R. v. Sritharathas, 2012 ONCJ 342

COURT FILE No.: Toronto Region Citation: R. v. Sritharathas , 2012 ONCJ 342 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) D. Emami, ) for the Crown ) — AND — ) ) ) SARANKAN SRITHARATHAS ) R. Brews, ) for the accused ) ) ) ) HEARD: November 10, 2011, January 31, May 30, 2012 FELDMAN J.: [ 1 ] Sarankan Sritharathas entered a not guilty plea to a charge of Assault with a Weapon.

It is alleged that in the course of a physical struggle with the complainant, he used a baton-like instrument to assault and injure him. [ 2 ] The Crown called the complainant, Saad Alam, his older brother, Fahad, and his friend and fellow student, Umair Alam, in support of its case. Mr. Sritharathas testified in his own behalf. [ 3 ] I must weigh the credibility of the witnesses and the evidence in making my findings of fact. I am mindful of the burden of proof on the Crown. The Evidence [ 4 ] Saad was then 20 years old.

He and the defendant shared a geography course at the Scarborough campus of the University of Toronto. The complainant testified that while in class a few weeks before the subject incident on November 3, 2010, he experienced conflict with Mr. Sritharathas. On one occasion, the defendant refused to move from his seat when asked in order to allow Saad and a friend to sit together. On another, while the complainant and some acquaintances were talking in class, he said Mr.

Sritharathas looked only at him while telling him to shut up. [ 5 ] It was on November 3 rd that a further exchange led to a confrontation outside on campus grounds. Saad and Umair were sitting together in a geography lecture and discussing the midterm exams they had just received back. Saad indicated that the defendant told them to shut up, using foul language, and suggested they move if they wanted to keep talking. The complainant said in response that he would not do so, asked what the accused’s problem was and kept talking.

Saad gave evidence that the defendant then threatened to bash in their faces if they did not stop talking while gesturing with his fist. He said they ignored his outburst. [ 6 ] After the lecture, the defendant had to pass by the complainant in order to leave and as he did so, Saad testified that he was shoved by Mr. Sritharathas after which he got up and was pushed again causing him to fall back a few steps.

He said he pushed the defendant back once and again asked him what his problem was. [ 7 ] Saad told the court he thought the exchange was over and headed down to the front of the class to pick up an assignment. He gave evidence that the defendant was close behind him and that Mr. Sritharathas spit gum into his face. The complainant said the defendant then followed him outside the basement lecture hall and asked several times if Mr. Alam wanted to fight. He recalled Umair being right behind him. [ 8 ] The complainant went outside, he says, followed by the accused.

He said he tried to exit from the 2 nd floor where he hoped to find a campus police car in order to report the defendant, but found none. He told the court that Mr. Sritharathas crossed Military Trail and called him over. Umair was close behind. [ 9 ] Saad told the court he thought about it and went over to the accused, he says, wanting to know what the problem was and to talk it out. Umair crossed over as well. He claims that without warning, Mr. Sritharathas punched him in the face with a closed fist, sending his glasses flying, followed by 3-4 punches to the face.

He claims not to have fought back at first, but recalls Umair trying unsuccessfully to take an instrument away from the defendant that was strap-locked to his hand. He says that after his glasses were knocked off he took off his backpack as well as his jacket because it was too tight. He claims that he did not want to get into a fight but only to defend himself. [ 10 ] In fact, Saad testified that when Mr. Sritharathas paused he was able to punch him back in his face and that a fight started.

It was on the next punch from the defendant that he felt a much harder blow, one that later caused bruises on his fingers from trying to block the hits with both hands. One of his fingers turned black. He believes he was struck in the head at least 10 times by this purported weapon. He described it as black, baton-like and extended about 3 feet. [ 11 ] The complainant says he then had an opportunity to hit back and did so 2-3 times, causing Mr. Sritharathas to fall down. As he did, Saad said the defendant grabbed his shirt, ripping it, and pulled him down with him with some of the complainant’s blood

dripping on the accused’s face. With that, they both stopped and got up. The defendant walked away. [ 12 ] Photographic and medical evidence indicate swelling to the complainant’s cheeks, a cut on the inside of his lip, a cut to the back of his head that required staples put in at the hospital, a badly bruised finger and broken glasses. Saad said he also had headaches for a few days and red lines on his back. [ 13 ] As he was trying to clean himself up, the complainant recalls Fahad showing up. He says Umair pointed out the defendant who was walking down Military Trail toward Morningside Dr.

They began to follow Mr. Sritharathas. Fahad told him to stop and that the campus police were on their way. Saad said the accused asked why they were bringing in the police and then made a call on his cell phone. [ 14 ] The complainant gave evidence that a black SUV drove up and that a young man got out and pushed Fahad, telling him to leave his friend alone. The defendant got into the car which left the scene. There is nothing in Saad’s statement to the police about someone pushing his brother. [ 15 ] Saad did not attend the geography class for the remainder of the semester. [ 16 ] Umair is also 20 years old.

He confirms the substance of the complainant’s evidence regarding conflict with the defendant in class and during the subsequent altercation outside. He says that in class the defendant aggressively told them to be quiet using a lot of foul words and that when they ignored him he threatened to bash their heads in if they did not “shut the fuck up”. [ 17 ] Umair told the court that when leaving the lecture hall the defendant pushed Saad in a forceful way using his elbow which forced the complainant back.

He says that when Saad asked what his problem was, the defendant spit some gum in his friend’s face just prior to both of them leaving to go outside.

In that regard, the witness recalls the accused suggesting they take their conflict outside and that Saad agreed to join him, permitting the inference that the complainant, contrary to his own evidence, was prepared to stand up to the defendant. [ 18 ] Umair testified that he waited a matter of minutes before following them thinking they might only be arguing but instead saw a lot of shoving between them in the hallway with the accused elbowing the complainant whom he said did not respond.

The complainant did not make mention of this. [ 19 ] Umair said he saw both of them crossing the street beside each other, although the accused went first, and then he saw Mr. Sritharathas take off his backpack and punch Saad in the eye breaking his glasses, followed by 2-3 more blows. He told the police the defendant also took off his jacket but now says that was not the case. [ 20 ] The witness recalls Saad taking off his backpack and responding with punches of his own gaining the upper hand and causing the defendant to back off. It was at this point that Umair testified he saw Mr.

Sritharathas open up his jacket and take out a black metal rod from an inside pocket. He said the accused was able to extend it about 3 feet taunting the complainant and hitting him on the left side of his head a number of times while Saad tried to block the blows as he attempted to punch back. [ 21 ] He says both men were standing up when Mr. Sritharathas pulled out his baton after a pause in the fighting, although in his statement to police he said the baton was pulled out once the accused was down. [ 22 ] Umair kept calling Saad’s brother who was also in class at the time.

He said Fahad picked up toward the end of the struggle. He told him Saad was in a fight and bleeding. Umair tried to reach the campus police. [ 23 ] Umair told the court it was his impression that after the defendant saw Saad’s head dripping blood he stopped and both he and the complainant sat down. While they both sat there Umair tried unsuccessfully to grab the weapon. He recalls the defendant telling him it wasn’t his fight. He said Mr. Sritharathas then got up, put the rod inside his jacket, took his backpack and started walking toward Military Trial.

Umair indicated that Fahad arrived just after the defendant put the rod away. By this time Saad had walked across the street trying to clean himself up. [ 24 ] He and Faad got the complainant and all three followed the accused who was on his phone, Umair says, asking someone to pick him up. They asked the defendant where he was going. Umair told him he was calling the campus police, which he did. The defendant wanted to know why he was doing that. [ 25 ] Umair testified that a black SUV drove up. The back passenger got out screaming at them to “get off my cousin”. He said Mr.

Sritharathas was led to the vehicle which drove off. Umair got the license plate number. [ 26 ] In his testimony, Fahad recalls receiving a text message in class from Umair that his brother was bleeding and that he should come out right away. He called Umair who told them they were at the bus stop. When he arrived there he saw no one and again called Umair who said they were across the street near the Military Trail intersection. He saw Saad crouched down and bleeding while the defendant was walking away. Umair yelled to Fahad that the accused had a weapon. [ 27 ] Fahad ran over to Mr.

Sritharathas whom he alleges said, “get the fuck away from me” and who told him not to call the police. He returned to look after his brother who advised him it was the accused who hit him with a weapon. He said he then ran back to the defendant and told him to remain there and that they were calling the police. He yelled to Umair to call the campus police. He said Mr. Sritharathas questioned why he had to bring in the authorities. [ 28 ] Fahad said he was scared but tried to keep the defendant from leaving. He told the court the accused started jogging but he ran up to him and grabbed his hat and glasses.

He said Mr. Sritharathas ran across Morningside Rd. He also claims that he saw part of a baton sticking out from the inner pocket of the accused’s jacket. [ 29 ] Fahad says a black SUV pulled up, a short man with brown skin got out, pushed him, told him not to mess with his cousin

and led the accused into the vehicle. He also got the license plate number which he gave to the police. [ 30 ] Mr. Sritharathas testified that following an argument in class with the complainant, he later acted in self-defence in his struggle outside with Mr. Alam. He denied using a weapon. [ 31 ] He says Saad and Umair were disruptive in class, ignored his initially polite request that they be quiet and upset him by telling him to move to the front of the class.

He told the court that in response he was admittedly nasty, insulting and immature, words calculated in my view, as in other aspects of the accused’s evidence, to minimize the impact of his behaviour, expressed in anger and intended to intimidate. [ 32 ] The defendant is a strapping man, much larger than the Crown witnesses and clearly more powerful. Yet he suggests it was the complainant who invited him off school property for a discussion he expected might get physical. He says that in going he succumbed to pride.

On the evidence, this is doubtful and likely self-serving. [ 33 ] They both walked to the other side of Military Trail. The defendant claimed he only dropped his back pack after the complainant did so. He said Umair and Fahad came over and stood behind him as he faced Saad. He told the court he expected to be attacked. He did not walk away. [ 34 ] Mr. Sritharathas testified that Saad came close and said, “who the fuck do you think you are”, after which he was shoved from behind and then in front by the complainant. Someone took his baseball cap and then Fahad took his glasses and, he says, tried to stomp on them.

He said that as Saad walked toward him, he assumed an attack and so grabbed the complainant by the collar and punched him 4-5 times on the head, claiming that any injuries were caused by his ring, the one he showed in court one day, but failed to bring on the day he testified. He knocked Saad to the ground. [ 35 ] The defendant told the court he was prepared to fight with the complainant as he was stronger but was concerned about being outnumbered. He agrees he could have walked away but his pride got in the way.

It is open to be inferred he intended to fight with the complainant from the beginning and, as well, felt he could handle more than one. He had no injuries. [ 36 ] If Saad was already close, it is unclear how he could still have room to walk toward the defendant before being struck. On the evidence, it is questionable that the injuries were caused solely by the ring. [ 37 ] Mr. Sritharathas said he then picked up his backpack and walked away quickly in a half-jog until he was able to get on a bus.

Because the fight only lasted a few minutes he did not call the police, he says, as he believed they would not take him seriously. Of course, he was not the one with the injuries. He could not explain why he did not report the theft of his hat and glasses. I don’t accept that the defendant gave no thought to getting his glasses back. I infer he felt it best to avoid discussing his role in the incident with the authorities.

Findings of Credibility and Fact [ 38 ] A review of the testimony of the prosecution witnesses in the context of the entirety of the evidence leads me to the conclusion that it is consistent in relation to the material issues of fact concerning the Crown’s theory of an excessive response on the part of the accused in his fight with the complainant. The nature and degree of the injuries sustained by the complainant tend to buttress that theory. [ 39 ] At the same time, there are inconsistencies in the prosecution evidence that raise reliability concerns and that need be weighed in the balance.

For example, Saad admitting he agreed to take the argument outside, mutual shoving in the school hallway and crossing the street to meet up with the accused at his invitation because he “wanted to know what the problem was”, all tend to permit the inference, contrary to his testimony, that he was prepared to fight with Mr. Sritharathas.

It is to be noted that the shoving observed by Umair was not mentioned by the complainant in his evidence. [ 40 ] This inference may be drawn as well by the fact that Saad said he removed his backpack and jacket, although an equally reasonable inference is that he reacted to being struck in the face and sought to make it easier to defend himself. [ 41 ] In relation to the defendant’s purported use of a weapon, Umair told the police that Mr.

Sritharathas took out the baton after he had been knocked down but by contrast later testified that he only did so after a pause in the fighting when both antagonists were in a standing position. Umair also was unsure whether Fahad arrived when the fight began contrary to the evidence of the Alam brothers. [ 42 ] In fact, Fahad testified he received a text from Umair that he should come out because Saad was bleeding, an inference of timing that on the evidence is more logical given that Fahad was in a different class.

As well, the fact that Fahad grabbed the accused’s hat and glasses permits the inference that he arrived after the fight and attempted to prevent the defendant from leaving the scene. [ 43 ] I view these inconsistencies in the context of fast-moving and stressful events where impressions and chronology may be faulty, but as indicated the nature of the injuries tends to support the material inference that the defendant introduced a blunt instrument into his struggle with the complainant when he lost the upper hand.

Those injuries include linear bruising to the right side of the complainant’s face, a bruised eye on the left side, a bruise on Saad’s head and on the top of his forehead and a blackened finger. They are more consistent with blunt force rather than the result of being struck with a ring and support the inference that the complainant’s injuries were at least in

part caused by a hard instrument. This in turn tends to enhance the general reliability of the prosecution witnesses. [ 44 ] On the evidence, and in the context of this credibility finding, I view the defendant’s assertion that he was merely insulting and immature in class as minimizing his anger over a perceived affront. I accept that this large man elbowed the complainant on his way out of the lecture hall and acted as a bully in suggesting they take their conflict outside.

I consider his evidence that he was prepared to fight out of pride to be self-serving and that rather he acted in anger and believed given his size he would come out on top. It was when his assumptions failed that he reacted as he did. His response was in my view of the evidence disproportionate and intended to punish so

that he would not have the benefit of Code sections 34(2) or 35. His leaving the scene and failing to report theft of his property indicatehe recognized that given the complainant’s injuries, the authorities were best avoided. I would not rely on his evidence. The Reasonable Doubt Standard [45] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence. This standard of proof has been described as proof to a near certainty: R. v.

Starr, 2000 SCC 40. [46] The burden of proof rests on the prosecution throughout the trial and never shifts to the accused: R. v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 (S.C.C.). [47] Where credibility is important, as in this case, the Supreme Court requires that the rule of reasonable doubt be applied tothat issue: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397.

In W.(D.), Cory J. was clear that in relation to the first twoelements of the analysis the trial judge must acquit if the evidence of the accused is believed or if he or she is left in reasonable doubt byit even if the judge does not believe that evidence.

The third element obliges the judge to ask him or herself, even if not left inreasonable doubt by the evidence of the accused, whether he or she is convinced beyond a reasonable doubt of the guilt of the accused onthe balance of the evidence which he does accept. [48] In this analysis, rejection of an accused’s evidence may be derived from “a considered and reasoned acceptance beyond areasonable doubt of the truth of conflicting credible evidence”, but not on the basis of preferring the worth of one over the other: R. v.J.J.R.D., (ON CA), [2006] O.J. No. 4749 (Ont. C.A.); R. v.

Maharaj (2004), (ON CA), 186C.C.C. (3d) 247 (Ont. C.A.). [49] The trier of fact is entitled to assess an accused’s testimony in light of the whole evidence, including the testimony of thecomplainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, (ON CA), [2006] O.J. No. 3177(Ont. C.A.). In fact, the court made reference in this regard to the “positive duty to carry out such an assessment” given the possibilitythat the judge may be left in reasonable doubt concerning the guilt of the accused.

Conclusion [50] For these reasons, on all the evidence, I am not left in reasonable doubt that the defendant was the aggressor in class andinitiated the struggle outside with a punch. Given the nature of the injuries to the complainant, I am not in reasonable doubt that whenchallenged, the defendant resorted to the use of a blunt instrument and excessive force to overcome the challenge to his aggression. There will be a finding of guilt. Released: May 30, 2012 Signed: “Justice L. Feldman”