Appeal by accused from his convictions for assault with weapon, assault causing bodily harm and possession of weapon for purpose of committing indictable offence. Accused cut off complainant in traffic after complainant did same to him. He then approached complainant’s car and they had angry exchange. Accused was five feet and eight inches tall and he weighed 120 pounds while complainant was six feet and four inches in height, and he weighed 240 pounds. Complainant got out his car and accused attacked him several times but complainant repulsed him. After fight concluded complainant saw that his shirt was ripped and he was bleeding from cut on his left shoulder. He had no idea how he was injured because he did not see him holding weapon. Independent witness did not see how complainant got injured. Police officer who examined complainant and who watched videotape of incident concluded that accused stabbed complainant in shoulder and hospital records indicated that complaint was cut with penknife or with knife. Trial judge concluded that accused and complainant were not in consensual fight and defences of provocation and self-defence did not apply. Appeal dismissed. Judge’s conclusion regarding consensual fight issue was reasonable. Her conclusion that accused’s wound was consistent with sharp-edged instrument was speculative. This conclusion, however, was inconsequential for since judge found that altercation was non-consensual it was unnecessary to determine whether bodily harm was inflicted intentionally. Assault with weapon charge was stayed because of Kienapple principle but assault causing bodily harm charge was not stayed.
R. v. Akhtar (Nov. 13, 2013, Ont. S.C.J., Trotter J., File No. 31/12) 110 W.C.B. (2d) 492.