Court Information

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

J. Hanna, for the Crown

— And —

Asif Ayenun & Jennifer Garion

S. Shikhman, for the defendant, Asif Ayenun M. Schwartzentruber, for the defendant, Jennifer Garion

Heard: December 13, 14, 20, 2012; January 25; August 19, 2013; April 10; June 24; July 31; December 15, 2014

FELDMAN J.:

Introduction

[1] Asif Ayenun and Jennifer Garion entered not guilty pleas to charges of Assault Causing Bodily Harm, Forcible Confinement and Intimidation. It is alleged that following an evening spent at Ms. Garion's home that included the complainant, Vijay Shetty, and two other of their mutual friends, Mr. Shetty stayed over and he and Ms. Garion were later intimate, an act the defendant came to regret.

[2] The Crown says that subsequently Ms. Garion, at the behest of Mr. Ayenun, with whom she had in the past been in a long-term relationship, enticed the complainant to come to her home purportedly to clear up any misunderstandings about what had occurred, but in fact with the intent, particularly on the part of Mr. Ayenun, to punish Mr. Shetty for his transgressions.

[3] It is alleged that Mr. Ayenun was motivated by anger and jealousy and that he was controlling in his manipulation of his co-accused to effect his purpose. It is said that together with an unknown second assailant the accused assaulted, confined and threatened the complainant causing him, among other bodily injuries, two fractured ribs. Although seemingly taken aback by the violence, it is alleged that Ms. Garion was, by her participation, a party to these offences.

[4] The prosecution called the complainant and his friends, Shashi Ramdass and Anenthan Alagarajah, in support of its case. In addition, it adduced video statements by the two accused. Mr. Ayenun and Ms. Garion testified in their own behalf.

[5] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. In drawing inferences of fact, I recognize it is important to distinguish between inference and speculation, inference being defined as a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found in the evidence: see Manual of Criminal Evidence, 2003 edition, at p. 44, per Watt J. I am mindful of the burden of proof on the Crown.

The Evidence

[6] At the time of these events, Mr. Shetty was 24 years old, a university graduate and employed at a financial institution. He had been a friend of Ms. Garion for 10 years. They were admittedly close. She said they started hanging out together every couple of months about 2 years after they finished high school. The complainant said he would see Jennifer fairly often, more recently two days prior to December 29, 2011. His friends confirmed that earlier visit in their evidence. On Dec. 29, he went to her home in the late evening at her invitation. Their two mutual friends arrived earlier. The defendant said that at the time she had a crush on the complainant.

[7] This gathering had been organized the day before by Ms. Garion and Shashi Ramdass, who was a friend of both accused, although he considered himself closer to Jennifer. He recalls that she referred to Asif as her ex-boyfriend. Mr. Alagarajah was also her friend and knew Mr. Ayenun from school.

[8] Shashi and Anenthan arrived between 9-9:30 p.m. Mr. Ramdass believes the complainant got there around 10:30 p.m.

[9] When Mr. Shetty arrived everyone had already eaten. After he had some dinner they played video games in the accused's bedroom. Mr. Ramdass recalls going to Jennifer's bedroom to look at old photos and play video games.

[10] While in the bedroom, the complainant testified that someone knocked on the window several times prior to midnight. He said Ms. Garion told them it was Asif and that they should ignore him. The second time he recalls the defendant excusing herself for about 10-15 minutes to talk to him. He understood that Ms. Garion had an on-and-off relationship with her co-accused. He said she told him they were no longer dating.

[11] Mr. Ramdass recalls someone banging on the bedroom window close to midnight. He said Ms. Garion told them to ignore it, but after the second or third set of knocks she left the room for about 10-15 minutes. He said that on her return Jennifer showed them a text message on her phone that said, "Sorry for bothering you, I know you are with your friends, call me later". He is not sure she mentioned Asif's name, although on the evidence it is a reasonable inference that it was he who sent the message.

[12] Anenthan recalls being shocked by the tapping on the window but being told by Jennifer to ignore it, although he did not tell this to the police. He assumed it was Asif as he was aware of their prior relationship. He said that there was a second knock and that Jennifer left for about 20-40 minutes. On her return Anenthan said she told them everything was fine, she was trying to sort things out with Asif and she showed them the text mentioned earlier. She said it was over between them. Anenthan did not mention a second knock on the window to the police. He explained that he was not testifying to advance the Crown's case but to provide his best recollection of the events.

[13] After this, everyone went to the living room to hang out and play a drinking game, one according to the witnesses initiated by Jennifer. Mr. Ramdass recalls that Anenthan does not like to drink, although he may have had a couple of sips of beer. He testified that Ms. Garion and the complainant sat together on one section of a three-seat couch whispering close to each other with their shoulders touching, engaged only with themselves, laughing and giggling. Anenthan described them as flirtatious.

[14] Shashi told the court that Jennifer was encouraging him to drink the beer that she had at her home. He and Anenthan said there was no hard liquor. Shashi saw the complainant drink some beer although he knows him not to like the taste of it. He rejects the notion that Vijay was intoxicated. Anenthan said he did not see how much the complainant had to drink but recalls everyone got up to get some beers. Mr. Shetty was not seriously challenged on his level of sobriety.

[15] Mr. Alagarajah told the court he drank less than a bottle of beer. He did not believe either Jennifer or Mr. Shetty was intoxicated, although he assumed they felt some effects from the alcohol. He told the police he thought Shashi was "done", meaning he was drunk.

[16] Shashi and Anenthan left after midnight. Shashi assumed the complainant might remain overnight as he had done in the past.

[17] I found both witnesses to have testified in a straightforward manner without embellishment. It is of significance that Shashi, in particular, was a good friend of Jennifer, as he was of Vijay. I view their evidence regarding the knocks on the window and the circumstances of the drinking to be supportive of the complainant's testimony in this regard. Any discrepancies need be seen in the context of the passage of time and the peripheral nature of the evidence.

[18] Mr. Shetty stayed behind after his friends left. He told the court that to that point he and Jennifer had a playful, flirtatious relationship that involved kissing about which he was not challenged. That night he said they were fully intimate, interrupted by further tapping on the bedroom window. He recalls that at the time Ms. Garion left for 30-60 minutes. The fact he sent her a text at 3:13 a.m. lends support to his evidence with regard to this fact in issue. When she returned he said she told him that she did not want to see Mr. Ayenun again and that he just wanted her to be happy. They went to sleep and got up around 6 a.m.

[19] Mr. Shetty rejects the suggestion that while intoxicated he tried to kiss Jennifer a second time only to have her push him away. He denied having slapped her.

[20] As he was brushing the snow off his car early the next morning, Mr. Shetty received a helpful text message with a smiley face from the defendant suggesting he turn on the car first. He received further messages from Ms. Garion later on that evening. The following text messages were exchanged on December 30 between 6:10–10:45 p.m.:

G: About last night…I have been vulnerable for a long time now. My relationship with Asif was growing distant ever since he started school for law and spent most of the time on that. U were a good friend. I tried to replace him with you by hanging around you which led to things that was unfair to both of us. I think it's best if we don't talk.

S: How was it unfair to you?

G: us hooking up and doing those things when I was very vulnerable

S: Is that something that I did to you?

G: I needed a friend to talk to and instead of talking we went straight to intimacy. I regret it

S: Talk about what exactly? What were u hoping for? We've been getting physical for almost 4 years anyway. Do u regret all of it? What made yesterday any more inappropriate?

G: Call me

S: I'll call you before I go to bed

G: Can you come over please?

S: Normally I would but I have to be up at 5 to open the bank in the morning. Why?

G: Please Vijay, I need to talk

S: Can we do this over the phone?

G: I tried texting it to…Vijay, after all this time I really need to talk to you here

S: I'm like already in my bed! Any chance you can come here?

G: Vijay please…

G: Vij this is very confusing for me

G: Pls com

G: Vij don't make me beg anymore…Can u come see me here

S: Jennifer it's 11 p.m. Why did u wait until now to ask me? I can't. We will have to do this over the phone or tomorrow after work

[21] It is open to be inferred on the evidence that the subsequent exchanges involved Mr. Ayenun surreptitiously writing texts encouraging the complainant to come over to the house apparently to talk through what was troubling Ms. Garion. This is based on Mr. Ayenun's testimony to this effect and Mr. Shetty indicating that during this sequence the style of communication had changed.

[22] The following text messages continued from 11:02 p.m. until December 31 at 12:12 a.m.:

G: Ok what time will you be done work tomm? Can u please come here after

G: I'll be waiting at home ok, dw I have food leftover so we can talk honestly with ea other in private

S: Ok but I finish work at 4. I have to go out during the evening for new years ever after

S: Are u ok

G: Ok ty, ill be fine. Ill see you at 4

S: Why are u so bothered?

G: Just confused, u sleep now we can talk about it tomm

S: U think I can untangle it?

G: Shouldn't u b asleep:p we will talk about it in private tomm

[23] Later on December 31, the following exchange took place between 4:04 – 5:06 p.m.:

G: Hey, are u coming?

S: Ok don't start crying because crying girls make me uncomfortable

G: Just a private conversation don't worry no crying u will have time to go to ur party

S: Ok be there in a bit

[24] Mr. Shetty testified that he arrived at Ms. Garion's home after 5 p.m. but at first there was no answer at the door. The following text exchange took place at 5:06 p.m.

S: I'm outside

G: Ok I'm coming

[25] The complainant told the court that Jennifer opened the door and asked if he would like to talk in the kitchen or living room, a question that in light of their friendship he thought somewhat formal. He said he was immediately hit in the face and fell to the floor. He recounted being repeatedly punched and kicked in the abdomen, ribs and head by the co-accused and a man he did not know nor could identify. He believes he was struck over 20 times by each man. He said he tried to stand up and break free but was overwhelmed.

[26] He recalls Jennifer being close by for most of the assault. When his assailants would not stop he asked Jennifer several times to call the police, he said, with urgency in his voice. He does not recall her saying anything in response although at times he heard her speaking to both men.

[27] Mr. Shetty went on to testify that after this he was able to resist having his hands tied with cable ties but found it hard to move because he was in such pain in his ribs. He said he was placed in a chair where he continued to be struck on his head and body. His head was mostly down. He claimed not to have much of a view of the second man who mostly stood behind him. While on the floor he said his instinct was to protect his body and not look at his assailants.

[28] He was unable to identify the second man, he says because he was attacked right away, traumatized by the onslaught and limited by the assailant positioning himself behind him for the most part. His evidence in this regard is plausible.

[29] The complainant said Asif asked him a number of questions, one of which was how he did not understand that the defendant would find out about his involvement with Jennifer, as well as why he thought he could get away with what he had done. Mr. Shetty told the court that the accused mentioned how violent he could become and pressed the complainant on whether he had previously slept with Jennifer.

[30] Mr. Shetty recalls Jennifer saying she did not want to see the violence taking place, at one point leaving the room. She asked that the fighting stop and said they should just be talking. The complainant said she was crying at other times.

[31] Mr. Shetty testified that Asif warned him that if he spoke to the police he and his co-accused would report that he had raped Jennifer. He said Ms. Garion confirmed this, although in a shaky voice.

[32] Mr. Shetty says he was forced to leave his fingerprints and saliva on some bottles containing alcohol. He was told to wash some dishes but was unable to do so because of the pain he was in.

[33] He said that while sitting at the table his head was pinned down at times. He was required to empty his pockets. The second man stood behind him and sometimes hit him. He believes his nose was bleeding but did not mention that to the police. Mr. Ayenun made him delete any contact information about Jennifer from his phone and recorded the numbers from some of his personal documents and credit cards.

[34] Both Asif and the second man used the complainant's key to look through his car. The accused said he would be watching the complainant or having others do so. He told Mr. Shetty not to return to the neighbourhood. He informed the complainant that it was he who had been texting him earlier.

[35] Mr. Shetty told the court that he felt incapable of leaving because there were two assailants and he was in too much pain. He was warned not to try. He said he felt panic and was traumatized. He was told to leave, he believes, after 1-2 hours and never return. He recalls Asif saying to him that he did not mean to hit him that hard but got carried away.

[36] At 6:05 p.m., Mr. Shetty texted the following message to Shashi Ramdass: "I spoke to Jen, I fucked up, it's best we don't talk to her anymore". He told the court he wrote this under duress, the words dictated by Mr. Ayenun.

[37] There was little reason for the complainant to have penned these words except under coercion. Even on the accused's version of the fight there was no time or place for a private conversation between Mr. Shetty and Jennifer to lead to this purported rift implicit in the text message. There was no reason that Shashi, a friend of Jennifer, not speak to her again.

[38] Mr. Shetty said that upon being allowed to leave he called Mr. Ramdass and drove to his house within minutes. He informed his friend who had assaulted him. Shashi told him he needed medical attention and drove him to Centennary Hospital. Mr. Alagarajah arrived a little later.

[39] The medical evidence indicates that the complainant had non-displaced fractures of two ribs, a partial collapse of his left lung and a small puncture in the lining around his lung. Photos taken by Mr. Alagarajah at the hospital indicate significant bruising to both sides of his face, swollen ears, scratches to his forehead and a puffy nose. Mr. Shetty said he had bitten his tongue and had bruising on the inner part of his left wrist as a result of shielding his face from the blows. Pictures of the complainant's facial injuries lend support to the reliability of his evidence concerning the severity of the alleged beating. Damage to the ribs permit the inference of multiple heavy blow or kicks to the abdomen. The scope and degree of injury point to a one-sided fight.

[40] Mr. Shetty said he had troubling breathing for a few weeks and was impacted psychologically. His ribs healed in 4-5 months. He denies striking either of the accused.

[41] Mr. Ramdass told the court that in the afternoon of Dec.30 he received a "weird" text from Ms. Garion asking to meet him, but no follow up. It was on Dec. 31 at around 5:30-6:00 p.m. that Mr. Shetty told him he was going to Jennifer's home.

[42] Mr. Ramdass recalls that later in the evening he got a call from the complainant asking for help. The complainant arrived in a matter of minutes and got out of his car in obvious pain. He had difficulty breathing. He was holding his ribs and his side temple area was swollen, as was his ear, which had one of its earrings missing.

[43] Mr. Ramdass drove the complainant to the hospital. He described him as nervous, trembling and unable to talk. When he did so, he was stuttering and his hands were shaking. He needed help to hand over his OHIP card to the triage nurse.

[44] Mr. Alagarajah arrived shortly thereafter. The complainant told him his ribs hurt but was unable to talk much. He seemed traumatized. Anenthan observed bruises on the complainant's head and face, bumps on the top of his head that he felt and a footprint on his left temple. As noted, he took photos that he provided to the police. Mr. Ramdass called the police when the complainant refused to do so.

[45] The observations by these witnesses of the injuries and of Mr. Shetty's emotional distress shortly after the purported assault lend support to the reliability of the complainant's evidence on the severity of the beating he received.

Defence Evidence

[46] Jennifer Garion is 26 years old. She was in an on-and-off relationship with Mr. Ayenun over 8 years. They had gone their separate ways for about a year by the time she had the complainant and two other of her friends over on December 29.

[47] Ms. Garion told the court that Mr. Shetty was a good friend, as was Shashi, who was not as close. She was not as friendly with Mr. Alagarajah. She agreed that she met with Shashi the day before to discuss the party and the state of their respective romantic relationships.

[48] Ms. Garion testified that when the complainant arrived the next night he brought a bottle of whiskey. She described their sitting together on her bed while everyone played video games. She said Mr. Ayenun knocked on her window as he had done many times before and that she spoke to him at the front door inviting him in, but he declined. She said he told her he was checking up on her to see how she was. She denies seeing him again that night.

[49] Incongruously, she gave evidence that on her return she said nothing to her friends about it and that Shashi only asked if she was alright. Her testimony that no one had interest in whom she met makes little sense, particularly in light of the evidence of her guests that they were shocked by the intrusion. In addition, both Shashi and Anenthanan testified that she showed them a text message from Asif. Jennifer's evidence that there was no such text is contradicted by her co-accused who testified that he messaged her to have fun with her friends and that he would see her the next day. I give little weight to Jennifer's evidence on this fact in issue.

[50] Ms. Garion testified that she and her guests were drinking later on in the living room. She had a rum and coke, which she says now must mean that Mr. Shetty brought either whiskey or rum, a pattern of convenient memory loss or testimonial flexibility that became a hallmark of her evidence.

[51] The defendant says she was not intoxicated. She only saw the complainant consume one drink, but thinks he had more and says he was drunk, as was Shashi. Anenthan did not drink much. She denies encouraging anyone to drink. She agrees she was being especially flirtatious with Vijay, sitting close to him, touching him, putting her head on his shoulder, teasing him. I found that her evidence about Mr. Shetty's consumption of alcohol was vague, unclear and in relation to her narrative, self-serving. I accept the evidence of Shashsi and Anenthan that no hard liquor was available that night.

[52] Ms. Garion says she let the complainant stay over because he was so drunk. She can't explain why there was no discussion about Anenthan driving him home. Later, after her friends left she says she and Vijay kissed for 2-3 seconds but that she immediately regretted it as she claims he wasn't in his right mind and didn't know what he was doing.

[53] In cross-examination she allowed that the kiss may have lasted up to 30 seconds, a fact inconsistent with immediate regret. She struggled to explain one of her messages to Vijay the next day that she was trying to replace Asif with him. Her answer made little sense. What made less sense in the context of the text messages and her admitted crush on the complainant was her statement that this was their first kiss. I reject that evidence as contrived to fit a narrative.

[54] Ms. Garion testified that shortly after the first kiss the complainant came to her bedroom door and tried to kiss her again but she pushed him away with both hands. She claims that he accidentally slapped her although she provided no details to lend even a degree of plausibility to such an incomprehensible act.

[55] A photograph, taken by Mr. Ayenun indicates a reddish line on her eyelid, a mark objectively inconsistent with a slap, accidental or otherwise in the described circumstances. More confusing, she later told police that her injury resulted from the brawl, although what she meant by that was not clarified and rendered elusive an understanding of her questionable evidence about the slap. Her testimony about this material fact in issue was again vague and unclear rendering her evidence in this regard unreliable.

[56] She explains her text in the morning to Mr. Shetty that he warm up his car while cleaning the windows as a desire to help him out as he was drunk the night before. While she says she was confused about the slap she wasn't angry when she sent the message, although that seemed to change after she spoke with Mr. Ayenun.

[57] Ms. Garion told the court that Asif came over that morning. She said she tried to hide her left side but he asked her what happened. She said she told him someone slapped her accidentally but did not name the complainant. When confronted in cross-examination that her co-accused testified to the contrary, she prevaricated and said she might have done so but does not recall, an unimpressive response that left all options open to her. It is difficult to understand how she would not remember something of such significance, that is, whether she named her assailant about an act that took place a matter of hours before.

[58] In sending further texts that day, Ms. Garion indicated they were motivated by concern she was unfair in leading Vijay on and permitting a kiss, on the evidence, a contrived assertion. The most reasonable inference from a plain reading of the content of the texts is that the accused regretted the intimacies from the night before and was torn by her lingering feelings for her co-accused. Hence, she texted, "I think it best we don't talk", a rather extreme reaction to a kiss from someone to whom she was admittedly close. Tellingly, there is no mention of a slap.

[59] In addition, to say that in this context 'hooking up' meant getting together as friends to talk, that intimacy meant a first-time kiss and that she was confused by Vijay's suggestion they were getting physical for 4 years, not challenged by her in her response, reflects, in my view of the evidence, minimization and self-serving testimonial revision on her part about someone with whom she was close and on whom she had a crush. To then change her mind and push the complainant to come talk to her when Asif was present bears little real life connection to resolving the issue of a kiss and permits the inference that Mr. Ayenun's influence regarding confrontation was starting to take effect.

[60] Ms. Garion went on to tell the court that she had asked Asif to take a picture of her eye injury, the one she failed to mention to Vijay, although in contradiction of her co-accused who said it was he who decided to take the photo. She says Asif did not ask about her relationship with the complainant, on this evidence, a questionable assertion.

[61] Improbably, she said she was fine that Mr. Ayenun had gone through her texts without her permission and pushed the complainant to come over. Her equanimity appears convenient. She failed to inform Vijay she would not be alone. She did not think Asif's presence would be a problem. As a matter of common sense it is doubtful she believed that, given her co-accused's surreptitious effort, in the context of the text messages, to push the complainant to come over the next day.

[62] Ms. Garion supports her co-accused's version of events after Mr. Shetty arrived at her home. She said the complainant started yelling at her because Asif was there and that the accused came close to calm Vijay down. She claims Vijay pushed Asif after which the co-accused hit Vijay who fell down with Asif falling on the complainant and seeming to be in control, although they both threw punches at each other. Her account does not fit with the scope of the complainant's significant injuries. She says Asif did not complain about any injuries.

[63] Ms. Garion told the court that during the course of the violence she was afraid, upset and crying. She never heard the complainant ask that the police be called, although the complainant's evidence that he did makes common sense. She said it was a lie that a second assailant was present. She denies threatening the complainant with a rape charge, although it is of note that, according to Mr. Ramdass, the complainant did not want to complain to the authorities.

[64] For all of these reasons, in the context of all the evidence, I view Ms. Garion's testimony on the material facts in issue as unreliable.

The Evidence of Asif Ayenun

[65] Mr. Ayenun confirmed that he and Ms. Garion dated for 6-8 years and that he considered her a close friend at the time of his arrest. He said that on Dec. 29 he got off his bus intending to sleep at Jennifer's home as he had done before and because he intended to spend the next day with her. He also wanted to check up on her as she had not answered his text and he knew her parents were out of town.

[66] When he got no response at the front door, he knocked on her bedroom window. She came out and told him she had friends over. She invited him in, but he declined. He said he did not ask whom she was with, on the evidence an unlikely response by him, made less credible by Jennifer's evidence that he and her friends were acquaintances of his. He sent her another text referred to by Shashi and Anenthan. He denies returning to knock on her window.

[67] The accused said he did not know any of her friends nor ever speak to them, although, as noted, Jennifer described them as acquaintances of his from their time together at school. His evidence regarding knowledge of the complainant was rife with inconsistency. He variously told the court that he could put a face to the complainant, then backtracked to say he would probably not recognize him, to not being able to tell him apart from the others, to not being able to put a face to his name. It was a pattern in his narrative to distance himself from the complainant and assert indifference to him, on the evidence a contrived and self-serving position in light of the tangled relationship of the two men with Jennifer and the accused's admission that he wanted to be back with his former girlfriend.

[68] Mr. Ayenun testified that he returned to Jennifer's home the next day at 1 p.m. He observed a bruise on her left eyelid. He said she told him that Vijay had slept over and while intoxicated hit her accidentally. He said they discussed the bruise for about 30 seconds, although Jennifer said it was only for a few seconds. He claimed not to be angry, as it was an accident. He took a photo of the injury, although Jennifer did not ask him to. On the evidence, I don't accept his purported benign reason for doing so in order to facilitate a discussion between them.

[69] Over the course of the day, the accused says he noticed Jennifer's mood was not a happy one. After she fell asleep her phone received text messages about which he claimed mere curiosity so he read them without her permission. On the evidence, there is a reasonable inference his invasion of her privacy was motivated by more than curiosity about what had gone on the night before between Jennifer, with whom he wished to take up again, and the complainant.

[70] Having read the texts, the accused went on to falsely hold himself out as his co-accused in subsequent messages he sent to the complainant pressuring him to come over. Purportedly mindful of Jennifer's seeming low mood, he decided she and Vijay should talk it out, about which he would inform her after she woke up. His feigned good will permitted the inference in the circumstances rather of self-interested manipulation of both the co-accused and complainant. It tends to support Mr. Shetty's evidence that he was later interrogated by Asif about his previous sexual activity with Jennifer.

[71] While he wished to get back with Ms. Garion, the accused claimed not to be upset by the content of the texts that on their plain reading permitted the strong inference of feelings and intimacies as between Jennifer and Vijay over some time. He said he did not believe in double standards and rose above that. He merely wanted to help lift Jennifer's mood and assist her and Asif in moving on, as he moved in to replace him. Altruism over jealousy. Not a fit with this evidence or human experience. I view his evidence in this regard as contrived.

[72] The accused is 5'6" and weighs 130 lbs. He is smaller than Mr. Shetty. That he alone could subdue the complainant, dominate him and inflict the multiple serious injuries he did stretches credulity. He denies acting out of jealousy or anger, although he told the police, "I assaulted a guy who assaulted a girl", at the time an unfiltered assertion of retribution consistent with the nature of the beating exhibited here.

[73] The accused says he was struck in the neck and jaw 10-15 times, as well as 20-25 times on his chest. He points to a small chip on one tooth and claims a cut on the inside of his lip and scraped knees. Surprisingly, he took no photos to confirm the latter two injuries. In my view of the evidence, his lack of significant injury does not accord with the scope of the punches he claims were thrown his way.

[74] I would not rely on the evidence of the accused on the material facts in issue.

The Reasonable Doubt Standard

[75] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of the presumption of innocence. This standard has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused: R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.).

[76] Reasonable doubt is to be applied where credibility is at issue. In R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), Cory J set out a three-step analysis. The judge must acquit if the evidence of the accused is believed or if he or she is left in reasonable doubt by it even if the evidence is not believed. With regard to the third element, the judge need ask him or herself, even if not left in reasonable doubt by the accused's evidence, whether on the balance of the evidence that he or she does accept that the court is convinced to the requisite standard of the guilt of the accused.

[77] In this analysis, rejection of an accused's evidence may be derived from "a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence", but not on the basis of preferring the worth of one over the other: R. v. J.J.R.D., [2006] O.J. No. 4749 (Ont. C.A.); R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.).

[78] The trier of fact is entitled to assess an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, [2006] O.J. No. 3177 (Ont. C.A.). In fact the court made reference in this regard to the "positive duty to carry out such an assessment", given the possibility that the judge may be left in doubt about the guilt of the accused.

Findings of Credibility and Fact

[79] I found Mr. Shetty to be a straightforward, if understated, witness. His evidence about the evening spent at Jennifer's home was materially supported by his two friends, one of whom, Shashi, was also close with the accused, lending an element of objectivity to his testimony. These two witnesses did not embellish their evidence. I did not find them to be interested parties, but rather responsible witnesses. I view their lack of precision regarding details of the knocking on the bedroom window and Jennifer's absence, as well as the alcohol consumed as a function of the unimportance at the time of these mostly peripheral matters and the passage of time.

[80] It is apparent that I have found some material elements of Ms. Garion's evidence to be both self-serving and unreliable. Bearing that in mind, I am not left in reasonable doubt by the evidence of the Crown witnesses that Asif knocked on the window on more than one occasion and spoke to Jennifer each time, that Vijay did not bring hard liquor and that neither he nor Anenthan were intoxicated.

[81] The complainant's credibility is buttressed in addition by other objective evidence. His testimony about an intimate evening is supported by a plain reading of Jennifer's revealing text messages. To suggest their frantic nature had to do with angst over her first kiss with someone with whom she had been close for some time and in relation to whom she then admittedly had feelings stretches credulity. She was clearly in turmoil over two men, one of whom later injected himself into the situation and took it over from her for his own reasons without her knowledge or consent.

[82] If Jennifer was motivated, as suggested by Asif, to clear up the issue of the alleged slap, it was not apparent in her messaging to the complainant. I don't accept her evidence on these material facts in issue, nor arising from this, that of the co-accused regarding the reason he pressed Vijay to come over. I accept the complainant's evidence, as well, that Jennifer left the home for some time during the night he was with her to talk to Asif. His text to her at 3:31 a.m. supports that contention.

[83] On the evidence, I reject the notion that the complainant's multiple facial injuries, broken ribs and extreme distress observed by others, contrasted by the decided lack of significant injury to Asif, resulted from a consensual fight with a single, smaller accused. I accept Mr. Shetty's testimony that when he entered Jennifer's home he was set upon by two individuals and beaten, nor am I left in reasonable doubt by the evidence.

[84] I place little weight on Ms. Garion's evidence for reasons noted earlier and in part by my acceptance of the complainant's evidence and that of their mutual friends. I found her evidence, often vague and shifting, to be contrived to fit a narrative. I reject her evidence that the complainant was intoxicated and that he slapped her. Her lack of explanation for how the slap occurred and failure to mention it in her messages to Vijay undermine its veracity. In addition, in not accepting that the kiss was at the root of her upset with the complainant, I question the source or timing of the red line on her eye lid.

[85] I reject Ms. Garion's explanation of the texts as absurd and unworthy of credit. Her words, "hooking up and doing those things when I was vulnerable" and "instead of talking we went straight to intimacy" in the context of the all evidence do not, as a matter of common sense, permit an inference that she was referring to a single kiss.

[86] In the circumstances, I find unhelpful and place little weight on her evidence of the beating suffered by the complainant purportedly as the result of a consent fight. The question remains whether she was complicit, aware or at least wilfully blind to the possibility that Asif's orchestration of pressuring Vijay to come over was for the purpose of vengeance.

[87] On the evidence, and for the above-noted reasons, including my acceptance of the complainant's testimony, I would also not rely on Mr. Ayenun's evidence on the material facts in issue. In these circumstances, I view the accused's narrative that he was a good friend unencumbered by double standards regarding Jennifer's sexual activities, that he took charge of the situation to help her and Vijay move on and that he so brutally assaulted the complainant in self-defence as one that bears little inferential relation to the evidence.

[88] Rather, the defendant has admitted wanting to be back with Jennifer. I assess what I have found to be his multiple knocking on the window and conversations with Jennifer in that light. It must have disturbed him that Vijay stayed over. On this evidence, I infer he invaded his co-accused's privacy out of jealousy. In this context, he was likely enraged by the implication in the texts and motivated by animus. I reject the self-serving notion that his motives were benign.

[89] What followed permits the inference about which I'm not left in reasonable doubt that on his own the accused lured the complainant over and with assistance inflicted a severe punishment on him. On this evidence, I view the complainant's testimony that the accused admitted getting carried away in inflicting injury as reliable. On all the evidence, I infer and am not left in reasonable doubt that Mr. Ayenun and a second assailant overwhelmed and assaulted the complainant causing him bodily harm. Even were the fight consensual, which I do not find, the excessive scope and nature of the injuries would lead to a finding of guilt. I make that finding.

[90] In addition, having found Asif to have been motivated by jealousy and anger, I accept Vijay's evidence that while confined at the kitchen table, the accused was in complete control over him. He looked at the complainant's personal information, had him delete any of Jennifer's contact information from his phone, questioned him about his relationship with her and told him not to return to the neighborhood. Vijay's illogical text to Shashi that they no longer speak to Jennifer tends to confirm the accused's intimidating focus.

[91] As well, the complainant testified that the accused warned him that making a complaint to the police would put him at risk of being charged with rape, that he was cautioned he would be watched and was told that Asif had stabbed others before. This evidence, which I accept, supports the inference that Asif might have been concerned that he had gone too far and was worried about the consequences.

[92] I am not left in reasonable doubt that in effecting his purpose the accused, in these circumstances, forcibly confined the complainant and subjected him to intimidation. There will be findings of guilt in relation to those charges.

Was Ms. Garion a Party to the Offences?

[93] To establish Jennifer's guilt on the basis of party liability under Criminal Code s. 21(1), the Crown need establish that the accused aided the main perpetrator in the sense of assisting or helping him or her and abetted that person by encouraging, instigating or promoting the crime to be committed.

[94] Intent and knowledge make up the mens rea element of the offence. Intention to assist the principal equates with purpose. With regard to knowledge, the aider must know the perpetrator intends to commit the crime, although she or he need not know precisely how it will be committed. Wilful blindness can substitute for actual knowledge: R. v. Briscoe, 2011 SCC 13, at paras. 14-16.

[95] The situation was imposed on this defendant. Asif took over and it appeared Jennifer followed his instructions. She did not inform the complainant there were others at her home. She was present for most of the assault. She did not respond to Vijay's requests for help. On this evidence, it is open to be inferred that she was at least wilfully blind to the likelihood of violence as between two men in conflict over their relationship with her and by her presence encouraged its perpetration.

[96] At the same time, Asif demonstrated a controlling indifference to his co-accused manifested in her behaviour that included crying, rolling up in a fetal position and begging that the violence stop. She left the room at times. It is open to be inferred that Jennifer submitted to Asif's pressure to end her relationship with Vijay and acquiesced to the rape threat under coercion, indicated in her shaken voice. It is possible she assumed any conflict would be limited to verbal strife. She objected emotionally to the pummelling of the complainant but was helpless to stop it.

[97] I think it probable in the circumstances that she was at least wilfully blind to the possibility that in the confrontation set up by her co-accused the complainant would be assaulted, but on all the evidence I am unable to find that as a fact to the near certainty required in the authorities. Ms. Garion will have the benefit of the doubt in that regard. Her charges will be dismissed.

Released: July 3, 2015

Signed: "Justice L. Feldman"