R. v. Kifarkis, 2015 ONSC 749
COURT FILE NO.: SCA-14-32-1
DATE: 20150203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
STIWART KIFARKIS
Appellant
Kim Walker, for the Crown
Daisy McCabe-Lokos, for the Appellant
HEARD: November 17, 2014
trotter j.
[1] On Monday 28, 2012, Omar Ung was the victim of a vicious and cowardly attack at a Toronto nightclub. Down on the ground, one man choked him from behind, while another smashed a champagne bottle in his face. The appellant joined the scuffle. He claimed that he was trying to assist Mr. Ung. The Crown alleged that the appellant participated in the attack.
[2] After a trial before Justice R. Libman of the Ontario Court of Justice, the appellant was found guilty of assault with a weapon and assault causing bodily harm. He appeals, alleging various errors by the trial judge. For the following reasons, the appeal is dismissed.
SUMMARY OF THE FACTS
[3] Mr. Ung, who is from Ottawa, came to Toronto and went to Mansion Nightclub with a group of friends. He was walking towards a booth, when he saw two women lying on the dance floor. They had been in a fight. When Mr. Ung went to assist one of them (who, as discussed below, was part of the appellant’s group of friends), someone choked him from behind and another smashed a bottle in his face. As he was being choked, Mr. Ung heard someone ask: “Why are you touching my girl?” Mr. Ung lost consciousness. He was unable to identify his attackers.
[4] Mr. Ung suffered serious injuries, including fractures and permanent facial scarring. He developed an infection that resulted in hospitalization for a month.
[5] A key witness in this case was Aries Socrates Chronopoulos. He was at the nightclub, visiting a woman who worked there. Mr. Chronopoulos saw a scuffle break out on the dance floor. He saw one man “choking out” Mr. Ung. He saw another man punch him, as well as third man, who struck Mr. Ung in the face with a bottle
[6] Mr. Chronopoulos described the person who smashed the bottle as a white male, wearing a white V-neck shirt. He described another man wearing a white shirt. Mr. Chronopoulos identified the appellant as the person who choked the victim. He said the man wore a black tank top that evening, and possibly camouflage pants. He described the person as having a shaved head and a “bulkier” build, being 5’8” to 5’9” and 185 lbs.
[7] In cross-examination, Mr. Chronopoulos identified two photos of a man who wore a black shirt and camouflage pants as being photos of the appellant. He was mistaken. It was common ground that the appellant wore a white t-shirt and blue jeans. While he seemed confused about exactly who did what, Mr. Chronopoulos said that both men wearing white t-shirts were involved in the assault on Mr. Ung.
[8] After Mr. Ung was assaulted, security personnel from the club removed the appellant and some of his friends. Others left on their own steam. The police arrived shortly afterwards. They received a description of one of the assailants as wearing a white shirt and blue jeans, with an olive complexion. The police approached the appellant, who was standing outside of the club. He was asked to open his jacket, which revealed a bloodstained white t-shirt and blue jeans that were wet and had blood on them.
[9] The appellant was arrested and placed in the back of a police car. The defence elicited the following exchange that the officer (P.C. Stewart) had with the Appellant:
Stewart: Do you wish to say anything in answer to the charge?
Kifarkis: I didn't do this, but I can tell you who did.
Stewart: I believe you did it, who are you going to say did it?
Kifarkis: Fuck you then.
It was suggested to P.C. Stewart that the appellant was upset at the time. The officer disagreed, saying “he was fairly calm during the whole time.”
[10] The case against the appellant seemed quite precarious until he took the witness stand. He described the evening in some detail and how he arrived at the nightclub with about 11 people. He only knew about four of them, including two (second) cousins. According to the appellant, one of his cousins choked Mr. Ung.
[11] The appellant heard two girls screaming on the dance floor. One of the girls was with the appellant’s group of friends. When the appellant looked over, he saw his cousin on the ground, choking Mr. Ung. The appellant testified that he ran to the dance floor to stop the fight because Mr. Ung was not fighting back. The appellant said that he did not want his cousin to get into trouble. The appellant said he was on his knees, facing the two men and he was telling them to stop. He then remembered that a person behind him bent over and hit Mr. Ung in the face with a bottle. It was one of his cousin’s friends.
[12] The appellant explained that he got blood on his white shirt when he was down on the ground, attempting to separate his cousin and Mr. Ung. He testified that, when Mr. Ung was hit in the face, everything splashed on him.
[13] In cross-examination, the appellant confirmed and, to an extent, clarified much of what Mr. Chronopoulos said in his testimony – namely, that Mr. Ung was being choked by a man with a black tank top and camouflage pants (the appellant’s cousin) and that there were two others involved who were wearing white shirts. He agreed that he was one of those men, and the other was the man who hit the victim with a bottle. The only real point of disagreement between the appellant and Mr. Chronopoulos was whether he helped or punched Mr. Ung during the scuffle.
[14] In cross-examination, the Crown suggested that the appellant joined the scuffle because he and the other assailants believed that Mr. Ung had assaulted one of the women from his group. The appellant denied this suggestion. He contended that he intervened in a fight (of which he knew nothing about) to assist a man (who he had never met), who was being attacked by his cousin.
[15] The trial judge rejected this version of events. In evaluating the trial judge’s reasons, it must be remembered that the point of contention between the version of Mr. Chronopoulos and the account of the appellant was quite narrow. As the trial judge said:
The Defendant’s testimony is essentially that he was acting as a Good Samaritan being involved in the breaking up of a fight and coming to the aid of the defenceless victim. I neither accept the testimony of Mr. Kifarkis, or find that it gives rise to a reasonable doubt for the following reasons.
I place great reliance on the testimony of the independent witness…who was not affiliated with any group. I note in particular that according to this independent witness he saw no such thing as a member of any group rushing to aid anyone. Quite to the contrary, the evidence that I have heard persuades me that the Defendant was a part of a group who reacted to seeing Mr. Ung on the floor of the nightclub, along with this other woman.
The testimony of the Defendant, that he came to the scene merely to render assistance to this man, who it appeared thought that that he was helping one of the women on the floor, is completely contrary to what I find in fact occurred.
The events that involved the assault to Mr. Ung occurred in rapid order. It is clear to me that the Defendant’s role is that of an individual who was wearing a white shirt. The fact that he may have participated after the altercation in attempting to remove the other man in a white shirt, who struck the victim with the bottle, is not inconsistent with the Defendant’s participation earlier in the assault.
[16] Marlene Kafouf, the appellant’s ex-fiance, testified for the defence. She did not see the altercation, but she left the nightclub at the same time as the appellant. Ms. Kafouf testified that she had never known the appellant to be violent. Ms. Kafouf described him as a peacemaker, and someone who “always stays calm in every bad situation.”
ANALYSIS
[17] The appellant argues that the learned trial judge erred in three ways by:
(1) the manner in which he treated Mr. Kifarkis’ utterances to the police;
(2) applying uneven standards to the Crown and defence witnesses; and
(3) misapprehending certain aspects of the evidence.
Despite the able submissions of Ms. McCabe-Lokos, I am not persuaded that the trial judge committed any of these errors.
(a) Mr. Kifarkis’ Utterances
[18] As noted in the passage quoted above, the trial judge rejected the appellant’s assertion that he was the Good Samaritan. In reaching this conclusion, the trial judge relied on the blood on the appellant’s clothing, his explanation for how it got there (which the trial judge rejected) and his subsequent interaction with the P.C. Stewart.
[19] The trial judge did not use the appellant’s hostile words towards the police as post-offence conduct. Instead, he used the evidence to evaluate the appellant’s claim that he was being acting as a peacemaker. As the trial judge said in his Reasons for Judgment:
Moreover, his demeanor as described outside by the police who investigated him, is also inconsistent it seems to me, with the testimony that I have heard. Not only did the Defendant appear to speak to the authorities in an upset manner when blamed for what occurred, he was in a calm tone and part of the group who clearly had taken exception to the events that led to their removal.
Although this passage is not completely free from ambiguity, it does not lead me to conclude that the trial judge used the appellant’s interaction with the police improperly. Nor was it used in a way that violated the appellant’s right to silence.
(b) Uneven Scrutiny
[20] The appellant contends that the learned trial judge did not hold the evidence of Mr. Chronopoulos to the same standard as the appellant’s. The trial judge was impressed with the evidence of Mr. Chronopoulos, especially his willingness to acknowledge that his mistakes after being confronted with the fact that the appellant was dressed differently that night. Moreover, a good deal of Mr. Chronopoulos’ confusion was neutralized by the appellant’s testimony that he was one of the three people (other than the victim) involved in the altercation. In the end, the only live issue was whether the appellant punched Mr. Ung. On the entirety of the record in this case, the trial judge’s rejection of the appellant’s evidence does not reflect the application of differing levels of scrutiny: see R. v. Cloutier (2011), 2011 ONCA 484, 272 C.C.C. (3d) 291 (Ont. C.A.), at p. 312 and R. v. Francois, 2014 ONCA 234, at para. 11.
(c) Misapprehension of Evidence
[21] The appellant argues that the trial judge misapprehended certain pieces of evidence. For instance, he submits that the trial judge erred when he said that Ms. Kafouf testified that the group was upset about being asked to leave. As reproduced in paragraph 19 above, the trial judge also said that the appellant was part of a group that “clearly had taken exception to the events that led to their removal.”
[22] To succeed on this basis, an appellant must demonstrate that any misapprehension is significant. In R. v. Loher (2005), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.), Binnie J., at p. 25 said that this is meant to be a "stringent standard" and that the misapprehension must be "material rather than peripheral to the reasoning of the trial judge."
[23] In this case, none of the alleged instances of misapprehension, including the one set out above, were critical to the trial judge’s reasoning process. After the appellant testified, the only real issue that the trial judge had to resolve was whether the appellant was the assailant that threw the punch. Nothing in the trial judge’ ruling undermines the integrity of that key finding.
CONCLUSION
[24] The appeal is dismissed.
Trotter J.
Released: February 3, 2015
COURT FILE NO.: SCA-14-32-1
DATE: 20150203
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
STIWART KIFARKIS
Appellant
REASONS FOR JUDGMENT
Trotter J.
Released: February 3, 2015