ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-1427-0000
DATE: 20130305

B E T W E E N:

HER MAJESTY THE QUEEN

Ms. C. Vander Brock, for the Crown

• and -

ROHAN HARDOWAR

Mr. M. Mattis, for the Defence

HEARD: January 28, 29, 30, 31, February 1, 2013

REASONS FOR JUDGMENT

Andre J.

[1] On June 12, 2010 Mr. Deodat Joseph received a stab wound in the upper torso following an altercation with Mr. Hardowar. Mr. Joseph testified that Mr. Hardowar came up behind him while he was on his way to relieve himself in a park during an annual picnic and stabbed him following a short verbal exchange. Mr. Hardowar testified that following an exchange of verbal insults, Mr. Joseph suddenly brandished a pair of scissors. Mr. Hardowar then grabbed Mr. Joseph’s hand which held the scissors and in the ensuing struggle for the scissors, Mr. Joseph suffered a stab wound which resulted in the loss of his spleen. I must now decide whether or not the Crown has proven its case beyond a reasonable doubt.

SUMMARY OF THE EVIDENCE

1. A. Chandra Ramkissoon

[2] Ms. Ramkissoon had an on again off again relationship with Mr. Joseph when the incident occurred. She knew that Mr. Joseph and Mr. Hardowar, who she met through her daughter Asha, were once good friends. Mr. Hardowar had lived at Mr. Joseph’s residence for two months while Ms. Ramkissoon was dating Mr. Joseph. She witnessed a number of disagreements between the two men including one in a park when both pushed each other at a barbeque sometime prior to June 12, 2010. She believed that Mr. Joseph asked Mr. Hardowar to leave his home because of what Mr. Joseph regarded as offensive music being played by his tenant.

[3] Ms. Ramkissoon went to the Wildwood Park on June 12, 2010 with her daughter Asha, the latter’s friend, Annameka, Asha’s boyfriend and Ms. Ramkissoon’s two young children. The occasion was a village reunion. Mr. Joseph was a member of the village community, unlike herself or Mr. Hardowar. The park was located in Malton. There was music, food and alcohol at the picnic.

[4] At one point she saw Mr. Hardowar, his current girlfriend, Vernetta, and Mr. Joseph with a group of people. Mr. Hardowar passed her a few times but she did not speak to him. Asha made a comment that Mr. Joseph and Mr. Hardowar were talking. Sometime later, Asha ran over to her and stated that Rohan had just stabbed Joseph.

[5] Ms. Ramkissoon was holding a child when Asha stated this. She gave the child to its father and then ran over to Mr. Joseph. He was then approaching the tables that were located close to a gazebo in the park. Mr. Joseph said “he stabbed me.”

[6] Blood was gushing from him. Chandra Ramkissoon put him to sit down at a table.

[7] Ms. Ramkissoon then ran over to where Mr. Hardowar was standing and punched him in the face. He reached back towards something but other males restrained him.

[8] Ms. Ramkissoon then heard Mr. Hardowar say, “I’m going finish this off” or something to that effect. Ms. Ramkissoon then heard swearing. She returned to Mr. Joseph’s location and called 911.

[9] She later saw Vernetta and another male pulling Mr. Hardowar towards a parking lot nearby. Ms. Ramkissoon thought of following him but the police dispatch advised her to stay with Mr. Joseph.

[10] It was put to Ms. Ramkissoon that in her video statement to the police on the night of the incident, she said that after the stabbing, Mr. Joseph was rushing towards Mr. Hardowar. She conceded that she did not tell the police that she had heard Mr. Hardowar state that he wanted to finish Mr. Joseph off. She agreed that she stated in her video statement to the police that she did not know what Mr. Hardowar was saying.

[11] Ms. Ramkissoon also agreed that she did not mention in her statement that she had seen Mr. Hardowar running in Mr. Joseph’s direction neither did she see Mr. Joseph running behind him. Ms. Ramkissoon explained this by stating that she had advised the Crown prosecutor that her statement to the police would not be 100% accurate as her testimony during the trial.

[12] Ms. Ramkissoon conceded that she had discussed the incident with Mr. Joseph but not with her daughter Asha.

[13] Ms. Ramkissoon described Mr. Joseph as having been calm after the stabbing.

[14] She stated that she knew that he had previously been convicted of impaired driving.

[15] She denied that Mr. Joseph was angry and hyper following the stabbing. She denied that he had to be held back after he suffered the stab wound.

[16] Defence counsel put to Ms. Ramkissoon that she told the police that she had seen the stabbing. In re-examination, the Crown pointed to a section in her statement where she stated that she did not see the actual stabbing.

B. Deodat Joseph

[17] The married father of two met Mr. Hardowar four years ago. Mr. Hardowar lived with him for approximately nine months. He asked Mr. Hardowar to move out of his house because he found that the lyrics of songs played by Mr. Hardowar to be offensive.

[18] Mr. Joseph had limited contact with Mr. Hardowar afterwards. On one occasion, the two met at a barbeque in Roundtree Park. On another occasion they argued over the phone about a hat that Mr. Hardowar’s girlfriend had purchased for Mr. Joseph in the United States.

[19] On June 12, 2010, Mr. Joseph attended the picnic at 6:30-7:00 p.m. He was there for 45 minutes before he saw Mr. Hardowar. By then he had consumed two bottles of Coors Light and one bottle of Bravo beer. Up to that point he had gone to pee in an area nearby on two separate occasions.

[20] He went to relieve himself on a third occasion. As he approached the location he heard footsteps behind him. He turned back. Mr. Hardowar was 7-8 feet away. He was with a friend.

[21] Mr. Hardowar asked Mr. Joseph how he was doing. He then threw a hand over Mr. Joseph’s shoulder and asked: “How you doing man?”

[22] Mr. Joseph replied: “Not too bad buddy.” Mr. Joseph started to loosen his belt before relieving himself. Mr. Hardowar then pulled Mr. Joseph’s right shoulder, pushed him, shoved a pair of scissors into his side, and pulled it back out.

[23] Mr. Hardowar then stated: “You scunt.”

[24] “I didn’t get to say anything,” Mr. Joseph testified.

[25] Mr. Hardowar left.

[26] Mr. Joseph looked at the wound. The blood started to flow.

[27] Annameka and Asha came up to him and asked what happened. He told them Romeo had stabbed him.

[28] Chandra came and lifted up his shirt. She saw blood and called 911.

[29] Asha and Annameka put him to sit on a wooden platform. He later saw Mr. Hardowar leave with his girlfriend. He saw them crossing a bridge to go over to a parking lot. He did not see them after that.

[30] Asked about the scissors, he described it as being black and chrome coloured.

[31] “I barely got a flash on it”, he testified.

[32] After the stabbing he saw Mr. Hardowar put something in his back pocket. He did not know what it was.

[33] As Mr. Hardowar left the scene of the stabbing, Mr. Joseph heard the male say to Mr. Hardowar: “What the fuck you do that for. Is that necessary?”

[34] Mr. Joseph testified that this man never touched him.

[35] The medical attendants transported him to a hospital. He underwent a 5- hour medical operation to remove his spleen. He spent five days in the hospital. He received 108 staples to close the surgical incision and his stab wound.

[36] Mr. Joseph denied having any argument with Mr. Hardowar before he was stabbed. He was surprised when he was stabbed.

[37] On November 28, 2012, Mr. Joseph met Mr. Hardowar by accident at a restaurant called Caribbean Desire. Vernetta came over to him and told him that Mr. Hardowar was there. She called him over to Mr. Joseph’s location. Mr. Hardowar spoke to Mr. Joseph. The former was crying.

[38] Mr. Joseph ordered a beer. Mr. Hardowar told the female attendant to “make it two” and gave her a $50 bill. He asked Mr. Joseph about his wife and kids. Mr. Hardowar ordered two more beers. During the conversation, Mr. Hardowar stated that if Mr. Joseph told the court that it was the other guy who stabbed him, not Mr. Hardowar, he would get his immigration papers. They chatted further and Mr. Hardowar stated that he wished to apologize to Mr. Joseph for the stabbing. The two left on good terms.

[39] While being cross-examined, Mr. Joseph stated that he could not read or write. He initially admitted to having previously been arrested for “only drinking and driving”. He later admitted to other convictions including a 1997 conviction for possession of stolen property. He admitted that he was charged in 2005 for Assault with a Weapon and Failing to Appear in court. He signed a Peace Bond for the two charges and they were subsequently withdrawn.

[40] He confirmed that he gave a statement to the police on June 22, 2010. He conceded the following:

i)He told the police he had never seen the male who was with Mr. Hardowar at the time of the stabbing before the June 12, 2010 incident. He testified however, that he had seen him twice before.

ii) He told the police that he did not hear the male say anything to Mr. Hardowar. He conceded that he was speaking the truth when he gave the statement. He added that he did not remember the male when he spoke to the police.

iii) He did not tell the police that following the stabbing, Mr. Hardowar had placed something in his back pocket.

iv) He testified at the preliminary hearing that he saw Mr. Hardowar put the scissors in his back pocket and walk away.

[41] Mr. Joseph testified in cross-examination that he was not sure if Mr. Hardowar had shoved the scissors into his back pocket.

[42] Mr. Joseph stated that he was half facing Mr. Hardowar when the latter stabbed him. It happened very fast. He had no chance to do anything. He only saw the blade of the scissors. He saw Mr. Hardowar place his hands into his pockets after the stabbing.

[43] Following the stabbing Mr. Joseph went back to where he had been originally. He met Annameka and his friend Bob. He next saw Mr. Hardowar when the latter was crossing the bridge leading to a parking lot.

[44] Mr. Joseph denied trying to go after Mr. Hardowar. He also denied knowing where Chandra went after she had come up to him.

[45] Asked about his meeting with Mr. Hardowar at the Caribbean Desire, Mr. Joseph reiterated that Mr. Hardowar did not say anything bad to him.

[46] “He was real nice to me”, Mr. Joseph stated of Mr. Hardowar when they met at the Caribbean Desire.

[47] Asked why he had not reported the incident to the police immediately afterwards, he replied that he did not want to cause any trouble. However, he stated that he spoke to a Constable Ramsay the next day. The officer-in-charge of this case then called him one and one half weeks following the incident at Caribbean Desire.

[48] Mr. Joseph denied bringing the scissors into the park or pulling it on Mr. Hardowar. He denied pushing Mr. Hardowar’s hand from his shoulder. He denied that he had gotten stabbed during the struggle for the scissors. He also denied being restrained by people after the stabbing.

[49] Asked about his reaction when Mr. Hardowar was released on bail following the stabbing incident, he replied that he felt that it was not right for Mr. Hardowar to have been released.

C. Asha Ramkissoon

[50] The 22-year-old aesthetician knew Joseph for 4 years and saw him socially up to a year or more ago. She knew Mr. Hardowar through her friend Annameka. She had a good relationship with him but has not spoken to him since June 12, 2010.

[51] She went to the picnic around 4:00 p.m. with her mother, Annameka, her boyfriend and little brother and sister. She did not expect to see Mr. Joseph since her mom was not dating him then. She may have seen Mr. Hardowar before the stabbing but did not say hi to him. She did not consume any alcohol because she was the designated driver.

[52] She remembered standing under the gazebo in the park with Annameka next to her. She looked up and saw Mr. Joseph and Mr. Hardowar standing next to a skinny tree. The former had a red cup in his hand. Mr. Hardowar had a cup and a beer bottle. The two were about 60-70 feet away.

[53] Ms. Ramkissoon glanced up at one point. She saw Mr. Hardowar standing with Mr. Joseph. It appeared as if Mr. Hardowar was giving Mr. Joseph a handshake and a hug. The former’s back was facing Ms. Ramkissoon. Mr. Joseph seemed to be smiling.

[54] Ms. Ramkissoon glanced away and glanced back at the men. They tumbled to the other side of the tree. They were almost ready to fall. Mr. Hardowar then walked diagonally away from the parking lot. Ms. Ramkissoon did not see any one else touch Mr. Joseph.

[55] Mr. Hardowar looked angry and looked like he was yelling. He walked to the back of the park where cars were parked on the grass.

[56] Ms. Ramkissoon stated that she saw Mr. Hardowar push away from Mr. Joseph. The latter looked shocked. He did not look angry.

[57] “I ran to my mom”, Ms. Ramkissoon testified. She advised her mother that the two men were fighting.

[58] Her mother then walked to Mr. Joseph. Chandra Ramkissoon then said that Mr. Joseph had been stabbed.

[59] They walked Mr. Joseph to the gazebo and placed him to sit on one of the tables. He appeared unstable. It did not appear that he could walk for too long. Asha remained with him until the ambulance arrived.

[60] The incident happened around 7:00 p.m. Ms. Ramkissoon never saw a weapon.

[61] Ms. Ramkissoon described Mr. Joseph as a quiet man who often gave jokes. She admitted in cross-examination that she testified at the preliminary hearing that she and Annameka were holding Mr. Joseph back after the stabbing. She agreed that what she testified at the preliminary hearing was the truth. She repeated that she saw Mr. Hardowar push Mr. Joseph.

[62] Ms. Ramkissoon also conceded that she testified at the preliminary hearing that she did not know who pushed who. She also confirmed that she testified at the preliminary hearing that Mr. Hardowar’s face looked angry. She saw his face after he and Mr. Joseph had moved to the other side of the skinny tree.

[63] Mr. Mattis again put to Ms. Ramkissoon that she told the preliminary hearing that “they pushed each other”.

[64] “I seen a push”, she replied.

[65] In re-examination, Asha Ramkissoon confirmed her testimony in the preliminary hearing that Mr. Joseph never touched Mr. Hardowar in any way.

D. Annameka Nascimento

[66] Annameka dated Mr. Hardowar for approximately one month, three years ago. She went to the picnic on June 12, 2010 with her best friend Asha, Chandra and Chandra’s two young children. She saw Mr. Joseph and Mr. Hardowar at the picnic but did not say hello to either.

[67] At one point, she was dancing to the music while Asha stood beside her. She recalled Asha asking her to look at a certain area in the park. She did and saw Mr. Joseph and Mr. Hardowar hugging and arguing. She could not really say what they were doing. She then saw Mr. Hardowar run away from the scene.

[68] Annameka did not make anything of what she had seen. She remembered Asha pointing to her Mom. She followed Asha to her mother.

[69] She remembered Mr. Joseph yelling that he was stabbed. He kept saying that he could not believe that Mr. Hardowar had stabbed him. Mr. Joseph also stated of Mr. Hardowar: “He’s like a brother to me”.

[70] Annameka described Mr. Joseph as being angry, confused and frustrated.

[71] Mr. Joseph could hardly walk. He repeatedly stated that he did not know why Mr. Hardowar had stabbed him. Annameka and Asha took Mr. Joseph to sit on the benches near to the gazebo. She tried to calm Mr. Joseph down. After he was seated on the bench she applied pressure to the stab wound.

[72] She could not remember seeing Mr. Hardowar immediately after the stabbing. She later saw him leaving the park with a lady and some other male.

[73] “He was rushing out”, Annameka stated.

[74] Mr. Joseph, Annameka testified, had a few beers at the picnic. She recalled that Mr. Hardowar had a cup in his hand at some point. Mr. Joseph was usually drunk. When Annameka initially saw him in the park, she did not say hello to him. She did not consider him a friend because she disliked how he treated Asha’s mother.

[75] Annameka testified further that she first saw Mr. Joseph when he was arguing with Mr. Hardowar. She saw the two men arguing and then hugging. She then saw Mr. Hardowar “rushing out” of the park. She could not recall if he stopped somewhere in the park before leaving. She maintained that she was able to see Mr. Hardowar crossing the bridge in the park while she stood next to Mr. Joseph in the gazebo. The trees in the park did not obstruct her view.

[76] Annameka testified that either Asha or her mom called 911. She did not see where Chandra went after the stabbing.

[77] Annameka conceded that she told the police that after the stabbing she saw Mr. Joseph going towards Mr. Hardowar. She stated that Mr. Hardowar was 40-50 feet away from her location when she saw him leaving the park. She added that he had a bright red shirt at the picnic.

[78] Asked whether she had discussed the incident with anyone she replied that Asha, Chandra and herself had talked about the incident “more or less”.

[79] Mr. Mattis put to Annameka that she never told the police that she saw Mr. Hardowar fleeing with anyone. She replied that she could not remember.

[80] She agreed that she told the police that Mr. Hardowar had fled the location of the stabbing by the time she reached Mr. Joseph.

[81] She agreed that she thought that Mr. Joseph was heading to Mr. Hardowar before she pulled Mr. Joseph to the bench.

[82] She denied that her testimony was based on information she received from Asha and Chandra.

[83] Mr. Mattis put to Annameka that she told the police that she saw people holding back Mr. Hardowar after the stabbing. She conceded that she testified that she only saw him when he was fleeing the park.

[84] In re-examination, Annameka agreed that she told the police that she heard Mr. Joseph say after the stabbing, “He stab me; he stab me”.

E. Rohan Hardowar

[85] The 25-year-old welder came to Canada in 2006 on a student visa to do a course in business administration at Centennial College in Scarborough. He had an operation for kidney stones a few months later and dropped out of school. He started working and has lived at various addresses including that of Mr. Joseph.

[86] He met Mr. Joseph through Annameka, Asha and Chandra.

[87] He stated that he and Mr. Joseph were like brothers. They socialized together. Mr. Joseph invited him to rent a room at his home. He agreed to help his friend by occupying a room in Mr. Joseph’s home. He paid Mr. Joseph $450.00 rent monthly. He lived with Mr. Joseph from June to November, 2009. He left the home because Mr. Joseph’s children disrupted his sleep. Mr. Joseph asked him to leave because his wife was upset. Mr. Hardowar left the home and went to live with Mr. Joseph’s mother and sister.

[88] Mr. Joseph called him shortly after and asked him to come back. Mr. Joseph told him they were brothers and that he had not expected Mr. Hardowar to leave the home. In December 2009, Mr. Hardowar paid Mr. Joseph $300 rent that he owed him.

[89] On June 12, 2010, Mr. Hardowar went to the picnic by bus and arrived between 4:30 and 5:00 p.m. His girlfriend, Vernetta, arrived later.

[90] He walked around the park, greeting people. He drank 2 -3 bottles of Bravo beer. He saw Chandra, Asha and Annameka but did not speak to them.

[91] He saw Mr. Joseph two hours after he arrived at the picnic. He went to greet him. Mr. Joseph’s back was facing Mr. Hardowar. Mr. Hardowar went to hug Mr. Joseph. He placed his left hand on Mr. Joseph’s left shoulder and asked him how he was doing.

[92] Mr. Joseph turned around, pushed his hand away and said, “Fuck off”.

[93] Mr. Hardowar replied, “Suck your mother, you skunt”.

[94] “I saw his right hand coming from his pocket with a shiny object”, Mr. Hardowar testified. He then grabbed Mr. Joseph’s right hand with his left hand and using his other hand, thrust Mr. Joseph’s left hand towards him. He then pulled out the shiny object from Mr. Joseph’s body and ran.

[95] He went back to the location where he had stood before. Mr. Joseph attempted to come after him. Asha and Annameka were holding Mr. Joseph back. Chandra came up to him and struck him on his forehead.

[96] An unknown male shouted to him to get out of the park; that they were going to kill him.

[97] Mr. Hardowar testified that he wanted to remain to talk to the police. People were telling him to leave. He was scared for his life. He had outstanding immigration issues. His girlfriend also told him to get out. Her brother, Ramesh, came over to him. Mr. Hardowar asked him for a ride. He left the park with Ramesh and Vernetta. Ramesh took him to the home of Vernetta’s sister where he remained for two to three days before surrendering to the police.

[98] He did not go to Vernetta’s house where he had been living because he was scared and because he knew that the police would be looking for him. He surrendered after being advised that the police were looking for him.

[99] He lied to the police because his lawyer told him not to say anything.

[100] Asked about the whereabouts of the scissors, he stated that he tossed it into a bush on his way to the home of Vernetta’s sister.

[101] About the stabbing, Mr. Hardowar testified that he was defending himself. He denied ever meeting Mr. Joseph at Caribbean Desire.

[102] Under cross-examination, Mr. Hardowar testified that there was no discord between himself and Mr. Joseph. He agreed however, that before June 12, 2010, he had not spoken to Mr. Joseph since they attended the picnic at Roundtree Park. He stated however, that they were getting alone fine.

[103] Mr. Hardowar later stated that he had spoken to Mr. Joseph after the Roundtree picnic.

[104] He denied buying a hat for Mr. Joseph. He also denied that he and Mr. Joseph were not getting along.

[105] Asked about his desire to speak to the police, he replied that immediately after the stabbing, he wanted to wait in the park until the police arrived in order to speak to them. He got really scared after Chandra struck him. He changed his mind about speaking to the police after Chandra struck him. He thought that they would kill him if he remained in the park.

[106] After he surrendered to the police he again wanted to tell them the truth about what happened in the park. However, his lawyer advised him not to say anything to the police.

[107] He lied to the police because he wanted to “brush them off”. He wanted them to leave him alone.

[108] He repeated that he did not know where Caribbean Desire was located.

[109] The Crown cross-examined Mr. Hardowar on his statement to the police. He admitted that he told the police that he knew nothing about the stabbing. He also admitted that he told the police that he just walked out of the park and that Vernetta was his relative. He also admitted that he told the police that he knew nothing about scissors or any stabbing. He stated that he lied to the police because he was scared. He was concerned that he would either be locked up or deported if he admitted involvement in the incident.

[110] Pressed about his actions after the stabbing, Mr. Hardowar replied that he wanted to wait to talk to the police to tell them his side of the story. He only decided to leave the park when people said that they were going to kill him.

[111] He also stated that he became scared of the police after he left the park because he thought they were going to lock him up.

[112] “I wanted to stay because it was the right thing to do”, Mr. Hardowar testified.

[113] Asked about Chandra having struck him, Mr. Hardowar replied that he would not even have tried to block a woman if she struck him.

[114] “I didn’t think she would have hurt me”, he testified about his reaction to Chandra hitting him.

[115] Mr. Hardowar stated that he did not know that Mr. Joseph was going to pee. He could not recall whether or not he had a beer in his hand at the time of the incident.

ANALYSIS

[116] Both the Crown and defence concede that to a significant degree, this case turns on an assessment of the credibility of the witnesses. For that analysis the Court should be guided by the principles enunciated in the case of R. v. (W.D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.).

[117] Mr. Mattis submits that there is an “air of reality” in Mr. Hardowar’s testimony. His explanation about why he fled the park and later lied to the police was reasonable in the circumstances of this case. He further submits that the evidence of the Crown’s witnesses is riddled with internal inconsistencies and contradictions. Worse, all of the Crown’s witnesses gave prior inconsistent statements that seriously undermine their credibility.

[118] The Crown concedes that there are some inconsistencies in the testimony of its witnesses but submits that Mr. Joseph’s testimony was not shaken in cross-examination and that more importantly, it was corroborated by that of the other witnesses. The Crown dismisses Mr. Hardowar’s testimony as being self serving, internally contradictory, unworthy of belief or of raising a reasonable doubt.

[119] The Crown is correct that there are areas of inconsistency in the testimony of Mr. Hardowar. For example, he initially testified that he had not spoken to Mr. Joseph following the Roundtree Park barbeque but later testified that he did. Secondly, he initially testified that he became very scared after Chandra had struck him in the forehead but later admitted that he would not even have tried to block a woman if she had struck him. Thirdly, he testified that he wanted to stay in the park to tell the police what had actually happened but then changed his mind after Chandra had struck him. If he did not think that Chandra would have hurt him, as he testified in cross-examination, why then would he have changed his mind about talking to the police after she struck him?

[120] Mr. Mattis also submits that I should believe his client’s version of the events given that Mr. Joseph had at least on one previous occasion, resorted to violence during an altercation with another male. On that occasion, he had struck the male with a beer bottle.

[121] Mr. Joseph testified that he was drunk when that incident took place. Annameka testified that he was drunk on June 12, 2010. No other witnesses came to that conclusion. Mr. Joseph testified that he had consumed three beers. He was not challenged or shaken in cross-examination about his alcohol consumption in the park. I cannot find that he had a propensity to be violent anymore than I can find that Mr. Hardowar had a history of violent behaviour.

[122] Mr. Hardowar testified that he left the park because he was scared that he would be killed. One would expect that those concerns would have dissipated as soon as he left the park. He was then out of danger. He should therefore have been willing to advise the police what he had done given that he felt that he had acted in self defence.

[123] However, Mr. Hardowar did everything possible to avoid being implicated in the stabbing. He disposed of the pair of scissors. He got rid of his Face Book page. He went to the residence of Vernetta’s sister to avoid being located by the police. One would have thought that he would have been happy to see them and do everything to facilitate a meeting with them. Clearly, his actions were inconsistent with his professed desire to discuss the matter with the police.

[124] Additionally, it is difficult to understand Mr. Hardowar’s rationale for lying to the police. His lawyer advised him against giving a statement. He said so to the interviewing officer. The latter persisted in asking Mr. Hardowar questions about the incident. Rather than exercising his right to remain silent, Mr. Hardowar lied repeatedly to the police. He did so, he stated, “to brush off” the police.

[125] His reason for lying to the police is beyond comprehension. Mr. Hardowar was concerned that his immigration status would be in jeopardy if he was linked to the stabbing. He initially wanted to talk to the police because he felt that he had acted in self defence. He believed that he had done no wrong. And yet when given an opportunity to tell the police his version of events, he repeatedly lied to them about the most important aspects of the incident.

[126] He professed not to know anything about scissors or the stabbing. He lied about his relationship with Vernetta. He lied about how he left the park.

[127] In the Court’s opinion, Mr. Hardowar’s actions support the conclusion that he did everything possible to avoid being linked to the stabbing. He left the park as soon as possible after the stabbing. He got rid of the scissors. He got rid of his Face Book page. He got rid of his old residence. He repeatedly lied to the police about what had happened in the park on June 12, 2010.

[128] Additionally, Mr. Hardowar testified that after he had insulted Mr. Joseph the latter pulled out the scissors in an apparent attempt to stab him. But for his quick thinking and his knowledge of martial arts, Mr. Joseph would have stabbed him.

[129] Upon closer scrutiny, I have serious concerns about Mr. Hardowar’s version of events. Mr. Joseph is much taller and bigger than Mr. Hardowar. Annameka testified that Mr. Joseph was drunk but that testimony is not supported by any other witness. Indeed, she had not had any contact with him earlier that evening. She interacted with Mr. Joseph after he was stabbed just as Chandra and her daughter. Neither testified that he was drunk; not even Mr. Hardowar.

[130] Despite the size disparity and the fact that Mr. Joseph was not drunk, Mr. Hardowar was able to force the scissors into Mr. Joseph’s lower chest. There is no explanation how Mr. Hardowar got hold of the scissors. After all, Mr. Joseph, according to Mr. Hardowar, was the one who initially held the scissors. How did Mr. Hardowar get a hold of it? Did Mr. Joseph release it after Mr. Hardowar forced it into him?

[131] Given the material inconsistencies between Mr. Hardowar’s testimony and his statement to the police; given the internal inconsistencies in his testimony and given his post-offence conduct, I find Mr. Hardowar’s testimony about the incident to be incapable of belief or of raising a reasonable doubt in the Crown’s case.

[132] What about his denial of knowing, let alone meeting Mr. Joseph at the Caribbean Desire? He flatly denied any meeting with Mr. Joseph at the restaurant. Mr. Mattis submits that given the unreliability of Mr. Joseph’s testimony, I should not accept his account of any meeting between himself and Mr. Hardowar, without corroboration.

[133] Given Mr. Hardowar’s repeated concerns about his immigration status, he has already shown that he would lie to protect his status. I am therefore not prepared to accept, without corroboration, his testimony that he either did not know about the restaurant or that he never had the conversation with Mr. Joseph.

[134] Mr. Mattis dismisses that part of Mr. Joseph’s statement as being nothing more than a concoction designed to get his client.

[135] Mr. Joseph however, testified in a rather subdued fashion about his conversation. Rather than exhibiting any animus towards Mr. Hardowar, he testified that Mr. Hardowar treated him “real nice” on this occasion. He also stated that Mr. Hardowar was crying and that he paid for the two beers Mr. Joseph had consumed at the restaurant. He provided details about how Mr. Hardowar paid for the drinks. He was not shaken in cross-examination. There was uncontradicted evidence that Mr. Joseph contacted the police the day after his contact with Mr. Hardowar and his girlfriend on that day. As for the suggestion that there were no witnesses confirming Mr. Joseph’s presence at the Caribbean Desire on November 28, 2012, Mr. Joseph testified that despite knowing the bar owner, he did not see anyone he knew at the bar that night. Finally, if Mr. Joseph was so incensed over Mr. Hardowar being released on bail, and concocted this story to get him re-arrested, why would he have waited over two years after the incident to fabricate this story about Mr. Hardowar?

[136] Furthermore, Mr. Mattis never put to Mr. Joseph that he did not meet Mr. Hardowar at the bar on that day. His failure to cross-examine Mr. Joseph on this issue is a factor I can assess in considering Mr. Hardowar’s testimony about never having attended the Caribbean Desire restaurant. See Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).

[137] The conclusion that Mr. Hardowar’s testimony is unworthy of belief or lacking an air of reality does not end the analysis. I must decide whether or not, based on the totality of the evidence that I accept, I find him guilty of the offence beyond a reasonable doubt.

[138] I must exercise caution in assessing Mr. Joseph’s testimony for a few reasons. He was less than forthright about his criminal record and the fact that he had been arrested for offences other than impaired driving. Secondly, there are some inconsistencies between his testimony at the preliminary hearing and at his trial. For example, he had no recollection at the preliminary hearing, what if anything, the unknown male said to Mr. Hardowar after the stabbing, but had no such difficulty during the trial. He told the police that he had never seen the male before but testified that he had seen him twice before the stabbing.

[139] But there are other factors I must consider while assessing Mr. Joseph’s evidence. His criminal record includes one conviction for an offence of dishonesty. As such, it does not reflect a pattern of dishonest behaviour such that I should conclude that he has a propensity for dishonesty.

[140] Secondly, Mr. Joseph did not appear to manifest any animus towards Mr. Hardowar. He described him as having been very nice when he met him at the Caribbean Desire. Of their prior problems, he volunteered that after Mr. Hardowar left his residence, he returned to pay him rent money. Furthermore, Mr. Joseph retreated from his testimony at the preliminary hearing that he saw Mr. Hardowar place the scissors into his back pocket before walking away. Instead, he testified that “he was not sure if Mr. Hardowar shoved the scissors into his back pocket.” Significantly, Mr. Hardowar essentially corroborated this part of Mr. Joseph’s testimony when he stated that he believed that he placed the scissors in his back pocket following the stabbing.

[141] Mr. Hardowar corroborates Mr. Joseph’s testimony in other respects. He went to Mr. Joseph when the latter had moved to an area in the park where there were few persons present. He confirmed that he approached him from behind. He also confirmed that he had held Mr. Joseph over his shoulder. He confirmed that before the stabbing he referred to Mr. Joseph as a “skunt”.

[142] The testimony of the two diverges significantly over how Mr. Joseph was injured. I reject Mr. Hardowar’s version for the following reasons. He chose to approach Mr. Joseph after the latter had moved away from people in the park to relieve himself. He provided no explanation how he managed to get hold of the s