R. v. Hassan, 2011 ONCJ 50

Citation: R. v. Hassan , 2011 ONCJ 50 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MOH’D OMAR HASSAN ZABEN ADEL TURKI Before Justice C.S. Dorval Reasons for Judgment released on February 4, 2011 Mr. P. Attia ............................................................................................................. for the Crown Mr. J. Richer ............................................................................................ for the accused, Hasan Mr. K. Matthews ....................................................................................... for the accused, Turki DORVAL, J.:

SUMMARY OF EVIDENCE [ 1 ] Sgt. Moores was a police officer for over 30 years, having worked in a variety of sections ranging from traffic to sexual assault investigations, to patrol. On April 13, 2007 he was off-duty, at the Silver City movie theatres with his son and his son’s friend. They attended to see the movie Pathfinder which was showing in theatre #5. They were seated approximately in the third row of the upper

section of seating. Sgt. Moores observed a group of six or seven male youths enter the theatre. They were loud and boisterous, speaking what he believed to be in the Arabic language. Their entrance attracted attention. One of these youths was walking with the assistance of crutches. Once the movie started, a laser pointer appeared on the screen, generating comments from the audience. Although it could not be determined where this generated from, people were getting annoyed and shouting to stop it. The row in which these individuals were seated became quite verbal.

At one point, a tall male wearing a baseball cap got up, went over to one male in the group of youths and bent over and said something. The response was by means of vulgarities, and the tall male extended his arms, with palms up, as if giving up. He returned to his seat. The officer did not see any employee of the theatre intervene.

An adult male sitting in the same row as the witness said: “Hey you with the white hoodie, knock it off--he’s the one with the laser pointer.” At the end of the movie, one of the males in the group of youths stood up, came up over the railing, stopped and stared up and said: “white hoodie, eh”. Sgt. Moores described this person as a heavy set guy, 160-170 lbs, Middle Eastern, with a little pile of dark curly hair piled on top of his head. He was wearing a black puffy ski jacket.

This individual stood out because of his entrance into the theatre and because of his hair and he was larger than the others. [ 2 ] The group of youths fanned out once in the hallway area and were scanning the crowd exiting the theatre. It seemed that they were looking at people coming out of the theatre. As the crowd started to move down the hallway, they did also. Sgt. Moores’ son was in the washroom and the officer suspected that the situation would escalate, so he started walking towards the popcorn

section when he heard sounds of a fight to the north of the concession area. Once he went around the popcorn stand, he observed one male was on the ground being kicked, he was on his side, with his back to the wall, his head was turned towards the officer, but he was covering up with his arms. There was another male on the ground a short distance away. He then observed two males walk in front of him and start punching people in the back of the head.

These two were described as follows: 1 st person: the one with the puffy jacket previously described, the 2 nd person was a 17-18 year old male, Arabic male with a dark complexion, six foot tall, with an athletic build, with slicked back hair which was oiled, wearing a caramel coloured leather jacket. Sgt. Moores’ evidence at trial was that these males had also been involved with kicking and punching of the male on the floor, although this was not in his notes. Sgt. Moores stepped in, grabbed one, punched him and threw him to the ground and also threw the second one down.

He identified himself as a police officer with his badge and they left. A tall male came up to him holding his right side and bleeding. The officer placed him behind him, up against the wall and a second male arrived, he had been stabbed and was bleeding. These two males were the two males sitting in the same row as the officer during the movie. [ 3 ] The officer used one of their cell phones, updated the police services about the stabbing and once the police arrived, he

directed witnesses to an area then left to drive his son home. He then attended the police station to write a report of his observations. [ 4 ] With respect to the identification of the two persons involved in the punching and kicking, Sgt. Moores stated that there was no one else with a similar description to the curly haired man; he was rotund and had distinctive hair and stood out from the others involved in the altercations. The rotund individual was, according to Sgt. Moores, the first in the group who came in the theatre, the person who looked up at the upper seating area and made a comment.

He was the person that Sgt. Moores focused on. When he was shown exhibit 3, a photo of a jacket worn that night by Husain Zaid, Sgt. Moores stated that the length was consistent with the jacket of the person, and it did remind him of a quilted jacket, although he did not recall as pronounced a diamond pattern as that shown on the photo.

When shown exhibit 4, a photo of the jacket worn by Muhalhal Mahowish he stated that this was similar to the caramel jacket, but that the sleeves on the photo did not look like leather. [ 5 ] Kyle Lapense was working at Silver City Cinemas in April 2007, and was close to the end of his shift, close to 11:30 p.m. He was standing at the door of the manager’s office, on the south side of the complex, when a patron approached him and warned him that a couple of big guys were looking to start something. He looked behind the man and saw two big guys described as Lebanese, walking down the hall quickly.

They confronted white males near the concession area and Mr. Lapense told them to take it outside. One of the white males was wearing an orange and blue jacket. Mr. Lapense repeated his demand, but at this point both the white males and the darker skinned males were yelling. A punch was thrown, but he did not observe who threw the first punch. This started a series of fights between darker skinned men and white males. Approximately 20 people were involved in either fighting or trying to break up the fighting.

The fights moved over to the north side of the complex and he observed a male being pushed into lockers, and blows exchanged. He later saw a trail of blood from this area, but did not see anyone get stabbed. The Lebanese person involved at the lockers then is not one of the two who initiated the first confrontation. He and a co-worker, Faizal, then tried to separate a darker skinned male from the white male he had in a headlock. Faisal put the Lebanese person in the headlock and they were able to free the white male.

He observed a white male being pushed into candy machines, then the white male pulled up his shirt and stated that he had been stabbed and everybody ran. He provided one of his socks to apply pressure to the wound, and then ran to get a first aid kit. Someone administered first aid; he went to wash his hands of blood. He sat down to calm himself, and then heard that they hadn’t gotten too far. He went outside, saw males in hand-cuffs and noticed the first male who had started the verbal confrontation. He asked Cst.

O’Brien to come to him so he could identify this person without having to do so in their presence. [ 6 ] Mr. Frederick Spoke is now a field engineer for PCL Construction but was employed at the Silver City complex in April of 2007, while he was at Ottawa University. In spring of 2007 he was a food supervisor, and spent most of his time in the circle concession stand. He confirmed that there is video surveillance that is angled on cash registers. He confirmed that exhibit 8(

a) would depict his image, but confirmed that contrary to the colors suggested in the photo, he was wearing a black hat, black pants, a light blue button down shirt. On April 13 , 2007 he was instructing new staff on closing, when a commotion started in the south hallway of the complex, and ended up in front of the north hallway. There were many small altercations, but he made particular observations of the altercation nearest the concession stand. He observed one person turtle on the ground (arms over the head protecting himself) and guys around him kicking, punching him.

Outside the north hallway, he saw an assistant manager, Ms. Larose intervene between two parties to try to separate them. He decided to assist as she is not a big person. When he got there, one of the parties threatened him. He then heard a patron say Ottawa Police, and heard that someone had been stabbed. One of the males involved in the other altercation came to get one of the males they were trying to separate and told him it was time to go. They left through the back exit, hustling, and then running.

He followed them outside, and then came back through the complex to the front entrance, to determine where they were going. He testified that he saw them go to Gloucester Mall parking lot and hang around there. They may have joined others before heading to the Mall parking lot. He told the police who were arriving, and the officers went to get them and returned with them. The man involved in the turtle fight was approximately 19-20, heavier set guy with curly hair with a shorter buzz cut around the sides, wearing a dark blue baggie, sportier, polyester type of jacket.

This person was approximately six feet tall, had a rounder face and the hair on top of his head was significantly longer than the sides. He had originally described this jacket as a baseball type of jacket. The man Ms. Larose confronted was wearing an orange leather type jacket that was more fitting, less baggy. In cross- examination, he stated that the jacket was not solid orange jacket, but a band or portion was orange. He saw the heavier set guy again in the location where the police had congregated some people. He believed at trial that he had pointed him out to a police officer.

He did not recall any other individual that looked like the heavier set guy. It is possible that he pointed out the man in the orange jacket. According to the admitted evidence of Cst. Benson, he pointed to Mr. Mahowish, wearing the orange jacket. [ 7 ] On April 18, 2007 Mr. Spoke viewed 5 photo line-ups. The instructions sheets and line-ups shown are filed as exhibits 10 to 18. He identified the defendant in line-up 4, exhibit 10 saying: “He’s the one that grabbed his friend and pulled him out of the lobby area. He was part of the group that was kicking the person on the ground.

This was near the north isles (hallway). Mr. Spoke identified photo 2 on line-up 1 filed as exhibit 12 as a person who was there and was part of the fight. He also identified “the kid on crutches” as photo 6 on line-up 2 (exhibit 14). This was Hasan El-Abbas who was arrested on the scene that evening but is not the male on crutches. [ 8 ] Mr. Spoke was shown the video tape filed as exhibit 61 and stated that image depicted on a still photograph extracted from the video and filed as exhibit 20 is the same person he identified in the photo line-up.

He was then shown photos 23-25 of exhibit 1 and stated that is the type of jacket he was trying to describe as sport type, polyester, dark blue jacket. When shown photo 17 of exhibit 1, Mr. Spoke stated that this was a grey jacket with a diamond pattern to it and that this was different than the jacket he had described. Mr. Spoke did not recognize the jacket depicted in exhibit 4. (worn by Mahawish on arrest)

[ 9 ] Mr. Spoke conceded in cross-examination that he had not described the turtle fight in his statement, but had referred to it during the photo line-up procedure. [ 10 ] Bryan English attended the Silver City Cinemas on April 13, 2007 with two friends: Matthew Scott and Jason Richards. He believes he was seated in the second row from the main aisle. Before and during the movie, someone was using a laser pointer on the screen. At one point a patron went to confront them, and then returned to his seat.

After the movie, several of those who had been seated together got up quickly and lined up outside the theatre and it appeared that they were looking for someone. Mr. English presumed they were looking for the person who had confronted them, and warned the employees of the theatre that there may be problems. As he walked into the lobby area of the theatre, saw a man being confronted and overheard the invitation to take it outside, to which the man replied “no”. A physical altercation followed, although Mr. English was not certain how it started.

A number of people got involved at that point in several smaller fights with others trying to break them up. He witnessed one person being pushed up against the lockers and fall. The fight had moved to the entrance of the north hallway. He saw the male who had initiated the fight running out of the complex through the main entrance that is the east doors. This person was Middle Eastern, had short black hair, had wide sideburns and was wearing a white and orange jacket that was Nascar type of jacket.

The man who confronted them in the theatre and was then confronted in the lobby was tall (approximately 6’2”-6’3”), white male, wearing a shirt and jeans and a black hat. Mr. English was shown line-ups on April 23, 2007 but did not identify anyone. [ 11 ] Mr. Robert Getson went to see the movie Pathfinder on April 13 2007. Mr. Getson is 6’5”, weighs 255 lbs. and is trained in different martial arts. He stated that popcorn was thrown at the screen, a laser pointer was directed at the screen, people were yelling. He assumed the group sitting in the last row of the front

section was responsible as people in front of them were turning around and speaking to them, others went to speak to them and he himself got the attendant employee to come and speak to them. The behaviour continued, so he left the cinema and waited for his friends sitting on a table next to the help desk. He heard a commotion and watched. It started with one male pushing the other, then a swing then it quickly escalated. There were too many involved to determine who were the “good guys or bad guys”. He saw one male who was not part of the “ball” of people, slink forward, shoulders down, hand in pocket.

He started stabbing people with a knife. This was near the lockers. That male then turned and went towards the front entrance. Mr. Getson followed him outside and by the time he got to the door, the person was behind a car, but Mr. Getson could see him through the window. They made eye contact. The person was walking towards Chapters Book Store. Mr. Getson started to walk in the same direction and yelled out to him. The male stopped, turned. His friends came out the door and he yelled to them and they approached. A tall male had words with Mr.

Getson telling him to get out of his way or he would get his knife and stab him. Mr. Getson replied that he would have to get through him first. This male was 6’2”-6’3”, skinny, approximately 160 lbs. His hair was curly on top and shorter on sides, wearing what the witness believed was an orange striped shirt. The male went around him, got in the car. One of the male’s chest bumped him, but he didn’t remember which one. The witness took his phone out and was recording the license plate, although he testified that he made a mistake with the codes on the phone and it turned off.

He just memorized it and had recorded: AJVB884 , and his handwritten recording was difficult to read but seemed to be AVB884 with the possible addition of a J after the A. The male he observed stabbing people was approximately six feet tall, was fat, has shorter brown hair and weighed over 200 lbs. When he viewed the line-ups this witness identified photo 6 on line-up 5 (exhibit 18) as “huge possibility” then “definitely 6” as final comments. He was purporting to identify the stabber, but the male identified was not a suspect in this case.

He was also shown line-up 6 (exhibit 28) but could only say photo 2 was possibly the tall male who confronted him in the parking lot. Once the police attended, he showed them the area where the stabber had gone and provided the license plate as well as a statement. [ 12 ] Ms. Joanie Larose was just completing her master’s degree in exercise physiology when she testified. She is 5’4” and weighs 125 lbs. She is a part-time manager at the Silver City Cinemas and has been employed with them some years.

On the night of April 13, 2007 she was working in the office but talking to an employee at her door when a patron asked to call 911 as there was a group of people starting trouble. She instructed another employee to call, then went to see what was happening. She saw a number of people running towards the north side of the complex, and observed that there were a number of fights happening. She went towards the fight where one person was on the ground being attacked by four or five other guys kicking and punching him. The male on the ground was curled up, protecting his face with his hands.

She went over and pushed two males away and bent down and covered the male’s face. The first person she pushed was kicking the lower part of the male’s body. He was tall, had slick black hair, wearing a tan jacket. The second person she pushed was on the other side of the male, towards the lower back area, kicking the male. He was smaller, thinner, than the other male, was middle-eastern, had curly black hair and was wearing a black jacket to his waist or a little longer. In her statement to the police, the witness stated that this was not a big guy.

Once she covered the face of the male on the ground, they had all left. She observed the tall male in the tan jacket go up to another and take a swing at another person. She tried to grab his arm, but someone else intervened and she saw the smaller guy, the second male she had pushed, go up to the same male and take a swing at him also. Someone else restrained this smaller male and she was pulled out of the fight by a patron who remained in front of her. She does not recall seeing Mr. Stoke at that time.

She then realized someone had been stabbed, went to call an ambulance and upon her return, realized a second person had been stabbed. This second person was of Asian ethnicity. She went to get a first aid kit from Taco Bell and upon her return, she saw the male who had been punched and kicked on the ground, over by the garbage can in the north hallway. She bandaged the wound of one person; others were attending to the others’ injuries. Her role then became directing patrons and then cleaning up of the complex.

She saw blood on the garbage can where she had seen the male standing, as well as on the wall at the southeast corner of the entrance to the north hallway. Ms. Larose viewed line-ups on April 24, 2007. She was told to identify a person only if she was 100% certain. She did not identify anyone from line-up 4, filed as exhibit 10 which does include the photo of the defendant Hassan. She viewed line-up 1 filed as exhibit 12 and identified photo 8 as a person kicking the kid on the ground. That photo is that of Mr. Mahowish. [ 13 ] Mr.

Eion Richards was a patron attending the Silver City Cinemas on April 13, 2007 with two friends: Mathew Scott and

Brian English. He testified that prior to the start of the movie and during the movie; a group of approximately 20 individuals were causing a disturbance. They were loud, obnoxious and pointing a laser pointer at the screen. A lot of patrons were upset and complaining and one patron left, and upon returning, he went over to the group and told them to stop. The leader of the group responded with a comment that was instigating. At the conclusion of the movie, as he exited, he saw some people that belonged to that group waiting outside the theatre.

They formed a line formed in the shape of the letter J and he counted nine males in that group, including the male he called the leader. He counted the males as he suspected something would occur. They seemed to be looking for someone. He proceeded to the main lobby and was positioned between the concession stand and the ticket booth, talking with his friends. He observed a male he described as the instigator, confront the person who had approached them in the theatre and tried to instigate a fight. The person responded to leave him alone and then he saw a hand reach in and push the person.

There was back and forth pushing then the fight was on. The fight moved over to the other side of the complex and his view of what occurred on the northeast side was obstructed. He saw four males exit the complex. [ 14 ] Mr. Richards described the “leader” as approximately 5’9” to 6’1”, olive skin color, black hair, approximately 160 lbs. wearing a sports jacket that was shiny and had orange and blue on it, and jeans. Mr. Richards viewed photo line-up 6 (exhibit 28) on May 6, 2007. According to his understanding, he was to comment on anyone he was fairly certain he recognized as being involved in the altercation.

He identified photo 5 as someone that “looked like” the leader. In cross-examination he stated that he did not use that term in the sense of “similar”, not in comparison but more like “I think I saw that”. He agreed that if he had been 100% certain, he would have said “That’s him”. He testified that he was 99% certain, but not 100%. According to the witness, the only factors that could have made him 100% certain would have been a line-up of real people or the line-up closer in time to the occurrence. This was the photo of the defendant Turki. [ 15 ] Cst.

O’Brien is an officer with the Ottawa Police Service and was in the guns and gangs unit in April 2007. He was dressed in plain clothes. He heard the call with respect to this occurrence on the police radio and decided to attend to render assistance. The scene was chaotic when he arrived. He spoke to other officers and witnesses. He was approached by Kyle Lapense who pointed out four Middle Eastern males outside the complex. He pointed out the defendant Hassan in particular as the instigator.

The defendant was described by the officer as a heavy set Middle Eastern male, wearing a green t-shirt, olive pants, a black jacket, his hair was curly. He approached the male and had a short conversation with him. During this conversation, he noted what appeared to be a red stain and a white stain on Mr. Hassan’s t-shirt. Cst. O’Brien was then advised by Cst. Benson that there were reasonable and probable grounds to arrest this individual and Cst. O’Brien did so. [ 16 ] Zachary Ebel was a patron of the Silver City Cinema on April 13, 2007.

At the time of trial he was a 22 year old student at University of Ottawa, about to graduate with a degree in commerce. He stated that on April 13, 2007 he decided to go see the movie Pathfinder with his friends Garho Lam (Chinese) and Stephane Peev (Caucasian). He had not been drinking alcohol that evening. They went in, bought tickets and went to the cinema. They sat in the upper portion of the middle

section towards the right, approximately three rows from the back. Before the previews started, a large group of males walked in. One of them was on crutches. They were all in the age range of 17 to 22 and their demeanour demonstrated this. They were loud, laughing and joking. As the previews started they continued to be obnoxious and loud and started to use a laser pointer. Other patrons started to tell them to stop it. After approximately 20 minutes of this, the witness left to complain to an usher. The usher came in and watched for 10 minutes then left. As soon as he left, the behaviour resumed.

He decided to go to the washroom and had forgotten his ticket so was returning to his seat to get it when he saw some staff members walking in. He then confronted the group and asked who had the laser pointer. They were arguing that they didn’t have it when another patron yelled out that the one in the hood had it. One person in this group got up and asked Mr. Ebel in an aggressive manner if he had a problem and Mr. Ebel responded that he didn’t but just wanted them to stop using the pointer. He returned to this seat and the disturbance stopped until close to the end of the movie.

Some in the group were turning and looking back. One of the group stated something like: “There he is, the guy with the hat.” Mr. Ebel was wearing a team Canada baseball hat at the time. [ 17 ] The person who had responded that no one had the pointer was male, of middle eastern descent, fairly slender, wearing an orange winter jacket, had very short black hair. The person who had gotten up and asked if Mr.

Ebel had a problem was male, approximately 5’10”, short black hair, darker skin color, wearing a white or light grey hoodie, a silver chain. [ 18 ] When he came out of the theatre, he saw some people lined up outside the door. He tried to avoid eye contact with them, but at one point one of his friends looked up and someone said: “What the fuck are you looking at?” in an aggressive manner. They continued to walk down the hallway, and as they were turning to walk towards the exit, he heard someone say: “Hey the guy in the hat, I want to talk to you.” Mr.

Ebel turned around and the male in the orange jacket walked around to block him from the exit and asked him to go outside. Mr. Ebel declined. Stephane walked beside Mr. Ebel and said that they were not going outside. Mr. Ebel was then pushed although he is not certain it was the man speaking to him that did so. Two people then attacked Stephane and Mr. Ebel. He was trying to hold them at arm’s length to tell them he did not want to fight. He believes that there was someone on his right punching him in the arms and face. Mr. Ebel is 6’2” and weighs approximately 210 lbs. Stephane is 6’1” and 180 to 200 lbs.

When he looked over he saw Stephane on the ground in a foetal position and being kicked by approximately six people. Mr. Ebel did not see any of their group trying to pull people off Stephane. He threw the two people he was holding as far as he could and tackled two of the people kicking Stephane. They stumbled over Stephane, he stood up again and one of them pushed him over to the condiment stand and said: “Don’t touch me, don’t ever touch me.” He pushed that person, and then was pushed in a corner by the lockers. The male wearing the orange jacket was one of the individuals who did this.

He was holding off that person and another but was being punched in the face and body then felt a strange sensation in his stomach. The blow that caused this came from the right hand side, and he was holding the male with

the orange jacket on the left. Mr. Ebel does not believe the male in the orange jacket stabbed him. The second person he was holding was a bit overweight with long black hair and fatter face maybe wearing a black shirt and a beige brown jacket. They backed off and he saw he was covered in blood. He yelled “I’ve been stabbed” and everyone started running away. Someone came up to him and said he knew first aid and put a sock on the wound. Garho came over as he had also been stabbed. He called his parents to let them know what had happened and was taken to the hospital by ambulance.

He had three stab wounds: two to the stomach and one in the triceps which required surgery to reattach the triceps. He does not know at which point he was stabbed in the arm. [ 19 ] In cross-examination, Mr. Ebel was shown the video filed as exhibit 61 frame by frame. He agreed that there does not appear to be any punches depicted in the video. He assumed that the video does not depict the entirety of what occurred in front of the concession stand as he recalls being struck in the chest at that location.

He agreed that he seems to push only one individual, but that the other one he was holding on to just walked away. He conceded that the video does appear to be different than his recollection. He stated that the video seemed to show three males trying to prevent him from going to assist Stephane. This does not accord with his memory. He conceded that in his original statement to the police, given prior to viewing the video, he had stated that he was invited to go outside, declined, was pushed, then went to assist Stephane who was being attacked by six people.

He pushed two of them then was backed up against the wall. [ 20 ] Mr. Ebel attended the police station on April 16, 2007 to view photo line-ups. He identified photo 8 from line-up 1 (exhibit 12) as the person who pushed him towards the condiment stand and told him never to touch him. This is Muhalhal Mahowish. When shown line-up 4 (exhibit 10) he stated that photo 7 was close to the person who stabbed him. That photo is not that of any suspect, but this line-up does include the photo of the defendant Hassan. He did not make any further identification. [ 21 ] Mr. Stefan Peeve who accompanied Mr.

Ebel also testified. He recalled going to the Silver City complex with his two friends and sitting in the back of the theatre. He recalled people getting upset with a group of males causing a disturbance in the theatre. He saw Zach Ebel get up and leave to advise staff then saw him get up a second time and confronted the group. He could not overhear what was being said but did see one male get up. According to him the behaviour did not stop until the end of the movie. As they were leaving the theatre, he observed three males who seemed to be waiting.

One male asked him what he was looking at, but he did not respond. They continued to walk down the hallway but before they reached the exit, they saw a group of approximately 12 males facing away from the doors. Zach was confronted by one male asking him to go outside. Mr. Peeve stepped in between them and said that they would not fight them nor go outside with them. He was immediately punched by the tall male wearing an orange jacket or shirt. A heavier set male with a pudgy face and black curly hair was standing next to the man wearing the orange. Mr.

Peev was punched three or four times before being taken down then surrounded by people who punched and kicked him while he was on the ground. When people went away, he heard his friend Zach say that he had been stabbed. They went to the north hallway where an off duty police officer was present. He then attended the hospital. [ 22 ] Mr. Peeve assumes that the individuals kicking him and punching him while he is on the ground are from the group of 12 who had lined up at the exit of the complex. He was struck numerous times.

He was protecting his head with his arms and had curled up his legs to protect his midsection. He was stabbed in the back during this assault, but does not recall it happening. His injuries also included bruises all over his face and body, a long slash on his left hand, abrasions and a cut above his right eye. He does not recall seeing a knife, but does recall that he was being kicked in his hands protecting his face. He was never shown a photo line-up as he told officers he would not be able to identify anyone. In cross-examination Mr.

Peeve admitted that a week after the incident, he, Zach and Garho got together and discussed the incident and pieced together what had happened from the different perspectives. When he viewed the video filed as exhibit 61 Mr. Peeve stated that the male in frame 30 is the male who confronted Zach: the male with the orange jacket. Mr. Peeve was wearing an orange Diesel t-shirt that night with a leather jacket. His clothing was seized by the police. [ 23 ] Detective Noonan was the investigating officer for this matter.

He was advised of the stabbings at 23:45 on April 13, 2007 and attended the scene at 01:10 on April 14. He requested a copy of the video surveillance available at the complex and was provided with the videos as filed on the following day. He did not direct the employees as to what to provide and did not edit anything provided to him. Five individuals were arrested at the scene on April 13 and four were charged. They are Muhalhal Mahowish, Hasan El-Abbas, Husain Zaid, and the defendant Mohamed Hassan. Mr.

Turki was arrested on April 25, 2007 on the basis of the description of this male as tall, skinny, middle eastern, with black hair and wearing an orange jacket. [ 24 ] Detective Noonan provided the following description of the individuals: -Mahovish: 6’2”, 235 lbs, with beard, wearing a tan jacket on the night in question. (photos 1-7 exh.1) There was blood on his jacket, on his boots, on his pants and on his thumb. -El Abbas: 5’8”, 130 lbs, wearing jeans and a white long sleeve crew neck sweater with a stripe on each sleeve as depicted on photos 8- 15 of exhibit 1 -Zaid; 5’5”, 130lbs, short tight curly hair, wearing a grey puffy jacket as depicted in photos 16-22 of exhibit 1.

There was red stain on the heel of his sock and boot and a transfer stain on right buttock of his jeans

-Hassan: 6’,239 lbs, wearing black jacket as depicted in photos 23-29 of exhibit 1. There was a red transfer stain on lower front pants and chest area -Mr. Sarmad Zeim who was not arrested at the scene: 5’11”, 260lbs -Turki: 6’, 165lbs. He was not arrested at the scene. [ 25 ] Detective Noonan testified that at the time this case was investigated, the policy of the Ottawa Police Service had not changed with respect to line-up procedures. Videotaping of line-ups was not commonly done and double blind methods were done when possible.

He did concede that in this case, some of the officers who showed the line-ups were aware of the investigation and that he conducted line-ups himself when other officers were not available. He also conceded that the procedure used was not consistent with all witnesses. Some were shown all photos irrespective of whether they indentified a photo whereas on other occasions the line-up ceased upon identification of a photo. Sgt. Noonan stated that the policy now requires officers to show all photographs irrespective of identification. Sgt. Noonan confirmed that the line-up containing the photo of Mr.

Hassan (exhibit 10) was shown on seven occasions and the only person to identify the defendant was Mr. Spoke. He was aware that Mr. Spoke had seen people in custody on the night of April 13, 2007. [ 26 ] Detective Chevalier is the officer who prepared the photo line-ups for Mahowish, El Abbas, Zaid and Hassan. The line-ups consisted of 12 photos. On April 18, 2007 he showed Mr. Spoke five line-ups. He is aware that it would have been preferable to have another officer conduct the line-up given his knowledge of the suspects. He conducted the line-up as the witness was available and no other officer was.

He stated that he would be conscious of the need to be very careful. Mr. Spoke identified one person as being present from line-up 1 (exhibit 12), one person as the kid on crutches from line-up 2 (exhibit 14) and the defendant Hassan from line-up 4 (exhibit10). He did not identify anyone from line-ups 3 and 5. He was not shown line-up 6. [ 27 ] Cst. Benson’s evidence was admitted in an agreed statement of evidence filed as exhibit 63. Cst. Benson attended the scene on April 13, 2007. He spoke to Mr. Frederick Spoke who indicated to him that the male walking with crutches was involved in the incident.

The officer detained the individual Jihad El-Makda. He obtained a written statement from Mr. Spoke who referred to a group of males gathered outside the theatre by the stairs. Mr. Spoke confirmed that they were still present and pointed to the male with the orange jacket as the “main aggressor”. The male was later identified as Muhalhal Mahawish. Cst. Benson searched the parking lot for weapons and located a silver knife in the area of the first parking spot of the second row of the northeast parking lot. [ 28 ] Cst. Maltais is an officer in the identification unit.

She photographed and processed the five accused persons arrested on April 13, 2007. She swabbed stains and seized their clothing and prepared the submissions to the forensic laboratory.

Following is a list of stains observed on each of the four individuals: -Mahowish: red transfer stain on right palm, red stains on boots and tan jacket -El Abbas: a red transfer stain on the inside of the back ankle area of his boot, red transfer stain on right back of buttock area of jeans, transfer stain on tube sock -Hassan: red transfer stain on front of lower right pant leg, red transfer stain in the middle of the chest area of t-shirt -El Makda: no stains [ 29 ] All clothing was air dried and then identified and packaged. [ 30 ] Cst. Maltais attended the scene at 03:30 on April 13, 2007.

She seized a knife pointed out to her by Detective Noonan. The knife was a folding knife with a 9.5 cm blade, with a total length of 20 cm. There were small red stains visible on the blade. She seized the victims’ clothing left at the scene: two leather jackets, a baseball cap, a tuque, two t-shirts. There was red staining on both leather jackets and both t-shirts and all appeared to have been cut. [ 31 ] Sgt. Maloney is also in the identification unit. He testified that in 2009 he was asked to make a further submission to the RCMP Forensic Laboratory as Cst. Maltais was on maternity leave at that time.

He retrieved NE 11 (pants seized from Hassan) and NE 12 (t-shirt seized from Hassan) and delivered the items along with the victims’ known samples to the RCMP lab. [ 32 ] The RCMP laboratory examination report was filed as exhibit 59. It found that the DNA profile obtained from the front lower right pant leg of NE-11 matches that of the known sample from Mr. Peeve. The DNA profile obtained from area AA identified as the front chest area of Mr. Hassan’s shirt was of mixed origin consistent with having originated from two individuals. The major component matched that of the DNA of Mr.

Peeve and the minor component could not be compared as there was not sufficient genetic

information. [33] The video surveillance of the Silver City complex was filed as exhibits 61 and 62. I see no relevant information emanatingfrom exhibit 62. I have viewed exhibit 61 on several occasions during the trial and have once again during my deliberations. In myopinion the video clearly depicts Mr. Hassan confronting a tall male whom I could not identify on the basis of the video, but has beenidentified in evidence as Mr. Ebel. Any other observations relevant to my considerations will be outlined in my findings. [34] The defence called Mr. Robert Pogue. Mr.

Pogue was completing his master’s degree in childhood education in the UnitedStates at the time he testified, but was studying criminology at Ottawa University at the time of this occurrence. He is 6’3” and weighs230 lbs. He attended the Silver City complex on April 13, 2007 to see the movie Pathfinder. He was with his girlfriend at the time andhis brother. He noted the use of a laser pointer and both an employee and another patron go and ask the people to stop the behaviour. He did note that the patron who went down was a very tall person.

After the movie, he heard yelling in the atrium area so movedquickly to see what was happening. He noted that there was an argument started between two people. One of them was the tall personwho had gone to see the group during the movie. He had two friends with him. The other was an Arabic male 6’1” wearing an orangejacket with white bands; he had seven people of Arabic descent with him. He did not see the first punch. It turned into blows, with thetwo original persons in addition to four to five others with the man in the orange jacket. The fight moved towards the north hallway andMr.

Pogue continued to follow it. There were at this point between 5-10 people involved in the fight with others trying to break it up. There were some people of Arabic descent who were trying to break it up, one of them being a member of the staff. He saw one personwith a knife in his hand: he could see the blade between the fingers, but the handle was in the hand. The witness got involved by gettingin between people or pulling arms away. One person got pushed against the lockers and got punched once in the stomach and once in theface and he was bleeding. The assailant was wearing a white jacket.

He went over in that direction and heard an off duty police officerand people ran. One person took a swing at him, and he pushed him away. The whole incident lasted some 30-45 seconds. He did notpay attention to a person on the ground. He did not see six to seven people on one. He did not see two of the three stabbed individualsbeing assaulted. He could not state whether any woman was involved. He administered first aid to the victims. He was shown fivephoto line-ups. His comments were recorded and filed as exhibit 60. Mr. Pogue viewed all 12 photos of all five line-ups and commentedon 13 individuals.

He identified three foils as being present, and a number of other foils as “maybe”. In cross-examination, Mr. Pogueconfirmed that he had met Mr. Zachary Ebel at a New Year’s party after the event. He did not recognize him as one of the individuals towhom he had administered first aid. He also conceded that he was paying particular attention to clothes and not to the type of detail thatwould help in line-up identification.

With respect to the man in the puffy coat, he testified that he would have noticed if this person hadeither assaulted someone or intervened to break things up, but he didn’t do so. [35] ISSUES In the case of Mr. Turki, the sole issue is as to identification. Has the Crown established beyond a reasonable doubt that Mr. Turki wasinvolved in the assaults. The Crown alleges Mr. Turki was wearing an orange jacket. With respect to Mr. Hassan, the issue is not one of pure identification, but also as to the role he played, if any, in the altercation.

Has theCrown established beyond a reasonable doubt that he was involved in the assaults, either as a party or as a principal perpetrator? [36] Law: PARTIES TO THE OFFENCE

Section 21 of the Criminal Code of Canada sets out the liability of principals and parties to an offence.

Section 21(

b) imposes liabilityas a party where the offender does or omits to do anything for the purpose of aiding the principal to commit the offence, whereas Section21(

c) imposes liability if the person abets the principal in committing the offence. [37] In R. v. Greyeyes (1997) (SCC), S.C.J. No.72 the Supreme Court of Canada specified the mens rearequirements attached to party liability. At paragraph 38 and 39 the Court stated: “ In other words, in order to satisfy the purpose requirement under s.21(1)(b), the Crown is required to prove only that the accusedintended the consequences that flowed from his or her aid to the principal offender, and need not show that he or she desired or approvedof the consequences. Section 21(1)(

c) simply provides that any person who abets any person in committing an offence is a party to that offence. In order tosecure a conviction, the Crown must prove not only that the accused encouraged the principal with his or her words or acts, but also that

the accused intended to do so. It is the establishment by the Crown of that intention which satisfies the mens rea or guilty mindrequirement of s.21(1)(c).” [38] In Dunlop and Sylvester (1979) (SCC), 47 CCC(2d)93 the Supreme Court of Canada made it quite clear thatpresence at the scene is not sufficient. It stated at paragraph 31: “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principaloffender;

an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away; or

an act whichtends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping orbeing ready to assist the prime culprit.” [39] There is no requirement to determine the exact nature of each of the participants’ roles. In R. v. Portillo (2003) (ON CA), O.J.

No. 3030 the Ontario Court of Appeal quoted Justice Martin at paragraph 67 as follows: “Where, on a joint trial, there is evidence that a crime was committed by two or more accused persons acting in concert, it is, of course,appropriate to charge the jury with respect to the provisions of s.21 of the Code even though it is uncertain which accused was the actualperpetrator.

I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than oneperson was involved in the commission of the offence, to direct the jury with respect to the provisions of s.21 of the Code even thoughthe identity of the other participant or participants is unknown, and even though the precise part played by each participant may beuncertain.

It is, in my view, however, improper to charge the jury with respect to the liability of the accused as a party under s.21 whenthere is no evidence proper to be left with the jury that more than one person was actually involved in the commission of the offence.” [40] As Justice Libman concludes in his analysis of the law with respect to parties: “Once the trier of fact is satisfied that multipleaccused acted in concert, there is no requirement for the trier to decide which of the accused actually inflicted the fatal blow.” R. v.Banwait

(2004) O.J. No.5336. [41] ANALYSIS AND FINDINGS Although exhibit 61 clearly shows a male alleged to be Mr. Turki assault Mr. Peev, there is insufficient evidence of identification of thismale at trial. The images of this male on exhibit 61 are not frontal, and are of insufficient quality to permit identification from the video. Mr. Turki was not arrested on the scene, and therefore the Court does not have any evidence as to what he was wearing on April 13, 2007.

Given the chaotic scene depicted on exhibit 61, manywitnesses relied on descriptions of clothing to differentiate between the roles played by different individuals. The male who assaultedMr. Peev was said to be wearing a shiny blue and orange NASCAR type of jacket. The only person who identified Mr. Turki in thephoto line-ups was Mr. Richard. Notwithstanding his clarifications at trial, I find that his words of identification: “looks like him” simplydo not constitute a positive identification. Mr. Richard’s conceded at trial that if he had been certain, he would have used strongerwords.

This was an honest witness, who made an obvious concession. The charges against Mr. Turki are dismissed. [42] The analysis of the evidence with respect to Mr. Hassan is much more complex. It requires comparison between witnesses’description of the male alleged to be Mr. Hassan, their description of his activities in relation to others and finally, consideration of theforensic evidence. [43] The evidence establishes clearly that at the conclusion of the movie, a group of males intended to confront the person whohad come down to speak to them during the movie.

This is reflected in the nature of the comments made by some males in the groupwithin the theatre, and also by the substantial evidence that some males were standing by the door seemingly looking for someone andthe evidence that nine males had formed a line in the atrium, facing away from the doors. One patron (Mr. English) was sufficientlyconcerned even prior to the commencement of the fight, to warn staff about trouble brewing. Sgt. Moore also sensed that this wouldescalate and went to maintain observation. The fact that it is Mr.

Ebel who is confronted in the lobby further confirms that the malesintended to pursue Mr. Ebel’s request of them in the theatre. The fact that only Mr. Ebel and his two friends were stabbed is alsonoteworthy. [44] In my view the video evidence reveals the following. There is an 11 second gap between a commotion that takes place offcamera, to the south of the concession stand, and the camera’s first depiction of Mr. Ebel at the concession stand at 12:42:02. Mr. Peevis struck by someone other than Mr. Hassan or Mahowish at 12:42:03. While Mr. Hassan and Mr. Ebel are confronting each other in

front of the concession stand, Mr. Peev is positioned to the north, and is being hit. One second later, the male who is later seen in possession of a knife, is walking towards the same area. By 12:42:07 Mr. Ebel is surrounded, but one second later, Mr. Hassan disengages and Mr. Ebel seems to push a smaller male. They then all walk towards the northern area of the complex. At 12:42:13 Ms. Larose is seen walking towards the area of the northern hallway. The assault on Mr.

Peev is therefore on going after 12:42:13. [ 45 ] The photos filed in exhibit 1 depict the five males arrested for these offences on the night of the incident. Given the witnesses’ references to clothing, and the lack of opportunity to change clothes, this is crucial evidence. Mr. Hassan’s appearance is distinctive. He is the only heavy set male, and his hair is considerably longer on top than it is on the sides. Mr. Zaid also has curly hair on top of his head, but he is a small male with a thin face that could never be described as round or his body as rotund. Mr.

Zeim who was not arrested on scene is also heavyset; however, his hair is very different than Mr. Hassan’s. [ 46 ] Sgt. Moore described a male who got up at the end of the movie and looked up at the upper

section of seating and made a comment. His description of this person does fit Mr. Hassan. I agree with Mr. Richer that assessing the weight at 160-170 lbs. is inconsistent with his own description as heavy set and rotund. However, assessment of weight is quite subjective. What was most distinctive in Mr. Hassan’s appearance at the time was his hair. Sgt Moore described the hair as curly and piled on top of his head. He also described that this male was wearing a black puffy ski jacket. Mr. Hassan was wearing such a jacket. When shown exhibit 3, a photo of the jacket worn by Mr.

Zaid that night, Sgt Moore drew the distinctions between that jacket and the one he recollected. Mr. Zaid was the only other person arrested who had curly hair on top of his head. Although Sgt Moore did not identify anyone by line-up, I find that the male he is describing is consistent with Mr. Hassan. [ 47 ] Sgt. Moore ascribes the following actions to Mr. Hassan: -the comments made at the end of the movie -kicking and punching of the male on the ground -punching people in the back of the head with the male in the caramel coloured leather jacket [ 48 ] Mr. Lapense, identified Mr. Hassan to Cst.

O’Brien that evening as being one of the two people who confronted Mr. Ebel in the lobby, and he is not involved in the altercation at the lockers. His evidence that Mr. Hassan is one of the two who confronted Mr. Ebel is corroborated by Mr. Peev’s evidence. [ 49 ] Mr. Spoke’s evidence is significant. His description of the heavy set male’s hair as curly on top and significantly longer on top with a buzz cut on the sides is consistent with Mr. Hassan. I do not attach much significance to the fact that he describes the jacket as being blue as opposed to black. He identifies Mr. Hassan from a photo line-up.

In a previous ruling made at trial, I have made comments on the procedure used for photo line-up identification in this case. I must assess the weight I attach to this particular identification. Mr. Spoke was shown 5 line-ups in consecutive order, starting with line-up #1. Prior to the identification of Mr. Hassan, he had seen 24 photos. Obviously the first three line-ups did not target Mr. Hassan, but I do note that several of the photos in line-ups one to three included males of Arabic descent with curly and longer hair on top of the head. He also identified an unknown male as being there and part of the fight.

He did not ascribe any specific actions to this male, and given the number of people involved in the “fight” this does not significantly detract from his identification. His identification of El-Abbas as the male on crutches is wrong. Mr. El-Abbas was however, present and one of the individuals arrested that night and found to have red staining on his boot and sock. He was not identified by Mr. Spoke on scene. Mr. Spoke did not ascribe any role to the person on crutches. This witness paid attention to two portions of this incident. What he called the turtle fight and the intervention by Ms. Larose.

I find that his identification of Mr. Hassan is of considerable weight given his opportunity to observe him more particularly in both of those portions of the incident. He specifically excluded Mr. Zaid when he distinguished Mr. Zaid’s jacket from what he had observed. I find that his identification was not influenced by the five males he saw congregated outside for the following reasons. He believed that he had pointed out Mr. Hassan, but in fact, had pointed out Mr. Mahowish as the male with the orange jacket. He did not identify Mr.

Mahowish in the line-ups, did not even identify his jacket when shown a photo at trial. In my view, this does not weaken his identification of Mr. Hassan but gives more credence to it. The opportunity to observe Mr. Mahowish outside the complex that evening obviously did not influence identification in line-ups. This leads me to the conclusion that Mr. Spoke’s identification was based on his observations of the incident as opposed to whom he may have seen outside. [ 50 ] Mr. Spoke ascribed two actions to Mr. Hassan.

Upon identification in the line-up he stated that this male was part of the group kicking the male on the ground and he was the one that grabbed the male that Larose was dealing with and pulled him out. According to his evidence, Ms. Larose had intervened between two people, not three. The male that she was dealing with was the male in the orange leather type jacket. Mr. Spoke’s evidence as to the role played by Mr. Hassan is corroborated by the following evidence. Sgt.

Moore’s evidence that he saw the rotund male involved in the kicking and punching of the male on the ground, then punching other people in the back of the head. Ms. Larose’s evidence with respect to the two individuals that she pushed off the male on the ground in conjunction with her observations that these same two males then went to strike another male. This is consistent with Sgt. Moore’s

evidence and that of Mr. Spoke. Mr. Spoke’s evidence is further corroborated by the forensic evidence. The DNA evidence extracted from the pants worn by Mr. Hassan is consistent with Mr. Peev who is the male being kicked on the ground. [ 51 ] Ms. Larose described the males she pushed off Mr. Peev as the tall male wearing the tan jacket and the other male as smaller and thinner than the other, with curly black hair, wearing a black jacket. She described this person in her statement as “not a big guy”. Mr. Richer argues that this is inconsistent with Mr. Hassan who is obviously a heavy set male.

This must be placed in the context of the evidence of Ms. Larose. She explained that “not a big guy” meant to her of smaller build than the male in the tan jacket. When she was asked to give a frame of reference to her descriptor using counsel, she said she would not consider Mr. Richer a big guy. Mr. Richer himself had prefaced his question with the concession that he is a big person, and the Court would agree, yet the witness did not. Thus the importance of placing a witness’ words in the context of their own perceptions. Ms. Larose’s use of the descriptor does not exclude Mr.

Hassan as suggested by the defence. [ 52 ] Mr. Ebel’s evidence gave the Court an overview of the entire incident, starting from what happened in the actual cinema. I found his evidence more instructive on the issue of the parties to this offence as opposed to evidence directly relevant to Mr. Hassan. Mr. Ebel’s description of what occurred at the concession stand is inconsistent with the video. There were clearly no blows directed towards him at the concession stand.

As previously noted, there is an 11 second gap on the video between the moment attention is drawn towards a scene off camera and the image which captures Mr. Ebel. This is consistent with Mr. Ebel’s evidence that the initial confrontation takes place to the south of the concession stand. The confrontation is therefore not depicted in the video in its entirety. Nonetheless, the weight of his evidence is affected. His evidence that the male in the orange jacket was one of the persons who pushed him in the lockers is of significance.

He indicates that he was holding this male when he felt the blow which he surmised was the stabbing, coming from the other side. This excludes the male in the orange jacket from the stabbing. His description of the other male in my view excludes Mr. Hassan. By way of photo line-up he identified Mr. Mahowish as the male wearing the orange jacket. This illustrates the importance of not relying only on descriptions of clothing. The jacket described by this witness as being orange, was described by others as being tan or caramel.

In this case, this was important as the person described as the “leader” in the initial confrontation was also wearing a jacket with at least a portion of the fabric being orange in color. This person was specifically excluded from being the male involved at the lockers, by Mr. Lapense. [ 53 ] There is substantial evidence to show that Mr. Ebel was invited to fight or “go outside” and that he declined to do so. (English, Peev, Ebel, Richards) Mr. Peev states he was the person who declined, but the important consideration is that they were overheard refusing to fight. Mr.

Peev was assaulted immediately after he refused to fight. Mr. Peev stated that at this initial confrontation a male with a pudgy face and curly hair was standing next to the male in the orange. Hassan is clearly depicted in the video confronting Mr. Ebel at the time that Mr. Peev is first hit by the male in the orange jacket. Mr. Hassan is therefore one of the two who initiates the confrontation and invitation to fight. This is further corroborated by the evidence of Mr. Lapense who identified Mr. Hassan as the person who started the verbal confrontation. [ 54 ] Mr.

Pogue’s evidence illustrated quite clearly the dangers of identification evidence. In my view, however, it did little else. Mr. Pogue did state that the male who pushed the other against the lockers was wearing a white jacket. This is inconsistent with Mr. Ebel’s evidence that it was the male wearing an orange jacket. The weight of this witness’s evidence is low. He did not seem to observe much of anything.

He did not see a male on the ground being kicked by several people, he did not see anything which led to three people being stabbed and not only one, and never saw a woman get involved in trying to separate males. Some of these events would have occurred in close proximity to the lockers. His evidence that he would have noticed if the man in the puffy coat had either assaulted or intervened, is of little weight given it is a fact that the man in the puffy coat, which I find is Mr. Hassan, ended up with the DNA of Mr.

Peev on his pants. [ 55 ] Based on the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Hassan is one of the two males who invited Mr. Ebel to fight, he is one of the males assaulting Mr. Peev, and he was seen punching others before he told Mr. Mahawish it was time to go. The evidence does not satisfy me beyond a reasonable doubt that Mr. Hassan is the person who assaulted Mr. Ebel at the lockers. Mr. Ebel was holding the person he describes wearing the orange jacket and the other may well have been Mr. Zeim.

There were many fights occurring simultaneously at this point. [ 56 ] I also find that Mr. Hassan would have been found to be a party to the assault on Mr. Peev irrespective of my findings with respect to his direct involvement. He confronted Mr. Ebel with the man in the flashy orange jacket. This man invited Ebel and Peev to fight. Mr. Hassan continues to confront Ebel as the other starts hitting Peev. I find that he intended the consequences that flowed from his aid to the male in the orange jacket. The Crown need not establish who administered what blow and who caused which injury to Mr.

Peev, nor does the Crown need to establish that Mr. Hassan desired the consequences of the assault of the principal offender upon Peev. I find him guilty of count one. [ 57 ] Is Mr. Hassan a party to the assaults perpetrated on Mr. Lam and Mr. Ebel?

As previously stated, I find that there was a plan to confront Mr. Ebel after the movie, and that Mr. Hassan acted in concert with a number of others when he confronted Mr. Ebel. It is not clear who were all the participants acting in concert. There is no evidence before me that the stabber, allegedly Mr. Zeim was in the theatre with Mr. Hassan, there is no evidence that he is amongst those outside the theatre nor in the line of individuals blocking the path of Mr. Ebel. The video shows him advancing towards the north hallway as Mr. Peev was moving during the assault upon him.

He seems to leave from the area near the concession stand where Mr. Ebel was surrounded. He is then seen in the video assaulting Garho Lam (exhibit 61 disk 5) and he does fit the description of the person who stabbed Mr. Ebel. When Mr. Getson followed him outside and confronted him, he called out to the male in the orange shirt for assistance and this male in turn proceeded to threaten Mr. Getson before he left with Mr. Zeim. The calling out to his friends for assistance when Mr. Getson confronted him leads to the obvious conclusion that he was not acting alone. Mr.

Getson, however, does not identify the “friend”, nor does he connect either the “friend” or Mr. Zeim to Mr. Hassan’s group. Mr. Getson said he was not with the “ball” of individuals confronting Mr. Ebel. In the absence of evidence that this person was connected to Mr. Hassan’s group, the Court is left with no evidence that Mr. Zeim was acting in concert with Mr. Hassan. The law does not require the Crown to establish the roles of each individual involved in a joint venture, but in order to establish that Mr. Hassan is a party to the assaults perpetrated by Mr. Zeim, the Crown must establish that Mr.

Zeim was acting in concert with Mr. Hassan. There is no evidence before me upon which that conclusion could be rationally based. Mr. Zeim may well have “joined” the fights that had broken out on his own accord. Mr. Hassan cannot be held responsible for every assault committed by anyone who decided to get into the “fray”. [ 58 ] I do find that Mr. Mohawish was within the group who confronted Mr. Ebel and Mr. Peev. He is seen behind Mr. Ebel at the concession stand, he was described as one of the persons assaulting Mr. Peev, he is identified by Mr. Ebel as being the person who pushed him after Mr.

Ebel had pushed him off Mr. Peev. He is then seen hitting people from behind. I am prepared to make a finding that he is the person whom Mr. Hassan came to get to say it was time to leave. Mr. Hassan is clearly acting in concert with Mr. Mahowish throughout this incident. Mr. Hassan is party to the assault of Mr. Mahowish upon Mr. Ebel, but not the stabbing. [ 59 ] I have no evidence before me as to the circumstances of the stabbing of Mr. Lam, other than the video filed as exhibit 61. I cannot determine from that video who, other than the stabber, was involved with Mr. Lam.

Given my findings with respect to the stabber, Mr. Hassan is not party to that assault. [ 60 ] There is overwhelming evidence that Mr. Hassan caused a disturbance at the Silver City complex on April 13, 2007 and I find him guilty of that offence also. Released: February 4, 2011 ______________________________________ The Honourable Justice C.S. Dorval