)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 5566

CITATION : R. v. Khalili-Arabi, 2013 ONSC 5566 COURT FILE NO.: 13-50000051-0000 DATE: 20130919 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – SAEB KHALILI-ARABI )) )) )) )) ) ) K. Rogozinski , for the Crown A. Tran , for the Defendant HEARD: August 19-23 and September 3-4, 2013 m.a. code j. reasons for judgment A.

INTRODUCTION [ 1 ] The accused Saeb Khalili-Arabi (hereinafter, Khalili-Arabi) is charged in a seven count Indictment with assault causing bodily harm, uttering a death threat, aggravated assault by wounding, forcible confinement, possession of cocaine for the purposes of trafficking, simple possession of cocaine, and possession of proceeds of crime. [ 2 ] He was tried before me, without a jury, commencing on August 19, 2013. At the end of a six day trial I reserved judgment. These are my reasons for judgment. B. FACTS (

i) Overview [ 3 ] Many of the facts in the case are not disputed. For example, identity is not in dispute, possession by Khalili-Arabi of the money and drugs seized by the police is not in dispute, and many of the acts alleged by the complainant Gonzalo Astroza (hereinafter, Astroza), in which force was applied to him by Khalili-Arabi, are not in dispute. The main issue in the case is whether that force was applied by Khalili-Arabi intentionally, due to anger and animosity over an unpaid debt, or whether the use of force was part of consensual play-fighting or was accidental.

In addition, there is an issue as to whether Khalili-Arabi possessed the drugs in question for the purpose of commercial trafficking and whether the money in question was proceeds of commercial trafficking. Khalili-Arabi admits to being a social trafficker of cocaine, but he denies selling cocaine.

Finally, there is a dispute as to whether Astroza was ever confined on the night in question or was ever threatened with death. [ 4 ] By way of overview of the facts, the complainant Astroza and the accused Khalili-Arabi were casual friends who had a number of other common friends who would all “party” together on occasion. They would drink and consume drugs at a basement flat belonging to one Chris Rojas (hereinafter, Rojas). Astroza owed Khalili-Arabi a small $200 debt which he admittedly had not repaid in full.

On the night of January 9, 2012, Astroza, Rojas and Khalili-Arabi were all at Rojas’ flat when the acts of violence and the threatening and confinement alleged in the Indictment were all said to have occurred. Later the following morning, Astroza returned home and his parents called the police and an ambulance and he was treated at the hospital for various injuries. There are police photographs, which admittedly depict the state of Astroza’s injuries on the morning of January 10, 2012, after his release from hospital.

The police then arrested Khalili-Arabi on the afternoon of January 10, 2012, at his own residence, and seized just under an ounce of cocaine and about $24,000 in Canadian cash. (iii) The Crown’s evidence concerning the alleged assaults and the $200 debt [ 5 ] Astroza’s account is that he had a drug and alcohol problem at the relevant time. He has a minor criminal record with entries for mischief, assault, and being unlawfully in a dwelling house in 2007, 2008 and 2011. He was admittedly addicted to powder cocaine.

He testified that he had bought cocaine from Khalili-Arabi on about ten prior occasions, purchasing a half gram for $40 or a gram for $80, once or twice a week. Just before Christmas 2011, he borrowed a larger amount of cocaine from Khalili-Arabi, worth $200, in order to re-sell it and make some money in order to buy Christmas presents. [ 6 ] Astroza had not repaid the $200 and Khalili-Arabi was phoning him and making angry threats about “disrespect” and about “teaching him a lesson”.

According to Astroza, his girlfriend Natalie Chiofalo told him that she too had received threatening calls from Khalili-Arabi and that she had paid back $150 of the debt on Astroza’s behalf, but that Khalili-Arabi had said that he was still going to teach Astroza a lesson. [ 7 ] Astroza was living at his parents’ home and, according to Astroza, Khalili-Arabi would call his father and ask for Astroza. The father would say Astroza was not home. Astroza was avoiding Khalili-Arabi and was not responding to his calls. On January 9, 2012, Khalili-Arabi and Rojas drove to Astroza’s home and phoned Astroza from outside.

It was about 6:30 p.m. and they arrived in Khalili-Arabi’s silver Jetta car. Astroza’s father gave Astroza the phone and Astroza went outside to speak to Khalili-Arabi who said “we’re going to drink, don’t fuck around”. Astroza was intimidated, knowing that Khalili-Arabi was angry with him, but he decided to go with Khalili-Arabi and Rojas rather than causing a scene in front of his father. Astroza spoke to his father, in Spanish, and told him “if I’m not back by dark, call the police”.

His father tried to persuade him not to go but Astroza got in Khalili-Arabi’s car and they drove to Rojas’ nearby flat. [ 8 ] At Rojas’ basement flat, Khalili-Arabi sat beside Astroza on the couch opposite the television and produced a bottle of Crown Royal whiskey. He told Astroza to drink it as “it would hurt less”. Rojas was seated on a second couch. No one else was present. They were all drinking the whiskey. Khalili-Arabi immediately brought up the subject of the debt and slapped Astroza in the face with the back of his right hand, cutting Astroza’s lip.

The later police photographs show a cut to the inside of Astroza’s lip. Astroza bent down and Khalili-Arabi kicked him in the same general area of Astroza’s face. According to Astroza, his lip was bleeding. Khalili-Arabi kept repeating, “you think you can fuck with me” and that he would teach Astroza “a lesson” and that it was all about “respect”. [ 9 ] The three men continued drinking the whiskey. At one point, Astroza got up to go to the stove and light a cigarette. As Astroza bent over, near the stove, Khalili-Arabi came up behind him and tried to push his face down onto the stove.

Astroza felt heat on his face and resisted and was able to wrestle away from Khalili-Arabi. Astroza was overweight at the time and was heavier than Khalili- Arabi. Khalili-Arabi then grabbed Astroza’s neck with both arms, in a choke hold, and began to lift his head and punch and knee Astroza in the face. There were a number of these blows and they injured Astroza’s nose. He believed that his nose was broken and blood was pouring from it. The later police photographs show an injury to the bridge of Astroza’s nose and a bruised right eyelid.

When the police searched Rojas’ flat they found blood in several locations in the living room area and in the kitchen area. The blood was matched to Astroza by DNA testing. The hospital records, after Astroza was treated, note the following: “neck supple”; “swelling nose”; “facial trauma”; “possible broken nose”; and “nose injury, swelling and deformity present”. [ 10 ] According to Astroza, Khalili-Arabi made him clean up the blood with a rag and then he sat down on the couch, once again seated beside Khalili-Arabi. At this point, Khalili-Arabi pulled out a knife.

It was a folding knife, about four to six inches long, with a blade that flips out. Khalili-Arabi put the blade of the knife against Astroza’s cheek and also poked the top of his head, with the tip of the knife, without puncturing the skin, stating once again that he would teach Astroza “a lesson” and “you think you can fuck around with me”. Khalili-Arabi was initially playing and teasing with the knife but then he cut Astroza twice, stabbing the top of Astroza’s left hand near the knuckles and then stabbing the middle of Astroza’s left thigh. Khalili-Arabi threw the knife at Astroza and said, “stab me back”.

Astroza swept the knife away and onto the floor. Once again, the subsequent police photographs show these two injuries and the medical records refer to them. The injury to the left hand is a small puncture wound that did not require any stitches. The cut to the left thigh is about a half inch long and it required two stitches. Before causing this latter injury, the knife had to cut through Astroza’s jeans. The police seized the jeans and found a cut in the left thigh area that was about one-and-a-half inches long.

The police also seized Astroza’s shirt which has what appears to be a hole or burn mark in the chest area. [ 11 ] Astroza testified that, by this point in the evening, other friends had arrived at Rojas’ flat. Paul and Peter Falerio told Khalili- Arabi to stop and to calm down and that “it was enough”. Astroza was also told to take off his jeans so that the blood could be washed off. Astroza was not sure who told him to do this but he took off his jeans and put on a pair of Rojas’ shorts. The jeans were then washed. Astroza and Khalili-Arabi continued to drink.

There was also marijuana being smoked but, according to Astroza, no cocaine was consumed. The entire bottle of whiskey was consumed as well as some beer. Astroza and Khalili-Arabi were both very drunk by the end of the evening and they eventually passed out. [ 12 ] At some point in the evening, Astroza had tried to leave but “ they would not let him”. Astroza was initially somewhat vague on this point but he eventually testified that it was Khalili-Arabi who said “no” when he asked to leave. Astroza also testified that he felt he could not leave, after the initial slap on the couch.

Astroza’s father called at one point and “ they kept the phone” and told Astroza to tell his father that “everything was okay” and then put the phone on speaker. Once again, Astroza was not sure who did this but he thought it was Khalili-Arabi. Astroza told his father, using the speaker function on the phone, that “everything was fine”. [ 13 ] Early the next morning, around 6:30 or 7:30 a.m., Rojas awoke Astroza and told him that he (Rojas) was going to work and that Astroza had to leave. No one else was in the flat at this point. Astroza got his jeans from the washer and put them on. They were still wet.

He limped home on foot and his mother let him in. Astroza passed out and, when he awoke, the paramedics and police were there. His injuries were treated at the hospital and he provided a statement to the police. [ 14 ] According to Astroza, Rojas did nothing to him that night. Rojas did not seem to want to be involved and just sat and watched. Another mutual friend, Gordon Adie (hereinafter, Adie), arrived at some point in the evening but Astroza thought it was after the various assaults were over.

Peter and Paul Falerio had arrived by the time of the knife incident, as they were the ones who told Khalili-Arabi to “stop” and “relax” and that it was “enough”. Rojas’ roommate, Sharif, also arrived at some point with two of his friends. At one point, Astroza asked Adie to get him out of there but Adie did not help Astroza. Astroza had the impression that everyone was afraid of Khalili-Arabi. It was only Khalili-Arabi who was aggressive with Astroza that night.

[ 15 ] The one real inconsistency in Astroza’s account of the events that night, which he acknowledged, concerned the nature of the pre-existing $200 debt that he owed Khalili-Arabi. In his statement to the police, and in his testimony at the preliminary inquiry, his account was that the $200 debt was “money” that he had borrowed from Khalili-Arabi for Christmas presents. In his testimony at trial, his account was that he borrowed $200 worth of cocaine to re-sell, in order to make money to buy Christmas presents.

Astroza acknowledged that the prior account was untrue and he explained that he was scared and nervous at the time and thought he could get in trouble. He apologized for not telling the truth on this point, in his initial account. He also acknowledged that this was the first time he had ever sold cocaine and that it meant he was a “drug dealer”. He testified that he only sold drugs on about three or four occasions. [ 16 ] The Crown also called Astroza’s father, Valerio Astroza (hereinafter, Valerio) and Astroza’s girlfriend, Natalie Chiofalo (hereinafter, Natalie).

They both gave important evidence about the events leading up to the alleged assaults on the night of January 9, 2012. [ 17 ] Valerio is a Chilean immigrant who works as a building superintendent. His account was that he started to receive a lot of phone calls in early January, 2012, after New Years, from a man who was looking for Valerio’s son. The caller initially just asked for “Gonzo” but then became very rude and would say “where’s your fucking son” during the subsequent calls.

There were four or five of these calls each day and Valerio would reply that his son was not home or that he did not know where his son was. The caller would reply, “I don’t give a shit, your son is going to pay” or “he’s going to pay for what he did to me”. Valerio told his son about the calls but his son would not tell him what it was all about except that the man’s name was “Saeb”. [ 18 ] Valerio met the caller on one occasion. He drove up in a silver Jetta, which was admittedly the kind of car that Khalili-Arabi owned and drove at the time.

Valerio was outside the front of his building and the man got out of the Jetta and asked, “where’s your fucking son, I’m the guy who is looking for your son”. Valerio recognized the man’s voice as the previous telephone caller. The man accused Valerio of “hiding” his son and stated, “I know he’s inside the apartment”. Valerio replied, “he’s not here”. The man was rude and aggressive and pointed at Valerio and said that his son “was going to pay for it”.

The man got back in the Jetta and left. [ 19 ] Subsequently, Astroza told Valerio that everything was now fine and that the problem with this man was “fixed” as Natalie had repaid a debt that Astroza owed the man. Natalie also told Valerio that she had repaid $150 of a $200 debt and mentioned that there had been a threat. A few days later, on January 9, 2012, the man called again. This time he was nice. He asked for Astroza and Valerio gave the phone to his son. It was around 5:00 p.m. Astroza went outside and then came back in and said, “I have to go”.

Valerio thought it was unusual, that his son was leaving in such a hurry, without showering or putting on socks. His son seemed excited and nervous and he told Valerio, “if something happens to me, call the police”. He told Valerio that the man who called was waiting outside in the driveway. [ 20 ] Valerio worried all evening as he did not hear from his son. Valerio eventually called Gordon Adie, at about 10:00 or 10:30 p.m. Valerio knew Adie to be his son’s best friend. Adie told Valerio that he was at work and did not know anything concerning Astroza’s whereabouts.

Adie promised to call Valerio back if he heard anything. Around 11:30 p.m., Adie called back and said he was just leaving his home and that he would call Valerio back if he found Astroza. Adie did not call back and so Valerio drove around the neighbourhood, looking for his son while calling Adie who did not pick up his phone. Around 2:30 a.m., Adie called back and said “Hey, Valerio, I found your son, we’re happy, your son is drunk, he is okay”. They put Astroza on speaker phone and he said “I’m okay” in Spanish. Valerio could hear voices in the background and heard his son say “I’m okay” in the distance.

Valerio had the impression they would not let his son speak on the phone because they put him on speaker phone and he could only hear his son in the distance. [ 21 ] Valerio could not sleep. He stayed up on the couch until his son arrived back home and rang the buzzer early in the morning. Valerio let him in. His son was sweating, there were holes in his clothes, his clothes were wet, and he could not walk on one leg. Valerio could not get his son to tell him what had happened.

Astroza tried to persuade Valerio not to call the police, saying “it’s going to be worse, these people will come after you and your family”. [ 22 ] Other family members called the police and the ambulance and they arrived right away. Valerio knew his son had a drug problem at the time. Now, he has the impression that his son is doing very well. [ 23 ] Natalie, Astroza’s girlfriend at the time, testified that she is a dental hygienist who has known Astroza for ten years. They started a relationship in high school, in 2004, and they had a daughter who is now age seven.

The relationship ended in June 2012, a few months after the relevant events in January 2012. They were not living together in January 2012 as Astroza was living with his parents in Etobicoke and Natalie lived in North York. [ 24 ] Natalie was aware that Astroza had a drug problem. Their relationship was not good as Astroza was an absent father to their daughter and he did not provide any financial support. She had only met Khalili-Arabi once, in early December 2011, when she drove Astroza to a brief meeting with Khalili-Arabi.

Astroza got out of their car at Khalili-Arabi’s house, the two men walked away from the car, they were at a distance and Natalie could not hear or see what transpired. Astroza then returned to the car. Natalie assumed it was some kind of business transaction. [ 25 ] The next day, she became convinced in hindsight that it had been a drug transaction because she received a phone call from Khalili-Arabi. He asked Natalie, “where the fuck Gonzo was” and told her “not to fuck with him”.

Khalili-Arabi also made what Natalie took to be an indirect or implied threat by saying that he would come to her dental office in Woodbridge and he also mentioned her daughter. Natalie was offended by Khalili-Arabi’s tone and by the insinuation that he would come and find her at work and that he knew where she worked. Natalie told Khalili-Arabi, very firmly, that she knew a police officer and that she would not take any of Khalili-Arabi’s “shit”. At this point in the phone call, Khalili-Arabi’s tone changed. Natalie asked him what the problem was all about.

Khalili-Arabi explained that Astroza owed him $200 and that it related to a drug transaction in which Khalili-Arabi had given Astroza $200 worth of cocaine and that he was to be paid back the next day. Natalie expressed surprise that Khalili-Arabi was reacting in such an extreme way over such a small debt. Khalili-Arabi explained that it was about “respect” and that Astroza needed to be “taught a lesson”. It was very clear to Natalie, from what Khalili-Arabi said, that he had given Astroza cocaine and not money.

Khalili-Arabi explained that he had been calling her, and Astroza’s father, because Astroza did not have a phone. He asked Natalie to pass the phone to Astroza who, in fact, was with her at the time, but she told Khalili-Arabi that she did not know where Astroza was.

[ 26 ] Natalie arranged to meet with Khalili-Arabi and offered to pay him $150 towards the $200 debt. She wanted to keep Astroza safe and she did not want any harm to come to herself or to her daughter. She felt that the indirect threat from Khalili-Arabi over the telephone was serious. The next evening after the phone call, Natalie met Khalili-Arabi at a gas station near his home. He arrived in his silver Jetta, approached her car, and she gave him $150. He was polite and thanked her.

They had a brief conversation in which he told her that he respected her, that she was more of a “man” than Astroza, and that he was not happy with Astroza who was a “liar” and an “asshole”. [ 27 ] A few days later, Natalie received another phone call from Khalili-Arabi. They discussed Astroza and Khalili-Arabi said that he wanted “to teach Gonzo a lesson”. Khalili-Arabi said that he was thinking of renting a hotel room, staging a party, luring Astroza to the party, and then “beating the shit out of him”. It was a long repetitive conversation, all about “teaching Gonzo a lesson”.

There was real passion in Khalili-Arabi’s voice and he seemed to want to “hurt” Astroza. Natalie was on very poor terms with Astroza at the time and she was somewhat sympathetic with Khalili-Arabi’s view that Astroza was a “piece of shit” who needed to be “taught a lesson”. She told Khalili-Arabi to “do what he needed to do” but that she wanted nothing to do with it. She did not think that any beating would be that bad, as it was such a small debt. [ 28 ] Natalie phoned Astroza and told him about Khalili-Arabi’s phone call.

He seemed scared and told her to “watch her back” but he also said “not to worry” and tried to be a “big shot”. Natalie had the impression Astroza was trying to avoid Khalili-Arabi. [ 29 ] Natalie had seen Astroza sell small amounts of cocaine and marijuana on a few occasions, usually at friends’ houses. However, in her view, Astroza was mainly a consumer of marijuana and cocaine. She often saw him high on drugs. He was sometimes on welfare but he also liked to work at Delta Tire and he worked there for six or seven years.

She was angry at him because he did not pay support for their daughter and because she believed that he had cheated on her. As a result, they broke up in June 2012. Natalie has not seen him since. She believed he was still doing cocaine in June 2012, when she last saw him and they broke up. (iii) The Crown evidence concerning the police seizures from Khalili-Arabi [ 30 ] At 1:00 p.m. on January 10, 2012, Det. Cst. Keith Osborne came on shift and was briefed about the incident the previous night. He attended at Khalili-Arabi’s residence, with his partner Det. Cst. Pak, and they set up surveillance at 2:00 p.m.

His instructions were to arrest Khalili-Arabi. [ 31 ] Just before 2:50 p.m., Khalili-Arabi drove up in his silver Jetta and parked in the driveway. The two officers arrested him and D.C. Osborne searched him. In Khalili-Arabi’s back jeans pocket, D.C. Osborne found $4,040 in a single bill fold, including thirty-one $100 bills, ten $50 bills, and seventeen $20 bills. Khalili-Arabi was holding one cell phone in his hand and he had a second cell phone in a pocket. D.C. Osborne found eight small zip lock baggies in Khalili-Arabi’s left front jeans pocket. Each baggie contained a small amount of a white powder.

Finally, D.C. Osborne found a $5 bill and two dimes in Khalili-Arabi’s right front jeans pocket. He had no observable injuries. [ 32 ] The white substance in the eight baggies was tested and it was admittedly cocaine. It was weighed back at the police station and the eight weights were as follows: .48 grams; .46 grams; .50 grams; .50 grams; .48 grams; .51 grams; .49 grams; and .49 grams. The total weight was 3.91 grams. [ 33 ] D.C.

Osborne was asked in cross-examination whether other officers were present for the arrest, whether he looked into Khalili-Arabi’s car, and whether any other officer was involved in transporting Khalili-Arabi back to the station. D.C. Osborne replied that only he and D.C. Pak were present for the arrest but that two other officers arrived later, that he did not look into Khalili-Arabi’s car, and that only he and D.C. Pak transported Khalili-Arabi to the station. [ 34 ] The police applied for and obtained warrants to search Khalili-Arabi’s residence and Rojas’ residence. Cst.

Jason Davis executed the warrant on Khalili-Arabi’s residence at 1:00 a.m. the next morning, that is, on January 11, 2012. It was a single room on the ground floor of a house. The room contained a bed, a chair, a dresser, a desk, a television, and a refrigerator. Cst. Davis searched the top desk drawer where he found Khalili-Arabi’s citizenship card. In the same drawer he found a number of empty clear plastic baggies inside one clear plastic baggie. He also found a small silver hand scale, made by Fuzion, in the same drawer.

Finally, he found three lumps of a white substance in another clear plastic baggie in the same drawer. The white substance later tested as cocaine and weighed 20.08 grams. [ 35 ] Cst. Davis then proceeded to search the dresser drawers. He found male clothing and in one drawer he found two envelopes containing Canadian cash. Each envelope contained $10,000, entirely in $100 bills. The two envelopes containing the cash were “TD Canada Trust” envelopes and they were slightly ripped. The bills were crisp and newer, like bills sometimes obtained at a bank. No female clothing was found in the room. [ 36 ] Det. Cst.

John Johnston testified as an expert on issues relating to the drug trade, based on his experience and training. He would classify sales in gram amounts or below as street level trafficking, sales in ounce amounts as mid-level trafficking, and sales in kilo amounts as higher level trafficking. It was his opinion that the various seizures in this case, that is, approximately $24,000 in cash, approximately 24 grams of cocaine, the scales, the packaging, and the two cell phones, indicated that the drugs were possessed for the purpose of trafficking.

It was his opinion that the eight ½ gram baggies indicated street level sale amounts which would normally be sold at about $50 per ½ gram and would yield about $400 in proceeds. They would usually be purchased with either a $50 bill or with $20 bills. The larger $100 bills would usually purchase a full gram amount. [ 37 ] According to D.C. Johnston, the total 24 gram seizure would cost about $1,300 to $1,600 to buy wholesale and would yield about $4,000 to $6,000 in proceeds, if sold in gram amounts at the street level. [ 38 ] Finally, it was D.C.

Johnston’s opinion that the seized money was proceeds of trafficking, given its association in the same location with drugs, scales, and baggies. The money was likely being stored in order to purchase a larger amount of drugs. He testified that $10,000 was the approximate price for ¼ kilo of cocaine and $20,000 was the approximate price for ½ kilo. All of the evidence

inferred to D.C. Johnston that this was a mid-level dealer buying in ½ kilo amounts and selling in ½ gram amounts. [ 39 ] In cross-examination, D.C. Johnston agreed that it is possible that a heavy user could buy cocaine in a one ounce amount in order to reduce costs, however, he had never heard of this happening. A heavy user would normally buy an “eight ball”, that is, about 3.5 grams, or perhaps as much as ¼ ounce. An addict needs about 16 to 20 “hits” a day. A “hit” is about ¼ gram and there are about two to three “hits” in each ½ gram purchase.

A social user of cocaine would not consume anywhere near these amounts. It was D.C. Johnston’s opinion that the eight separate ½ gram baggies were not consistent with personal use of the cocaine. Similarly, keeping a large amount of cash in a room, together with the cocaine, was not consistent with personal use. (iv) The Crown’s evidence concerning post-offence conduct [ 40 ] Astroza testified that after Khalili-Arabi’s arrest and release on bail, Astroza’s parents moved away from Toronto and settled in Oshawa. Astroza had to move out of their home and he found a room at Dixon and Islington.

He continued working at his job at Delta Tire. This was around March or April, 2012. A few months later, in June 2012, Astroza also moved to Oshawa and he found a job there, also changing tires. [ 41 ] During this post-offence period, Astroza remained friends with Adie who had been his closest friend. He and Adie would hang around and drink beer at Astroza’s room. Adie told Astroza that Khalili-Arabi wanted him to call and “fix everything” because Astroza had “fucked him”. At some point, Khalili-Arabi called Astroza and asked to meet. Astroza assumed that Adie had given Khalili-Arabi his phone number.

Astroza ignored the calls at first but eventually he agreed to meet Khalili-Arabi. He assumed that Khalili-Arabi would get his address, sooner or later, from Adie. Astroza knew that Khalili-Arabi’s terms of bail prevented any such contact. [ 42 ] They met and went to a “Wendy’s” restaurant. Khalili-Arabi paid for the food. He said that he wanted Astroza to help him out and take the blame for half the seized drugs and say that they had just been play-fighting and Astroza had somehow got injured.

Khalili-Arabi said, “I know where you live, I know people who can make you disappear”, and that “people he worked with would be upset and will make you disappear”. Astroza took this to be a reference to people in the drug trade. The threat made Astroza afraid and he agreed to go along with Khalili-Arabi. [ 43 ] After the first meeting at “Wendy’s”, they kept talking and texting on the phone as well as meeting, including at Astroza’s room. Khalili-Arabi told Astroza that the officer in charge of the case, Detective Yeo, was a friend of his and that they had met when getting their cars repaired at the same garage.

Khalili-Arabi urged Astroza to call Det. Yeo. It worried Astroza that Det. Yeo and Khalili-Arabi were friends and were talking and Astroza wondered whether he could trust Det. Yeo. As a result, he did not call Det. Yeo. Every time that Khalili-Arabi would visit Astroza at his room, he would go over the proposed story with Astroza and warn him not to get caught in a lie.

All of Khalili-Arabi’s friends still lived in their neighbourhood and they would call him a “rat” and would ask Astroza to change his story and to help out Khalili-Arabi. [ 44 ] On one of these visits, while Astroza was still living in the room at Dixon and Islington, Khalili-Arabi picked up Astroza after work and drove him to Khalili-Arabi’s lawyer’s office on the Kingsway. He gave Astroza $200 and Khalili-Arabi’s lawyer, a tall man with white hair, took Astroza down the hall to an associate’s office. This second lawyer took down a statement from Astroza who then paid the $200 to the lawyer.

Astroza was afraid of Khalili-Arabi and told the lawyer the story that Khalili-Arabi wanted him to tell, namely, that half the drugs were his, that they were play-fighting with the knife, and that Astroza got injured. He signed the statement. Afterwards, Astroza told Khalili-Arabi that he had provided the statement to the lawyer. The statement was never produced during the trial by either the Crown or the defence. [ 45 ] Astroza felt uncomfortable in the environment of their old neighbourhood in Etobicoke and so he moved to Oshawa.

Even after this move to Oshawa, Khalili-Arabi continued to phone and visit Astroza and kept pressing him to call Det. Yeo. Again, Astroza assumed that Adie had told Khalili-Arabi where Astroza was living in Oshawa and how to contact him, as Adie had visited Astroza in Oshawa and they remained friends. Astroza met a new girlfriend in Oshawa, named Ashley Fraser (hereinafter, Ashley) and moved in with her. One day in September 2012, when Astroza was out for a walk with Ashley, Khalili-Arabi called and again pressed him to call Det. Yeo. Khalili-Arabi proceeded to put through a three-way call to Det.

Yeo’s voicemail and Astroza left a message saying that he wanted to talk to Det. Yeo and “fix everything” and that he had “ruined my friend’s life”. Thereafter, Khalili-Arabi would ask whether Astroza had gone to meet with Det. Yeo in order to provide a statement. He had not. [ 46 ] Khalili-Arabi phoned and texted Astroza constantly, after the move to Oshawa, and he also visited four or five times. Astroza did not invite Khalili-Arabi. He would simply show up. Khalili-Arabi changed phones many times and Astroza would save Khalili- Arabi’s new numbers in his phone.

Khalili-Arabi would tell Astroza not to give his new address in Oshawa to the police so that he could not be subpoenaed. Astroza identified the list of contacts in the Gmail account from his phone, showing five separate phone numbers listed under Khalili-Arabi’s name “Siab”. Khalili-Arabi would also call on Ashley’s phone. Once again, Astroza assumed Khalili-Arabi got Ashley’s phone number from Adie. Astroza had not told Ashley about his past history in Toronto, which embarrassed him, or about the incident in January 2012 that led to the charges. He wanted to leave it all behind and to start a new life.

When Khalili-Arabi came to visit in Oshawa, Astroza was afraid and would let him in. He would just tell Ashley that Khalili- Arabi was a friend. [ 47 ] The preliminary inquiry in the present case was scheduled for December 2012 and, as it approached, Khalili-Arabi was phoning every two days about Astroza being subpoenaed. According to Astroza, Khalili-Arabi must have called eighty to a hundred times. One day, after work, Det. Yeo came to Astroza’s apartment building in Oshawa to subpoena him. Initially, Astroza wanted nothing to do with Det. Yeo and accused him of being Khalili-Arabi’s friend. However, Det.

Yeo reassured Astroza that what Khalili- Arabi had told him was not true and, slowly, Astroza came to trust Det. Yeo and told him what had been happening, that is, about Khalili-Arabi’s ongoing contact with him. Det. Yeo took Astroza to Toronto, took a statement from him, and arrested Khalili-Arabi on numerous counts of obstruct justice and fail to comply with a recognizance. [ 48 ] At this point, just prior to the preliminary inquiry, Khalili-Arabi’s contact with Astroza came to an end.

Astroza now told Ashley about the January 2012 incident in Toronto that led to the present charges, but he still did not tell her about his prior lifestyle.

She was a single mother with a child and he did not want to lose her. He eventually opened up and told her everything about his past. [ 49 ] Ashley Fraser was called by the Crown and she also testified about these post-offence events. She still had the same phone and she introduced some of the text messages she had received from Khalili-Arabi in the fall of 2012. [ 50 ] Ashley has a daughter from a prior relationship and has a second child from her relationship with Astroza. They started living together in Oshawa in June 2012, soon after they met.

She met some of Astroza’s Toronto friends, including Adie and Khalili-Arabi. Adie stopped visiting around August 2012, as a result of some argument with Astroza. [ 51 ] According to Ashley, Khalili-Arabi’s first visit to their Oshawa apartment was in the summer of 2012. It came without any apparent prior arrangement. He just dropped by and stayed briefly before going outside for a cigarette with Astroza. He visited four or five times, up until October 2012, and always stayed for a brief time before going out on the balcony for a cigarette with Astroza.

Ashley never overheard any of the conversations between Astroza and Khalili-Arabi. [ 52 ] Astroza had a telephone but it broke so they used Ashley’s phone. Khalili-Arabi would call or text on her phone, once or twice a week, always asking for Astroza. He was never rude or threatening. According to Ashley, the calls and texts from Khalili-Arabi became more frequent from September to November 2012 and Astroza would tell her not to answer or to text back and say that Astroza was out. Ashley would lie to Khalili-Arabi about Astroza’s whereabouts, as Astroza did not want to answer these calls.

There were at least a hundred calls and texts from Khalili-Arabi in this latter period, in the fall of 2012, as Astroza was not responding to them. Ashley did not ask Astroza what it was all about. [ 53 ] Ashley testified that Khalili-Arabai would change his phone number frequently and would refer to himself as “George”. When Ashley asked, “who is George”, he replied “Saeb”. She recognized his voice. Khalili-Arabi told her that “once a month he got a new phone number”.

Ashley identified a number of Khalili-Arabi’s text messages, stored in her phone, most of them in September 2012 and most of them asking for “Gonzo to call me”. The messages in September were from telephone number 647-330-6361. This is one of the five phone numbers that Astroza had stored in his Gmail telephone contacts for Khalili-Arabi. In some of the text messages, Khalili- Arabi expressed frustration and urgency in his efforts to reach Astroza.

For example, on September 8, 2012 the text message stated, “that kid is stupid, you try to help him but he only fucks up … tell him I don’t care, he can pay me when he’s good, I gave him a chance”. On September 13, 2012 the text message stated, “tell Gonzo to call me please, it’s an emergency”. On September 24, 2012, the text message stated, “sorry to keep bugging you but Gonzo keeps playing games, can you physically get him on the phone please”. On September 26, 2012 the text message stated, “can you tell Gonzo to call me right away, the lawyer wants to know about tomorrow”.

On October 1, 2012 the text message stated, “tell Gonzo to call me, I’m outside my lawyer’s office”. [ 54 ] Ashley testified that the reason Astroza stopped taking Khalili-Arabi’s calls, at some point during this period, was because of an argument that she had with Astroza. Ashley and Astroza were out for a walk one day. By this point she was pregnant with their first child, who was to be born in January 2013. Khalili-Arabi called, while they were out walking, and a three-way call ensued.

Astroza explained to her that Khalili-Arabi had placed the three-way call to his lawyer and that Astroza had left a message on the lawyer’s voicemail. Astroza further explained to her that Khalili-Arabi wanted Astroza to tell the lawyer that he had lied about some criminal trouble that they were in, that Astroza would “take the fall” for the criminal trouble, and that Khalili-Arabi would then “pay off” Astroza. Ashley argued against this proposed arrangement as she did not want Astroza getting into trouble and going to jail at a time when they had a baby on the way.

As a result of this argument, Astroza stopped taking Khalili-Arabi’s calls. [ 55 ] Ashley later met Det. Yeo, when he came to Oshawa and subpoenaed Astroza. Ashley came to understand that the three-way call was placed to Det. Yeo’s voicemail. She identified Khalili-Arabi in a photo line-up on November 26, 2012, just before his arrest on the obstruct justice and fail to comply charges. [ 56 ] In cross-examination, Ashley denied ever seeing cocaine or marijuana in her apartment.

She would not allow it as she had a young daughter and she was pregnant. [ 57 ] The last Crown witness to testify about the post-offence conduct was Detective Darren Yeo. He first met Astroza on November 19, 2012 in Oshawa when he subpoenaed Astroza to the December 19, 2012 preliminary inquiry. Det. Yeo had some difficulty finding Astroza and, once he did find him, Astroza was initially uncooperative. Astroza walked away from Det. Yeo, stating “I don’t want anything to do with you, you’re Saeb’s friend, you’re a dirty cop, Saeb has your phone number”. Det. Yeo managed to get Astroza to calm down.

He spoke to Astroza and his parents and learned for the first time about Khalili-Arabi’s ongoing post-offence contacts with Astroza. [ 58 ] Det. Yeo also testified about the three-way phone call he received, in September 2012, wherein Astroza left a voice message for Det. Yeo. The substance of the message was that Astroza had ruined his old friend’s life and he now wanted to set things straight. Det. Yeo determined that the phone number used to place this call to him was: 647-531-6173. This was not the number that Det. Yeo had for Astroza.

It is one of the five phone numbers that Astroza had stored in his Gmail telephone contacts for Khalili-Arabi. Det. Yeo took statements from Astroza and Ashley on November 26, 2012 and arrested Khalili-Arabi on November 30, 2012 on nine counts of obstruct justice, nine counts of fail to comply, and nine counts of intimidating a witness. [ 59 ] Khalili-Arabi was taken into custody and Det. Yeo met with him in an interview room at 23 Division station. Det. Yeo noted the verbal exchange that ensued between himself and Khalili-Arabi.

He made his notes of this exchange within five to ten minutes and felt that they were verbatim. The voluntariness of the utterances was admitted. Det. Yeo’s notes of the exchange are as follows: Khalili-Arabi: “be straight with me this time.” Yeo: “what do you mean?” Khalili-Arabi: “you said he never called you but he did.” Yeo: “you know that because you made the three-way call, right?”

Khalili-Arabi: “yeah, cause he was lying to me. You know I’ve been there so many times. Have I hurt him?” [ 60 ] Det. Yeo explained that the context for the above utterances was that he and Khalili-Arabi had a number of conversations on prior occasions. They had run into each other at a mechanic’s shop in July or August 2012 and started talking to each other. Khalili- Arabi asked Det. Yeo, at this first meeting and at a number of subsequent meetings between August and November 2012, whether Astroza had contacted Det. Yeo in order to change his statement. Det.

Yeo asked Khalili-Arabi how he knew that Astroza wanted to change his statement and Khalili-Arabi replied that he “heard it through the grapevine” and that Astroza now wanted to say that “it was all a lie”. Det. Yeo always responded by telling Khalili-Arabi that Astroza had not called him and he did not acknowledge receiving the three-way call. Det. Yeo himself had tried to call Astroza many times, without success. Det. Yeo denied ever telling Khalili-Arabi to “have Astroza call me”. [ 61 ] After the preliminary inquiry, and once Det.

Yeo had learned of Astroza’s visit to Khalili-Arabi’s lawyer on the Queensway, Det. Yeo contacted the lawyer. The statement that Astroza gave to the lawyer’s associate was never produced to the police or the Crown and Det. Yeo had never seen it. Khalili-Arabi’s lawyer did have offices on the Queensway. The lawyer got off the record in the summer of 2012. Khalili-Arabi had retained a second lawyer by the time of his November 30, 2012 arrest. [ 62 ] Det. Yeo obtained production orders for three of the phone numbers listed in Astroza’s Gmail contacts for Khalili-Arabi.

He obtained records for the August to November 2012 period. They were all pre-paid “Rogers” accounts where the subscriber can give any name and address. None of the three telephone accounts were in Khalili-Arabi’s name and none of them gave the address of his residence. Some of the addresses for the account holder appeared to be fictitious. [ 63 ] Det. Yeo searched the records for the 647-531-6173 phone, which he believed to be the phone that left the three-way voice message for him on September 18, 2012. This particular phone was activated on August 9, 2012. Det.

Yeo located a three-way call on the relevant date from that phone to Astroza’s phone number and then to Det. Yeo’s own phone number, lasting 125 seconds, 46 seconds, and 219 seconds. Det. Yeo also found calls and text messages from this same telephone, between August 15 and September 20, 2012, that went to Astroza’s phone or to Ashley’s phone and that were either answered or went into voicemail. [ 64 ] Det. Yeo then searched the records for the second phone, with the number 647-330-6361. This phone was activated on September 20, 2012. Det.

Yeo found records of calls and text messages to Ashley’s phone number between September 21, 2012 and October 12, 2012. Det. Yeo also found a record of a call from Khalili-Arabi’s second lawyer to this phone on October 1, 2012. [ 65 ] Finally, Det. Yeo searched the records for the third phone, with the number 647-241-9483. It was activated on October 13, 2012. Det. Yeo found records of calls and text messages from this phone to Ashley’s phone number between October 15 and November 4, 2012.

He also found records of five calls on this phone to Khalili-Arabi’s sister’s phone on November 4, 2012. [ 66 ] The total number of communications from the three phones to Ashley’s phone or to Astroza’s phone, between August 15 and November 4, 2012, was 173. In other words, during an 81 day period there was an average of more than two communications each day. [ 67 ] Det. Yeo tried to obtain statements from both Rojas and Adie, without success. Rojas initially agreed to provide a statement but then told Det. Yeo, “all I’m going to say is that I was sleeping”. Det.

Yeo asked Adie to provide a statement on three separate occasions and Adie always declined. (

v) The defence evidence concerning the alleged assault and the $200 debt [ 68 ] The defence called three witnesses, Khalili-Arabi, Rojas, and Adie. They all testified about the events of January 9, 2012. [ 69 ] Khalili-Arabi is thirty-three years old. He was living alone at the relevant time in a rented room in a house. It was the same room searched by the police on January 11, 2012. He was working in construction at the time, as he had since age seventeen.

He also had his own business, installing doors and windows, but it was inconsistent work and he would only do it on weekends. [ 70 ] Khalili-Arabi met Astroza in August 2011 through mutual friends. He would see Astroza at parties that they attended, especially with their mutual friend Adie. They would all drink, smoke marijuana, and consume cocaine at these parties. Someone would bring the cocaine and they would all “do lines”. The parties were generally held at Rojas’ basement flat. [ 71 ] Between Christmas and New Years, in December 2011, Astroza called Khalili-Arabi and asked to borrow some money.

Astroza said that he needed the money to buy gifts and for New Years. Khalili-Arabi lent him $200. It was money and not cocaine that he lent Astroza. Astroza promised to re-pay the loan in a few days. It was on this occasion, when Khalili-Arabi lent Astroza the $200, that he first met Astroza’s girlfriend Natalie. She drove Astroza to the meeting, Astroza got out of the car, Khalili-Arabi and Astroza walked away from the car, and then Khalili-Arabi gave Astroza the $200. [ 72 ] On New Years Eve, Khalili-Arabi was planning to go out to a club with friends and to then go to an after-party.

He and a friend named Chris Hillman decided to buy an ounce of cocaine for these events, as well as alcohol and marijuana. Hillman gave Khalili-Arabi half the money for the cocaine. It was the first time Khalili-Arabi had ever bought cocaine in this amount. He went to one of his usual suppliers and paid $1,000. He was sure that they would consume the entire 28 grams on New Years Eve, together with their friends. [ 73 ] Khalili-Arabi normally bought cocaine in $100 or $200 amounts, that is, about 2 grams or he would buy a “half ball”, that is 3½ grams.

He always shared his cocaine with his friends at their Friday night parties. He never did drugs alone. He and his friends were recreational users who went to work during the week and then “partied” on the weekends. They were not addicts. Khalili-Arabi, or one of his friends, would buy cocaine once a week for their parties and then they would all share it. Khalili-Arabi would not buy in a half gram amount as it runs out too quickly. [ 74 ] The plan for New Years Eve fell through because Chris Hillman and his girlfriend decided to go to a different club. Khalili-

Arabi went out with his girlfriend to a club and then he rented a hotel room for the after-party where some of his friends showed up. When he went out for the evening, Khalili-Arabi took about 4 grams of the cocaine with him. Of the 28 grams that he had bought, 14 grams belonged to Hillman. Khalili-Arabi did not take all of the 14 grams that belonged to himself because the joint plans for the evening with Hillman and his girlfriend had fallen through. The approximately 4 grams of cocaine that Khalili-Arabi did take with him was packaged in ½ gram bags, which he had measured out and weighed in his room.

This is his usual practice, so that he knows how much cocaine he is consuming in an evening. He took seven or eight plastic baggies of cocaine in his pocket and consumed all but two of the ½ gram baggies that night. [ 75 ] About two days after New Years Eve, Astroza had still not repaid the $200 debt. Khalili-Arabi began calling him but got no answer because Astroza’s cell phone was turned off. He began calling Astroza’s parents and asking for Astroza. Sometimes Khalili- Arabi would reach Astroza and he asked for repayment.

Sometimes Astroza’s parents would say that their son was asleep or that he was out. [ 76 ] Khalili-Arabi agreed, in cross-examination, that he was annoyed when Astroza did not repay the debt in two days, as he had promised. Khalili-Arabi also acknowledged being upset that Astroza was not calling him. Khalili-Arabi agreed that he called many times. Although he was upset with Astroza, it was not a matter of respect. [ 77 ] Khalili-Arabi agreed that he drove by Astroza’s house once and spoke to his father about the debt.

However, he denied swearing or being rude or threatening with the father, either on the phone or at this one meeting. He denied telling the father that he would “teach Gonzo a lesson”. [ 78 ] Khalili-Arabi also agreed that he contacted Natalie on her phone, looking for Astroza about the debt. He denied threatening Natalie or swearing or telling her that he knew where she worked or mentioning her daughter. Khalili-Arabi agreed that Natalie paid him $150 towards the $200 debt. He did not want to take money from her but she suggested it and he met with her and took it.

Khalili-Arabi denied the subsequent phone call with Natalie and denied telling her that he wanted to lure Astroza to a party at a hotel and beat him. He agreed, however, that he told Natalie, “when I see him I’m going to kick his ass”. He was angry with Astroza and meant that he was going to beat him up. [ 79 ] It was about two days before the January 9, 2012 events, when Natalie paid Khalili-Arabi the $150. By January 9, 2012, Khalili-Arabi had gotten over it and was no longer upset. However, he agreed that he kept calling Astroza at his home in the days after Natalie paid the $150.

He thought that Astroza was an idiot and wondered why he was not answering his phone. [ 80 ] Khalili-Arabi had been laid off from his construction job, about a week after New Years. He still had some liquor left over from New Years Eve so he decided to call Rojas and suggested that they hold one of their usual gatherings on January 9, 2012. Khalili- Arabi called a number of friends and invited them over to Rojas’ place. He also invited Astroza. He was no longer upset with Astroza, although he thought Astroza was a “useless loser”.

Khalili-Arabi and Rojas drove over to Astroza’s home to pick him up, simply because they were nearby. It is a short distance from Rojas’ house to Astroza’s house. They did not pick anyone else up in the car. Khalili-Arabi testified that Astroza came out of the house, went back in, and then returned to the car. Khalili-Arabi also testified that Astroza’s father came out and asked “is everything okay”, and Astroza replied “everything is okay”. It was around 5:30 or 6:00 p.m. [ 81 ] According to Khalili-Arabi, only the three men were present when they arrived at Rojas’ basement flat.

Khalili-Arabi brought a bottle of Crown Royal whiskey and they began drinking. Khalili-Arabi agreed that they sat down on the two couches, with him seated beside Astroza, in the same positions described by Astroza in his evidence. It was Astroza who then raised the topic of the debt, asking Khalili-Arabi whether he was “still mad at me about the money”. Khalili-Arabi replied that Natalie had re-paid $150 and he told Astroza that “you’re a lost cause, now you owe me $50”. At this point, Astroza became angry that Khalili-Arabi had seen Natalie and he seemed to think that Khalili-Arabi was interested in Natalie.

Khalili-Arabi gave Astroza a back-handed slap to the face with his right hand and said, “Buddy, I don’t like fat girls”. Khalili-Arabi saw no injury resulting from this blow although he conceded that it could have caused the cut on the inside of Astroza’s lip depicted in the police photos. The context for this conversation about the debt and about Natalie, according to Khalili-Arabi, was that Astroza did not seem to know that Natalie had repaid $150 of the debt. Khalili-Arabi was not angry.

He was just playing around with Astroza. [ 82 ] As they sat on the couch drinking, Khalili-Arabi began teasing Astroza and jabbing at Astroza’s shoulder with his fist. Astroza would jab back with his fist. They had been at the flat for about forty minutes and had consumed most of the bottle of whiskey. They were looking for a light for a cigarette and for a “joint” of marijuana. Khalili-Arabi told Astroza to get a light from the stove in the kitchen. Astroza got up from the couch and walked out of the sitting area and into the kitchen.

Khalili-Arabi got up and followed Astroza, standing less than one foot behind him. When Astroza was about three feet from the stove, Khalili-Arabi grabbed him and put his head in a “head-lock”. Astroza was bent over and Khalili-Arabi held his head with both arms, for about five seconds, saying, “come here you fat fuck, I’m going to burn your face”. It was just a joke and they did not get close to the stove. Astroza got out of the “head- lock” quickly and went back to the couch.

Khalili-Arabi continued to tease Astroza back at the couch and got him in a “head-lock” again, while standing over him. [ 83 ] Khalili-Arabi testified that he did not notice the hole or burn mark in Astroza’s shirt and he did not notice any injuries to Astroza’s nose, eye, or lip. He did not notice any blood. He never punched or kneed Astroza in the face, while holding him down in the “head-lock”, either at the stove or at the couch. The only blow to Astroza’s face was the initial back-handed slap. [ 84 ] By this point, the three men had been alone in the flat for about an hour.

Khalili-Arabi lit the “joint” of marijuana and they smoked it. They continued drinking the 40 ounce bottle of whiskey, which was now almost finished. In addition to alcohol and marijuana, the three men consumed “a few lines” of cocaine. Khalili-Arabi had brought it with him and he shared it with Rojas and Astroza. He had taken three or four grams from the larger amount of cocaine that he still had at home. Once again, he brought it in separate ½ gram baggies, after weighing out each amount in his room.

He would bring out one baggie, crush the cocaine on the table, put the crushed cocaine into “lines”, and then they would consume it. They would get about two “lines” each out of a ½ gram baggie, that is, a total of six lines. Khalili-Arabi thought he pulled out two of the baggies that night and estimated that they each consumed about four “lines”. He estimated that he drank ten to fifteen one-ounce shots of whiskey and felt its effects in the first hour. After smoking the

“joint” of marijuana, his head started to spin. [ 85 ] After the liquor was finished, Rojas’ roommate Sharif arrived with a friend. They went into Sharif’s room, “did their own thing”, and then left the flat. Adie also arrived at a point after the liquor was finished. Khalili-Arabi asked him to go out and get beer. Adie came back with beer and Khalili-Arabi estimated that he drank about five beers. Others arrived, including Paul and Peter Falerio. [ 86 ] By this point, Khalili-Arabi described himself as “hammered”. He carried a four inch long folding knife on his person.

He used it to crush cocaine and he liked to play with it and flick it open when he was high. He waved the knife around, near Astroza’s face and all over Astroza’s body. Khalili-Arabi was poking the knife at Astroza, “being an ass” as he described it and not trying to intimidate Astroza. They were not discussing the subject of Astroza’s debt at this point. The subject only came up once, early in the evening. Khalili-Arabi admitted that he stabbed Astroza twice with the knife, once in the hand and once in the thigh.

It was an accident that the knife penetrated the skin, in the sense that Khalili-Arabi did not mean to hurt Astroza and he was surprised both times when the knife did penetrate. The first time this happened, the injury that the knife caused to Astroza’s hand was minor but it was bleeding and Khalili- Arabi felt somewhat badly. Nevertheless, he kept poking Astroza with the knife. He agreed that this was wrong and stupid. The second time, the knife penetrated both Astroza’s jeans and his thigh and caused a three inch circular blood stain on the jeans.

Khalili-Arabi felt badly, apologized, and threw the knife at Astroza saying “Bro, poke me back”. Astroza kicked the knife under the table and said “no more knives”. [ 87 ] Peter and Paul Falerio were present and saw the incident involving the knife. Khalili-Arabi agreed that Paul Falerio said, “chill out, that’s enough, no more fucking around with the knife”, and someone picked it up and put it away. Khalili-Arabi also agreed that Astroza was upset and he got up and went into the kitchen. He did not see Astroza cleaning up the blood, although Astroza did use a tissue on his two injuries.

The bleeding stopped on its own and did not require medical attention. According to Khalili-Arabi, Astroza was free to leave at any time and Khalili-Arabi never told him not to leave. Khalili-Arabi agreed that it was only he and Astroza who were “rough housing” that evening. No one else was engaged in this “play-fighting”. Khalili-Arabi also agreed that it was he who initiated the four or five separate incidents where physical force was applied to Astroza. [ 88 ] After the incident with the knife, and after Astroza had gone to the kitchen, Khalili-Arabi remained seated on the couch and he began to pass out.

He was not aware of Astroza’s father phoning at any point during the evening. He woke up at some point and asked Adie to go out and buy pizza. Astroza was still awake and he asked Khalili-Arabi for more cocaine. Khalili-Arabi replied that Astroza “already owed him”. Khalili-Arabi ate a slice of pizza and then passed out again. He awoke at 6:00 a.m. Astroza was asleep on the other couch. Astroza was wearing a pair of shorts.

Khalili-Arabi got up and drove home. [ 89 ] Khalili-Arabi admitted his criminal record, as follows: assault, 1998 in Youth Court, 1 year probation; theft over and fail to comply with bail, 1998 in Youth Court, 2 years probation; possession of stolen property and dangerous driving, 1998 in Youth Court, time served and 25 days open custody and 2 years probation; assault, fail to comply with probation, and possession of stolen property, 2000 in Adult Court, 90 days intermittent and 2 years probation; assault (x 2) and fail to comply with probation, 2005 in Adult Court, time served and 6 months conditional sentence and 2 years probation; assault, 2006 in Adult Court, time served and 2 years probation. [ 90 ] Khalili-Arabi had known Rojas and Adie for a long time, since childhood.

Rojas is thirty years old. Rojas testified that he and Khalili-Arabi were old friends who “had each other’s back”. Astroza was more of an acquaintance around their neighbourhood. They would all get together on occasion and drink and consume drugs, including cocaine. [ 91 ] Rojas’ account of the events of January 9, 2012 was that Khalili-Arabi came over to Rojas’ house after work and said that he had a bottle. Khalili-Arabi said that they should drive over to Astroza’s house and pick him up. Rojas assumed that they would have one of their usual get togethers.

They phoned and picked up Astroza, drove back to Rojas’ flat, and went in. They also phoned and invited a number of other friends. They only picked up Astroza because he is a big guy and he is lazy. [ 92 ] Once inside the flat, the three men sat down and began drinking from the bottle. Rojas drank about ten one-ounce shots. Khalili-Arabi also brought marijuana and cocaine and they consumed it. Rojas and Khalili-Arabi each did one or two “lines” of the cocaine and Astroza did about five “lines”. Khalili-Arabi brought out a single baggie of cocaine and emptied it on the table.

In examination-in-chief, Rojas estimated that it was about ten ounces. In cross-examination, Rojas corrected this evidence and testified that it was one gram and not ten grams. He also added that there was a scale on the table that belonged to his roommate Sharif and that Khalili-Arabi weighed the one gram, in order to see how much they would be consuming. Rojas initially testified that it is normal to weigh cocaine before using it and then he testified that it is not normal. Rojas testified consistently that it was just one baggie of cocaine, which produced about nine “lines”.

A half gram of cocaine produces five “lines”. Rojas testified inconsistently as to whether he would pay, when using a share of someone else’s cocaine at a party, such as on this occasion. [ 93 ] Rojas described the seating arrangement differently than Khalili-Arabi and Astroza. According to Rojas, he was seated on the same couch as Astroza while Khalili-Arabi sat alone on the other couch. After drinking and consuming cocaine for about an hour, Rojas got up from the couch, went to the bathroom, and vomited. This made him feel better. He returned to the sitting area of his flat.

Khalili- Arabi and Astroza were now seated on the same couch and they were arguing. The argument was about Astroza owing Khalili-Arabi money and lying about when he would pay it back. Khalili-Arabi was frustrated and angry and was asking, “where is the money I lent you” and Astroza was saying he would pay it “soon”. Rojas described the argument as “horsing around” and as “talking crap” and “getting in each other’s faces” and “grabbing each other”. He testified that they hit each other in the ribs and thighs and that they were wrestling and pushing and shoving. It went on for about an hour.

Both men were big and Rojas was somewhat intimidated. He hoped all the arguing would stop. He agreed that Astroza said “I’m a man, I can take it”. Astroza apologized to Khalili-Arabi and promised to pay the debt “soon” and the arguing and “horsing around” eventually calmed down. The subject of the debt did not come up again. [ 94 ] According to Rojas’ initial testimony, it was around 8:30 or 9:00 p.m. that everything calmed down, when Adie and Paul Falerio came over and brought beer and pizza.

In cross-examination, Rojas testified that it was around 11:00 p.m. when this happened, after two or three hours of “horsing around”. Rojas’ roommate Sharif and two of his friends also came over but they did not stay long. Rojas was very drunk.

[ 95 ] Rojas testified that at some unspecified point in the evening, he saw Astroza and Khalili-Arabi playing a drinking game with Khalili-Arabi’s pocket knife. They would each take turns putting a hand on the table while the other person rapidly jabbed the knife between each finger of the hand. Both Astroza and Khalili-Arabi had the knife at different times and they were both playing the game with the other person’s hand. Rojas testified at one point that “maybe Astroza’s hand got cut”. He also testified that he did not see any injuries.

In cross-examination, Rojas testified that he did see Khalili-Arabi stab Astroza in the hand while they played this game. He did not see any stabbing in the thigh, although he did see a two inch circle of blood on Astroza’s thigh. Astroza said, “I deserve this, I’m a man”, and said that he had to straighten his life out. [ 96 ] Astroza and Khalili-Arabi both passed out on the two couches and Rojas went to bed.

Rojas testified that he never saw Khalili-Arabi slap Astroza in the face, he never saw an incident at the stove where Khalili-Arabi tried or threatened to burn Astroza, and he never saw Khalili-Arabi punch or knee Astroza in the face. Rojas did not see the injuries to Astroza’s lip, nose and eye and did not know how he got them. Rojas was also unaware of Astroza’s father ever calling on the telephone. [ 97 ] Rojas testified that there was blood on Astroza’s clothes and they were also dirty.

Initially, he testified that he did not know how Astroza got blood on his clothes and speculated that it was perhaps from horsing around or falling. Later he testified about the knife incident. Rojas testified that he offered to clean Astroza’s pants and he gave Astroza a pair of his own shorts to wear, while he washed the jeans. There was both blood and alcohol on the jeans, Astroza was afraid of his father, and Rojas was simply being a good friend by offering to wash the jeans. Rojas agreed that it is not normal to take someone’s jeans off at a party and wash them.

Rojas was not aware of any blood in the kitchen. [ 98 ] Rojas woke up at 6:00 a.m. and got ready to leave for work. He woke up Astroza and told him that he had to leave. According to Rojas, Astroza was reluctant to leave and seemed afraid of his father. They walked out of the house together and Rojas took a bus to work while Astroza walked home.

Astroza was walking normally and he had no visible injuries or any marks on his face, according to Rojas. [ 99 ] Rojas admitted to a criminal record as follows: driving “over 80” in 2009, $600 fine; possession of cocaine for the purpose of trafficking (x 2), trafficking cocaine (x 2), and fail to comply with bail in 2009, time served plus 2 years less a day conditional sentence and 3 years probation; and breach of conditional sentence order in 2010, time served. Rojas began selling cocaine at age twenty but he had not sold since his 2009 conviction.

He continued using cocaine until the present incident in January 2012. He came to realize that he and his friends all had a serious drug and alcohol problem and he has tried to change his life. Rojas acknowledged not giving a statement about the relevant events to Detective Yeo. He was not “ready” because his mind was not yet “clear”. He told Dt. Yeo something to the effect, “I was just sleeping anyways”. He agreed that this statement was not the truth. [ 100 ] The last defence witness to testify about the events of January 9, 2012 was Gordon Adie.

He was thirty-three years old and lived with his parents on Dixon Road in Etobicoke. Adie had been good friends with Khalili-Arabi since childhood. Adie had also known Astroza for about eight years. They would all “party” together on occasion, at Rojas’ flat, and would drink and consume cocaine. [ 101 ] Adie testified initially that everyone would bring their own cocaine to these parties and that he would usually bring about ¼ ounce or 7 grams.

Later he testified that sometimes one person would bring the cocaine and they would all share it, “chipping in” together to buy one “ball” instead of buying small amounts separately. [ 102 ] On January 9, 2012, according to Adie, Khalili-Arabi called him around 6:00 or 7:00 p.m. and asked him to come over and to bring beer. Adie arrived around 8:00 p.m. Khalili-Arabi and Astroza were seated beside each other on one couch, facing the television. Rojas and Sharif and a friend of Sharif’s were also present. They were all in the living room, around the table, drinking Crown Royal whiskey. Everyone seemed fine.

Adie later testified that the Crown Royal bottle was empty when he arrived. Adie brought his own cocaine to the party and he would pull out his baggie, break off a piece, put the baggie back in his pocket, make a few “lines”, and then offer it to the others. In particular, he shared the cocaine with Astroza and they each consumed about fifteen “lines”. Khalili-Arabi also brought some amount of his own cocaine to the party but Adie could not say what quantity. Khalili-Arabi would pull out his cocaine, in the same way as Adie, and share it with the others.

They were all doing cocaine and everyone was high. [ 103 ] According to Adie, everyone was talking nonsense and bickering. There was also what Adie described as “horseplay”, involving wrestling and punching each other’s arms with fists. Khalili-Arabi was not hostile and it was not a fight. They were just playing. Adie reiterated that “everyone” was engaged in this “horseplay”, and not just Khalili-Arabi and Astroza.

For example, both Adie and Rojas were also punching each other with fists. [ 104 ] Adie was aware that Astroza owed Khalili-Arabi money and he believed that Astroza had lied about paying it back and that Khalili-Arabi was upset about it. Nevertheless, there was no mention of this debt at the January 9, 2012 gathering and Adie never saw or heard Astroza and Khalili-Arabi arguing about it.

Adie also did not see any incident between Astroza and Khalili-Arabi at the stove, he did not see Khalili-Arabi strike Astroza in the face at any point, and he did not see Khalili-Arabi stab Astroza in the hand or in the leg. [ 105 ] Adie initially testified that he did not see a knife at all that evening. In response to a leading question from defence counsel, as to whether he had seen a “knife game”, Adie replied that he did see it. It involved Astroza and Khalili-Arabi and they would put their own hand on the table and jab the knife quickly between each finger of their own hand.

They were not doing the jabbing with the knife to the other person’s hand. No injuries resulted from this “knife game”. [ 106 ] The only time that Adie saw Astroza get injured that night was when he fell down the stairs leading to Rojas’ basement flat. Astroza had gone outside to smoke a cigarette because Rojas does not like smoking in his flat. They were also smoking marijuana outside. It was about one to one-and-a-half hours after Adie had arrived at the gathering that the fall down the stairs happened. Adie was standing in the living room by the coffee table.

He could see out to the hallway and to the foot of the stairs that lead down to the basement flat. Astroza came in from outside, slipped on the stairs, and fell forward and down. He landed at the bottom of the stairs with his forehead hitting the wall opposite the bottom of the stairs. Khalili-Arabi, Rojas, and Sharif were all in the living room with Adie when this happened. Everyone saw and heard the loud bang as Astroza fell down the stairs. Adie went over to check on Astroza and he had a mark in the centre of his forehead, from hitting the wall.

Adie demonstrated the location of this mark and it was unclear whether it

was in the centre of Astroza’s forehead or on the bridge of his nose, as Adie indicated both locations. The injury caused bleeding from one of Astroza’s nostrils, according to Adie. [ 107 ] At some point, Khalili-Arabi passed out and Adie continued to do “lines” of cocaine with Astroza. After midnight, Adie went out for pizza and woke up Khalili-Arabi in order to give him a slice. Khalili-Arabi passed out again and Rojas went to bed. Adie stayed up with Astroza until about 2:00 a.m., when Adie left. Astroza was fine as the bleeding from his nose had stopped.

Adie acknowledged that Astroza had a small “scratch” on his leg and a little blood on his jeans. Adie did not see any blood in the flat other than this one inch diameter spot of blood on Astroza’s jeans. [ 108 ] Adie testified that Astroza’s father had called him six or seven times that night but it was because Astroza had taken money from the father. Adie would tell the father that Astroza was not with him and the father would keep calling back.

Adie denied putting Astroza on speaker phone but he did give the phone to Astroza once, who then reluctantly took it and spoke briefly to his father in Spanish. [ 109 ] Adie admitted a minor criminal record as follows: fail to comply in 1997, probation; break and enter and theft in 1997, time served; and three convictions for simple possession of marijuana and cocaine in 2000, 2010, and 2011 for which he was fined. Adie admitted trafficking marijuana to support his own habit. He had never known Khalili-Arabi to traffic drugs.

Adie testified that he was supposed to give the police a statement, shortly after the incident, but he decided not to. He denied later receiving calls from Det. Yeo, asking him to provide a statement. If he had received such calls, he would have agreed to give a statement. (vi) The defence evidence concerning the police seizures from Khalili-Arabi [ 110 ] Khalili-Arabi testified that, after he awoke at Rojas’ flat around 6:00 a.m., he drove home in the early morning of January 12, 2012. He went to bed at home and slept until about 11:00 a.m. He had been laid off so he had no work to go to.

He got up and drove to Walmart and shopped for groceries. As he drove back home he noticed a cell phone in the back seat of his car. It belonged to Astroza so he picked it up and put it in his pocket. [ 111 ] Khalili-Arabi arrived back home and pulled into his driveway. He saw three men in plain clothes running towards him. They announced “police” and he lay on the ground and was handcuffed. D.C. Osborne searched his pockets and found money, keys, and cell phones. D.C. Osborne took Khalili-Arabi’s car keys and searched the car.

Under the floor mat, in front of the driver’s seat, the officer found eight small ½ gram baggies of cocaine in front of where Khalili-Arabi had been seated. Khalili-Arabi admitted it was his cocaine but he testified that D.C. Osborne lied about seizing it from Khalili-Arabi’s jeans pocket. [ 112 ] Khalili-Arabi also testified that the third officer who was present kicked him in the head, while he was hand-cuffed on the ground, although there were no injuries caused by the kick. This officer had a shaved head, and was neither D.C. Osborne nor D.C. Pak.

This third officer also accompanied Khalili-Arabi back to the police station, with the other two officers. At the station, Khalili-Arabi was not allowed a phone call until the search warrant was executed. Khalili-Arabi admitted that the cocaine and the Canadian cash, seized in his room pursuant to the search warrant, belonged to him. [ 113 ] Khalili-Arabi explained in his testimony that on January 10, 2012 he was still in possession of the remainder of the one ounce of cocaine that he had bought for New Years Eve, together with Chris Hillman.

He took the view that fourteen grams belonged to Hillman and that he was simply holding this amount until Hillman picked it up from him. Although ten days had passed since New Years Eve, Hillman had not called about his cocaine nor had he come by to get it. Hillman worked in the same construction union as Khalili-Arabi. [ 114 ] Whenever Khalili-Arabi was going out to a party, such as on New Years Eve and on January 9, 2012, he would weigh out some of his cocaine in his room into ½ gram baggies, put a few baggies in his pocket, and leave. In his car, he would throw the baggies under the floor mat.

He always shared his cocaine, and never consumed cocaine alone. The ½ gram baggies simply allowed him to know how much he was using. He denied ever selling cocaine. He is a recreational user and it is normal for him to carry cocaine when he is out so that he can pull it out and say, “let’s do some lines”. He could not really explain why he had the eight ½ gram baggies with him in the car when he was arrested on the afternoon of January 10, 2012. He had just been shopping for groceries, he was not planning to meet anyone, and he was not intending to go to a party.

He just wanted to have cocaine and to use it as he was out of work. [ 115 ] Khalili-Arabi explained that the $4,040 in cash seized from his back pocket was money that he was carrying with him to pay his supplier and to pay his Visa bill. His customers, in his window and door business, paid him in cash and he paid his suppliers in cash when he bought trim and nails.

He could not remember the name of the supplier where he paid in cash, and he did not have any receipts, but he testified that the supplier is located near Steeles Avenue, south of Pine Valley. [ 116 ] Khalili-Arabi explained the $20,000 seized from his room as savings that he had accumulated since 2007. He had not done his tax returns, between 2000 and 2007, and when he finally did them, Revenue Canada advised him that one business tax return was still missing and they froze his bank account at TD Bank.

One and a half weeks later, after he looked after the missing tax return, Revenue Canada lifted the freeze on his bank account. No money was taken from his bank account and it was just a brief inconvenience. Nevertheless, he was furious that Revenue Canada had the power to freeze his bank account. He decided that he would not keep all his money in the bank. He began saving every $100 bill that he got and he would also make large cash withdrawals from the bank whenever a large balance accumulated. At one point, these cash savings reached a total of $30,000.

This practice of keeping large savings in cash at home was partly due to dislike or mistrust of the banks and partly because he liked to actually see his savings. [ 117 ] Khalili-Arabi obtained his bank records from T-D Bank, going back to 2007, and they showed various large cash withdrawals over the years. He added them up and they totalled about $30,000. The records also show large deposits being made into the account. Sometimes the records showed that there were large balances of over $10,000 in the account.

Khalili-Arabi agreed that he needed to keep a good balance in his bank account, in order to build up and maintain his credit for his door and window business. However, he did not want to keep all his money in the bank and so he kept some money in the bank and some cash savings at home. Khalili-Arabi agreed that it was risky, keeping this much cash in his room and not locking it in a safe or somehow securing it. He testified, “it is pretty stupid”.

[ 118 ] Khalili-Arabi testified that once he was released on bail, after being charged with the present offences on January 10, 2012, he went to work for Yukon Construction and was paid $35 per hour. He took home about $1,000 a week and made about $50,000 in net income in 2012. He made “way less” than this in 2011 as he was paid $32 per hour and his business was inconsistent. He was reluctant to state his annual income for 2011, saying “I don’t know where she [Crown counsel] is going with this”. When pressed, he estimated that he made more than $20,000 but less than $40,000 in net income in 2011.

He agreed that the $24,000 seized from him on January 10, 2012 was close to his net annual income for all of 2011. It was a lot of money for him. (vii) The defence evidence concerning post-offence conduct [ 119 ] Khalili-Arabi testified that after he got bail on the present charges, he heard from Adie within the first month. Adie told him that Astroza had been in touch and wanted to speak to Khalili-Arabi. Apparently, Astroza wanted to “fix things” and “tell the truth”. Khalili-Arabi knew that his terms of bail prohibited any contact with Astroza and, in any event, he did not trust Astroza.

He told Adie to tell Astroza to either go to the police or to get a lawyer. [ 120 ] Khalili-Arabi agreed, in cross-examination, that he and Adie talked about what had happened on the night in question and they talked about what Astroza was alleging in his statement to the police. [ 121 ] Adie testified that Astroza called him many times after the incident and told Adie that he wanted to speak to Khalili-Arabi and wanted to “fix things”. However, Adie did not remember much about this. He was adamant that he did not tell Astroza anything about Khalili-Arabi.

In particular, he denied giving Astroza a phone number where he could reach Khalili-Arabi, although Astroza asked for it. Adie did not want to get caught in the middle, between the two, and so he stayed out of it. Adie agreed that he did visit Astroza, at his room near Islington and Dixon, as he was Astroza’s only friend. Adie also agreed that Khalili-Arabi would come and join them on four or five of these occasions. Indeed, it was Khalili-Arabi who told Adie about Astroza’s new residence in the area. Adie did not know

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