Court File and Parties

CITATION: R. v. Aziz, Fredericks, Naipaul, 2017 ONSC 1670

COURT FILE NO.: CR-15-30000650-0000

DATE: 2017-03-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZAKIR AZIZ, HARRY FREDERICKS and JAIANAND NAIPAUL

Accused

COUNSEL:

Joshua Levy, for the Crown

Robert Warren for, Zakir Aziz

John Collins for, Harry Fredericks

Mitchell Worsoff for, Jaianand Naipaul

HEARD: January 23, 25, 26, 30, February 2 & 6, 2017

REASONS FOR JUDGMENT

Garton J.

overview

[1] The three accused, Zakir Aziz, Harry Fredericks, and Jaianand Naipaul, are charged with committing an aggravated assault on the complainant, Vidyam Ramjit (Count 1). They are also charged with assaulting him using weapons, to wit, bottles and glass (Count 2), and possession of those weapons for the purpose of committing the assault (Count 3).

[2] The charges arose from an incident that took place shortly before midnight on Sunday, September 16, 2012, outside the Millennium Restaurant and Bar (the “Millennium”) on Midland Avenue in Scarborough. Mr. Ramjit and his girlfriend, Elvita Pitamber, were at the bar that night, as were the three accused.

[3] Ms. Pitamber knew and got along with all the accused, as well as Anthony Rooplall and Bobby Chung, who were also at the bar that night. Mr. Rooplall and Mr. Chung were originally charged with these offences. However, the charges against Mr. Rooplall were stayed at the request of the Crown after the first trial ended in a mistrial. The charges against Mr. Chung were dismissed.

[4] Mr. Ramjit was new to Ms. Pitamber’s circle of friends, as he had only met her a few months prior to this incident. He moved into Ms. Pitamber’s apartment two days before the assault.

[5] Footage from surveillance cameras inside the Millennium on the evening of September 16 shows the three accused and others socializing and drinking at or around a table near the dance floor. Ms. Pitamber and Mr. Ramjit were, for the most part, together at the bar and were drinking beer. At one point, Mr. Aziz joined them. Although there is no audio on the surveillance recordings, Mr. Aziz’s interactions with Mr. Ramjit and Ms. Pitamber appear to be amiable.

[6] Things began to “go off the rails”, so to speak, when Mr. Aziz started “dirty dancing” with Ms. Pitamber. Mr. Ramjit was upset by the way they were dancing. After watching them for a few minutes, he approached them while holding two beer bottles, proceeded to splash beer on them, walked back to the bar, put down the two bottles, and left the premise. As he was leaving, Mr. Aziz threw a glass at him, but missed. Mr. Naipaul, Mr. Aziz, and Mr. Fredericks, in that order, followed him outside.

[7] The three accused caught up to Mr. Ramjit, who testified that he turned around when he heard people running behind him. When he turned, he saw Mr. Aziz, who was holding a beer bottle in each hand. Mr. Ramjit testified that Mr. Aziz hit him on the top of his head with a bottle or bottles, and that Mr. Naipaul then struck him on the right side of his face with a bottle, causing deep wounds to his cheek and under his eye.

[8] Mr. Ramjit fell to the ground. He testified that he was kicked while on the ground, but could not see who was kicking him as blood was gushing down his face, and he was covering his face and head with his hands.

[9] The DVD surveillance footage shows the three accused following Mr. Ramjit out of the bar. Mr. Aziz was carrying a beer bottle in each hand. Mr. Fredericks was carrying a glass. Mr. Naipaul, who is seen putting down his beer bottle before leaving the bar, had nothing in his hands as he followed Mr. Ramjit outside.

[10] Ms. Pitamber, who exited after the three accused, testified that Mr. Ramjit was already on the ground by the time she got outside. A bunch of people were kicking him, one of whom was Mr. Rooplall. Ms. Pitamber also thought that Mr. Fredericks may have kicked Mr. Ramjit, but she was not sure.

[11] Shortly after Mr. Ramjit was assaulted, the three accused returned to the bar but exited less than a minute later, got into a vehicle driven by Mr. Naipaul’s girlfriend, and left the scene.

[12] Mr. Ramjit was transported to hospital, where his wounds were sutured. En route to the hospital, he told the officer who accompanied him in the ambulance that one of his assailants was “Georgie”, which is Mr. Aziz’s nickname. While at the hospital, he provided a description of his two attackers.

[13] Police Constable Carmen Wong, a Scenes of Crime Officer, arrived on scene at 11:59 p.m. Other uniformed officers and paramedics were already present. Officer Wong photographed the scene, and also seized surveillance DVDs from the bar and a convenience store in the same plaza. Although the bar’s surveillance cameras captured events inside and outside the bar, the assault itself took place just off camera. The convenience store surveillance footage is in black and white and rather blurry. The camera was some distance from the scene of the assault, and its view was partially obstructed by some signage.

[14] Officer Wong attended at the hospital and photographed Mr. Ramjit’s injuries [Exhibits 1 (a) to (d)]. Mr. Ramjit sustained significant scarring to his face as a result of this incident.

[15] The Crown intended to call Mr. Rooplall as a witness at this trial. However, the police have not been able to serve him with a subpoena because they cannot find him. After hearing evidence from the officer in charge, Detective Cecile, I issued a material witness warrant for Mr. Rooplall’s arrest, and adjourned the trial for a few days to allow the police a further opportunity to locate him. Efforts to find Mr. Rooplall have proved fruitless. It is clear from Detective Cecile’s evidence that Mr. Rooplall has gone into hiding in order to avoid being subpoenaed. He is not likely to be found in the near future.

[16] Mr. Rooplall testified in his own defence at the first trial. The Crown’s application to have his testimony admitted as evidence at this trial was allowed, as the requirements pursuant to s. 715 of the Criminal Code have been met.

[17] In his testimony at the first trial, Mr. Rooplall identified Mr. Aziz and Mr. Fredericks as the two men who assaulted Mr. Ramjit. According to Mr. Rooplall, after Mr. Aziz hit Mr. Ramjit on the head with a beer bottle, it was Mr. Fredericks, and not Mr. Naipaul, as attested to by Mr. Ramjit, who hit him in the face with a glass. Mr. Rooplall also testified that no one kicked or assaulted Mr. Ramjit while he was on the ground.

[18] No evidence has been called on behalf of Mr. Aziz or Mr. Fredericks. However, Mr. Naipaul testified and denied assaulting or having any physical contact with Mr. Ramjit. Like Mr. Rooplall, he identified the assailants as Mr. Aziz, whom he alleges hit Mr. Ramjit on top of the head with a beer bottle, and Mr. Fredericks, who he alleges struck Mr. Ramjit in the face with a glass.

[19] Mr. Naipaul denied that he intentionally facilitated the assault. He testified that he briefly confronted Mr. Ramjit outside the bar and asked him what was happening. At that point, Mr. Aziz and Mr. Fredericks suddenly moved in and struck Mr. Ramjit with the bottle and the glass.

[20] On the consent of all counsel, Mr. Naipaul’s lawyer filed a transcript of Police Constable Soffe’s testimony at the first trial. Officer Soffe spoke to Mr. Ramjit in the ambulance en route to the hospital and later at the hospital.

[21] Counsel for Mr. Naipaul also filed a report from Inger Bugyra, a forensic toxicologist from the Centre of Forensic Sciences, regarding Mr. Ramjit’s blood/alcohol concentration. Blood was collected from Mr. Ramjit at the hospital at 12:50 a.m. on September 17, 2012.

[22] The result of an alcohol analysis conducted at the hospital was 47 mmol/L., which is the equivalent of 186 milligrams of alcohol in 100 millilitres (mg/100mL) of blood. For an individual such as Mr. Ramjit, who was 34 years old at the time, about six feet tall, and weighed 190 to 200 pounds, this reading is associated with a beverage equivalent in the system at the time of blood collection of approximately eight to eight-and-a-half standard drinks. The report continues:

It follows, therefore, that the total projected amount of ingested alcohol during the period of this drinking scenario [Mr. Ramjit testified that he began to consume alcohol at 4:00 p.m. on the day of the incident] ranges from 12 to 16 ½ standard drinks. A standard alcoholic beverage is defined as 12 fluid ounces of beer (5% alcohol v/v), five fluid ounces of wine (12% alcohol v/v), or 1 ½ fluid ounces of spirits (40% alcohol v/v). One fluid ounce is equivalent to 28.4 millilitres (mL).

[23] The times indicated on the Millennium’s surveillance DVDs are one hour behind the actual time. Thus, although this incident took place shortly before midnight, the surveillance footage indicates that it took place just before 11:00 p.m. When referring to particular portions of the DVD surveillance in these reasons, I have accordingly adjusted the times as they appear on the screen by one hour. For example, the time of 22:30:00 has been changed to 23:30:00.

POSITIONS OF THE PARTIES

[24] Briefly, the position of the Crown is that Mr. Aziz and Mr. Fredericks perpetrated the assault on Mr. Ramjit as described by Mr. Rooplall and Mr. Naipaul – that is, that Mr. Aziz hit Mr. Ramjit over the head with a beer bottle, and that a fraction of a second later, Mr. Fredericks struck him in the face with a glass.

[25] The Crown agrees with the position of Mr. Naipaul’s counsel that Mr. Ramjit was mistaken when he identified Mr. Naipaul as the person who struck the second blow. The Crown submits that Mr. Ramjit’s mistake is understandable as his opportunity to observe the second attacker was limited: he had already been hit over the head with a bottle, he was bleeding, and had covered his face. He saw Mr. Naipaul immediately prior to being hit, and has jumped to the conclusion that it was he who struck him. However, the Crown alleges that Mr. Naipaul was a party to the offence. Crown counsel submits that Mr. Naipaul stopped and confronted Mr. Ramjit on the sidewalk with the intention of facilitating the assault by Mr. Aziz and Mr. Fredericks.

[26] Counsel for Mr. Aziz and Mr. Fredericks take the position that the evidence of Mr. Rooplall and Mr. Naipaul, in which they identify Mr. Aziz and Mr. Fredericks as the perpetrators of the assault, cannot be relied upon. They submit that the court must approach their evidence with great care, as they fall into the category of Vetrovec witnesses. They also rely on certain portions of the surveillance footage showing Mr. Aziz and Mr. Fredericks following Mr. Ramjit after he exited the bar, and the point where Ms. Pitamber exited the bar after them. They submit that this footage, when considered in conjunction with Ms. Pitamber’s testimony that Mr. Ramjit was already on the ground by the time she got outside, shows that neither Mr. Aziz nor Mr. Fredericks committed the assault.

[27] Counsel for Mr. Naipaul submits that although Mr. Naipaul’s action in confronting Mr. Ramjit on the sidewalk facilitated the commission of the assault by the other two accused, the Crown has not established beyond a reasonable doubt that that was his purpose or intention. It was submitted that Mr. Naipaul was a credible witness and that his evidence should be accepted. At the very least, it raises a reasonable doubt that he was a party to the offence. The principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply with respect to Mr. Naipaul.

THE EVIDENCE

Testimony of Elvita Pitamber

[28] In September 2012, Ms. Pitamber had been working part time for about a year at the Seatown Restaurant (the “Seatown”) as a waitress and bartender.

[29] Ms. Pitamber had known Mr. Fredericks and Mr. Aziz (“Georgie”) for about eight years at the time of this incident. She had known Mr. Naipaul or “Buju”, which was Mr. Naipaul’s nickname, since she was 16 years old. She would see Mr. Fredericks and Mr. Naipaul about once or twice a month at various West Indian bars where they all hung out, as well as at West Indian cultural events.

[30] Ms. Pitamber described Mr. Fredericks and Mr. Naipaul as acquaintances, and Mr. Aziz as “more of a friend.” She was closer to Mr. Aziz, and saw him more frequently than the other two accused.

[31] Ms. Pitamber testified that the three accused would have seen Mr. Ramjit at the Seatown when he was there visiting her while she worked. To her best recollection, none of them ever spoke to him. She may have introduced him to Mr. Naipaul.

[32] Ms. Pitamber had known Mr. Rooplall and Mr. Chung, who were friends of the three accused, for about five years. Both Mr. Rooplall and Mr. Chung frequented the Seatown, as did another individual by the name of Royman.

[33] Mickey Raghoo owned the Seatown Bar. Ms. Pitamber had dated Mickey for two years, but their relationship ended about five months before she started dating Mr. Ramjit. During that five-month period, Ms. Pitamber briefly dated Chris Subdan. Ms. Pitamber also knew Mickey’s brother, Terry. Both Chris and Terry are seen in some of the Millennium surveillance footage.

[34] Ms. Pitamber described all of these people as friends or acquaintances who would see each other at various bars at the end of the work week. She was not aware of any issues or problems between any of them.

Events on September 16, 2012

[35] Ms. Pitamber was working at the Seatown on the evening of September 16, 2012. When Mickey informed her that they would be closing early, she called Mr. Ramjit and asked him to meet her there.

[36] Mr. Ramjit arrived around 9:30 p.m. Ms. Pitamber could tell that he had had “a couple of drinks” but his behaviour was normal. He was not “fall down drunk.” She served him a Guinness beer. She was unaware as to whether Mickey also served him beer.

[37] Ms. Pitamber and Mr. Ramjit left the Seatown around 10:30 p.m. and drove to Jack’s Sports Bar (“Jack’s”), which was about a five-minute drive away. This was the first time that Ms. Pitamber had been at Jack’s in the company of Mr. Ramjit. As she had expected, all her above-named friends and acquaintances, including the three accused, and Mr. Naipaul’s girlfriend, Roxanne, were hanging out there after a cricket match. She did not recall Mr. Ramjit speaking to any of the accused. Ms. Pitamber spoke to Mr. Aziz, who was drinking vodka.

[38] Ms. Pitamber had two beers. She testified that Mr. Ramjit probably had one or two beers but no more than that. At Mr. Chung’s suggestion, she and Mr. Ramjit decided to go to the Millennium.

[39] The DVD surveillance footage shows Mr. Aziz and Mr. Fredericks arriving at the Millennium at 11:13 p.m. At 11:22 p.m., Ms. Pitamber and Mr. Ramjit arrived, went to the bar, and ordered beer. While they were there, Mr. Aziz, Mr. Fredericks, Mr. Naipaul, Mr. Rooplall, Mr. Chung, and others were, at various times, drinking at a table near the entrance of the dance floor and about five or six feet away from Ms. Pitamber and Mr. Ramjit.

[40] At 11:35 p.m., Mr. Aziz joined Mr. Ramjit and Ms. Pitamber at the bar for a few minutes. The surveillance footage shows the three of them engaged in what appears to be a friendly conversation. Mr. Aziz then returned to his table. He was drinking vodka from a glass. The vodka bottle was on the table.

[41] Sometime later, Ms. Pitamber went to the washroom. She and Mr. Ramjit had each consumed one beer at that point. Her recollection was that Mr. Ramjit’s total consumption at the Millennium that night was two Guinness beers and one shot of Tequila.

[42] On her way back to the bar from the washroom, Ms. Pitamber spoke to Mr. Aziz, who started to dance with her. While they were dancing, Mr. Ramjit approached and spilled beer all over her and Mr. Aziz. Mr. Ramjit then put the beer bottles back on the counter and walked out of the bar. He did not say anything. Mr. Aziz threw a glass in Mr. Ramjit’s direction, but the glass missed its mark. Mr. Ramjit was almost out the door at that point.

[43] Mr. Aziz, Mr. Naipaul and Mr. Fredericks rushed to the door and followed Mr. Ramjit out. Chris Subdan also exited. Ms. Pitamber exited behind them. Ms. Pitamber testified that by the time she got outside, Mr. Ramjit was already on the ground. He was on the sidewalk in front of a bakery, about 20 or 30 feet south of the entrance to the Millennium. A bunch of people were kicking him. She told them to stop.

[44] Ms. Pitamber identified Mr. Rooplall as one of the kickers. She testified that he came over and kicked Mr. Ramjit as she was bending down to attend to him. She told Mr. Rooplall to stop.

[45] Ms. Pitamber believed that Mr. Fredericks also kicked Mr. Ramjit, but she was not sure. She did not recall seeing Mr. Aziz outside, although she had seen him exit the bar.

[46] As Ms. Pitamber was attending to Mr. Ramjit, who was bleeding profusely, patrons from the Millennium and the Kitty Campbellville Bar (the “Kitty Campbellville”), which was located further south along the same strip plaza, started to come outside. At one point, she looked up and saw Mr. Fredericks, who was across from her in the parking lot and about 10 to 15 feet away.

[47] Ms. Pitamber called 911 on her cell phone. Another woman on scene was helping her with Mr. Ramjit. Ms. Pitamber returned to the bar at one point to retrieve her purse. By the time she came back outside, the ambulance had arrived.

[48] Ms. Pitamber disagreed with the suggestion put to her in cross-examination that Mr. Ramjit drank a lot that night. Given his high tolerance for alcohol, the five or six beers plus the shot that he consumed was, in her view, “nothing.”

The DVD Surveillance

[49] During her evidence-in-chief, Ms. Pitamber was shown eight different sequences from the surveillance footage. She identified many of the parties seen in the DVDs and testified as to her own observations at the time.

Camera #4 (22:55:48)

[50] Surveillance footage from camera #4 shows the activities inside the Millennium, including Ms. Pitamber and Mr. Ramjit sitting at the bar, and what appeared to be a friendly interaction with Mr. Aziz from about 11:34 to 11:39 p.m.

[51] At 11:44 p.m., Mr. Rooplall exited the bar. He was followed by Royman and Mr. Chung.

[52] At 11:46 p.m., Ms. Pitamber and Mr. Ramjit danced briefly with one another. Mr. Ramjit returned to the bar area. Ms. Pitamber remained where she was and danced for a minute or two with Mr. Aziz. Ms. Pitamber described the style of dance as “just the way West Indian people dance.” At about the same time, the bartender opened two beers for Mr. Ramjit.

[53] At 11:50 p.m., Mr. Aziz and Ms. Pitamber resumed dancing. Mr. Ramjit was watching them from the bar area while holding the two beers. At 23:50:25, Mr. Ramjit stood up and, using a forward motion, splashed beer on them. He then put the bottles back down on the counter and walked out of the bar.

[54] At 23:50:32, Mr. Aziz, who had a glass in his right hand, threw it in Mr. Ramjit’s direction, and then headed towards the exit door. At 23:50:45, a figure is seen running across the top of the screen towards the exit. That figure was later identified as Mr. Naipaul. Mr. Fredericks and Chris Subdan are also seen heading towards the door.

Camera #1 (22:51:52)

[55] Camera #1 was located inside the Millennium and was focused on the door. Its footage provides a clear view of Mr. Ramjit as he left the bar, the glass that was thrown at him, and those who followed him outside.

[56] At 23:50:32, Mr. Ramjit is seen walking towards the door. At 23:50:33, the glass was thrown in his direction. Mr. Ramjit paused to look back just before exiting at 23:50:39.

[57] A 23:50:42, Mr. Naipaul and Mr. Aziz came into the view of the camera. Mr. Aziz was coming from the bar area and walking towards the exit. Mr. Naipaul appears at the top of the screen. Mr. Naipaul put down his beer bottle on a table and was looking at Mr. Aziz as they both approached the door. Mr. Naipaul raised his arm towards Mr. Aziz just before they exited at 23:50:44. Mr. Naipaul was slightly ahead of Mr. Aziz as they went out the door.

[58] At 23:50:46, Mr. Subdan is seen walking at an unhurried pace towards the exit. At 23:50:47, Mr. Fredericks came from behind him, took a couple of running steps towards him, pushed him aside fairly forcefully with his left arm, and quickly exited at 23:50:49. He was holding a glass in his right hand. Mr. Subdan followed Mr. Fredericks out at 23:50:50. Ms. Pitamber exited at 23:50:55.

Camera #5 (22:54:34)

[59] Camera #5, which was positioned outside and above the Millennium’s door, recorded the entry and exit of the bar’s various patrons. Those who exited and turned left or south towards the bakery, where Mr. Ramjit was assaulted, had their backs to camera #5 as they walked away.

[60] At 23:44:53, Mr. Rooplall, and another male exited the bar. This was prior to the beer-spilling incident. Mr. Rooplall and the male were followed by a male in a blue sweater, who was identified by Ms. Pitamber as Royman. A few seconds later, Mr. Chung exited. This group of people stood outside the entrance door and close to the parking lot for about five minutes, or until Mr. Naipaul, Mr. Aziz, and Mr. Fredericks followed Mr. Ramjit out the door.

[61] Ms. Pitamber identified the people, including herself, who exited the bar as follows:

i) 23:50:41: Mr. Ramjit;

ii) 23:50:45: Mr. Naipaul;

iii) 23:50:48: Mr. Aziz. Also at this time, Mr. Chung, who was already outside, left the group he was with and began to walk behind Mr. Aziz;

iv) 23:50:50: Mr. Fredericks. At this time, Mr. Rooplall, who was already outside, started to walk behind Mr. Fredericks;

v) 23:50:52: Chris Subdan; and

vi) 23:50:55: Ms. Pitamber.

[62] All of these individuals walked south along the sidewalk and were out of view of the camera by 23:51:01.

[63] The assault took place off camera. At 23:51:49, Mr. Rooplall, Mr. Aziz, Mr. Naipaul, and Mr. Subdan are seen returning to the Millennium. Mr. Fredericks leaned momentarily against a yellow truck in the parking lot. By 23:52:19, all of these individuals had re-entered the bar. Ms. Pitamber re-entered at 23:52:29.

[64] Seconds later, at 23:52:39, Mr. Aziz, Mr. Fredericks, Roxanne, Mr. Naipaul and Mr. Subdan exited the bar and disappeared from the camera’s view as they headed towards the parking lot. Mr. Naipaul testified that all of them, with the exception of Mr. Subdan, got into Roxanne’s vehicle and left the scene.

[65] At 23:52:55, Royman is seen lingering outside the entrance of the bar.

[66] At 23:53:09, Mr. Rooplall exited the bar and walked south or in the direction where Mr. Ramjit had been assaulted.

[67] At 23:53:29, Ms. Pitamber exited with another woman and walked towards Mr. Ramjit, who was still on the ground. Ms. Pitamber testified that Mr. Ramjit was distraught. He was holding his face and asking for an ambulance.

[68] At 23:53:55, Mr. Chung came from the direction where Mr. Ramjit was located, and re-entered the bar.

Camera #1 (22:54:32)

[69] The interior surveillance footage from Camera #1 shows Mr. Aziz re-entering the bar after the assault at 23:52:10. He was followed by someone whom Ms. Pitamber could not identify, and then by Mr. Rooplall, at 23:52:17.

[70] At 23:52:20, Mr. Subdan and Roxanne entered and were walking side by side. One second later, Mr. Fredericks entered. He appeared to be in a hurry. He pushed aside both Mr. Subdan and Roxanne, walked in between them, and spoke briefly to Mr. Aziz. At 23:52:30, he and Mr. Aziz left the bar, and Ms. Pitamber entered it. Roxanne and Mr. Naipaul exited at 23:52:36, and were followed by Mr. Subdan. Mr. Rooplall left at 23:53:06.

Camera #6 (22:54:26)

[71] Camera #6 was outside the Millennium and recorded people entering and leaving the bar. The camera was south of the entrance and looking north. Thus, when Mr. Ramjit and the others exited and turned left or south, they were walking towards camera #6. The entering and exiting times of people shown on camera #6 differ by a few seconds from the times shown on camera #1. This is simply a reflection of the time that it took for people to go through the two doors.

[72] Mr. Ramjit exited the bar at 23:50:42.

[73] Mr. Naipaul exited at 23:50:45, followed by Mr. Aziz at 23:50:46. Mr. Aziz was carrying a beer bottle in each hand. Mr. Chung, who was already outside, began to follow Mr. Aziz. Mr. Fredericks exited the bar at 23:50:50. He was walking quickly and carrying a glass in his right hand. By 23:50:54, he had passed Mr. Chung and was behind Mr. Aziz. Mr. Rooplall was walking behind Mr. Chung at that point. At 23:50:52, Mr. Subdan exited the bar. Royman, who was already outside, took a few steps in the same direction as the others but then stopped. He never approached the area where Mr. Ramjit was assaulted.

[74] At 23:50:51, Mr. Ramjit walked out of the view of the camera. At 23:50:52, Mr. Naipaul went off-screen. Mr. Aziz and Mr. Fredericks went off-screen at 23:50:55 and 23:50:57, respectively. At that point, Mr. Chung, Mr. Rooplall, and Mr. Subdan are still on-screen but were walking in the same direction as the others. Ms. Pitamber had just stepped out of the bar at 23:50:55.

[75] By 23:50:57, Ms. Pitamber was fully out the door. When asked what she saw at that time – Mr. Chung, Mr. Rooplall and Mr. Subdan were still on-screen and ahead of her at this point – she testified that Mr. Ramjit was on the ground and was being kicked by more than one person.

[76] At 23:50:59, Mr. Chung went off-screen. Mr. Subdan went off-screen at 23:51:01.

[77] At 23:51:04, Ms. Pitamber went off-screen as she walked towards Mr. Ramjit. Mr. Rooplall was still on-screen. He stood near a pillar and was smoking a cigarette.

[78] At 23:51:09, Mr. Fredericks re-appeared on-screen. He walked towards Mr. Rooplall, veered left towards the parking lot, and disappeared from the camera’s view. At the same time, Mr. Rooplall began walking south, or towards where Mr. Ramjit was located. At 23:51:15, Mr. Rooplall went off-screen. Ms. Pitamber testified that at this point, Mr. Ramjit was still on the ground and she was beside him. There were a lot of people around. Mr. Rooplall was kicking Mr. Ramjit. She told him to stop and asked, “What are you guys doing?”

[79] At 23:51:19, Mr. Rooplall returned to the area of the pillar where he had previously been standing. He had Mr. Ramjit’s black baseball hat in his hand. He then walked into the parking lot and threw it under a parked car.

[80] At 23:51:32, Mr. Fredericks appears on-screen again as he left the parking lot and stepped back onto the sidewalk. Ten seconds later, or at 23:51:42, Mr. Aziz was back on screen. He was now carrying only one beer bottle, which he was holding in his right hand.

[81] At 23:51:47, Mr. Naipaul returned on-screen.

[82] By 23:52:19, Mr. Naipaul, Mr. Aziz, Mr. Rooplall, Mr. Subdan, and Mr. Fredericks had all re-entered the Millennium. Ms. Pitamber re-entered at 23:52:29.

[83] At 23:52:38, Mr. Aziz, Mr. Fredericks, Roxanne, Mr. Naipaul, and Chris exited the bar. They appeared to get into a vehicle and left the scene. At 23:53:11, Mr. Rooplall left the bar and walked south, towards the area where the assault had taken place.

[84] At 23:53:29, Ms. Pitamber exited the bar and walked with two other women towards the area where Mr. Ramjit was lying on the ground. At the same time, Mr. Chung came back on-screen as he walked from the area where Mr. Ramjit was lying and towards the bar. When he and Ms. Pitamber met on the sidewalk, Mr. Chung reversed direction and went back with her towards Mr. Ramjit. At 23:54:56, he re-entered the bar.

Testimony of Vidyam Ramjit

[85] Mr. Ramjit, age 38, testified that he first met Ms. Pitamber at the Millennium Bar about two months prior to this incident. They became involved in a relationship, which led to his moving in with her two days prior to the assault.

[86] Mr. Ramjit testified that he had only been to the Seatown a few times. On those occasions, it was for the purpose of meeting up with Ms. Pitamber, who worked there.

[87] When he and Ms. Pitamber went to various bars or events together, she would introduce him to some of her friends. He had seen “Georgie” or Mr. Aziz at both the Seatown and the Millennium on two or more occasions. Ms. Pitamber introduced him to Mr. Aziz and described him as a good friend. Mr. Ramjit never spoke to Mr. Aziz other than to exchange hellos. He recalled seeing Mr. Aziz at Jack’s on September 16.

[88] Mr. Ramjit had seen Mr. Naipaul at the Seatown on one or two occasions. He knew his nickname was Buju, but could not recall that name at the time of the assault. It was only sometime later that he remembered the name.

[89] Mr. Ramjit had no disputes or arguments with either Mr. Aziz or Mr. Naipaul prior to September 16, 2012. Everyone was on friendly terms.

[90] Mr. Ramjit testified that he had two shots of grappa while visiting his uncle on September 16. He was unsure of the timeframe, but guessed that he was at his uncle’s residence from about 4:00 to 7:00 p.m. The shots were served in a regular shot glass, about one-and-a-half inches deep. He did not feel the effects of the alcohol. He did not have a lot to drink because he had to work the following day. Mr. Ramjit testified that he had never gotten into trouble while drinking alcohol, and has never suffered from black-outs.

[91] Mr. Ramjit took a taxi from his uncle’s place to the Seatown, where he stayed for about an hour. He did not believe that he had anything to drink there, as he spent most of the time outside speaking on the phone with his children. He did not recall Ms. Pitamber serving him a beer. Nor did he recall Ms. Pitamber consuming any alcohol at the Seatown.

[92] Mr. Ramjit and Ms. Pitamber drove to Jack’s after her boss told her that she could leave early. Mr. Ramjit testified that he “maybe” had two Guinness beers there. He agreed that he told Detective Cecile in a DVD-recorded statement on September 22, 2012, that he had three beers at Jack’s.

[93] Both Ms. Pitamber and Mr. Ramjit described an incident at Jack’s which caused some tension between themselves and Mickey’s brother, Terry. Apparently on two occasions, when Ms. Pitamber and Mr. Ramjit were playing pool, Mr. Ramjit accidently caused one of the balls to jump off the table. Ms. Pitamber was unaware if the ball hit Terry, who was sitting with his back to the table. Although they apologized, Terry was very upset. Ms. Pitamber and Mr. Ramjit stopped playing pool at that point.

[94] Mr. Ramjit saw “Georgie” (Mr. Aziz) and “Buju” (Mr. Naipaul) at Jack’s, but did not know if they were present during the pool table incident.

[95] When asked about the effects of the alcohol he had consumed up to that point, Mr. Ramjit stated, “I was normal.”

Events at the Millennium Restaurant and Bar

[96] Mr. Ramjit testified that when he and Ms. Pitamber arrived at the Millennium, Mr. Aziz and Mr. Naipaul were already there. They were socializing at a table with about ten other people, some of whom Mr. Ramjit had seen before. However, he did not know them. He did not go over to the table, but stayed at the bar.

[97] Mr. Ramjit bought a Corona for Ms. Pitamber, and a Guinness for himself. He ordered a second beer, but may only have had a sip of it before he spilled it on Ms. Pitamber and Mr. Aziz.

[98] During Mr. Ramjit’s examination-in-chief, the Crown played the interior surveillance footage from camera #4 (22:31:20).

[99] Mr. Ramjit did not recall having any interaction with Mr. Aziz prior to the beer spilling incident. However, the surveillance footage shows that at 11:34 p.m., Mr. Aziz stopped to speak to him and Ms. Pitamber while they were at the bar. It appears that Mr. Ramjit waved Mr. Aziz over. The interaction, which went on for about five minutes, appears to be friendly, which accords with Ms. Pitamber’s recollection. Mr. Ramjit and Mr. Aziz were engaged in conversation and, at times, were in fairly close proximity to each other.

[100] Mr. Ramjit agreed that from the surveillance footage, it appears that he had a shot of liquor in addition to the Guinness while at the Millennium.

[101] Mr. Ramjit testified that he became very upset when he saw Ms. Pitamber “dirty dancing” with Mr. Aziz. At 11:50 p.m., he walked over to them and spilled beer in their direction to get their attention. He testified that he was actually unaware that beer splashed onto Mr. Aziz, who was behind Ms. Pitamber.

[102] Mr. Ramjit testified that he immediately realized he was “very wrong” to have spilled the beer. That is why he put down the two bottles and left the bar. He was unaware that Mr. Aziz threw a glass at him as he was exiting.

[103] After leaving the bar, Mr. Ramjit turned left and walked south along the sidewalk. No one was in front of him. He only turned around when he heard a commotion or people running behind him. The spot where he turned around was the same spot where he ended up being injured.

[104] Mr. Ramjit testified that when he turned, the first person he saw was Mr. Aziz, who was right in front of him, confronting him, and “right in my face.” There were also five or six other people standing there, in a semi-circle around him. No one was behind him or to his left.

[105] Mr. Ramjit testified that Mr. Aziz was holding a beer bottle in each hand. He held one of the bottles by the neck. Mr. Naipaul, who was beside Mr. Aziz and to the right of Mr. Ramjit, was also holding two bottles. They were within arm’s length of him.

[106] Mr. Ramjit did not notice if anyone else had bottles. He testified that he was focused on Mr. Aziz, as he was the only one with whom he “had a beef.” He apologized to Mr. Aziz, telling him: “Georgie, I’m sorry if I got you guys wet with the beer. I’ll buy a round for you guys.” This took about five seconds. None of the group budged. Mr. Aziz immediately hit him over the top of the head near the forehead with a bottle. Almost at the same time, Mr. Naipaul struck him with a bottle on the right side of his face, under his right eye. It all happened very fast or, as Mr. Ramjit put it, “bam, bam.” Mr. Ramjit testified that he was struck a total of two times before he fell to the ground. No one said anything to him before he was hit. Blood started streaming down his face as soon as he was struck on the forehead.

[107] After he was on the ground, Mr. Ramjit could feel people kicking him. He did not know who was doing the kicking because he could not see anyone and he was in a lot of pain. Blood was gushing all over, and he was holding his hands to his face. He took out his phone but was unable to call the police. He was not sure how long he was on the ground before Ms. Pitamber reached him.

[108] Mr. Ramjit recalled speaking to Police Constable Soffe in the ambulance and at the hospital, but did not recall the officer’s name.

[109] Mr. Ramjit testified that he had cuts all over his face as a result of this assault. His wounds were sutured at the hospital, and he was released the following morning. He testified that he also suffered pain to his ribs and all over his body as a result of the kicking, although he did not complain about these matters to the medical staff. He took painkillers for about two days. He had difficulty sleeping, and suffered from nightmares.

[110] On September 22, 2012, Mr. Ramjit attended at 41 Division, where he gave a DVD-recorded statement to Detective Cecile. In cross-examination, Mr. Ramjit agreed that when the detective suggested that he had probably already spoken to Ms. Pitamber “considerably” about the incident, he responded, “yes.” However, he testified that he and Ms. Pitamber have never discussed the whole event, but only “bits and pieces” of it. Such discussions invariably lead to them getting into an argument.

[111] Mr. Ramjit denied that his ability to recall events that night was limited by the amount of alcohol he had consumed. He agreed that he testified at the first trial that he had consumed two Coronas at his uncle’s home, as opposed to two shots of grappa. He explained that he was mistaken at that trial, and repeated that he had two shots of grappa while visiting his uncle. Mr. Ramjit believed that grappa was a rum-based liquor, but he was not sure.

[112] Mr. Ramjit agreed that at the first trial, he acknowledged that it was possible he was wrong about the number of beers he consumed that night. However, he denied the suggestion that he had consumed a lot more than he has attested to.

[113] In response to the suggestion that the amount of alcohol he consumed has hampered his ability to recall events, Mr. Ramjit stated that this may be a possibility with respect to what happened prior to his leaving the bar, but it is not possible with respect to what happened outside the bar and to his face. He stated, “I remember what happened every day.”

[114] Mr. Ramjit agreed that at the first trial, he estimated that he had approximately eight drinks that night. He also acknowledged at the first trial that it was possible that alcohol affected his ability to remember the events. However, he repeated that he recalled what happened outside the bar. He was not drunk, and nothing clouded his memory.

[115] At the first trial, Mr. Ramjit testified that after he left the bar, he had only walked six or seven feet when he saw five or six guys running out with bottles in their hands. He agreed that this version of events is different from the version he has provided to this court. However, he testified that at the time of his prior testimony, he honestly believed that that is what happened. Again, he disagreed with the suggestion that he had a poor memory of the events because of his alcohol consumption.

[116] After referring to the photograph of the plaza, Exhibit 3(a), Mr. Ramjit estimated that after he left the bar, he walked about 25 feet along the sidewalk before he turned around and saw Mr. Aziz and Mr. Naipaul.

[117] Mr. Ramjit agreed that surveillance footage from Camera #5, which was situated outside and above the bar’s entrance, shows that Mr. Naipaul was not carrying anything in his hands when he followed Mr. Ramjit out the door. However, Mr. Ramjit was certain that by the time he turned around and saw him, Mr. Naipaul had a bottle in each hand. He did not know where Mr. Naipaul got the bottles. He had not noticed any beer bottles on the ground. He did not see Mr. Naipaul bend over to pick up anything.

[118] Mr. Ramjit was questioned about what he told Officer Soffe when he was at the hospital and being treated by the nurses. Mr. Ramjit testified that he described his two assailants to the officer, but could not currently recall those descriptions. He did not recall telling Officer Soffe that he never saw the second assailant’s face. He suggested that the officer may not have fully understood him because of his accent and his injuries.

[119] Mr. Ramjit testified that at the time that he spoke to Officer Soffe, his face was “busted”, he was in a lot of pain, and he thought he was going to die. He was unable to open his right eye as a result of the slash or cuts he had sustained under that eye.

[120] Mr. Ramjit did not recall giving the following descriptions of “Georgie” and of the second assailant, which are the descriptions that Officer Soffe recorded in his notebook:

Me and my girlfriend were at the bar. Guy at the bar by the name of Georgie. I walk outside. They walked out behind me and bust my face with bottles. Two guys hit me. Main guy was Georgie. Couldn’t make out face of other guy. Georgie is Indian, fat face, wears a lot of gold around his neck and fingers. A little shorter than me, has a little belly, mid-20’s, sleeveless shirt.

Next guy has a chain around his neck with a cross, Indian, short black hair, same height as Georgie, hoop earring in both ears, late 20’s early 30’s, medium build.

[121] Mr. Ramjit insisted that Mr. Naipaul was the second assailant. He testified that one of the reasons that he recognized him as his attacker was the scar on the left side of his face. He did not recall if he told Officer Soffe about the scar, but did recall mentioning it to Detective Cecile during his interview on September 22, 2012. There was no evidence adduced at trial as to whether Mr. Fredericks, Mr. Naipaul, or anyone else at the scene had a scar on the left side of their face.

[122] Mr. Ramjit also testified that he had noticed Mr. Naipaul at the Millennium earlier that night and that Mr. Naipaul was wearing a tank top.

[123] Mr. Ramjit testified that he had seen Mr. Naipaul on one or two occasions prior to this incident. A week or two earlier, Ms. Pitamber had drawn his attention to Mr. Naipaul when they were at the Seatown, and told him that his name was Buju.

[124] Mr. Ramjit testified that he is approximately 5 feet 10 inches tall, and weighed about 194 pounds at the time of this incident. He agreed that he told Detective Cecile that in terms of build, “Buju [was] more like me” but a little bigger in the shoulders. He testified that when he had seen Mr. Naipaul wearing a jacket, he appeared to have big shoulders. He stated that in the surveillance footage, Mr. Naipaul, who was wearing a sleeveless top, appeared to be “built.”

[125] Mr. Ramjit testified that he and Buju were approximately the same height, although Buju could be under 5 feet 9 inches. Mr. Ramjit stated that he was not good at estimating “those kinds of calculations.”

[126] Mr. Ramjit agreed that of the approximately 30 people at the Millennium that night, he only knew the names of two males – “Georgie” and “Buju.” He denied that this was how he came to name them as his attackers. He only recalled Buju’s name sometime later and after he had spoken to Officer Soffe.

Testimony of Police Constable Derek Soffe

[127] On consent of all counsel, Police Constable Soffe’s testimony was adduced by filing a transcript of his evidence at the first trial.

[128] Police Constable Soffe arrived on scene at 11:59 p.m. He spoke to Mr. Ramjit’s girlfriend, while his partner and others attended to Mr. Ramjit.

[129] Mr. Ramjit was lying on the ground in front of the bakery and bleeding profusely from his head and face. There was a lot of blood on the ground. Officer Soffe also observed glass around him. He was not questioned about the nature of the glass, that is, whether it appeared to have come from a beer bottle, a clear drinking glass, or both.

[130] At 12:10 a.m., the ambulance arrived and took Mr. Ramjit to hospital. Officer Soffe rode with him in the ambulance.

[131] Officer Soffe testified that on route to the hospital, when asked who had caused his injuries, Mr. Ramjit stated “Georgie” or “Georjay.” “Georjay” was the officer’s own phonetic spelling of the name given to him by Mr. Ramjit.

[132] Officer Soffe spoke further to Mr. Ramjit at the hospital. The officer’s notes as to what Mr. Ramjit told him about the incident at that time have already been set out in my review of Mr. Ramjit’s evidence.

[133] Officer Soffe also made the note “Weapons used were bottles”, which he testified was information he received from Mr. Ramjit.

[134] Officer Soffe testified that he cut the interview short because the conditions for taking a formal statement were far from ideal. Mr. Ramjit was lying on a stretcher in the hospital, with doctors and nurses coming and going. Mr. Ramjit was having difficulty speaking as a result of his injuries. He spoke slowly and appeared to be a bit drowsy. He also told the officer that he could not remember anything else. Officer Soffe noted that Mr. Ramjit was “not suitable for a statement at this time.” He also noted that “male had been drinking.”

Testimony of Anthony Rooplall (given at the first trial on March 12 and August 27, 2014)

[135] Mr. Rooplall was 24 years old and working for his parent’s appliance repair and refrigeration company at the time of this incident. He knew Ms. Pitamber from the Seatown, where she was employed. He did not know Mr. Ramjit, and had never seen him prior to September 16, 2012. He only learned that Mr. Ramjit was Ms. Pitamber’s boyfriend after the assault.

[136] Mr. Rooplall testified that he tended to distance himself from Ms. Pitamber because he regarded her as “trouble.” When asked to elaborate, he stated that after Ms. Pitamber and Mickey broke up, Ms. Pitamber would bring new male friends to the Seatown in what Mr. Rooplall perceived was an effort to irritate Mickey. Although nothing ever came of this, as Mickey was “an easy going guy,” Mr. Rooplall preferred not to get involved in any potential “jealousy problem.”

[137] Mr. Rooplall described Mr. Aziz, Mr. Fredericks, and Mr. Naipaul as acquaintances whom he would see at various bars two to four times a month. He had known them for about three to four years prior to this incident. Mr. Rooplall saw Mr. Chung with about the same frequency in the same bars, as well as at restaurants. However, he considered Mr. Chung to be more of a friend, as he had known him for a longer period of time – about six years – and Mr. Chung had helped him get his first job.

[138] Mr. Rooplall was cross-examined by counsel for Mr. Aziz and Mr. Fredericks at the first trial with a view to showing that he had a much closer relationship with Mr. Naipaul than he had with the other two accused. Mr. Rooplall denied that he was a close friend of Mr. Naipaul. He denied the suggestion that he named Mr. Fredericks as the person who struck Mr. Ramjit with the glass in order to protect Mr. Naipaul, who was the real perpetrator. Mr. Rooplall also denied the suggestion that Mr. Aziz never hit Mr. Ramjit with a beer bottle, and that it was Mr. Naipaul who, after grabbing a bottle from Mr. Aziz, struck Mr. Ramjit over the head with it. Mr. Rooplall dismissed the latter suggestion as an “outright lie” and “completely false.”

[139] Mr. Rooplall testified that his relationship with Mr. Naipaul was basically the same as it was with Mr. Aziz and Mr. Fredericks. He knew all of them from hanging out at the same bars. He always drove to bars in his own vehicle, and would meet people there. He never went to a bar with the specific intention of meeting Mr. Naipaul. Prior to September 16, 2012, he probably happened to run into Mr. Naipaul at a bar about once or twice a month. Although he had Mr. Naipaul’s cell phone number and had called him on occasion, he usually just saw him at a bar by happenstance.

[140] Mr. Rooplall agreed that he was closer in age to Mr. Naipaul than to Mr. Aziz or Mr. Fredericks, who were older. He was uncertain, however, of Mr. Naipaul’s exact age. He did not know where Mr. Naipaul lived, but believed he was residing somewhere in Vaughan in September 2012. Prior to that date, Mr. Rooplall had only been to Mr. Naipaul’s residence on one occasion, which was two years before this incident. Mr. Naipaul was staying at that time with a family member somewhere in Etobicoke.

[141] Mr. Rooplall affirmed during cross-examination by the Crown that he had no preference or loyalty to one of the accused over the other such that he would lie to protect that individual. He reasserted that Mr. Ramjit received two blows – one to his head from Mr. Aziz, and one to his face from Mr. Fredericks. He stated that if he had seen Mr. Naipaul assault Mr. Ramjit, he would say so.

Mr. Rooplall’s criminal record

[142] In June 2014, Mr. Rooplall pleaded guilty to failing to comply with the condition of his bail that he not be within 500 metres of the Millennium. He received a suspended sentence and a 12-month term of probation.

Events on September 16, 2012

[143] On the evening of September 16, 2012, Mr. Rooplall drove to Jack’s. He did not have anything to drink there, and left after about 20 minutes. He then drove to the Kitty Campbellville, where he had one beer. He stayed for about 15 minutes, and then walked over to the Millennium, where he had some food and another beer. He did not speak to either Mr. Ramjit or Ms. Pitamber while at the Millennium.

[144] Mr. Rooplall did not see Mr. Ramjit spill beer on Ms. Pitamber and Mr. Aziz because he was outside smoking a cigarette at the time. Mr. Rooplall, Royman, another male by the name of Michael, Mr. Chung, and a couple of girls all stepped outside at about the same time. They were standing near the entrance door when Mr. Ramjit exited. Mr. Ramjit was followed by Mr. Naipaul, Mr. Aziz and Mr. Fredericks. Mr. Rooplall suspected from the body language of the three accused that there had been some problem inside the bar. All three of them came out more or less together and were walking fast towards Mr. Ramjit. When Mr. Ramjit turned around, they confronted him.

[145] Mr. Rooplall testified that Mr. Naipaul was the first person out the door after Mr. Ramjit, and about five or ten feet ahead of Mr. Aziz. Thus, Mr. Naipaul was momentarily the closest person to Mr. Ramjit when Mr. Ramjit turned around. Mr. Ramjit and Mr. Naipaul appeared to have a brief verbal argument. Mr. Ramjit was facing the parking lot, with his back towards the bakery. Mr. Naipaul was facing the bakery. Both men were holding their arms out to their sides, with the palms up, as though they were asking, “What’s up?” or “What are you doing?” It looked like they were “going to fight or like push each other or something”, but they were five or six feet apart. It never got to the point where they were “in each other’s face”, or close enough to make physical contact. At another point in his testimony, Mr. Rooplall stated that the body language of both men indicated to him that they were trying to size each other up. Mr. Rooplall could not hear what they were saying because of the loud music coming out of the bar.

[146] Mr. Rooplall testified that this confrontation lasted mere seconds, as Mr. Aziz, who was carrying a beer bottle in each hand and was only a few steps behind Mr. Naipaul, came up and hit Mr. Ramjit over the head with one of the bottles. The bottle broke.

[147] Mr. Ramjit immediately put his hands up to his face and was on his way down to the ground when Mr. Fredericks struck him in the face with a glass. The glass broke. Mr. Ramjit hit the ground and was holding his head. This all happened very quickly. The strike by Mr. Aziz with the beer bottle was followed almost instantaneously by the strike by Mr. Fredericks with the glass. Mr. Rooplall saw Mr. Fredericks carrying the glass in his hand before he assaulted Mr. Ramjit.

[148] Mr. Rooplall testified that no words were spoken when Mr. Aziz and Mr. Fredericks reached Mr. Ramjit: “There was no talking. There was just hit, hit, he was down. That’s it.”

[149] Mr. Rooplall testified that he had a clear view of the assault. He was only about three to five feet away when it happened, and had a side view of the three accused. No one from the Kitty Campbellville was standing close to Mr. Ramjit when he was struck by Mr. Aziz and Mr. Fredericks.

[150] Mr. Aziz and Mr. Fredericks walked away immediately after the assault. Mr. Aziz was still holding a beer bottle in his hand. Mr. Naipaul, who at no point blocked Mr. Ramjit’s passage or had any physical contact with Mr. Ramjit, also walked away. Mr. Rooplall did not see any of the three accused or anyone else pick up anything from the area where Mr. Ramjit had been assaulted.

[151] Mr. Rooplall observed that Mr. Ramjit was still conscious after the assault as he pulled out his cell phone after he was down on the ground.

[152] Mr. Rooplall testified that he noticed a hat on the ground in the area where Mr. Ramjit had been attacked. For some reason, which Mr. Rooplall could not explain, he walked over to the hat, picked it up, walked to the parking lot, and threw the hat under a parked car. This was about 15 seconds after Mr. Aziz, Mr. Fredericks and Mr. Naipaul had walked away. No one said anything to him when he picked up the hat.

[153] Mr. Rooplall testified that it never occurred to him that the hat might belong to Mr. Ramjit, even though it was near where he had fallen. Mr. Rooplall did not know who owned it – “it wasn’t anybody’s hat that I knew.” He did not notice if Mr. Ramjit was wearing a hat before he was assaulted.

[154] When Mr. Rooplall picked up the hat, Mr. Ramjit was still on the ground and appeared to be in pain. Mr. Rooplall did not see any blood at that point, as Mr. Ramjit was covering his face with his shirt or sweater. Ms. Pitamber, who looked concerned, was with him. Another person by the name of Chris [Mr. Subdan], who was part of the group that followed Mr. Ramjit out of the bar, was also there.

[155] The surveillance footage shows that after Mr. Rooplall threw the hat under the car, he stood around in the area for a few seconds. He testified that he did not speak to either Ms. Pitamber or Mr. Ramjit at the scene. He did not offer to help or indicate that he had seen the two men who had perpetrated the assault. Mr. Rooplall explained that he assumed Ms. Pitamber was assisting Mr. Ramjit and that she would call the police.

[156] Mr. Rooplall denied kicking Mr. Ramjit. He also denied that Ms. Pitamber told him to stop kicking him. He insisted that no one touched or kicked Mr. Ramjit after he fell to the ground.

[157] When Mr. Rooplall returned to the bar, everyone was leaving. He was pretty sure that at least one of the employees was calling the police. He assumed that others who were outside had called the police. Mr. Rooplall did not have a phone on him at the time. He did not feel that it was his duty to notify the authorities because that job was being performed by Ms. Pitamber and the bar employees. He never advised the bar personnel that he was an eye witness to the assault as he assumed that surveillance cameras had recorded the entire incident in any event.

[158] Mr. Rooplall testified that he was probably one of the last people to leave the bar that night. Ms. Pitamber, another woman, and Mr. Chung were still at the scene and lending assistance to Mr. Ramjit. Mr. Rooplall walked over to the Kitty Campbellville, used the washroom, came back out, and drove home.

[159] Mr. Rooplall denied that he left the scene because he had kicked Mr. Ramjit while he was on the ground. He testified that he left the scene because he panicked and did not “want any trouble or any part of it.”

The DVD surveillance

Camera #5 (22:54:34)

[160] Mr. Rooplall denied that he was smoking marijuana outside the Millennium that night. It was suggested to him in cross-examination by counsel for Mr. Fredericks at the first trial that the surveillance footage suggests otherwise.

[161] Camera #5, which was facing south, shows Mr. Rooplall leaving the bar at 11:45 p.m. A male wearing a black sweater, another male wearing a blue sweater (Royman), a woman, and Mr. Chung exited at more or less the same time. The group remained on the sidewalk near the entrance door until 11:50 p.m., when Mr. Ramjit, followed by Mr. Naipaul, Mr. Aziz, Mr. Ferguson, Mr. Subdan, and Ms. Pitamber exited. It was suggested to Mr. Rooplall that during that five-minute interval, he and others in the group passed around a marijuana cigarette. Mr. Rooplall insisted that it was a regular cigarette, and stated that he has never smoked marijuana in his life.

[162] The surveillance footage is rather dark on the right side of the screen and not entirely clear at times. However, Mr. Rooplall agreed that it appears that the male in the black sweater lit a cigarette and then relit it three times within the first minute. He smoked it for about one minute before passing it to the male in the blue sweater, who took a few puffs. That male then started to hand the cigarette to Mr. Chung, but Mr. Rooplall reached over and took it. Mr. Rooplall took a few puffs and then gave it to Mr. Chung, who took a few puffs and then handed it to the female. She smoked it and then handed it to a male in a black leather jacket. At 11:50 p.m., Mr. Rooplall took the cigarette from this individual, and was still holding it when Mr. Ramjit, the three accused, and Mr. Subdan exited the bar. Mr. Rooplall followed them and disappeared from the camera’s view.

[163] Mr. Rooplall agreed that the cigarette being passed around appeared to be a different size from the cigarette that the male in the black sweater removed from a package at 11:48 p.m. and started to smoke. Mr. Rooplall testified that the cigarette being passed around may have been hand-rolled, and that sometimes “these guys roll flavoured tobacco inside …the papers.”

[164] In cross-examination by Crown counsel, Mr. Rooplall agreed that the surveillance footage from 23:50:40 to 22:50:46, shows that he paid no attention to Mr. Ramjit and was not even looking in his direction when Mr. Ramjit opened the bar door, exited, and walked by him. Similarly, when Mr. Naipaul exited at 23:50:45, Mr. Rooplall was still looking in another direction. It was not until 23:50:46 that he looked to his left and in the direction of where Mr. Ramjit and Mr. Naipaul were walking.

[165] Mr. Rooplall agreed that the surveillance footage shows Mr. Aziz exiting the bar at 23:50:47. Mr. Aziz looked to his right or in Mr. Rooplall’s direction. Mr. Rooplall testified that he was unaware that Mr. Aziz had looked his way. Neither Mr. Aziz nor Mr. Naipaul said anything to him.

[166] Mr. Fredericks followed Mr. Aziz out of the bar at 23:50:51. Mr. Chung, who had remained outside, followed Mr. Fredericks. At 23:50:52, Mr. Rooplall began walking in the same direction. He testified that Mr. Ramjit had not been assaulted at that point. Mr. Rooplall was followed by Royman. Mr. Subdan, who exited the bar at 23:50:53, followed everyone else. Ms. Pitamber exited at 23:50:55.

[167] Mr. Rooplall testified that by 23:51:02, when Ms. Pitamber disappeared from the camera’s view, Mr. Ramjit was already on the ground. This was only about 20 seconds after Mr. Ramjit had exited the bar.

[168] None of the above-named individuals were within the range of camera #5 from 23:51:02 until 23:51:34, when Mr. Rooplall re-appears. He testified that sometime during that period, he picked up the hat and threw it under the parked car. When asked what the others were doing, he stated that they were by Mr. Ramjit. He agreed that other than Ms. Pitamber, no one was helping or administering first aid to Mr. Ramjit. He denied, however, that he or anyone else kicked Mr. Ramjit while he was on the ground.

[169] When Mr. Rooplall re-appears in the surveillance footage, he more or less sauntered towards the Millennium, and continued to look back in the direction where the assault had taken place. Mr. Aziz, who was carrying a beer bottle in his left hand, looked at his right hand, shook it, leaned over towards the parking lot, and appeared to pour beer over his hand. Mr. Rooplall testified that he did not notice whether Mr. Aziz’s hand was cut. While Mr. Aziz was occupied with his right hand, Mr. Naipaul entered the bar. He was followed by Mr. Aziz, Mr. Rooplall, and Chris Subdan. At 23:52:18, Mr. Fredericks went in. Twenty seconds later, at 23:52:38, Mr. Aziz, Mr. Fredericks, Roxanne, and Mr. Naipaul exited the bar. Mr. Rooplall saw them get into a car and drive off.

Camera #6 (22:54:26)

[170] During his cross-examination of Mr. Rooplall, Crown counsel also played the surveillance footage from camera #6, which was facing north. It captured Mr. Ramjit, and those who were following him, as they left the bar and walked south.

[171] Mr. Rooplall agreed that there was nothing in Mr. Ramjit’s gait to indicate that he was intoxicated. Mr. Ramjit was walking along the sidewalk in an unhurried and casual fashion when the three accused exited the bar and pursued him. Mr. Rooplall testified that he heard either Mr. Naipaul or Mr. Aziz ask Mr. Ramjit, “Why did you throw the drink?” or words to that effect.

[172] At 23:50:50, Mr. Ramjit went off screen as he continued walking along the sidewalk.

[173] At 23:50:52, Mr. Naipaul, who was just a few feet behind Mr. Ramjit, went off screen. Mr. Aziz and Mr. Fredericks went off screen at 23:50:55 and 23:50:57, respectively.

[174] At 23:51:04, Ms. Pitamber walked past Mr. Rooplall, who took a step back. Mr. Rooplall testified that Mr. Ramjit had already been hit or was just about to be hit at that point. Mr. Rooplall was standing within five or six feet from where the assault took place. By 23:51:05, everyone was off camera except for Mr. Rooplall, who remained near a pillar while smoking his cigarette.

[175] At 23:51:08, Mr. Fredericks reappeared on the screen, walking towards Mr. Rooplall. Mr. Rooplall testified that by that point, Mr. Fredericks had already struck Mr. Ramjit with the glass. Mr. Fredericks stepped off the sidewalk and walked off-screen into the parking lot. He returned and stepped back onto the sidewalk at 23:51:34. Mr. Aziz and Mr. Naipaul were still off-screen at that point.

[176] At 23:51:15, Mr. Rooplall disappeared from the screen. At 23:51:19, he reappeared and was holding Mr. Ramjit’s hat, which he threw under a car in the parking lot. Mr. Rooplall was adamant that he did not kick Mr. Ramjit. Nor did he see anyone else kick him. He agreed that the convenience store surveillance DVD indicates that Mr. Ramjit was kicked at least once. He testified that if, in fact, that happened, he did not see it.

[177] Mr. Aziz was back on-screen at 23:51:42. He was walking back towards the bar. At 23:51:54, and just before re-entering the Millennium, he made the shaking gesture with his right hand previously described.

[178] At 23:51:47, Mr. Naipaul reappeared on-screen. He was the first of the accused to re-enter the bar.

Mr. Rooplall’s arrest

[179] Mr. Rooplall testified that he attended at 41 Division in September 2012, after the police advised his parents and his girlfriend that they wanted to talk to him. He called the police, who told him to come to the station. He was arrested upon his arrival, advised of the charges, given his rights to counsel, and told that it would be advisable to get a lawyer as the charges were serious. The police did not interview him. Mr. Rooplall decided to exercise his right to silence and did not volunteer that he was a mere eyewitness to these events.

[180] At his bail hearing later that morning, Mr. Rooplall heard the allegations against him, as well as the allegation that Mr. Aziz and Mr. Naipaul had “bottled” Mr. Ramjit. He was not surprised by the allegations as he was unaware of what Mr. Naipaul may have done inside the bar while he and Mr. Chung were outside smoking a cigarette.

Testimony of Police Constable Carmen Wong

[181] Scenes of Crime Officer Wong attended at the scene at 11:59 p.m. Mr. Ramjit was on the ground in front of the bakery and bleeding profusely. Other uniformed officers and paramedics were already present.

[182] Officer Wong spoke to people in the Millennium in an effort to locate witnesses. At 1:05 a.m., she began to process the scene, which included taking photographs both inside and outside the bar. She dusted for fingerprints a bottle of Smirnoff vodka that was on the bar counter, with negative results. She also photographed the following items:

i) a piece of a broken beer bottle that was in a pool of blood where Mr. Ramjit had been assaulted [Exhibits 3(h) and (i)];

ii) the neck of a broken beer bottle that was in the parking lot near the curb and a few feet north of where Mr. Ramjit was assaulted. Officer Wong took a DNA swab from this piece of glass and submitted it to the Centre of Forensic Sciences [Exhibits 3(a), (l), and (m)]. She was not aware of the results of any testing conducted on the glass.

iii) the baseball cap in the parking lot, which Mr. Ramjit identified as belonging to him, and which Mr. Rooplall picked up and threw under a car [Exhibits 3(a), (b), (d), and (e)];

iv) pieces of crushed glass in the parking lot, the location of which was marked by a police vest, as seen in Exhibits 3(a) and (j); and

v) a half circle of clear glass in the parking lot, the location of which was marked by a police vest, as seen in Exhibits 3(a) and (k). P.C. Wong testified that the glass appeared to be from the bottom of a bottle or drinking glass;

[183] Officer Wong attended at the hospital and photographed the injuries sustained by Mr. Ramjit [Exhibits 1(a), (b), (c), and (d).]

Testimony of Jaianand Naipaul

[184] Mr. Naipaul, age 41, had known Ms. Pitamber since they were teenagers. He described their relationship as acquaintances who saw each other at bars, cricket matches, and West Indian functions. He also saw her at the Seatown Restaurant, where she worked.

[185] Mr. Naipaul was aware that Ms. Pitamber had dated Mickey, the owner of the Seatown, and that they had had a falling out. He got along with Mickey. He had no problem or dispute with either him or Ms. Pitamber.

[186] Mr. Naipaul also knew Mr. Aziz, Mr. Fredericks, Mr. Rooplall and Mr. Subdan from attending the same bars and various functions over the years. He regarded all of them as acquaintances. He did not have a closer relationship with Mr. Rooplall than with any of the others.

[187] Mr. Naipaul observed that Mr. Aziz and Mr. Fredericks had a closer friendship with each other. He explained, “I see them hang out – wherever they go, the two of them [are] together.” When asked about Ms. Pitamber’s relationship with Mr. Aziz and Mr. Fredericks, Mr. Naipaul stated, “The three of them, all of them used to hang out. Like, they were all very close.”

[188] Mr. Naipaul spent the better part of September 16, 2012, at the cricket field. At around 3:00 p.m., he picked up food at the Seatown Restaurant for the players, and returned to the field. Following the match, at about 7:30 or 8:00 p.m., he and his girlfriend, Roxanne, drove in her car to Jack’s Sports Bar, where Mr. Naipaul consumed one beer. The entire team was at Jack’s. Mr. Aziz was drinking vodka or some other clear liquor from a glass, as was Mr. Fredericks. Mr. Naipaul testified that vodka was Mr. Aziz’s and Mr. Fredericks’ drink of choice.

[189] At some point, Mr. Naipaul and Roxanne left Jack’s and drove to the Millennium, arriving there around 10:00 p.m.

[190] Mr. Naipaul testified that at the Millennium, Mr. Aziz, Mr. Fredericks, Terry, Mr. Subdan, Royman, and “all of them” were drinking vodka at a table. He did not recall whether they were drinking from glasses or plastic cups. Mr. Naipaul and Roxanne danced and also spent some time at the group’s table. Mr. Naipaul was drinking beer out of a bottle. He estimated that he consumed four beers over the course of the entire evening. He does not drink vodka.

[191] Mr. Naipaul had never seen or noticed Mr. Ramjit prior to September 16, and did not know his name. He did not speak to Mr. Ramjit at the Millennium. He agreed with the Crown’s suggestion that Mr. Ramjit was not part of his social group. Although the surveillance footage shows Mr. Aziz coming over and chatting with Mr. Ramjit and Ms. Pitamber at the bar, Mr. Ramjit was pretty much on his own with Ms. Pitamber. He never came over to socialize with the people at Mr. Naipaul’s table.

[192] Mr. Naipaul testified that he did not see Mr. Aziz and Ms. Pitamber dancing together. Nor did he see the beer-splashing incident, as he was on the dance floor at the time. He did, however, see Mr. Aziz throw a glass at Mr. Ramjit just as Mr. Ramjit was leaving. Mr. Ramjit hesitated slightly and turned around before going out the door. Mr. Naipaul, like others in the bar, sort of “froze” or stopped to look and see what was happening. He did not hear Mr. Ramjit say anything.

[193] Mr. Naipaul saw Mr. Aziz grab two beer bottles from a table and head with some speed towards the exit. Mr. Naipaul perceived that Mr. Aziz’s actions “spelled trouble” – that is, he thought that Mr. Aziz was going to go after Mr. Ramjit and could potentially use the bottles as weapons against him. It was clear in Mr. Naipaul’s mind that Mr. Aziz did not take hold of the beer bottles with the intention of drinking beer from them. Mr. Naipaul put his own beer bottle on a table at that point and ran towards the door. He was the first person to exit the bar after Mr. Ramjit.

[194] The surveillance footage shows that just before he left the bar, Mr. Naipaul raised his right arm out towards Mr. Aziz. He testified that as they were going through the door, he told Mr. Aziz, “Wait” or “Hold on” and “Let me go talk to him [referring to Mr. Ramjit].” Mr. Aziz exited the bar right behind Mr. Naipaul. Mr. Fredericks, followed by Mr. Subdan, were the next two individuals out the door.

[195] Mr. Naipaul testified that he reacted the way he did because he did not want the situation to get out of hand and escalate into a fight, which was his concern when he saw Mr. Aziz pursuing Mr. Ramjit. He wanted to prevent any further violence.

[196] When asked why he did not simply tell Mr. Aziz to calm down and ask him what was going on, Mr. Naipaul stated that Mr. Aziz would not have listened if he had told him to stop. He never tried to stop Mr. Aziz. He decided to go outside, talk to Mr. Ramjit, and “find out what caused this whole problem.”

[197] Mr. Naipaul left the bar. Mr. Aziz, Mr. Fredericks, and Mr. Subdan followed him out. Mr. Naipaul agreed with the suggestion that he was “kind of marching” along. At one point, he looked over his shoulder and saw Mr. Aziz right behind him. Mr. Ramjit stopped and turned around, which allowed Mr. Naipaul and the others to catch up to him. Mr. Naipaul asked Mr. Ramjit, “Hey, what’s going on?” However, Mr. Ramjit had no chance to reply because a split second later, Mr. Aziz came right up in front of him, swung at Mr. Ramjit with a beer bottle, and hit him on the top of his head, near the forehead. The beer bottle broke. Mr. Ramjit appeared to be dazed and had “started to go down” when Mr. Fredericks struck him on the right side of his face with a drinking glass. The glass broke in Mr. Ramjit’s face. Mr. Ramjit grabbed his face and fell to his knees. He was bracing himself against the bakery’s store window or resting on a ledge below the window.

[198] The striking of Mr. Ramjit by Mr. Aziz and Mr. Fredericks was over in three seconds or, as Mr. Naipaul expressed it, “bang bang bang.”

[199] Mr. Naipaul testified that he had no physical contact with Mr. Ramjit, and that Mr. Ramjit has mistakenly identified him as the person who struck him in the face with the glass. He noted that at the time of the assault, he was wearing a tank top and not wearing any earrings or chains around his neck.

[200] Mr. Naipaul denied the suggestion that his motivation in going outside was to assist Mr. Aziz in whatever he planned to do to Mr. Ramjit. He stated that he had no reason to fight with Mr. Ramjit, whom he did not know, and that he would not have fought “somebody else’s battle.”

[201] Mr. Naipaul agreed that his question of Mr. Ramjit – “What’s going on?” – could be characterized as a confrontation. However, those were the only words that he spoke to Mr. Ramjit. He disagreed with the suggestion that he and Mr. Ramjit were arguing.

[202] Mr. Naipaul agreed with Mr. Rooplall’s testimony that his hands were out to his sides, with the palms up, at the time that he asked Mr. Ramjit what was going on. At no time did he block, corner or confine Mr. Ramjit, who was standing with his back to the glass window of the bakery. Mr. Ramjit was about 10 inches from the glass. Mr. Naipaul was standing about two to two-and-a-half feet away from him.

[203] Mr. Naipaul agreed that his actions in stopping Mr. Ramjit and speaking to him had the effect of facilitating the assault on Mr. Ramjit by Mr. Aziz and Mr. Fredericks, which took place a fraction of a second later.

[204] Mr. Naipaul testified that he saw that Mr. Fredericks had a glass in his hands prior to the assault. Although this concerned him, he did not know whether Mr. Fredericks would use it as a weapon against Mr. Ramjit, although that was a possibility. He did not realize that Mr. Fredericks was going to “smash it in [Mr. Ramjit’s] face.”

[205] Mr. Naipaul testified that no one kicked Mr. Ramjit after he was hit with the beer bottle and the glass. He agreed with the testimony of Mr. Rooplall in this regard.

[206] Mr. Naipaul also agreed that the surveillance footage establishes that he was the first person behind Mr. Ramjit as Mr. Ramjit walked out of the view of the camera, just before the assault. The assault took place off camera. After the assault, Mr. Naipaul was the last person to come back into the view of the camera, at which point he headed back to the Millennium. Thus, measured in seconds, Mr. Naipaul was the person who spent the most time in the area where Mr. Ramjit was located.

[207] Mr. Naipaul testified that he was shaken up by what had happened. He became light-headed and felt stunned when he saw all the blood. He thought that Mr. Ramjit could possibly die from the loss of blood, and wanted to help him. To that end, he asked Ms. Pitamber if she wanted him to call the police. He reached for his phone but then realized that he had given it to Roxanne earlier in the evening when they were in the bar. Counsel for Mr. Fredericks noted that Ms. Pitamber made no mention during her testimony of Mr. Naipaul offering to call the police, and counsel for Mr. Naipaul never asked her if Mr. Naipaul offered to call the police.

[208] Mr. Naipaul agreed that he did nothing to help Mr. Ramjit, but added that there were already people lending him assistance, including Ms. Pitamber and Mr. Chung. He also heard other people calling the police.

[209] Mr. Naipaul returned to the bar, where Roxanne told him, “The police are going to arrive here. Let’s go.” Mr. Naipaul denied leaving the scene to avoid the police. He testified that he left because he had to work the next day and Roxanne was his only ride home. He was living in Vaughan at the time. He did not wait for the police, despite the fact that, according to his version of events, he had just witnessed a serious crime and was in a position to tell the authorities who had committed it. He did not tell any of the bar’s employees that he had witnessed the assault, or leave his contact information with them.

[210] The surveillance footage shows that Mr. Naipaul re-entered the bar at 23:51:56, and left with Roxanne at 23:52:40, or 45 seconds later. He, Roxanne, Mr. Aziz, and Mr. Fredericks then got into Roxanne’s car, and she drove away.

[211] Mr. Naipaul testified that Mr. Aziz and Mr. Fredericks asked Roxanne for a ride to the Sweet Spot Bar, which was just up the street. She dropped them off there, and then drove home.

[212] Mr. Naipaul denied that he facilitated Mr. Aziz and Mr. Fredericks in fleeing the scene, as it was Roxanne’s car and she was driving it. He was not in a position to tell her not to give them a ride. Roxanne was a closer friend to Mr. Aziz and Mr. Fredericks than he was.

[213] Mr. Naipaul testified that Mr. Aziz and Mr. Fredericks had arrived at the Millennium earlier that night with Terry, who had nothing to do with the assault and who remained at the bar following the assault.

[214] Mr. Naipaul denied the suggestion that the reason he failed to help Mr. Ramjit and failed to remain at the scene was because he was one of the perpetrators of the assault.

[215] Mr. Naipaul was not charged with these offences until three months after the incident. When asked why he did not contact the police during that three-month interval, he stated that “It was nothing concerning me” and “I didn’t even touch the guy.” The fact that he witnessed the assault did not mean that he had anything to do with it: “I was trying to defuse this whole thing, the whole situation. I was trying to bring peace.”

[216] Mr. Naipaul never confronted Mr. Fredericks during that three-month period about his having assaulted Mr. Ramjit. Nor did he ever go to the police or contact the Crown after he was charged with these offences to advise them that he was merely a witness to the assault.

ANALYSIS AND FINDINGS

Social Relations of the Millennium Patrons

[217] The evidence is clear that the three accused – Mr. Aziz, Mr. Fredericks, and Mr. Naipaul – as well as Mr. Rooplall, Mr. Chung, and Mr. Subdan, were all acquaintances and on good terms with each other at the time of this incident. The surveillance footage of their activities in the bar that night supports this finding. They were all drinking and socializing at the same table, and appeared to be having a good time. There is no indication of any animus between any of these parties.

[218] There is also no evidence of any special allegiances amongst them, although Mr. Naipaul observed that Mr. Aziz and Mr. Fredericks appeared to have a closer friendship. Mr. Naipaul also described Ms. Pitamber as being close to Mr. Aziz and Mr. Fredericks – “The three of them, all of them used to hang out. Like they were all very close.” Ms. Pitamber testified that she saw Mr. Aziz more frequently than the others, and regarded him as a good friend.

[219] Mr. Rooplall was cross-examined fairly vigorously by counsel for Mr. Fredericks with a view to showing that he had a closer friendship with Mr. Naipaul than with the others. It was alleged that this was his motivation in naming Mr. Fredericks, as opposed to Mr. Naipaul, as the second assailant. Mr. Rooplall denied that he had a closer friendship with Mr. Naipaul than with the other two accused. Similarly, Mr. Naipaul testified that his relationship with Mr. Rooplall was the same as with the others. In the end, I find that the evidence does not support the finding that Mr. Rooplall was any closer to Mr. Naipaul than to the other two accused.

[220] It is apparent from the surveillance footage that Mr. Ramjit was an outsider, and not part of Mr. Aziz, Mr. Fredericks and Mr. Naipaul’s group of acquaintances, although there is also no indication that anyone from that group bore a grudge against him. Mr. Ramjit and Ms. Pitamber were, for the most part, on their own at the bar. Mr. Ramjit had a friendly interaction with Mr. Aziz for about five minutes, when Mr. Aziz joined him and Ms. Pitamber. However, Mr. Ramjit never approached the table where Mr. Aziz and the others were socializing. After dancing briefly with Ms. Pitamber, he returned to the bar and was on his own, while Ms. Pitamber remained where she was, interacting with Mr. Aziz and the others.

Findings regarding Mr. Aziz

Circumstantial Evidence

[221] While Ms. Pitamber and Mr. Aziz were dancing, Mr. Ramjit stayed at the bar and kept an eye on them. He ordered two more beers. He became increasing upset about the way they were dancing. At 23:50:25, he stepped forward, splashed the beer on them, placed the two bottles on the counter, and headed towards the exit. He walked out the inner door of the bar at 23:50:41, unaware that Mr. Aziz had thrown a glass at him. He was also initially unaware that Mr. Naipaul, Mr. Aziz and Mr. Fredericks had followed him out the door. The surveillance footage shows Mr. Ramjit walking along the sidewalk in an unhurried and unconcerned manner. There was nothing about his gait that indicates that he was intoxicated, although it is clear from the toxicologist’s report that he had consumed a substantial amount of alcohol over the course of the late afternoon and evening – more than he acknowledged during his testimony.

[222] Mr. Aziz’s reaction after Mr. Ramjit spilled beer on him was immediate and angry. The surveillance footage shows that he stopped, looked in Mr. Ramjit’s direction and, at 23:50:32, threw a glass at him. This was a mere eight seconds after the beer was spilled.

[223] Mr. Naipaul did not see the beer-spilling incident. However, he did see Mr. Aziz throw the glass. He also saw him pick up two beer bottles from a table and head with some speed towards the exit. Mr. Naipaul testified that Mr. Aziz had been drinking vodka or some other clear liquid from a glass at the Millennium, and that vodka was Mr. Aziz’s drink of choice. Ms. Pitamber observed Mr. Aziz drinking vodka at both Jack’s and the Millennium that night. It may be inferred that Mr. Aziz did not pick up the beer bottles with the intention of drinking beer from them.

[224] Mr. Naipaul’s evidence that Mr. Aziz picked up two beer bottles before leaving the bar is confirmed by the surveillance footage on Camera #6. Mr. Aziz is clearly shown holding a beer bottle in each hand after exiting the bar at 23:50:47, or six seconds after Mr. Ramjit went out the door.

[225] Mr. Aziz was the only person to approach the scene of the assault while carrying beer bottles. Mr. Naipaul, who followed Mr. Ramjit out the door at 23:50:45, did not have anything in his hands. He had put down his beer bottle before leaving the bar. Mr. Fredericks was carrying a glass in his right hand. Mr. Chung and Mr. Subdan, who were outside at the time of the beer-spilling incident, were empty-handed. The only thing in Mr. Rooplall’s hand was a cigarette.

[226] The convenience store surveillance footage shows that no one approached Mr. Ramjit from the other direction, that is, from the Kitty Campbellville, at the relevant time. This is in accord with the evidence of Mr. Ramjit, who testified that no one was in front of him as he was walking along the sidewalk.

[227] Mr. Aziz went off-screen or out of the view of camera #6 at 23:50:55. When he re-appeared 47 seconds later, at 23:51:42, he was carrying only one beer bottle. There was what appears to be a piece of glass from a beer bottle in the pool of blood on the sidewalk where Mr. Ramjit was assaulted. The neck of a broken beer bottle was found a few metres from where the assault took place. (See exhibit 3(l)).

[228] As Mr. Aziz was approaching the entrance to the bar after Mr. Ramjit had been injured, he switched the remaining beer bottle from his right to his left hand. He did not go directly into the bar but stopped and briefly shook his right hand (as seen on camera #5 at 23:51:53). He then turned to his left, leaned slightly towards the parking lot, and appeared to pour beer from the bottle over his right hand (as seen on camera #6 at 23:51:56).

[229] Mr. Aziz re-entered the bar at 23:52:10, but exited a few seconds later, at 23:52:38, along with Mr. Fredericks, Roxanne, Mr. Naipaul, and Mr. Subdan. With the exception of Mr. Subdan, they all got into Roxanne’s vehicle and drove off.

[230] Mr. Naipaul testified that Mr. Aziz and Mr. Fredericks had gotten a ride to the Millennium that night with their friend Terry. However, upon leaving the bar, they asked Roxanne for a ride and she obliged.

[231] There is no evidence to suggest that Mr. Aziz left the scene so quickly because of some urgent matter that he had to attend to or some appointment he had to keep. There is no evidence that there were any warrants for his arrest, which could explain why a person might flee a crime scene prior to the arrival of the police. Mr. Naipaul testified that Roxanne dropped off Mr. Aziz and Mr. Fredericks at another bar down the street.

[232] In summary, Mr. Aziz had a motive to commit the assault. He was extremely angry with Mr. Ramjit for having spilled beer on him. He reacted almost immediately by throwing a glass at him, but missed. He then immediately armed himself with two beer bottles and followed Mr. Ramjit out the door. Mr. Aziz was off-camera for 47 seconds. When he re-appeared, he had only one beer bottle. There is a strong inference that the neck of a beer bottle near the scene and the piece of glass from a beer bottle found in the pool of blood on the sidewalk were the remains of the second bottle that Mr. Aziz had been holding. The shaking of his right hand just prior to re-entering the bar is consistent with his having injured it or possibly shaking off shards of glass. Mr. Aziz’s flight from the scene is another piece of circumstantial evidence consistent with his having assaulted Mr. Ramjit with the beer bottle.

[233] In addition to the circumstantial evidence pointing to Mr. Aziz as the first assailant, there were three witnesses who identified him as such – Mr. Ramjit, Mr. Rooplall, and Mr. Naipaul.

Evidence of Mr. Ramjit

[234] Mr. Ramjit’s identification of Mr. Aziz must be considered with some care, given the amount of alcohol he had consumed. Counsel for Mr. Aziz also submits that Mr. Ramjit bore some malice towards Mr. Aziz as he took exception to his dancing with Ms. Pitamber. I also note, however, that according to Mr. Ramjit, he immediately felt contrite about spilling the beer and realized that he was “very wrong” to have done so. He testified that that is why he left the bar, and then apologized to Mr. Aziz when he saw him outside.

[235] In terms of Mr. Ramjit’s identification of Mr. Aziz, I note that he had seen Mr. Aziz at both the Seatown and Millennium on one or two occasions prior to September 16. He knew who Mr. Aziz was. Ms. Pitamber had introduced him to Mr. Ramjit as “Georgie”, and described him as a good friend.

[236] Mr. Ramjit saw Mr. Aziz at Jack’s Sports Bar on the day of this incident. When Mr. Ramjit and Ms. Pitamber arrived later that night at the Millennium, Mr. Ramjit noticed that Mr. Aziz and Mr. Naipaul were already there. At 11:34 p.m., as Mr. Aziz was walking by the bar, Mr. Ramjit extended out his arm, and Mr. Aziz stopped to chat. Mr. Aziz, Mr. Ramjit, and Ms. Pitamber engaged in what appeared to be a friendly conversation for about five minutes, or until 11:39 p.m. During this interaction, Mr. Ramjit obviously had the opportunity to observe Mr. Aziz. He was also watching Mr. Aziz and Ms. Pitamber as they danced. He splashed beer on them at 23:50:25. He was assaulted outside the bar shortly thereafter. Sometime after 12:10 a.m., while en route to the hospital, Mr. Ramjit named “Georgie” as his assailant.

[237] The surveillance footage from Camera #6 indicates that Mr. Ramjit was assaulted within about a minute of his leaving the bar. The assault took place on the sidewalk in front of the bakery and only a few meters out of the view of the camera.

[238] Mr. Ramjit exited the bar at 23:50:42, and was followed immediately by Mr. Naipaul, Mr. Aziz and Mr. Fredericks, who exited at 23:50:45, 23:50:47, and 23:50:48, respectively. At 23:50:48, Mr. Aziz, while holding the two beer bottles, looked briefly over his right shoulder as he pursued Mr. Ramjit.

[239] Mr. Ramjit went out of the view of the camera at 23:50:51. Mr. Naipaul, Mr. Aziz, and Mr. Fredericks went off-screen seconds later, at 23:50:52, 23:50:55, and 23:50:57, respectively. Mr. Chung and Mr. Subdan went off-screen at 23:50:59 and 23:51:01, respectively. Mr. Subdan re-appeared at 23:51:09. Mr. Fredericks was back on-screen at 23:51:09, but disappeared from the camera’s view again when he entered the parking lot. Mr. Rooplall remained on-screen near a pillar, and was smoking a cigarette. He was only off-screen from 23:51:15 to 23:51:19. During this four-second interval, he picked up Mr. Ramjit’s hat and, according to the Crown’s allegation, kicked Mr. Ramjit, who was already on the ground by that time. Mr. Aziz came back on-screen at 23:51:42 as he made his way back to the bar.

[240] Mr. Ramjit testified that he turned around after hearing a commotion or people walking behind him. When he turned, Mr. Aziz was right in front of him or “right in my face.” Mr. Aziz was holding two beer bottles – one in each hand. Mr. Naipaul was beside Mr. Aziz and to Mr. Ramjit’s right. Mr. Ramjit testified that he uttered a few words of apology to Mr. Aziz, who then hit him over the head with one of the bottles. Mr. Ramjit identified Mr. Naipaul as the person who, almost simultaneously, hit him on the right side of his face with a bottle.

[241] It is apparent from Mr. Ramjit’s testimony that his alcohol consumption, the serious nature of his wounds, and the trauma he experienced, has affected his memory of some of the events that night. However, Mr. Ramjit’s evidence with respect to the positioning of Mr. Aziz and Mr. Naipaul is supported by the surveillance footage in the sense that they were the first two people out the door after Mr. Ramjit left the bar, and the two people closest to him as he went off-screen. It makes sense that they were the first two people to catch up to him after he stopped and turned around.

[242] Mr. Ramjit’s evidence that Mr. Aziz and Mr. Naipaul were “right there” as he turned around is also supported by Mr. Rooplall’s and Mr. Naipaul’s evidence. According to their testimony, Mr. Naipaul had a brief verbal confrontation with Mr. Ramjit before Mr. Aziz hit Mr. Ramjit over the head with the bottle.

[243] Counsel for Mr. Aziz pointed out that Mr. Ramjit’s description of “Georgie”, as recorded by Officer Soffe in his notebook at the hospital, is inconsistent with Mr. Aziz’s appearance in several respects. Mr. Ramjit described Mr. Aziz as “Indian, fat face, wears a lot of gold around his neck and fingers. A little shorter than me, has a little belly, mid-twenties, sleeveless shirt.” Mr. Warren noted that Mr. Aziz was not in his mid-twenties. According to his date of birth on the indictment, Mr. Aziz was 48 years old at the time. He was wearing a short-sleeved as opposed to a sleeveless shirt. He did not have any gold jewellry around his neck or on his fingers.

[244] Crown counsel pointed out that Mr. Ramjit did not adopt this statement in his evidence. Mr. Ramjit could not recall what he told the officer. There is no evidence that Officer Soffe read the statement back to Mr. Ramjit, or asked him to sign his notebook. In any event, given the circumstances, and particularly Mr. Ramjit’s condition at the time that he made the statement, I do not give much weight to the inconsistencies between Mr. Ramjit’s description of Mr. Aziz, as noted in the officer’s memo book, and Mr. Aziz’s actual appearance that night.

[245] Officer Soffe testified that he cut the interview short, in part because Mr. Ramjit was having trouble speaking as a result of his injuries. He spoke slowly and appeared to be drowsy. He was lying on a stretcher at the time, and nurses and doctors were coming and going. Officer Soffe also noted that Mr. Ramjit had been drinking. The alcohol analysis conducted at the hospital indicates a reading of 186 milligrams of alcohol per 100 millilitres of blood.

[246] Mr. Ramjit testified that at the time that he spoke to the officer, his face was “busted.” He could not open his right eye, and he was in a lot of pain. He thought that he was going to die. The photographs taken at the scene show that Mr. Ramjit lost a lot of blood. He was obviously seriously injured and traumatized by the assault. The conditions at the hospital for taking a statement were far from ideal. In these circumstances, the discrepancies in Mr. Ramjit’s description of Mr. Aziz – an individual whom Mr. Ramjit knew and identified by name – are not, in my view, significant and ought not to be afforded much weight.

[247] For similar reasons, I do not give much weight to the inconsistencies between Mr. Ramjit’s description of the second assailant, as noted in Officer Soffe’s memo book – and whom Mr. Ramjit later identified as Mr. Naipaul – and Mr. Naipaul’s actual appearance that night.

[248] According to Officer Soffe’s notes, Mr. Ramjit described the second assailant as follows:

Next guy has a chain around his neck with a cross, Indian, short black hair, same height as Georgie, hoop earring in both ears, late 20’s early 30’s, medium build.

[249] The surveillance footage shows that Mr. Naipaul was not wearing a chain around his neck. Nor was he wearing any earrings. In fact, none of the accused or the people who were following Mr. Ramjit appear to have been wearing the jewellry described by him.

[250] Mr. Ramjit identified Mr. Naipaul as the person standing beside Mr. Aziz when he first turned around. He also identified Mr. Naipaul as the person who hit him in the face just after Mr. Aziz hit him with the beer bottle.

[251] I find that Mr. Ramjit correctly identified Mr. Naipaul as the person who was standing beside Mr. Aziz when he turned around. Mr. Naipaul confirmed in his own testimony that he was, in fact, there. Mr. Rooplall’s evidence was to a similar effect. Mr. Naipaul testified that he confronted Mr. Ramjit, asking him “What’s going on?” just prior to Mr. Aziz striking Mr. Ramjit over the head with the bottle.

[252] Although Mr. Ramjit correctly identified the first two people he found facing him when he turned around – that is, Mr. Aziz and Mr. Naipaul – I find that he has mistakenly identified Mr. Naipaul as the person who levelled the second blow.

[253] Mr. Ramjit based his identification of Mr. Naipaul as the second assailant, in part, on his mistaken recollection that Mr. Naipaul, like Mr. Aziz, was holding two beer bottles – one in each hand. In fact, at the first trial, Mr. Ramjit’s recollection was that everyone was holding beer bottles: he testified that after he left the bar, he saw “five or six guys running out with bottles in their hands.” In actual fact, no one other than Mr. Aziz was holding any bottles. The surveillance footage shows that Mr. Naipaul put down his beer bottle before he left the bar. When he exited, he had nothing in his hands. Of the people pursuing Mr. Ramjit, the only ones who were carrying anything were Mr. Aziz, who had two bottles, and Mr. Fredericks, who was carrying a glass.

[254] In my view, there is a logical and common sense explanation for Mr. Ramjit’s mistaken identification of Mr. Naipaul as the second assailant. Mr. Ramjit testified that after Mr. Aziz hit him with the bottle, blood immediately started to stream down his face. In addition to his vision being impaired by the blood, Mr. Ramjit was no doubt stunned by the blow. It happened fast, and the force used was obviously not trivial, as the bottle broke over his head. Almost immediately thereafter, he was hit forcefully in the face, which caused severe lacerations, not only to his cheek but also under his right eye. He fell to the ground at that point and was being kicked. He was unable to see his assailants or who was kicking him. He instinctively put his hands up to his face and head, as blood was “gushing all over.”

[255] Mr. Rooplall’s description of Mr. Ramjit’s reaction to the first blow was in accord with that of Mr. Ramjit. He testified that Mr. Ramjit immediately put his hands up to his face and was on his way down when he was hit in the face with a glass. Mr. Rooplall identified Mr. Fredericks as the second assailant.

[256] Under the circumstances, it is not surprising that Mr. Ramjit was confused as to who administered that second blow. He told Officer Soffe that he “could not make out the face of the other guy”, which makes sense and is understandable, given the impact of the first blow to his head. However, by the time Mr. Ramjit spoke to Det. Cecile six days later, he had come to believe that the second assailant was Mr. Naipaul, no doubt based on the fact that Mr. Naipaul was standing right beside Mr. Aziz and was in a position to hit Mr. Ramjit had he so chosen. Mr. Ramjit was also under the mistaken belief that Mr. Naipaul was holding two beer bottles. However, as already stated, Mr. Naipaul clearly did not have any bottles or anything else in his hands. In addition, if Mr. Naipaul had intended to assault Mr. Ramjit with a bottle or glass, it would not make any sense that he would have “disarmed” himself of his beer bottle before leaving the bar.

Evidence of Mr. Rooplall

[257] Mr. Ramjit’s identification of Mr. Aziz as the person who hit him with the beer bottle was supported by the evidence of Mr. Rooplall and Mr. Naipaul.

[258] I agree with counsel for Mr. Aziz and Mr. Fredericks that Mr. Rooplall’s evidence must be approached with great caution and that a Vetrovec warning is appropriate.

[259] In assessing the credibility and reliability of Mr. Rooplall’s evidence, I take into account Det. Cecile’s testimony that Mr. Rooplall went to considerable lengths to avoid being served with a subpoena to attend in court and give evidence at this trial. Mr. Rooplall was also aware of the material witness warrant issued for his arrest. He knew that he was required to come to court, but refused to do so, and has gone into hiding to avoid testifying.

[260] Mr. Rooplall’s failure to attend in court resulted in his evidence being adduced by the filing of the transcript of his testimony at the first trial. The court, therefore, did not have the benefit of observing Mr. Rooplall on the witness stand. He was, however, cross-examined quite extensively at the first trial by the three lawyers acting for the co-accused, as well as by Crown counsel.

[261] Mr. Rooplall’s criminal record consists of one conviction in 2014, when he pleaded guilty to failing to comply with the term of his bail that he not be within 500 metres of the Millennium.

[262] Mr. Rooplall’s denial at the first trial that he was smoking marijuana outside the bar prior to the assault was problematic, given the surveillance footage of him, along with four or five other people, sharing a cigarette while standing near the entrance to the bar.

[263] In assessing Mr. Rooplall’s testimony, I also take into account that he was co-accused with Mr. Aziz, Mr. Fredericks, and Mr. Naipaul, although it was never alleged that he was one of the parties who struck Mr. Ramjit with a bottle or glass. The allegation against Mr. Rooplall was always limited to kicking Mr. Ramjit after he was injured and on the ground.

[264] Mr. Rooplall denied that he or anyone else kicked Mr. Ramjit. Mr. Rooplall’s evidence in this regard was not credible and I categorically reject it.

[265] The evidence that Mr. Ramjit was kicked is overwhelming: Mr. Ramjit testified that he was kicked; Ms. Pitamber saw him being kicked; and the surveillance footage from the convenience store confirms that he was kicked at least once. In addition, Ms. Pitamber specifically identified Mr. Rooplall as one of the kickers. She was bending down to assist Mr. Ramjit at the time, and thus was well-positioned to make this observation. Mr. Rooplall’s own testimony places him in close proximity to Mr. Ramjit: he acknowledged that the hat that he picked up during the four seconds that he was out of view of the camera was near where Mr. Ramjit was lying on the ground.

[266] Mr. Rooplall’s explanations for picking up the hat did not make any sense. His testimony that “it wasn’t anybody’s hat that I knew” was not credible. There can be no doubt that Mr. Rooplall knew full well that the hat belonged to Mr. Ramjit. His act of throwing it under a parked vehicle was intended to add insult to injury to Mr. Ramjit, who lay bleeding on the ground.

[267] Although Mr. Rooplall testified that he had done nothing wrong, he left the scene prior to the arrival of the police and without advising anyone, such as the bar personnel, that he had witnessed the assault. Mr. Rooplall testified that he left the scene because he panicked and did not “want any trouble or any part of it.”

[268] There is no question that Mr. Rooplall’s evidence was self-serving and an attempt to minimize his own culpability; hence, his denial that he was smoking marijuana, his assertion that he had never smoked marijuana in his life, his testimony that he did not kick Mr. Ramjit, and that no one else kicked him, his insistence that he picked up the hat without knowing that it belonged to Mr. Ramjit, and that he threw the hat under the parked car on a whim.

[269] Counsel for Mr. Aziz and Mr. Fredericks submit that Mr. Rooplall’s naming of Mr. Aziz and Mr. Fredericks as the two assailants was an effort on his part to deflect his own involvement in the assault or, as Mr. Warren put it, “a desperate attempt to place the blame on others.” As noted earlier, however, it was never alleged that Mr. Rooplall assaulted Mr. Ramjit with a beer bottle or hit him in the face with a glass. The allegation against Mr. Rooplall was limited to kicking Mr. Ramjit after he was on the ground. As Crown counsel observed, Mr. Rooplall could have denied that allegation, as he, in fact, did during his testimony, without naming his two buddies as the perpetrators of the more serious assaults. He could have simply stated that he did not know or did not see who struck Mr. Ramjit with the beer bottle and the glass.

[270] In other words, this was not a situation where Mr. Rooplall had a strong motive to lie about the identity of the two assailants and maximize their involvement in order to minimize his own culpability. The allegations against Mr. Aziz and Mr. Fredericks were separate and distinct from the allegations against Mr. Rooplall. In addition, there is no evidence of animus on the part of Mr. Rooplall towards either Mr. Aziz or Mr. Fredericks. To the contrary, Mr. Rooplall was on friendly terms with both men, whom he had known for three or four years and saw on a regular basis. That said, I recognize that when a co-accused is facing a jail term, he or she may do what they deem necessary in order to salvage their freedom, such as falsely naming former friends as playing a particular role or roles in a crime. There is no question that Mr. Rooplall’s testimony must be examined very carefully.

[271] In my view, there is no basis upon which to conclude that Mr. Rooplall had a closer relationship with Mr. Naipaul than he had with Mr. Aziz or Mr. Fredericks.

[272] The surveillance footage tends to support Mr. Rooplall’s identification of Mr. Aziz as the person who hit Mr. Ramjit with the beer bottle, including the footage showing Mr. Aziz’s angry reaction to having beer spilled on him; his throwing of the glass at Mr. Ramjit; his arming himself with two beer bottles; the fact that none of the other people following Mr. Ramjit were carrying beer bottles; the fact that pieces of a broken beer bottle were found in the area where the assault took place; the fact that Mr. Aziz walked away from the scene of the assault with only one beer bottle; and the fact that he was seen shaking his right hand before re-entering the bar.

Evidence of Mr. Naipaul

[273] Mr. Naipaul also identified Mr. Aziz as the person who hit Mr. Ramjit with the beer bottle. Again, I agree with counsel for Mr. Aziz and Mr. Fredericks that Mr. Naipaul’s evidence, like that of Mr. Rooplall, must be approached with caution.

[274] Mr. Naipaul is co-accused with Mr. Aziz and Mr. Fredericks, although it is not alleged that he actually inflicted the injuries to Mr. Ramjit. The Crown alleges that Mr. Naipaul stopped and confronted Mr. Ramjit on the sidewalk with the intention of facilitating the assault by Mr. Aziz. Mr. Naipaul more or less admitted during his testimony that his confrontation with Mr. Ramjit had the effect of facilitating the assault, but denied that that was his intention.

[275] Counsel for Mr. Aziz and Mr. Fredericks pointed out various aspects of Mr. Naipaul’s testimony that they say raise concerns about his credibility. For example, they question why, if Mr. Naipaul just wanted to play the role of a peace maker, he did not try to stop Mr. Aziz from leaving the bar and find out from him what the problem was, rather than questioning Mr. Ramjit, whom he did not know. Mr. Naipaul did not offer to help to Mr. Ramjit after he was injured, and left the scene with Mr. Aziz and Mr. Fredericks prior to the arrival of the police. He also never contacted the police during the three-month period between the time when the assault was committed and the day that he was arrested and charged.

[276] Mr. Naipaul’s testimony that Mr. Ramjit was never kicked is problematic, as it seems that he most likely witnessed the kicking. In coming to this conclusion, I rely on the surveillance footage. Mr. Naipaul was in the area where the assault took place from 23:50:52, when he went off-screen, until 23:51:47, when he came back on-screen and is seen heading back to the bar. At 23:51:04, Ms. Pitamber went off-screen as she approached Mr. Ramjit. According to her evidence, Mr. Rooplall kicked Mr. Ramjit as she was bending over to assist him. According to the surveillance footage, this event took place during the four-second interval in which Mr. Rooplall is off-screen – that is, from 23:51:15 to 23:51:19. Mr. Naipaul was still in the immediate vicinity and, as stated, would most likely have witnessed that kicking.

[277] Counsel for Mr. Aziz and Mr. Fredericks submit that the fact that both Mr. Rooplall and Mr. Naipaul both denied that Mr. Ramjit was kicked shows that they are “in league.” They point out that Mr. Naipaul had the opportunity to hear Mr. Rooplall’s evidence at the first trial, and was therefore in a position to tailor his own evidence to accord with that of Mr. Rooplall. In these circumstances, Mr. Rooplall’s evidence ought not to be considered as corroborative of Mr. Naipaul’s evidence, and vice versa.

[278] In my view, even if Mr. Naipaul’s evidence is not considered as supportive of Mr. Rooplall’s evidence and vice versa, the fact remains that the surveillance footage supports the evidence of both witnesses in terms of their assertion that Mr. Aziz struck Mr. Ramjit over the head with a beer bottle. Again, I refer to the footage showing Mr. Aziz’s angry reaction to having beer spilled on him; his throwing of the glass at Mr. Ramjit; his arming himself with two beer bottles; the fact that none of the other people following Mr. Ramjit were carrying beer bottles; the fact that pieces of a broken beer bottle were found in the area and in a pool of blood where the assault took place; and the fact that Mr. Aziz walked away from the scene of the assault with only one beer bottle and was seen shaking his right hand before re-entering the bar.

Evidence of Ms. Pitamber

[279] Counsel for Mr. Aziz submitted that the times at which Mr. Ramjit, Mr. Naipaul, Mr. Aziz, and Ms. Pitamber exited the bar, coupled with Ms. Pitamber’s testimony that by the time she got outside, Mr. Ramjit was already on the ground, support his position that Mr. Aziz could not have committed the assault.

[280] In brief, Mr. Warren submits that in order for Mr. Aziz to have committed the assault between the time that he exited the bar, and the time that Ms. Pitamber exited – an interval that he estimated as being six seconds – Mr. Aziz would have had to have caught up to Mr. Ramjit, listened to Mr. Ramjit’s five-second apology, and then hit him with the bottle. Mr. Warren submits that all of this could not have taken place in six seconds. Hence, if Mr. Aziz was the perpetrator, Ms. Pitamber would have seen him committing the offence when she exited the bar. However, according to Ms. Pitamber’s testimony, Mr. Ramjit was already on the ground by that time. Ms. Pitamber did not even recall seeing Mr. Aziz outside, although she acknowledged having seen him leave the bar.

[281] In terms of the time that was required for Mr. Aziz to catch up to Mr. Ramjit, Mr. Warren submitted that the surveillance footage shows Mr. Ramjit leaving the bar at 23:50:34, followed by Mr. Naipaul at 23:50:44 or 23:50:45, and Mr. Aziz at 23:50:46 or 23:50:47. However, based on my review of the footage, Mr. Ramjit actually exited at 23:50:43. Thus, Mr. Ramjit’s “head start” over Mr. Aziz in terms of leaving the bar amounted to only three or four seconds, as opposed to 12 or 13 seconds.

[282] The exact distance between Mr. Ramjit and Mr. Aziz can be seen on the surveillance footage at 23:50:50. Mr. Aziz appears to be only about 10 feet behind Mr. Ramjit. Mr. Naipaul is only a couple of feet behind Mr. Ramjit. Catching up to Mr. Ramjit, who was not walking quickly, would have taken only a second.

[283] I also note that the surveillance footage shows that Ms. Pitamber exited the bar eight or ten seconds after Mr. Aziz exited, as opposed to the six seconds suggested by defence counsel. Ms. Pitamber is seen coming out at 23:50:55, but is not fully out the door until 23:50:56 or 57, when she began walking towards the scene of the assault, which was 20 or 30 feet away.

[284] In addition to the time that it would have taken for Mr. Aziz to catch up to Mr. Ramjit, which I find was minimal, and the time interval between Mr. Aziz’s exit and that of Ms. Pitamber, which was eight to ten seconds, this submission by the defence depends on the credibility and reliability of Ms. Pitamber’s evidence that by the time she stepped outside, Mr. Ramjit was already on the ground.

[285] In terms of her credibility, I note that Ms. Pitamber had known Mr. Aziz for eight years and considered him a good friend. Had she witnessed him assaulting Mr. Ramjit, she may well have been reluctant to implicate him – hence her testimony that the assault was already over by the time she got outside. I recognize that Ms. Pitamber was prepared to implicate Mr. Rooplall in the kicking of Mr. Ramjit, but her relationship with Mr. Rooplall was not as close as the relationship she had with Mr. Aziz. Mr. Rooplall was a mere acquaintance as opposed to a good friend.

[286] I also found Ms. Pitamber’s testimony that she never saw Mr. Aziz outside the bar to be somewhat problematic, and perhaps an attempt on her part to distance him from the attack on Mr. Ramjit. The surveillance footage suggests that she would have seen him, at the very least, after the attack and as she was attending to Mr. Ramjit, which was from 23:51:04 until 23:52:21. That is the period of time in which she is off-screen. Mr. Aziz was off-screen from 23:50:54 until 23:51:42. When he re-emerged on-screen, he was walking north on the sidewalk, or coming from the direction where the assault had taken place and where both Ms. Pitamber and Mr. Ramjit were situated at that time.

[287] In any event, assuming that Ms. Pitamber’s honest and best recollection is that Mr. Ramjit was already on the ground when she exited the bar, the question arises as to how soon after her exit she actually made this observation. I note that as she exited, there would have been six people between her and Mr. Ramjit – namely, Mr. Naipaul, Mr. Aziz, Mr. Fredericks, Mr. Chung, Mr. Rooplall, and Mr. Subdan – who could have obstructed her view or momentarily distracted her focus. In addition, if Ms. Pitamber took a few steps along the sidewalk, or even took a few seconds to focus on the scene, she could have missed the assault, which only took a second or two and after which, Mr. Ramjit immediately fell to the ground.

[288] During her evidence-in-chief, Ms. Pitamber was shown the surveillance footage at 23:50:57, which is the point where she had just exited the bar and was fully out the door. Mr. Chung, Mr. Subdan, and Mr. Rooplall are still on-screen and ahead of her on the sidewalk. When asked what she recalled seeing at that time, she testified that Mr. Ramjit was on the ground and was being kicked by more than one person. Ms. Pitamber may sincerely believe that she made this observation at that exact time. However, common sense dictates that it is unlikely she would be able to recall her exact location on the sidewalk when she saw what must have been a very disturbing and upsetting event. Her focus at the time would quite naturally have been on Mr. Ramjit, as opposed to how many metres she was from the bar’s door when she first saw him on the ground and being kicked. In fact, Ms. Pitamber’s initial unhurried gait after she first emerged from the bar suggests that she did not immediately see anything untoward. Again, I note that there were six people between her and Mr. Ramjit and that her view may have initially been obstructed by one or more of them. However, a few seconds later, at 23:51:00, and after Ms. Pitamber had taken five or six steps, she quickened her pace somewhat, and appeared to be saying something as she continued walking. This is consistent with her testimony that when she saw people kicking Mr. Ramjit, she told them “Stop. What are you guys doing?” This suggests that she did not observe Mr. Ramjit on the ground and being kicked immediately upon exiting the bar.

[289] In summary, the evidence indicates that the time required for Mr. Aziz to catch up to Mr. Ramjit was minimal. After Mr. Aziz left the bar, there was slightly more than the six-second interval suggested by the defence before Ms. Pitamber exited. Finally, it cannot be concluded with any certainty that Ms. Pitamber’s observation of Mr. Ramjit on the ground and being kicked was made immediately upon her stepping outside. In fact, it appears more likely that she made that observation a few seconds later and after she had taken a few steps along the sidewalk.

[290] Having carefully considered this part of Ms. Pitamber’s testimony in the context of all of the evidence, I do not find that it raises a reasonable doubt with respect to Mr. Aziz’s participation in the assault on Mr. Ramjit.

Conclusion regarding Mr. Aziz

[291] I am satisfied beyond a reasonable doubt that Mr. Aziz struck Mr. Ramjit over the head with a beer bottle, thereby causing the injuries as seen in the photographs taken by Officer Wong, and as described by Mr. Ramjit and Officer Soffe in their testimony. In arriving at this conclusion, I have relied on the following:

• The fact that Mr. Aziz had a motive to commit the assault. He was extremely angry with Mr. Ramjit for having spilled beer on him.
• Mr. Aziz’s assaultive behaviour towards Mr. Ramjit while in the bar – that is, his throwing of the glass at Mr. Ramjit as Mr. Ramjit was leaving
• The fact that Mr. Aziz armed himself with two beer bottles before exiting the bar
• Mr. Aziz’s speedy pursuit of Mr. Ramjit out the door and along the sidewalk while holding the two bottles
• The fact that none of the other people following Mr. Ramjit was holding a beer bottle
• The presence of broken beer-bottle glass in the pool of blood on the sidewalk, and the broken neck of a beer bottle near the area where Mr. Ramjit was attacked
• The fact that when Mr. Aziz walked away from the scene of the assault, he was holding only one beer bottle
• The shaking by Mr. Aziz of his right hand before he re-entered the bar, which is consistent with his having injured it or shaking off shards of glass
• Mr. Aziz’s flight from the scene

[292] In addition, there was the testimony of Mr. Ramjit, who identified Mr. Aziz as the person who struck him with a beer bottle, and the evidence of Mr. Rooplall and Mr. Naipaul, who testified that they saw Mr. Aziz strike Mr. Ramjit with the beer bottle. The evidence of all three of these witnesses must be approached with caution, particularly with respect to the Vetrovec witnesses, Mr. Rooplall and Mr. Naipaul. However, as outlined earlier, the surveillance footage tends to support their evidence and show that they are telling the truth.

[293] The Crown having met its burden, Mr. Aziz is found guilty on Counts 1, 2, and 3 in the indictment.

Findings regarding Mr. Fredericks

[294] I turn then to a consideration of the evidence with respect to Mr. Fredericks.

[295] There is no evidence as to what Mr. Fredericks saw happen in the bar between Mr. Aziz and Mr. Ramjit. There is no direct evidence that he saw the beer-spilling incident, or the throwing of the glass by Mr. Aziz. However, Mr. Fredericks’ action in leaving the bar, and the manner in which he exited, indicate that Mr. Fredericks anticipated trouble.

[296] I would first note that not everyone left the bar after Mr. Aziz threw the glass. The bar did not empty out of patrons. Only five people followed Mr. Ramjit out the door. They included the three accused – Mr. Naipaul, Mr. Aziz, and Mr. Fredericks – as well as Mr. Subdan and Ms. Pitamber. Mr. Chung and Mr. Rooplall, who were already outside, also began to follow in the same direction just after Mr. Fredericks exited the bar.

[297] There were no people ahead of Mr. Ramjit when he exited. The convenience store surveillance footage shows that no one was approaching him from the other direction or from the Kitty Campbellville, which was further south in the same strip plaza.

[298] Counsel for Mr. Fredericks submitted that Mr. Fredericks’ action in leaving the bar was consistent with his having a natural curiosity about what was going on. I disagree with that characterization. Mr. Fredericks did not simply walk or saunter out of the bar. To the contrary, he moved fairly quickly and was quite aggressive. Just before exiting, he took a couple of running steps and then pushed Mr. Subdan, who was in front of him, out of the way. This enabled Mr. Fredericks to exit the bar ahead of Mr. Subdan and right on the heels of Mr. Aziz. It is apparent that Mr. Fredericks perceived some urgency in getting outside. Mr. Fredericks was holding a glass in his right hand as he pushed Mr. Subdan with his left.

[299] Camera #6 shows Mr. Fredericks holding the glass in his hand as he exited the bar and as he walked along the sidewalk. He was clearly not holding the glass with the intention of taking a sip from it. Rather, he held it down by his side. It was not in an upright position.

[300] Counsel for Mr. Fredericks observed that from the time that Ms. Pitamber exited the bar at 23:50:55, and for the next two seconds, or until 23:50:57, Mr. Fredericks is visible in the same surveillance footage as he walked south along the sidewalk. Mr. Collins submits that given Ms. Pitamber’s evidence that Mr. Ramjit was already on the ground when she exited the bar, Mr. Fredericks could not have been one of his assailants.

[301] As I already noted in these reasons when considering a somewhat related issue with respect to Mr. Aziz, this submission depends on the credibility and reliability of Ms. Pitamber’s testimony that by the time she got outside, Mr. Ramjit was on the ground. Assuming that Ms. Pitamber’s honest and best recollection is that Mr. Ramjit was already on the ground when she exited the bar, the question arises as to how soon after her exit she actually made this observation. As noted earlier, there would have been six people between her and Mr. Ramjit, which could have obstructed her view or momentarily distracted her. In addition, if Ms. Pitamber took a few steps, or even took a few seconds to focus on the scene, she could have missed the assault, which only took a second or two, and after which Mr. Ramjit immediately fell to the ground.

[302] Ms. Pitamber may sincerely believe that she made her observation of Mr. Ramjit on the ground at 23:50:57, which is the point where she was fully out the door. However, common sense dictates that it is unlikely she would be able to recall her exact location when she first observed this very disturbing event. Her focus at the time would no doubt have been on Mr. Ramjit, and not on how many seconds had passed after she got outside that she observed him on the ground. As I indicated earlier, Ms. Pitamber’s initial unhurried gait after she first emerged from the bar suggests that she did not immediately see anything untoward. However, a few seconds later, at 23:51:00, and after she had taken five or six steps, she quickened her pace slightly, and appeared to be saying something. This is consistent with her testimony that when she saw people kicking Mr. Ramjit, she told them “Stop. What are you guys doing?” As I earlier concluded, this suggests that she did not observe Mr. Ramjit on the ground immediately upon exiting the bar.

[303] Mr. Fredericks went off-screen at 23:50:57, but re-emerged 11 seconds later, at 23:51:08. When he came back on-screen, he did not continue walking north along the sidewalk and back towards the bar. Instead, he passed by Mr. Rooplall, who was standing by a pillar, and veered off to the left and into the parking lot. He went out of view of the camera at 23:51:17.

[304] Crown counsel submits that Mr. Fredericks went into the parking lot to dispose of the glass that the Crown says he used to assault Mr. Ramjit. However, it does not appear during this nine-second portion of the surveillance footage that Mr. Fredericks had a glass or pieces of glass in his hand at that time.

[305] Crown counsel pointed to the fact that glass was found in the parking lot by Officer Wong. The locations where the officer found the half circle of clear glass and the pieces of crushed glass are visible in the photograph, Exhibit 3(a). Officer Wong did not measure the distances between the location of the assault and the locations where she found the glass. However, it is apparent from the photograph that the glass was not that far from where Mr. Ramjit was attacked. One was within the marked parking space that was a few feet south of where Mr. Ramjit was attacked. The other was almost directly across from the location of the assault but further out in the parking lot.

[306] The presence of glass in the parking lot is a piece of circumstantial evidence to be considered along with all the other evidence. However, its evidential value is weakened by the fact that i) Mr. Fredericks does not appear to be holding a glass or pieces of glass when he entered the parking lot; and ii) there is no forensic evidence, such as fingerprints or DNA, linking him to the glass. There is no evidence that there was any blood on the glass. Officer Wong could not say how long the glass had been in the parking lot. She could not say whether the half-circle of glass came from a bottle or from a glass. There was apparently no attempt to compare that piece of glass with the glasses used at the Millennium. I note that Mr. Naipaul could not recall whether the glasses from which Mr. Aziz and Mr. Fredericks were drinking earlier that evening were glass or plastic. Mr. Collins pointed out that there is no evidence that the glass thrown by Mr. Aziz in the bar broke when it landed on the floor.

[307] Mr. Fredericks returned from the parking lot at 23:51:32, and re-entered the bar at 23:52:21. As noted earlier, Mr. Fredericks showed some aggression when he originally exited the bar by pushing Mr. Subdan aside. He displayed similar behaviour when re-entering the bar. As he entered, Mr. Subdan and Roxanne were slightly ahead of him and walking side by side. Mr. Fredericks pushed both of them aside and walked in between them. He took a few steps, met up with Mr. Aziz, and the two of them left at 23:52:30. Mr. Fredericks, Mr. Aziz and Mr. Naipaul then got into Roxanne’s car and Roxanne drove away.

[308] As was the case with Mr. Aziz, there is no evidence to suggest that Mr. Fredericks left the scene so quickly because of some urgent matter that he needed to attend to or an appointment that he had to keep. There is no evidence that there were any warrants for his arrest, which might explain why someone might flee a crime scene before the police arrived.

[309] Mr. Fredericks’ flight from the scene is a piece of circumstantial evidence that may be considered, along with all the other evidence, in determining whether the Crown has proved its case.

[310] Mr. Ramjit identified Mr. Naipaul as the person who struck him in the face just after Mr. Aziz hit him with the beer bottle. For the reasons already given, I am satisfied that Mr. Ramjit was mistaken in this regard. Mr. Ramjit was no doubt dazed and confused after receiving the first blow. Blood immediately began to stream down his face. He told Officer Soffe that he did not see the face of the second assailant. It appears that Mr. Ramjit eventually came to believe that Mr. Naipaul was the perpetrator based on the fact that Mr. Naipaul was standing right beside Mr. Aziz and was within an arm’s length of him. Mr. Ramjit also mistakenly believed that Mr. Naipaul was holding two beer bottles. Mr. Naipaul was not holding anything in his hands, having put down his beer bottle before leaving the bar. I am satisfied beyond a reasonable doubt that Mr. Naipaul did not strike Mr. Ramjit with a glass or anything else. I accept the evidence of both Mr. Naipaul and Mr. Rooplall in this regard.

[311] As explained earlier in these reasons, I also find that the descriptions that Mr. Ramjit allegedly gave to Officer Soffe of his assailants cannot be considered reliable, given the circumstances in which they were recorded and Mr. Ramjit’s condition at the time. None of the accused, including Mr. Fredericks, or any of the people who followed Mr. Ramjit along the sidewalk after he exited the bar was wearing a chain around their neck with a cross, or hooped earrings. Mr. Ramjit may have honestly believed that his assailant was wearing such jewellry, but it appears that this descriptor was a figment of his imagination.

[312] I have also explained earlier in these reasons why the evidence of Mr. Rooplall and Mr. Naipaul must be considered with caution, and the need to look for some confirmation of their evidence before relying on it in deciding whether the Crown has proved its case against Mr. Fredericks. As noted by counsel for Mr. Fredericks, Mr. Naipaul heard Mr. Rooplall’s evidence at the first trial, and was therefore in a position to tailor his testimony to accord with that of Mr. Rooplall. Both Mr. Rooplall and Mr. Naipaul denied that Mr. Ramjit was kicked. I have found that those denials are not credible. Both Mr. Rooplall and Mr. Naipaul were in a position to tailor their evidence according to the surveillance footage because, as accused persons, they were provided the DVD recordings as part of the Crown’s disclosure.

[313] Both Mr. Rooplall and Mr. Naipaul testified that when Mr. Fredericks hit Mr. Ramjit in the face with the glass, the glass broke.

[314] Mr. Rooplall’s testimony with respect to the assault was as follows: When Mr. Aziz hit Mr. Ramjit over the head with the beer bottle, the bottle broke. Mr. Ramjit immediately put his hands up to his face and was on his way down when Mr. Fredericks struck him in the face with the glass. The glass broke.

[315] Mr. Naipaul testified to a similar effect. He stated that when Mr. Aziz hit Mr. Ramjit on the top of the head near the forehead with the beer bottle, the bottle broke. Mr. Ramjit appeared to be dazed and had started to go down when Mr. Fredericks struck him on the right side of his face with a drinking glass. The glass broke in Mr. Ramjit’s face. Mr. Ramjit grabbed his face and fell to his knees.

[316] Evidence supporting Mr. Rooplall’s and Mr. Naipaul’s testimony that Mr. Aziz hit Mr. Ramjit with a beer bottle and that it broke included, in addition to the fact that Mr. Aziz was carrying two beer bottles, the presence of glass from a beer bottle in the pool of blood on the sidewalk, and the location of the neck of a broken beer bottle in the vicinity of the assault. However, there is no such confirmatory evidence with respect to Mr. Rooplall’s and Mr. Naipaul’s testimony that Mr. Fredericks hit Mr. Ramjit with a glass. Although they both testified that the glass broke, there were no pieces of broken glass found where the assault took place. Neither Mr. Rooplall nor Mr. Naipaul made any mention about seeing anyone picking up or removing glass from the scene. Ms. Pitamber, who was attending to Mr. Ramjit within seconds of the assault, testified that she saw Mr. Fredericks in the parking lot, but made no mention of seeing him or anyone else picking up glass. Had that happened, Ms. Pitamber would certainly have seen it. She was right there by the pools of blood where the assault occurred.

[317] It is apparent that Officer Wong did not see any glass at the scene. The close-up photographs that she took of the blood on the sidewalk – Exhibits 3(h) and (i) – do not show any pieces of glass other than the glass from the beer bottle.

[318] Crown counsel submitted that although the absence of glass at the scene cannot be accounted for, it is not such that it raises a reasonable doubt that Mr. Fredericks was the individual who caused the gashes or lacerations to Mr. Ramjit’s face. The Crown noted that those injuries are consistent with having been caused by broken glass.

[319] I agree that the injuries are consistent with having been caused by broken glass. However, that fact does not necessarily point to Mr. Fredericks as the assailant. It must be borne in mind that there was another individual at the relevant time that was in close proximity to Mr. Ramjit and who was in possession of broken glass – namely, Mr. Aziz. Mr. Aziz was holding the beer bottle by the neck of the bottle when he struck Mr. Ramjit over the head. The bottle broke, as is evident from the presence of the glass in the pool of blood. However, it would appear that Mr. Aziz held on to the neck portion of the bottle, as it was found some metres away from where Mr. Ramjit was attacked. [See Exhibit 3(l)]. Mr. Aziz presumably left it at that location. The photograph, Exhibit 3(m), shows the sharp and jagged edges on the neck of the bottle, which could cause serious injury if applied with force to someone’s face.

Conclusion regarding Mr. Fredericks

[320] In summary, in determining whether the Crown has established beyond a reasonable doubt that Mr. Fredericks assaulted Mr. Ramjit, I have considered all of the evidence, including the following:

• The aggressive manner in which Mr. Fredericks left the bar. Mr. Fredericks pushed Mr. Subdan out of his way in order to exit more quickly. There appeared to be some urgency on his part in getting outside as soon as possible.
• The fact that Mr. Fredericks was carrying a glass when he left the bar, although there is no definitive evidence as to whether it was made of glass or plastic.
• The manner in which Mr. Fredericks was carrying the glass, which was inconsistent with an intention to drink from it. He held the glass down by his side
• Mr. Fredericks’ proximity to Mr. Ramjit at the time of the assault. It can be inferred from the surveillance footage of camera #6 that it would have taken very little time for Mr. Naipaul, Mr. Aziz, and Mr. Fredericks to catch up to Mr. Ramjit, particularly after Mr. Ramjit stopped and turned around.
• The aggressive manner in which Mr. Fredericks re-entered the bar after the assault. He pushed Mr. Subdan and Roxanne aside in order to speak to Mr. Aziz.
• Mr. Fredericks’ flight from the scene with Mr. Aziz.
• The fact that Mr. Fredericks entered the parking lot after the attack, and the fact that some glass was located in that parking lot. However, given the gap in the evidence connecting the glass in the parking lot to the area where Mr. Ramjit was attacked, not much, if any weight can be attached to this evidence.
• The evidence of both Mr. Rooplall and Mr. Naipaul that Mr. Fredericks struck Mr. Ramjit in the face with the glass after Mr. Aziz hit Mr. Ramjit with the beer bottle, and that the glass broke. However, as explained earlier, there are a number of reasons why the evidence of both of these witnesses must be considered with great care and caution. The court must look for other evidence tending to confirm that they are telling the truth. Given their evidence that the glass broke, one would expect that there would be glass at the scene. However, no glass was found, and there is no evidence that glass was removed from the scene. This raises serious concerns about the credibility of the evidence of Mr. Rooplall and Mr. Naipaul.
• The fact that Mr. Aziz, after breaking the beer bottle over Mr. Ramjit’s head, would have been left holding the broken neck of the bottle. The jagged and sharp edges of the neck of the bottle had the potential to cause lacerations if applied with force to a person’s face.

[321] I am satisfied that the evidence establishes that Mr. Fredericks probably assaulted Mr. Ramjit with a glass. However, having considered and weighed all of the evidence, I am not satisfied that the Crown has established beyond a reasonable doubt that he committed these offences. Mr. Fredericks is accordingly found not guilty on all three counts in the indictment.

Findings regarding Mr. Naipaul

[322] I turn then to a consideration of the evidence with respect to Mr. Naipaul.

[323] The position of the Crown is that Mr. Naipaul was a party to the assault. The Crown submits that Mr. Naipaul stopped and confronted Mr. Ramjit on the sidewalk with the intention of facilitating the assault by Mr. Aziz.

[324] Mr. Naipaul testified and denied that that was his intention. The principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply.

[325] Section 21 (1) of the Criminal Code states:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[326] As stated in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 16, the mens rea requirement reflected in the word “purpose” under s. 21(1)(b) has two components: intent and knowledge. For the intent component, the Crown must prove that the accused intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed.

[327] The Supreme Court explained the knowledge requirement at para. 17:

As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense.

[328] Crown counsel submitted that even if Mr. Naipaul did not have actual knowledge that Mr. Aziz intended to assault Mr. Ramjit, he was wilfully blind to that fact. In terms of the doctrine of wilful blindness in the context of s. 21(1)(b), the court in Briscoe, at para. 21, stated:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[329] In the present case, Mr. Naipaul testified that he saw Mr. Aziz throw the glass at Mr. Ramjit. He also saw Mr. Aziz pick up the two beer bottles and head with some speed towards the exit. Mr. Naipaul candidly acknowledged that at that moment, he perceived Mr. Aziz’s actions as “spelling trouble” – that is, he thought that Mr. Aziz was going to go after Mr. Ramjit and potentially use the bottles as weapons against him. He knew that Mr. Aziz did not take hold of the bottles with the intention of drinking beer from them.

[330] It may be concluded that at that time, the knowledge component of the mens rea requirement under s. 21(1)(b) was satisfied: Mr. Naipaul knew that Mr. Aziz was heading out the door for the purpose of going after or assaulting Mr. Ramjit, and potentially using the beer bottles as weapons during the course of the assault. However, Mr. Naipaul’s testimony was to the effect that because of his knowledge of impending violence, he attempted to intervene and de-escalate the situation.

[331] Mr. Naipaul acknowledged that in the end, his actions in confronting Mr. Ramjit outside, and asking him what was going on, had the effect of facilitating the assault by Mr. Aziz. However, Mr. Naipaul denied that that was his purpose or intention. Mr. Naipaul testified that he only got involved in this matter because he did not want the situation to get out of hand and turn into a fight. He testified that he had no interest in “fighting somebody else’s beefs.” In addition, Mr. Naipaul did not know Mr. Ramjit. He was not involved in any disputes with him, and had no motive to cause Mr. Ramjit harm.

[332] There is some evidence that supports Mr. Naipaul’s testimony that he tried to defuse the situation and did not intend to assist Mr. Aziz in committing the assault on Mr. Ramjit.

[333] Mr. Naipaul’s first reaction when he saw Mr. Aziz pick up the two beer bottles and head for the door was to put down his own beer bottle. If Mr. Naipaul’s intention was to aid Mr. Aziz in assaulting Mr. Ramjit, it is curious that he disarmed himself of a potential weapon. His action in this regard does not speak to a joint enterprise between Mr. Naipaul and Mr. Aziz.

[334] I note that there was no opportunity for Mr. Naipaul and Mr. Aziz to discuss any kind of joint plan. Although they arrived at the exit door almost at the same time, they came from different directions. Mr. Naipaul was on the dance floor when Mr. Ramjit spilled the beer, which is why he was unaware of that incident.

[335] It also appears that Mr. Naipaul attempted to slow down Mr. Aziz’s pursuit of Mr. Ramjit by extending his right arm out towards him just before they exited the bar. Mr. Naipaul’s arm gesture is consistent with and supports Mr. Naipaul’s evidence that he told Mr. Aziz to “wait” or “hold on.” He also testified that he told him, “Let me go talk to him [referring to Mr. Ramjit].” As a result, Mr. Naipaul exited the bar just ahead of Mr. Aziz. Mr. Naipaul testified that he decided to go outside, talk to Mr. Ramjit, and “find out what caused this whole problem.”

[336] In his submissions, Crown counsel referred to Mr. Naipaul as having “stopped Mr. Ramjit in his tracks”, thereby facilitating the assault by Mr. Aziz. However, Mr. Ramjit testified that he stopped and turned around on his own accord, when he heard a commotion or people running behind him. He testified that when he turned, Mr. Aziz was “right in his face.” Mr. Naipaul was beside Mr. Aziz and to the right of Mr. Ramjit. Mr. Ramjit testified that he apologized to Mr. Aziz and offered to buy a round of drinks. Mr. Aziz immediately hit him over the head with one of the two beer bottles in his hands. It is apparent from his testimony that Mr. Ramjit has no recollection of Mr. Naipaul asking him “What’s going on?” or “What’s happening?”

[337] In any event, it is clear that the interchange between Mr. Naipaul and Mr. Ramjit was very brief. Mr. Naipaul testified that immediately after he asked Mr. Ramjit what was happening, Mr. Aziz hit Mr. Ramjit with the beer bottle.

[338] Mr. Naipaul testified that he posed his question to Mr. Ramjit in a non-threatening manner – that is, with his arms out and his palms up. Mr. Rooplall testified to a similar effect in terms of the position of Mr. Naipaul’s arms. Mr. Rooplall testified that Mr. Ramjit also had his arms out, with his palms up. Mr. Rooplall initially gave the impression in his evidence that the body language of Mr. Naipaul and Mr. Ramjit signaled some aggression – that it looked like they were “going to fight or like push each other or something.” However, he later appeared to modify his assessment in that regard, stating that it seemed as though the two men were “trying to size each other up.” He also stated that they were never in each other’s face or close enough to make physical contact.

[339] At no point did Mr. Naipaul “corner” Mr. Ramjit, obstruct his pathway, or have any physical contact with him.

[340] Crown counsel submitted that if Mr. Naipaul was trying to play the role of a peacemaker, it would have made more sense for him to ask Mr. Aziz, who was the aggressor and pursuing Mr. Ramjit, what was going on, rather than posing that question to Mr. Ramjit. However, as noted above, Mr. Naipaul did tell Mr. Aziz to wait or hold on as they were exiting the bar. It is also important to take into account the speed at which these events unfolded. Mr. Naipaul did not have a great deal of time to think about how he might forestall a fight. In the end, his decision to go outside and ask Mr. Ramjit what was going on was certainly not a good decision in the circumstances. It was perhaps naïve or foolish for him to think that talking to Mr. Ramjit would forestall a fight or have any effect on Mr. Aziz’s intention to assault Mr. Ramjit. Mr. Naipaul has acknowledged that his interchange with Mr. Ramjit ended up facilitating the assault. However, he denied that that was his intention.

[341] Crown counsel submitted that Mr. Naipaul’s conduct after Mr. Ramjit was injured is inconsistent with his evidence that he was trying to play the role of a peacemaker and prevent an assault on Mr. Ramjit. For example, he did nothing to help Mr. Ramjit after he was injured. However, Mr. Naipaul explained that other people were lending assistance, including Ms. Pitamber and Mr. Chung. Mr. Naipaul did not call the police, but testified that he heard other people calling the police, which was probably the case.

[342] Mr. Naipaul denied leaving the scene to avoid the police. Mr. Naipaul testified that he left the scene because he had to work the next day, and Roxanne was his only ride home. Since she wanted to leave, he more or less had to go with her. I did not find Mr. Naipaul’s explanation in this regard to be credible. Mr. Naipaul clearly wanted to avoid contact with the police.

[343] Crown counsel submits that Mr. Naipaul fled the scene because he knew he had facilitated the assault on Mr. Ramjit. Mr. Naipaul has acknowledged facilitating the assault, albeit unintentionally. The fact that he facilitated it might well be the reason he left. That action in itself, however, does not necessarily speak to the question of his intention.

[344] Mr. Naipaul may also have wanted to avoid the police because he feared being charged with having inflicted the injuries suffered by Mr. Ramjit, given his presence at the scene and his close proximity to Mr. Ramjit and Mr. Aziz at the time of the assault. It appears that such a concern would have been well-founded, as Mr. Naipaul was originally arrested on the basis of an allegation that he was the person who struck Mr. Ramjit in the face with a glass.

[345] There is no question that Mr. Naipaul’s evidence was problematic in a number of areas; for example, his evidence that Mr. Ramjit was never kicked was not credible. There is no doubt that Mr. Ramjit was kicked. Mr. Naipaul was in the immediate area at the time and must have seen the kicking. Mr. Naipaul’s evidence that he asked Ms. Pitamber if she wanted him to call the police is also problematic. Ms. Pitamber made no mention during her testimony of Mr. Naipaul ever making such an offer. Mr. Naipaul’s explanation as to how and why he ended up leaving the scene with Mr. Aziz and Mr. Fredericks is also problematic. Mr. Naipaul attempted to put all the responsibility in this regard on Roxanne, who was the owner and driver of the car.

[346] Mr. Naipaul has testified and denied that he intentionally aided Mr. Aziz in assaulting Mr. Ramjit. Although there are concerns with respect to his credibility in the various areas referred to above, there is some support for his evidence that he tried, however ineffectively, to defuse the situation that suddenly arose in the bar that night between Mr. Aziz and Mr. Ramjit. Mr. Naipaul put down his beer bottle before leaving the bar. He extended out his arm towards Mr. Aziz and told him to hold off or wait, and that he would talk to Mr. Ramjit. Mr. Naipaul did not obstruct Mr. Ramjit’s pathway. He did not touch him. He did not cause him to stop, as Mr. Ramjit stopped on his own accord. Mr. Naipaul’s stance while he spoke to Mr. Ramjit was not threatening – he had his arms out and his palms up when he asked him what was going on. It was at that point that Mr. Aziz struck Mr. Ramjit with the beer bottle.

[347] Mr. Naipaul testified that he had no interest in “fighting somebody else’s beefs.” He had no disputes with Mr. Ramjit and no motive to cause him harm.

Conclusion regarding Mr. Naipaul

[348] Taking into account all of the evidence, and applying the analysis in W.(D.), I find that Mr. Naipaul’s testimony leaves me with a reasonable doubt that he intended to facilitate the assault by Mr. Aziz on Mr. Ramjit. Mr. Naipaul is accordingly found not guilty on Counts 1, 2, and 3 in the indictment.

[349] Count 4 charged Mr. Naipaul with failing to comply with a probation order to keep the peace and be of good behaviour, based on the offences alleged in Counts 1, 2, and 3. In light of his acquittal on those counts, Mr. Naipaul is also found not guilty on Count 4.

CONCLUSION

[350] In summary, Mr. Aziz is found guilty on Counts 1, 2, and 3 in the indictment. Mr. Fredericks and Mr. Naipaul are found not guilty on Counts 1, 2, and 3. Mr. Naipaul is also found not guilty on Count 4.

Garton J.

Released: March 21, 2017