ONTARIO COURT OF JUSTICE

CITATION: R. v. Siddiqui, 2023 ONCJ 128

DATE: 2023 03 20

COURT FILE No.: College Park, Toronto 20-75004493

BETWEEN:

HIS MAJESTY THE KING

— AND —

AAFAQ SIDDIQUI and KEENAN KAWALL

Before Justice B. Jones

Heard on February 15, 16, 17, 18, March 25, September 28, 29, December 16, 2022, and January 26, 2023

Reasons for Judgment released on March 20, 2023

D. Hogan............................................................................................... counsel for the Crown R. Sansanwal and A. Sansanwal................................................... counsel for A. Siddiqui R. Moriah…............................................................................................ counsel for K. Kawall

Jones J.:

I. Introduction

[1] On September 27, 2020, just after 5:20 p.m., Ahmad Massoud was assaulted by two men outside of the south entrance of the East York Town Centre (“EYTC”). The entire incident was captured on video surveillance footage. He suffered serious injuries and required immediate medical attention.

[2] Aafaq Siddiqui and Keenan Kawall are jointly charged with five offences stemming from these events: assault, assault–choking, assault with a weapon, robbery, and aggravated assault. Keenan Kawall is also charged with attempted murder.

[3] The entire trial was conducted virtually by using Zoom, with all witnesses and the accused appearing remotely.

II. Background Facts

[4] The EYTC is a mall located at 45 Overlea Blvd in the neighbourhood of Thorncliffe Park in the city of Toronto. At the southern end of the EYTC, there is a convenience store which is situated next to a roadway and a small parking lot. South of the parking lot is a parkette. Adjacent to the parkette is a school portable associated with the Fraser Mustard Early Learning Centre.

[5] Google maps and a satellite image of the area were made exhibits. They depict the boundaries of the parkette, its proximity to the EYTC, and a pedestrian footpath. The footpath begins just south of the rear exit of the EYTC. It leads through the parking area, runs alongside the west of the parkette, and then continues further south past the school portable. (Exhibit 3 – a satellite image of this area is reproduced below.)

III. Video Surveillance Evidence

[6] The Crown tendered evidence from several different video surveillance cameras. These were located inside the EYTC, outside the south entrance, and on the school portable. The video footage was admitted on consent and counsel for the accused parties did not dispute that it satisfied the authentication criteria required by section 31.1 of the Canada Evidence Act.

[7] The video was obtained by the lead investigator, DC Janjanin. Each video camera captured different aspects of what occurred on September 27, 2020.

(i) Rear Entrance EYTC Video

[8] Video surveillance from the EYTC rear entrance was marked as Exhibit #4. The camera is positioned about 100 feet from where the altercation occurred.[^1] It begins at approximately 5:11 pm. It is, unfortunately, poor quality. The camera was better positioned to capture what was happening immediately next to the doors of the EYTC and not the parkette.

(ii) EYTC Video – Internal

[9] Video obtained from inside the EYTC was marked as Exhibit #5. There is no time stamp on this video. It captures the movements of the larger suspect before the incident occurs in the parkette. It is of good quality and the suspect’s movements can be traced from the rear entrance doors of the mall to an LCBO located inside. It also records him exiting the mall holding a six-pack of Corona beer that he had just purchased. Very clear images of this suspect’s face, entire body, and clothing can be seen.

(iii) LCBO Video

[10] The larger suspect’s movements inside of the LCBO appear on video that was marked as Exhibit #6. The video begins at approximately 2:48 pm and lasts for two minutes. It provides very clear, high-resolution footage. It recorded the larger suspect while he walked through the LCBO, selected a six-pack of Corona beer, and paid for it. He is wearing a COVID mask for most of this footage. The mask partially obstructs the view of his face.

(iv) School Portable Videos

[11] The assault was captured by two video surveillance cameras positioned on a school portable located next to the parkette.[^2] One camera was located on the front side of the portable facing north. It had a view of the entire parkette. The video is very clear. The second camera is on the south side of the portable and captures the pedestrian pathway. While it does not capture much of the altercation, it does provide some footage of how the parties began their interactions and how the suspects left the area afterwards.

[12] The north-facing video begins at approximately 5:20 pm and depicts Mr. Massoud walking across the parking lot to meet an unknown person or persons near a vehicle. These are the two suspects. He then walks east and leaves the view of the camera. He re-appears near 5:24 pm and can be seen near the rear entrance doors to the EYTC.[^3] He meanders around the area until 5:25:48 pm when he reapproaches the suspects. They later come into view of the camera. On the southern-facing video, this initial meeting between the parties can also be viewed. The two suspects are sitting on a concrete barrier at the edge of the parkette. They engage in a conversation with Mr. Massoud.

[13] I find as a fact that the following timeline of events occurred based on my review of these videos. I have split the events into what I label below as Phase I and Phase II.

Phase I

[14] The northern-facing video depicts a larger suspect and a smaller suspect who appear to know one another. At 5:26:50 pm, Mr. Massoud and the larger suspect appear in front of a black car in the upper left section of the video. Within seconds, the larger suspect strikes Mr. Massoud on his face with his right hand clenched in a fist. He then shoves Mr. Massoud with his hands. In response, Mr. Massoud strikes this suspect with one right punch. The larger suspect then grabs onto Mr. Massoud’s arms with both his hands, while the second, smaller suspect approaches.

[15] Mr. Massoud headbutts the larger suspect and attempts to punch him. At 5:27:15 pm, the larger suspect takes control of Mr. Massoud and forces him down onto his back on a concrete barrier separating the roadway from the parkette. He has his hands around Mr. Massoud’s throat and is holding him down against his will. The smaller suspect stands next to the larger suspect, and he raises his right arm over his head and brings it down to strike Mr. Massoud across his head. Mr. Massoud’s legs fall to the ground, and he appears limp. The larger suspect continues to exert pressure around Mr. Massoud’s throat area and Mr. Massoud’s arms finally drop as he loses all energy to resist his assailants. The smaller suspect strikes Mr. Massoud’s head once with his right hand.

[16] At 5:27:46 pm, an unknown male party walks toward Mr. Massoud and the larger suspect finally releases Mr. Massoud from his grasp. Mr. Massoud falls off the concrete barrier and lands on the grass below. He remains motionless until 5:28:24 pm. Mr. Massoud attempts to stand up, and the larger suspect kicks him in the head with his right foot.

[17] By 5:29:02 pm, Mr. Massoud is finally able to stand, and he clutches his head near where he was kicked. The suspects, who had walked a few metres away, approach him again and the larger suspect pushes Mr. Massoud to the ground with such force that Mr. Massoud falls back at least a metre and lands on his back. Mr. Massoud loses possession of an item, and the smaller suspect retrieves it and puts it in his pants pocket. The larger suspect kicks Mr. Massoud’s head again with his right foot while Mr. Massoud is on his knees.

[18] After this occurs, the larger suspect walks away, but Mr. Massoud decides to approach him while his back is turned. Before he can get close enough to touch the larger suspect, the smaller suspect grabs Mr. Massoud by his jacket with both hands and prevents him from going any further. The larger suspect approaches Mr. Massoud again and following some discussion, he strikes Mr. Massoud in the head with his right fist.

[19] Mr. Massoud then retreats to the southern edge of the parkette and engages in a conversation with a man sitting on park bench. He continues to clutch his head where he was kicked. The suspects remain in the parkette near a parked car that can be seen in the upper left corner of the video.

Phase II

[20] At 5:31:31 pm, Mr. Massoud reapproaches the suspects. He kicks at the larger suspect with his right foot. The smaller suspect attempts to separate him from the larger suspect. Mr. Massoud then kicks the smaller suspect.

[21] The smaller suspect walks towards Mr. Massoud and Mr. Massoud throws a punch at him with his right fist but appears to miss. The smaller suspect backs away. The larger suspect leaves the view of the camera on the west side of the parkette. The larger suspect reappears on camera and approaches Mr. Massoud holding a clear beer bottle in his right hand. He is holding the bottle by its neck in an aggressive manner. A verbal disagreement occurs between the parties and the larger suspect points the end of the bottle at Mr. Massoud several times as if to emphasize a point.

[22] At 5:33:07 pm, a fourth male person, previously not involved in this incident, approaches the suspects and Mr. Massoud while holding a long stick or pole in his right hand. Shortly thereafter, Mr. Massoud strikes the larger suspect with his right hand trying to make contact with him. As a result, the smaller suspect pushes Mr. Massoud to the ground. The larger suspect, while standing over Mr. Massoud, strikes him with the beer bottle using his right hand, bringing the bottle down from over his head to hit Mr. Massoud who is on the ground. He then strikes Mr. Massoud two more times with the bottle on his upper body while he remains on the ground.

[23] While these assaults with the bottle are occurring, the smaller suspect is preventing the fourth male person from intervening on Mr. Massoud’s behalf. He stands between that man and the larger suspect and Mr. Massoud, to prevent the fourth male person from rendering any assistance. By 5:33:35 pm, Mr. Massoud has his hands up as if to communicate to the larger suspect to stop hitting him with the bottle, and the larger suspect kicks him in the head with his right foot. Mr. Massoud then begins to stand up and the larger suspect strikes him a fourth time with the bottle across the back of Mr. Massoud’s head. The bottle falls to the ground and the larger suspect retrieves it.

[24] Mr. Massoud is then able to stand, steady himself, and walks away from the suspects. The larger suspect continues to hold the beer bottle by the neck as if prepared to use it. At 5:34:37 pm, Mr. Massoud throws a punch with his right hand at the larger suspect. The smaller suspect attempts to separate him from the larger suspect as a result. Mr. Massoud then walks a few feet to the east, and the larger suspect approaches him again holding the beer bottle in his right hand. The larger suspect smashes the beer bottle over Mr. Massoud’s head, causing the bottle to shatter. Glass pieces fall to the ground. Mr. Massoud stumbles into the parking area just north of the parkette and towards the EYTC. He is visibly injured and bleeding.

[25] There are no further acts of violence. The southern-facing camera captures the suspects walking along the southern edge of the portable at 5:37:50 pm as they leave the area. They are calm and talking to one another.

IV. Testimony of Ahmad Massoud

[26] On September 27, 2020, Mr. Massoud attended the convenience store near the south entrance of the EYTC. He found his way to the parkette where he was approached by the smaller suspect. He asked Mr. Massoud for a cigarette. Mr. Massoud then offered a cigarette to the second, larger suspect, who responded by punching him. Mr. Massoud was then struck repeatedly by both men and felt dizzy. The larger man punched him first, and then the smaller suspect punched. They also choked him. He did not remember much else and awoke later to find himself at Sunnybrook Hospital being treated for his injuries. He pointed to a significant scar that he has on the left side of his face, which he explained was caused by the suspects cutting him with a knife, although he never saw a knife. Photographs of those injuries were made an exhibit.

[27] Upon further questioning by Mr. Hogan, Mr. Massoud admitted that he had been drinking with his friend and some other people earlier in the day. He had consumed three beers and three shots of vodka. Video surveillance evidence obtained from the rear entrance of the EYTC recorded him stumbling around, meandering aimlessly from one location to another. He appears to be visibly intoxicated.

[28] Mr. Massoud identified the smaller of the two suspects who asked him for a cigarette as “A-Ton”. Ms. Sansanwal ultimately conceded that this person was Mr. Siddiqui. Mr. Massoud was not familiar with the second, larger suspect. Mr. Massoud had seen the larger suspect once before the events of September 27 while the larger suspect was in the company of Mr. Siddiqui at the EYTC in front of the convenience store. When Mr. Massoud was asked by the Crown if he could identify the larger suspect as being present in the Zoom courtroom, Mr. Massoud did not choose anyone. At that time, Mr. Kawall was present on the screen under the name “Keenan K.”

[29] Mr. Massoud identified himself and the suspects in a screen capture taken from the school’s portable video.[^4] Mr. Massoud was adamant that the suspects stole his cell phone and tried to kill him. He returned to this point several times during his testimony. In cross-examination, he conceded under questioning by Mr. Moriah that he did not remember when or how he lost his cell phone. He admitted that while he told a police officer in his initial statement that the suspects had also taken some of his other personal items – for example, his debit card – he realized later that he was mistaken. That realization came when the police officers returned those items to him having located them in his belongings at the hospital.

V. Police Investigation and Testimony

(i) DC Janjanin

[30] DC Janjanin was the lead investigator. He attended the EYTC and reviewed the surveillance video footage. He enlisted the assistance of PC Espino, a neighbourhood officer familiar with Thorncliffe Park and its residents. He was able to obtain images from these videos of both suspects and established a timeline of the events that unfolded on September 27, 2020.

[31] PC Espino identified Mr. Siddiqui as one of the two suspects in the surveillance footage. Neither DC Janjanin nor PC Espino was able to identify the second suspect.

[32] PC Espino informed DC Janjanin that he had a photo of a person that he saw at the EYTC on September 5, 2020. He believed that person was the second suspect in the surveillance video. DC Janjanin sent this picture along with images from the surveillance video to an officer who specializes in facial recognition software. This facial recognition analyst concluded that a potential candidate for the suspect pictured in the photograph obtained on September 5, 2020, was Mr. Kawall. She provided DC Janjanin with Mr. Kawall’s full name and date of birth. DC Janjanin reviewed arrest photos that were already in a TPS database for Mr. Kawall and formed reasonable grounds to believe that Mr. Kawall was the second suspect.[^5]

[33] A search warrant was obtained for Mr. Kawall’s residence in Scarborough. The warrant was executed by DC Janjanin and other police officers on October 5, 2020. Mr. Kawall was home at the time, and he was arrested. A search of the basement area of his residence resulted in the officers seizing a pair of blue jeans, a black t-shirt with the word Adidas across the front of it, and a pair of black running shoes with white soles.[^6] His passport and health card were also located.

[34] A photograph of Mr. Kawall taken shortly after his arrest was also made an exhibit.

(ii) PC Dolenc

[35] Officer Dolenc #91387 attended at the scene on September 27, 2020, at approximately 6:45 pm. She noticed a considerable amount of blood in and around the parkette. She began a search for evidence.

[36] She returned to the scene on September 30, 2020. She received new information that a broken Corona beer bottle may have been used as a weapon during the assault. She recalled that she had seen broken beer bottle pieces on September 27. When she returned to the parkette, she located broken bottle pieces in the area where the assault occurred near two trees. One of those pieces had the Corona logo on it. The neck of a beer bottle with the cap still attached to it was also located.

(iii) PC Espino

[37] PC Espino was the 53 Division neighbourhood officer assigned to Thorncliffe Park. PC Espino was acquainted with Mr. Siddiqui. He had many prior interactions with him, which began in 2017.

[38] On September 5, 2020, PC Espino was on patrol in Thorncliffe Park and came upon Mr. Siddiqui and several other male persons in the parkette near the rear entrance of the EYTC. His attention was drawn to a person whom he had never seen with Mr. Siddiqui before. He had a memory of seeing this person with Mr. Siddiqui two weeks prior. Since PC Espino considered Mr. Siddiqui to be a person who was known to be engaged in unlawful activities, he took interest in Mr. Siddiqui’s newfound associate. PC Espino took digital photographs of the unfamiliar person on September 5, 2020. Those photographs were made exhibits and provide a clear image of the face, body, and clothing of Mr. Siddiqui’s associate, from both a frontal perspective and a side profile.

[39] PC Espino testified that in his opinion, the smaller person captured in the images of the suspects involved in the assault on Mr. Massoud obtained from the school portable surveillance video was Mr. Siddiqui. I granted the Crown’s application to introduce this non-expert opinion evidence: see R. v. Siddiqui, 2022 ONCJ 147. A summary of PC Espino’s evidence regarding his prior interactions with Mr. Siddiqui is contained within that ruling.

VI. Position of the Parties

[40] Mr. Hogan submits that the evidence demonstrates that Mr. Kawall is the larger suspect in the video footage. He invited me to compare his appearance in court to the video evidence. While no one identified Mr. Kawall directly, he submits that I can compare his known arrest photograph to the video surveillance footage. He submits that I should be satisfied that it is the same person. He also points to the clothing seized at Mr. Kawall’s residence, which appears to be a match for the clothing worn by the larger suspect.

[41] Mr. Kawall and Mr. Siddiqui are on the video footage assaulting Mr. Massoud. Early in the video, Mr. Kawall is choking Mr. Massoud while he is unable to resist, and Mr. Siddiqui strikes him across the face. Mr. Kawall only leaves Mr. Massoud once a third party intervenes. Mr. Massoud was so injured that he fell to the ground motionless. Mr. Hogan asks me to draw the inference that Mr. Kawall was trying to choke Mr. Massoud to death.

[42] At one point during the altercation, Mr. Massoud drops a phone and Mr. Siddiqui retrieves it from the ground and places it in his pocket, thus establishing a theft. Mr. Hogan has reasonably conceded that based on the particular evidence applicable to that count, the Crown cannot prove a robbery beyond a reasonable doubt. Rather, he asks me to find that Mr. Siddiqui opportunistically seized the phone.

[43] Later in the video, Mr. Kawall strikes Mr. Massoud several times with a beer bottle. The final blow caused the bottle to shatter, which caused serious injuries to Mr. Massoud’s face and neck. While this was occurring, Mr. Siddiqui was either also grappling with Mr. Massoud, or preventing another man from helping Mr. Massoud. Mr. Siddiqui is therefore a party to each of these offences.

[44] Mr. Moriah disputes that the evidence is sufficient to prove that the larger assailant was Mr. Kawall. He submits that I should be left with a reasonable doubt that he has been identified. He reminded me of the frailties of identification evidence in general. The clothing that was located in Mr. Kawall’s home was so generic as to be almost meaningless. It consisted of jeans, a t-shirt, and a pair of running shoes. There was nothing distinctive about it and there was no other evidence that linked those items to the crime scene.

[45] In the alternative, if I am satisfied that Mr. Kawall was the larger suspect, Mr. Moriah asks me to consider self-defence. Mr. Massoud was a visibly intoxicated, agitated, and unpredictable person. He initiated much of the violence himself. Mr. Kawall was left with no choice but to respond to ensure his safety. The video footage alone provides some evidence upon which I could conclude that Mr. Kawall was facing a violent threat.

[46] On the attempted murder count, it would be unreasonable to draw the inference that Mr. Kawall was attempting to kill Mr. Massoud. There was no reliable evidence of why this fight began, and certainly no evidence that Mr. Kawall wanted to kill Mr. Massoud.

[47] Regarding Mr. Siddiqui, Ms. Sansanwal cautions me against accepting the testimony of Mr. Massoud due to the significant problems with his credibility and reliability. He was, at a minimum, extremely intoxicated. He can be seen in the video looking for a fight. He was not the innocent victim that he claimed to be.

[48] There is insufficient evidence that Mr. Massoud was choked. He may have simply passed out due to being intoxicated. Regarding the theft charge, it is unclear what Mr. Massoud lost and unless the Crown proves that the item was a phone (as particularized on the Information), Mr. Siddiqui must be acquitted of the charge of lesser included theft.

[49] In her very comprehensive and helpful written submissions, Ms. Sansanwal carefully analyzed the video surveillance footage of the latter moments of the altercation with Mr. Massoud. She submits that the video demonstrates that Mr. Siddiqui was trying to stop the violence from escalating. He was not participating in any violence, and therefore, cannot be found to be a party to any offences. Whatever the other man did, Mr. Siddiqui cannot be found guilty merely for being present at the scene of a crime committed by another person.

VII. Presumption of Innocence

[50] Mr. Siddiqui and Mr. Kawall are presumed innocent. The Crown must prove their guilt beyond a reasonable doubt. A reasonable doubt may be derived from the evidence or the absence of evidence: R. v. Lifchus 1997 CanLII 319 (SCC) at para. 39. I must consider all of the evidence presented during the trial when determining if the Crown has met its onus: R. v. Knezevic, 2016 ONCA 914 at para. 34.

VIII. Analysis

(i) Identification

[51] The primary issue in this trial was initially the identity of the persons who assaulted Mr. Massoud. The Crown relied on the video surveillance footage of the incident to prove that these persons were Mr. Siddiqui and Mr. Kawall. Following the conclusion of the trial, in light of a prior ruling that I made respecting the lay opinion evidence of PC Espino, Ms. Sansanwal does not dispute that Mr. Siddiqui is seen in the video surveillance footage. Mr. Moriah does not make such a concession regarding Mr. Kawall.

[52] In R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, the Supreme Court of Canada held that a trial judge can compare the accused in court to photographic or video evidence of a crime and determine if it is the same person or persons: see also R. v. Steadman, 2021 ABCA 332 at para. 30; R. v. Dirie, 2016 ONCA 502 at para. 7. Even a few frames “which clearly show the perpetrator… may be sufficient to identify the accused”: Nikolovski at para. 29.

[53] When comparing a videotape to in-court observations of an accused, there is a need to exercise great care. Video evidence will range in duration, quality, and clarity. The length of exposure of the suspect in the video must be reviewed. The time between when the video was taken and the trial may be considerable, and a person’s appearance may change over time: R. c. Neverson, 2020 QCCS 253 at paras. 189-92.

[54] I have reviewed the video surveillance evidence multiple times. It demonstrates that the larger suspect involved in the assault on Mr. Massoud is the same person who attended at the LCBO earlier in the day. The suspect’s face, hair, body, and clothing are clearly depicted in the video from the LCBO and EYTC. He purchases a six-pack of Corona beer bottles. The high-quality video from the school portable shows that this is the same person, wearing the same clothing, later that afternoon, and he still possesses the Corona beer bottles.

[55] Officer Dolenc observed broken pieces of a Corona beer bottle following the incident in the parkette. I accept her evidence. She testified clearly and professionally. She noted this in her memo book and drew rough sketches of the parkette and where she located the beer bottle pieces to provide as accurate a depiction as she could.[^7] She was not challenged on this aspect of her testimony in cross-examination. The location of the Corona beer bottle pieces is consistent with where the altercation with Mr. Massoud occurred.

[56] The video surveillance footage obtained from the school provides clear images of the suspects. I was able to rely upon multiple frames from this video footage for identification purposes: see for example Dirie, supra at para. 7.

[57] Comparing the video surveillance evidence to Mr. Kawall’s appearance during these Zoom proceedings, however, I am not prepared to say that I am satisfied beyond a reasonable doubt that it is the same person. Certainly, there is a resemblance between Mr. Kawall’s appearance on Zoom and the images presented to me from the video evidence. I have had the opportunity to see Mr. Kawall over Zoom for multiple days. However, I have not had the opportunity to see Mr. Kawall in person. I could not personally observe his height, weight, or stature. His hair appeared different in Zoom court than the suspect on the video surveillance footage. However, I find that his skin tone, facial structure, nose, and facial hair do bear a resemblance to the suspect.

[58] A resemblance, by itself, is an insufficient basis upon which a court can conclude that the accused was the person who committed the offence: R. v. Boucher et al., 2000 CanLII 3270 (Ontario Court of Appeal), at para. 19. Nevertheless, evidence of a resemblance between a suspect and the accused does provide some probative value on the issue of identity. Where there is other evidence of identification, the “combined force of evidence of a resemblance and other inculpatory evidence” may permit the Crown to meet its burden: see R. v. Rybak, 2008 ONCA 354, at para. 121.

[59] A search of Mr. Kawall’s residence revealed similar-looking clothing that the larger suspect is wearing in all of the video footage: blue jeans, a black t-shirt with the word Adidas written across the front, and black running shoes with white soles. That evidence was obtained on October 5, 2020, only about a week after the assault occurred.

[60] The larger suspect is seen in the EYTC and LCBO video footage in the same clothing purchasing a six-pack of Corona beer earlier that day. During the altercation, the larger suspect can be seen on the video footage assaulting Mr. Massoud with a sharp object that caused the laceration to Mr. Massoud’s face and neck. As previously noted, Officer Dolenc located broken Corona beer bottle pieces, including the broken head of a beer bottle with the cap still attached, on the ground where the assault occurred. I find that the larger suspect wielded a Corona beer bottle during the assault on Mr. Massoud.

[61] I have compared the arrest photograph of Mr. Kawall taken on October 5, 2020, to the video surveillance footage obtained from the EYTC, LCBO and school portable. I am satisfied that it is the same person. The suspect’s skin tone, facial structure, and facial hair are the same. The hair length appears to be the same as well, although, on the surveillance footage, the suspect has his hair tied back behind his head, whereas in the arrest photograph, it is not tied back.

[62] Comparing the photographs taken by PC Espino on September 5, 2020, to the arrest photograph of Mr. Kawall, I also find that it is the same person. The facial features are the same, including the shape of his nose and eyes. The hair is the same colour. The hair appears lengthy and somewhat frizzy. I acknowledge that there are some differences between the photographs. For example, the facial hair in the photographs is not the same (he appears more shaven in the September 5 photograph), and his hair is not styled the same way. This nevertheless provides further evidence that Mr. Kawall and Mr. Siddiqui spent time together in the general area where the assault occurred only a few weeks earlier.

[63] Considering all of this evidence, the Crown has proven beyond a reasonable doubt that the second, larger suspect was Mr. Kawall.

[64] In coming to these conclusions, I have also considered what evidence was not presented during the trial. There was no evidence presented to me of past associations or disputes between Mr. Siddiqui, Mr. Kawall and Mr. Massoud. Indeed, I have no evidence of why this incident occurred at all, as I reject Mr. Massoud’s testimony on this point. This must be considered: see R. v. Bero, 2000 CanLII 16956, Ontario Court of Appeal, at paras. 57-58. I also recognize that Mr. Massoud did not select Mr. Kawall from the Zoom proceeding when he was asked if he could identify the larger suspect. Nevertheless, I find that the Crown has met its burden on the issue of identification.

(ii) Evidence of Mr. Massoud

[65] There were significant problems with Mr. Massoud’s evidence. He was heavily intoxicated at the time of the incident and could not remember many details of what happened. He admitted that he felt dizzy after being struck. His testimony concerning how the altercation occurred – that he simply offered the second suspect a cigarette and was then assaulted – is implausible. He was a combative and defensive witness in cross-examination. He refused to directly answer questions. Mr. Massoud attempted to deflect when asked to acknowledge that he may have been so intoxicated that he was acting strangely. He insisted that his mind was in a “normal” state despite there being clear video evidence that he could not even walk straight minutes before the altercation. His limited memory of the events in question has been influenced, at least to some degree, by the information that he received from the police officers and court documents that he was able to review in advance of his testimony.

[66] Mr. Massoud’s significant degree of intoxication at the time of the incident, lack of memory, general unwillingness to answer questions directly, and steadfast refusal to even consider a suggestion contrary to his interest, render his evidence unreliable on any issue that is not independently confirmed by other evidence: R. v. Palmer-Coke, 2017 ONSC 4501 at para. 87.

(iii) Assault, Assault with A Weapon, and Aggravated Assault

[67] Aggravated assault requires proof that the accused “wounds, maims, disfigures or endangers the life of the complainant”: Criminal Code s. 268. The mens rea required for aggravated assault is that for assault plus an objective foresight of bodily harm. However, the Crown need not prove that the accused intended or desired to wound the victim. The Court must determine whether a reasonable person would appreciate the risk of bodily harm occurring from the assault: Williams, supra at para. 22.

[68] Mr. Kawall is captured on the surveillance video assaulting Mr. Massoud at several points by punching or kicking him. At the beginning of the video, Mr. Kawall hits Mr. Massoud directly in the face with a fist. There was no justification for this action. He is found guilty of assault.

[69] Mr. Kawall also directly assaulted Mr. Massoud by striking him four times with the beer bottle that he was wielding as a weapon. The repeated assaults on Mr. Massoud were unjustified. The final strike that caused the bottle to shatter resulted in sharp, broken glass that cut Mr. Massoud and left him with severe injuries to his neck, face, and ear. The video captures Mr. Kawall striking Mr. Massoud with the beer bottle four times between 5:33:07 and 5:34:53 pm. Following the fifth blow from the bottle, Mr. Massoud was bleeding profusely and required immediate treatment at a hospital. The photographs taken of the injuries to his neck show in graphic detail that he was wounded. Any reasonable person would have foreseen that assaulting him with a beer bottle, with such force, carried with it a risk of causing bodily harm.

[70] Mr. Moriah argued that self-defence must be considered. I agree that the defence is theoretically available even in the absence of Mr. Kawall testifying. The question is whether there is an air of reality to each element of the defence upon consideration of the whole of the evidence presented at the trial: see R. v. Chan, 2005 NSCA 61 at para. 34. I also agree that Mr. Kawall’s use of a beer bottle as a weapon does not necessarily preclude this defence either: see, for example, R. v. Mateo-Asencio, 2018 ONSC 173, at para. 127.

[71] Section 34 of the Criminal Code provides the statutory framework to evaluate a claim of self-defence:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties, and the act, including, but not limited to, the following factors:[^8]

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[72] The Supreme Court of Canada reviewed the components of self-defence in R. v. Khill, 2021 SCC 37. The court explained that there are three components to any claim of self-defence:

(1) First, that the accused must reasonably believe that force or a threat of force is being used against them;

(2) Second, that the subjective purpose for responding to the threat must be to protect oneself; and

(3) Third, the accused’s act must be reasonable in the circumstances.

[73] In R. v. King, 2022 ONCA 665, the Court of Appeal described these requirements as the catalyst, the motive, and the response: see para. 28:

The catalyst focusses on the accused’s state of mind and asks whether the accused subjectively believed on objectively reasonable grounds that force was being used or threatened against them or another person (s. 34(1)(a)). The motive asks whether the accused did something for the subjective purpose of defending or protecting themself or another (s. 34(1)(b)). The response asks whether the conduct of the accused was reasonable in the circumstances (s. 34(1)(c)) by having regard to the non-exhaustive list of factors in s. 34(2).

[74] In R. v. Willemsen, 2022 ONCA 722, the Court of Appeal clarified that to determine whether an accused person’s actions are reasonable, a trial judge must consider whether there were other means available to respond to the use of force. At para. 17, the Court cautioned against a “compartmentalized approach” to reviewing a fight, citing the Supreme Court’s direction in Khill that judges should avoid a “forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation”: see Khill at para. 83. The focus of the analysis must be on the entirety of the circumstances, and whether or not the accused acted for a defensive purpose.

[75] Even on a generous application of these provisions, and assuming that there is some evidence from which I could derive Mr. Kawall’s subjective assessment of any violent actions taken by Mr. Massoud, I am not left with a reasonable doubt that Mr. Kawall was acting in self-defence. At several points during the altercation, Mr. Massoud is completely defenceless. He is choked while lying on his back and he cannot resist. He is kicked in the head while he is on the ground. He is struck multiple times with a solid glass beer bottle while he is unarmed.

[76] Mr. Kawall had multiple opportunities to walk away. He did not need to use a weapon. He was much larger than Mr. Massoud. Mr. Kawall had the assistance of Mr. Siddiqui while Mr. Massoud was by himself. Other people, including security officers, were available in the nearby mall if he required assistance. While Mr. Massoud may have initiated some of the fight by foolishly striking at Mr. Kawall when he could not match him physically, that does not excuse Mr. Kawall’s actions. His use of force was vastly disproportionate to any possible threat that Mr. Massoud presented to him. The Crown has disproven self-defence beyond a reasonable doubt.

[77] I also do not accept that what occurred between the parties can genuinely be described as a consent fight. Mr. Kawall struck Mr. Massoud first and Mr. Massoud is then quickly overpowered. Mr. Massoud is consistently on the receiving end of various acts of aggression. Periodically, he chooses to strike at Mr. Kawall when he should have walked away himself. His poor judgment while intoxicated does not transform what was demonstrably a one-sided violent altercation into a consent fight. Even if Mr. Massoud’s actions at points during the video could be seen as him consenting to throw punches back and forth, Mr. Kawall far exceeded any such inferred “consent.” Furthermore, parties cannot consent to bodily harm in the context of a mutual fight and the use of a weapon would have fallen far outside the scope of any possible consent: see R. v. McDonald, 2015 ONCA 791, at paras. 12-15.

[78] Mr. Kawall is found guilty of assault with a weapon and aggravated assault.

[79] Determining whether or not Mr. Siddiqui is criminally liable for some of these offences requires a consideration of the principles of party liability. While Mr. Hogan invited me to consider both sections 21(1) and 21(2), I find it unnecessary to consider section 21(2).

[80] Section 21(1) of the Code states that anyone is a party to an offence who aids or abets another person in committing it. The actus reus of aiding or abetting is doing something that assists or encourages the perpetrator to commit the offence: R. v. Cowan, 2021 SCC 45 at para. 32. As explained by the Supreme Court of Canada in R. v. Greyeyes, 1997 CanLII 313 (SCC) at para. 26, aiding means to “assist or help” the principal offender, and abetting includes conduct such as “encouraging, instigating, promoting or procuring the crime to be committed.” Mere presence at the scene of a crime does not establish party liability, but presence at the scene combined with knowledge of the principal offender’s intention to commit a crime can be evidence of aiding and abetting: R. v. Carrington, 2017 ONCA 2 at para. 23.

[81] The mens rea for aiding and abetting requires that the party offered assistance for the purpose of aiding the principal offender to commit the crime: R. v. Briscoe, 2010 SCC 13, at para. 15. This requires proof of both intent and knowledge. The Crown must prove that the accused intended to assist the principal in the commission of the offence and that the aider must have known that the perpetrator intended to commit the crime: Cowan, supra, at para. 32. It is not a requirement that the Crown prove the aider knew exactly how the crime would have been committed: Briscoe, supra, at para. 17.

[82] I am satisfied beyond a reasonable doubt that Mr. Siddiqui is guilty as a principal offender on the count of assault, and as a party to the offence of assault with a weapon. The video footage of the altercation demonstrates that Mr. Siddiqui initially assaulted Mr. Massoud himself by striking Mr. Massoud across the face when he was pinned down by Mr. Kawall on the concrete barrier. After the fourth male party sought to intervene as the incident progressed, and Mr. Kawall wielded a beer bottle, Mr. Siddiqui actively attempted to block this other person from coming to assist Mr. Massoud. He continued to do this after Mr. Kawall struck Mr. Massoud with the beer bottle for the first time. He never left the side of Mr. Kawall and never appeared surprised, stunned, or shocked at what was happening. There is no evidence up to that point that he attempted to disassociate himself from Mr. Kawall’s conduct.

[83] Yet a careful review of the video demonstrates that after the first four blows from the beer bottle, Mr. Massoud had an opportunity to walk away from the altercation. Instead, he confronted Mr. Kawall again by throwing a punch at him at approximately 5:34:37 pm on the video. Before this moment, the extent of Mr. Massoud’s injuries is unclear. In the moments before Mr. Kawall struck Mr. Massoud the final time causing the bottle to shatter, Mr. Siddiqui may have been attempting to separate them or de-escalate matters. He was speaking to the unknown fourth male person. Mr. Hogan submitted that Mr. Siddiqui was continuing to prevent the unknown person from intervening and thus he remained a party to all strikes caused by the bottle. I respectfully cannot draw that conclusion. Mr. Siddiqui does not appear to be trying to block that person from assisting Mr. Massoud as he does earlier in the video. Rather, he was speaking to him calmly as they both walked toward Mr. Kawall. He remained a small distance away from where the final blow happened.

[84] This series of events raises doubt in my mind that Mr. Siddiqui intended to continue supporting the assault on Mr. Massoud once it had reached this point. It is also some evidence of the defence of abandonment. In R. v. Gauthier, 2013 SCC 32, the Supreme Court held that this defence applies in the context of party liability where there is some evidence concerning the following four required elements at para. 50:

(1) that there was an intention to abandon or withdraw from the unlawful purpose;

(2) that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue;

(3) that the communication served unequivocal notice upon those who wished to continue; and

(4) that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.

[85] This was a fast-moving situation. As previously stated, I find that Mr. Siddiqui was actively participating in the assault on Mr. Massoud and continued to assist Mr. Kawall after he began to wield the beer bottle. Yet before the final blow which caused Mr. Massoud’s serious injuries, I am left with a reasonable doubt that Mr. Siddiqui had re-assessed the degree of violence that was occurring and was attempting to stop matters from continuing. It may have been all that was reasonably possible in the heat of the moment. While there are competing inferences to be drawn from Mr. Siddiqui’s conduct based on these portions of the video, one reasonable inference is what I have described which is inconsistent with a finding of guilt.

[86] As a result, I find him not guilty of aggravated assault.

(iv) Assault - Choking

[87] Both accused parties are charged that they “did, in committing an assault on Ahmad Massoud, choke him” contrary to Criminal Code section 267(c). There is no definition of “choke” or “choking” in the Criminal Code. Merriam-Webster’s dictionary defines choking as “to check or block normal breathing of by compressing or obstructing the trachea or by adulterating available air.”[^9] The Cambridge online dictionary defines choking as to “stop breathing because something is blocking your throat.”[^10] In R. v. Bear-Knight, 2021 SKQB 308, the Court found that “designed to prevent or seriously impair a person’s ability to breathe”, through actions such as “squeezing the neck or throat”: see para. 77.

[88] Mr. Massoud testified that he was choked by his assailants, although he never testified that he could breathe. Relying on the video taken from the school portable, I have already found that Mr. Kawall held Mr. Massoud down with both hands around his neck and throat area while Mr. Massoud lay on a concrete barrier. Mr. Massoud was incapable of moving as a result. This lasted for about thirty seconds. Mr. Kawall exerted considerable pressure on Mr. Massoud’s neck and throat and Mr. Massoud was entirely powerless as a result. His body went limp as he appeared incapable of resisting, and when Mr. Kawall finally released him, he fell to the ground and did not move for over forty seconds.[^11] This stands in stark contrast to how Mr. Massoud was behaving before being held down on the concrete barrier and how he behaves later as the altercation continues. The only reasonable inference that can be drawn from this evidence is that Mr. Massoud was being choked to the point of having difficulty breathing.

[89] I am satisfied beyond a reasonable doubt that Mr. Massoud was choked as contemplated by this section. Mr. Kawall is guilty of this count. Mr. Siddiqui independently assaulted Mr. Massoud while Mr. Kawall was choking him and his actions aided Mr. Kawall. Mr. Siddiqui was right next to Mr. Massoud and saw exactly what Mr. Kawall was doing. He had the requisite intent and knowledge to fall within the ambit of aiding and abetting: Briscoe, supra, at para. 15. I find Mr. Siddiqui guilty of this offence as well.

(v) Robbery / Theft

[90] Mr. Siddiqui and Mr. Kawall are charged with robbing Mr. Massoud of a cell phone contrary to Criminal Code section 343. In light of the Crown’s concession made during closing arguments, I have focused on my analysis on whether Mr. Siddiqui could be found guilty of theft under $5000.

[91] Mr. Massoud testified that the suspects took his cell phone during the altercation. In cross-examination, he conceded that he did not remember when his phone was taken. He could not even remember if his phone was taken before or after he was first struck in the parkette. He agreed with a suggestion put to him by Mr. Moriah that he could not say that his phone was taken at the time of the altercation. He later stated that “maybe” they took his phone.

[92] Mr. Massoud was presented with his police statement in cross-examination and agreed that he initially told the police that the suspects had taken several of his items, including his lottery tickets, and debit card. He assumed that they had taken these items because when he awoke at the hospital, he could not locate them. Once he had a chance to review the photographs taken by the police of the items that they were able to recover from his clothing at the hospital, he agreed that not all of these items had been taken after all.

[93] The video evidence from the school portable does depict Mr. Massoud losing an item when he is shoved to the ground and Mr. Siddiqui retrieving it. It is not clear exactly what the item was. I am unable to come to a factual determination as to whether this item was a phone. While the way that Mr. Siddiqui handles the item after retrieving it does suggest that it could be a phone, his manner of handling the item is insufficient to lead to such a factual determination.

[94] The video footage is clear that Mr. Siddiqui opportunistically retrieved an item that fell from Mr. Massoud’s possession after he was pushed to the ground by Mr. Kawall. In her written submissions, Ms. Sansanwal argued that the Crown was required to prove that the item stolen was a cellphone.[^12] In her oral submissions, she argued that the defence of Mr. Siddiqui would be prejudiced if the Crown was allowed to prove the theft charge on another basis, for example, that something else of value was taken from Mr. Massoud.

[95] Section 581 of the Code requires that “a count shall contain sufficient details of the circumstances of the alleged offence to give the accused reasonable information with respect to the act or omission to be proved against him”. Where details are added to a count beyond the essential elements of the offence, the “surplusage rule” stipulates that the Crown need not prove these additional elements. What constitutes “surplusage” is context-dependent, but generally it refers to “non-essential averments”. It is only where the accused would be misled or prejudiced that the Crown must prove these additional elements: see R. v. Bansfield, 2021 ONCJ 2 at paras. 74-77; R. v. Nikkel, 2007 MBQB 290 at paras. 120-126; Vézina and Côté v. The Queen, 1986 CanLII 93 (SCC), [1986] 1 SCR 2.

[96] The particularization of the robbery count to allege that a phone was taken cannot be characterized as mere surplusage. In R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] S.C.J. No. 22, the Supreme Court held that particulars have the effect of forming part of the indictment and must be proven beyond a reasonable doubt: see paras. 5 and 6. This issue arose before the Ontario Court of Appeal regarding a robbery charge in R. v. Labonte, 2016 ONCA 246. The indictment alleged that the appellant “did steal money” and “did use violence” against the victim. The Court held that the Crown particularized the robbery charge and it had to prove that money was stolen to make out the charge. The trial judge did not make factual findings that money was stolen and as a result the conviction was overturned on appeal: see paras. 61-66.

[97] As I cannot conclude that a phone was stolen, and that was how the count was particularized and prosecuted, I find Mr. Siddiqui not guilty of robbery and the lesser included offence of theft under $5000.

[98] Based on Mr. Hogan’s concession, I also find Mr. Kawall not guilty of robbery.

(vi) Attempted Murder

[99] Mr. Kawall is charged with attempting to murder Ahmad Massoud by choking, contrary to Criminal Code section 239(1).

[100] The actus reus of attempted murder requires that the Crown prove that the accused began an act intended to result in death: Deutsch v. The Queen, 1986 CanLII 21 (SCC) at p. 25. More than mere preparation is required, and the line between sufficient steps being taken towards the commission of an offence and mere preparation is left to be drawn by the “common sense of trial judges”: R. v. Goldberg, 2014 BCCA 313, at para. 41.

[101] In R. v. Ancio, 1984 CanLII 69 (SCC) at p.249 the Supreme Court of Canada held that the mens rea for attempted murder cannot be less than the specific intent to kill. The Crown cannot simply prove that the accused had the intention to harm the victim even with severe consequences that could have led to death. The Crown must prove the accused had subjective foresight of the consequences of his actions: R. v. Reeves, 2012 BCCA 98, at para. 10.

[102] I have no evidence of any motive that Mr. Kawall might have had for the assault on Mr. Massoud and very little evidence of what was said between the parties during the altercation. For example, there is no evidence that the accused uttered a threat or desire to kill Mr. Massoud to anyone: R. v. A.D.Y, 1992 CanLII 192 (BCCA). Evidence of motive can be crucial to deciding the issue of intent, particularly when deciding if unlawful conduct amounts to a form of murder: R. v. Hill, 2015 ONCA 616, at para. 59.

[103] At the time he was choked, Mr. Massoud was utterly defenceless. He was lying limp on his back and Mr. Kawall had complete domination over him. Yet ultimately, Mr. Kawall let him go.

[104] Mr. Hogan submits that by holding Mr. Massoud’s throat with significant pressure for over twenty seconds, I can draw the inference that Mr. Kawall had the intent to kill. Mr. Massoud testified that he was certain that he almost died on September 27, 2020. I accept his subjective belief as sincere.

[105] However, the requirement for a conviction on this count requires that the Crown prove, beyond a reasonable doubt, that Mr. Kawall had the specific intent to kill Mr. Massoud. I have reviewed in great detail the entire altercation in the parkette, including what happened before, during, and after Mr. Massoud was choked. I am left with reasonable doubt concerning Mr. Kawall’s intent.

[106] Mr. Kawall is found not guilty of attempted murder.

Offence	K. Kawall	A. Siddiqui
Count 1: Assault (Code s. 266)	Guilty	Guilty
Count 2: Assault – Choking (Code s. 267(c))	Guilty	Guilty
Count 3: Attempted Murder (Code s. 239(1))	Not guilty	N/A
Count 4: Robbery (Code s. 343)	Not guilty	Not guilty
Count 5: Assault – Weapon (Code s. 267(a))	Guilty	Guilty
Count 6: Aggravated Assault (Code s. 268(2))	Guilty	Not guilty

Released: March 20, 2023

Signed: Justice Brock Jones

[^1]: During PC Espino’s testimony, he gave estimates ranging from 70 feet to 110 feet. [^2]: Exhibits 9 and 13. [^3]: This video’s time and date information appears as it appears on the screen is approximately 13 minutes out of synch with the video from the East York Town Centre. [^4]: Exhibit 31A. [^5]: The Crown lead this evidence solely to explain the steps taken by DC Janjanin during his investigation. It was not presented as affirmative evidence that the suspect in the surveillance video was in fact Mr. Kawall. The defence did not object to the evidence being tendered for this purpose. I have instructed myself accordingly, and do not rely upon the facial recognition software results to determine the identity of the suspect in the surveillance video. [^6]: The Crown lead this evidence through DC Janjanin even though other officers were involved in the search. While some of DC Janjanin’s evidence is therefore reliant on hearsay, the parties are content that I can rely upon his testimony as evidence of where the items were located in the residence when they were seized. [^7]: Exhibit 29. [^8]: My emphasis, added in bold. [^9]: Choke Definition & Meaning - Merriam-Webster [^10]: CHOKING | meaning in the Cambridge English Dictionary [^11]: Exhibit 9, from 5:27:15 to 5:28:24 pm, captures the entirety of the choking portion of the assault. [^12]: Defence written submissions at para. 46.