Court File and Parties

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Stephen Petlichkov

Before: Justice Borenstein

Heard on: May 30, 2012, June 18, November 19 and 26, 2011

Reasons for Judgment released on: December 4, 2012

Counsel:

• Ms. E. Rokach for the Crown
• Mr. P. Scully for the accused Stephen Petlichkov

Reasons for Judgment

Overview

[1] Stephen Petlichkov is charged with assault causing bodily harm. He, his wife Melissa together with his brother Shawn and Shawn's fiancé Shannon were coming home from a wedding. They had all been drinking. They had taken the GO train to the Rouge Hill station where Stephen's mother, Barbara, was waiting to pick them up. When they exited the GO train, Shawn and Shannon had a dispute with two men, Rajiv and the complainant Saquib.

[2] The two groups did not know each other. At various times in the evidence, people were described by the colour of their clothes or hair. Now that identities have been attached to those descriptions, I will refer to all the parties by their names rather than descriptions.

[3] The accused is a large and muscular man. He is between six feet and six foot three and weighs 250 pounds. Saquib is five foot ten and weighed 165 pounds at the time. Rajiv was 130 pounds.

[4] When the train arrived at the Rouge Hill GO station, both groups exited. They all walked from the platform through the pedestrian tunnel toward the parking lot.

[5] A dispute arose in the tunnel between Rajiv and Saquib on the one hand and Shannon and Shawn. There is disagreement between the two groups as to what was said in the tunnel. Rajiv and Saquib testified that the accused and Melissa were arguing on the platform and, as Rajiv made a comment to Saquib about that argument, the accused's brother Shawn told them to mind their own business and then said they would not be leaving the tunnel alive. When Saquib responded, Shannon made racist comments. Saquib and Rajiv denied making any threats, direct or implied. According to the accused and Melissa, they were not arguing. According to Shawn's evidence, the accused and Melissa were loud and obnoxious when Rajiv or Saquib made certain comments. Shawn denied making or hearing any racist comments in the tunnel and denied saying anything threatening to either Rajiv or Saquib.

[6] Once outside the pedestrian tunnel, the argument continued between Saquib, Shannon and Shawn in the parking lot. Melissa and the accused went to Barbara Petlichkov's waiting SUV, parked only 35 feet away from the tunnel entrance. Rajiv got his car, a 2011 Mercedes that was also parked near the tunnel entrance and drove right up to the SUV and parked. Shannon and Shawn were at the SUV and Saquib was walking toward it as well. Rajiv exchanged comments with Shannon regarding his Mercedes.

[7] The events which next occurred are very much in dispute. What is not in dispute is that, within less than one minute, the accused punched Rajiv in the face some six to eight times until he slid off the hood of his car. Rajiv never threw a punch. Saquib tried to intervene by grabbing and punching the accused but was thrown to the ground by Shawn, at which point the accused punched him at least once in the face while Saquib was on the ground. Both Saquib and Rajiv's noses were broken. The accused and his family left the scene but were arrested several hours later.

[8] The accused is charged with assault causing bodily harm in relation to Saquib. No charges were laid in relation to Rajiv. There is no dispute that bodily harm occurred. The issue is whether the Crown has proved beyond a reasonable doubt that the accused assaulted Saquib. The defence position is that the accused was acting in self defence and in defence of his family as he believed Saquib and Rajiv might cause harm to the Petlichkove or might call others to join in. The accused maintains that he used no more force than was necessary.

[9] The accused does not have to prove anything, least of all, that he was acting in self-defence. The Crown bears the burden of proof. Given that there is no dispute that the accused punched Saquib, the issue comes down to whether he was acting in self defence or in defence of his family. If, at the end of the case, there is a doubt about whether the accused believed he was acting in self-defence, he will be acquitted.

[10] I heard from Rajiv, Saquib, the accused, Shawn, Melissa and the accused's mother, Barbara. Medical records were filed on consent, as was a video showing parts of this altercation taken from inside the pedestrian tunnel and in the parking lot. Further, at the request of the defence, the Crown was prepared to agree that there is a perception of guns and gang violence in Scarborough.

[11] With that background, let me turn to the salient evidence more closely.

Saquib Raja

[12] Saquib was 25 years old at the time of trial. He was in his fourth year of studies at the University of Toronto.

[13] On July 10, 2011, he and his friend Rajiv went to a wedding downtown. Rajiv picked up Saquib and they drove to the Rouge Hill GO station. They took the GO train to the wedding downtown. Saquib does not drink alcohol. Rajiv had had some alcohol at the wedding.

[14] The two took the GO train back to the Rouge Hill station after the wedding.

[15] As they exited the GO train, Saquib saw a couple arguing on the platform. That turned out to be the accused and Melissa. As Saquib and the other passengers began walking through a pedestrian tunnel, Rajiv made a sarcastic comment to Saquib that "everyone seems to be fighting today".

[16] As Saquib and Rajiv were walking through that tunnel, he heard a male behind him say "everybody has a fucking opinion nowadays". Saquib testified that that was said by Shawn. Shawn and Shannon were in the tunnel behind Saquib and Rajiv. Saquib looked back and said to Rajiv that he thought the male was talking about them. Shawn then said something like "these guys will not leave the tunnel alive".

[17] A video in the tunnel shows Shannon putting her arm out to hold Shawn back at the outset before Saquib ever turns around.

[18] Saquib turned and said "please watch who you are talking to".

[19] Shawn's wife, Shannon, described in the trial as "the blonde", began swearing and making racists comments to Rajiv and Saquib saying something like "you dirty brown men all live ten to a house."

[20] Saquib was stunned by that comment and stated that she should "watch her fucking mouth" or "watch who you are talking to." He denied ever calling her a bitch.

[21] The argument continued as they exited the tunnel as Rajiv went to his car. As Shannon and Shawn left to the waiting SUV, Saquib can be seen on the video continuing to have words, presumably with Shannon and Shawn who are off screen. A bystander came up to Saquib and told him to just walk away. A video from the parking lot shows a bystander approach Saquib and, from the gestures, appears to tell Saquib to walk away.

[22] Rajiv drove past Saquib and parked next to Barbara Petlichkov's SUV. Barbara was out of her vehicle. Saquib went over to the vehicles.

[23] Rajiv got out of his car and argued with the accused. They were standing between the two vehicles. Rajiv never touched nor had words with Barbara Petlichkov.

[24] The accused was out of control. He pushed his mother toward her SUV yelling at her to "get in the fucking car" and "don't fucking get involved". Saquib testified that the mother was trying to restrain her son. Saquib believed that Barbara got back in her vehicle but was unsure. He saw Shannon open the SUV door and heard her swear and make further racists comments to Rajiv.

[25] The accused then punched Rajiv in the face and slammed him onto the hood of the Mercedes. He believed Rajiv lost consciousness as he slid off the hood. Saquib was worried as the accused was much bigger than Rajiv and Rajiv was diabetic and frail.

[26] Saquib tried to grab the accused to pull him from Rajiv as did others. As he did this, Shawn grabbed Saquib's arm and said "don't fucking get involved, don't you dare". Saquib's evidence is unclear whether Shawn grabbed him as he approached the accused or once he approached the accused. In either case, within seconds, Shawn flung Saquib to the ground as can be seen on the video. Saquib landed on the cement and was bleeding. The accused the came over to Saquib, who was on the ground, and pushed him down and punched him hard in the face, at least once. The accused and his brother then got into the SUV and left.

[27] Initially, Saquib testified that he and the accused were exchanging punches when he intervened. He also testified that, after he grabbed the accused, the accused pushed him into his mother's SUV and then threw the first punch to Saquib's face before they exchanged punches. The accused is much bigger than Saquib. Saquib denied holding onto the accused's tie while on the ground.

[28] In cross-examination, Saquib denied telling the police that he saw the accused pull Rajiv from the car.

[29] Saquib had two black eyes, a broken nose and a sore back as a result of this encounter. He required surgery and suffered various infections arising from the surgery.

[30] It was suggested to Saquib in cross-examination that he threw down the gauntlet by making comments in the tunnel. He replied that the gauntlet was thrown down when the accused's brother said that the two were not going to leave the tunnel alive.

[31] Saquib testified that the accused and Shawn seemed drunk.

Rajiv Ramdan

[32] Rajiv Ramdan was 25 years old and worked as a commercial manager for an auto supply company. He was five feet ten inches tall and weighed 125 pounds. He takes insulin injections four to five times a day for diabetes. He does not play sports.

[33] He owned a 2011 white Mercedes Benz and had one beer at the wedding.

[34] Turning to the events upon their return to the GO station, Rajiv heard a couple arguing on the train platform. He described the male as being between six foot and six foot two with a big build. That was the accused.

[35] Rajiv testified that he made a sarcastic comment to Saquib but could not recall the exact comment. He thought it was something about those two being drunk. Rajiv said nothing else in the tunnel. Neither he nor Saquib called anyone a "bitch". Shawn told them to mind their own business and said something about not being able to leave the tunnel.

[36] As they exited the tunnel, Shannon made a comment about brown skinned people living ten to a townhouse.

[37] Saquib was arguing with Shannon. Rajiv was also upset by her comment. He immediately went to his Mercedes parked by the entrance and drove up to Barbara's vehicle. Rajiv testified that he wanted to show that group that he had an expensive car and was not the person Shannon was describing. He denied blocking the SUV. When it was suggested in cross-examination that he did block the SUV, he maintained that he did not and pointed out that the SUV could be seen pulling away without difficulty.

[38] Rajiv testified that Shannon was in the Barbara's car when he pulled up. The accused's mother was outside her SUV at the back. Shannon slid open the SUV's side door. She and Rajiv exchanged words as Rajiv was flaunting his car.

[39] The accused stood between the two vehicles next to Rajiv's passenger window. The accused left and Rajiv continued arguing with Shannon. All of a sudden, the accused was at Rajiv's door and somehow, Rajiv did not know or recall how, the accused pulled him from his car and dragged him to the front of the Mercedes.

[40] Rajiv tried to push the accused away. The accused then punched Rajiv in the face three or four times. Rajiv tried unsuccessfully to defend himself. Rajiv believes he briefly lost consciousness. Rajiv stumbled and tried to get off his own car. He saw Saquib on the ground. He did not see any interaction between Saquib and anyone else.

[41] Rajiv denied having had any contact or communication with the accused's mother.

[42] Rajiv's nose was broken and his tooth was chipped.

Stephen Petlichkov

[43] The accused, Stephen Petlichkov, testified. He was 34 years old and married with two children. He works as an electrical contractor.

[44] He, his wife, Melissa, his brother Shawn and Shawn's fiancée, Shannon, were at a wedding in Toronto. All had been drinking though he was not drunk. He agreed he would not have been in a position to drive believing he would have at least blown a warn on a breathalyzer machine.

[45] They took the GO train home and Stephen's mother was waiting to pick them all up. The GO train was rambunctious that night with lots of people arguing.

[46] The only "altercation" he had on the train was loud laughter as he and Shawn found it funny that Melissa and Shannon were so "hapless" that they could not manage to order a pizza.

[47] Shawn and Shannon entered the tunnel in front of the accused and Melissa. The accused was unaware of anything occurring in the tunnel initially. As he neared the exit, he realized something was not right. Words were being exchanged between Saquib and Rajiv on the one side and Shawn and Shannon. The accused left the tunnel before Shawn.

[48] The accused testified that there were obvious racial and derogatory things being said back and forth. One of the males said "you don't know what area you are in". Shannon commented that brown people live ten to a house. Rajiv or Saquib said something like "skinny blond" or "skinny bitch". Shannon commented about Tamils and Rajiv or Saquib allegedly told her to get a real man. The accused testified that Shawn was also saying "some stuff".

[49] The accused told Shannon and Shawn to let these "young punks" think they are tough. As he walked away, he said: My name is Stephen Petlichkov, gave his date of birth and said "Google me". When asked in Court what he meant by that comment he testified that he played Junior OHL hockey and was an enforcer. He thought the complainant and his friend were "punks".

[50] As the accused left the tunnel, the argument continued. The accused watched and assessed the situation. He testified that there were people there were "all ages, races and breeds".

[51] The accused was concerned in light of the complainant's comment to Shawn that he did not know who they were dealing with and they could call people.

[52] The accused went to his mother's waiting SUV at the "kiss and ride". Shannon got into the rear seat as did the accused.

[53] When the Mercedes pulled up, it parked very close to the mother's vehicle at an angle blocking his mother's vehicle.

[54] The accused testified that he went into "protection mode."

[55] Shannon opened the rear door and began having words with Rajiv. They spoke of "frivolous" matters regarding Rajiv's car.

[56] Shawn was at the back of the Mercedes and said he was taking a photograph of Rajiv's licence plate. Barbara was in her vehicle.

[57] Shannon tried to get out of the vehicle but the accused told her to remain inside.

[58] The accused denied pulling Rajiv out of his car. That is supported by the video.

[59] The accused got out of his mothers vehicle. Rajiv was at the front right of his own car.

[60] Barbara opened her door and stood outside her vehicle. She could not open her door completely so she stood between her open car door and her vehicle.

[61] The accused yelled at his mother to get back in the fucking car and to stay out of it.

[62] Rajiv came toward the accused. In doing so, he pushed or touched Barbara's door causing Barbara to be pushed back toward her own car seat. When that happened, the accused testified that that "lit my fuse and it was all over in 20 seconds, both fights". He testified that when Rajiv touched his mother's door, it was "go time". He punched Rajiv cleanly six to eight times connecting with each punch thereby "incapacitating" Rajiv. The accused testified that it was over and that was "another one in my belt".

[63] He then turned around and, Saquib grabbed him and gave him "girly rabbit punches" He also described them as flailing punches. Shawn grabbed Saquib and "whipped" him. The accused and Shawn went to Saquib, who grabbed the accused's tie. The accused punched Saquib in the face because he would not let go. He also pushed him down. The accused saw Saquib bleeding and knew not to be "over excessive". The accused told his brother that they should go before the people the complainants had referred to earlier arrived.

[64] The accused testified that "the trigger was the raising of his left arm and touching my mother's door trying to get toward me." He testified that, before the door even moved, his arm was cocked back ready to throw a punch.

[65] The accused was not concerned primarily for himself but for his family. He also testified that he thought Rajiv and Shawn were the ones who should have faced charges.

[66] In cross-examination, the accused testified that he was not an enforcer. He played Junior A hockey, not the OHL. He then testified that one of his roles was an enforcer. This evidence is not relevant to propensity. It was led in-chief and he was cross-examined upon it.

[67] In cross-examination, the accused was challenged on his evidence that his mother's SUV was blocked by Rajiv's. The video footage shows that the SUV is not blocked. The accused explained that he meant that it was blocked because Rajiv stood in front of his mother's car; however, that was not his evidence in chief.

[68] He was asked whether he agreed that Rajiv was essentially showing off his car when he pulled up. He replied that Rajiv was not bragging but was trying to intimidate them. When asked what Rajiv actually said, he testified that Rajiv said words to the effect of "look what I drive".

[69] The accused testified that he was six foot tall, and weighed 250 pounds and was much bigger and stronger than Rajiv.

[70] He repeated that, when Rajiv pushed his mother's door, he incapacitated Rajiv with six to eight hits. He wanted to ensure that Rajiv would not get up again. He was not taking any chances. He would not risk the chance that Rajiv had a knife. He felt that his family might be threatened which could have meant life or death for his family. Accordingly, he engaged in combat. He did not believe he used excessive force. He explained that he did not punch Rajiv until his "brains caved in". He testified that 100 punches or kicks would have been excessive.

[71] He confirmed that he was not angry when his mother's door was pushed. It lit his fuse and it was "go time."

[72] He testified that when he felt Saquib, at his back, which he at one point described as pulling him off, then knew there was more than two people and he thought maybe the complainants had friends. He did not know if there two or 25 men.

[73] In cross-examination, the accused testified Saquib hit him hard on his forearm which was when Shawn threw Saquib.

[74] He was cross-examined on his earlier evidence that Saquib was throwing "girly rabbit punches". He denied testifying that Saquib threw girly rabbit punches. He testified that Saquib was trying to engage him and, within a second, he was thrown to the ground by Shawn. He could not leave as he did not know if Saquib would get up. He was not yet incapacitated. He was trying to get up.

Shawn Petlichkov

[75] Shawn Petlichkov testified that the accused and Melissa were loud and obnoxious when they exited the GO train. In the tunnel, Saquib and Rajiv were "cat calling" Melissa saying "shut up bitch". Shawn told them that he was with them and that they should mind their own business. Saquib and Rajiv seemed surprised that they were caught. Shannon said "what's going on" and one of the men replied "shut up bitch, this has nothing to do with you". Shawn testified that Shannon did not like being called a "skinny bitch".

[76] Shawn testified initially that there were no racist comments made in the tunnel. He later testified that he heard comments about brown people. He later testified that he never heard those comments until the Crown mentioned them in Court. He testified that Rajiv and Saquib said "something like" "we will call people".

[77] As they exited the tunnel. Shannon was livid and the argument continued. Shannon eventually got into Barbara's SUV. The Mercedes pulled up and parked at a 45 degree angle. Shawn was sure both Rajiv and Saquib were in the car when it pulled up. Based on the video, he is mistaken on that point.

[78] Shawn testified that Rajiv said: "don't make me pop the trunk".

[79] Shawn went to the back of the Mercedes and took a photograph of the licence plate. Shawn testified that the Rajiv and Saquib then exited the white car. Rajiv went in front of the SUV. Shawn did not see what Rajiv did as he was focused on Saquib.

[80] Shawn held Saquib telling him not to get involved. Then, Rajiv advanced. Due to the space restrictions between the vehicles, he tried to or did push Barbara's door. Shawn testified that that "tipped off" the physical confrontation yet he also testified that he never saw his brother strike Rajiv.

[81] Shawn testified that he held Saquib to prevent him from getting involved. When he did let go, Saquib punched the accused in the back of his head three times while the accused and Rajiv were "grappling". He testified that Saquib "rabbit punched" the accused in the back of his head. He testified that the punches were not too forceful, they would have gotten the accused's attention "which was what he was trying to do". He later testified that when that punching did not stop anything, Saquib grappled with the accused.

[82] Shawn then threw Saquib. The video shows the accused and Shawn go to Saquib. The accused hit Saquib while Saquib is on the ground. Shawn testified initially that the accused hit Saquib once to keep him down. He also testified that he did not see the accused hit Saquib as he was not looking at the time although he also testified that SAquib was trying to get back up. He maintained that he was told by the accused that he hit Saquib to keep him down. When confronted with the inconsistency, he denied ever testifying that he saw the accused hit Saquib.

[83] In cross-examination, Shawn testified that he did not take a photograph of Rajiv's licence plate, he just pretended to do so in order that that Rajiv and Saquib would not think they could do something anonymously or with impunity.

[84] In cross-examination, Shawn would frequently not admit evidence he had given moments earlier. Both counsel described him as a difficult witness.

Barbara Petlichkov

[85] The accused's mother, Barbara Petlichkov, testified.

[86] She was waiting at the GO station in her SUV when she saw her sons and their wives exit the tunnel. Ms. Petlichkov honked her horn and got out of her vehicle. As her family came towards her, she got back in.

[87] Melissa got in the front seat. The accused and Shannon got into the back. Shawn was at the vehicle but not yet inside when the Mercedes "zoomed up" and parked three feet away, at a 45 degree angle. It did not block in her vehicle.

[88] Rajiv stood in front of her SUV and made threatening gestures. He mouthed something like "watch this" and formed his hand into the shape of a gun and began pointing it downwards in a pumping action. She was the only one to give evidence of that gesture.

[89] The accused got out of the SUV, as did Barbara. The accused forcefully yelled at Barbara to get back in the vehicle. Rajiv ran past her and her door hit her. Barbara got back in her car. She did not see her son hit Rajiv six to eight times at the front of the Mercedes, parked on their left. She was not looking out her window.

[90] Barbara later testified that she saw the accused holding a different male, presumably Saquib.

[91] She testified that she had no idea why the fight occurred. She then testified that her son told her that he got into the fight because these men surrounded her SUV and he was protecting his family. She has never discussed any details of what occurred with her son. Her son was arrested a few hours later. She later went to the police station saying she was fearful of retaliation.

[92] After the lunch break, Barbara's testified that she did see her son hit Rajiv after she was pushed into the SUV.

[93] Her testimony further changed when she testified that the accused never told her that he fought because the males surrounded the car. She testified that she saw at least four or five people surrounding her car. When challenged on this change, she denied giving her earlier evidence. When it was pointed out that that was indeed her evidence, she then testified that the accused did tell her that he fought because the car was surrounded.

Melissa Petlichkov

[94] The accused's wife, Melissa Petlichkov, testified. She is educated and employed in a responsible position. She has no record. She described her husband as six foot two to six foot three.

[95] They had all come from the wedding. No one was drunk. They spoke about ordering pizza while on the train but everyone was happy and joyous when they left the train and entered the tunnel.

[96] As they walked through the tunnel, she and the accused were disagreeing about whether to order pizza for delivery or for pick-up.

[97] She heard a male in the tunnel turn around and make rude comments toward her or Shannon. He used the term "bitches". She believed Saquib made that comment. Melissa said nothing back. Shannon and Saquib were both being aggressive with each other. The accused said nothing in the tunnel. Melissa left the tunnel and did not hear anything else that was said in the tunnel.

[98] Outside the tunnel, Shawn, Shannon and Saquib continued arguing.

[99] Melissa got into Barbara's SUV. So did the accused.

[100] The Mercedes pulled up very aggressively. Melissa testified that she has "snapshot" like memories of the night.

[101] Shannon was at the car and continued to have words with the male in the car. The comments related to the Mercedes and to brown people. Melissa was disgusted by Shannon and testified that she is still upset by Shannon to this day.

[102] Melissa testified that she was terrified. These men had already seen her husband and yet the came to the car in an aggressive manner. She feared they may be gang members intent on doing harm. She did not know how many there were. It felt as though they circled her vehicle.

[103] She testified that, once the Mercedes pulled up, a tall skinny male stood in front of Barbara's vehicle. She believed he came from the passenger seat. He mouthed "watch this" and raised his hand above his head as if beckoning others to come. She did not testify that he made gun-like gestures. She heard someone else say "open the trunk".

[104] The accused exited the SUV. So did his mother. The male who had been in front of the car put his hands on Barbara and pushed her and ran toward Shawn . She testified initially that he and Shawn had an altercation.

[105] She was clear that she never saw the accused nor Shawn hit anyone. She testified that she was not looking out her window.

[106] She next saw the accused when he and Shawn got back in the SUV and said "drive drive". They drove around in case they were being followed.

[107] Although Melissa testified that she did not see what occurred outside the vehicle, and never saw Shawn or the accused hit anyone, she testified that, once they got home, she told Shawn and the accused that they were "idiots" and then went to sleep. She testified that she never spoke to her husband about what happened but felt that he was put in a position that he had no option but to defend his family.

[108] In cross-examination, she maintained that she never asked the accused what happened that night even once he was charged criminally.

[109] She does not speak to Shannon and felt that Shannon and Shawn were out of line with Rajiv and Saquib.

[110] In cross-examination, she testified that she believed the accused only got out of the SUV when his mother was pushed.

[111] With respect to the male placing his hands on Barbara and pushing her, in cross-examination, Melissa admitted that she did actually see the male touch Barbara. She did not know if he pushed her with his hands, elbow, body, or if it was the door that was pushed.

[112] With respect to the accused punching Rajiv, Melissa testified that she was in a position to see the hood of the Mercedes from her car seat but did not see her husband strike Rajiv though she conceded it was possible that it occurred. She was pressed in cross-examination about how she could not have seen that given where she was seated and what was happening. Crown counsel pointed out that the hood was less than ten feet from Melissa's seat, the same distance the Crown and officer in charge were from the witness stand. Melissa was then asked how it would be possible for her not to see a fight if one occurred between the Crown and officer ten feet from Melissa. Melissa replied that she would not able to see if her eyes were closed.

[113] When asked how she could testify that the accused had no option to do what he did if she did not see what he did and never asked him about it, she replied that it was because of the way the Mercedes pulled up. She did not think her husband should have been charged and described it as "a bunch of bullshit."

[114] Those were the witnesses to testify at this trial.

[115] The medical records were filed detailing the injuries the complainant suffered.

[116] I have viewed the three video clips of images from the scene.

[117] It was also conceded that there is a perception of gang violence in Scarborough.

Submissions

[118] The defence submits that the accused was acting in self-defence. The accused said nothing in the tunnel. He was leaving the scene when Rajiv pulled up aggressively. The defence submits that Rajiv and Saquib made threatening comments in the pedestrian tunnel. The defence submitted that Rajiv lied about how he got out of his car. He is seen on the video leaving the car on his own, not dragged out. He submits I should accept that Rajiv made threatening gestures while in front of the car and I should infer the accused saw those gestures when he acted. Rajiv said "don't make me pop it", a further threatening comment.

[119] The defence submits that, while the accused may or may not have acted excessively with Rajiv, he is not charged with assaulting Rajiv. When Saquib punched the accused in the back of his head three times, while the accused was dealing with Rajiv, the accused responded by punching Saquib once, perhaps twice. That was not excessive.

[120] According to the defence, Saquib and Rajiv bit off more than they could chew.

[121] The defence reminds me that onus is on the Crown to prove beyond a reasonable doubt that the accused was not acting in self-defence. The defence submits the accused should be acquitted.

[122] The defence also made comments attacking the Crown's conduct in this case by not playing the portion of the video which shows Rajiv exiting the car on his own or by not calling the police to respond to the defence witnesses' evidence concerning the officer's opinion regarding their guilt.

[123] The Crown submits that, other than Rajiv's evidence about getting out of the car, which was obviously incorrect, Rajiv was internally consistent and consistent with Saquib. The Crown submits that the defence witnesses unravelled during cross-examination and are unworthy of belief. Their bias was evidenced by their testimony that none saw the accused hit anyone, which was incredible according to the Crown. Further, the Crown submits there were numerous important internal and external inconsistencies amongst the defence witnesses which further destroyed their credibility and reliability.

[124] The Crown submits that, even if the events occurred as the accused testified, and the matter began as described by Shawn, the force used against Saquib was excessive. He was not acting in self-defence.

The Law

[125] The issue in this trial is clearly self-defence. The onus is on the Crown to prove guilt beyond a reasonable doubt. The Crown must prove that the accused unlawfully assaulted Saquib and that that assault caused bodily harm. Given the defence raised, the Crown must also prove beyond a reasonable doubt that the accused was not acting in defence of himself or his family.

[126] Given the injuries, there is no issue that bodily harm was occasioned. Identity and all other matters have been proved or conceded, the issue is whether the Crown has proved beyond a reasonable doubt that the accused did not act in self-defence of himself or his family. There are limits to self-defence. An accused can only use force that is necessary in the circumstances. An accused, however, is not expected to measure with nicety or exactitude the amount of force necessary to repel an assault, immediately anticipated or occurring.

[127] When all is distilled, the defence position is that, in light of the threats in the tunnel, or the activities in the parking lot, or some combination, the accused believed his actions were necessary to defend himself or his family. If I have a doubt about that issue, then the Crown has not proved guilt beyond a reasonable doubt and the accused will be acquitted.

Credibility Findings

[128] Let me turn now to the credibility of the witnesses and my findings.

[129] Before doing so, let me address one defence submission attacking the Crown's conduct. I found that attack to be wholly without merit. First, the evidence elicited by the defence witnesses that the officers allegedly told them they knew they were innocent was irrelevant and should not have been called. There was therefore no need for the Crown to respond by calling those witnesses to express their opinions. As for the Crown failing to play part of the video that shows how Rajiv got out of this car, that video was disclosed to the defence and plainly available to it to call in evidence. There was no improper conduct in this case.

[130] Turning to the actual issues in the case.

[131] Since the accused testified and called defence evidence, let me state that, for the reasons that follow, I completely reject the material defence evidence in this case. Not only do I reject it, it leaves me with no doubt as to its truth. The defence witnesses were biased and untruthful as it related to the essential matters. They were also inconsistent, both internally and externally. I found Rajiv and Saquib credible and, for the most part reliable. These are my reasons:

Events in the Pedestrian Tunnel

[132] Turning to the beginning of this incident. I find that the incident began as a result of Rajiv or Saquib commenting sarcastically to the other about the accused and Melissa arguing on the platform. I reject the evidence of the accused and Melissa that they were not arguing as they left the train. I do not accept that, out of the blue, one or the other called either Melissa or Shannon a "bitch" or other similar comment or that they said or implied that they were going to call anyone to the scene. The following are my reasons for this finding.

[133] First, I accept the evidence of the Rajiv and Saquib in this regard. There were consistent and untouched in cross-examination despite the vigorous cross-examination conducted.

[134] Moreover, it makes sense and is more likely that the sarcastic comments they made were in relation to something as opposed to out of nothing.

[135] Further, Shawn, who both counsel described as a difficult witness, even described Melissa and his brother as loud and obnoxious at that time.

[136] Moreover, Saquib testified that he heard Shawn say something like these people are not going to leave the tunnel alive. He heard this even before he turned around. Shawn can be seen on the video being held back by Shannon even before Saquib turned around.

[137] I also accept that Shannon made racist comments as described by Saquib and Rajiv even though Shawn denied such comments.

[138] Not only do Saquib and Rajiv report those comments, Melissa and the accused made reference to those types of comments in their evidence.

[139] In short, I accept the evidence of Saquib and Rajiv as to what occurred in the tunnel. I do not accept that they made any threatening comments in the tunnel.

The Events in the Parking Lot

[140] Turning to the events outside the tunnel, the video depicts the various parties exiting the tunnel. Shannon continues arguing with Saquib while Shawn is present. The accused is standing by watching the situation. Rajiv goes to his car which is parked right next to the entrance. Shannon and Shawn then go to the SUV and Saquib is seen having words with them as they leave. Rajiv drives his car right next to Barbara's SUV and parks on her left. He does not block her in. Saquib walks to the vehicles and, within one minute, is seen tossed in the air, landing on the ground. The accused then pushed and punches Saquib in the face as Saquib is on the ground. Shawn is next to the accused at the time.

[141] According to the video, 37 seconds passed from the time Rajiv got out of his car to the time when Saquib is thrown. During that time, all the fighting occurred.

[142] Whatever happened therefore happened extremely quickly. Did Rajiv and or Saquib talk about popping the trunk? Did Rajiv make hand gestures threatening as if he had a gun or mouth the words "watch it"? Was the accused acting in self defence when he hit Saquib?

[143] Turning to these issues: Both Saquib and Rajiv denied those allegations. The various defence witnesses gave differing versions alleging Rajiv and Saquib did those things.

[144] For the reasons that follow, I find that Rajiv drove up to the SUV in a misguided attempt to flash his Mercedes in response to Shannon's comments which he was offended by. He did not make threatening comments or gestures. I reject that evidence completely.

[145] Rajiv testified that he pulled up and had words about his car through his passenger window. He is seen on video pulling up and there is some delay before he got out. He testified that that was when he had words with Shannon. Saquib testified that he heard Shannon utter racist comments at that time. The accused testified that he heard "frivolous" things spoken between Shannon and Rajiv at that time and that Rajiv was boasting about his car. Melissa heard comments about the car and brown people. It is clear from all this evidence that, consistent with Rajiv's evidence that drove up there to try to show that he had an expensive car.

[146] I found Rajiv and Saquib credible and reliable witnesses with the obvious exception of how Rajiv got out of his car before he was beaten into near unconsciousness.

[147] With respect to the events that occurred after Rajiv got out of the car, Mr. Scully submits that Rajiv made threatening comments and hand gestures in front of the SUV as inconsistently described by Melissa and Barbara and that I should infer that the accused was aware of those comments and gestures when he acted.

[148] First, I point out that the accused never testified that he saw or heard those gestures or comment.

[149] Beyond that, I reject that they occurred. My reasons for this finding are as follows:

[150] First, I reject the incriminating evidence given by the defence witnesses as incredible. I would not rely on their evidence unless it was corroborated substantially by credible evidence. My reasons are as follows:

[151] I find the evidence of Barbara, Shawn and Melissa that they never saw the accused hit Rajiv or Saquib to be convenient and plainly untrue. The accused admits hitting the two and it was done in plain view at a time when all of their attention would have been focused on what was occurring. The entire event took less than a minute. They were all aware of the situation outside. They were all concerned. They were all in a position to see what was occurring. Their views were not obstructed. Yet they all claim they saw nothing, that they happened to be looking away during that time. That is incredible. That alone was enough to cause me to completely reject their evidence.

[152] Further, each was inconsistent in their material evidence, both internally and externally. Let me address some specifics.

[153] I will begin with Shawn. I found Shawn to be a combative, biased and argumentative witness determined to try to help his brother.

[154] He would not answer straightforwardly on matters small and large. There were numerous instances where he was confronted with giving contradictory or inconsistent evidence and he would deny giving the very evidence he had testified to moments earlier.

[155] He contradicted himself on whether he heard comments about brown people. He initially denied hearing such comments. Then he testified that he did hear them. Then he testified that he never heard them other than from the Crown in Court. For reasons already given earlier, I find those statements were made contrary to his evidence.

[156] He contradicted himself with respect to whether he saw the accused hit Saquib. He testified initially that he saw his brother punch Saquib once to keep him down. He then testified that he did not see that but was told so by the accused. He was shown the video where he was next to his brother but maintained that he still did not see his brother strike Saquib.

[157] He gave contradictory evidence with respect to whether he even took a photograph of the licence plate. That is only a minor point.

[158] Shawn is seen on the video being held back by Shannon while in the tunnel. That corroborates Saquib and Rajiv's evidence about Shawn's demeanour in the tunnel and undermines Shawn's. That may be why the accused testified that he thought his brother should have been charged.

[159] To sum up, Shawn' lost all credibility both as a result of his evidence that he never saw his brother strike anyone as well as by the evidence referred to above. I reject his evidence and, on its own or in conjunction with the rest of the evidence, does not raise a doubt in my mind.

[160] With respect to Barbara Petlichkov's evidence, her credibility at this trial was also shattered by her evidence that she never saw her son hit anyone. Beyond that, she then contradicted herself on that very point.

[161] Prior to lunch, she testified that she did not see the accused hit anyone. After lunch, however, she testified that she did see her son hit Rajiv after he pushed by her.

[162] She eventually maintained that she never saw the accused hit Rajiv or Saquib. That evidence was incredible given what was going on right outside her window. It demonstrated her bias.

[163] Further, she testified that she had no idea why the fight occurred. She then testified that the accused told her that he fought because men surrounded her car and he was protecting his family. She later testified that the accused never told her that men surrounded her car, she saw that herself.

[164] Barbara Petlichkov's evidence that Rajiv made gun related gestures with his hands while in front of her car was not only denied by Rajiv, she was the only one to give that evidence. While Melissa gave evidence of hand gestures, they were entirely different gestures. If Rajiv had made those gestures, surely Melissa would have seen that given where she was sitting and where she was looking. Rajiv was only in front of the vehicles for two or three seconds according to the video. If he made those gestures, she would have seen those same gestures.

[165] Her evidence that she went to the police station to express her fear of retaliation after her sons were arrested does not add anything to whether the accused believed he was acting in self-defence in this case.

[166] With respect to Melissa's evidence, as I have already indicated, her evidence that she did not see her husband hit anyone was incredible and demonstrates her bias. She was in the front passenger seat of Barbara's vehicle, not ten feet from the hood of the Mercedes. She was able to see the hood of the Mercedes from her seat. When challenged on her evidence that she did not see her husband hit anyone, her evidence became more incredible as seen in the exchange with the Crown where Melissa testified that she might not be able to see a fight if her eyes were closed.

[167] Further, I found incredible that she never discussed what happened with her husband, not even once he was charged. However, assuming that did happen, meaning, that she never saw what happened outside the SUV and never discussed it with her husband, how then could she testify that the accused was forced to act as he did to protect his family. When that logical conundrum was put to her, her response that this was all "bullshit" did not resolve the matter. This line of questioning demonstrated the magnitude of her bias.

[168] Turning to the evidence of the accused.

[169] His evidence about the Mercedes blocking his mother's vehicle was incorrect. His subsequent attempt to explain that he meant the SUV was blocked by a person was inconsistent with his evidence in chief about what was apparently blocking the car.

[170] Thirty-seven seconds passed between the time Rajiv got out of his car and Saquib was thrown to the ground. That was very fast. Rajiv was in front of the cars for a few seconds. The accused never testified that he saw the hand gestures or comments about popping the trunk. Had that occurred, he would have seen or heard it.

[171] Further, and importantly, the accused contradicted himself about the nature of Saquib's punches. He described Saquib as grabbing at him with girly rabbit punches. He then testified that he Saquib his him hard. When confronted with that contradiction, he denied his earlier evidence.

[172] His evidence that his "fuse was lit" accurately describes his motivation for his action that night. The accused was not intimidated or fearful of Rajiv or Saquib in any way, either for himself or his family.

[173] His evidence that he was concerned that Rajiv and Saquib might call people to attend is rejected nor does it raise a reasonable doubt in my mind. He was not intimidated by these people who he referred to as punks. He even gave them his name and told them to Google him. He did not think the use of force was necessary at all.

[174] While he was not involved initially, when Rajiv drove up, he had had enough. As he testified, his fuse was lit and it was "go time". In fact, his arm was cocked ready to hit even before the door was touched. He had another one under his belt. Twenty seconds, both fights were over. Two men were injured, down on the ground with broken noses. The accused was unscathed. This was an aggressive act done because his fuse was lit, not in any form of defence. While Saquib and Shawn did not let Shannon's comments go unresponded to, they were not threatening or attacking anyone. The accused did not act in self-defence nor did he believe he was acting in self-defence. OF that there is no doubt.

[175] I would add that, even if self-defence existed in this case, the force used against Saquib was plainly excessive. The accused was punching Rajiv repeatedly even though Rajiv had not thrown a punch. According to the accused, Saquib hit him with flailing girly rabbit punches. His response of hitting Saquib once he was thrown from the scene and down on the ground was excessive. Saquib's punches and Saquib was no threat to the accused. Saquib had been flung to the ground like a rag doll. He was no threat whatsoever when the accused then went over and punched him hard in the face and pushed him down. The fact that this occurred in Scarborough with its reputation as described was not a factor in the accused's mind. The accused's fuse was lit and it was "go time".

[176] Given those findings, given my acceptance of the credibility and reliability of Saquib and Rajiv, given the video, I am persuaded beyond a reasonable doubt that the accused committed the offence of assault causing bodily harm and he will be found guilty as charged.

Released: December 4, 2012

Signed: "Justice Borenstein"