DATE: 20120417
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SANJAY FRANCIS
-and-
JUSTIN COSTELLO
Monica Gharabaway, for the Crown
Nathan Gorham, for Sanjay Francis
Ferhan Javed, for Justin Costello
JUDGMENT
McCOMBS J.:
aPRIL 17, 2012
INTRODUCTION
On January 25, 2010, somewhere between 4 and 5 a.m. on the large outdoor patio of the Guvernment Entertainment Complex, a popular, crowded nightclub in Toronto, Jonathan Chionidis was seriously injured in a violent assault.
Sanjay Francis was working at the club on the security team as a bouncer. Justin Costello was a patron of the club. They each are charged with aggravated assault upon Mr. Chionidis. There is no dispute that Mr. Chionidis was the victim of a severe assault and it is conceded that his injuries were of sufficient severity to support a conviction for aggravated assault.
POSITIONS OF THE PARTIES
(a) Crown
- The position of the Crown is that the evidence establishes beyond a reasonable doubt that Francis and Costello each participated in the unlawful aggravated assault upon the victim, and that they have both been proven guilty of the offence.
(b) Defence
i. Mr. Francis
- Francis’s position is that he was simply doing his job working in the club as a bouncer with the responsibility of maintaining order. Francis testified that he took action to break up a fight he encountered between Chionidis and another patron. He grabbed Chionidis around the neck from behind in an effort to break up the fight. Chionidis struggled violently and they both fell to the floor. It was then that an unknown assailant kicked the victim in the head more than once, causing his injuries. Francis did not participate in the aggravated assault on the victim and was only trying to do his job.
ii. Mr. Costello
- In the case of Costello, the issue is identity. The defence position is that the evidence does not establish beyond a reasonable doubt that he was a participant in the aggravated assault on the victim.
OVERVIEW
The Crown relies on the evidence of six witnesses. Five of the six Crown witnesses were at the crowded nightclub that night. Three of them were security employees: Gentian Barsaku, his supervisor Hubert Mark, and Jamil Kamal, head of security. Importantly, Mr. Barsaku was the only security employee called by the Crown who testified that he was actually present at the time of the assault. The other two witnesses called by the Crown who were present when the assault occurred were the victim’s friend, Steve Park, and the victim, Jonathan Chionidis. The sixth Crown witness was not at the club that night. She is Mr. Francis’s former girlfriend, Felicia Maclean.
As I noted earlier, Francis gave evidence in his own defence. He also called the officer in charge of the investigation, Detective Dee Dee Newton, who gave evidence concerning prior consistent statements made by Francis to her and her partner on April 4, 2010[^1].
Costello elected not to call a defence.
DISCUSSION AND CONCLUSIONS
The Crown faced many difficulties in the presentation of this case.
The three security employees who testified for the Crown had either limited or no opportunity to observe the assault.
The identification of Costello by the one security employee, Barsaku, who saw part of the assault and broke it up, is unreliable in several respects, as I will discuss below.
The evidence of Mr. Chionidis and his friend Mr. Park concerning the role played by Francis, and the identification of Costello as Chionidis’s kicker was, as I will discuss, rife with inconsistencies and implausibilities. Moreover, the evidence of Chionidis and Park has been profoundly eroded by the demonstrated likelihood that they colluded in preparing a statement to provide to Chionidis’s civil lawyer in support of a civil action against the nightclub for more than $900,000. As well, Park has acknowledged that he has repeatedly lied, to his friend Mr. Chionidis, to the police, and also in court under oath.
Moreover, each of the three Crown witnesses who were present during the assault have given markedly different versions of the same event. Barsaku, the security officer who broke up the melee, testified that he saw Mr. Francis and Mr. Costello standing, each moving a leg in a kicking motion while the victim was down. Park, on the other hand, testified that he saw the whole thing and that Francis did not kick the victim but rather put him in a chokehold and punched him repeatedly in the side of the face. Moreover, during the assault on Mr. Chionidis, Park was punched in the head by a different assailant and knocked to the ground. Chionidis, on the other hand, testified that Francis put him in a chokehold and was strangling him and holding him helpless as he was being repeatedly punched and kicked by one or more assailants. Chionidis testified that Francis did not punch or kick him.
As well, there is an existing animus on the part of Ms. Maclean, who is Mr. Francis’s former girlfriend. She is the complainant in criminal allegations against him that are presently outstanding. In the circumstances, as I will discuss, her evidence that Mr. Francis confessed his guilt to her must be approached with caution.
Moreover, there is no video surveillance evidence despite the fact that the Guvernment Entertainment Complex had video surveillance cameras throughout the club, including on the patio, positioned in a manner capable of recording the events of the assault. The explanation for the unavailability of the video is confusing and unsatisfactory. Although I do not suggest the video has been intentionally suppressed, the absence of video evidence makes the task of determining the facts much more difficult.
I will discuss the evidence of each of the important witnesses in turn.
A. Gentian Barsaku
- Mr. Barsaku testified that he rushed from inside the nightclub out to the crowded patio after learning there was a fight. He saw Francis and Costello standing on the other side of the waist-high bar, each moving his leg in a kicking motion. He did not see the victim until he got closer and pulled Francis and Costello away. He was almost immediately jumped from behind by a third patron whom he subdued and quickly escorted from the club. He had only a limited opportunity to observe the assault and the assailant he alleged to be Costello, whom he did not know and could not recall having seen before.
(i) Mr. Barsaku’s claim of seeing Francis kick the victim
- I have concluded that Barsaku’s testimony that he saw Francis standing and making a kicking motion in the direction of the victim who was lying on the floor is unreliable for a number of reasons:
His view was obscured by the less-than-perfect lighting, and the waist-high bar in the center of the large patio from which alcohol is served until closing time.
He had only a limited opportunity to observe the events—a matter of seconds.
He was dealing with a volatile and potentially dangerous situation that was almost immediately made worse when he was personally assaulted by a third unknown patron who jumped on his back.
He understandably had to shift his focus to the patron who was assaulting him. After that patron was subdued, Barsaku immediately escorted him from the club. Inexplicably, the identity of that patron was not determined.
Barsaku was no doubt upset with