R. v. Aghtai, 2023 BCSC 195

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Aghtai, 2023 BCSC 195 Date: 20230127 Docket: 32943-1 Registry: Vancouver Rex v. Taymour Aghtai Before: The Honourable Associate Chief Justice H. Holmes Restriction on publication: A publication ban has been imposed under

section 486.4 of the Criminal Code restricting the publication,broadcasting or transmission in any way of information that could identify the person referred to in this judgment by the initials KC. This publication ban applies indefinitely subject to further order of the Court. Oral Reasons for Judgment These reasons for judgment have been correctedon the cover page on March 8, 2023. Counsel for the Crown: M. MerryCounsel for the Accused: J.

OppalPlace and Date of Trial: Vancouver, B.C.November 28-30, 2022December 1, 5-9, 2022Place and Date of Judgment: Vancouver, B.C.January 27, 2023 INTRODUCTION [1] Taymour Aghtai is charged with a range of offences against KC, including unlawful confinement and various forms of assault,all relating to a visit KC made to Mr. Aghtai’s apartment in Richmond, BC. [2] KC testified that when he went to Mr.

Aghtai’s apartment to pick up some belongings he had left the day before, he was hit frombehind on the head and was restrained by handcuffs and zap straps, before he was then assaulted in various ways and humiliated over thecourse of the next approximately 30 hours by Mr. Aghtai and others KC knew. Mr. Aghtai was not the main aggressor according to KC,but he played a very significant role. [3] Mr. Aghtai testified that KC willingly stayed at the apartment, and was at no time subject to any restraint, violence, or abuse ofany type that Mr.

Aghtai inflicted or witnessed. [4] I will begin by outlining in more detail first KC’s evidence and then Mr. Aghtai’s. They were the only witnesses with first-handevidence about what, if anything, took place in the apartment at the relevant times. [5] After commenting on some of the strengths and weaknesses of KC’s and Mr. Aghtai’s evidence, I will then apply the principlesin R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, to discuss whether on the whole of the evidence, which included theevidence of other witnesses as well as exhibits and admissions of fact, the Crown has proven the offences beyond a reasonable doubt.

KC’S EVIDENCE Introduction [6] KC’s background and his relationship with Mr. Aghtai and the others said to have been involved in the offences were notdisputed in the trial. [7] KC, who is now 28 years old, met Mr. Aghtai when they were in their teens, and the two began buying and selling things to andfrom each other. At the time of the alleged offences, Mr. Aghtai was operating a business buying and selling merchandise from hishome, and KC occasionally supplied or purchased items. [8] There is no dispute that on September 3, 2020, the day before the events that gave rise to the charges, KC went to Mr. Aghtai’s

apartment near the Olympic Oval to buy a cell phone. Nor is there any dispute that KC returned to the apartment on September 4, 2020, the day of the alleged offences, to recover some belongings he had left behind, and stayed overnight until late in the day on September 5. [ 9 ] Strongly disputed is what happened during the first visit, as well as during the second. The following sets out KC’s version of the events. First Visit on September 3, 2020 [ 10 ] As to the first visit, KC testified that while he was at Mr. Aghtai’s apartment buying the phone, Mr. Aghtai used another phone to show him a video of Mr.

Aghtai having sexual intercourse with a dog. KC recognized the dog as Cocoa, one of the two dogs that lived with Mr. Aghtai at the time and had previously lived with KC for a period. [ 11 ] KC was disturbed by the video and left the apartment quickly, leaving his old phone behind. He testified that when he got home he told a neighbour, L, about the video. L was someone who also knew Mr. Aghtai. [ 12 ] The evidence about the video was admitted not as evidence of bad conduct by Mr. Aghtai, but rather as evidence of a potential motive on Mr. Aghtai’s part to mistreat KC afterwards, as the Crown alleges.

As I will explain shortly, KC testified that he came to learn that L had recorded the conversation in which KC told L about the dog video, and had sent the recording to Mr. Aghtai. Second Visit on September 4, 2020 [ 13 ] When KC arrived at the apartment building the following day, Adam Snow came down to meet him and take him up to the apartment. Mr. Snow had been a friend of KC’s younger brother, and KC knew him in that capacity as well as an associate of Mr.

Aghtai’s and his business. [ 14 ] KC testified that as he entered the apartment he was struck on the head from behind, and his weapons were removed (a knife and bear spray). Then, in the living room, Mr. Aghtai restrained KC’s hands in police-style metal handcuffs, and strapped his ankles together using “police grade” zap straps. Mr. Aghtai then played him the recording of KC telling L about the dog video, and he told KC that they had something to clear up, and that this would not take long.

KC testified that until this point he had not been aware that L had recorded their conversation the day before. [ 15 ] To this point, the people present in the apartment with KC were Mr. Aghtai, Mr. Snow, and Mr. Aghtai’s girlfriend Desir é e. KC testified that Mr. Aghtai then phoned Brandon Doucette, whose voice KC could hear and recognized, and said, “I’ve got him”, “he’s here”, “I got him tied up”. KC had known Mr. Doucette since early in their teens, and had allowed him and his two dogs (including Cocoa) to live with him for a while earlier in 2020. [ 16 ] KC testified that Mr.

Doucette arrived at the apartment about 40 or so minutes later, and began taunting KC, saying “you are done”, “it’s over”, laughing, spitting on KC, and slapping him around. Mr. Aghtai was in and out of the room at this point. [ 17 ] More than once in his evidence, KC described being hit many times in the face, the back of his head, and the torso. However, KC’s evidence did not make clear exactly when this took place (if it took place in a single episode), or whether it took place over an extended period. [ 18 ] KC testified that a hunting knife was put to his throat many times by Mr.

Aghtai in such a way that KC feared he would die. [ 19 ] He testified that Mr. Aghtai also sprayed bear spray directly into KC’s mouth. Before Mr. Aghtai did this, he asked Mr. Doucette whether he should do it, and Mr. Doucette nodded to indicate he should. This took place in the computer area, close to the bathroom, while KC was still restrained by handcuffs and zap straps. [ 20 ] Restrained and still clothed, KC was then put under a hot shower in the bathroom, with water up to his ankles in the tub.

Three more clouds of bear spray were sprayed into the bathroom, the door was shut with KC in it alone, and a towel was put under the door to block the gap. KC wanted to vomit, despite his empty stomach, but was afraid that doing so would produce harmful toxins, so he concentrated on not vomiting and he used water in the tub to gargle or swish as much bear spray out of his mouth as possible. He also yelled out in pain and discomfort, and continued doing so. [ 21 ] KC testified that after about an hour and a half, Mr. Snow came to help him. After Mr.

Snow wiped KC and tried to dry him, KC’s clothes were then cut off him. Initially in his examination-in-chief, KC testified it was Mr. Snow who cut off the clothes, but later he revised that evidence, and testified that it was Mr. Aghtai who did so. KC testified that he was shamed and humiliated by his nakedness and tried to cover his private parts with his hands. He was still restrained. [ 22 ] KC testified that at this point Mr. Doucette grabbed a broom and tried to ram it up KC’s back end. However, he was unable to penetrate and the broom just hit KC’s tailbone. At that point, Mr. Aghtai was behind Mr.

Doucette, watching and video-recording what was happening to KC, including the following. [ 23 ] Both Mr. Doucette and Mr. Aghtai then told KC to behave as though he was having sex with Amber, the other dog. They told KC to call Amber’s name, and when he did Amber came to KC and he was placed behind her. KC testified that he had no intention of having or appearing to have sex with Amber, and he therefore moved his hips in circles in a “hula hoop” style (that he demonstrated during his testimony). However, this made Mr. Doucette angry, and he hit KC a number of times about the head and chest.

The involvement of the dog went no further. [ 24 ] The next type of abuse KC described was also committed by Mr. Doucette with Mr. Aghtai watching and video-recording. Mr. Doucette used what appeared to be a pistol to hit KC across the head several times in what KC described as a “pistol-whipping”.

This too took place in the bathroom. KC testified that this assault left him with a slight concussion and minor abrasions and bruising on his head. [ 25 ] As I said, KC testified that he had been covering his private parts with his hands. Eventually, Mr. Aghtai gave him a towel. Mr. Aghtai also gave KC some speed, after confirming that he would like some, and this helped ease the irritation in KC’s throat from the bear spray. Mr. Aghtai also gave KC clothing to wear. At that point, Mr. Aghtai told KC to go somewhere else in the apartment, or play on a tablet, as Mr. Aghtai needed to talk to Mr. Doucette.

KC was still handcuffed and restrained. [ 26 ] KC made his way to the couch in the living room, used the tablet, and at some point slept a bit on the floor beside Cocoa. Over the next period of time, KC persuaded Mr. Aghtai a couple of times to take off the handcuffs after assuring him he would not run away. Mr. Aghtai also removed the zap straps at least once, and in using a screwdriver to do so damaged one strap in a way that allowed KC to later kick it off some time after it was reapplied. [ 27 ] At another point, probably around noon the next day, Mr.

Aghtai gave KC some more speed, which again KC appreciated. To this point, KC had had no food and only a glass of water, which he was able to grab when he woke up, as well as a couple of shots of vodka, which Desir é e had given him the evening before when the two of them were outside on the apartment balcony. [ 28 ] Each time Mr. Aghtai gave KC speed, he took him to his bedroom and got the speed from a dresser. One of those times, he showed KC some “really nice watches” he had. He also pointed out a rifle, off to the side in a closet, which to KC looked like a SWAT automatic rifle, and he told KC that Mr.

Doucette would use that next on KC, though, as it turned out, Mr. Doucette never did. [ 29 ] KC had been thinking at various times about how to escape. When on the second day of being confined he was on the balcony alone, at that point not restrained by handcuffs or zap straps, he concluded that a pole running down to a balcony below was sturdy enough to support his weight. After retrieving his shoes from inside the apartment, he climbed over the balcony rail, and slid down the pole to the balcony of the apartment below.

He then ran through the open balcony door leading into to that apartment, through the living area past a Chinese gentleman watching television and his wife washing dishes, and through their front door into the hallway by the elevator. The Chinese gentleman ran after him and tried to grab him, but KC spotted the fire escape stairway and made his way down and outside the building by that route. [ 30 ] KC testified that once outside he saw Mr. Snow and Mr. Doucette running, so he ran in a different direction. However, Mr. Doucette spotted him, and he and Mr. Snow then chased after KC.

KC ran toward traffic to try to get the attention of police or other emergency professionals, but without success. [ 31 ] After taking steps to evade Mr. Snow and Mr. Doucette, and making further unsuccessful efforts to get help, KC eventually reached a public transit station and returned home. He spoke to staff at his residence, and they called the police. MR. AGHTAI’S EVIDENCE Introduction [ 32 ] Mr. Aghtai testified that he was the main resident of the apartment, to which he had moved in approximately June 2020. His girlfriend Desir é e lived there sometimes, and Mr. Doucette did as well from time to time. Mr.

Snow stayed over occasionally. [ 33 ] Mr. Aghtai ran his merchandise business from the apartment, together with his brother Syrus, and he dealt with Mr. Doucette, as well as occasionally with KC. By the time of the events in issue, Mr. Snow was working for Mr. Aghtai in the merchandise business and as a cleaner. [ 34 ] Mr. Aghtai testified that he also worked from the apartment as an IT manager for two of his family’s companies, doing website and IT maintenance. KC’s First Visit on September 3, 2020 [ 35 ] Mr.

Aghtai agreed that KC came to his apartment to buy a phone the day before the visit that gave rise to the charges. However, he testified that that first visit was uneventful, relatively brief, and he strenuously denied showing or even seeing a video depicting bestiality. [ 36 ] Mr. Aghtai also denied communicating with L in the relevant period – L was the person who, KC testified, recorded KC’s conversation about the video. KC’s Second Visit on September 4, 2020 [ 37 ] Mr. Aghtai also agreed that KC returned the next day, and that Mr.

Snow went down to bring him up to the apartment. [ 38 ] However, he testified that KC’s visit this time was not simply for KC to retrieve items he had left behind the day before. It was also because KC wanted Mr. Aghtai to set up a phone plan for him on the phone he had purchased the day before, and he did so. [ 39 ] In further evidence that was different from KC’s, Mr. Aghtai testified that Mr. Doucette, as well as Mr. Snow and Desir é e, were present with him when KC arrived. [ 40 ] Mr. Aghtai testified that nothing remarkable happened to KC during that visit. Mr. Aghtai sat with KC on the couch, and helped

him set up the phone plan. KC ended up staying over, as he often had at Mr. Aghtai’s previous apartment in downtown Vancouver, andhe slept on an air mattress in the living room. KC was free at all times to leave – indeed, Mr. Aghtai believed KC may have left theapartment to smoke at one point. [41] In particular, KC was never assaulted or abused in any way that Mr. Aghtai observed. [42] Mr. Aghtai noted that he left the apartment a few times over the period in issue, but he described absences for relatively shortperiods, for example to walk the dogs.

Moreover, he was definitely present for the first 15 minutes after KC arrived, and KC was not hiton the head or assaulted in any way in that period, and was never handcuffed or restrained. [43] Nobody ever pointed weapons at KC, sprayed him with bear spray, or attacked him in a sexual manner. Nor did anyone video-record KC. [44] KC’s clothes were never cut or removed from KC against his will. KC may well have been given clothing, but that was becausehe stayed overnight. [45] Mr. Aghtai testified that KC and Mr.

Doucette did have a heated discussion, but that was not significant because the two of themalways argued. KC agreed in his evidence that his relationship with Mr. Doucette was a bad one at the time of the events. [46] Mr. Aghtai testified further that he would not have tolerated the type of mistreatment KC described – far less have committed ithimself. He operated “an illegal fencing business” from his apartment, which involved “some stolen goods”, and he would not havewanted unnecessary attention there.

Also, a warrant was outstanding for his arrest as a result of a breach of a condition of a conditionalsentence order. For these reasons, if Mr. Aghtai had become aware of an attack of the kind KC described, he would have doneeverything in his power to stop it or, at least, to eject Mr. Doucette and KC from the apartment. THE ANAlySIS REQUIRED BY R. v.

W.(D.) [47] In W.(D.) at 758, Cory J. set out the framework to be applied to findings of credibility in criminal cases where the defenceprovides evidence in direct conflict with the Crown’s evidence: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Our Court of Appeal proposed a fourth prong in R. v.

C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.): If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [48] W.(D.) reminds trial judges about the right of an accused person to be presumed innocent, and the obligation on the Crown toprove each element of an offence beyond a reasonable doubt. An accused person must be found not guilty if they give evidence thatraises a reasonable doubt, even if the contrary evidence of the complainant is, on balance, more convincing than the accused’s.

The errorin W.(D.) was that the trial judge instructed the jury that their task was to decide which of the two versions, the complainant’s or theaccused’s, they accepted, thus excluding the third alternative of not necessarily believing the accused but having a reasonable doubt onthe whole of the evidence. [49] The task is not to choose between the Crown’s and the defence’s version of events. However, this does not require the trier offact to consider the accused’s evidence in isolation from the other evidence in the trial, including the complainant’s evidence.

Theaccused’s evidence must be considered in the context of the evidence as a whole: R. v. Dinardo, 2008 SCC 24 at para. 23. [50] This issue arose in R. v. Manj, [1995] B.C.J. No. 1059 (C.A.), leave to appeal to SCC ref’d, [1995] S.C.C.A. No. 373, where thejudge initially said he found both the complainant’s and the accused’s stories to be believable, but after considering their demeanour andboth their stories and applying “human experience”, concluded that “the Crown has made their case beyond a reasonable doubt, and I donot accept Mr.

Manj's story so as to raise a reasonable doubt.” The conviction was set aside on a

summary conviction appeal, partly onthe basis that the judge did not comply with W.(D.) because he appeared to have “preferred the evidence of the complainant to that of theappellant”. On further appeal, a majority of the Court of Appeal disagreed. [51] In her majority judgment, Ryan J.A. distinguished between the process of deciding what evidence to believe, on the one hand,and the process of reaching a verdict based on those findings, on the other: [39] Before leaving this aspect of the case I find it necessary to add this note. Both the

summary conviction appeal judge and mycolleague rely to some degree on R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 for the resolution of this issue against thetrial judge. I cannot agree with their reasoning. In my view, R. v. W.(D.) dealt with the instructions a trial judge should give to a jury asto how they ought to treat their conclusions about credibility. The case does not define a course the jury must take in reaching theseconclusions. That, of course, is an area reserved only for the trier of fact. In other words the case of R. v.

W.(D.) is concerned with howthe jury must apply the results of their deliberations, it is not a guide to how they must go about settling issues of credibility. [52] More specifically, Madam Justice Ryan concluded that there is nothing wrong with comparing the stories of the complainant andthe accused as part of the process of deciding what evidence to believe. The error that W.(D.) seeks to prevent is not the comparing ofthe two stories, but rather the conclusion that the trier of fact must choose one or the other as true:

[29] What the trial judge was clearly saying is that on the face of it the complainant and the accused were both believable. If examinedin isolation both stories could be true. He was saying that what he must do is examine the demeanour of the witnesses, compare theirstories and apply human experience to the analysis. This is what rational people do when confronted with two plausible versions ofevents. [30] At this stage of the analysis nothing should be made of the fact that the trial judge sought to compare the two stories. This is anappropriate step in assessing credibility.

If any authority be needed for that proposition it lies in the words of McIntyre, J. where he saidin R. v. Brown and Murphy, (SCC), [1985] 2 S.C.R. 273 [at] p. 275: The trial judge on conflicting evidence found that the appellants were guilty. In doing so he based his conclusion on findings ofcredibility. He believed the complainant and he disbelieved the appellants. In his reasons for judgment he reviewed her evidence. Herecognized certain inconsistencies in her testimony, and he noted as well corroborative facts which supported it.

He found significantcorroboration of her evidence in the medical testimony which included observations by the examining physician of abrasions upon herback that were consistent with her account of events. He weighed and balanced her evidence against that of the appellants and made hisfinding of credibility upon that comparison.... [31] It is only where the trial judge perceives that he is mandated to choose between stories which, after all the tests have been applied,are both credible that he falls into error. [53] See also R. v.

Pangan (1996), (BC CA), 85 B.C.A.C. 54, where Ryan J.A., writing for the Court, reasonedsimilarly: [40] It is important to examine what we mean when we say that "a trial is not a credibility contest" because in some ways that statementcan be misleading. The jury has two functions - to weigh the evidence for the purpose of reaching conclusions of fact, and, to apply thelaw to the facts that they find. When the jury engages in the first function - weighing the evidence - a trial is, in a sense, a "credibilitycontest".

In a case such as this where the accused and the complainant give opposing versions of what occurred, the jury must try todetermine who and what to believe, and, who and what not to believe. The jury cannot convict unless it accepts the evidence of thecomplainant as true, and rejects the evidence of the accused as untrue. The vital point is that the jury must not be left with theimpression that they have no choice but to pick one version of events over another. The members of the jury are entitled to reach theconclusion that the issue of credibility cannot be resolved.

Once the members of the jury have reached whatever conclusions theychoose to draw from the evidence they must then apply the law to their findings of fact or their lack of findings, as the case may be. It ishere that they must apply the law as expressed in R. v. W.(D.), supra. FINDINGS ABOUT KC’S AND MR. AGHTAI’S EVIDENCE KC’s Evidence [54] There are several aspects of KC’s character and background that require close consideration, because they have the potential tonegatively affect KC’s credibility and/or the reliability of his evidence.

Criminal Record [55] These include that KC has a criminal record for a variety of offences, including breaking and entering. Drug History and Use at Time of Alleged Offences [56] Also, KC has a long and unfortunate history of drug use and addiction. He testified that he generally receives prescribed herointhree times per day for maintenance purposes, but that he had not gone to the clinic to receive that drug during, approximately, the monthbefore the trial. He testified that he also uses other drugs, including fentanyl, crystal meth, and occasionally crack cocaine.

It wasimplicit in his evidence that some of the drugs were illegally obtained. [57] KC acknowledged in cross-examination that he had smoked street drugs on at least two of the days when he came to court for thetrial. However, he explained that he was not intoxicated by them.

Rather, they functioned for maintenance purposes, in the same way asmethadone. [58] KC’s drug use was evidently complex, but I find KC understood it reasonably well, including the consequences for him of nothaving received his prescribed doses for approximately one month. [59] KC testified that he was sober when he went to the Richmond apartment on the day of the events. I also accept that, as KCtestified, neither the speed he was given at the apartment nor his abstinence from other drugs he might have used had he not been at theapartment, interfered with his perception or

interpretation of the events as they unfolded. [60] On the evidence as a whole, I find no basis for concern that KC’s evidence or his recollection may have been distorted ormotivated by the effects of drugs – or his temporary abstention from some. Hostility Toward Mr. Doucette and/or Mr. Aghtai [61] I take into account also that KC had, as he acknowledged, a history of disputes and hostility with Mr. Doucette during whichMr. Doucette had assaulted KC or his brother on several occasions, including by using bear spray, and that generally Mr. Doucetteseemed to get the better of KC. At least some of the disputes seemed to be over the division of the spoils of one or more of their crimestogether.

[ 62 ] This requires me to consider whether KC may have had a motive to make false or exaggerated allegations against Mr. Doucette and others with whom Mr. Doucette associated. I also consider whether their history of strife may have distorted KC’s perception of Mr. Doucette’s (and his associates’) conduct or intentions. [ 63 ] However, I find no basis in the evidence to conclude that either of these effects in fact played a part. [ 64 ] KC also had a dispute with Mr. Aghtai over a business deal for a laptop in which Mr.

Aghtai got the better of KC. [ 65 ] KC readily acknowledged that dispute, but testified that it was in the past and that business between the two continued. This finds support in the undisputed evidence that KC bought a phone from Mr. Aghtai the day before the events. [ 66 ] I find no basis on which to conclude that KC was motivated to falsely implicate Mr. Aghtai. Using the Charges for KC’s Own Purposes [ 67 ] KC has also shown himself willing to use these charges for his own purposes. [ 68 ] Mr.

Aghtai’s brother, Syrus Aghtai, testified that KC repeatedly tried to reach him by telephone, and then sent texts offering to drop the charges in return for payment of $3,000. He produced copies of the text messages to support this evidence. [ 69 ] When KC was asked in cross-examination whether he offered to “get the charges dropped” in return for payment, KC quickly admitted that at one point he did.

He made this admission before Syrus Aghtai testified (for the defence), and before KC was confronted by the copies of his text message exchange with Syrus Aghtai. [ 70 ] KC was not willing to agree that the photocopied screenshots shown to him in cross-examination were authentic copies of his text exchange with Syrus Aghtai, but he agreed that he had such an exchange with roughly the content shown in the photocopies. I do not agree with the defence that KC was equivocal on this point. [ 71 ] When it was then suggested to KC that he had been willing to lie in exchange for money, he strongly disagreed.

He explained that he understood at the time he made the offer that it was within his power to drop the charges, and that he was willing to do so if compensated for his suffering and losses from the events, which he valued at the $3,000 figure he put to Syrus Aghtai. [ 72 ] The evidence about the offer to Syrus Aghtai shows a willingness on KC’s part to use the criminal justice system for his own purposes, but it does not, in my view, show a willingness to lie. KC’s explanation that he was willing to drop the charges if properly compensated for the harm he had suffered had a certain logic.

His reasoning was unfortunate from a social policy perspective, but it did not mean he was willing to lie. Inconsistencies Within KC’s Evidence [ 73 ] There are inconsistencies to consider within KC’s evidence and with some other evidence, because they may indicate that the evidence is not reliable. The Phone on which the Dog Video was Shown [ 74 ] For example, KC testified that the phone on which Mr. Aghtai showed him the dog video was a Samsung S22 Ultra. He also testified that Mr. Aghtai spoke to him at the time about it being a Samsung S22.

However, cross-examination made clear that the phone cannot have been a Samsung S22 because that type of phone was not available in September 2020. [ 75 ] KC was therefore incorrect in his evidence on that point in a way that bears on the reliability of his evidence. However, it does not affect his credibility, in my view. KC acknowledged his error, and testified that the phone must have been a Samsung S21 or a Samsung S20, both of which he testified look the same as a Samsung S22 – and he described the features, which he said he remembered the phone having.

Nothing in the evidence suggested that KC was incorrect in his evidence that the S20, S21, and S22 phones were similar in appearance. [ 76 ] In my view, the error shows some unreliability in the form of a lack of precision in KC’s evidence, but is of relatively little consequence. Mr. Aghtai Threatening KC with a Hunting Knife [ 77 ] Also, KC’s evidence about Mr.

Aghtai threatening him with a hunting knife was inconsistent with his statements to the police, in neither of which did he mention a knife. [ 78 ] Confronted by this in cross-examination, KC responded that he was pretty sure that he told a police officer taking the first statement in the presence of a staff member at his residence, but it was possible that he did not, because he was concussed and he was focussing mainly on what Mr. Doucette had done to him. [ 79 ] As to the second police statement, KC explained that he may have left out reference to the knife because he was scared of Mr. Aghtai.

Sequence of the Alleged Broom and Dog Incidents [ 80 ] Mr. Aghtai submits that KC’s evidence about the sequence in which the broom and dog incidents took place was inconsistent

with KC’s police statement on this point. [ 81 ] In his evidence, KC maintained that the broom incident happened before the dog incident. In cross-examination, it was suggested that KC gave the reverse sequence when he told the police that Mr. Doucette assaulted him with the broom because KC was “not going to do the dog thing”. [ 82 ] KC disagreed with the suggestion that through that statement he was telling the police that the dog incident came first.

KC said that his police statement on this point was vaguely worded. [ 83 ] The defence submits that KC’s explanation was unconvincing, but I cannot agree. [ 84 ] The suggestion put to KC seemed to rest on the assumption that in saying that the broom was used because KC was “not going to do the dog thing”, KC meant that he had already been told to do “the dog thing” and had refused. KC’s language in the police statement is capable of supporting that

interpretation.

But it is also capable of supporting the different meaning KC testified he meant it to have. [ 85 ] KC was asked on two occasions in cross-examination about the suggested inconsistency, and his responses as a whole made clear that he understood the use of the broom as intended to break down his will so that he would then cooperate in what was planned with the dog. [ 86 ] Viewed in light of KC’s explanation and, more generally, in light of KC’s use of language, which was often imprecise, I accept KC’s explanation about what he meant in his police statement, namely that the broom was used to instil fear and get compliance with what was to come next. [ 87 ] KC’s evidence about the sequence is therefore not inconsistent with what he told the police.

Sequence of Events After KC Arrived [ 88 ] The defence submits that KC gave inconsistent evidence about the sequence of events when he arrived at the apartment for the second visit. On one hand, he testified that the first thing was that he was hit on the head. On the other, he also agreed that he removed his shoes at Mr. Aghtai’s request immediately on entering. [ 89 ] In my view, without more this was not inconsistent evidence. [ 90 ] When KC testified that being hit on the head was the first thing that happened, he was essentially recounting a list of the bad things that happened to him.

He was not detailing everything that took place, however benign.

Generally [ 91 ] Generally, KC impressed me as concerned to be truthful and accurate. [ 92 ] He readily acknowledged facts in his history that reflect badly on him. [ 93 ] He was concerned to ensure that his evidence was accurate, and sometimes corrected himself when he realized that his memory had been faulty on a point. [ 94 ] When confronted by inconsistent evidence, or possibilities different from what he had recounted, he considered the evidence or suggestion, and sometimes acknowledged that he may have been in error. [ 95 ] While, as I have said, there is some imprecision in KC’s evidence, I find it generally reliable, largely because it includes many distinctive and compelling details that give it the “ring of truth”, and because many of the details KC recounted are supported by other evidence, as I will discuss later. [ 96 ] I turn now to examine Mr.

Aghtai’s evidence. Mr. Aghtai’s Evidence [ 97 ] Mr. Aghtai emphasized the negative aspects of KC’s background and character, while minimizing those of his own. [ 98 ] For example, Mr. Aghtai readily acknowledged his lengthy criminal record, but he had an explanation for almost every offence that tended to characterize it as less serious than it might otherwise appear. For example, he explained his CSO breach (in travelling to Vancouver Island to help Desir é e travel back) as though it were inevitable in the circumstances, when in fact it was clearly his conscious choice. [ 99 ] By contrast, Mr.

Aghtai described KC and Mr. Doucette as criminals. He also made frequent and unnecessary reference to KC’s history of substance use. [ 100 ] Mr. Aghtai was not on trial for diminishing KC or for diverting his evidence to irrelevant matters in order to present himself in the best possible light.

However, that he did so in my view showed him to be more concerned about the overall arc or strategy of his evidence, rather than the details of the facts important for the Court to understand and determine. [ 101 ] In saying this, I acknowledge that testifying as an accused person facing serious charges must be one of the more stressful situations in life, in which the accused is genuinely motivated to ensure that every piece of information helpful to them is before the court.

[ 102 ] Similarly, Mr. Aghtai sometimes tailored his responses to his apparent purpose in giving the evidence. [ 103 ] For example, describing his merchandise business in examination-in-chief, he testified that while he would not buy obviously stolen goods, he did make purchases from “questionable sources”, referring to KC and Mr. Doucette as examples. However, he noted that even phone stores deal with people “like them”, while adding that in all honesty he was motivated mainly by the money. This evidence downplayed the illegal aspects of the merchandise business and attributed them largely to KC, as well as Mr.

Doucette. [ 104 ] By contrast, when he was later explaining why he would not have allowed the mistreatment KC described to have taken place in the apartment, Mr. Aghtai’s first reason was more blunt, namely that he was “fencing stolen goods” from the apartment and would not have wanted police or other attention that the mistreatment KC described could have brought. [ 105 ] Mr.

Aghtai also, I find, distanced himself from some of the items found in the apartment that provided support for KC’s account of the events. [ 106 ] In particular, he maintained that one of the two closets (referred to in the trial as closet #2) in his bedroom was used by Mr. Doucette, not himself, and that the several cans of bear spray and the realistic-looking imitation firearms the police found in that closet were Mr. Doucette’s, not his own. [ 107 ] The evidence that closet #2 was Mr. Doucette’s was unconvincing for several reasons. As I have said, Mr.

Aghtai clearly considered the apartment to be his, with others staying only temporarily. The main bedroom was plainly Mr. Aghtai’s, with Desir é e sharing it from time to time, and even Desir é e did not have the use of either of the main bedroom closets. Also, Mr. Aghtai’s wallet was found on a top shelf of closet #2, and there was no explanation in the evidence for why it was there if the items in that closet were Mr. Doucette’s. Mr.

Aghtai alluded to things having been moved during the police search, and some things were; however, the evidence was clear that the wallet was first located were I indicated, and was moved only afterwards. [ 108 ] Mr. Aghtai’s efforts to distance himself from the imitation firearms and the bear spray found in the closet do not of themselves indicate that he used some or all of those items against KC, or intentionally made them available to Mr. Doucette to so use. However, they reflect badly on his credibility as a witness. [ 109 ] Mr.

Aghtai tried equally to distance himself from KC’s departure from the apartment by way of the exterior balcony. He testified that he was in his bedroom and was alerted by the others, who then ran downstairs and outside while Mr. Aghtai followed more slowly. This evidence was generally consistent with the evidence from video surveillance in the apartment building. [ 110 ] Mr. Aghtai did not address in his evidence why KC might have chosen to depart in this way. Mr. Aghtai was not obliged to explain KC’s behaviour.

However, KC’s behaviour was an undisputed fact, and was extraordinary if his visit was as uneventful as Mr. Aghtai testified. It led Mr. Doucette and Mr. Snow to run after KC, Desir é e to leave the building, and Mr. Aghtai to leave his bedroom and go down to one of the building exits, as shown in the building’s surveillance video. Yet Mr. Aghtai gave little, if any, detail in his evidence about how he and others reacted to the behaviour, especially since Mr. Doucette and Mr. Snow lost KC. If Mr.

Aghtai was concerned for KC’s welfare as a result of his seemingly bizarre behaviour, he did not say so in his evidence, and he gave no evidence of following up with KC to make sure he was all right. If Mr. Aghtai understood Mr. Doucette and Mr. Snow to be trying to stop KC, he did not explain this, or the apparent reason. [ 111 ] To the opposite effect, Mr. Aghtai agreed in cross-examination that he told the police that nothing significant happened that day (the day of the events that led to the charges) except that KC and Mr.

Doucette may have had a little argument. [ 112 ] Finally, I note also that some of the offences on Mr. Aghtai’s criminal record (such as conveying a false message with intent to alarm; obtaining by false pretences; and fraud) have falsehood at their core. This too weighs against Mr. Aghtai’s credibility.

Other Evidence or Absences from the Evidence [ 113 ] As the defence submits, the evidence as a whole has potentially significant gaps. [ 114 ] For example, there was no evidence to suggest that anyone in the apartment building heard KC yelling from the bathroom, as KC testified he did for over an hour the day before his escape. [ 115 ] However, I note that the bathroom concerned was the interior bathroom in the suite, with no windows. [ 116 ] Also, no cut-up clothing was found in the apartment.

Some discarded boxers were found in the bathroom, but the evidence did not establish that they were KC’s, or that they had been cut. [ 117 ] No “Rambo-style” hunting knife was found, similar to the knife KC said Mr. Aghtai held to his throat and also used to cut off his clothing. [ 118 ] There was no evidence of bear spray residue or after-effects in the apartment or elsewhere in the building. However, this was a relatively new building, and Mr.

Aghtai confirmed that the bathrooms were equipped with working fans. [ 119 ] Nor was any video-footage found on any of the devices found in the apartment showing either the dog-sex video KC testified was shown to him on his first visit, or the abuse he said he suffered on the second visit as video-recorded, he testified, by Mr. Aghtai and others. [ 120 ] However, there was ample time between KC’s departure from the apartment on September 5 and the search on September 12 for any such videos to have been deleted.

Also, many of the approximately 26 seized devices from the apartment (which were only a portion of the total number there) were not analyzed. I do not fault the police for failing to seize all the devices, or to at least seek authorization

to search all of those they did seize, because to have done so would have made the investigation unmanageable. However, the fact is that the evidence does not include evidence of the video-recordings KC described. [ 121 ] Significantly, KC’s account of the events was supported on many points by evidence from other, objective sources. [ 122 ] For example, KC described the broom used to assault him as a red plastic Vileda broom.

A red plastic broom was on the apartment balcony during the police search. [ 123 ] KC described firearms of very similar appearance to the imitation firearms found in the apartment. [ 124 ] KC’s description of the handcuffs used to restrain him was near-identical to those found by the police in the computer area. Mr. Aghtai agreed that these were his. He testified that he bought the handcuffs on Craigslist when he worked for his father’s company as a security guard during the Olympics. [ 125 ] KC testified that Mr. Aghtai retrieved the speed he gave KC from the dresser in his bedroom.

Photographs taken during the search show a small dresser in that room, which has little other furniture apart from the bed. [ 126 ] KC testified that Mr. Aghtai also showed him some nice watches in his bedroom, and indeed the police found a row of watches in Mr. Aghtai’s bedroom closet. [ 127 ] I recognize that even if KC had not been mistreated in the apartment, he was there for a considerable length of time and may have had an opportunity to see some of these items. However, I find it very unlikely that he would have noticed them all, because many of them were in Mr. Aghtai’s bedroom, some stored away.

By all accounts, KC spent most of his time in the living area. It was also clear from the evidence as a whole, including Mr. Aghtai’s, as I conclude, that his bedroom was very much his own domain, despite his evidence that Mr. Doucette used one of the closets in the bedroom, and that Desir é e sometimes slept there with him unless she preferred to use the second bedroom. [ 128 ] Also, Mr.

Aghtai testified that KC had been to his apartment on previous occasions as well, but he made no suggestion that KC had reason to see the distinctive items I have mentioned on those occasions [ 129 ] Nor was it suggested to KC that he had the opportunity to see those items during the previous visits or, indeed, during the period of the alleged offences. [ 130 ] Brett Marshall, a social worker who had known KC for a year and a half, testified that when he saw KC on September 6, 2020, which was the day after KC left Mr. Aghtai’s apartment, KC presented in an unusual way, and appeared exhausted and scared. Mr.

Marshall also felt a large marble-sized bump on KC’s head. [ 131 ] A police officer who obtained a statement from KC three days later, on September 9, 2020, did not see any cuts, bruises, or bumps on KC’s head, but he did see some other small marks on KC’s face and abdomen. More significantly, he saw small cuts and minor bruising around the back of KC’s ankle.

Photographs of the ankle show marks in a position consistent with the “penguin movement” which KC testified he used to move around the apartment while shackled with zap straps. [ 132 ] KC’s evidence about his escape was largely consistent with the evidence of Chunkee Wong, the neighbour whose balcony KC slid down to, and through whose apartment KC ran. KC’s evidence included distinctive details given also by Mr. Wong, such as that Mr. Wong was watching TV and his wife was washing dishes. Mr.

Wong gave different evidence from KC’s about how KC left the elevator area outside the Wong apartment, but I conclude KC was the more accurate and Mr. Wong’s memory was unsurprisingly somewhat overcome by the shock that the events must have caused him. [ 133 ] Also, a few minutes after KC had left Mr. Wong’s floor, Mr. Wong saw him outside, running away. [ 134 ] As well, surveillance video evidence largely confirmed KC’s evidence that Mr. Doucette and Mr. Snow ran after him as he ran away from the building. [ 135 ] Mr.

Aghtai testified that Desir é e told him that KC seemed to be trying to commit suicide, but there was nothing further in the evidence to support that proposition. Also, no suggestion was made to KC in cross-examination that he left in the way he did for that or any reason other than to flee the abuse he had been suffering. [ 136 ] That KC was fleeing is consistent also with Mr. Wong’s evidence that KC seemed scared, as well as with Mr.

Marshall’s evidence about KC’s demeanour the next day. [ 137 ] I have considered whether some other reason may explain KC’s unusual way of leaving the apartment, and can find none with any support in the evidence.

KC has a complex history with drugs, but there is no basis for concluding that he may have suffered some form of delusion or psychosis that caused him to feel mistreated or threatened when he was not, and such would seem inconsistent with KC’s recollection of specific and distinctive details relating to the events from which he said he was fleeing that were confirmed, as I have noted, by other evidence, as well as with the length of time KC spent at the apartment. Also, Mr.

Aghtai in his evidence noted nothing unusual about KC’s appearance or behaviour. [ 138 ] KC’s credibility about his reason for leaving the apartment in the way he did finds support also in Mr. Wong’s evidence that KC told him to call 911. KC himself did not give that evidence – he was not asked about it specifically, and he did not offer it – but I accept Mr.

Wong’s evidence that KC made the statement. [ 139 ] As, effectively, a prior consistent statement of KC’s, the evidence of the statement was admitted only as evidence relating to KC’s credibility, and not as direct evidence that KC was in fact in need of 911 assistance because he was fleeing.

[ 140 ] The statement assists the Crown in this way, but it is not necessary to my conclusions. [ 141 ] Most significantly, it is abundantly clear that KC left Mr. Aghtai’s apartment, which was several floors above the ground, by sliding down a pole from the balcony to the balcony below it. (Mr. Aghtai’s apartment is on the 5th floor and Mr. Wong’s on the 3rd, but the building has no 4th floor.) This was extraordinary behaviour that, on the evidence, had no explanation except that KC was fleeing from a situation that was worse than the risks he would face by leaving in the way he did.

Conclusions about the Evidence [ 142 ] Considering Mr. Aghtai’s evidence in the context of the evidence as a whole, I do not accept it, and it does not raise a reasonable doubt about the allegations, broadly speaking, that he and others unlawfully confined and restrained KC and subjected him to mistreatment of various types. [ 143 ] Further, I find that the evidence as a whole does establish those broad allegations beyond a reasonable doubt. [ 144 ] I turn now to consider the particular offences charged, and whether, for each, the evidence as a whole proves each of the elements, including that Mr.

Aghtai committed it (whether “actually” or by aiding or abetting the offence). Unlawful Confinement – count 5 [ 145 ] The evidence establishes overwhelmingly that Mr. Aghtai restrained KC with handcuffs and zap straps almost as soon as KC arrived at the apartment on September 4, and kept KC restrained (sometimes physically, using the handcuffs and zap straps, and sometimes by using threats and intimidation) until KC escaped approximately 30 hours later. [ 146 ] This amounted to unlawful confinement, as defined by s. 279(2).

Use Imitation Firearm in relation to Unlawful Confinement – count 6 [ 147 ] The evidence also establishes beyond a reasonable doubt that Mr. Aghtai used an imitation firearm while committing the unlawful confinement. [ 148 ] He did so in two ways. [ 149 ] First, he was a party to the pistol whipping Mr. Doucette inflicted on KC after the broom and dog incidents. Mr. Aghtai had been video-recording those incidents, and, while the evidence did not establish whether he continued doing so when the abuse turned to pistol- whipping, it does establish that Mr.

Aghtai did nothing to stop that abuse, to assist KC, or to remove the restraints. Rather, Mr. Aghtai’s later comment, when he showed KC another imitation firearm in his bedroom, that Mr. Doucette would use that on him next, made clear that Mr. Aghtai had earlier endorsed the pistol-whipping as a part of the process KC was intended to suffer. [ 150 ] Second, by referring in that way to that other imitation firearm in the bedroom, Mr. Aghtai made “use” of that weapon also, during the unlawful confinement, to further threaten and oppress KC.

Sexual Assault with Weapon – broom handle – count 1 [ 151 ] The evidence establishes beyond a reasonable doubt that Mr. Aghtai was a party to the assault by Mr. Doucette with a broom handle. He both aided and encouraged the assault, not only by maintaining the restraints on KC while the assault was clearly taking place, but also by video-recording the assault and laughing as he did so. Mr. Aghtai was not taken by surprise by, for example, Mr. Doucette acting in a more violent or abusive manner than Mr. Aghtai had expected when he telephoned Mr.

Doucette and told him that he had KC restrained, or at any time later. [ 152 ] The assault was inherently sexual in nature, because of the body area it targeted as well as because KC was naked and obviously embarrassed about being so. [ 153 ] The broom handle was used as a weapon. [ 154 ] Mr. Aghtai committed sexual assault with a weapon. Extortion – count 4 [ 155 ] For similar reasons, the evidence establishes beyond a reasonable doubt that Mr. Aghtai committed extortion. [ 156 ] He did so by aiding and abetting Mr.

Doucette in using threats and violence to induce KC to have or simulate intercourse with a dog, in order to obtain from the events a video-recording of KC doing so. Assault with Weapon – bear spray – count 3 [ 157 ] The evidence establishes beyond a reasonable doubt that Mr. Aghtai fired bear spray directly into KC’s mouth, and that he did so deliberately, after receiving Mr. Doucette’s nod of approval.

[ 158 ] This was an assault with a weapon. Sexual Assault – cutting off clothes – count 2 [ 159 ] The evidence does not establish beyond a reasonable doubt that Mr. Aghtai committed a sexual assault by cutting off KC’s clothes. This is for two separate reasons. (Neither of these relates to the “sexual” element of the conduct.) [ 160 ] First, KC’s evidence changed about who cut off his clothes. As I have noted, KC first testified that Mr. Snow cut off his clothes, but later testified that it was in fact Mr. Aghtai who did so.

KC explained that when he gave the earlier testimony, he “pictured it wrong in [his] head”. [ 161 ] While I think it likely that KC’s revised memory was correct, I am not confident of this beyond a reasonable doubt. [ 162 ] And if it was Mr. Snow who cut off the clothes, I am not satisfied that Mr. Aghtai was a party to that conduct, which I find was somewhat separate from the other forms of abuse inflicted on KC, particularly if it was Mr.

Snow who cut off the clothes. [ 163 ] Second – and this was a point that counsel did not address – it is not clear that in the cutting off of the clothes, force was applied to KC. A sexual assault is an assault with a sexual aspect, and an assault requires that force be applied intentionally to the other person. [ 164 ] Asked how Mr. Aghtai cut off the clothes, KC testified that he used the hunting knife that he at another time put to KC’s throat, and that he cut from the centre. KC gave no further detail. [ 165 ] There was no indication in the evidence that Mr.

Aghtai touched KC’s body, as opposed to his clothes, in this process. Nor was there sufficient evidence from which to infer (and conclude beyond a reasonable doubt) that the clothes were pulled tight on KC’s body as they were cut, such that force was indirectly applied to his body. The evidence did not even reveal how KC was positioned when his clothes were cut off, that is whether he was standing, seated, lying down, or in some other position.

The comments I am about to make are made in the light of this unusually sparse factual context. [ 166 ] There is some authority that arguably supports the proposition that cutting off a person’s clothes by itself amounts to a sexual assault, whether or not force is applied to the person’s body in that process: see R. v. Muchikekwanape , 2002 MBCA 78 , at paras. 52 , 65; R. v. Desjourdy , 2013 ONCJ 170 at paras. 34 , 95.

However, in Muchikekwanape , which is the most authoritative of those cases, the issue relating to force was largely subsumed by the issue relating to whether the assault was sexual in nature. [ 167 ] I very much doubt that Parliament intended to include within the s. 265 definition of assault all forms of abusive conduct, regardless of whether the conduct involves touching (directly or indirectly) the other person’s body. If Parliament had intended such a broad

interpretation of “applies force intentionally to that other person” in s. 265(1)(a), then s. 265(1)(b) (which includes threats to apply force to another person within the definition of assault) would not have been necessary.

VERDICTS [ 168 ] On count 1 – sexual assault with a weapon, namely a broom handle – I find you guilty. [ 169 ] On count 2 – sexual assault – I find you not guilty. [ 170 ] On count 3 – assault with a weapon, namely bear spray – I find you guilty. [ 171 ] On count 4 – extortion – I find you guilty. [ 172 ] On count 5 – unlawful confinement – I find you guilty. [ 173 ] On count 6 – using an imitation firearm in relation to the indictable offence of unlawful confinement – I find you guilty. [ 174 ] The Crown called no evidence relating to count 7.

I find you not guilty on that count. “The Honourable Associate Chief Justice H. Holmes”