COURT FILE NO.: 116/17 DATE: 2018 09 28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – AUSTEN GARRIDO

Arish Khoorshed, for the Crown Amanda Ross, for the Accused

HEARD: September 24, 25 & 26, 2018

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

The Background

[1] On April 16, 2016, Devan Dhindsa (“Dhindsa”), who was then a 16 year-old high school student, had his hand cut with a knife. Severed arteries and tendons resulted. Sixty to seventy stitches were required. An ambulance ride, a stay at the hospital, surgery, and extensive physiotherapy were all involved. Today, the young man, now 18 years old and attending Queen’s University, still experiences limitations with his hand.

[2] The injury occurred at a birthday party in Oakville. Several dozens of young persons attended, Dhindsa, Quintin McClearly (”McClearly”), and the accused, Austen Garrido (“Garrido”), included. The party was held at the home of a young man named Johnny.

[3] Garrido, McClearly, and another youngster named Bailey were involved in the incident that led to Dhindsa’s hand being cut with a knife. They, and others, were in the basement of the home where the party was being held. Specifically, they were in the work-out room. Some sort of a confrontation precipitated Garrido exposing a knife. It was that knife, being held by Garrido, that caused the injury to Dhindsa’s hand.

The Trial

[4] Garrido was tried in Milton before this Court, without a jury, over less than three full days. He is charged with two offences – aggravated assault against Dhindsa and assault with a weapon against McClearly.

[5] Date, time, jurisdiction, identity of the accused, the fact that Garrido removed a knife from his pocket, the fact that the said knife cut Dhindsa’s hand, and that the injury to Dhindsa constitutes wounding, are all admitted.

[6] The records from the paramedics and the hospital who/which treated Dhindsa were filed on consent.

[7] For the Crown, this Court heard evidence from Dhindsa, McClearly, Stephen Mahoney (“Mahoney”), Joshua Bork (“Bork”), Brandon Rawson (“Rawson”), and Constable David Joseph (“Joseph”) of the Halton Regional Police Service.

[8] For the Defence, I heard evidence from Garrido.

The Issues

[9] The issues are whether the Crown has proven the essential elements of the charges to the requisite standard of proof, as well as self-defence, accident, and consensual fight.

The Basic Legal Principles

[10] Garrido is presumed to be not guilty. That presumption of innocence applies to each charge and never ceases unless and until the prosecution meets its burden to prove every essential element of that charge beyond a reasonable doubt. The burden of proof rests entirely with the Crown. Putting aside whether there is an air of reality to one or more of the defences being advanced, Garrido has no burden to prove anything.

[11] Proof beyond a reasonable doubt is a high threshold. It means more than probable or likely guilt. It requires that the trier be sure of Garrido’s guilt before finding him so.

[12] As Garrido is facing multiple counts, I must also remember that the verdicts need not necessarily be the same on the two charges.

The Essential Elements of the Offences

[13] On count 1, aggravated assault, the Crown must prove each of these essential elements beyond a reasonable doubt: (i) that Garrido intentionally applied force to Dhindsa, and (ii) that Dhindsa did not consent to the said force, and (iii) that Garrido knew that Dhindsa did not consent to the said force, and (iv) that the said force wounded Dhindsa.

[14] As indicated above, the wounding is admitted.

[15] On count 2, assault with a weapon, the Crown must prove the same items (i) through (iii), plus (iv) that a weapon (a knife) was involved in the assault.

[16] As indicated previously, Garrido’s possession of the knife is admitted.

The Defences

[17] Assuming that there is an air of reality to the issue of self-defence, it is the responsibility of the Crown to prove beyond a reasonable doubt that Garrido was not acting in self-defence.

[18] Self-defence requires the resolution of three questions: (i) did Garrido reasonably believe that force was being used or threatened against him, and (ii) did Garrido do something for the purpose of protecting himself from that use or threat of force, and (iii) was Garrido’s conduct reasonable in the circumstances?

[19] In terms of accident, again, assuming an air of reality to the issue, it is the Crown who must prove beyond a reasonable doubt that what happened was not an accident.

[20] Here, we are not concerned about unintended consequences but rather a potentially unintended act, namely, the knife coming into contact with Dhindsa’s hand.

[21] In terms of the issue of consensual fight, the focus is on the state of mind of the complainants, Dhindsa and McClearly. For each complainant, to be legally effective, consent requires freedom of choice and knowledge of the essential nature of the activity engaged in.

II. Analysis

[22] So what exactly happened in the work-out room at Johnny’s place?

A Brief Summary of the Evidence at Trial

[23] Sixteen years old at the time, in high school, a football player, just shy of six feet tall and over 300 pounds, having consumed some alcohol, Dhindsa was inside the work-out room.

[24] According to him, while he was on the bench press, he saw a heated exchange between McClearly, Bailey and Garrido. Garrido pulled out a knife from his pocket. He put it up to near McClearly’s throat. McClearly turned and started to walk away. Garrido then lunged the knife towards McClearly’s back. Dhindsa reached and grabbed Garrido’s wrist. Garrido pulled his hand back and sliced Dhindsa’s palm with the blade of the knife. Then Garrido’s hand went forward and cut Dhindsa’s palm again.

[25] In cross-examination, the Defence explored some credibility issues regarding Dhindsa. At trial, he said that he brought beer to the party, while at the preliminary inquiry he said it was cider. He admitted that he might have downplayed to the paramedics how many drinks he had. At trial, he said that he went around the bench press before he saw the knife come out, while at the preliminary inquiry he stated the opposite order of those two things. At trial, he said that he did not see McClearly make physical contact with Garrido, while at the preliminary inquiry he stated that he thought McClearly had touched Garrido’s bicep in a joking manner. More important, he never told the police in his statements that Garrido held the knife up towards McClearly’s throat. Finally, he was unclear at trial as to whether he told the paramedics that he wanted to get revenge on Garrido, which the records filed suggest.

[26] Of similar age to Dhindsa, also in high school at the time, much smaller than Dhindsa, and also having drank some alcohol, McClearly was inside the work-out room.

[27] According to him, Bailey and Garrido were teasing each other about wearing muscle shirts. At some point, Garrido made fun of Dhindsa’s stutter. Garrido reached down and then had a knife in his hand. He pointed it towards McClearly’s upper chest area. McClearly pushed his hand away and turned around to leave. A commotion ensued, but McClearly did not see Dhindsa get cut with the knife.

[28] In cross-examination, McClearly stated that certain things might have happened before the knife came out: it is possible that he confronted Garrido, verbally, about the stutter comment, and it is possible that he and Garrido touched foreheads, and it is possible that he touched Garrido’s bicep.

[29] In cross-examination, it was shown that McClearly is uncertain on how Garrido’s hand was pushed away after pointing the knife at McClearly’s upper chest area. For sure, according to the witness at trial, he pushed Garrido’s hand away. Bailey might have also pushed Garrido’s hand away. At the preliminary inquiry, however, McClearly stated that it was Bailey alone who pushed Garrido’s hand away.

[30] Mahoney was inside the work-out room. Essentially, he told the police a bunch of stuff that he neither saw nor heard personally. He heard some yelling, saw a scuffle of sorts, and then saw Dhindsa on the ground injured. He never saw any weapon. He never heard any threat.

[31] Of similar age to Dhindsa, also in high school at the time, much smaller than Dhindsa, and also having drank some alcohol, Bork was inside the work-out room.

[32] According to Bork, Dhindsa asked Garrido why he was wearing a tank top in April. Dhindsa touched Garrido’s bicep. Garrido then mocked Dhindsa’s stutter. McClearly asked Garrido why he would make fun of someone’s stutter. McClearly and Garrido were forehead to forehead. Garrido pulled out a knife from his pocket. McClearly turned around to leave. Garrido held the knife such that the blade was upwards and outwards, pointed towards McClearly. Dhindsa reached out to grab something. Then Dhindsa was on the ground, badly hurt.

[33] In cross-examination, Bork testified that, immediately after he first took out the knife, Garrido held it close to his side. One or two seconds later, Dhindsa reached out to grab something.

[34] Of similar age to Dhindsa, also in high school at the time, much smaller than Dhindsa, and also having drank some alcohol, Rawson was inside the work-out room.

[35] According to him, there was some yelling between Dhindsa, McClearly, Bailey and Garrido. Dhindsa and Garrido pushed each other. Garrido pulled out a knife from his pocket. Dhindsa tried to move the knife away. Garrido then stabbed Dhindsa’s hand – the tip of the knife into the palm of Dhindsa’s hand, followed by a downward slicing motion of the blade against the palm. A crowd quickly gathered because there was lots of blood.

[36] In cross-examination, the Defence showed that Rawson has not been entirely consistent on who was involved in the pushing. At the preliminary inquiry, he stated that it was all four of the males – Dhindsa, McClearly, Bailey and Garrido. In direct examination at trial, he limited that to Dhindsa and Garrido. In cross-examination, he said that it could have been all four of the young men.

[37] In cross-examination, Rawson testified that, immediately after he pulled out the knife, Garrido held it in front of the pocket of his pants. Within one to two seconds after that, Dhindsa was bleeding.

[38] Joseph was the police officer who arrested Garrido. Garrido had quickly left the residence after the incident with the knife. He was found by Joseph some distance away, near some grass and bushes, partially hidden. He was very cooperative with the arrest and the frisk search. He told Joseph that he was at the party as a bouncer. When asked about the knife, he said that he had it for protection but no longer had it as he threw it near the house. When asked about the blood on his mouth, on the back of his head and on his hands, Garrido told the officer that a bunch of guys were beating on him, and he had to defend himself.

[39] Joseph has notes of his conversation with Garrido, but they are not a verbatim account of what was said.

[40] Garrido testified at trial and stated that he took out the knife from the pocket of his pants in order to try to stop the beating that he was taking from three other males, and that he never intended to touch anyone with the knife but rather Dhindsa grabbed the blade of the knife and cut himself, and that he never held the knife up to McClearly in a threatening way.

[41] If I accept that evidence of the accused, he must be acquitted on both counts. Even if I do not necessarily accept his evidence but find that it leaves me with a reasonable doubt, whether on the essential elements of one or both charges or with regard to an affirmative defence advanced such as self-defence, Garrido must be acquitted. If I completely reject his evidence, he still must be acquitted unless the rest of the evidence at trial that I do accept persuades me of his guilt beyond a reasonable doubt.

[42] Then 19 years old, and much smaller than Dhindsa (5 feet, 7.5 inches tall and about 155 pounds), in excellent physical condition, in fact now a competitive bodybuilder with a most impressive physique as evidenced by the photograph marked Exhibit 5, at the time of the incident a university student, Garrido was at the party.

[43] According to him, he worked landscaping earlier that day. He finished work at about 3:00 p.m. He went to the party wearing the same clothes that he had worked in, arriving at about 8:30 or 9:00 p.m. He consumed some alcohol.

[44] When inside the work-out room waiting to use the bathroom, some unknown males (whom we now know to be Dhindsa, McClearly and Bailey) started to tease him about his tank top. Because Dhindsa stuttered, Garrido mocked his speech. The three males came closer to Garrido, whose back was against the wall. They formed a semi-circle around him. They were angry. They were right in his face. McClearly squeezed Garrido’s bicep. Bailey put his hand on Garrido’s chest. Stuck in a corner of the room, Garrido was prevented by the males from leaving. After trying to push his way out, they pinned Garrido up against the wall. They were “jabbing” at him – stomach, chest, and mouth. All three males were beating him up. He was very, very frightened. As a “deterrent”, he removed the knife from his right rear pants pocket. He held the knife with his right hand, near his waistline. A second or so later, Dhindsa reached and grabbed the blade of the knife, cutting himself.

[45] According to Garrido, there was no lunging of the knife at anyone. No stabbing or slicing motion of the knife. No holding the knife up at anyone.

[46] Still afraid, Garrido fled. Outside, he was attacked by a fellow named Matt Creelman. Garrido got up from the ground after being punched and took off. He threw the knife into the forest.

[47] As he cried in the Courtroom, Garrido testified that it was the “worst day” of his life. He never intended that anyone be cut with the knife. He did not even intend to bring the knife to the party but simply forgot it inside his work pants.

[48] In cross-examination, Garrido denied taking out the knife to threaten anyone. He stated that he took it out simply to try to stop the beating.

Findings

[49] Of course, I may accept all, some or none of what a witness has said.

[50] After what I thought was a very impressive, and quite effective, cross-examination of Garrido by Mr. Khoorshed, I certainly do not accept much of Garrido’s evidence at trial. More narrowly, I do not believe his account of what happened in the work-out room.

[51] First, I do not understand Garrido’s reluctance to admit that he took out the knife to, at least in part, send a threatening message to the other three males. I agree with Mr. Khoorshed; of course he did. Doing so does not necessarily defeat his reliance on self-defence, but his refusal to admit the obvious hurts his credibility in the eyes of this Court.

[52] Second, Garrido was very unclear in his evidence in cross-examination on the simple and straightforward question as to whether he believed that the three young men were angry with him before he made fun of Dhindsa’s stutter. It seemed to me that Garrido was being unreasonably evasive and difficult with the Crown.

[53] Third, and on this point I accept the submission made by Mr. Khoorshed, it makes no common sense that Garrido was not beaten to submission when he, in the middle of the attack, removed both of his hands from blocking his face and head in order to retrieve the knife and then engage the tricky process required to open the blade, all in plain view of the three alleged attackers, which is what Garrido testified to. Surely, once he took his hands down, the blows that he says were being inflicted to his head and face would have continued and would have resulted in serious injury.

[54] Fourth and finally, I agree with Mr. Khoorshed that it is absurd that Garrido did not knowingly bring the knife to the party, which is what he testified to. Intentionally bringing the weapon does not necessarily defeat his reliance on self-defence, but, again, his refusal to admit the obvious hurts his credibility. Garrido is a good-looking, well-dressed, fitness conscious young man. The prospect that he chose to wear landscaping work clothes to a party is remote. That he walked around for hours with a knife in his back pocket and then unknowingly brought that to the house party is equally remote.

[55] As the Crown knows, however, there is more to criminal law than assessing whether one believes the accused. The Court must not scrutinize the evidence of one side closer than that of the other.

[56] There are bruises on the Crown’s case as well. The glaring omission from Dhindsa’s police statement of Garrido allegedly holding a knife to the throat of McClearly. The extremely short time interval, a virtual instant, between when Garrido took out the knife and when Dhindsa was cut, lending more credence to the accident theory. The fact that there is evidence from witnesses besides the accused to support the notion that Garrido held the knife at his side after he removed it from his pocket. The fact that there is evidence, or a lack of evidence, from witnesses besides the accused to support the notion that Garrido never did hold the knife up to McClearly’s throat and never did thrust or lunge the knife towards McClearly after the latter had turned around.

[57] On the totality of the evidence adduced at trial, I think that what probably happened is the following.

[58] After some innocent “ribbing” back and forth in the work-out room, Garrido escalated the situation by making fun of Dhindsa’s stutter. McClearly, protecting his friend, took great offense at that and confronted Garrido. The two of them were nose to nose. Garrido pulled out his knife. That had the desired effect as McClearly immediately turned away to leave the room. Garrido had the knife near his waistline but pointed upwards and outwards. Dhindsa grabbed for it, trying to protect himself and his friends. Tragically, he got cut with the blade.

[59] It all happened very quickly, within mere seconds. Afterwards, whether out of panic or because he knew that he did something wrong or out of fear of being beaten up by Dhindsa’s friends, or a combination of those things, Garrido fled the scene, discarded the knife and partially concealed himself near some foliage.

[60] The above findings of fact are made largely on the basis of the testimony of Bork, whose evidence I accept. Of all the witnesses who testified, I found Bork’s evidence to be the most internally consistent. He also is relatively unbiased in that he was simply there with his girlfriend and not aligned with either the three males or Garrido. He was standing near the bench press the entire time, with a clear view of what happened. He testified in a concise and thoughtful manner. His evidence was not challenged by either side.

[61] I am not satisfied that Garrido held the knife up to the throat of McClearly, or that he lunged the knife towards McClearly, or that he made a stabbing or slicing motion with the knife against the palm of Dhindsa.

[62] I need to explain why I have relied significantly on the evidence of Bork but yet have not found as a fact that Garrido “wielded” the knife at McClearly, to borrow the descriptor employed by Mr. Khoorshed in his closing submissions.

[63] It is true that Bork testified that Garrido had the knife pointed up, in the direction of McClearly’s back, and in an “offensive position”. In my view, however, that must be viewed in the context of Bork’s evidence as a whole. I think that what Bork was saying is no different than what he stated elsewhere in his testimony – as McClearly was exiting the room and with his back towards Garrido, the accused had the knife near his waistline though pointed upwards and outwards. I would not describe that as Garrido having wielded the knife.

[64] On the findings of fact that I have made, before considering the defences advanced by Garrido, I must acquit the accused on both counts.

[65] The aggravated assault charge is premised on some intentional wielding, slicing or stabbing motion of the knife having been made by Garrido, while the assault with a weapon offence is premised on Garrido holding the knife up to McClearly’s throat and/or lunging the knife towards McClearly’s back. Without those factual underpinnings, the charges must fail.

[66] I enter acquittals somewhat reluctantly because I sympathize with Dhindsa, who acted bravely and did nothing wrong but yet was injured badly. I have little sympathy for Garrido because I think that he is largely responsible for escalating the situation by turning innocent teasing into something more personal and more offensive when he inappropriately mocked Dhindsa’s stutter. Having said that, this is not a popularity contest.

[67] Further, when one considers the defences advanced by Garrido, this Court’s reasonable doubt about his guilt on count 1, aggravated assault, is only strengthened.

[68] I am unsure about whether Garrido intended the knife to come into contact with Dhindsa’s hand, or even that Garrido was reckless in that regard. Given the positioning of the knife near Garrido’s waistline and the very quick speed in which the events happened, it may very well be that the knife cutting Dhindsa’s hand was purely accidental. Dhindsa tried to disarm Garrido and inadvertently grabbed the blade of the knife.

[69] Thus, I have a reasonable doubt as to whether the Crown has disproven the accident theory with regard to the aggravated assault charge. That is an alternative basis for the acquittal on count 1. The Crown, quite fairly, did not argue that the issue of accident has no air of reality to it.

[70] Although strictly unnecessary in the circumstances, I will deal briefly with the two other arguments advanced by counsel for Garrido, self-defence and consensual fight. On both items, I agree with the Crown. I would not acquit the accused on either charge on the basis of self-defence or consensual fight.

[71] Regarding self-defence, Mr. Khoorshed is correct that Garrido’s evidence in cross-examination at trial was unequivocal on when and why he took out the knife from his pocket. He did so to stop the alleged beating, that is, the jabs and punches being delivered to him by the three males. But for that alleged beating, he would not have taken out the knife. Before the beating started, on Garrido’s own admission, taking out the knife would have been clearly excessive and would not have been contemplated by him.

[72] As I have found no facts that support any beating of Garrido, and as I reject any notion that the three males were pushing or jabbing at or punching Garrido, the Crown has proven beyond a reasonable doubt that Garrido’s act in exposing the knife was not in lawful self-defence.

[73] Given Garrido’s very clear evidence at trial, it would be improper for this Court to enquire as to whether something short of the alleged beating justified Garrido taking out the knife. R. v. D.S., 2017 ONCA 38.

[74] On the issue of consensual fight, on the facts as I have found them, there was no “fight”. There was nothing that Dhindsa was a part of, pre-knife, that is capable of supporting the argument that he consented to activity the essential nature of which included a knife or any potential for a weapon of any kind to be introduced.

III. Conclusion

[75] I find Garrido not guilty on both counts.

[76] The Crown invites this Court to find Garrido guilty of possession of a weapon, the knife, for a dangerous purpose, contrary to subsection 88(1) of the Criminal Code. I decline to do so.

[77] I agree with the Crown that Garrido, contrary to his own evidence, certainly went to the party knowing that he had with him the knife. I agree further that Garrido had the knife for protection, as he told Joseph upon his arrest. And it is true that one can be convicted of the offence under subsection 88(1) even with a finding of fact that the accused armed himself for defensive purposes. R. v. Kerr, 2004 SCC 44.

[78] Here, however, I am not satisfied that Garrido went to the party with any hint of criminal intent, or even recklessness, with regard to the knife. There is insufficient evidence to conclude that he, while at the party, thought about the knife at all until very shortly before Dhindsa was cut. If one accepts that the dangerous act must be more than simply having the knife in his pocket, such as exposing the knife in any way while at the party, there is no evidence of any premeditation on the part of Garrido to do that.

[79] Finally, I wish Dhindsa continued recovery from his injury. I do not share the characterization put forward by the Defence that Dhindsa, or McClearly for that matter, lied at trial. Some verdicts are simply the result of the burden and standard of proof applicable to criminal prosecutions.

[80] I thank both counsel, Mr. Khoorshed and Ms. Ross, for conducting a well-run trial.

Conlan J.

Released: September 28, 2018

COURT FILE NO.: 116/17 DATE: 2018 09 28 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – AUSTEN GARRIDO REASONS FOR JUDGMENT Conlan J. Released: September 28, 2018