Court of Appeal for Ontario
Re: Her Majesty the Queen (Respondent) – and – Alexan Kulbashian (Applicant/Appellant)
Before: Doherty, Rosenberg and Armstrong JJ.A.
Counsel: Peter Lindsay for the appellant Christine Bartlett-Hughes for the respondent
Heard: May 28, 2003
On appeal from the order of Justice Gloria Epstein of the Superior Court of Justice dated March 14, 2003, dismissing the appeal from conviction by Justice David A. Fairgrieve of the Ontario Court of Justice on January 31, 2002 and sentence imposed on April 10, 2002.
Endorsement
1This is an application for leave to appeal and if leave be granted an appeal from the order of Epstein J. dated March 14, 2003 dismissing the applicant’s appeal from his conviction and sentence in the Summary Conviction Court. The applicant had been convicted of assault by Fairgrieve J. in January 2002 and sentenced to five months in jail.
2While the applicant advances a number of grounds of appeal, it is only necessary to deal with the principal submission that the verdict is unreasonable. We agree with that submission and accordingly, leave to appeal is granted, the appeal allowed and an acquittal entered.
3This was a very difficult case. The evidence was confusing and contradictory and involved a number of difficult aspects such as the use of post-offence conduct. The trial judge was very careful in his assessment and use of the evidence. Nevertheless, for the following reasons we are of the view that the verdict cannot stand.
4This offence arose out of an attack by one or more “skinheads” on an unidentified black man. The attack began on a bus and continued when the bus stopped and one or more of the skinheads pursued the victim out on to the street. The evidence shows that although the applicant was one of the skinheads on the bus, he was not involved in the altercation on the bus. His liability depended entirely on whether he could be identified as one of the persons who pursued the victim on to the street.
5The Crown’s principal witness, Clayton Scott, was a most unsatisfactory witness. He was one of the skinheads and the trial judge recognized that his evidence had to be approached with great caution. As well, the testimony itself was riddled with inconsistencies and contradictions. While he initially identified the applicant as having been involved in the pursuit of the victim on to the street, he quickly resiled from that position and gave inconsistent answers during cross-examination by Crown counsel and defence counsel. It is apparent that the trial judge would not have convicted the applicant on Scott’s evidence alone. The trial judge believed, however, that Scott’s evidence was confirmed by the independent evidence of the various persons who witnessed the attack in the bus and on the street.
6The trial judge’s approach was essentially a sound one. He reasoned that any one of the skinheads involved in the pursuit of the victim outside the bus could be found to be a party to the assault by assisting in preventing the victim’s escape, even if that person did not actually physically assault the victim. He then proceeded by a process of elimination. For sufficient reasons, he accepted Scott’s evidence that he did not assault the victim and that two other skinheads referred to as Jerry and Pavlo also did not participate in the pursuit. This left the applicant and his two co-accused Vrdoljak and Kujtkowski. Vrdoljak’s own testimony establishes his participation in the assault and an independent witness was able to identify Kujtkowski as a participant in the assault.
7None of the independent witnesses, however, could satisfactorily identify the applicant as being involved. In fact, at least two witnesses did not pick the applicant out of a photo line-up. Nevertheless, if the independent evidence established that three skinheads were involved in the pursuit, by a process of elimination the applicant would be shown to be a party to the offence. This is where the case breaks down. The trial judge stated that based on the confirmatory evidence of six of the independent witnesses he was satisfied that the applicant “was the third participant in the chase”. The independent evidence, however, does not demonstrate that there was a third participant. Some witnesses say there were three. Some say there were four, which contradicts Scott’s evidence. The other witnesses say that either there were one or two participants or they could not tell how many. The trial judge did not indicate that the witnesses who did not see three participants were not credible and he did not indicate any basis for preferring the one or two witnesses who testified that three persons were involved. For example, Brent Harris gave the clearest evidence that three persons were involved and yet his testimony was so problematic that the trial judge acquitted all of the accused in relation to the count where he was the victim. The trial judge accepted Harris’ evidence about the number of persons involved in the attack on the black man because “it coincided with the evidence of other witnesses”. The difficulty is that the other witnesses do not clearly show how many persons were involved in the pursuit.
8In our view, the independent evidence as to the number of persons involved is so unsatisfactory that it cannot form a safe basis for a conviction. In her reasons, the appeal court judge did not directly address the question of the reasonableness of the verdict, except to find that there was ample evidence, which the trial judge accepted, to support the conviction. For the reasons expressed above, this was an error in law.
9Accordingly, leave to appeal is granted, the appeal is allowed, the conviction set aside and an acquittal entered.
Signed: “Doherty J.A.”
“M. Rosenberg J.A.” “Robert P. Armstrong J.A.”