Court of Appeal for Ontario
Date: 2017-01-23 Docket: C61570
Judges: Weiler, Pepall and Trotter JJ.A.
Between
Her Majesty the Queen Respondent
and
Vahid Pashazahiri Appellant
Counsel
Wayne Cunningham, for the appellant Mabel Lai, for the respondent
Heard: January 12, 2017
On appeal from the conviction entered on November 6, 2012, by Justice Harriet E. Sachs of the Superior Court of Justice.
Endorsement
[1] The appellant appeals from his conviction for aggravated assault. He was acquitted of attempted murder, unlawful confinement, and assault with a weapon.
[2] The conviction relates to an assault on Malcolm Isaac that occurred in the early morning hours of January 21, 2012. According to Isaac, he was assaulted by three men in his bedroom, but he could only identify one – Marcus Wright. Wright was the brother of Isaac's roommate, Annece Collymore. Isaac and Collymore also lived with a third roommate, Dunstan Haynes.
[3] Earlier in the night, Isaac and Collymore had argued about her living arrangements. Collymore had become combative, and Isaac had ultimately told her that she would need to find another place to live.
[4] In response, Collymore had threatened Isaac that she would get her brother and his friends to harm him. A short while later, Wright and two other men entered Isaac's bedroom and assaulted him. The trial judge concluded that the appellant was one of the three assailants, and he was convicted of aggravated assault.
[5] The appellant advances four arguments on this appeal.
First Ground of Appeal: Vetrovec Analysis
[6] First, he acknowledges that in a judge alone trial, there is no need for the trial judge to conduct a formal Vetrovec analysis, as trial judges know the risks inherent in relying on Vetrovec witnesses. However, he submits that the trial judge failed to conduct any meaningful analysis of the evidence of the two Vetrovec witnesses, Collymore and Wright.
[7] We disagree.
[8] The trial judge expressly cautioned herself that Collymore and Wright were Vetrovec witnesses whose evidence should not be accepted, unless confirmed by other independent evidence. Accordingly, as there was no independent confirmation of their testimony that the appellant stabbed Isaac, the trial judge could not, and did not, rely upon their evidence in that regard.
[9] However, the trial judge properly considered their evidence on the appellant's involvement in the attack on Isaac. The trial judge's conclusion that the appellant participated in the attack was based on a consideration of all of the evidence, including the fact that the appellant was with Wright and the other attacker immediately before, and immediately after, the attack. Moreover, Isaac's blood was found on the appellant's pants. Although the trial judge acknowledged that it was theoretically possible that this blood might have been deposited innocently, she ultimately rejected this proposition, as she was entitled to do.
Second Ground of Appeal: Misapprehension of Evidence
[10] Secondly, the appellant submits that the trial judge misapprehended the evidence of both Haynes and Isaac. In our view, she did not.
[11] Neither witness purported to identify the appellant as the third assailant.
[12] Haynes' testimony was important in that it excluded Clifford Walters – Collymore's boyfriend – as the third assailant. Haynes witnessed Walters return to the apartment building after the attack to return some of Collymore's possessions. As the trial judge said, it would defy common sense for Walters to return to the scene if he had been one of the assailants. These circumstances were confirmatory of Walters' evidence that he was not one of the assailants. The trial judge was entitled to deal with this evidence in the manner that she did.
[13] Similarly, the trial judge properly considered the evidence of Isaac and made findings that were available to her on the record. Isaac testified that he was certain that there were three assailants. He stated that Wright was one of the assailants and that Collymore and Walters were not. The trial judge was entitled to accept Isaac's evidence and did not err in this regard. Isaac had met Wright before. Moreover, just before the attack, Wright reminded Isaac that he was Collymore's brother. The trial judge also did not err in accepting Isaac's testimony that Collymore was not in his bedroom, even though Isaac told emergency personnel that Collymore was responsible for what happened to him. This evidence must be placed in context. Collymore was responsible for instigating the attack, but this is not the same as carrying out the actual attack.
Third Ground of Appeal: Inconsistent Findings
[14] Thirdly, the appellant submits that the trial judge made inconsistent findings on Isaac's perceptions inside the bedroom. Again, we disagree.
[15] A trial judge may accept all, some or none of a witness' testimony. Here, the trial judge did not err in discounting Isaac's descriptions of his assailants, while accepting his evidence on their number and gender.
Fourth Ground of Appeal: Unreasonable Finding
[16] Lastly, the appellant submits that the trial judge unreasonably found that the appellant was one of the assailants and that Collymore was not. We reject this contention.
[17] As discussed, the trial judge accepted Isaac's evidence that Collymore was not in his bedroom while he was being attacked. He saw her in the apartment as he was fleeing the premises.
[18] The totality of the evidence provided support for the trial judge's finding of the appellant's guilt. The trial judge's ultimate conclusion that the appellant was actively involved in the assault was the product of all of the evidence, including: Wright's testimony that the appellant was one of the assailants, the reasonable elimination of Collymore and Walters as participants, the appellant's association with the known assailants immediately before and immediately after the attack, and the presence of Isaac's blood on the appellant's pants.
Disposition
[19] For these reasons, the appeal is dismissed.
"K.M. Weiler J.A." "S.E. Pepall J.A." "G.T. Trotter J.A."