



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pashazahiri, 2017 ONCA 60

DATE: 20170123

DOCKET: C61570

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vahid Pashazahiri

Appellant

Wayne Cunningham, for the appellant

Mabel Lai, for the respondent

Heard: January 12, 2017

On appeal from the conviction entered on November 6, 2012,
    by Justice Harriet E. Sachs of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from his conviction for aggravated assault. He was
    acquitted of attempted murder, unlawful confinement, and assault with a weapon.

[2]

The conviction relates to an assault on Malcolm Isaac that occurred in
    the early morning hours of January 21, 2012. According to Isaac, he was
    assaulted by three men in his bedroom, but he could only identify one  Marcus
    Wright. Wright was the brother of Isaacs roommate, Annece Collymore. Isaac and
    Collymore also lived with a third roommate, Dunstan Haynes.

[3]

Earlier in the night, Isaac and Collymore had argued about her living arrangements.
    Collymore had become combative, and Isaac had ultimately told her that she
    would need to find another place to live.

[4]

In response, Collymore had threatened Isaac that she would get her
    brother and his friends to harm him. A short while later, Wright and two other
    men entered Isaacs bedroom and assaulted him. The trial judge concluded that
    the appellant was one of the three assailants, and he was convicted of aggravated
    assault.

[5]

The appellant advances four arguments on this appeal.

[6]

First, he acknowledges that in a judge alone trial, there is no need for
    the trial judge to conduct a formal
Vetrovec
analysis
[1]
,
    as trial judges know the risks inherent in relying on
Vetrovec
witnesses. However, he submits that the trial judge failed to conduct any
    meaningful analysis of the evidence of the two
Vetrovec

witnesses,
    Collymore and Wright.

[7]

We disagree.

[8]

The trial judge expressly cautioned herself that Collymore and Wright
    were
Vetrovec
witnesses whose evidence should not be accepted, unless
    confirmed by other independent evidence. Accordingly, as there was no
    independent confirmation of their testimony that the appellant stabbed Isaac,
    the trial judge could not, and did not, rely upon their evidence in that
    regard.

[9]

However, the trial judge properly considered their evidence on the
    appellants involvement in the attack on Isaac. The trial judges conclusion
    that the appellant participated in the attack was based on a consideration of
    all of the evidence, including the fact that the appellant was with Wright and
    the other attacker immediately before, and immediately after, the attack.
    Moreover, Isaacs blood was found on the appellants pants. Although the trial
    judge acknowledged that it was theoretically possible that this blood might
    have been deposited innocently, she ultimately rejected this proposition, as
    she was entitled to do.

[10]

Secondly, the appellant submits that the trial judge misapprehended the
    evidence of both Haynes and Isaac. In our view, she did not.

[11]

Neither witness purported to identify the appellant as the third
    assailant.

[12]

Haynes testimony was important in that it excluded Clifford Walters 
    Collymores boyfriend  as the third assailant. Haynes witnessed Walters return
    to the apartment building after the attack to return some of Collymores
    possessions. As the trial judge said, it would defy common sense for Walters to
    return to the scene if he had been one of the assailants. These circumstances were
    confirmatory of Walters evidence that he was not one of the assailants. The
    trial judge was entitled to deal with this evidence in the manner that she did.

[13]

Similarly, the trial judge properly considered the evidence of Isaac and
    made findings that were available to her on the record. Isaac testified that he
    was certain that there were three assailants. He stated that Wright was one of
    the assailants and that Collymore and Walters were not. The trial judge was
    entitled to accept Isaacs evidence and did not err in this regard. Isaac had
    met Wright before. Moreover, just before the attack, Wright reminded Isaac that
    he was Collymores brother. The trial judge also did not err in accepting Isaacs
    testimony that Collymore was not in his bedroom, even though Isaac told emergency
    personnel that Collymore was responsible for what happened to him. This
    evidence must be placed in context. Collymore was responsible for instigating
    the attack, but this is not the same as carrying out the actual attack.

[14]

Thirdly, the appellant submits that the trial judge made inconsistent
    findings on Isaacs perceptions inside the bedroom. Again, we disagree.

[15]

A trial judge may accept all, some or none of a witness testimony. Here,
    the trial judge did not err in discounting Isaacs descriptions of his
    assailants, while accepting his evidence on their number and gender.

[16]

Lastly, the appellant submits that the trial judge unreasonably found
    that the appellant was one of the assailants and that Collymore was not. We
    reject this contention.

[17]

As discussed, the trial judge accepted Isaacs evidence that Collymore
    was not in his bedroom while he was being attacked. He saw her in the apartment
    as he was fleeing the premises.

[18]

The totality of the evidence provided support for the trial judges
    finding of the appellants guilt. The trial judges ultimate conclusion that
    the appellant was actively involved in the assault was the product of all of
    the evidence, including: Wrights testimony that the appellant was one of the
    assailants, the reasonable elimination of Collymore and Walters as
    participants, the appellants association with the known assailants immediately
    before and immediately after the attack, and the presence of Isaacs blood on
    the appellants pants.

[19]

For these reasons, the appeal is dismissed.

K.M. Weiler J.A.

S.E. Pepall J.A.

G.T. Trotter
    J.A.





[1]

R. v. Vetrovec
, [1982] 1 S.C.R.
    811.


