R. v. Bassi and Bassi Date:, 2013 BCPC 2

Citation: R. v. Bassi and Bassi Date: 20130114 2013 BCPC 0002 File No: 6180-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PARMINDER SINGH PETER BASSI and RAVINDER ROBBIE BASSI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE LOW Counsel for the Crown: K. Murphy Counsel for the Defendant: M. Klein and D. Baker Place of Hearing: Vancouver , B.C. Dates of Hearing: March 20, 21, 22, 23; October 2, 3, 5; November 20, 21, 22; 2012 Date of Judgment: January 14, 2013

[ 1 ] Parminder Singh Bassi, commonly known as Peter Bassi, together with Ravinder Robbie Bassi, commonly known as Robbie Bassi, are jointly charged with assaulting and causing bodily harm to Peter Regier. Peter Bassi is separately charged with assaulting and causing bodily harm to David Holtzman. The charges arose out of a fight among the four men which took place on June 12, 2010, outside a building at 63 Keefer St. in which Mr. Regier and Mr. Holtzman shared a condominium residence. [ 2 ] The main issue in the trial of these charges is whether the two Defendants were involved in the fight.

Peter Bassi also relies on s. 37 of the Criminal Code and claims that even if I am satisfied to the standard required in a criminal trial that he was involved in a fight with Mr. Holtzman, the evidence should leave me with a reasonable doubt that he acted in defence of the man who was in an altercation with Mr. Regier. [ 3 ] Mr. Regier, Mr. Holtzman, two civilian witnesses Craig Constantino and Jaclyn Bruneau, plus a number of police witnesses, testified for the Crown. Following a voir dire , I admitted the recognition evidence of two witnesses, Colin Hutchinson and Kathryn Evans.

The Defence did not call any evidence. [ 4 ] Through formal admissions video recordings made on June 12, 2010, by three different security cameras plus still reproductions from those videos were admitted into evidence. Two of these video recordings were made by surveillance cameras attached to the 63 Keefer St. building. [ 5 ] One of the two cameras attached to 63 Keefer St, which I will call the stairway camera, looked down upon some stairs which emptied onto Taylor St.

The other camera which I will refer to as the front entrance camera looked across the main entrance of 63 Keefer St. towards the stairs leading down to Taylor St. [ 6 ] The videos obtained from the front entrance and stairway cameras recorded to some extent, the fight which took place on June 12. The passage of time is recorded by a digital clock apparent in both videos. There is about a one minute discrepancy between the times of day recorded by each video but it is not necessary to account for that.

More importantly each video records, within a second, the same amount of time passing during the incident. [ 7 ] The third security camera which I will refer to as the Taylor St. camera was located on a building north of 63 Keefer St. and looked south along Taylor St. to the stairs leading down from 63 Keefer St. onto Taylor St. The Taylor St. camera recorded two men running north on Taylor St. [ 8 ] The three video recordings were seized by police during their investigation.

Still photos were created from the Taylor St. video and were published by the media. [ 9 ] Unless otherwise required by my discussion of the evidence, I will refer to the two individuals who fought with the complainants, as the first man and the second man. The first man is the first individual seen mounting the Taylor St. stairs in the stairway video. The second man is the individual who was recorded by the stairway video as the last person to mount the Taylor St. stairs to join the fray. [ 10 ] This is a criminal trial.

I have reminded myself of two core principles of the Canadian Criminal Justice System which I am to apply when considering the evidence called during this trial. Although now enshrined in the Canadian Charter of Rights and Freedoms both principles have always been fundamental to our criminal law. I summarize them as follows. [ 11 ] First, in a criminal trial the onus is always on the Crown to prove the guilt of an accused person beyond a reasonable doubt. This heavy burden of proof in a criminal trial never shifts to an accused person except in special circumstances, which are not present in this trial.

Any rational doubt as to an accused person’s guilt, arising from the evidence called at their trial, must be resolved in favour of that accused person and will result in their acquittal. [ 12 ] The second principle, which flows from the first, is that an accused person cannot be compelled to testify and has the right to remain silent. In this trial the Defendants have exercised their right to remain silent. It is not open to me to draw any conclusion from their exercise of that right.

In short, the Defendant’s silence in this trial has absolutely no bearing on how I consider the evidence. [ 13 ] Given the level of public interest in this trial, it bears mentioning that my verdict will be based only on the evidence that I have heard and admitted during this trial. There may be other information known to some outside this courtroom which pertains to the incident in question or the individuals involved.

However, unless that information formed part of the evidence during this trial it is not open to me to give it any consideration. [ 14 ] I have determined from the evidence I have heard, that the following events occurred which gave rise to the charges against the two Defendants. [ 15 ] Shortly before 11:00 pm June 12, 2010, Mr. Regier and Mr. Holtzman were returning to their condominium residence via Taylor St.

They encountered the first and second man near the bottom of a short flight of stairs leading up from Taylor St. to a landing which flowed on to the front entrance of 63 Keefer St. [ 16 ] The first man went up the stairs and prepared to urinate in one of the planters which formed part of the landscaping at 63 Keefer St. Mr. Regier and Mr. Holtzman followed the first man up the stairs and complained about the first man’s intentions. This resulted in an unpleasant verbal exchange among the three men which included very derogatory references by the first man to the complainants’ sexual orientation. [ 17 ] Mr.

Holtzman and Mr. Regier moved on to enter their building, but ultimately Mr. Regier decided to return and use his cell

phone to photograph the first man. As Mr. Regier photographed the first man, the second man from his location on Taylor St. called out to alert the first man he was being photographed. The first man then rushed at Mr. Regier and fought with him. Mr. Holtzman in an effort to protect Mr. Regier stepped over to the fight and tried to separate the two. As Mr. Holtzman did so the second man rushed up the Taylor St. stairs and engaged in a fight with Mr. Holtzman. [ 18 ] The first and second men quickly overwhelmed and severely beat Mr. Regier and Mr. Holtzman.

The fight ended with the first and second man leaving the scene via the Taylor St. stairs and running north on Taylor St. leaving behind Mr. Regier and Mr. Holtzman suffering a variety of injuries. [ 19 ] While the fight was underway, another resident of 63 Keefer St., Mr. Constantino, walked up a flight of stairs off Keefer St. en route to the main entrance. Mr. Constantino stopped at the main entrance to watch the fight. Near the fight’s conclusion, Mr. Constantino saw the face of the second man and recognized him as a fellow soccer player. Later that night, Mr.

Constantino told the police he recognized the second man as Peter Bassi. [ 20 ] Ms. Bruneau walked past the four men fighting above her as she walked on the public sidewalk. She slowed her walk to watch the fight. She saw that the first and second man had physically overwhelmed the other two men. After the fight ended she also saw these same men run up Taylor St. ahead of her. On a later date she read a newspaper account of the incident which contained a photograph reproduced from the Taylor St. video in which Ms. Bruneau saw her image. Ms. Bruneau then contacted the police to let them know she was a witness.

While testifying she identified both of the Defendants as the two men fighting with Mr. Regier and Mr. Holtzman. [ 21 ] On June 18, 2010, Mr. Hutchinson, who was employed at the time as the Director for Operations at the Vancouver International Airport, read an online news report of the incident which also contained the still photographs reproduced from the Taylor St. video. Mr. Hutchinson recognized one of the men in the photographs as Robbie Bassi who worked as a security screener at the airport. Mr.

Hutchinson accordingly notified the police. [ 22 ] Ten days later the police delivered a poster to the Vancouver airport which contained enhanced reproductions of the photographs earlier published in media reports. Ms. Evans, who was an immediate supervisor of Robbie Bassi, was instructed by Mr. Hutchinson to distribute the posters to various sites at the airport. While doing so, Ms.

Evans recognized Robbie Bassi in the poster’s photographs. [ 23 ] Both Robbie Bassi and Peter Bassi were subsequently arrested and charged with the offences for which they are now being tried. [ 24 ] I will first deal with the issue raised by the Defence pursuant to s. 37 of the Criminal Code . [ 25 ] Although it is impossible to clearly see the faces of any person who appears in the stairway or front entrance videos, I have relied on the evidence of Mr. Regier, Mr. Holtzman and Mr. Constantino who identified themselves in the videos while testifying.

I have also relied on their evidence to identify the first and second man as they appear in these two videos. [ 26 ] There are some discrepancies between the evidence of the witnesses and what is recorded in the stairway and front entrance videos. I will discuss those discrepancies later in my decision but for the purposes of resolving the issue of self defence I have relied on the video recordings and the witnesses’ evidence where they do not conflict.

I have concluded that the following events took place. [ 27 ] According to the stairway video, at 10:48:55 p.m., the first man came up the Taylor St. stairs and positioned himself near a planter which was part of the building at 63 Keefer St. He was almost immediately followed by Mr. Regier who came up the same stairs closely followed by Mr. Holtzman. As they walked past in single file, both men turned their heads towards the first man. As Mr. Regier and Mr. Holtzman passed they expressed their displeasure with the first man who they expected was going to urinate in the area.

Their displeasure was not well received. As the two passed out of sight en route to the front entrance the first man stepped up to the planter and commenced urinating. As Mr. Regier and Mr. Holtzman proceeded on to the main entrance a very unpleasant and heated exchange continued between themselves and the first man. [ 28 ] According to the stairway video at 10:49:53, Mr. Regier returned to a spot near the top of the Taylor St stairs and using his cell phone proceeded to photograph the first man.

The second man who had remained down on Taylor St. out of range of the stairway surveillance camera alerted the first man to Mr. Regier’s photography. The first man hastily fastened his trousers, rushed towards Mr. Regier and grappled with him. [ 29 ] This fight between the first man and Mr. Regier was also recorded by the front entrance video. Mr. Holtzman can be seen in the front entrance video approaching the first man and Mr. Regier as they grapple. According to the stair way video, within four seconds of the first contact between the first man and Mr.

Regier, the second man came up the Taylor St. stairs, and initially approached the fight between Mr. Regier and the first man just past the top of the Taylor St. stairs. The second man then quickly moved past them and engaged with Mr. Holtzman. According to the front entrance video Mr. Holtzman was almost immediately shoved into a planter next to the 63 Keefer St. building from which he got up but was shoved back down again. Mr. Holtzman got out of the planter once more and retreated towards the main entrance. One second later the first man walked away from the scene followed a second later by the second man.

Over the next three seconds the second man paused near the Taylor St. stairs, turned and spoke to the complainants who were several feet away. By 10:50:40 on the stairway video, the second man turned and went down the stairs after the first man. One minute and forty-five seconds had elapsed from the time the first man came up the Taylor St. stairs. [ 30 ] Mr. Regier testified that the first man rushed at him, immediately punched him in the face and continued to repeatedly punch him and throw him about. It appeared to Mr. Regier that the first man was intent on seizing his cell phone.

The second man ultimately joined the first man in pummelling Mr. Regier. Mr. Regier did nothing other than to attempt to ward off the blows and ultimately pleaded for the attack to cease. [ 31 ] Mr. Holtzman testified that almost as soon as he approached the first man and Mr. Regier, expressing his concern for Mr. Regier, he was set upon by the second man.

[32] Both Mr. Holtzman and Mr. Regier testified that throughout the fight their assailants continued their verbal invective repeatedlymaking homophobic insults. [33] The nature of the fight between the four men was also observed and described by two witnesses Ms. Bruneau and Mr.Constantino. [34] Mr. Constantino returned to the front entrance just after the fight started. He could see the first and second man repeatedlypunching both complainants. According to Mr. Constantino, “.... there were a lot of punches. They were connecting.

Really the twovictims were just trying to shield themselves at a point, I would’ve expected, you know, a fight to stop, but it continued past that point.”(Transcript, March 21, 2012, page 88, lines 8-12.) [35] In cross examination, Mr. Constantino described one of the victims intervening in the fight between the first man and the othervictim and agreed that at this point the second man entered the fray and went after the victim who had intervened. Mr. Constantino alsoagreed with the suggestion that the second man engaged as if to prevent his victim from helping the other victim. [36] Ms.

Bruneau was passing by on the sidewalk below. She was near the steps leading to the front entrance of 63 Keefer St. whenthe noise of the fight first caught her attention and she slowed to watch it. From the centre of the front entrance stairs Ms. Bruneau couldsee Mr. Holtzman curled over in a planter and Mr. Regier warding off repeated blows to his head and face which were being struck bythe first and second man. The blows being struck were hard enough to cause Ms. Bruneau to fear for Mr. Regier. She could also hearthe assailants making repeated derogatory and homophobic remarks. [37] Ms.

Bruneau left Keefer St. and continued north on Taylor St. The first and second man came down the Taylor St. stairs aheadof her and she saw them run north on Taylor St. laughing, giddy, and congratulating themselves. [38] According to the front entrance video, immediately after the first man attacked Mr. Regier, Mr. Holtzman approached themfrom the direction of the main entrance. According to Mr. Holtzman he attempted to separate the two by pushing on their chests in themanner of a soccer referee. [39] According to the stairway video at the time of Mr.

Holtzman’s approach the second man was still down on Taylor St. awayfrom the stairs. However, neither the stairway video nor any other evidence reveals where on Taylor St. the second man was actuallylocated at this point in time. Since I do not know where the second man was when Mr. Holtzman approached the fight between Mr.Regier and the first man, I would have to speculate the second man was able to see Mr. Holtzman’s intervention. Despite Mr.Constantino’s opinion, I am not prepared to infer that the second man was prompted to come up the stairs and join the fight due toanything Mr.

Holtzman was doing. [40] When the second man ran up the stairs, he first went directly up to Mr. Regier and the first man but almost immediatelychanged direction and went after Mr. Holtzman. This can be seen fairly clearly in the stairway video. However it cannot be determinedfrom either of the videos nor the witnesses’ evidence whether at this moment Mr. Holtzman actually had his hands between Mr. Regierand the first man. Although Mr. Holtzman agreed in cross examination that he intended to intervene between Mr.

Regier and the firstman there is no clear evidence that in the split second between approaching the first fight and then rushing at Mr. Holtzman, the secondman was able to see anything, other than Mr. Holtzman’s proximity to suggest Mr. Holtzman was intervening in the first fight. [41] From the outset, both the first and second man were concerned by Mr. Regier’s use of his cell phone and I have no doubt on allthe evidence that this is what precipitated the first man’s attack.

Throughout the fight, both the first and second man continuallydeclared their utter contempt for the complainants and the second man took a specific opportunity to emphatically confirm this as hedeparted. [42] Both complainants testified they were immediately and completely overwhelmed in the fight. Mr. Constantino testified that thefight was entirely one sided and excessively violent. Although she arrived nearer the end of the fight Ms.

Bruneau concurred with Mr.Constantino. [43] I am not prepared to infer from the evidence that the second man involved himself in the fight in defence of the first man noram I left in some doubt in that regard. Even if I am mistaken in this view, given the minimum level of Mr. Holtzman’s intervention, thedegree of violence used by the second man was excessive. [44] Although this issue was not raised, I want to be clear that the evidence satisfies me beyond a doubt that Mr. Regier wasassaulted by both the first and second man and that the assaults caused him bodily harm.

Given my resolution of the issue of self defenceraised under s. 37, I also have no doubt on the evidence that Mr. Holtzman was assaulted by the second man and suffered bodily harm. [45] That leaves for determination whether the Crown has proved beyond a reasonable doubt that one or both of the Defendants werethe assailants. Mr. Regier, Mr. Holtzman and Ms. Bruneau identified both Defendants as the assailants. Mr. Constantino identified PeterBassi as one of the assailants. Mr. Hutchinson and Ms.

Evans testified that in their opinion Robbie Bassi was one of the two menrunning north on Taylor St. [46] There are innumerable appellant authorities across Canada which discuss the “....the inherent fragilities of identificationevidence arising from the psychological fact of the unreliability of human observation and recollection.” (R. v. Sutton, (ON CA), [1970] 2 O.R. 358 (Ont C.A), at page 368, quoted by the B.C.C.A. in R. v.

Reitsma (BC CA), 97 BCAC303 at paragraph 38.) Madam Justice Rowles, whose dissenting judgment was later upheld by the Supreme Court of Canada, went onat paragraph 41 of Reitsma to quote the 1983 Alberta Court of Appeal’s discussion in R. v.

Atfield which I reproduce as follows: The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes fromwitnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken.Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justicethrough mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but

must be tested by a close scrutiny of other evidence. In cases where the criminal act is not contested and the identity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and must itself be put on trial, so to speak. As is said in Turnbull, [ 63 Cr. App. R. 132, [1976] 3 All E.R. 549 ] the jury (or the judge sitting alone) must be satisfied of both the honesty of the witness and the correctness of the identification.

Honesty is determined by the jury (or judge sitting alone) by observing and hearing the witness, but correctness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence.

If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavourable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisite standard of proof , and a conviction so founded is unsatisfactory and unsafe and will be set aside. [ 47 ] My role then is to consider the evidence of each of the six witnesses called to identify the assailants and determine the weight I am to give their individual testimony.

The weight I give their testimony will depend on my view of each witness’s honesty and whether there were circumstances that affected the reliability of a particular witness’s evidence. [ 48 ] Mr. Regier and Mr. Holtzman during their testimony pointed out both of the Defendants as their assailants and testified that they were certain about their identification. While I have no doubt that both Mr. Regier and Mr. Holtzman have an honest belief in the certainty of their identification there are a number of problems with their testimony. [ 49 ] Neither Mr. Regier nor Mr. Holtzman knew the first or second man.

Their encounter with the first and second man at the bottom of the Taylor St. stairs lasted only as long as the brief moment it took them to walk past. While Mr. Regier and Mr. Holtzman may have looked at the first and second man as they encountered them at the Taylor St. stairs, there was no reason at this point for either Mr. Regier or Mr. Holtzman to be paying particular attention to the men’s physical features. When Mr. Regier and Mr.

Holtzman passed by the first man at the top of the stairs, while I accept they spoke to him, they only looked at the first man for a second or two as they passed. [ 50 ] It was only during the fight that either of the complainants would have had reason to pay any attention to the appearance of their assailants. However, both Mr. Regier and Mr. Holtzman were immediately and utterly overwhelmed with a furious attack during which they were punched repeatedly in the face and the head. Both men suffered injuries to their face and head. Mr. Regier testified that at one point he nearly lost consciousness.

Such a traumatic experience would have thoroughly diminished the complainant’s ability to make accurate observations of their attacker’s facial features. [ 51 ] In addition to the trauma of the attack, both Mr. Regier and Mr. Holtzman described being focussed on protecting themselves by covering up their faces and heads. This would have additionally limited the complainants’ ability to make accurate observations about their assailants. [ 52 ] Although both men described the fight as lasting up to five minutes, according to both the stairway and front entrance videos the fight between Mr.

Regier and the first man lasted no more than forty seconds while the fight between Mr. Holtzman and the second man lasted no more than 33 seconds. According to both the complainants and the videos there were actually only a few seconds during these two fights that either complainant had any opportunity to actually look at the faces of either assailant. [ 53 ] The lack of opportunity during the fight to make accurate observations of his assailants was confirmed by Mr. Regier’s notes he made a few hours after the incident.

He recorded in those notes that he did not really get a good look at either of the assailants. [ 54 ] Given this lack of opportunity, quite understandably when Mr. Regier and Mr. Holtzman, between June 12 and 15, gave statements to the police, their descriptions of the two men were very limited. In his statement written around three a.m., June 13, Mr. Regier’s description of his assailants was confined to their race, age, height and build. On June 15, Mr. Regier provided another statement to police at his home. On this occasion, Mr. Regier described the first man’s clothing, height, build, hair colour and age.

His only description of the first man’s face was that it was broad and he had a thin pencil beard and moustache. Mr. Regier’s description of the second man was limited to shorter and thinner than the first man and no facial hair. [ 55 ] Mr. Holtzman wrote out a statement for police June 12. He described the first man as a six foot male around thirty five years old. He also told police he would not be able to identify the first man and that he could not describe the second man. On June 15, when asked to describe the first and second man, Mr.

Holtzman provided some detail about their height, weight, ethnicity and age but repeatedly acknowledged that he could not describe the two and was guessing about most of the details he provided. [ 56 ] Between June 12 and 15 and shortly before testifying both Mr. Regier and Mr. Holtzman reviewed the stairway and front entrance videos. It is apparent from the evidence that they also had access to media coverage of the incident some of which included reproductions of still images taken from the Taylor St. video. When asked during their testimony to think back and recall the appearance of their assailants both Mr.

Regier and Mr. Holtzman provided more detailed descriptions of the first and second man. However both acknowledged that it was difficult to separate what was a recollection from the incident itself and what was a recollection based on subsequent information they had received. [ 57 ] In addition, while there were many people in the public gallery when both Mr. Regier and Mr. Holtzman testified, the Defendants were seated together before the bar and behind their counsel. As was pointed out in argument, it was readily apparent to even the most casual observer of the proceedings who the accused persons were.

Moreover, when Mr. Regier and Mr. Holtzman were asked to recall the appearance of their assailants during the attack both of them faced the Defendants as they answered the question. [ 58 ] The general descriptions of their assailants pertaining to age, sex, size, build, and ethnicity provided by Mr. Regier and Mr. Holtzman in statements to the police and while testifying are consistent with the general physical attributes of the Defendants as they appeared before me. However, those general physical features apply to scores of men in this city.

Neither complainant, in the period immediately following the incident, provided any specific detail of their assailant’s facial features. On their own evidence, Mr. Regier’s and Mr. Holtzman’s identification of the Defendants depended on their seeing the Defendants again.

[ 59 ] In addition to the realistic possibility that Mr. Regier and Mr. Holtzman may have consciously or unconsciously acquired details of their assailant’s respective appearances through watching the security videos or seeing material published by the media, there was virtually no realistic possibility during the incident for either complainant to have a clear and composed view of their assailants’ faces. I am not prepared to give much weight to either Mr. Regier’s or Mr. Holtzman’s in court identification of the Defendants. [ 60 ] In addition to identifying the Defendants in court, Mr.

Holtzman was asked if he had seen his assailants on any occasion between June 12, 2010 and March 22, 2012, the day on which he was testifying. Mr. Holtzman testified that on March 20, 2012, he had entered the court house cafeteria during the Court’s luncheon break and had encountered the first man who was seated there. According to Mr. Holtzman, he and the first man locked eyes and then the first man elbowed the second man who was sitting beside him. The second man looked up at Mr. Holtzman and said “Bang”. Mr.

Holtzman took that word as a threat and left the cafeteria without a further exchange taking place. [ 61 ] The Crown submits that this evidence bolsters Mr. Holtzman’s in court identification of the Defendants. I do not agree for the following reasons. [ 62 ] First, for all the reasons I have already stated, I am left with considerable doubt that Mr. Holtzman’s recognition of the Defendants in the cafeteria was based on his observations made during the incident itself. Second, I have reservations concerning Mr. Holtzman’s credibility generally. As he testified, Mr.

Holtzman struck me as a very sophisticated and intelligent individual. However, while being cross examined Mr. Holtzman was evasive, argumentative and tended to exaggerate. [ 63 ] For example, Mr. Holtzman was cross examined on his ability to recall which of the assailants wore a light coloured shirt. The basis of the cross examination was that Mr. Holtzman had told the police he deduced the colour of his assailant’s shirts from watching either the stairway or front entrance videos and therefore his recollection was not based on his observations during the incident. After some questioning to this effect, Mr.

Holtzman was asked if he still maintained he could recall which of his assailants wore a light coloured shirt to which he responded: You know what? Sitting here today I don’t remember which color t-shirt was which because that’s not what I was focussing on. I was focussing on eyes and face. (March 26, 2012, transcript pages 11 through 13.) [ 64 ] Apart from Mr.

Holtzman’s gratuitous claim that he was focussed on eyes and face, which in all of the circumstances of the incident, defies common sense, all three security videos confirm that none of the assailants were wearing light or white coloured shirts. [ 65 ] Later, it was suggested to Mr. Holtzman that when he encountered the first man at the top of the Taylor St. stairs he was not at that time making observations to enable him, if required, to be able to recall the first man’s appearance. In the course of a lengthy, confrontational response, Mr.

Holtzman claimed that at that point, due to the appearance of strangers on his steps who smelled drunk and staggered a bit plus called out homophobic slurs, his attention was riveted upon the first man’s face. (March 26, 2012 transcript page 14.) [ 66 ] Although Mr. Holtzman was not cross examined on the symptoms of intoxication he claimed to have observed, the events recorded by the stairway video are not consistent with this claim. The first man does not stagger or exhibit any coordination problems as he mounts the stairs or prepares to urinate. Mr.

Holtzman’s distance from the first man during the entirety of this first encounter which took place in the open air greatly diminishes any possibility Mr. Holtzman could smell alcohol on the first man. In any event Mr. Holtzman, as he passed by, only looked for a moment in the direction of the first man. [ 67 ] At the end of this exchange in cross examination, Mr. Holtzman conceded, when confronted with a contradictory passage in his statement to police, that in the period of time prior to the assault he wasn’t really trying to remember the men he had encountered on the Taylor St. stairs.

This concession not only contradicted Mr. Holtzman’s evidence that his attention was riveted on the first man, it also contradicted a similar claim Mr. Holtzman made at the outset of his examination in chief, that as he mounted the stairs he looked up and could clearly identify the first man. (March 22, 2012, Transcript page 33, lines 8-10.) [ 68 ] Mr. Holtzman revealed during cross examination that he used marihuana for medicinal purposes and at one point declared he smoked lots of pot after the assault. When asked about marihuana’s affect on his short term memory Mr.

Holtzman initially evaded giving a direct answer before finally conceding it affected his ability to observe and recall. (March 26, 2012, Transcript pages 22- 23.) [ 69 ] Throughout his evidence, Mr. Holtzman maintained that there was some daylight remaining at the time of the incident which had a bearing on his ability to clearly see his assailants. Mr. Holtzman based the notion there was some daylight remaining on his recollection that the incident occurred at 9:50 pm. During a lengthy cross examination on this point, Mr.

Holtzman gave a continuous series of evasive answers concerning his recollection of the time of the incident. Throughout he did not accept the suggestion, which was consistent with the evidence of other witnesses plus the stairway and front entrance videos which he had watched a number of times, that the incident started around 10:45 pm.

He did near the end of the exchange concede that by 10:45 pm it would be completely dark but then an answer later resiled from that view. (March 26 Transcript pages 26- 29.) [ 70 ] When being cross examined about his limited description of his assailants given shortly after the incident in comparison to the more detailed description, he provided while testifying in chief, Mr. Holtzman, by way of explanation suggested that a concussion he suffered during the attack may have affected his ability immediately after the incident to recall his assailant’s features.

However he dismissed, the common sense proposition suggested to him, that if a concussion had affected his ability to recall at the time of the incident that might very well have affected the reliability of his recollections some 21 months later when he was testifying. [ 71 ] When confronted by the video evidence which indicated that, at a maximum, he had only nine seconds during his assault, to actually look at his assailant, Mr.

Holtzman went so far as to make the preposterous claim that during those nine seconds he anticipated being in court and therefore ensured he took a good look at his assailant. (March 26, 2102, Transcript page 47 line 25.) [ 72 ] In his examination in chief, Mr. Holtzman testified that after he was knocked into the planter, he deliberately counted the blows

he received and determined that the second man punched him as many as fifty times in the head and made a homophobic comment with every second blow. In a lengthy exchange during his cross examination on this point, Mr. Holtzman was taken through both the stairway and front entrance videos. The recordings of time shown in the videos were specifically brought to his attention and those recordings demonstrated that Mr. Holtzman was in the planter for less than 20 seconds. At a common sense level 20 seconds is not nearly long enough for anyone to rain 50 blows upon another person. Regardless, Mr.

Holtzman stubbornly refused to resile from his exaggerated claims about the number of blows he received until he finally conceded: You know when someone is bamming you in the back of the head repetitively, it’s really hard to know the exact number. I’m trying to be as accurate as I possibly can, but I have to say, when one has a brain injury, for the exact number of hits it’s really hard to tell. Its very very difficult to tell. (March 26, 2012 Transcript pages 50 to 51). [ 73 ] Finally, during cross examination about the events in the cafeteria on March 20, 2012, Mr.

Holtzman claimed that not only did he not come to the court house until near 10:00 a.m. on March 20, 2012, which was the first scheduled day of this trial set to commence at 9:30 a.m., but he did not during that entire morning go to the third floor of the court house where the trial was being conducted. Mr. Holtzman accounted for this by testifying that the prosecutor had told him he did not need to come that day until 10:00 am and so he had chosen to sleep in. [ 74 ] I accept that the prosecutor told Mr. Holtzman he did not need to come until 10:00 am. However, Mr.

Holtzman’s evidence that he did not arrive at the court house until 10:00 am and then never went near the third floor before the court’s lunch break at 12:30 was not credible. [ 75 ] From the date of the incident, Mr. Holtzman, quite properly, was determined to ensure that the perpetrators of his and Mr. Regier’s assault were brought to justice. He pursued the Chief of Police and the Mayor of Vancouver to ensure this was done.

He attended both administrative court appearances leading up to the first day of trial not because he was requested or required to but rather, according to his evidence, out of his abiding interest in the proceedings generally. It is inconceivable to me that Mr. Holtzman on the first day of reckoning for his assailants, when his beloved partner Mr. Regier was scheduled to and actually did testify, would choose to casually sleep in and then ignore for the entire morning, what must surely have been for Mr. Holtzman a very significant event. [ 76 ] As described above, I have accepted Mr.

Holtzman’s evidence where his evidence is corroborated by other witnesses or the security videos. Otherwise, I did not find Mr. Holtzman a very credible witness and I give very little weight to his evidence where it is not corroborated. While I do not reject Mr. Holtzman’s evidence that he saw the Defendants in the cafeteria since that is a realistic possibility given the Court’s daily schedule, I give little weight to Mr. Holtzman’s evidence that he and the Defendants locked eyes or that one of them made a threatening comment. [ 77 ] Ms.

Bruneau testified concerning her observations of the fight as she walked by on the evening of June 12. Ms. Bruneau was a credible, straightforward witness. Despite her lack of proximity to the fight, due to her physical height, the layout of the landscaping surrounding the scene of the fight and the presence of abundant artificial light, I accept that Ms. Bruneau had a good view of the fight and its participants. Moreover, her description of events was confirmed on all material points by the security videos. [ 78 ] Ms. Bruneau, while testifying pointed out the Defendants as the assailants of Mr. Regier and Mr.

Holtzman. [ 79 ] However, when she was cross examined on her ability to recognize the assailants she agreed that she only watched the incident for about 30 seconds. When asked how much of that 30 second period she looked at either of the assailant’s faces she testified that “the main way that I identified the suspects was by their body shapes and not their faces.” [ 80 ] Ms. Bruneau went on to testify that she only realized that she was a potential witness to a criminal act when she saw some days later, on a media web site, a photograph of the suspects with herself in the background.

While she could not from that photograph tell that the suspects were in fact the men she saw in the fight, she agreed that she relied on those photographs to some extent to inform her description of the assailants. She also agreed that she deduced from the court room layout that the two Defendants were in fact the accused on trial. Finally, Ms. Bruneau confirmed that she relied only on their body shapes not their facial features when identifying the Defendants in court. (Oct 2, 2012, Transcript, pages 63 to 65.) [ 81 ] I have no reservations about Ms.

Bruneau’s honesty and sincerity when she identified the Defendants in court. However, not only was her identification of the Defendants a classic example of how individuals come to be misidentified by otherwise entirely honest witnesses but the basis for her identification, body shapes only, completely undermines the reliability of that evidence. I am not prepared to give any weight to Ms. Bruneau’s identification of either of the Defendants as the perpetrators. [ 82 ] Mr. Constantino also witnessed the incident. While testifying he identified Peter Bassi as one of the assailants of Mr. Regier and Mr. Holtzman.

He did not identify the other assailant. [ 83 ] Mr. Constantino testified that he knew Peter Bassi from playing in two soccer matches with him during the month of May 2010. The last match had taken place about two weeks prior to June 12. [ 84 ] There is no issue in this trial that Mr. Constantino knew Peter Bassi well enough from playing soccer with him to reliably identify him in the court room. The issue to be determined is the reliability of Mr. Constantino’s recognition of Peter Bassi during the fight on June 12. [ 85 ] Mr.

Constantino testified in chief that he lived at 63 Keefer St. and was returning to his residence from walking his dog around 10:30 pm on June 12. As Mr. Constantino walked up to the main entrance of 63 Keefer St. he saw a fight break out amongst four men near the Taylor St. stairs. He went into the lobby of 63 Keefer St. to let go of his dog and to look for a security guard. He couldn’t find a guard so he went back out and saw that the fight continued and that two of the four men seemed to be dominated by the other two. According to Mr.

Constantino, he became anxious about the safety of the men being dominated and walked closer to the fight inquiring

if any one needed help. [ 86 ] According to Mr. Constantino, he got quite close to the fight and heard one of the victims cry out “that’s enough” shortly after which, the fight ended. Mr. Constantino testified that when the fight ended he was standing right next to the two victims. At this time the two aggressors were about five to six feet away, one of whom was facing Mr. Constantino and the victims. This aggressor then stepped up very close to one of the victims and stated, “You don’t like fighting do you?” As this occurred the aggressor was suddenly well lit by the artificial light in the area and Mr.

Constantino had a clear and full view of the aggressor’s face. At that instant Mr. Constantino recognized the aggressor’s face and voice as those of his fellow soccer player Peter Bassi. The aggressor then turned and like his fellow aggressor departed the scene via the Taylor St. stairs. [ 87 ] Mr. Constantino later that night reported his observations to the police. On June 16 he gave a formal statement to police. The next day police asked Mr. Constantino to view the Taylor St. video and still photographs taken from that video. Mr.

Constantino told police that he was eighty to ninety per cent certain that one of the running men in the video was Peter Bassi. [ 88 ] Mr. Constantino testified in chief that he was completely certain he had recognized Peter Bassi at the scene of the fight. [ 89 ] However, Mr. Constantino viewed for the first time, during his testimony, the stairway video and the front entrance video. He readily agreed that the videos contradicted his recollection of the events leading up to the start of the fight.

While viewing himself in the video holding onto the front entrance door, leaning out as far as he could and craning his neck to look towards the Taylor St. stairs, Mr. Constantino testified that watching the video threw him off his recollection that he had a clear view of the fight. Mr. Constantino agreed that the front entrance video showed he never left the front entrance door until after both aggressor’s had departed. This completely contradicted Mr.

Constantino’s recollection that he was standing next to the victims when he recognized Peter Bassi. [ 90 ] According to the front entrance and stairway videos, not only was Mr. Constantino mistaken about his location when he purportedly recognized Peter Bassi, but he was also mistaken that one of the aggressors, after the fight ended, approached the victims. He was also mistaken that the exchange between the aggressor and the victims took about five seconds. [ 91 ] While they had a different version of what was said, both Mr. Regier and Mr. Holtzman agreed with Mr.

Constantino that the second man turned and spoke to them as he departed. This event was also confirmed by the stairway video. [ 92 ] The stairway video recorded that the second man as he reached the top of the Taylor St. stairs turned his head to look in the direction of the front entrance and then headed down the stairs. Mr. Regier and Mr. Holtzman cannot be seen at this point, but they appear as the second man heads down the stairs. Given the very short hiatus in time for this to occur I infer the complainants were within a couple of strides of the top of the stairs.

I accept the complainant’s evidence that this is the moment when the second man spoke to them. It follows that this was also the moment when Mr. Constantino made observations which led him to believe the second man was Peter Bassi. [ 93 ] It is clear from the front entrance video that at this point in time Mr. Constantino was still at the front entrance door. In addition, the stairway video confirms that at this point the second man did not approach the complainants as he turned to look at them and the second man’s turn only occupied a second or two. [ 94 ] Mr. Constantino was an honest witness.

Up to the time he watched the stairway and front entrance videos, Mr. Constantino genuinely believed that his recollections of the fight were correct. However, the surveillance video evidence revealed that his recollections on very material points were wrong. [ 95 ] It is clear from Mr. Constantino’s evidence that his certainty of recognizing Peter Bassi depended on his recollection that he was in close proximity to the second man and that he saw the second man’s illuminated face for at least five seconds. But the reality recorded by the video casts considerable doubt on Mr.

Constantino’s level of certainty. [ 96 ] In addition, while there was no clear evidence as to how far the top of the Taylor St. stairs were from the front entrance of 63 Keefer St., according to Mr. Holtzman and Sgt. Hinton, the distance might have been twenty feet or more. The natural effect of this distance, compounded by his awkward line of sight from the front entrance and the very brief opportunity he had to observe the second man’s face further diminishes the reliability of Mr. Constantino’s observations. [ 97 ] Finally, at the same time he saw Peter Bassi’s face, Mr.

Constantino also heard and recognized Peter Bassi’s voice. It is not clear from the evidence how this voice recognition affected Mr. Constantino’s face recognition. However, after watching the videos Mr. Constantino was asked to describe what it was about the aggressor’s face that led him to recognize it as Mr. Bassi’s. Mr. Constantino could not recall these details and surmised that the surprise of recognizing Mr. Bassi, gave him tunnel vision. I conclude from this response that in the moment of recognizing Peter Bassi, Mr.

Constantino closed his mind to any other possibility than that the second man was Peter Bassi and therefore paid no further attention to what he was actually observing. [ 98 ] The images of the person Mr. Constantino identified in the Taylor St. video and the still photographs, including the enhanced ones are quite unclear. It is very difficult to see any of the features of the face of the person Mr. Constantino told police was Peter Bassi. I am doubtful that Mr.

Constantino, absent his earlier recognition of Peter Bassi, would have been able to identify Peter Bassi from the Taylor St. videos or the still photographs. As it was, Mr. Constantino was not entirely confident at the time he made the indication to police. [ 99 ] Mr. Constantino honestly believed he recognized Peter Bassi as one of the assailants. However, the contradictions between his honest recollections and the security videos, plus his lack of proximity to the second man and the limited time he had to make his observations diminish the reliability of Mr.

Constantino’s identification of Peter Bassi to well below the standard required in a criminal trial. [ 100 ] That leaves for consideration the recognition evidence of Mr. Hutchinson and Ms. Evans.

[ 101 ] I am entirely satisfied from their evidence that both Mr. Hutchinson and Ms. Evans were well acquainted with Robbie Bassi as their fellow employee. Due to her regular direct contact with him, I have concluded that Ms. Evans was better acquainted with Robbie Bassi than Mr. Hutchinson. I have no reservations about Mr. Hutchinson’s or Ms.

Evan’s respective ability to recognize and accurately identify Robbie Bassi in court or their individual honesty as witnesses. [ 102 ] The issue for me to determine from the evidence is the reliability of their respective opinions, which were that Robbie Bassi was the man on the left side of an image of two running men in photographs entered into evidence before me as Exhibits 6, 7 and 8. In order for me to accept the opinion of either Mr. Hutchinson or Ms. Evans it is not sufficient for me to merely conclude they had an honest belief in the merits of their respective opinions.

I must also be satisfied that the material, upon which their opinions were based, when viewed objectively, supported their opinion. [ 103 ] Exhibit 6 contains unenhanced still photographs obtained from the Taylor St. video. The Exhibit 6 photographs are similar to the ones Mr. Hutchinson saw on a news web site on June 18, 2010. Exhibit 7 is a copy of some of the Exhibit 6 photographs enhanced by the introduction of more light which makes the features of the running men more visible than in the Exhibit 6 photographs.

Exhibit 8 is a copy of the police poster distributed at the airport which contained smaller reproductions of the two Exhibit 7 photographs. [ 104 ] While being examined in chief, Mr. Hutchinson confirmed his identification of Robbie Bassi in Exhibits 6 and 8 and also made the same identification when shown Exhibit 7. [ 105 ] Mr. Hutchinson testified that when he saw the Exhibit 6 photographs on a news web site, he believed they contained an image that resembled Robbie Bassi. From all of his evidence, I have concluded that Mr.

Hutchinson was not positive that the image in Exhibit 6 was in fact Robbie Bassi, rather he suspected that to be the case. As he testified the Exhibit 6 photograph intrigued him. Given the darkness of the images in Exhibit 6, it is remarkable that Mr. Hutchinson was able to make any recognition. [ 106 ] It is not clear from the evidence which of Exhibit 6 or 8, Mr. Hutchinson was referring to at the time he was interviewed by police. However, when he was being cross examined concerning his statement to police the only exhibit being referred to was Exhibit 8. I have concluded that Mr.

Hutchinson was discussing Exhibit 8 with the police on June 29. [ 107 ] Mr. Hutchinson testified that when identifying the images in Exhibit 7 as those of Robbie Bassi he relied on his recollection that Robbie Bassi had very strong facial features, a solid forehead, plus a strong nose, cheek and chin structures. (Oct 2, 2012, Transcript page 11, lines 9 to 19.) [ 108 ] Mr. Hutchinson also confirmed during his testimony that when he was interviewed by police on June 29 he told them he was 70- 80 per cent certain of his identification of Robbie Bassi as one of the runners. According to Mr.

Hutchinson, his level of confidence in that recognition remained the same when he testified. [ 109 ] Ms. Evans testified that she was instructed by Mr. Hutchinson at the end of a staff meeting to distribute Exhibit 8 throughout the airport. Before she distributed the posters, Ms. Evans looked at the photographs in Exhibit 8 and like Mr. Hutchinson recognized the runner on the left as Robbie Bassi. [ 110 ] Before she identified Robbie Bassi in the court room, Ms.

Evans testified that she recalled Robbie Bassi in June of 2010 as a muscular, over six foot tall East Indian male with a full head of hair and big, big eyes. Ms. Evans recalled in particular that Robbi Bassi had quite muscular forearms. She also recalled that he occasionally had facial hair. (November 20, 2012 Transcript page 8.) [ 111 ] Ms.

Evans confirmed that she recognized Robbie Bassi’s image in Exhibit 8, and testified that her recognition of the image in the poster was based on her perception that the person in the image was an East Indian male with a hair cut similar to ones she had seen on Robbie Bassi, a large muscular build, large eyes, facial hair and very distinguishable facial planes. Ms. Evans also noted that the subject in the image had forearms which were consistent with Robbie Bassi’s muscular build and Mr. Bassi’s forearms which she regularly saw since he worked in short sleeved shirts. [ 112 ] Ms.

Evans also confirmed that she recognized Robbie Bassi’s image in Exhibit 7. Ms. Evans testified she recognised in the Exhibit 7 image Robbie Bassi’s forearms, body structure, hairstyle, facial hair, large eyes, complexion, gender and ethnicity. [ 113 ] The images of the running men in Exhibit 6 are quite dark. It is very difficult to clearly see any feature of their faces. Exhibit 7 contains brightened and enlarged reproductions of the two still photographs which appear on the right hand side of Exhibit 6. It is possible to see more clearly, than in Exhibit 6 some of the running men’s features.

Although the photographs in Exhibit 8 are smaller in size than in Exhibit 7, the images of the runners are quite similar in size to those in Exhibit 7. The quality in Exhibit 8 of the image of the runner on the left is virtually identical to the quality of the same image in Exhibit 7. [ 114 ] The features of the two runners in Exhibit 7 are more clearly discernable than in Exhibit 6 but are still partially in shadow.

Specifically the entire left side of the face of the runner on the left side of the images in Exhibit 7 is completely shaded and indistinct. [ 115 ] The general physical appearance of the subject’s face in Exhibit 7 such as hair colour, style and facial skin colour are entirely consistent with Robbie Bassi’s ethnicity and gender as described by Mr. Hutchinson and Ms. Evans. The subject in Exhibit 7 appears to have a full head of dark hair and a strong forehead.

However, it is difficult to be certain that the subject’s overall size is necessarily large since the Exhibit 7 photographs contain no adjacent comparators whose size is known. The subject’s right forearm and hand can be readily identified but their image is quite blurry and I do not agree with Ms. Evans that any muscle definition of that arm can be determined from the Exhibit 7 photograph.

There is no definition of the subject’s left arm in the photograph. [ 116 ] Other than appearing in areas consistent with the human face, the right eye, right eye brow, and right half of the mouth, of the runner on the left of Exhibit 7 cannot be clearly seen. While the right side planes of the subject’s face appear to be large, there is no definition of those planes and it cannot be determined from the photograph where they start or end between the subject’s hairline and neck.

It is difficult to be certain from the image where the subject’s cheek area starts or finishes and how it is related to the subject’s brow. At best, there is a large blur in the area of the subject’s nose but no details of the nose can be seen so as to be certain as to its size.

[ 117 ] Despite the problems with the images in Exhibit 7 and 8 which I have already identified, Ms. Evans testified she was absolutely certain of her recognition of Robbie Bassi. On the other hand, Mr. Hutchinson testified he was only seventy to eighty per cent certain. While I accept Ms. Evans was entirely honest when she offered her opinion, I give much more weight to Mr. Hutchinson’s opinion as it more accurately reflects the problems with the images of the running man I have identified.

While it is not necessary that identification evidence in a criminal trial be absolutely certain, certainty to a level of seventy or eighty per cent does not meet the standard required in a criminal trial. [ 118 ] As I said at the beginning of this judgement, in a criminal trial there is a heavy onus on the Crown to prove the elements of a criminal offence beyond a reasonable doubt.

That is particularly so concerning the element of identification for the simple reason that while it is very important to hold to account those who commit serious crimes such as assault, it is even more important to hold the correct perpetrator to account.

I have concluded that the evidence identifying either Robbie Bassi or Peter Bassi as the assailants of Peter Regier and David Holtzman on June 12, 2010, does not meet the standard of proof required in a criminal trial. [ 119 ] Therefore, I acquit Robbie Bassi and Peter Bassi of both the charges before me in this trial. __________________________________ The Honourable Judge R. Low Provincial Court of British Columbia