COURT FILE NO.: CR-10-9347

DATE: 2012/10/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JESSY COLTON BRETHOUR

Matthew James Geigen-Miller, for the Crown

Marni D. Munsterman, for the Accused

HEARD: April 23, 24, 25, 26, 27, 30 and May 2, 3, 4, 2012 (Ottawa)

REASONS FOR JUDGMENT

BEAUDOIN J. (orally)

[1] Jessy Colton Brethour is charged:

That on or about the 26th day of September in the year 2009 at the City of Ottawa in the East Region did commit an assault on Khosrow Nazary, did wound, maim, disfigure, or endanger the life of the said Khosrow Nazary and thereby commit an aggravated assault, contrary to Section 268(2) of the Criminal Code of Canada;

Further, that on or about the 26th day of September in the year 2009 at the City of Ottawa in the East Region did being at large on recognizance entered into before a justice and being bound to comply with the condition thereof, namely, keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada;

And lastly, on or about the 26th day of September in the year 2009 at the City of Ottawa in the East Region did being at large on a recognizance entered into before a justice and being bound to comply with the condition thereof, namely reside at 125 Plamandon Way, Fort McMurray, Alberta, and notify Constable Mineroli of the Ottawa Police Service 24 hours prior to and in writing of any change address, fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.

[2] This trial focuses on the events that took place at a gas station on the west side of the City of Ottawa in the early morning hours of Saturday, September 26, 2009. It is admitted that the accused, Jessy Brethour, was present and was involved in the altercation that took place. Who did what was in issue for the trial. He has admitted his guilt to the second section 145(3) count of breach of conditions and a conviction is entered on that charge.

The Case for the Crown

[3] The first witness for the Crown was Khosrow Nazary ("Nazary") who also goes by the name of Sean Nazary. On September 26, 2009, he was 24 years old and had been living in the Ottawa area approximately four weeks. He worked as the sales manager for an energy company. He had been in Toronto that day for work purposes and got picked up at the airport by his boss, Jody Kelly. Nazary had the payroll cheques for all the guys at the Ottawa office and since it was a pretty good pay week they went out for a couple of drinks and some dinner. The group went to a downtown pub, the Heart and Crown. Nazary said he had a couple of Budweiser beers. After one hour and a half, the group went to a club. While he was there, he said he drank a couple of beers and his group bumped into some girls and they partied. He did not know the girls but he came to know a girl by the name of Karima who was with a group of friends.

[4] As he and his boss were leaving, they ran into Karima and another girl whose name he later learned was Andrea Portillo. His boss wanted to go home but Nazary said he decided to go with the girls as they would drive him home. Just after they left, two other girls jumped into the car, who we later learned to be Sara Khair and Audriena Downey. Karima and Andrea were in the front and Nazary was in the backseat position between the other two girls. They went to a Pizza Pizza and a TD Bank close by. He testified he took out some money from the bank for food, some drinks and gas money. Karima went into the bank with him. Sara and Audriena went for pizza and drinks but he did not get anything to drink. As he was thirsty, they ended up at a gas station at around midnight or 12:30. After reviewing the video surveillance, he acknowledged it must have been later.

[5] He could not remember entering the gas station but the video surveillance showed otherwise. He recalled going back to the car where he saw a cluster of people. A man approached him and took a swing at him and he recalled backing up a bit and waking up two days later in the hospital. He did not recall whether or not any words were exchanged between him and this man who was unknown to him. To the best of his recollection, he did not want or accept to be in any kind of a fight or physical confrontation with this person. He described his last memory as this: "That was it. Just this person taking a swing at me and me backing up, being like – kind of like stop or whatever and that's all. I can't remember anything else." As he said this, he made a gesture with his hands putting his hands out in front of him in an open fashion. When asked about his gestures, he testified that he didn't like to be violent.

[6] He recalled waking up in the hospital, swollen, bruised and battered. He was in pain and he could not move his body, had massive headaches and he could barely breathe. He knew that he had surgery. As he testified, he was referred to an arc‑shaped scar on the right, upper side of the top of his head all the way down to the right ear that was a result of the surgery. After the surgery, he remained in Ottawa for a week but he was unable to work so he lost his job. Since the incident, his vision is terrible and it gets blurred particularly in the right eye. He has headaches every 48 to 72 hours and his sleep has been affected, primarily because of the headaches. His ability to stand or walk for periods of times is affected. He was unable to drive a car up until about four months before the trial.

[7] Nazary was cross‑examined at considerable length. He was questioned at length about the drinks he had and the events leading up to his attendance at the club and the events there. He recalled meeting Karima and later Andrea Portillo. He agreed that he "hooked up" with them at some point in time when he was leaving. When he was asked if it was possible that he had more drinks than he testified to, he said he "highly doubted it". When asked about drugs, he said he did not do drugs. When asked if he remembered having any discussions with the girls about ecstasy, he was not 100 percent sure but the idea was embedded in his head. He recalled the girls were discussing it and said he would never do ecstasy in his life.

[8] He remembered leaving the club and going to Pizza Pizza and stopping at the bank. He said that he was not feeling well at that time. When asked if he felt intoxicated, he said he felt uncomfortable and dehydrated. He said he felt a little bit intoxicated, that he definitely had a "buzz". In general, he was fairly agreeable to suggestions that defence counsel put to him. He was adamant that he had not consumed drugs, and when he was reminded that ecstasy was found in his system, he testified that he did not understand how that could have happened. He answered that, in his mind, he believed that somebody had given him ecstasy in the club unwillingly because he felt uncomfortable before leaving the club, something that he had never felt before.

[9] He was asked about how two other girls had come up to be with him in the car and he believed that he left with Andrea and Karima and they had driven for a period of time before the other two girls jumped in. When it was suggested to him that the girls had made the decision to continue to party and to buy some ecstasy, that he was part of that agreement, he said that he could not remember. Again, he was reminded the girls would testify that he was bragging about how much money he had, that he owned a Ferrari and that he was going to rent a hotel for the night so that they could party. He conceded that he may have said something else to the girls about partying but he did not really have the intention of carrying through on that. He said, "So ... like if everyone is saying it, then it must be true." Again, it was put to him that if the girls said that he consumed ecstasy voluntarily, his answer was, "Then I guess I did it."

[10] He was referred to his evidence that he did not want to accept to be in a fight and he was asked if he could say that with any certainty. He replied that he did not like violence. When asked again whether or not it was plausible that in the beginning he was a willing participant in a physical altercation over the girls, he answered, "It could be possible. I have no clue."

[11] He described the person who assaulted him as having a medium build but because he himself is over six feet four inches, people seem smaller to him because he looks down on them. He was shown some photographs. He was shown a photograph of Brethour, and Nazary described that person as having a medium build.

Andrea Portillo

[12] Andrea Portillo testified that on Friday, September 25, 2009, she was out with her friend Sara Khair and they had gone to a friend's house to pre‑drink before heading out to the bar. She said she did not consume alcohol since she had a pretty good idea that she would be driving that evening, which proved to be the case.

[13] She says that they arrived at the Mansion night club at around 11:30. She drove Audriena Downey, Sara Khair, and Karima Ibrahim. She said they left around 1:30 since the bar usually closes at 2:00. She said she had just one drink that she sipped the whole time. As she was leaving, she found Karima and Nazary was still with her. Her plan was to find Sara and Audriena since Nazary had brought up the idea of a hotel party. She said Nazary offered to pay for the hotel and everything. She was with Karima and Nazary and then they went outside and Sara Khair and Audriena were out there already. They all left together.

[14] She said Audriena wanted food so they went to the Pizza Pizza and Nazary wanted her to drive him to the bank, so they went to the TD Bank nearby. Karima was in the front. Sara sat directly behind her, Nazary was in the middle and Audriena was on the right‑hand side. People got out of the car to go to the bank or to get pizza and they all reassembled in the same place. She admitted she was experimenting with ecstasy. She took a half of a pill and that Karima and Nazary each had a half of another pill. She did not see Sara or Audriena use any. She said they took ecstasy because they wanted to keep partying and there was nowhere to get alcohol. Andrea knew someone who could get the pills. She messaged her friend, Jacob, and he told them to meet him at the gas station at Parkdale.

[15] They arrived at the gas station around 2:30 or 3:00. She said Karima got out to use the bathroom and Nazary got out of the car to buy drinks and chips and stuff for the hotel party. She said no one else got out of the car at that point in time. She parked her car to the right‑hand side of the gas station building. As they were waiting for Karima and Nazary to exit the gas station, two guys approached them. She said they came up to her car window and asked how her night was going, and they mentioned about getting into a fight earlier at a club with a bouncer. She said that the person who was talking had a shaved head and wore a chain. She did not pay much attention to the other man.

[16] Nazary came out and he came to ask them what kind of food or drinks they wanted, and he noticed that the two guys were standing there. She said that one of the guys had said, "We're not done talking" and that Nazary said, "They didn't come with you," and then that is when the fight broke out. She said Nazary just looked like he wanted them to like go away and just when it looked like they were going to walk away, the guy with the shaved head just punched Nazary in the face, and then Nazary started punching back.

[17] She then backed her car out and she did not see the rest of the fight. According to her, Nazary had done nothing physical before the punch was thrown. He just told the guys that the girls had come with him, and that was all. She said the fight started right beside her car and then moved to the front of the car, and that is when she started backing out. She said that Nazary was throwing punches as though it did not really look like he was trying to hit anything. She said that the guy with shaved head continued to fight. As for the other guy, it looked like he was going to help his friend because he was throwing punches too. She said she backed up and did a reverse u‑turn around the gas pumps and parked on the other side of the store. By that time, Nazary was on the ground. The two "white guys" had run off.

[18] All this time, she said Sara was in the back seat with Audriena but Audriena opened the door as she was backing out and ran out to get in between the fight. She said that the guy with the shaved head looked like he had been drinking at the time because he was swaying when he was talking to her. She stayed at the gas station and her friend, Jacob, showed up and helped her pump the gas.

[19] She said afterwards they drove around and they were not sure what they were going to do as they were not sure about Mr. Nazary's condition. They wanted to know if there was a place where they could drop him off or if he wanted to go to the hospital. She claims that he did not want to go to the hospital; that he still wanted to have the hotel party. She said they went to the bank to get more money. She said Nazary gave her his bank card and his PIN to get some money to pay for the hotel and for any damage that had happened to her car.

[20] The Crown referred to some further withdrawals made by herself and Ms. Ibrahim, and to the fact that the debit card was not returned. Ultimately a charge was laid against herself and Ms. Ibrahim, and she was convicted of possession of stolen property and fraudulent use of a credit card in November 2010. Ultimately, they decided to end the evening. They drove downtown where Sara's car was parked and Audriena and Sara then took Nazary to the Ottawa Hospital, Civic Campus.

[21] She was also cross‑examined at considerable length by the defence. She was asked about discussions that she had with the other girls about the events of that night. She said the discussion was just very general, just about how crazy the whole incident was. She said they did not talk particulars and did not go into detail and that they had really focussed on Sara Khair's actions. She was questioned about Nazary's tone of voice when he spoke to Brethour. She said it was normal. She did not think that Audriena was that drunk. She said she "kind of like snapped out of it, when that happened" because she got "right in the middle of it." She indicated that Nazary started to fight but that was only after the first punch was thrown.

Audriena Downey

[22] The next witness was Audriena Downey. She recalled going to her friend's place to pre‑drink before going out to the bar. She had three shots and two mixed drinks over a two to three‑hour period. They then drove to the Mansion night club around 11:45 p.m. and went upstairs to the VIP area. She mixed her own drinks and she did not meet Nazary until the evening was over. She says they left the bar around 2:30‑2:45 a.m. As they were leaving, Andrea called her on her cell to tell her there was going to be an after‑party. She testified that as she and Sara were walking down the street, Andrea picked them up. Andrea and Karima were in the car with Nazary along with two other girls who got out when she and Sara got in.

[23] They went to the Pizza Pizza place and then Andrea said she needed gas and they drove to the gas station. Nazary was in the car and he offered to pay for Andrea's gas so he pumped it and then he went inside to pay. She also knew that Andrea wanted to go to the gas station so she could get ecstasy pills. Then she said that after they got gas, Andrea parked to the right side of the gas station and then Karima went to the washroom and then Sara got out of the car and then she got out. She described the placement in the car as did Ms. Portillo. Only Andrea remained in the car.

[24] While Nazary was inside the gas station, two guys approached. They walked up and said words to Andrea to the effect that she was "hot" and then they talked about how they beat up a bouncer at a club. Both were white; one was bald and husky and the other was tall and skinny. She described them in their 20's. She was close by. As they were talking to Andrea, Nazary came out of the gas station and he was asking a question and he said, "Don't talk to those guys" and then as he was getting closer, one of them turned and punched him. She was asked if she recalled if there was any conversation between Nazary and the two white guys and she said one of them said, "Okay" and that's when the punch came in. She said she did not see any warning; it was like a surprise punch.

[25] She said the bigger one, the bald husky guy was the one who threw the punch. After that, the other guy jumped in and started punching as well and then she pulled one of them off. The guy with he shaved head threw more than one punch. As for the other white guy, she figured he threw two or three punches until she pulled him off. She said she did not have far to run to get in between these guys. She said Nazary had fallen down and the fight was over. She said the whole fight lasted about 45 seconds. She said Nazary was not really fighting; he was blocking from getting hit, either using his head and his low chest area and his arms to block the blows. After she intervened, she said the huskier one put on his hood and they just walked off. She said Andrea had moved her car to the other side of the gas station.

[26] They looked up Nazary's phone to find out where he lived so they could drop him off. She said he was sort of coming in and out. At some point, the conversation turned to going to a hotel room and Karima asked if she could use his debit card. Nazary gave out his PIN number for his bank card. Ultimately she became more and more concerned about Nazary's condition and wanted to take him to the hospital. They drove back to Sara's van and Andrea and Karima left to go back home and Audriena and Sara drove him to the hospital. She denied consuming any ecstasy and she said she was not under the influence of alcohol.

[27] In cross‑examination she confirmed much of her evidence. As to feeling the effects of alcohol, at most, she felt like she was in a "small, small buzz". She said although she might have had five drinks in about an hour, this was less than she would normally drink. She was not aware about any conversation about ecstasy – not with her and Sara. She said that Nazary's tone of voice was normal and not forceful. She said she did not recall seeing Nazary punching and she repeated that Nazary was blocking the blows with his body.

[28] She was questioned about whether or not the four girls had discussed the events that took place on the night in question. She said that Sara was corrected about how many people were involved but she did admit that they had talked about what happened that night on another occasion. In re‑examination, she said these conversations focused on Sara's recollections.

Dr. Vasco Da Silva

[29] Dr. Da Silva is a specialist in neurosurgery. He is the staff neurosurgeon at the Ottawa Hospital in Ottawa who ultimately operated on Nazary. Medical records were entered into evidence and it appears that Nazary was admitted at 4.57 a.m. to the emergency department at the Ottawa Hospital, Civic Campus. Upon admission, a neurosurgery consultation was conducted and a number of tests were conducted, including a series of CT scans of the head. Dr. Da Silva testified that the frequency of the tests indicated that original optimism about Nazary's condition became somewhat worried because he was not responding the way the doctors expected.

[30] Dr. Da Silva testified that initially they came to the conclusion that Nazary had suffered a mild head injury but they decided to keep him in the emergency department for a few hours just to see how things would go. There was a progressive increase in the amount of blood that was found on the initial examination of the brain and instead of remaining stable, the amount of blood extravasated was increasing in size to the point that two or three days later, his condition became critical.

[31] Dr. Da Silva testified that the frontal and temporal lobes of the brain are a very common location for contusions and brain hemorrhages, secondary to head injury. A notation on the first CT scan report provides a detailed description of what was observed and it indicates, "evidence of right frontal, subdural and subarachnoid hemorrhage, with a small bilateral frontal and right temporal contusions, comminuted fracture of the left maxillary sinus with evidence of hemosinus." Dr. Da Silva described that a subdural hemorrhage and a subarachnoid hemorrhage as blood in the spaces where normal cerebrospinal fluid bathes the brain and that this is quite normal after a head injury. He described the subdural hemorrhages as being potentially more dangerous because these hemorrhages can displace the brain. These occur in between the coverings or meninges that cover the brain and the bleeding displaces other fluid that puts pressure on the brain.

[32] By the 28th of February, the surgeons saw potentiality for big complications and on the 29th a surgical procedure was carried out in order to preserve Nazary's life. He confirmed that the brain scans revealed the accumulation of blood both outside of the brain and on the inside of the brain. The operation therefore consisted of going in and removing the subdural accumulation of blood and also removing some of the blood inside the brain, which would allow the brain more of less to return to its normal position. He discussed the comminuted fracture of the left maxillary sinus and he said this meant that there were two or three fracture lines just below the left eyeball.

[33] In cross‑examination, he indicated that Nazary failed to follow up as recommended following the surgery and that Dr. Da Silva had not had any further contact with him. He heard that the patient had possibly relocated to Toronto. He indicated that he would expect patients like Nazary to have what he called post‑concussion syndrome that would last for about three months. This would involve difficulties with concentration, headaches, nausea and easy irritability and things of that nature. He emphasized however that in Nazary's case this is a bit more than a concussion. Dr. Da Silva did not think that any delay in receiving treatment would have had any bearing on the outcome.

[34] Dr. Da Silva was asked if he was able to give any opinion or as to the type of trauma that would be required to cause the injuries that Nazary sustained. Dr. Da Silva said when Nazary was initially seen, the medical team did not make any special distinction about his injury. He described it as "the weekend event that you have frequently" and "is mixed with alcohol and high spirits and fisticuffs." So to him it looked like a normal pattern and a mild injury. In response to questions from myself, Dr. Da Silva specified that Nazary had mostly unilateral injuries that were on the right side of the brain. Dr. Da Silva indicated that there had to have been a contact between some object, be it a fist or something and the face, and that it was probably on the left side of the head.

[35] In further examination by the defence, he was questioned as to whether or not the fracture just under the left eye would have necessarily caused the hematoma and the bleeding in the brain. Dr. Da Silva indicated that that fracture was immaterial to what happened with the brain. These were separate injuries that were not linked to one another. When asked whether or not the bleeding happened from something else other than being caused by that broken maxillary bone, Dr. Da Silva explained that there were two injuries after the same events, that one did not necessarily link to the other in terms of cause and effect. Just because Nazary had a fracture did not mean that he was going to have a trauma to the brain. He clarified that Nazary had the misfortune of being in the minority of the patients who, after developing a mild injury, go on to develop a delayed hemorrhage. This perhaps happens, one in five, maybe one in ten patients and there is no way of predicting which ones are going to do this.

[36] I rephrased the question to get some clarity from Dr. Da Silva and I asked him specifically if this was a case where there is one event that causes two sequellae that are not necessarily linked. As it was clarified, there was trauma to the brain that was caused by a blow to the left side of the head. That contusion was expected to be mild but for reasons that could not be predicted, it developed into something that was serious. In that sense, it was not the fracture to the cheek bone to the left maxillary sinus that caused the bleeding, but it was the blow to the left side of the head which impacted the right temporal lobe of the brain, causing a mild brain injury, which subsequently and unexpectedly became much worse.

Voir dire

[37] Thereafter, the court held a voir dire to determine the admissibility of a statement made by Mr. Brethour. Mr. Brethour was arrested on February 7, 2010 for public intoxication. In the course of that arrest and subsequent detention, Mr. Brethour refused to disclose his name or to identify himself other than by using the letter J. Constable Kimberley Mackey was one of the arresting officers along with Constable Shannick. Constable Mackey did a search through a software program called NICHE. She inputted a physical description of the person she later learned to be Brethour. The software identified several people including photographs, and Brethour's picture came up. Constable Mackey also learned that Detective Love was looking to question Brethour with regard to an aggravated assault which occurred on September 26, 2009.

Detective Stephen Love

[38] Detective Stephen Love interviewed Brethour and took the statement, which I ultimately ruled to be voluntary. Detective Love initially got involved in this investigation on the 28th of September 2009 when Nazary was still in the hospital. He then believed that a number of girls had befriended Nazary in a bar and later drugged him and lured him to a gas station where he was beaten and robbed and then his bank card was used. The initial focus was the fraudulent use of Nazary's debit card. Pictures of two young women were taken by TD surveillance and these were published in the newspaper. These two young women were Karima Ibrahim and Andrea Portillo. In the end, they were arrested and interviewed and this led to information about the assault. Ms. Ibrahim pleaded guilty and Ms. Portillo was found guilty after a trial.

[39] Detective Love looked at the various TD Canada Trust locations where Nazary's credit card was used. One of these was near the gas station at Parkdale and Wellington. The owner indicated that there had been a fight there recently and video surveillance footage from inside and outside the store was obtained. This allowed Detective Love to identify Brethour as being at the scene in an altercation with Nazary. Detective Love made a number of attempts to contact Brethour without success, which is why he posted the notice on the NICHE system.

[40] Thereafter, we reviewed the video surveillance. Shortly after 3:16:50 in the morning, Mr. Brethour is seen entering the gas station along with another individual later identified as Cory. They leave at 3:17:48. Meanwhile, Ms. Portillo's car is seen in the upper right hand corner of the screen, arriving at 3:17:16. At 3:18:18, Karima and Nazary enter the store. Nazary exits the store at 3:20:20. He does not appear to have anything in his hands. A video surveillance screen at 3:21:00 shows Brethour's raised left arm which can be identified by the pattern of his sweatshirt. Nazary appears to the lower right‑hand side of the screen with his arm stretched out. At 3:21:43 the Portillo car is seen reversing.

[41] In his statement, Brethour says he was "already included in the whole aggravated assault" (page 50); he later goes on to say it was a consensual fight. He makes reference to another party being involved, but he does not see the point in identifying him any further.

Jessy Brethour

[42] Brethour testified in his defence. He testified that the 25th of September was his birthday and he wanted to celebrate. First, he went to his cousin's house, Cody, where they drank. Afterward, he and some of his friends went to a bar called "The Orange Monkey" around nine o'clock. He drank some more. He said they then left at 10:15 to 10:30 and that he along with his friends, Chad and Cory, and another guy named Adam went to a pub on Rideau Street. He said he started drinking a beer and then got interrupted by somebody from his past who was drunk. They had a conversation that went from bad to worse. He ended up outside in an outdoor patio area and the conversation got more heated with more of this guy's friends joining in. He said cooler heads prevailed and he grabbed his buddies and just got out of there. The conversation lasted probably a good hour and maybe more.

[43] They then went to Cabaret Pink in Aylmer where they arrived at around 1:30. They were standing outside the bar waiting to get in, and just as they were about to get in, an individual by the name of "John" slapped him in the face before he got in the door. He then said he pushed him away and then a fight occurred but two bouncers intervened and stopped it. He indicated that the fight was a verbal fight only and he did not hit anyone. He was very upset about it because he was not allowed to go in the bar while John was there. When he got in, he had more to drink and they left around 2:40 or 2:45. He said he was not nearly as drunk as we wanted to be. It was his birthday. He wanted to have fun but with the two incidents that had just happened – the one with the fellow he now called Henry and the other one with John – he was upset.

[44] They then traveled to the gas station at the corner of Wellington and Parkdale to buy cigarettes. His mother's apartment is close by. As they were walking out, they saw a car parked close to the exit of the store with a pretty blond girl at the wheel, whom he subsequently came to know as Andrea Portillo. He said that his friend Chad was on the passenger side. He did not notice where Cory went to. He noticed a woman in the back seat of the car. He said he was talking to the girls. He told them it was his birthday and he told them that he had had a pretty shitty night – that something had happened at every bar he had gone to, and that at the last one the bouncers had to break up the fight. He said that Ms. Portillo asked him whether or not he could get her any "E or coke" (meaning ecstasy and cocaine).

[45] He said they were interrupted by Nazary and that Nazary's tone was not friendly. He asked Andrea, "Is this your boyfriend?" and she said, "No. He's just some loser we picked up at the bar." He then said because of this new information he just laughed at him and dismissed him and told him to "fuck off or beat it". He went back to talking to Portillo. Then he said everything was happening very fast. As he was talking to Portillo, the first thing he knew Nazary was standing directly next to him. Then he said, "So I straightened up, I look and I look up at him and wondered why this guy was so close to him. He recounted, "And he was this close to me" and then the next thing that happened was that he pushed the other guy.

[46] He admitted that he had not given him a light push, but really he had pushed him to get away from him – "Like, get the hell away from me, you know." Then he said, on having pushed him out of the way, he went back more towards the door and that is when Nazary put his hands up. He said that Nazary threw a right and it missed. Brethour says he then threw "a left jab or just like a straight punch" in the right region of Nazary's face" and that he hit him "somewhere between his nose and the right ... side of his jaw, mouth, chin area." After he hit him, he said that Nazary dropped his hands and stepped back, and that gave him the space he needed. He put his hood up of his sweater and just "dipped" and "got out of there".

[47] When asked how far Nazary stepped back, he said "only two, three steps, maybe. It wasn't a light punch." But he knew he had connected with his face – "Enough to make him, like he didn't, he didn't keep swinging." He remembers "briskly walking, almost jogging, across the street to [his] building." He said that at that point he did not want to fight the guy. His birthday had not been what he wanted it to be; the night was over. He went to his mother's place and added that "Chad was in tow behind me and we went up to the apartment."

[48] He then described his efforts to get Chad to testify at this trial. Basically, he relied on Facebook and tried to urge Chad to testify. He was referred to his statement with Detective Love and added that he was being very vague as he did not want to get anybody else involved. He clarified that he was not making an admission that he was the one who had committed the injuries.

Cross-examination

[49] It is only in cross‑examination that Brethour said for the first time that he felt threatened by Nazary's gestures, and this is when he was asked about being released on the condition that he keep the peace and be of good behaviour at the time of the incident. He confirmed that there was no verbal threat, that Nazary did not have a weapon, and that Nazary did not say any words inviting a fight. He simply said: "... when he got as close as he did to me and said, 'What's up'" he took those words, body language and tone of voice as a threat. He acknowledged that there had been no prior force. He added that the incident has been playing in his head for the last two years and seven months, and that he plays it in his head every night before he goes to sleep.

[50] He agreed that he had said something about a bouncer and that he may have used the word "fight" in the conversation with the girls. He agreed that his head was shaved at that time. There was a very lengthy discussion about Brethour's weight. At the time of trial, Brethour said he was 6 feet, 295 pounds. He went to great length to diminish his size at the time of the incident, saying it was about 230 pounds. He denied weighing 265 pounds at any time prior to that incident.

[51] He was then taken to what happened at the bar where he was interrupted by somebody that he did not want to see. He was asked about the issue that played out between him and Henry. Brethour was surprised that he had said the word "Henry", and when asked what Henry's last name was, Brethour first said he could not be certain. When pressed, he said he was not sure whether it started with a 'C' or a 'K', it was not a common name, as far as he could remember. When asked if Henry was a person he would rather not name in court, at first he said he had no issues with saying his name – that it "starts with Kelo, Ke ..." and when the Crown put it to him it was "Henry Kedogan", he admitted that was correct. When pressed as to whether Henry Kedogan was at least a locally notorious criminal, Brethour's first answer was that he did not know. When pressed further, Brethour acknowledged that somebody had actually been murdered in Kedogan's house. Brethour continued to be evasive but finally he answered he knew the victim to be Mike Rankin who was a good friend of his older brother. As to the incident at Cabaret Pink in Aylmer, he said this was an issue of a twisted love triangle between this guy John, a girl named "Connie" and Brethour's brother.

[52] He then described that he had gone to his mother's apartment on the eleventh floor. He was reminded that he had said that Chad was right behind him. At first he said, "I, I believe so." When questioned as to whether or not Chad would have ridden the elevator with him, he first answered he would assume so, but then he said he could not remember 100 percent and then said "I don't remember." He then tried to distance himself from his earlier statements and said that he could not remember if Chad was right behind him. He denied that his evidence had changed. It was put to him that he realized there was a problem with his story because if Chad was right behind him going into the apartment, then there would have been no time for Chad to keep fighting with Nazary. Brethour disagreed and then said that he had never jogged home; he had just jogged out of the gas station. Once he was across the street, he could not remember if he had jogged or if he skipped or if he ran.

[53] When he was asked about the threat, he agreed that there was no physical threat or invitation to fight – that he was simply interpreting Nazary's body language as wanting a fight, and this was just from his experience. When questioned as to whether or not he was bigger than Nazary, he stated that he was heavier but that the other man was taller. Again, he tried to minimize the weight differences.

[54] He was then questioned about his past experience in mixed martial arts and whether he was in a "Super Heavy Weight" class. He admitted that he was supposed to fight in a mixed martial arts event but it never came to pass. He was referred to a posting of an event where he was supposed to fight with an individual named Wayne, nicknamed "X-man Xilon" and where he was called Jessy "Bricks" Brethour. He was shown an abbreviation appearing after his name which showed "SHW". When asked if this was a reference to "Super Heavy Weight", he denied that there was any mixed martial arts Super Heavy Weight classification but conceded that a Super Heavy Weight is anything above 265 pounds with no weight limit. As far as he was concerned, he was classified as a "heavy weight" because he did not weigh over 265 pounds. He was shown a poster for a March 20, 2007 mixed martial arts event where he is again billed as Jessy "Bricks" Brethour. He said that he really did not go ahead with it since he had only had three months to train for that fight and the only training he had was to give him enough strength to keep his hands up and protect himself for 15 minutes.

[55] He was taken back to the punch and the surveillance camera footage that shows Nazary on the lower right‑hand side of the screen and his own arm in the upper left corner. He acknowledged that he must have pushed Nazary four or five feet at least and that it was not a minor push. Given the location of the camera angle, he acknowledged that they were some distance from the car. Brethour said he maybe had taken a step forward; he did not know exactly how, but he was sure that Nazary would have "gotten in range no matter what," in order to hit him. He was reminded that if his evidence was to be believed, the only conclusion that could be drawn from his evidence was that Chad was the one who had beaten up Nazary and caused the serious injuries. Then he tried very hard to say that he did not know what Chad was doing, but again he was reminded about his statement to Detective Love where he refused to identify anybody else as being involved as this would simply make someone else's life miserable.

[56] Later on, in the apartment, he said that Chad went up to the apartment and they had a cigarette and probably talked about the fight, but he could not remember what was said. He did not remember if Chad had told him that he had beaten up Nazary. His brother Jason was sitting in the living room watching TV and then Chad left.

Chad Dalton

[57] The next witness was Chad Dalton who is Brethour's cousin. He said that they had gone out that night to celebrate Brethour's birthday and that he and Brethour and a friend Cory went out drinking to various bars. He could not remember which ones but believed these were in the market area and that he had been drinking that night.

[58] At the end of the evening, they ended up at a gas station near Parkdale and Wellington. Brethour and Cory went inside and he waited outside and talked on his cell phone to his girlfriend. When Brethour and Cory exited, he could see Brethour then commence talking to someone in the right front passenger seat of a car parked to the right of the door of the gas station. He said the car was already parked there when they arrived. Brethour was standing on the driver's side. There were two females in the car – one in the front who was white, and one in the back who was black. Chad walked up and stood beside him. He said that the girls asked them for ecstasy and for booze. They talked to the girls for about five or ten minutes.

[59] Then he said a guy came out of the store. He could not remember exactly what he looked like, but he was tall. He approached Brethour and stood literally next to him. He said that the guy who came out of the store was swearing, saying something about the girls. He described his mood as being aggravated. He seemed upset. He said the guy came out and he was right in Brethour's face, and that Brethour said, "What's your problem? You know what I mean? What the fuck is wrong with you? You know?" And at that point Brethour gave this other guy a little shove, pushed him as if to say "get out of my face". He said the guy moved just a little bit. And then the other guy swung at Brethour with a closed fist and Brethour ducked. After Brethour ducked, he punched the other guy in the face; he could not say where exactly. He said there was only one punch. He said the guy stepped back. He stumbled backwards but he could not remember if he fell or not.

[60] After that, he saw Brethour put his hood up and go to his mother's place across the street. He said when Brethour was at least a good five or six feet away from the other guy, this guy went after Brethour again. It looked like he was going to hit him from behind or tackle him. As he was only standing two feet away, he tackled the guy and as he did so it felt as though this guy "grabbed me from behind as I grabbed him, and we both went to the ground." Then he said he got up and just left because it was a crappy ending to a good night. He said he caught up with Brethour when he was right at the corner. Neither of the girls got out of the car but he does remember them yelling from the car. He denied that either of them tried to jump him and intervene.

[61] He said that he had not discussed the incident with his cousin prior to the trial. He said he decided to come forward because he felt bad about his cousin because he knew he had a little daughter and he did not want her growing up in a foster home like his cousin had. He said his only reason for attending in court was because he got a subpoena; otherwise, he would not have come. He denied receiving any threats or promises from anyone to make him come to court.

Cross-examination

[62] In cross‑examination, he was again asked if there was any conversation with Brethour after the events took place. He said "No"; he went to his aunt's place and called for a cab and then went right away downstairs to wait for the cab. He was not in the apartment for any longer than it took to call a cab and then leave.

[63] He was asked about his friend Cory's movements on that night. He was not sure but he thought he was on the other side of the car, possibly talking to the girl in the back seat. He said all of the girls were in the car and none of them were on the outside. He was asked about the stranger's moves towards Brethour. He could not remember if the guy was skinny or chunky. He recalled that he was tall and he thought that Brethour was vulnerable because he would be attacked from behind. He said the whole event lasted not even 10 seconds. After the tackle, he said they both went to the ground pretty hard. When asked whether or not the stranger was a threat to him, he confirmed that he was a threat to anyone because he concluded that the stranger was drunk.

[64] He was asked about his memory about the events that took place earlier that night. He said he could not remember exactly which bars they went to but he could remember they were having a good time. He said that nothing out of the ordinary or unusual happened that night except for the altercation at the gas station. He was definite that there had been no other fights and no other events that were almost fights. When asked specifically, "You are sure of that as you are sure of everything that happened at the gas station?" His answer was yes. If there had been a fight, he would have left because he's not a fighter. He could not remember what the girls looked like. He knew one was white and one was black.

[65] He was asked again at some length about the tackle on the stranger which was very difficult to understand. He described a tackle from the side but indicated that the stranger's arms were over him. He indicated that the stranger twisted him to the ground and he went to the ground on top of him. He denied the suggestion that one of the girls had gotten out of the car to try to intervene. He was specifically asked if a black girl got out of the car and he said "No". He was 100 percent sure about that. He was reminded that other people had testified that there were two white guys talking to the girls who beat up the stranger, and he admitted he would have had to have been the other white guy because he was with Brethour.

[66] He was reminded that he could still be prosecuted for a very serious assault. He knew there was a certain chance he could get in trouble for this. Again, he was taken back to the tackle, and that Brethour had apparently walked off without noticing any of it. Although he said initially Jessy was only five to six feet away, he now said it might have been 10 or 11 feet. He said he did not call out to his cousin to look out. He had tackled the stranger silently and no words were spoken.

[67] He said that Brethour had had a good time that night. He was asked why he had left his friend Cory behind since he had described the stranger as a threat. He had no answer. He said all of the events took place downtown in the marketplace. When asked if they had gone to a strip club in Quebec, he could not remember for sure. He confirmed that there were no other unusual incidents that night, and nothing that would have happened at the strip club. He confirmed that he had a hard time remembering anything about what happened except for what took place at the gas station.

[68] He was questioned again as to his reason for going up to his aunt's apartment. He was reminded that he had a cell phone and that he had just finished speaking to his girlfriend five, six, ten minutes earlier. He could not explain why he went up to the apartment to use the phone. He said he went up to the apartment – that it was an instinct not to stick around.

[69] He was taken back to the altercation between Brethour and the stranger. He said that the stranger had a bad attitude, that he could tell that by his body – the way he was walking up. He was positive there was nobody in the driver's seat. He answered a lot of questions with "I don't remember," "It's possible," he "couldn't say." When it was pointed out that he was now describing things somewhat differently – in terms of the stranger "puffing his chest out" – he said that that was just a figure of speech. He confirmed that he did not see a weapon and he did not hear the stranger utter a threat to himself or to Brethour. He did not remember any fighting words, and the first physical thing that happened in terms of any contact was Brethour shoving the stranger. He concluded that the stranger was "disrespecting Jessy." While he said earlier that the stranger was drunk, he later said, "... maybe he was drinking, who knows."

[70] He said that the car stayed exactly where it was. He was sure of that. Again, he was taken back to the events of that evening. He was asked specifically whether or not Brethour almost got into a fight with a guy at the strip club that night. He answered, "Never, never, never did that ever happen around me or did I even see anything or see something like that would happen. Because if it did, I would have left myself." He answered he would have left just like he left the gas station. He would have gone home.

[71] His attention was then drawn to the fact that there was surveillance at the gas station and that he did not appear anywhere on surveillance. He could not explain why he was not on camera anywhere. After he tackled the stranger, he never looked back. He denied the Crown's suggestion, that he did not look back because the stranger was "down for the count."

[72] He was taken back to the scene of the tackle and an attempt was made to get him to try to describe where it took place. He drew a map of the layout of the gas station, the placement of the car, where Brethour was standing, and where he and the stranger stood. When asked to indicate the location of the gas pumps, he could not do it. He agreed that they were somewhere between Parkdale Street and the gas station, but he was sure that neither he nor Brethour ever crossed through the pumps. He added: "... if we did go through the pumps, I'm sure they would have me on camera..." It was pointed out to him that if the stranger went from somewhere near the front of the gas station towards the direction of the corner, he would have to cross the pumps.

[73] He agreed that when the stranger was pushed back, he would have had to have been pushed back towards the pumps. He agreed that sounded "a little bit" right. It was put to him that he would not say one way or the other what might have happened near a pump because there was probably a video recording of that. He was reminded that if the stranger would have taken four or five steps towards Brethour, that would put the stranger near the pumps. When asked if that sounded right, his answer was, "I don't know. Not, not really. But I mean, no." He denied being careful with his words. He denied being worried about being contradicted by surveillance footage.

[74] He was taken back to the last bar they had visited that night. He recalled no altercation or no altercation where bouncers had to intervene and get between anyone. He denied that anyone slapped Brethour. He remembered that for sure. He denied being involved with his cousin in the fight or that Brethour sucker‑punched the stranger. He was asked why he remembered very specific details of what happened at the gas station, whereas there was virtually no memory of most of the rest of the night. He answered, "That's because that night, there were no fights that night, nothing happened at all like that."

[75] I questioned him about his tackle. I specifically asked him if he felt something on his back. Mr. Dalton answered, "Yeah. I felt, I felt his arms or hands." I asked him specifically, "You felt arms around your back?" and he answered, "Yeah." Again, in examination from me, he could not indicate where the tackle took place. He confirmed that the car never moved.

Submissions for the Defence

[76] The defence accepts that there should be a finding of guilt on count number 3 and that a conviction should be entered on count number 2 if I find the accused guilty on count number 1. Ms. Munsterman submits that there are two key issues in this case: the first being the R. v. W. (D.) [D.W.], [1991] 1 S.C.R. 742 analysis that must apply since credibility is an issue and the second, whether there is a self‑defence argument to be made on behalf of Mr. Brethour.

[77] The defence argues that neither Mr. Brethour nor Mr. Dalton were shaken in their cross‑examination, that there were inconsistencies between the evidence of Ms. Portillo and Ms. Downey and that Mr. Nazary had many gaps in his evidence. She submits that the evidence of drinking, drug use and the discrepancies in the evidence are such as to raise a reasonable doubt. As to the evidence of Nazary, she notes that his memory was not clear as a result of both the injuries that he received as the result of the altercation on that night and what he had consumed on that night. Nazary was 100 percent sure that he did not take ecstasy but it was clear that ecstasy was found in his system. He denied wanting to party with the girls. This is in direct contrast to the girls who gave a different story. He did not remember the verbal exchange between himself and Brethour. She noted his description of his assailant as having a medium husky build was not very clear. She noted that the video surveillance that showed Nazary's arm raised back and that this could be consistent with Brethour's version of events. She points that Portillo and Downey have inconsistencies as to who was there, that Downey had consumed a fair amount of alcohol and that Portillo's credibility is in doubt because of her actions afterwards.

[78] There were discrepancies in their evidence as to how they left the club, whether they were together. There were very different versions of who remained in the car once they got to the gas station. The defence says that Portillo was more concerned about getting her car out of the way and she could not have been paying much attention to what was going on. There was conflict in evidence as to who got the gas. She notes that Portillo's evidence is to be doubted since she was convicted of fraud and that Portillo is minimizing what happened that night. She submits that the girls discussed the events. As for Downey, she points that there was a certain level of intoxication on her part.

[79] The defence relies on Dr. Da Silva's evidence and suggests that the injury could have happened from a fall such as when Nazary was tackled. She interprets his evidence as there being two separate physical events. She referred to the example of the "contre‑coup" given by Dr. Da Silva to the Court. She said that Nazary used an unfriendly tone and that Brethour was concerned about where it was going. Nazary was in his face and his space and he gave him a shove and turns his mind back to the girls and it is at that point that Nazary throws a punch and Brethour throws a punch in self‑defence. She says that these actions are reasonable in all the circumstance and that after the punch Brethour walks off because he was having a bad night.

[80] The defence relies on sections 27 and 37 of the Criminal Code in support of its claim of self‑defence and submits that a mistaken belief by a person that they are being threatened is enough to justify an action such as pushing Nazary. She cites case law to that effect. As to Dalton, she notes he was a reluctant witness. His evidence is important because the tackle shows how the brain trauma could have occurred and it was in defence of Brethour. By this time Brethour had abandoned the joint venture, if there was one, and that Brethour is not a party to what Dalton may have done. In conclusion, she says that there are so many difficulties with the Crown's evidence and that the evidence of Brethour and Dalton has to raise a reasonable doubt.

Submissions for the Crown

[81] The Crown submits that on September 26th Brethour had met his breaking point. He had had a very difficult evening where he had been nearly involved in two serious altercations and that Nazary was the unfortunate victim when he stood in his way of making an approach on Ms. Portillo. The Crown submits that Brethour "sucker‑punched" Nazary and thereafter, there was a two‑on‑one assault between Brethour and Dalton on Nazary, which left him with a disfiguring scar and permanent sequellae to his brain injuries. The Crown submits that the accused is not credible and that Dalton is not reliable.

[82] The Crown submits that to make a finding in aggravating assault, the prominent facial scar on Mr. Nazary's head amounts to a disfigurement that meets the requirements of section 268(1). The Crown points clearly to the evidence of Dr. Da Silva that the brain hemorrhage was an ultimate result of the trauma to the brain. As to the mens rea necessary I am referred to R. v. Godin, [1994] 2 S.C.R. 484, [1994] S.C.J. No. 55, that all that is required is objective foresight of bodily harm. The Crown notes Brethour's acknowledgment in cross‑examination that one blow to a head could cause some bodily harm. The Crown submits that Brethour is guilty either as a principal or as a party to the offence. I was referred to R. v. Maybin, 2012 SCC 24, [2012] S.C.J. No. 24 where the Supreme Court applied the reasonable foreseeability approach, such that if Brethour initiated the first punch and it was reasonably foreseeable that Dalton would join in, it does not matter if the injury was caused by the first punch or by the tackle or subsequent punches. The Crown also cited the case of R. v. Vang, 118 O.A.C. 75, [1999] O.J. No. 91 (C.A.) where the court applied section 21(2) of the Criminal Code in a situation to uphold the conviction of two individuals of aggravated assault who joined in an assault on a victim that was stabbed by another party to the assault. The Crown submits that during 100 percent of the altercation with Nazary, Brethour is either a principal or a party to the offence along with Dalton. The Crown submits that there is no air of reality to a claim of self‑defence under sections 27 or 37 of the Criminal Code.

[83] In turning to the W.D. analysis, the Crown submits that, first of all, the accused's credibility is put into doubt by the virtue of the fact of his criminal record. More importantly, the Crown notes that the accused was dishonest with the Court with respect to his evidence with regards to Henry Kedogan. At first, Mr. Brethour denied knowing him but ultimately, conceded that in fact that his brother's best friend had been murdered in Kedogan's house and that he had known Kedogan for some time. He tried to be dismissive of the conversation that he had with Mr. Kedogan but it was over one hour in length.

[84] The Crown noted other difficulties in Brethour's evidence. First was the evidence of Brethour returning to the apartment with Dalton, right behind him. When it was pointed out that this would leave little time for a further altercation between Dalton and Nazary, Brethour became very evasive and tried to distance himself from his earlier evidence.

[85] The Crown also submits that Brethour's version of the events was illogical and lacked common sense. On the one hand, Brethour submitted that the matter was simply a nuisance, nothing more than a minor skirmish yet he left the scene immediately leaving his cousin and his friend Cory behind with someone whom he had described as a threat. On the other hand, on all of the evidence, the idea that Nazary would be a threat to someone of Brethour's size and physical capability is highly exaggerated. The Crown notes that Brethour was initially dismissive of Nazary and it was only in cross‑examination that Brethour raised the issue of a threat. Dalton then enters Brethour's apartment for reasons that make no sense.

[86] As for Dalton, the Crown says his account of the events was so far removed from Brethour's that either he was not there, he has no memory, or he was fed an account of what happened by Brethour. He said that no one was in the driver's seat of the Portillo car which never moved. Nothing went wrong during the course of the evening, and everybody had a good time. There was no event at a strip club where Brethour might have almost gotten into a fight. His cellular telephone was working yet he went up to the Brethours' apartment to call for a taxi. The Crown notes an unusual tackle on Nazary that apparently made no sound and that the mechanics of the tackle as described by Mr. Dalton make no sense. Dalton is not a person without interest. Most significantly, the Crown submits that the versions of Brethour and Dalton are completely inconsistent with one clear, unchallenged fact. Nazary suffered a comminuted fracture of the left suborbital area of his face. Based on the accounts of Dalton and Brethour, nothing that occurred at the gas station could explain that. Dalton denied that he delivered any blows to Nazary. Brethour was very clear that he only threw one punch with his left hand that contacted on the right side of Nazary's face near the chin.

[87] With respect to its burden to prove its case beyond a reasonable doubt, the Crown notes that while Nazary's evidence is problematic, the case does not turn on his evidence alone. The Crown submits however, that fragments of memory can be important if they are corroborated. Nazary was an agreeable witness; he admitted when he was mistaken and he agreed on areas that he could not have known. He did not do anything to minimize his potential involvement as to what he might have done on the night in question. He was not trying to tailor his evidence. As to the possibility that he consented to a fight, the Crown notes that Nazary's answer to that question was, "It could be possible – I have no clue." The Crown admits that Nazary was not on his best behaviour on the night in question because he was trying to impress the girls but notes that he was a fair witness. He remembers very clearly the punch. He remembers backing up as a result of the punch and the video surveillance seems to confirm that version of the events.

[88] As to Downey and Portillo, the Crown concedes that they are not perfect witnesses. Downey did have something to drink that night and Portillo later engaged in dishonest behaviour. The Crown notes that these witnesses have testified on three prior occasions and that there have been no contradictions on any previous testimony. They did not know the accused nor did they know Nazary. While there were inconsistencies between them on peripheral facts, they were consistent with each other on the important events. They agreed on the position of the parties in the car. Downey did get out of the car and although she and Portillo disagreed on timing, both were clear that Downey intervened in the fight. Both describe a white male with a stocky build and a shaved head saying words to Portillo to the effect that she is "hot". Both cite comments made about an earlier fight with a bouncer. Nazary exits the store, there are words that are exchanged and the white stocky guy takes a step away and then turns around and delivers a punch. Then the other white male gets involved and there is a two‑on‑one assault. Both said that Portillo then moved her car. Downey saw Dalton and Brethour leave together. Both observed multiple blows from Brethour and Dalton and described Nazary as making wild uncoordinated motions and making defensive movements with his hands.

[89] The Crown says that the fact that Downey and Portillo do not exactly describe matters in the same way enhances their credibility. Portillo was the driver, she was not drunk, she had consumed one half of a pill of ecstasy and there is no evidence of impairment. Downey did not consume any ecstasy and indicated that she could handle a fair amount of alcohol. Where she did have a memory of those events, she was completely corroborated by everybody else. As for Portillo, she was convicted of the fraudulent use of a credit card and the use of those funds but she was candid with respect to her involvement. She gave reasons for engaging in this behaviour. She was angry with Nazary for what he had brought on that evening.

[90] The Crown submits that there is no evidence of collusion between the witnesses. It would be normal that there be some degree of discussion and the only evidence of any discussion was with regards to Ms. Khair who did not testify in these proceedings. Finally, the Crown notes that their memories are preserved in their statements and that there is no hint of contradiction in those statements.

[91] The Crown acknowledges that it also has the burden to refute beyond a reasonable doubt any defence where there is an air of reality. The Crown says there are three: self‑defence under section 34, self‑defence under section 37 and consent. The Crown submits that if I accept their version of the events, there is no reason to apply either of the self‑defence provisions. The Crown submits that with respect to section 34(1), Mr. Brethour was the initial provoker either by words by indicating to Mr. Nazary to "fuck off – beat it" or by way of the initial shove. As for section 34(2) and section 37, reference must be had to Section 265(1)(b) of the Code which defines an assault when a person "attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, the present ability to effect his purpose".

[92] The Crown submits that there is no air of reality to the alleged threat by Nazary. There are no words exchanged, there is no weapon, there are no gestures. The Crown notes the size difference between the two men and Brethour's previous involvement in mixed martial arts. Brethour was with male friends. Nazary is alone. There is the simple act of Nazary standing next to Brethour and Brethour standing up to face him. The Crown argues that Nazary's actions do not constitute a threat nor are there any reasonable grounds on the part of Brethour to believe that Nazary is about to apply force to him. The Crown adds that even if there was an assault by Nazary's gestures, it was so trivial that the use of any force was unnecessary and disproportionate. The Crown says there is no clear evidence of consent.

[93] The Crown submits that if I accept its evidence that the first blow comes from a punch to the face by Brethour, then there is no issue of self‑defence. The Crown says its witnesses were not calculating, not tailoring their evidence, were in an excellent position to see what had taken place, they had no reason to lie, they gave early statements and neither of them were contradicted even once on any of their statements.

[94] In reply, the defence says that even though none of its evidence can explain the punch to the left side of the face, it is a possibility that somehow a punch had landed there. She denies that there was any common intention between Dalton and Brethour as Brethour was removing himself from the event. As for Brethour's dishonesty about Kedogan, she submits that he had reasons not to be honest. She indicates that Brethour's reasons for leaving the scene make sense – he was trying to put an end to a crappy night. She repeats that Nazary's gestures, of being in Brethour's personal space, could amount to intimidation or a threat.

Analysis and Conclusion

[95] The Crown must prove beyond a reasonable doubt that Jessy Brethour intentionally applied force to Khosrow Nazary and that the force intentionally applied disfigured Mr. Nazary or endangered his life. The Crown must also refute beyond a reasonable doubt any defence that has an air of reality

[96] As properly pointed out by both counsel, the decision on this case rests on the application of the principles as set out in R. v. W. (D.) [R.W.]. In applying those principles, if I believe the accused or if his evidence raises reasonable doubt, I must acquit him. Even where I do not believe the defence evidence or where it does not raise a reasonable doubt, the onus remains on the Crown to prove all of the elements of the offence beyond a reasonable doubt. This is not a contest of credibility between the witnesses.

[97] In summary, I do not find the accused Jessy Brethour a reliable or a credible witness. First of all, he was dishonest with this Court. He initially denied having any knowledge of one Henry Kedogan. He reluctantly admitted that not only did he know Kedogan, he knew a lot about him. Brethour's response to the series of questions he was asked about his knowledge of Mr. Kedogan revealed a pattern with regard to all of his evidence. He would initially give his evidence in‑chief in one manner but when forced to acknowledge contradictions, he tried to distance himself from his earlier evidence or tailor his responses in anticipation of the Crown's questions. For example, in examination in‑chief, Brethour never once said that he had been threatened by Nazary's demeanour when he approached the vehicle where he was talking to the girls. He was dismissive of him. It was only in cross‑examination when the Crown was asking him about his bail requirement that he keep the peace and be good behaviour, that he recognized the need to say that he felt threatened at that point in time.

[98] He took great pains to try to describe Mr. Nazary's behaviour as threatening. There was no gesture, there was no weapon, and there were no words. It was simply the case that Nazary stood in his space. Brethour stood up to face him; there was no evidence of Nazary coming up to Brethour and putting his face in his; if anything, it was the other way around. It is impossible to believe that Brethour thought that Nazary was about to apply force. Both Portillo and Downey testified that Nazary's tone of voice was normal. Judging from Nazary's demeanour on the stand, it was hard to see how his presence would be intimidating to Brethour. While Nazary is taller, Brethour is clearly a heavier built individual. Even if we accept his evidence that he weighs more now, the evidence of the video shows him to be a heavy‑set individual. This is a person who allowed himself to be advertised taking part in a mixed martial arts event. He is with friends; Nazary is alone. If anyone is a threat; it is him.

[99] This is another point of evidence where Brethour was particularly argumentative. He continually tried to diminish the discrepancies between his size and weight between himself and Nazary. When confronted with an Internet posting describing him as being in a "Super Heavy Weight" class in a mixed martial arts event, he got into a long debate with the Crown that such class did not exist. As for the advertised event on the poster, he said that he just agreed to do the fight but never participated because they never provided him with the training. He simply avoided the question.

[100] Another area of his evidence that was quite telling involved his description of Chad Dalton's events on that night. At first, he said that Chad was right behind him as he entered the apartment. As noted by the Crown, if Chad Dalton had entered the apartment building at the same time as Brethour, there would have been no time for Chad to remain behind and perform the "tackle" that he described to the Court. At this point, Brethour's evidence became less certain; he was not so sure that Chad entered at the same time but he was sure that they went up to the apartment together. He then described Chad remaining in the apartment for a period of time, having a conversation but having no real discussion about the events that had just transpired. He could not remember if his cousin told him that he "had laid a beating" on the other guy, even though that is the position he took at trial. This is also a statement that I find hard to believe in the circumstances. On the one hand, Brethour pretends this is something that was just an insignificant event and that he wanted to put behind him yet on the other hand he said that he has thought about this incident every night for two years and seven months; a time period that preceded his arrest.

[101] His description of his push of Nazary was also problematic. At first, he said he had just given him a little push and he described a very modest gesture. When confronted with the video that showed Nazary had stepped back all the way into the range of the surveillance camera near the gas pumps, he had to admit that he had given him a big push and that he had to have stepped into it. Again, this is another example of Brethour having to reconsider his evidence when confronted with something that is contradictory.

[102] More interestingly, he has tried to put the blame for Nazary's injuries on his cousin. There is an attempt by Brethour and his cousin to try to account for Nazary's brain injury by suggesting that this could have happened when he was tackled and his head hit the ground to try fit in with the description of the "contre‑coup" evidence given by Dr. Da Silva. The problem with this theory is that neither Brethour nor Dalton's evidence can explain the uncontradicted evidence of the comminuted fracture of the left suborbital area of Nazary's face. If one is to believe Brethour and Dalton, neither of them threw a punch to that side of the face. Brethour was very clear he gave a punch that landed on the right side of the face whereas Dalton said that he delivered no punch at all.

[103] The other area which is very difficult to reconcile is that Brethour claims to have walked away immediately after delivering the punch to Nazary. To do so, he would have had to walk into the path of Ms. Portillo's car that was in the process of backing up in doing a u‑turn around the front of the gas station. The video surveillance shows the car reversing 1 minute and 23 seconds after Nazary exits the store. There is not enough time for Nazary to walk up to the car, have a conversation with Brethour, for the shove and subsequent punch and to have Brethour walk away without encountering Portillo's car at some point in time but he makes no mention of it.

[104] The biggest problem with Brethour's evidence is that his cousin Chad contradicts him on many points. Those contradictions are such that one wonders if Chad Dalton was with him at all in the course of the evening as he claims. Chad Dalton indicated that he and his cousin and their friend Cory remained in the market area all night. He describes their evening as a great evening – that nothing bad happened. He said there was no fight at a strip bar in Hull and he was so sure of it that he would have gone home had there been such an event. There is no mention of an individual Adam driving them to Gatineau to go to the strip bar and he is not even sure that they did that. When they arrive at the gas station, he describes Andrea Portillo as sitting on the passenger side of the vehicle and he places himself and Brethour on the driver's side.

[105] More tellingly, he exaggerated Nazary's actions even more so than Brethour. He goes on to describe Nazary as "puffing his chest out" and displaying very aggressive behaviour. He said that Brethour just gave "a little push". This is at odds with the video surveillance that shows Nazary stepping way back towards the gas pumps area. He then goes on to describe a silent tackle that his cousin was totally unaware of. The description of the tackle was very hard to understand or believe. While he had a clear recollection of the tackle, he was unable to pinpoint where it took place. He was obviously aware that there were video surveillance cameras on site and I am convinced by his evasive answers that he refused to commit himself to the location of the tackle because he was clearly aware that the cameras would reveal that no such tackle had taken place. He could draw a diagram of where everybody was located except for himself and Nazary. More importantly, he said that Portillo's car never moved. For the tackle to have taken place, it would have had to be in the path that Jessy Brethour took to leave the gas station. It would have had to be between or near the gas pumps. Portillo was backing up during all this period of time and the tackle, just like Brethour's departure, would have had to have taken place in the path of her vehicle.

[106] Finally, Dalton said he went up to his cousin's apartment to call for a cab. This makes absolutely no sense because he had a working cell phone that he used just minutes before. He then says he immediately exits the apartment and waits 10 to 15 minutes outside for a cab. Again, he claims to have had no conversation with his cousin about what just happened. He does not even tell his cousin that he has just saved him from an assault. He describes Cory as being his friend that night but he leaves him behind without even checking in on him after describing Nazary as someone who was a threat. Again, if we are to believe Dalton, he never punched Narazy, which leads the injury to the left cheek totally unexplained.

[107] His description of the tackle however does accord with the Crown's case in one significant event. He described feeling arms around him after he had tackled Nazary to the ground. It is interesting to note Audriena Downey's evidence that she jumped in on the fight and she jumped on somebody's back. I believe that those are the arms that he felt around his back.

The Case for the Crown

[108] Khosrow Nazary's evidence is somewhat problematic because he suffered head trauma and he has memory problems. At the time of these events, he had consumed alcohol and he had consumed ecstasy but I agree with the Crown that fragments of memory can be important if they are corroborated. I note that Nazary was an agreeable witness; he admitted when he was mistaken and he agreed on errors that he could not have known. His demeanour on the stand certainly corresponds with the descriptions of his demeanour by Ms. Portillo and Ms. Downey. They say he used a normal tone of voice just before Brethour punched him in the face. The defence suggests that Nazary may have agreed to a fight but his answer to that question was that he had no clue. Nazary clearly remembers a punch; he remembers backing up as a result of the punch and the video surveillance confirms his version of the events. It clearly shows him backing up and raising his arm and one can see the upraised arm of Brethour in the corner of the photo.

[109] Ms. Downey and Ms. Portillo were credible witnesses. I found Audriena Downey's evidence particularly persuasive. She was candid and forthright. She tried to intervene. She was concerned enough about Nazary that she took him to the hospital. She had never met him before that night. While she may have had something to drink, she was very clear about her recollection. While Portillo later engaged in dishonest behaviour that night in misappropriating Nazary's debit card, she too was a credible witness. Neither of them was shaken during very lengthy and thorough cross‑examinations. Moreover, neither of them was contradicted with respect to their previous testimony. They did not know the accused and they did not know Nazary. While there were inconsistencies between them with respect to peripheral facts, they were consistent with each other on the core events.

[110] They agreed on the position of the parties in the car. While they disagreed as to when Audriena got out of the car, they agree that she got out and tried to intervene when Brethour and his friend were fighting with Nazary. They both mentioned that Brethour said something about a fight with a bouncer and Brethour agrees that he may have said something about a bouncer. They both described the aggressor as being a male with a stocky build and a shaved head who was later identified as Brethour. Ms. Downey saw Dalton and Brethour leave together. She observed Brethour put his hood up as he walked away. They both observed multiple blows from Brethour and Dalton and that Nazary was making wild defensive movements with his hands.

[111] Portillo was the driver; she was not drunk. She had consumed one half of a pill of ecstasy and there is no evidence of impairment. Downey said she had not consumed any ecstasy and she indicated she could handle a fair amount of alcohol. Portillo's account of immediately backing up her car after the fight started is confirmed by the video surveillance. I am satisfied that there was no collusion between these witnesses. In fact, I think it is normal that there would be some degree of discussion between four young women about the events of that night. The discussions involved Ms. Khair's movements and she was not a witness in these proceedings nor does she play any role in the events that happened. If there had been any kind of collusion as suggested by the defence, one would not have expected as many contradictions on some of the peripheral facts. The contradictions between the defence witnesses were much more significant and their claim that they had not discussed these events prior to testifying is simply not believable. They gave wildly different accounts of their evening together, but were united on only one point – that Nazary was the aggressor – and even then, they were not consistent. Their attempt to explain away Nazary's injuries by a silent tackle was pathetic.

[112] Finally, there is the conduct of the accused and of his cousin in leaving the scene which is consistent with someone who has just walked away after committing an assault. Their explanations for their behaviour are not reasonable. As the Supreme Court of Canada has recently stated in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para. 22:

22 The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23). As Major J. noted in White (1998), "[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may [page450] be highly incriminating, while in others it might play only a minor corroborative role" (para. 21). As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26)...Thus, while the term "consciousness of guilt" may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged - provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated

[113] It makes no sense that after he was out celebrating all night with his friends Chad and Cory, Brethour promptly leaves them behind after he delivers one punch to Nazary. His gesture in putting his hood up and immediately jogging across the street to his mother's residence is strong circumstantial evidence that is consistent with his walking away from having assaulted Nazary. His explanation that he just wanted to end a "crappy night" is not credible. Why would he leave so quickly, without a word to anyone, not even to his cousin, and pull the hood up over his head? Dalton's reasons for running away and leaving his friend Cory behind are not believable. He goes to his cousin's apartment to call a cab; he does not tell him what he has just done. If he wanted to call a cab, he just had to use his cell phone. He could have walked away in any direction; he did not need to go up to the apartment. Nazary was on the ground.

[114] I conclude, beyond a reasonable doubt, that the events transpired as described by the Crown's witnesses. In the early hours of September 26, 2009, the accused, Jessy Brethour, sucker‑punched Khosrow Nazary after he approached the vehicle where Andrea Potillo was seated. I accept the evidence of Ms. Portillo and Ms. Downey that nothing that Mr. Nazary may have done or said at that moment constituted any threat to Jessy Brethour. I accept the evidence that Jessy Brethour was the first to deliver a punch to Mr. Nazary's head and that, thereafter, he and his cousin Chad Dalton engaged in a two‑on‑one fight while Nazary unsuccessfully tried to defend himself.

[115] Either the initial blow or the subsequent blows delivered by Jessy Brethour along with his cousin Chad Dalton were the cause of the contusion to Khosrow Nazary's brain and the serious injury that subsequently developed. Afterwards, realizing what they had done, they ran across the street to Jessy Brethour's mother's apartment to avoid detection. This being the case, the Crown has also established that none of the self‑defence provisions of the Criminal Code apply. Taking the defence position at the highest, that somehow Nazary threatened Jessy Brethour by standing close to him, that threat is so trivial that the use of any force by Brethour was unnecessary and disproportionate. The punch in the face that was delivered by Brethour is grossly disproportionate to the act of Nazary standing close to him and somehow "being in his face".

[116] The injuries inflicted on Khosrow Nazary ultimately resulted in the brain hemorrhage leaving him with a disfiguring scar and permanent sequellae to his brain. These injuries satisfy the criteria of an aggravated assault. It is not necessary to specify which specific act caused the injury. Whether as the initial aggressor, or as party to the offence, Jessy Brethour is responsible for the foreseeable consequences of his actions that night. I note and rely on the Supreme Court of Canada's decision in R. v. Maybin. Even if Jessy Brethour's actions were not the direct and immediate cause of Mr. Nazary's injuries, "but for" his actions, those injuries would not have occurred. As noted in R. v. Vang, once an accused joins in a common purpose of committing an assault, he is responsible for the reasonably foreseeable consequences. During 100 percent of the altercation, Mr. Brethour was either the principal or a party to the offence pursuant to section 21 of the Criminal Code.

[117] For all these reasons, I find the accused Jessy Colton Brethour guilty of aggravated assault. It is conceded that if I found Mr. Brethour guilty on that count, he would also be convicted of the breach of conditions to keep the peace and be of good behaviour. I accordingly find him guilty of that count was well.

Mr. Justice Robert N. Beaudoin

Released: October 29, 2012

COURT FILE NO.: CR-10-9347

DATE: 2012/10/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

JESSY COLTON BRETHOUR

REASONS FOR JUDGMENT

Beaudoin J.

Released: October 29, 2012