mayel Afshar picks up the traffic cone. He comes at Patel with it three to four times.

Patel's hands are up during this process. [ 16 ] Mayel Afshar's actions are consistent with trying to prevent Patel from gaining access to his trunk. When Patel leaves the back of the car to go to the office, Mayel Afshar drops the cone, finishes gassing up his car and leaves the station. [ 17 ] Mr. Mayel Afshar testified that he had finished work around 2:00 in the morning and went to get gas on his way home. He went to his regular gas station, where he is known. He went to the same pump he always does, the last on the north side, so he can go straight out from there in the direction of his house.

He noticed a taxi parked blocking the entrance to go to that pump and he had to pass inside it to get there. He tried to turn but he was unable, so he says he honked his horn to alert the driver to move his car a bit so he could pass, but he did not move it. [ 18 ] Mayel Afshar turned his car himself a bit to pass the taxi, but just as he did so the cabbie opened his door. Mayel Afshar said that at this point he honked at him again, more aggressively. Mayel Afshar then got out of his car and went to the pump. Before he got out he noticed that Patel, the driver, was already out of his car.

Mayel Afshar said he just started pumping gas, but Patel started swearing at him. He says he thought "Oh boy," as if "What kind of person am I dealing with here?" He says that Patel said to him, "You motherfucker," called him an “asshole” and said, "Don't you see I'm broken here?" The car was broken, words to that effect. [ 19 ] Mayel Afshar says he responded by telling him that taxis usually park elsewhere and pointing to various spots on the lot. He said he did not know Patel's car was broken.

Mayel Afshar started pumping gas into his car. [ 20 ] Mayel Afshar says the driver kept swearing, Patel, using the same language while he was pumping his gas. He says he was a little afraid at this point that Patel was one of those guys, as he put it, and no one should swear for no reason, for just honking at him. [ 21 ] Patel had gotten out of his car and was standing with his chest puffed out, and Mayel Afshar demonstrated that with his hands down straight, slightly forward with his fists at his side. He had a beard and messy hair and was kind of scary-looking.

His face was angry-looking. [ 22 ] Mayel Afshar did not know what was his problem. He said he thought maybe he had had a bad night and had not made any money in his cab. He used to drive taxi himself, he said, and he tried to ignore Patel and keep pumping his gas. Patel kept swearing at him and then he said -- that is, Patel said, "I will show you how to honk next time." Mayel Afshar said he heard Patel open his door right at that point or shortly after, and thought he was going to grab something: a bat, a machete or something, he said. He says that he used the gas nozzle to try to give Patel notice to stay away.

He sprayed gas toward him between the two cars and told him to stay away from his car twice. He said his intention was to keep Patel away from his car and put a line of gas between them. [ 23 ] Mayel Afshar agreed his back was turned before he turned around with the nozzle. He heard Patel utter the perceived threat and open his door, so he turned with the nozzle. He saw Patel crouching down behind the door where people keep things, and thought he was going to grab something. He told Patel to stay away from his car. [ 24 ] After that Patel got up and moved away from the car. Mayel Afshar threw the pump down.

Patel went toward the back of the cab and Mayel Afshar says he thought he may grab something from his trunk. Mayel Afshar saw that there was a traffic cone nearby. He says he grabbed it and considered throwing it, but decided not to because he might need it in his hands. He took it toward Patel to try to get his hands busy on the cone so he could not grab things in the trunk. Again, he said, "Get away from the car. Go into the gas station." [ 25 ] Patel moved away from the trunk and walked to the office. Mayel Afshar says he felt safe at that point and dropped the cone.

He says he yelled to the attendant to call the police and told him this was a crazy guy here trying to run over his customers. Mayel Afshar finished filling his car up. He knew that the gas station attendant knew him as did the local police, he said, and could come and get him at home if they needed him. He was tired and was going home to sleep. He thought it might take a while for the police to arrive. [ 26 ] Mayel Afshar says his front passenger window is -- was up and it is broken. He does not roll it down because it is too hard to roll back up. It was also kind of rainy that night.

He denied that he intended to spray Patel with gas. His intent was to make a point, to get him to stay away from the taxi and from himself, from Mayel Afshar. He was afraid and was gesturing as if to say, "Hey, I have something in my hand. Don't go for whatever you have in your car." He was asked if he believed Patel was going to assault him and said, "It could happen. People yell and swear. It happens at times.

He was going for his car and appeared ready for something." Mayel Afshar felt like he may have had a bad day and wanted to throw something at him. [ 27 ] Mayel Afshar did not leave immediately because he was filling his car, had to finish that, which he does, he says, at night to save money, although I will note in passing that he seems to have wasted a fair bit of gas on the night in question. [ 28 ] In any event, in cross-examination Mayel Afshar agreed that gas is dangerous and flammable, but he said he did not intend to get it on Patel or his car.

He said he is familiar with the amount of pressure required on the nozzle and was careful about it. He used the nozzle because he thought Patel was going for a weapon, and it was all he had. [ 29 ] Mayel Afshar said he is not a big guy and has never been in a fight before. It was the first time he really felt scared. He denied that he was irritated or angry, but said he thought Patel had opened his door deliberately and almost caused an accident. He honked as a warning, not out of irritation. He denied that he swore back at Patel.

He agreed he felt safe enough to turn his back on him, but said he would have been able to perceive it if he had come toward him. He was trying to get a little gas and get out of there. [ 30 ] He did not intend to react until Patel said he was going to show him how to honk and went for his door. That was when he felt

threatened and believed Patel may be going to harm him. Before that he did not feel threatened, he said. He took the words "I'm going to show you" as a threat. When he opened the door Mayel Afshar felt that Patel was going to harm him. He threw the gas in his direction. He called it a sudden thinking reaction. He yelled at him to stay away from the car. [ 31 ] When Patel moved away he dropped the nozzle because he felt a bit safer. Then he saw him go to the back of his car. He thought he may try to open the trunk.

He did not notice any keys, but thought maybe he had access to trunk switch at the driver's side of his car. Mayel Afshar denied that he hit Patel with the cone. At least, he said he did not hit him hard. He kind of touched him with it. Submissions and Analysis [ 32 ] In response to all of that evidence the Crown submits both that the version of Patel should be accepted and that Mayel Afshar's own evidence does not support a defence. Ms. Oh relies on Mr.

Cristobal's evidence to some extent as some support for Patel's evidence, particularly in that Patel and Mayel Afshar exhibited certain respective demeanours, that Patel smelled of gas, and of course that Patel is the one who made the complaint. [ 33 ] Both counsel rely primarily on the video, and it is clearly a key piece of evidence. Ms. Oh says that Patel appears to remain relatively calm and Mayel Afshar appears agitated in it. She says it depicts a persistent and violent attack, shows a man acting in anger or rage based on perceived slights.

That is, I agree, and with respect, certainly one way of viewing it, and at first glance it would seem to be a piece of powerful condemnatory evidence. [ 34 ] The problem with the video is that it does not have any audio, and for the most part Patel's back is to the camera. What was said between the two is dependent upon their viva voce evidence and governed by the principles of W.D.

It is not possible to rule out that Patel may have uttered this threat that Mayel Afshar says he heard. [ 35 ] Then, in resolving the facts or deciding whether there is a doubt about them, the question becomes whether there is anything in the video that is inconsistent with the defendant's evidence, and I find there is not.

In fact, there are some problems with Patel's recollection of the sequence of events, in particular his having gotten out of the taxi much earlier than he initially described -- and I note that he had not reviewed the video before he testified -- and remaining out there at the outset of the incident, apparently somewhat squared off, as Mayel Afshar went about simply putting gas into his car. Probably there were words exchanged at that point. We just do not know what they were, but Mayel Afshar was basically going about his business.

He then is gesturing about the here and there in the parking lot, where people should park according to, I think, both versions. [ 36 ] In any event, all of those actions in my view are consistent with Mayel Afshar's evidence and not entirely consistent with that of Patel. [ 37 ] Moving on, Mayel Afshar says that he heard the car door open when the threat was uttered or perhaps shortly after that. That again is supported by the video.

He turned, he said, in a quick reaction to what he perceived may be an imminent assault with a weapon. [ 38 ] In the video it can be seen that Patel has gone and opened his door at about or shortly before the time when Mayel Afshar turns with the nozzle and we again cannot hear what Patel may have said just before that. But if the words that Mayel Afshar says were uttered, were, taken with the actions and described demeanour of the individual Patel, the time of night, the absence of other people, it is not beyond belief that Mayel Afshar may have felt threatened.

He does not have to establish objective reasonableness of his belief as I understand the law. He needs only demonstrate that he had a mistaken belief based on facts that supported it. The test is an air of reality, not probability, and it is what is in his own mind, not what the complainant may have actually done or meant to do. [ 39 ] Moving on in the sequence, Mayel Afshar says he put the nozzle down as soon as Patel moved away from his car. He says he felt safe at that point, but then Patel moved toward the trunk. The same thought persisted, that there may be a weapon.

He used the cone to fend Patel away from the back of the car. Again, these actions are supported by the video evidence and there is nothing about what Mr. Mayel Afshar says he did that was shown to be inconsistent with the video evidence. [ 40 ] So in my view the video supports the defendant's assertion that he perceived a threat of harm from Patel when he acted as he did.

It does not establish any threat of harm, but it does not refute what he says occurred between the two during the incident in question. [ 41 ] Is it ridiculous or absurd to assume that a person might perceive another person in the dark of night or at least late at night might take a weapon out of their car and do something to them? Well, we all know these things happen on a fairly regular basis. There certainly was some testosterone flying around, and Mr.

Mayel Afshar says that in his own mind these words, "I'm going to show you how to honk next time," invited a response, and also he perceived them to be a threat on the part of Mr. Patel. There is nothing here before me that permits me or requires me to refute Mr. Mayel Afshar's version of the events in that respect. [ 42 ] I have also considered whether the defence evidence might seem contrived or tailored just to fit the events on the video, and I cannot conclude that it is. I agree with Mr. Whyte that the defendant was essentially consistent in his evidence as to when things occurred and why he did what he did.

I did not see it changing as much, perhaps, as Ms. Oh says it did. For the most part he explained his actions in, I would not say rational because it was not a rational reaction per se, but it was an explained reaction and one which he says was undertaken in the heat of the moment without a lot of thought, but with this perceived possible threat which again is not refuted on the evidence. [ 43 ] So the next question is whether he was acting proportionately to the perceived possible threat that might have been forthcoming.

I think it was Patel, in fact, that said it was crazy behaviour, and I do not disagree with that. Defending oneself, if that is what Mr. Mayel Afshar did think he was doing, with a gas nozzle, an active gas nozzle, is nothing short of absurd. [ 44 ] Certainly the use of gasoline as a weapon is extremely hazardous. God forbid anyone should have been smoking in the near

vicinity. I think in fact that Cristobal suggested that he knew Mr. Mayel Afshar because he was a regular customer and often came in to buy cigarettes. I found that quite disconcerting. However, Mr. Mayel Afshar's immediate reaction to the stress of it, fortunately, was not to light a cigarette. [ 45 ] That is a bit of a digression. I think, however, as Mayel Afshar explained it this was what he had at hand, and all he had in his hand at the time when he thought he might be threatened with a weapon.

He used it in a manner that was, he says, measured, and the video shows essentially one swipe with the item and then it is dropped. It is not commented on, but I think it is a matter of maybe common knowledge that once dropped the nozzle would not be depressed and it would not be splashing all over the parking lot. So he let it go essentially. It was not used for an excessive length of time and not used in a manner at all inconsistent with what he says he was trying to do, put some distance between him and Patel and Patel and his car. [ 46 ] It may have gotten on Patel, it may not. I agree with Ms.

Oh's submission it is really of little moment as to whether the gas hit him or not. [ 47 ] As for the use of the cone, again it is explained. It was at hand. The perceived threat was continuing. Again, he ceased as soon as Patel retreated to the office. It is all a little odd and absurd and I guess like Patel said crazy, and probably arguably over reactive, but that does not necessarily; does not in fact; refute a reasonable doubt and does not permit me or require me on the evidence to reject the evidence of Mr.

Mayel Afshar. [ 48 ] So all in all, I find that there is a doubt as to whether the defendant was acting in self-defence and as to whether the force he used was excessive, and therefore the charge will be dismissed. (REASONS FOR JUDGMENT CONCLUDED)