R. v. Moghrabi (P.F.), (2002) 323 A.R. 129 (PC)

• Judge: Bridges, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 29, 2002
• Citations: (2002), 323 A.R. 129 (PC);2002 ABPC 132

R. v. Moghrabi (P.F.) (2002), 323 A.R. 129 (PC)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. OC.021

Her Majesty the Queen v. Philip Fathallah Moghrabi

(016749913P1; 2002 ABPC 132)

Indexed As: R. v. Moghrabi (P.F.)

Alberta Provincial Court

Bridges, P.C.J.

August 29, 2002.

Summary:

The accused was confronted by the complainant and his brother. In the struggle that followed the accused struck the complainant on the head with a metal pipe. The accused was charged with assault with a weapon and possession of a weapon for a purpose dangerous to the public peace.

The Alberta Provincial Court acquitted the accused of both offences.

Criminal Law - Topic 221

Statutory defences or exceptions - Evidence and proof of - The accused was charged with assault with a weapon - At issue, inter alia, was whether the Crown had established that the accused was not acting in defence of his personal property pursuant to ss. 38(1) or 39(1) of the Criminal Code or in self-defence pursuant to ss. 34, 35 or 37 - The Alberta Provincial Court stated that "The onus remains on the Crown to prove beyond a reasonable doubt that a defence is inapplicable. However, the Crown can discharge this onus by establishing that one element of the defence was lacking. It need not go as far as negating all elements of the defence." - See paragraph 26.

Criminal Law - Topic 232

Statutory defences or exceptions - Justification of force to prevent crime - The complainant and his brother confronted the accused in a road rage incident - The accused locked his doors - The brothers kicked the side of the car and pulled at the car door - The accused exited his vehicle with a metal pipe - The complainant wanted to fight the accused "one-on-one" -He grabbed the accused's arm to disarm him - The accused struck him on the head with the pipe - The Alberta Provincial Court rejected the accused's defence under s. 27 of the Criminal Code (force reasonably necessary to prevent the commission of an indictable offence) - His actions were not justified under s. 27 to prevent either an assault to his person or serious damage to his car - Once the accused exited his vehicle armed with the pipe, he was not an innocent bystander - He was not outside his vehicle to arrest the brothers - See paragraphs 27 to 28.

Criminal Law - Topic 1153

Offensive weapons - What constitutes a weapon possessed for a dangerous purpose - The complainant and his brother confronted the accused in a road rage incident - The accused locked his doors - The brothers kicked the side of his car and pulled at the door - The accused exited his vehicle with a metal pipe - The complainant wanted to fight the accused "one-on-one" - He grabbed the accused's arm to disarm him - The accused struck him on the head with the pipe - The Alberta Provincial Court acquitted the accused of possession of a weapon for a dangerous purpose - The accused explained that the pipe was in his vehicle for use as leverage on his wheel wrench - Removing it from the back of his vehicle and brandishing it outside the vehicle was a sudden, unpremeditated use of the weapon in response to the brothers' aggressive behaviour, for the purpose of avoiding a fist fight - See paragraphs 49 to 51.

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - The complainant and his brother confronted the accused in a road rage incident - The accused locked his doors - The brothers kicked the side of the car and pulled at the car door - The accused exited his vehicle with a metal pipe - The complainant wanted to fight the accused "one-on-one" -He grabbed the accused's arm to disarm him - The accused struck him on the head with the pipe - The Alberta Provincial Court held that the accused did not have a defence under s. 34(2) of the Criminal Code because he could have otherwise preserved himself - He could have simply backed up his car and drove away - See paragraphs 32 to 36.

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - The complainant and his brother confronted the accused in a road rage incident - The accused locked his car doors - The brothers kicked the side of the car and pulled at the car door - The accused exited his vehicle with a metal pipe - The complainant wanted to fight the accused "one-on-one" - He grabbed the accused's arm to disarm him - The accused struck him on the head with the pipe - The Alberta Provincial Court held that the accused had a defence under s. 34(1) of the Criminal Code where he may have honestly and reasonably believed that he was being unlawfully assaulted or that such an assault was imminent, there was insufficient evidence that he intended to provoke the attack and the force used was reasonably necessary - See paragraphs 37 to 48.

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - [See Criminal Law - Topic 221 ].

Criminal Law - Topic 1422

Assaults - Defence - Consent - The complainant and his brother confronted the accused in a road rage incident - The complainant wanted to fight the accused "one-on-one" - The accused struck the complainant on the head with a metal pipe - The Alberta Provincial Court held that the complainant did not consent to the blow because he never intended to fight the accused while he was armed with a pipe - The complainant escalated the confrontation by grabbing the accused's arm for the purpose of disarming him - Only if he had been successful could a consensual fight have been possible - Further, the complainant could not consent to the blow as he received serious injuries - See paragraphs 27 to 25.

Cases Noticed:

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454, appld. [para. 24].

R. v. Hebert (D.M.), [1996] 2 S.C.R. 272; 197 N.R. 277; 77 B.C.A.C. 1; 126 W.A.C. 1; 107 C.C.C.(3d) 42, refd to. [para. 26].

R. v. Gee, [1982] 2 S.C.R. 286; 43 N.R. 128; 38 A.R. 106, refd to. [para. 27].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 30].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402 (C.A.), refd to. [para. 31].

R. v. Susan (G.A.) (2000), 258 A.R. 294 (Prov. Ct.), refd to. [para. 31].

R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), refd to. [para. 33].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81; 26 C.R.(4th) 145; 87 C.C.C.(3d) 97, refd to. [para. 35].

R. v. Abbaya (F.E.) (2000), 289 A.R. 82 (Prov. Ct.), refd to. [para. 39].

Authors and Works Noticed:

Ewaschuk, E.G., Criminal Pleadings and Practise in Canada (2nd Ed.), p. 21-26 [para. 46].

Halsbury's Laws of England (4th Ed.), vol. 11, p. 630 [para. 46].

Counsel:

J.D. Benkendorf, for the Crown;

G.M. Grieco, for the accused.

This case was heard by Bridges, P.C.J., of the Alberta Provincial Court, who delivered the following decision on August 29, 2002.