R. v. Shahcheraghi and Tsenebis, 2016 ONSC 6988

COURT FILE NO.: CR-15-10000291

DATE: 20161110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Amir Shahcheraghi

Defendant

– and –

James Terry Tsenebis

Defendant

Rebecca Edward, for the Crown

Reginald McLean, for Amir Shahcheraghi

Richard Stern, for James Terry Tsenebis

HEARD: Sept. 26-30, Oct. 5-7, 11-13, 2016

E.M. Morgan, J.

I. The charge

[1] The Defendants are charged with aggravated assault for an incident that took place outside the front door of the Gravity Sound Bar on Richmond Street in downtown Toronto in the early morning of May 30, 2014.

[2] Mr. Shahcheraghi was employed by an independent security company under contract with the bar, and was in charge of security. Mr. Tsenebis was employed by the bar and was assisting in organizing matters at the establishment that night and morning. During the incident in question, the two of them were functioning as front door security – what the patrons of the bar colloquially call “bouncers”.

[3] The two Defendants were involved in an altercation with a drunk patron, 22-year old college football player David Flewelling. The Crown alleges that although Mr. Flewelling’s intoxication may have been a personal foul for which he could be ejected from the bar, Mr. Shahcheraghi and Mr. Tsenebis went too far by beating him and smashing his head against a wall. Mr. Flewelling suffered serious injuries to his face and head.

[4] The incident took place at around 1:30 a.m., at a time when a number of patrons of the bar were standing outside the front door smoking or milling about for some fresh air. Accordingly, it was witnessed by several bystanders, none of whom knew Mr. Flewelling or the Defendants personally, although one of the witnesses was familiar with Mr. Shahcheraghi from previous visits to the Gravity Sound Bar. Three of the bystanders gave statements to the police in the immediate aftermath of the incident and attended at trial to testify.

[5] This is one of those cases where several independent, apparently objective witnesses see and relate the same event, but their perceptions differ at the level of detail. The hour was late and the street only partly lit, which might account for some of the discrepancies, and at least two of the three witnesses had been drinking themselves that night, although not to excess. All three of the eye witnesses saw a physical confrontation and skirmish of some kind between the two Defendants and Mr. Flewelling. But they saw it from slightly different angles and in slightly different ways.

[6] The challenge for a court faced with this kind of evidence is to find the common denominator among the witness’ accounts. While the testimony may differ in detail, there are some overarching facts to which all of the independent witnesses testify.

[7] The onus, of course, is on the Crown to prove beyond a reasonable doubt that Messrs. Shahcheraghi and Tsenebis perpetrated the elements of the assault with which they are charged. Where the three independent witnesses all agree on crucial facts, the Crown has obviously come closer to establishing proof of those facts; where the three independent witnesses differ on their account of crucial facts, it is difficult to conclude that the Crown has proven those facts beyond a reasonable doubt unless one or more of the otherwise objective accounts can for some reason be rejected.

II. The victim

[8] One thing on which the Crown and defense agree is that Mr. Flewelling’s injuries, while not catastrophic, were quite severe. Mr. Flewelling is a strong, athletic young man who is roughly 6’2” and weighs over 220 lbs. He plays defensive line on the University of Windsor football team. Unfortunately, that night at the Gravity Sound Bar he was not exactly in top condition – the lab report showed that his blood-alcohol ratio was still roughly 3 times the legal limit several hours after the encounter at the bar. Needless to say, he was not wearing shoulder pads or a helmet that night, and his head hit more than the opposing team’s offensive line; it hit a wall, allegedly several times.

[9] The photographs of Mr. Flewelling at the hospital in the early morning of May 30, 2014 show his face to be a bloody mess. He had deep gashes on his left cheek and above his left eye and some other scrapes and marks around his face and head. The most serious injury was to the side of his left eye, where a cut on his face had severed a tear duct causing his eye to weep uncontrollably and impairing his vision.

[10] Fortunately for Mr. Flewelling, in the immediate aftermath of the incident he was taken by ambulance to St. Michael’s Hospital where he received good medical care. The treating physician, Dr. Navdeep Nijhawan, testified at trial and provided a medical assessment of Mr. Flewelling’s condition. Dr. Nijhawan’s report provides, in part: “Left lower lid and left upper brow laceration. Additionally, because of the location of the left lower lid laceration, there was damage to the tear duct.” The doctor testified that surgery to repair the tear duct was required, without which Mr. Flewelling would have been left with impaired functioning in his left eye. Mr. Flewelling himself testified that he was having difficulties with his vision after he woke up in the hospital, and was certain that he would have been unable to continue in sports and other activities had he not had surgery.

[11] Dr. Nijhawan performed the surgery the next day. It was successful. Although the extended recovery time in which he had to stay horizontal and keep ice on his left eye was described by Mr. Flewelling as “a pretty shitty couple of weeks,” there appears to be no lasting impairment to his vision. The repaired tear duct is functioning properly. Other than some scarring near his left eyebrow, he has no lingering injury.

[12] Counsel for both Defendants concede that the nature and extent of Mr. Flewelling’s injuries are severe enough to amount to “wounding” as defined in s. 268(3) of the Criminal Code. There is therefore no medical issue with respect to whether the charge of aggravated assault is justified. The defense does, of course, contest the factual basis of the charge – that is, they contend that the Crown has not proved that Mr. Shahcheraghi and Mr. Tsenebis were the actual cause of Mr. Flewelling’s injuries. However, they do not contest that a laceration of the cheek that severs a tear duct and that requires surgical intervention suffices to meet the Code’s definition of the type of injury that would constitute aggravated assault.

[13] The other fact that is not contentious with respect to Mr. Flewelling is that he was very drunk on the night in question. As indicated, his blood alcohol level was extremely high, and he was described by witnesses inside the bar prior to the altercation as dancing in a “silly” way and confronting at least one person over nothing. Mr. Flewelling himself testified that he is not much of a dancer and suggested that he would have had to be quite intoxicated to have made a spectacle of himself on the dance floor. He stated that he has never been an aggressive person and has no history of physical altercations, including when under the influence of alcohol. He did concede, however, that he has rarely, if ever, been as drunk as he was at the Gravity Sound Bar in the early morning of May 30, 2014.

[14] Mr. Flewelling also testified that he has no memory whatsoever of the encounter with the Defendants. He does not recall how he left the bar or arrived at the hospital. As indicated, he acknowledges that he was drunk and takes no issue with the fact that he was asked to leave the bar. Needless to say, he does object to having been ejected in a way that caused him serious physical injury.

III. The bystanders

[15] Unfortunately, the security cameras that were installed at the entrance to the bar were not working that night. There is no replay to review.

[16] Three patrons at the bar testified at trial. All three of them happened to be just outside the front door when the altercation took place. Although they did know each other, none of them knew Mr. Flewelling.

[17] The most important witness for the Crown was Samantha Burns. Ms. Burns was at the bar for the second night in a row, celebrating a friend’s birthday. The previous night she had been there celebrating the birthday of her cousin, Tatyana Italiano.

[18] Ms. Burns was at one time a ‘regular’ at the bar, but before the week in question had not been there for a number of years. She testified that she used to date a man who worked there. In fact, she was once herself ejected from the bar, and described one of the security guards lifting her up by the back of the neck and physically throwing her out of the establishment in a very rough way. She specifically recalled having complained about the rough treatment she received to the head of security at the time, Mr. Shahcheraghie, and having been frustrated that her complaint did not result in any disciplinary action against the person that allegedly mistreated her.

[19] Both defense counsel submit that this previous experience somehow clouded Ms. Burns’ objectivity in testifying about the events of the early morning of May 30, 2014. They point to the fact that in the 911 call she made just after seeing Mr. Flewelling injured, she told the operator that she had seen incidents like this in the past at the Gravity Sound Bar. They contend that this reveals an animus that colours her evidence.

[20] I do not see it that way. Ms. Burns struck me as an honest, if somewhat compulsive observer of her own surroundings. She has a degree in education psychology and apparently likes to use it by intervening in other people’s difficulties. She testified that at one point earlier in the evening on May 30, 2014, she noticed one of her male friends staring at Mr. Flewelling on the dance floor. The drunken Mr. Flewelling approached the group, and Ms. Burns, apparently sensing tension although she said there was no indication that anything threatening was going on, took it on herself to pre-emptively intervene. She said that she looked directly at Mr. Flewelling and put her hand up and raised her index finger at him, silently turning him back around with a disapproving glance in the style of a middle school principle.

[21] This episode is emblematic of the way that Ms. Burns seems to approach matters. She could be described charitably, as she was by her cousin Ms. Italiano, as a constant good Samaritan, or she could be described as defense counsel suggested as a sort of officious intermeddler with a bone to pick with the bar’s security. In my view, both of these views are caricatures; she is neither a saintly Mother Theresa nor a nosy Mrs. Kravitz.

[22] She is the person who called 911 after the altercation and issued instructions to those around her to attend to the injured Mr. Flewelling. Her message to the 911 operator that she has seen problems with security personnel at this bar before and does not want the security at the bar to mishandle people again gives the impression of a somewhat judgmental, but well-meaning person. She certainly was truthful in advising the emergency services that an ambulance and police were needed at the scene of the altercation on Richmond Street.

[23] On the night of May 29-30, 2014, Ms. Burns apparently had intestinal troubles and was not feeling well. She testified that she felt committed to accompanying her friends to the bar for the birthday celebration, and portrayed herself as going to the bar with her group of acquaintances more as a chaperone than as a participant in the festivities. Accordingly, she did not drink any alcohol that night.

[24] Ms. Burns indicated that she came out of the bar together with Ms. Italiano at about 1:30 a.m. Ms. Italiano testified that she was wearing stiletto heels and needed to take off her shoes and sit at the curb to rest her feet. Ms. Burns also stepped outside for a break, and their mutual friend, Patrick Diamond, accompanied the two of them out the front door.

[25] As Ms. Burns described the scene outside the bar, Ms. Italiano was seated on the curb slightly to the left of the front door (if looking at the door), while Ms. Burns herself stood nearby facing Ms. Italiano and the bar entrance. As she was standing there she saw her other friend – the one who had the brief stare-down with Mr. Flewelling inside the bar earlier that night – near the entrance. Thinking that he had already left the bar some time before, she asked her friend, “Why are you still here?” He replied, “I want to watch this guy get his ass kicked”, and pointed in the direction of Mr. Flewelling. The security personnel at the front entrance had just approached Mr. Flewelling, and apparently were asking him to leave in a rather stern manner.

[26] The first security person, who Ms. Burns identified as Mr. Tsenebis, approached Mr. Flewelling and was talking to him. She described Mr. Tsenebis as speaking progressively more loudly as he approached Mr. Flewelling, and eventually coming right up to Mr. Flewelling’s face. She said that Mr. Tsenebis was visually angry, although he did not strike Mr. Flewelling. Instead, she saw Mr. Flewelling attempt to push Mr. Tsenebis away.

[27] According to Ms. Burns, Mr. Tsenebis, who is a rather large man, was not moved by the strength of Mr. Flewelling’s drunken push. But at that moment Mr. Tsenebis appeared to lose his balance, grab Mr. Flewelling, and fall over backwards with Mr. Flewelling falling on top of him. The two of them were just to the right of the bar entrance, and fell against a wall that was between the bar’s front door and the front door of the next building. Mr. Tsenebis fell with his back to the wall, while Mr. Flewelling fell face forward.

[28] Ms. Italiano also witnessed the altercation, although she did not see the initial contact between Mr. Tsenebis and Mr. Flewelling as she was sitting on the curb facing away from the door. Ms. Italiano had just turned 19 that week, and the previous night was her first time as a legal drinker in a Toronto bar. She testified that at a “pre-party” that evening she had been drinking a brand of wine called “Girls Night Out”, and then went on a mid-week night out to the bar with Ms. Burns and continued drinking an alcoholic cooler.

[29] Ms. Italiano is 5’2” and of slender build. Although she denied she was feeling any effects of drinking that night, she gives the impression that it would not take much alcohol to make an impact on her. She also gives the impression of a young women who very much admires her cousin, Ms. Burns; indeed, she readily says so. Defense counsel suggest that Ms. Italiano so looks up to her older cousin that, either consciously or subconsciously, she has adopted some of Ms. Burns’ narrative as her own.

[30] It is, of course, hard to discern whether that is the case. Ms. Italiano and Ms. Burns certainly agree that Mr. Flewelling, while visibly intoxicated, was not acting as an aggressor (except for what Ms. Burns described as his ineffective push of Mr. Tsenebis). Ms Burns described Mr. Flewelling as acting “silly”, while Ms. Italiano said that he was, for the most part, “just a drunk guy being idiotic making facial expressions and couldn’t stand properly.”

[31] Ms. Burns testified that she saw Mr. Shahcheraghie approach Mr. Flewelling after he fell onto Mr. Tsenebis. She said that Mr. Shahcheraghie picked up Mr. Flewelling with one hand by the back of the neck, and removed him from Mr. Tsenebis. According to Ms. Burns, Mr. Shahcheraghie then pivoted and threw Mr. Flewelling for a lateral pass into the glass door next to the bar’s entrance. Both Ms. Burns and Ms. Italiano saw Mr. Flewelling hit the glass door with the left side of his face.

[32] Defense counsel make much of the fact that Ms. Italiano seemed slightly confused about what she saw. In her initial police report on the day of the altercation she indicated that, “There was so much blood on the door”, while at the preliminary inquiry she testified that, “there wasn’t a lot of blood”, and at trial she revised her observation again and said that she saw “lots of blood on the door”. That said, Ms. Italiano was forthright in conceding to the police in her initial statement and at trial that Ms. Burns “saw way more than I did.” After all, Ms. Burns was standing facing the doorway, while Ms. Italiano was sitting on the curb facing the other way and had only an obscured view when she turned her head.

[33] As indicated one thing that is not in doubt is that Mr. Flewelling was injured. The left side of Mr. Flewelling’s face was a bloody mess, as witnessed by the photographs of him in the hospital shortly afterward.

[34] Ms. Burns continued her narrative by describing how, after smashing his head into the glass door, Mr. Shahcheraghi started punching Mr. Flewelling in the face with a closed fist. She said that he did this a couple of times, and then Mr Flewelling’s body went limp. Mr. Shahcheraghi then let go of Mr. Flewelling. Ms. Burns said that it looked like Mr. Shahcheragi’s grip had gotten tighter on Mr. Flewelling while he hit him, and she was not sure whether Mr. Flewelling went limp from being hit or from a lack of oxygen due to Mr. Shahcheraghie’s grip around his neck. When Mr. Shahcheragi let go of Mr. Flewelling, he dropped him on a metal barrier that had been set up for patrons to line up outside the door of the bar.

[35] Ms. Burns and Ms. Italiano both testified that at that point two men came over to help Mr. Flewelling stand up and walk across the street. Ms. Burns indicated that the two men spoke French, and were at a loss as to what to do with an injured person. Ms. Burns took control from that point, and tended to Mr. Flewelling and called for an ambulance. She also got some identification from Mr. Flewelling, and called his mother to tell her what had happened. Ms. Burns said that Mr. Flewelling had blood pouring down his face and was trying to scratch his eye. She testified that she had to hold his hand in order to keep him from scratching his injured eye.

[36] A number of police officers attended at the scene, two of whom went to the hospital in the ambulance with Mr. Flewelling and took photos of his injuries and of the bar entrance where the altercation occured. They also asked for statements from witnesses, including Ms. Burns and Ms. Italiano.

[37] Although she had never met Mr. Flewelling before, Ms. Burns also went to the hospital to make sure that he was alright. She then returned to the hotel room that she had rented and where her friends had had their pre-party the previous evening. At the hotel, she wrote out a statement for the police so that they would have her fresh recollection about what transpired. Ms. Burns’ handwritten statement from the morning of May 30th is neatly written on three pages. The statement impresses as one that was drafted deliberately and reflectively several hours after the event.

[38] The most important thing about Ms. Burns’ handwritten statement is that she specifically indicated that she was unsure whether Mr. Tsenebis ever participated with Mr. Shahcheraghi in hitting Mr. Flewelling. Her note says that, “Amir [Mr. Shahcheraghie] smashed his face against the wall, was yelling…and began punching David [Mr. Flewelling] in the face. I am unsure, but vaguely recall, the other bouncer hitting him as well.”

[39] This recollection coincides with the evidence of Ms. Italiano. She recalled Mr. Shahcheraghie punching Mr. Flewelling a number of times – the specific number of punches has changed each time she has given a statement or testified – but she could not recall whether Mr. Tsenebis did any of the punching. Ms. Italiano thought that both Defendants were working together to press Mr. Flewelling up against the glass door before the punching began, but was non-committal as to whether Mr. Tsenbis actually hit Mr. Flewelling the way that Mr. Shahcheraghie did.

[40] As already indicated, Ms. Burns was certain that it was Mr. Shahcheraghie alone that had picked Mr. Flewelling up by the neck and slammed him into the glass door. As she described it, Mr. Tsenebis could not have picked up Mr. Flewelling, as he was lying underneath him after the two of them fell over.

[41] Ms. Italiano’s evidence at trial was that Mr. Shahcheraghie slammed Mr. Flewelling’s head into the glass door some 10 to 20 times – slightly more than the 10 to 15 times she had described at the preliminary inquiry. For her part, Ms. Burns recalled that Mr. Shahcheraghie smashed Mr. Flewelling’s head into the glass “more than 10 times”, and that Mr. Flewelling was bleeding profusely. In fact, in answer to Mr. Shahcheraghie’s counsel in cross-examination, Ms. Burns clarified that she saw Mr. Shahcheraghi smash Mr. Flewelling’s face into the wall so many times that she could not keep track of the number.

[42] At trial, Ms. Burns testified that after Mr. Shahcheraghi finished smashing Mr. Flewelling’s head on the glass door, Mr. Tsenebis punched Mr. Flewelling 5 or 6 times. As indicated above, this was directly contrary to the very careful statement she had given the police only hours after the incident.

[43] In a videotaped statement that Ms. Burns gave to the police on June 2, 2014 – i.e. the week following the incident – she stated that in the aftermath of the scuffle she saw both Mr. Shahcheraghi and Mr. Tsenbis walking away from Mr. Flewelling and rubbing their knuckles. She testified that, “That’s when I put the picture together.”

[44] Counsel for Mr. Tsenebis suggests that “putting the picture together” means that she drew an inference or, more accurately, came to a supposition about what had happened. He submits, accurately, that it is apparent from her turn of phrase that she formulated a conclusion in her mind about what happened without actually having seen what she described. Her police report was clear that her observations of Mr. Tsenebis were limited and that she could not say whether Mr. Tsenebis had punched Mr. Flewelling; what she saw was only that Mr. Tsenebis was rubbing his knuckles as if he had punched someone. Unlike with Mr. Shahcheraghi, she did not actually see him do any punching.

[45] Patrick Diamond also testified with respect to the same events, although his testimony was considerably less reliable than either Ms. Burns or Ms. Italiano. In the first place, although Mr. Diamond exited the bar with Ms. Burns to get some air, he ended up standing farther away from the entrance than she did. He was to the far left of the bar’s doorway, and could only see the interaction between the Defendants and Mr. Flewelling on an angle rather than centred in front of him. Furthermore, Mr. Diamond was drinking more than his two friends. He had a beer at the pre-party in the hotel and at least “two or three” gin and tonics while at the bar. Although he did not want to say that he was drunk, he conceded that he was definitely “buzzed”.

[46] Like Ms. Italiano, Mr. Diamond did not notice Mr. Flewelling until the noise of the scuffle attracted his attention and he turned around to see what was going on. Accordingly, he does not know who started the incident, although he said that once he turned around he watched the entire encounter unfold.

[47] As Mr. Diamond related it, first one of the “bouncers” pushed and hit Mr. Flewelling, and then the second one joined the fray and began smashing Mr. Flewelling’s head against the glass door next to the bar’s entrance. Mr. Diamond recognized Mr. Shahcheraghie from when he and his friends had first come to the bar that evening, as it was Mr. Shahcheraghie who checked i.d.’s at the entrance. Ms. Burns and Ms. Italiano both recognized Mr. Shahcheraghie for the same reason; by contrast, none of the witnesses recognized Mr. Tsenebis until the incident ensued.

[48] Also like his two friends, Mr. Diamond testified that Mr. Shahcheraghie smashed Mr. Flewelling’s head against the glass door multiple times. Indeed, Mr. Diamond put the figure even higher than Ms. Burns had done at trial, stating that he thought Mr. Shahcheraghie had hit Mr. Flewelling’s head against the door about 20 to 30 times. He said that Mr. Shahchereaghie then stopped smashing Mr. Flewelling’s head, turned him around, and the second bouncer punched Mr. Flewelling once or twice. According to Mr. Diamond, Mr. Shahcheraghie then continued to smash Mr. Flewelling against the glass door, with the left side of his face making contact with the glass, about 5 to 10 more times.

[49] There are a number of odd things about this portion of Mr. Diamond’s testimony. Although he was certain that Mr. Shahcheraghie was the one who smashed Mr. Flewelling’s head against the glass door, he was unable to properly identify Mr. Tsenebis as the security guard who he saw do the punching. He described the person administering the punches as having medium length black hair. Mr. Tsenebis, however, has no hair at all – he is completely bald and clean shaven. Mr. Shahcheraghie is also bald, but has a full black beard. Accordingly, it is hard to know what Mr. Diamond saw, or thought he saw, in terms of Mr. Flewelling being punched.

[50] In addition, while the other two witnesses saw Mr. Shahcheraghie grab Mr. Flewelling by the back of the neck and lift him up with one hand, Mr. Diamond apparently saw Mr. Shahcheraghie grab Mr. Flewelling with two hands – one on the back of the neck and the other in front on his throat. This may be explained by Mr. Diamond’s somewhat obscured perspective from where he stood, although he seemed rather confident in his memory of this detail.

[51] The rest of Mr. Diamond’s testimony roughly corresponds to that of Ms. Burns and Ms. Italiano. He said that when Mr. Shahcheraghie finally let Mr. Flewelling go he went limp, and had to be helped across the street. Two men came forward to help him, and when Mr. Diamond himself crossed the street to see what was going on he heard that the two men were speaking French. Since Mr. Diamond speaks French, he chatted with them for a few minutes and determined that they were visitors who did not previously know Mr. Flewelling.

[52] Mr. Diamond did not go to the hospital with Mr. Flewelling and Ms. Burns. Instead, he gave a statement to one of the police officers that arrived on the scene, and then took a taxi back to his home in Markham.

IV. The Defendants

[53] Mr. Shahcheraghie testified at trial and recounted the play-by-play of the night’s events from his point of view.

[54] Although he denied punching Mr. Flewelling in the face or smashing his head multiple times against the glass door, much of what he said on the witness stand corresponded to what Ms. Burns and the others had related. He was in charge of security at the Gravity Sound Bar on the night/early morning of May 29-30, 2014, and had been on duty at the front door most of that time. He checked i.d.’s as patrons entered the bar, and stood watch at the front door in order to prevent any trouble and ensure that the crowd at the bar was orderly.

[55] Mr. Shahcheraghie described Mr. Flewelling exiting the bar sometime around 1:30 a.m. in an extremely intoxicated state. He was approached by Mr. Tsenebis, who told Mr. Flewelling to leave the premises. According to Mr. Shahcheraghie, the two men were standing close to each other speaking in audible but not raised voices, when Mr. Flewelling pushed Mr. Tsenebis with both hands on his chest. Although it did not appear to be a hard push, Mr. Tsenebis lost his footing and fell backward.

[56] The two men were standing in front of the bar, near a metal barrier that had been placed there so that patrons could line up to get in at the front entrance. When Mr. Tsenebis fell backward, he reached for Mr. Flewelling and grabbed his clothing in the front. Mr. Flewelling then fell forward on top of Mr. Tsenebis, and the metal barrier fell and crashed into the cement wall next to the bar’s door.

[57] Mr. Tsenebis thereby landed underneath Mr. Flewelling. Mr. Flewelling’s head and face fell either on to or next to the cement wall. Mr. Shahcheraghie described a metallic box mounted on the wall that contained an intercom system for the next-door building. The box was about at head height, but Mr. Shahcheraghie was unsure whether or not Mr. Flewelling had in fact hit his head on the box. Mr. Shahcheraghie also indicated that there were a number of other sharp edges in the vicinity, including the edge of the door frame and various ridges in the cement wall, but he did not know whether Mr. Flewelling had struck any of them when he fell.

[58] Upon seeing Mr. Flewelling fall onto Mr. Tsenebis, Mr. Shahcheraghie came over to move Mr. Flewelling. He testified that he was concerned that Mr. Tsenebis might have been injured by the weight of Mr. Flewelling falling on him or by the metal barrier crashing down on him. Mr. Shahcheraghie acknowledged that he approached Mr. Flewelling from the rear as he was lying face down on top of Mr. Tsenebis, and picked him up. However, he denied picking him up with one hand by the back of the neck, and expressed some doubt as to whether that was even possible with a man of Mr. Flewelling’s height and weight.

[59] Mr. Shahcheraghie said that he picked up Mr. Flewelling with two hands and forcibly pressed him against the glass door next to the bar’s entrance. He said that he did this not to harm Mr. Flewelling, but to render him stable and immobile while Mr. Tsenebis recovered himself and got up from under the ground. He said he wanted to keep Mr. Flewelling out of commission long enough to ensure that Mr. Tsenebis was not injured by his fall. He then let Mr. Flewelling go. According to Mr. Shahcheraghie, no one hit Mr. Flewelling and no one smashed his face against the glass door.

[60] Mr. Shahcheraghie had no explanation for how Mr. Flewelling obtained the injuries to his face and eye. He speculated that he might have hit something like the metal intercom box or some other sharp edged object when he fell onto Mr. Tsenebis, but he conceded that he did not see that occur.

[61] As Mr. Shahcheraghie related it, after Mr. Tsenebis got up Mr. Shahcheraghie let go of Mr. Flewelling who then walked across the street without any help from anyone. In fact, Mr. Shahcheraghie stated that Mr. Flewelling looked to be fine.

[62] It never occurred to Mr. Shahcheraghie that he should call an ambulance, since the only thing that seemed wrong with Mr. Flewelling was that he had drunk too much. He described the encounter with Mr. Flewelling as essentially no different than on any given night at a bar when the security have to eject an intoxicated customer.

[63] Following the incident, Mr. Shahcheraghie was interviewed by the police and was asked to provide a written statement. Mr. Shahcheraghie explained that in any event he had to file an incident report with his employer, and he gave a copy of that report to the police as his way of recounting the episode.

[64] Counsel for the Crown obtained a copy of Mr. Shahcheraghie’s incident report and has pointed out that Mr. Shahcheraghie failed to provide the police with Mr. Tsenebis’ full name. The Crown makes much of this omission, contending that Mr. Shahcheraghie was attempting to obscure Mr. Tsenebis’ involvement in the incident in order to exonerate him from the violence that he perpetrated.

[65] Mr. Shahcheraghie denies having any such motivation in mind when he wrote the incident report. In fact, he points out that several days later he met with the police and gave them a full statement, at which time he did not hesitate to provide them with Mr. Tsenebis’ name.

[66] He said that the incident report was written quickly and in a shorthand style, and for that reason full names were not used but would be provided whenever necessary. Mr. Shahcheraghie reiterated that anyway there was no reason to hide Mr. Tsenebis’ involvement in the incident, since Mr. Tsenebis had done nothing wrong and had injured no one. In fact, Mr. Tsenebis had himself been slightly injured when he lost his balance and fell when Mr. Flewelling pushed him.

V. Burden of proof

[67] It is, of course, axiomatic that the Crown must establish proof of guilt beyond a reasonable doubt. Furthermore, in a case like this, where one of the Defendants has testified, I must approach the case in the way that the Supreme Court of Canada instructs in R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. In the first place, this means that I must keep in mind that a criminal trial is not a credibility contest where I simply chose between the Crown’s story and the Defendant’s story. The burden of proof always remains on the Crown.

[68] To put the matter the way that Cory J. put it in R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para 10, as trier of fact I “need not firmly believe or disbelieve any witness or set of witnesses.” Moreover, I must proceed in accordance with the charge that Cory J., at para 11, states that a jury would properly have received:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[69] The evidence must be considered in its totality, such that “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v. L (CO), 2010 ONSC 2755, at para 6. Accordingly, I must acquit the Defendants if I am unable to come to a determination “as to exactly where the truth of the matter lay”, R v Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA), or if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 1979 CanLII 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).

[70] None of the witness, including Mr. Flewelling himself, denies that Mr. Flewelling was very intoxicated or that he deserved to be ejected from the bar. The Crown concedes that its lineman was offside.

[71] Likewise, no one denies that in the result Mr. Flewelling suffered serious physical damage, and that his contusions and gashes constitute “wounding” for the purposes of a charge under s. 268 of the Criminal Code. The defense concedes that, somehow or other, Mr. Flewelling ended up on the injured reserve.

[72] Furthermore, no one denies that Mr. Shahcheraghie and Mr. Tsenebis were working at the Gravity Sound Bar on the night in question. Mr. Shahcheraghie was in charge of security and Mr. Tsenebis was assisting him with security at the time of the encounter with Mr. Flewelling. It would also seem to be common ground that Mr. Flewelling was not especially aggressive on the night in question, although he was certainly drunk and not fully in control of his faculties. When confronted by security at the front door of the bar, Mr. Flewelling did not prove difficult to handle and the two Defendants were able to dispatch him from the premises. The one mishap that occurred to the Defendants was that Mr. Tsenebis fell along with Mr. Flewelling, but that did not appear to flow from any show of strength by Mr. Flewelling. It was more a fumble than a sacking at the line of scrimmage.

[73] The independent witnesses are consistent that Mr. Shahcheraghie went beyond merely subduing Mr. Flewelling and ejecting him from the bar. Three objective bystanders testified that they saw him smash Mr. Flewelling’s head against a glass door and then punch Mr. Flewelling in the face. They differ with each other on the number of times that Mr. Flewelling’s head was smashed and face was punched, but they all say that Mr. Shahcheraghie did this multiple times. Although each of them had a different perspective on the events and had consumed different levels of alcohol, their narratives left no doubt that Mr. Shahcheraghie perpetrated a violent assault.

[74] Moreover, Mr. Flewelling’s injuries bear this out. The witnesses saw Mr. Shahcheraghie pounding Mr. Flewelling’s head and in particular the left side of his face, and they witnessed blood gushing from his injuries (although, again, they were not uniform in describing the quantity of blood). The hospital records demonstrate conclusively that indeed Mr. Flewelling was injured on his head and left side of his face, and the photographs of him lying in his hospital bed after the incident show a bloodstained face and head and a bloodied bandage over his left cheek and eye.

[75] Mr. Shahcheraghie’s statement that Mr. Flewelling was just fine in the aftermath of the incident makes no sense given the nature and extent of his injuries. Indeed, given what Mr. Shahchereaghie himself concedes was Mr. Flewelling’s severe state of drunkenness, it is doubtful that he could have walked across the street under his own power, let alone do so following blows to the head severe enough to cut deep gashes above his eye and across his cheek and to sever a tear duct.

[76] The police officer who attended at the scene, PC Sergey Mnushkin, testified that Mr. Flewelling was “incoherent, pretty intoxicated, and unable to answer basic questions” when he was put into the ambulance. It apparently took Mr. Flewelling a number of hours at the hospital before he woke up, and he testified that when he did wake up he was disoriented. He had surgery the very next day. I have no hesitation at all in finding that Mr. Flewelling was anything but fine when Mr. Shahcheraghie finished with him.

[77] The defense has raised the possibility that Mr. Flewelling cut his face on the metal intercom box or some other sharp object when he lost his balance and fell on Mr. Tsenebis. In my view this is no more than speculation. Of course it is conceivable that this occurred, just as it is conceivable that Mr. Flewelling was injured by a car while crossing the street after the incident, or that he was injured by the ambulance driver when putting him onto a stretcher, or that some hospital equipment or a light fixture fell and injured him while he waited for treatment in the emergency ward. There is, however, no actual evidence that any of those things occurred, any more than there is actual evidence that Mr. Flewelling hit his head on the intercom box or a sharp corner of the concrete wall next to the bar’s front door.

[78] The evidence in the record is that Mr. Shahcheraghie smashed Mr. Flewelling’s head into a glass door and punched him in the face multiple times. The witnesses may differ as to precisely how many times Mr. Flewelling’s head made contact with the wall or with Mr. Shahcheraghie’s fist, but I have heard nothing that leads me to have any doubt about the cogency of the evidence that Mr. Shahcheraghie administered a beating.

[79] At the same time, I am compelled to say that there is little evidence that Mr. Tsenebis participated in the violent part of the encounter with Mr. Flewelling. Two of the independent witnesses are unsure whether they saw him hit Mr. Flewelling at all, and the third thinks that he saw Mr. Tsenebis punch Mr. Flewelling but described someone that does not meet Mr. Tsenebis’ description and is equally likely to have been Mr. Shahcheraghie.

[80] The most that can be said with any certainty about Mr. Tsenebis’ participation in the incident is that he encountered Mr. Flewelling when he came out of the bar, and that the two of them had a verbal exchange and then fell by accident with Mr. Flewelling landing on top of Mr. Tsenebis. The evidentiary record suggests that Mr. Tsenebis may have had his participation cut short by having fallen right at the outset of the encounter with Mr. Flewelling. It is, of course, also possible that Mr. Tsenebis picked himself up after falling and participated with Mr. Shahcheraghie in giving Mr. Flewelling a beating. That is how Ms. Burns described it at trial, although it is not how she described it in her statement to the police on the day of the incident itself.

[81] Putting all of the evidence together in respect of Mr. Tsenebis, the record is far from conclusive. It leaves me with a reasonable doubt.

VI. Disposition

[82] I find Mr. Shahcheraghie guilty of aggravated assault on Mr. Flewelling.

[83] I find Mr. Tsenebis not guilty.

Morgan, J.

Released: November 10, 2016

CITATION: R. v. Shahcheraghi and Tsenebis, 2016 ONSC 6988

COURT FILE NO.: CR-15-10000291

DATE: 20161110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Amir Shahcheraghi

Defendant

– and –

James Terry Tsenebis

Defendant

REASONS FOR JUDGMENT

E.M. Morgan, J.

Released: November 10, 2016