Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — William Pav and Dylan Violo

Before: Justice P. Harris

Judgment delivered on: August 6, 2014

Counsel:

• N. Bailey, for the Crown
• S. Smith, for the Defendant William Pav
• M. Sciarra, for the Defendant Dylan Violo

Judgment

P. Harris, J.:

Introduction

[1] William Pav and Dylan Violo were charged with having committed an Assault with a Weapon and Assault Causing Bodily Harm on Joseph Kau in relation to an incident occurring in the early morning hours of January 13, 2013 on College Street in Toronto. The Crown proceeded by summary conviction and the defendants pleaded not guilty. At the conclusion of the evidence for the prosecution, a directed verdict was granted in respect to the charge of Assault with a Weapon against Dylan Violo, and consequently, at this stage of the trial proceedings, the only charge Mr. Violo is facing is Assault Causing Bodily Harm.

The Background

[2] At about 12:30 a.m. on Sunday, January 13, 2013 a dispute developed outside of a licensed establishment on College Street in Toronto known as Pour Girl. A group of mainly South Asian youth became involved in a dispute with two individuals, Mr. Joseph Kau and Mr. Ayuol Kuosl. Following "harsh words," the dispute became physical and while it is not clear how the altercation started, the ensuing clash featured the two African-Canadian individuals, Mr. Kau and Mr. Kuosl under attack from the larger, predominantly South Asian group. Both Mr. Kau and Mr. Kuosl sustained serious stab-wound injuries and were transported to hospital. As a result of an ensuing investigation, a white male, Mr. Dylan Violo and a South Asian male, Mr. William Pav, were charged with the above-noted assault-related offences in respect to injuries sustained by the two African-Canadian individuals. The issue in this case is primarily one of identity. The trial commenced on Monday July 14th, 2014 and as a consequence of Mr. Kuosl not being in attendance, the charges in which he was noted as the complainant were withdrawn by the Crown.

The Evidence

(a) Adam Holmes

[3] Mr. Holmes testified that he was proceeding west on College Street at which time he encountered an incident involving four or five, possibly more Asian males engaged in a fight with two other males he believed were black. He gave evidence that what transpired was a fight involving the larger group against a smaller group. He stated that the larger group seemed to have the advantage. "The two were trying to get away but they were swarmed by the larger group and they had to fight." He stated that harsh words were exchanged. Mr. Holmes elaborated on the word 'swarming' he had used and indicated it meant that the blacks were surrounded. He testified he didn't see anyone with a long ponytail (the description provided for Mr. Violo).

(b) Joseph Kau

[4] Joseph Kau testified he was 42 years of age, was born in the Sudan and came to Canada in 1997. He stated that he worked the night shift on January 11, 2013 and slept until about 2:30 to 3:00 p.m. on January 12. He said he then spent the day with a colleague from his community, Ayuol Kuosl, and they left his apartment on Henry Street just south of College Street about midnight in order to meet his cousin. He gave evidence he had one beer at about 9:00 p.m. He testified they walked north on Henry Street to College Street to find a taxi at which time the incident occurred. He stated that as they approached College Street on the right (east) side of the street, he noticed a large group of Asian people and one white male in front of a bar on the west side of Henry Street at College Street. As they arrived at College Street he said a loud domestic dispute erupted between a male and female on the west side of Henry Street. Mr. Kau said he and his friend commented, "It's okay buddy, let it go." At this time the female involved in the dispute turned her attention to Mr. Kau and his friend and said "Nigger, Nigger….I hate you, Nigger." He stated that she then ran across Henry Street to the east side and threw a punch at Mr. Kau, who stepped back. He said that others then started shouting "Nigger, you want to get it?"

[5] He testified that a large group then "rush up" to Mr. Kau and he pushed all of them back and then they rushed him again, wanting to fight. He stated that by this time his friend had fled and he was all alone going back into the middle of the road (College Street). Mr. Kau gave evidence as to how they were punching him and he was defending himself, "I fight back." He said, "I had been circled around. I got punched on the back, left side by a short guy about five feet tall. There was a white guy with long hair. He held my arms to the back, then I got punched in the face. I fell down. My hoodie fell over my face. The white person kicked me in the face…my forehead, face was swollen. They were all beating me down, stepping on my head. People were shouting, 'Leave him alone." He said, "I stand up. I'm dizzy. The police came quick."

[6] Mr. Kau gave evidence that he then saw the white guy and the short guy who punched him, with a female. "They walked back to Henry Street." He testified that at this point his "back is hurt" and he is "suffering mentally." He stated he spoke to the police and pointed out "two guys who beat me" walking in a group. He said he saw them walking south on Henry Street [from College Street] on the left side. He gave evidence that he told the police, "This is the white guy who kicked me in the face and the Asian guy who punched me in the back." He stated that the police then assaulted him and put him in the police cruiser and released the two males. He said he was sent home, noticed he was bleeding heavily in the area of his back and then realized he had been stabbed.

[7] Upon returning to the scene and showing the police his injury, police proceeded to arrest the same two males they had investigated and released. Mr. Kau stated these were the "guys that had kicked me in the face and punched me in the back." He stated he was then taken to St. Michaels Hospital by ambulance and received two sutures to close the stab wound to his back, left side. (See photo exhibits 2(a) to 2(c) depicting his injuries). In court he exposed his back and it was evident that there was a permanent scar of about 1.5 inches in length on his mid-back area, left side.

[8] In cross-examination he described the Asian woman who started the altercation as wearing a white skirt and shirt or dress. He agreed, "She ran over and threw a punch." He agreed he was angry when police let her go even though, "She started the fight." Mr. Kau gave evidence that 14 males attacked him but he agreed that in his statement to police on video he said there were 10 attackers. He was asked, "Did you feel yourself get punched in the back?" He answered, "Yes." He was asked, "With what hand? He answered "His right hand." He was asked if he saw the hand of the short Asian guy who hit him in the back and he answered, "Yeah. I am watching. I look. I see him swinging, the same guy. I pointed out to police." Mr. Kau agreed he did not see a knife. He stated (referring to the short Asian male), "After walking away his sleeves were rolled up." He described how he was knocked down with his face on the ground. "My hoodie fell over my face. I can't see. I removed it and I was kicked in the face." He agreed his eye was swollen and totally closed. Mr. Kau was asked if he pointed out the wrong woman to police as the one who started the fight and he denied this.

[9] It is common ground that Mr. Kau identified the woman who started the fight as Ms. Sorn, as she walked south on Henry Street with Mr. Pav and Mr. Violo and others. She was wearing dark clothing when investigated by police, unlike the female instigator he previously described as wearing white clothing ─ in his statement to police. It is further agreed by counsel that Mr. Kau mistakenly identified the independent witness, Adam Holmes, as the white male who participated in the attack ─ when he saw him at court prior to the commencement of the trial. Mr. Kau further gave evidence in cross-examination that he believed the person who punched him in the back ─ stabbed him and that, "this happen before the white guy came in." He agreed that when the white guy grabbed him he first thought he was trying to break up the fight, but was really "holding him while others hit him." He agreed that the police notes taken at the scene did not mention that he was kicked in the face by the "white guy." He was asked, "Did you tell the police officer you were kicked in the face and he wrote it in the notes wrong?" Mr. Kau answered, "Yes".

(c) Sytha Sorn

[10] Ms. Sorn testified that she was at the Pour Girl bar on College Street on January 12, 2013 and she met Mr. Pav and Mr. Violo there are about 12:00 to 12:30 a.m., January 13th. She stated she was in a relationship with Mr. Pav and that he and Mr. Violo had come from their work as chefs at the Renaissance Hotel at the end of their shift. A short while after they arrived, she and Mr. Violo went outside the bar to have a cigarette and chat. She gave evidence there was a couple arguing with each other at the corner where the Pour Girl was located. "Two black males were shouting from the other side of the street, [Henry Street] mockingly." She stated that the girl in the domestic dispute got angry and walked towards the two males guys and they walked towards her. She said she approached because she was worried there was going to be a fight. "There was shouting and pointing and hands flying." She testified there were 10 to 15 people in front of the Pour Girl. Ms. Sorn testified that she got in between the groups and told the gentleman to leave. She then, "looked up and got hit in the face." She said, "I touched the guy to leave and told the couple to leave. I got hit in the face. Both eyes were swollen." She was asked if she saw anything more and she answered "No."

[11] Ms. Sorn stated, "In the fight there were a whole bunch of Asian people and two black guys". She said that she went back to the bar to look for Mr. Pav. At that time, she said, "he was not outside the bar and was not inside." She gave evidence she was leaving, walking south from College Street with Mr. Pav, Mr. Violo and another couple and after police arrived, "We were yelling at each other, we, with one of the black males" [Mr. Kau]. She stated: "I don't think he was the one who hit me in the face." She admitted that she told the police she thought it was that black male [Mr. Kau] who punched her in the face. She stated that police "let us go, but later they pulled up again and arrested Violo and Pav." (Exhibits 8(a) to (f) depict the injuries to Ms. Sorn and the blood-soaked sleeve of her jacket, left arm.) (Mr. Kau was later identified as the source of this blood by The Centre of Forensic Sciences - D.N.A. Analysis to an extremely high degree of probability). In cross-examination she testified she was not wearing a white dress or white top that night. As well she stated did not know Mr. Pav to carry a knife. Ms. Sorn gave evidence she did not know the blood on her jacket was from Mr. Kau but she said, "When she came to, she ran around the bunch on College Street [the group in the altercation] while looking for William [Pav], then someone fell on me."

(d) P.C. Kevin Antoine

[12] P.C. Antoine testified that he and P.C. Dorrington were dispatched to 171 College Street in the early hours of January 13th to investigate a stabbing. On arrival it was apparent that there was "no fight going on" and while questioning onlookers, a black male approached, upset, saying he had been beaten up. [This was Joseph Kau]. He said, "They called me nigger and look what they did to me" and directed the officer's attention to his left eye which was swollen. The officer gave evidence that the black male pointed out a group heading south from College Street and said, "There they are. You have to arrest them." As they approached the group, P.C. Antoine said that the black male "runs up" and says (pointing to an Asian male), "He punched me in the face and back" and then points to a white male with a pony tail and says, "He held me while I was being punched." The officer stated that the Asian male was identified as William Pav and the white male with the ponytail identified himself as Dylan Violo. He said that the black male became very agitated and upset "to the point where he actually tries to engage in a fight with them" and had to be placed in the police vehicle. Because he thought they were investigating a different incident (a stabbing), P.C. Antoine released the group only to later find that the black male [Mr. Kau] had discovered that that he was one of the individuals who had actually been stabbed ─ at which time he and P.C. Dorrington went looking for the group and arrested Mr. Pav and Mr. Violo on assault charges. At the police division he seized the T-shirt, jacket and other clothing from Mr. Violo for forensic testing.

(e) P.C. Francis Dorrington

[13] P.C. Dorrington gave evidence that he and P.C. Antoine drove to College and Henry Street to investigate a stabbing. After driving south on Henry Street he observed a black male pointing to a group of people saying, "They beat me." He stated the male had swelling to his left eye and abrasions to his face. The officer testified he had to put the black male (Joseph Kau) in the police car to get him to calm down. "He would not be quiet." P.C. Dorrington gave evidence that upon realizing that Mr. Kau had been stabbed they went looking for the group and arrested the males pointed out by him, Mr. Pav and Mr. Violo. He stated he noted blood on the right cuff of Mr. Pav's jacket, abrasions and redness to his right knuckles, and blood under his fingernail. Later that morning, he turned over Mr. Pav's clothing to police forensic identification services.

(f) D.C. Paul Ward

[14] Detective Ward, the officer in charge of the case, stated he interviewed Ms. Sorn in the early hours of January 13th and noted she had a scrape on her forehead and swelling over her eye. He noted there was a quantity of blood on the arm of her jacket and as a result, he arranged to have forensic services seize the coat for testing. D.C. Ward gave evidence that he recorded a statement on DVD from Dylan Violo at 7:36 a.m. January 13th, in the company of D.C. Hyo Joon Ahn. Further, he testified that on the first day of trial Joseph Kau identified the Crown witness Adam Holmes, a person who was clearly an innocent bystander, as the white male who had assaulted him on January 13.

The Statement of Dylan Violo

Interview of Dylan Violo Jan. 13th at 7:36 a.m. by Dets. Ward and Ahn

[15] Page 2, 3 Transcript, Exhibit 11(b)

Violo: there was a fight on the street, all I tried to do was stopped everyone from fighting. There was - there's two guys that were egging on a group of people, I tried to get between them, it – I - I'm small, I couldn't stop anybody and, the fight happened and now I'm being charged with assaulting with a weapon, I didn't even hit anybody, I was just trying to stop, holding people back, and then when - like there was such a big fight on the street I finally, you know, people were starting to get like off of each I grabbed the one guy who was across the street from us when cops were there and I pulled them out and like, you know a couple of guys tried to swing at them [him] and I like – grabbed - I was behind them and I was just like you know get away, get away like why don't we just stop this.

Page 3, 4, 5 Transcript, Exhibit 11(b)

… I know one, the one that got punched in the area is his - is his [William Pav's] fiancée…Q: Do you know how she got punched in the eye? A: … the guy punched her in the eye. Q: … tell me about that. A: I was trying to hold them separate and I was holding one guy and I just happen to turn around cause someone screamed and I just saw him clock her right in the face, that was the first - that was the first hit that I saw. Q: okay now the guy that you saw hit here, did you see him again? After you left that area? A: Um yeah when the cops came he was on - he came - the police pulled up – I - the next time I saw him was when the cops were there, I'm not sure where it came from. Q: Is the guy saying anything to you guys? A: he was yelling something and pointing at me and possibly William because he was standing right next to me. Q: And had you done anything to that guy is he one of the guys you held onto? A: He was uh no I was holding uh' - against other people cause he was standing there and other people were doing stuff, and he was the one I'm pretty sure I pulled up after like ev' – the fight was in the street, I pulled him up and then was trying to - so yes, sorry, trying to keep them away from everyone else is possible.

Page 5, 6 Transcript, Exhibit 11(b)

Q: I don't understand were you… A: There was a big fight in the street, he was on the ground and there was like four people on, probably, like wrapped up within, he's holding onto them, finally it's - like there's cars, taxis getting honking... and finally it seemed like they were kind of breaking up and I was able to pull him up and then kind of try to get in between him and everyone else. And that's when I was like - please just go - like this is not good. Q: So then you meet him with the police after you leave? A: I'm pretty sure that was the next time I saw him I think he was following us, while he was on the phone calling the cops.

Page 12, 13, 14, 15, 16, 17 Transcript, Exhibit 11(b)

(Page 12) Q: Okay so you got two coloured guys and some Cambodian, Filipinos and the coloured guys are um across the street…? A: …the two guys were there and then the group was right here, right there ─ they were on sidewalks on the opposite side. Q: So there're two guys there, and now where's the rest of the group? A: Like, here on this side, on the sidewalk. (Page 14) Q: And how many are we talking? A: Like five or six. Q: So it's five or six, right? And the n ─ word is, where are you? You with the five or six? A: Yeah. Q: … So then what happened then? A: A couple of these people try to um go at the two guys and I'm holding, there's like ─ …. (Page 15) there's a couple of us that are just like pushing them back just like chill, hey like don't, like just ignore them, leave them alone just ─ (Page 16) Q: All right, so you got from these five or six you got a couple go over to these two then tell me what happens then…A: Um, I was again holding like the same one or two guys back or trying to at least but they ─ I was obviously not the only one trying to hold them back and that's when … I saw uh one of the guys punched a girl in the face. Q: It was one of these two? [indicating the black males on the east side of the street]. (Page 17) A: One of these two, yeah. (Page 18) Q: What happened then? (page 18) A: Most of the people that were, you know, just standing on edge saw that and didn't like it so they went at him. Q: How many? A: I don't know probably four. (Page 19) Q: So how many people attacked this one? A: Like three or four. Q And that's the same guy that was with the police? A: I think so, yeah.

Page 22, 23 Transcript, Exhibit 11(b)

Q: How does it break up? A: I had been trying to stop cars cause they're, they were, they were right in the middle of the street, finally I pulled like maybe one, one or two off and then ─ Q: One or two uh of who what people, not the two black guys, you ─ A: No. Q: …pulled people off the black guys? A: Yes and then I grabbed the wo' -, the one black guy and I pulled him up and that's ─ I, I, I can imagine ─ I'm, I'm, I'm imagining that's why he saw me pointing me out cause he was probably, I was probably one of the only people that were there, that he saw and when the cops showed up and I pulled, I pulled him off, I didn't, I didn't hit him, I didn't hold him for anyone to hit him, I just pulled him up, I got him away from every guy, tried to separate him from everyone else and then just tried to end it, that's all…

Photographic Evidence

[16] Exhibit 14, tab 1 depicts William Pav's right hand showing an abrasion and swelling to his knuckles and dried blood on his fingernail. Tab 2 depicts five areas of bloodstaining on the winter jacket of Dylan Violo and one area of bloodstaining on the beige T-shirt of Dylan Violo as well as areas of bloodstaining on the right front and back left cuffs of the grey and yellow sweater worn by William Pav on January 13, 2013. Exhibits 2(a) to 2(c) show the injuries to Mr Kau's face and back (left eye appears to be swollen shut and a large bandage covers the knife wound to his back). Exhibits 8(a) to (f) depict the injuries to Ms. Sorn including the abrasion to her forehead and the swelling under her left eye. Additionally there are photos of a substantial bloodstain on the front and rear left sleeve of Ms. Sorn's green jacket.

DNA Evidence

[17] A report from the Centre of Forensic Sciences was prepared by Alison Morris, M.S.F.S., Forensic Scientist, and was admitted in evidence on consent and marked Exhibit 13. The bloodstains on the following surfaces matched the DNA profile of Joseph Kau to an extremely high degree of probability:

William Pav

1. Bloodstain on outside front right cuff of grey and yellow sweater
2. Bloodstain on outside back left cuff of grey and yellow sweater
3. Blood sample from swab of right thumbnail
4. Blood sample from swab of right knuckles

Dylan Violo

1. Bloodstain on outside left sleeve near cuff of black, red and white jacket
2. Bloodstain on outside right sleeve near cuff of black, red and white jacket
3. Bloodstain on upper inside of placket covering the zipper of black, red and white jacket
4. Bloodstain on the outside upper front chest area of the beige T-shirt

Sytha Sorn

1. Bloodstain on the front left panel of jacket near hem
2. Bloodstain on front of left sleeve at elbow

The Crown Position

[18] The Crown relies on the totality of the evidences and submits that the only reasonable conclusion on all the direct and circumstantial evidence is that the defendants were involved ─ either as principals or parties ─ in the assault knowing that a weapon was being used and that bodily harm would likely ensue from such a violent attack. The position is that the charges have been proven beyond a reasonable doubt.

The Defence Position

[19] The defendants submit that as a result of the insurmountable frailties of the identification evidence, the Crown has not proven that Mr. Pav or Mr. Violo were either principals or parties to the above offences beyond a reasonable doubt.

The Law

[20] It is important to recognize the legal principles associated with the assessment of eyewitness evidence. It is because of the possibility of honest mistake that eyewitness evidence has been identified as the type of evidence that is most likely to lead to a wrongful conviction. In R. v. Osborne, 2012 ONSC 4287 the court stated that the law has developed to require an examination of the entire identification process in assessing the weight to be given to an identification of an accused person by an eyewitness. In Osborne, at para. 37, the Court suggested some considerations the court should take into account:

In addition to the principles set out above governing the assessment of the pre-trial identification procedure, a trier of fact must consider the circumstances of the encounter that may impact on the ability of the witness to observe and describe the suspect, including the length of time, the lighting, the stressful circumstances of the incident and the passage of time between the incident and the identification. A failure of a witness to observe a distinctive feature possessed by the accused is a further factor to be weighed by the trier of fact on the issue of identification.

[21] In R. v. Miaponoose, 110 C.C.C. (3d) 445 (Ont. C.A.) the court stated at page 450-1:

The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on 'Pretrial Eyewitness Identification Procedures.' The Commission concludes in its study that 'the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable' (at p. 7).

[22] There is a long history of authority that recognizes that the court must tread cautiously with respect to eyewitness identification evidence, and that continues with respect to scientific evidence, including DNA evidence. I do bear that in mind in reaching my decision, that there is a high burden on the Crown to prove the elements of the offences beyond a reasonable doubt, and the court must scrutinize any evidence with respect to identification very carefully.

[23] The frailties raised with respect to the eyewitness identification evidence of Joseph Kau must be viewed in the context of the totality of the evidence called in this case. In that regard it is noteworthy that the Crown has called strong and cogent confirmatory physical evidence at this trial.

[24] Aside from identity, the second issue for determination is credibility, which in this case is interconnected with the identification issues. Consequently, I have applied the recommended principles in R. v. W.(D.), 63 C.C.C. (3d) 397 (S.C.C.) ― which place the burden of proof on the Crown when resolving any issues of credibility that relate to the essential elements of the offences.

[25] Additionally, where a case is based on circumstantial evidence, it is necessary for the Court to be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. The rule in Hodge's case provides a useful formula for applying reasonable doubt where the issue is identification. In R. v. Cooper, [1978] 1 S.C.R. 860 the Supreme Court of Canada held that the trier of fact must be satisfied not only that the circumstances are consistent with the accused having committed the act, but it must also be satisfied that the facts are inconsistent with any other rational conclusion.

Analysis

Adam Holmes

[26] In my view Mr. Holmes was an honest, independent witness who had a full opportunity to objectively assess the event he watched unfold. He described the incident as involving four or five, possibly more, Asian males engaged in a fight with two other males he believed were black. He described it as a fight involving the larger group against a smaller group, with the larger group having the advantage. "The two were trying to get away but they were swarmed by the larger group and they had to fight." Mr. Holmes' evidence was consistent, logical, and thoughtful and I accept his characterization of the incident as a "swarming".

Joseph Kau

[27] Essentially, Mr. Kau impressed as a strong, self-confident, somewhat emotional man who was outraged and still upset about his treatment as the victim of a serious assault that caused trauma to his head and back requiring hospitalization. As with all vive voce evidence, I can choose to accept all, part or none of a particular witnesses' testimony. Notwithstanding the very real concerns expressed by counsel for the defence about Mr. Kau evidence, there are aspects of his evidence as to the identity of his assailants that are so completely corroborated by undisputed and conclusive DNA evidence that they are entitled to considerable weight, as will be explained below. Despite concerns raised, major mistakes, inconsistencies and an extraordinary level of emotional upset in the aftermath of a highly chaotic and traumatizing event, there are features of Mr. Kau's I find creditworthy. I have concluded that his assertions when he first spoke to police and pointed out the individuals involved are credible based on a review of all the evidence. He told P.C. Antoine that (pointing to an Asian male [Mr. Pav]), "He punched me in the face and back" and then pointed to a white male with a pony tail [Mr. Violo] and said, "He held me while I was being punched." In this case flawed identification evidence is considerably bolstered by strong physical evidence.

Sytha Sorn

[28] Sytha Sorn was somewhat credible in the description of how she was injured. I am prepared to accept as plausible that she "looked up and got hit in the face." The idea that she didn't see what happened after that or who was involved aside from: "In the fight there were a whole bunch of Asian people and two black guys" and cannot explain how the very large deposit of Mr. Kau's blood was somehow transferred to her sleeve, aside from saying that she "came to, she ran around the bunch on College Street [the group in the altercation] while looking for William [Pav], then someone fell on me" – is quite unbelievable. Equally incredible was her assertion that, "the girl in the domestic dispute got angry and walked towards the two males guys and they walked towards her." By all accounts the Asian group moved on Mr. Kau and his friend who were on the opposite corner of Henry Street (see Exhibit 11(c) drawn by Mr. Violo). Finally, her bias was evident her exchange with the police on Henry Street that had the effect of interfering with and complicating the investigation by telling the police she thought it was that black male [Mr. Kau] who punched her in the face. She testified in court that: "I don't think he was the one who hit me in the face." On the totality of her evidence there was not very much of her testimony I could accept being accurate and reliable.

Dylan Violo

[29] Mr. Violo provided a statement to police and while it could never have the same weight of vive voce evidence, not having being subjected to cross-examination, it nevertheless is still entitled to some consideration. In light of all the evidence, I cannot accept Mr. Violo's statement on key features of this incident. First, this was a swarming and any attempt to mischaracterize this event should be rejected. He said: "there was a fight on the street, all I tried to do was stopped everyone from fighting. There was – there's two guys that were egging on a group of people…" I find there was no provocation on the part of Mr. Kau and his friend. Additionally, Mr. Violo suggested that he intervened in the role of a peacemaker to stop the "fighting:" "people were starting to get like off of each I grabbed the one guy who was across the street from us when cops were there [Mr. Kau] and I pulled them [him] out and like, you know a couple of guys tried to swing at them [him] and I like – grabbed…" This is nonsensical. To have intervened and "pulled" Mr. Kau out of the swarming supposedly to assist him while others were still attacking, would have seemed to any objective observer as a dangerous form of complicity with the group he identified with, the larger group of South Asian males still attacking. The fact is – the statement of Dylan Violo puts him in close proximity to Joseph Kau at the most critical times.

[30] I could understand a humanitarian gesture to help the victim up, but to intervene while the assault was still in progress, supposedly on the side of Mr. Kau by 'grabbing him' ― rather than acting in such a way as to hold the larger group back to protect Mr. Kau, simply makes no sense. This is reminiscent of Mr. Kau's testimony to the effect that: "There was a white guy with long hair. He held my arms to the back, then I got punched in the face. I fell down." Finally, his explanation of what happened and why Mr. Kau identified him as a protagonist seemed like scriptwriting as he went along: "I'm, I'm imagining that's why he saw me pointing me out cause he was probably, I was probably one of the only people that were there, that he saw and when the cops showed up and I pulled, I pulled him off, I didn't, I didn't hit him, I didn't hold him for anyone to hit him, I just pulled him up, I got him away from every guy, tried to separate him from everyone else." First - when the police arrived there was nothing taking place. Second, it is impossible to imagine that Mr. Kau, even in his injured state, would confuse such a supposedly helpful person with one of his assailants. As well, one is left to wonder who or why Mr. Violo needed pull the victim 'off' when he was down and being beaten on the road.

[31] Third, there is no doubt on all of the evidence that Mr. Kau's DNA, in the form of blood spatters, was on his clothing, bearing in mind the references to a bloodstain on the upper inside of the placket (collar area) covering the zipper of the black, red and white jacket and the bloodstain on the upper front chest area of the beige T-shirt. A reasonable inference to be drawn these facts is that he was in close contact with Mr. Kau when blows were being struck and blood was becoming airborne. I realize that no expert evidence has been adduced on this subject, but logic and common sense would suggest that one would hardly acquire blood on the inside of a jacket collar and on a T-shirt inside a winter jacket while only helping a victim of an assault back on his feet. The picture of a peacemaker Mr. Violo attempts to portray in his statement is simply not consistent with logic and human experience. His actual state of mind as I perceive it, after he saw his friend's partner, Ms. Sorn, sustain a blow to the face was one of anger. In my view, Mr. Violo identified with the larger Asian group and his reference to grabbing "the one guy who was across the street from us when cops were there [Mr. Kau]" while "a couple of guys tried to swing at them [him] and I like – grabbed" is at least a partial admission to holding Mr. Kau while others swung at him as Mr. Kau has claimed. The balance of his statement was in my view, an attempt to minimize his involvement in the attack – on the side of the swarming larger group of South Asians. In any event, there is no defence in law of being a "peacemaker" that would justify the 'grabbing' of another person without consent. Any contact with Mr. Kau without his consent was tantamount to an assault.

Corroboration of the Identification Evidence

[32] The frailties raised with respect to the eyewitness identification evidence of Joseph Kau must be viewed in the context of the totality of the evidence called in this case. In that regard the Crown has called strong confirmatory circumstantial evidence at this trial in the form of DNA evidence that was not disputed by either defendant and will be accepted as cogent evidence of Joseph Kau's blood having been found on the clothing of both defendants and the right hand knuckles and right thumbnail of William Pav. While it must be made clear that the identification evidence of Joseph Kau, by itself, would call for some considerable skepticism given his injuries, the chaotic event on College Street, the fact his left eye was swollen shut, his inability to control his emotions in his communications with police and the group on Henry Street after the incident, cross-racial identification issues, the miss-identifications of Ms. Sorn as the instigator and Mr. Holmes as the white assailant with the ponytail – it must be said that he did have a very good opportunity for observations of his assailants leaving the scene and essentially, he never lost sight of Mr. Violo and Mr. Pav and pointed them out and described their roles in the event with some assertiveness, confidence and some specificity. Most importantly, in spite of the known frailties of his evidence, the DNA evidence could be viewed as bolstering the reliability of Joseph Kau's evidence to a fairly significant degree.

[33] The forensic evidence is formidable. The DNA evidence emanates from one source alone, Joseph Kau. The abrasions and blood on the knuckles and thumbnail of Mr. Pav, as well as the blood on his striped sweater and the presence of blood on Mr. Violo's winter jacket and T-shirt support a finding that the two defendants were in a physical struggle with Mr. Kau. One has to ask ─ what are the coincidental chances of persons identified by Mr. Kau as participants in the assault, somehow innocently acquiring his blood on their sweater cuffs, knuckles and thumbnail in the case of Mr Pav and on two locations on the coat and T-shirt of Mr. Violo. While entertaining the possibility blood transference from the sleeve of Ms. Sorn to the various locations on the person of Mr. Pav, the bloodstains in the area of his right hand knuckle renders the matter beyond dispute.

Conclusions

(a) Dylan Violo

[34] In all the circumstances, I do not accept Mr. Violo's evidence in the form of a statement to police and it does not raise a reasonable doubt. On the evidence in totality the only reasonable inference is that the defendant was a participant in the assault on Mr. Kau and based on the level of violence employed by all his assailants, Mr. Violo would have known that bodily harm was a reasonably foreseeable outcome. In regard to all the evidence I do accept, no reasonable doubt arises and I am satisfied beyond a reasonable doubt that Mr. Violo used force either as a principal or as a party that caused bodily harm. Even if the assault was commenced by only one party, once he joined in the attack he can properly be found to have engaged in a common purpose to assault Mr. Kau and to assist each other therein, thus satisfying the requirements of s. 21(2): R. v. Vang, 118 OAC 75 (Ont.C.A.).

[35] It should be noted that my credibility conclusions are not solely based on an adverse credibility finding in respect to Mr. Violo's statement to police. In fact, he places himself in close proximity to Mr. Kau at a time when the attack is still continuing and he does acquire bloodstains from the victim on the collar of his winter jacket and on his T-shirt inside the jacket. Indeed, to the extent that I rely on circumstantial evidence for this finding, I am satisfied not only that the circumstances are consistent with Mr. Violo having committed an assault, but also that the facts are consistent with no other rational conclusion.

[36] Indeed I am satisfied beyond a reasonable doubt that Mr. Violo was acting out of anger, not some humanitarian purpose. In my view his use of force was not designed to end the assault but to continue it. Had it not been the case that Mr. Kau's size and level of fitness allowed him to resist the attack to some degree he would have likely suffered a far worse injury. It was not through any intervention on Mr. Violo's part that he was spared a more serious injury and in all the circumstances, the use of force by Mr. Violo was not called for and was unreasonable. Having reached that conclusion, I am mindful of the fact that at the scene when the attack was fresh in Mr. Kau's mind, there was no mention in his report to police that Mr. Violo had kicked him in the face when he was down on the road surface, something that I am confident that P.C. Antoine would have noted. Consequently, his statement to P.C. Antoine to the effect that: "He held me while I was being punched" will be deemed to be Mr. Violo's level of participation even though of course, he bears liability as a party for the injuries Mr. Kau sustained. As well, I am not confident that Mr. Kau was in a position to reliably identify his attacker(s) when on the ground with his hoody falling over his head and his eyesight blurred by the ensuing injuries to his face.

[37] I therefore find Mr. Violo guilty of assault causing bodily harm on Joseph Kau on January 13, 2013.

(b) William Pav

[38] It is well understood that the defendant Mr. Pav bears no onus to establish an innocent explanation for how he came to have abrasions to his right hand knuckles and Mr. Kau's blood on those same knuckles. The abrasions and swelling are visible in Exhibit 14 and were observed by P.C. Dorrington and Sgt. McDougall. Mr. Kau's blood was also found on both cuffs of his striped sweater. Equally, there is no onus to explain the presence of Mr. Kau's blood on his right thumbnail and sweater cuffs (see photos attached to Exhibit 14). It would, nevertheless, be an amazing coincidence that a man who was identified by Mr. Kau as having punched him in the back with his right hand, could have some blameless explanation for the presence of the victim's blood on his bruised right hand knuckles, thumbnail and the cuffs of his sweater. To suggest that in the few minutes between the incident and the police contact with Mr. Pav on Henry / Cecil Streets, the DNA evidence from Mr. Kau could have been accidently transferred from the jacket of Ms. Sorn to so many areas of Mr. Pav's person (ignoring the knuckle abrasions) is to engage in extravagant speculation. It is submitted that there is only one reasonable inference to draw from this powerful circumstantial evidence and that is that Mr. Pav was involved in the assault on Mr. Kau either as a principal or as a party. As noted above, even if the assault was commenced by only one party, once he joined in the attack he can properly be found to have engaged in a common purpose to assault Mr. Kau and to assist each other therein, thus satisfying the requirements of s. 21(2): R. v. Vang, 118 OAC 75 (Ont.C.A.). Indeed, to the extent that I rely on circumstantial evidence for this finding, I am satisfied not only that the circumstances are consistent with this defendant having committed an assault, but also that the facts are consistent with no other rational conclusion.

[39] Based on the level of violence employed by all of the assailants, Mr. Pav would have known that bodily harm was a reasonably foreseeable outcome of his participation. For the reasons indicated above, I do not accept the evidence given by Mr. Violo in statement form that he only saw Mr. Pav "after everything had settled down" or Ms. Sorn's evidence that she did not see either Mr. Violo or Mr. Pav "involved in the fight." Nor does any evidence given by Mr. Violo or Ms. Sorn raise a reasonable doubt on the charges before the court. In regard to all the evidence I do accept, no reasonable doubt arises and consequently I am satisfied beyond a reasonable doubt that Mr. Pav used force against Mr. Kau either as a principal or as a party that resulted in bodily harm. I accept Mr. Kau's initial assertion that Mr. Pav "punched me in the face and back." While I am highly suspicious that Mr. Pav struck Mr. Kau with a knife or some other sharp object ─ Mr. Kau having testified that he believed Mr. Pav used a knife because the blow he saw Mr. Pav deliver was to the same area of his back as the injury ─ there is no evidence of the use of a weapon aside from the injury sustained and that would be insufficient to support a conviction on the charge of assault with a weapon, in my view.

[40] In the result, Mr. Pav is found guilty on the charge of assault causing bodily harm and acquitted of the charge of assault with a weapon.

P. Harris J.

August 6, 2014