COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Lapierre, 2016 ONCA 346
DATE: 20160506
DOCKET: C59779
Weiler, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nicholas Lapierre
Appellant
DOCKET: C59821
BETWEEN
Her Majesty the Queen
Respondent
and
Joseph Abouchakra
Appellant
Counsel:
Ian McLean, for the appellant Nicholas Lapierre
Michael Smith and Jessica Abou-Eid, for the appellant Joseph Abouchakra
Holly Loubert, for the respondent
Heard and released orally: April 29, 2016
On appeal from the convictions entered on April 30, 2014 and the sentence of Mr. Abouchakra imposed on December 8, 2014 by Justice Catherine A. Kehoe of the Ontario Court of Justice.
ENDORSEMENT
[1] Joseph Abouchakra, Nicholas Lapierre and John Mangione were convicted of robbery, attempt robbery, assault causing bodily harm and assault (x3) following three separate incidents over the span of half an hour. They admitted their presence at the first and second incidents.
[2] Mr. Lapierre and Mr. Abouchakra both appeal their convictions, arguing in essence that the verdicts were unreasonable.
[3] Mr. Abouchakra also seeks leave to appeal and, if leave is granted, appeals his sentence of 12 months’ jail on each of the offences to be served concurrently.
A. First Incident: Confederation Park
[4] In the evening of July 5, 2012, after celebrating Rodrigo Brand’s 50th birthday, he and members of his family visiting from Alberta, the Tootles, walked through Confederation Park, in Ottawa. The appellants approached the family. A fight ensued. The family subdued the three men and called police.
[5] The appellants submit that the trial judge erred in holding that there was no air of reality to their defence of self-defence in relation to the fight between the Brand-Tootle family and the appellants.
[6] While the appellants rely on the concept of air of reality at law, this was a judge alone trial and, in light of the trial judge’s findings that the Brand-Tootles were acting in self-defence, we read the trial judge as simply saying that the Crown had proved beyond a reasonable doubt that the appellants were not acting in self-defence. This holding was open to her on the evidence. There was no evidence that the Brand-Tootles provoked the fight, or that they threw the first punch.
[7] The trial judge found that all three appellants were actively engaged in the assault.
[8] Mr. Abouchakra contends that there was insufficient evidence to find more than his mere presence at the scene.
[9] The trial judge’s findings as to what happened during the first incident are amply supported by the evidence. See e.g., the evidence of Jonathan Tootle, Gary Tootle, and Rodrigo Brand. The evidence was that at the outset of the altercation when the person in the red shirt took an aggressive stance towards Robert Tootle, the other two men, wearing black shirts, stepped in behind and supported him.
[10] Mr. Lapierre also contends that there was insufficient evidence as to his identity, namely, that he was the person wearing the red shirt. The trial judge’s findings are owed considerable deference on appeal and we would uphold her finding in this regard.
[11] The appellants also submit that there is no evidence of a common intention in relation to this incident. There did not have to be. On the findings of the trial judge the three were all common participants and principal actors. See R. v. Ball, 2011 BCCA 11, 267 C.C.C. (3d) 532, at para. 25.
[12] The appeal with respect to the first incident is dismissed.
B. Second Incident: The Laurier Transit Station
[13] In relation to the second incident involving Ryan Miszkiel, counsel for Mr. Abouchakra submits that there is no evidence he was involved in the robbery. Counsel submits that, at its highest, the evidence establishes that Mr. Abouchakra was in possession of stolen property.
[14] The record indicates that Mr. Lapierre took the cell phone from Mr. Miszkiel, a second aggressor punched the victim in the eye and Mr. Abouchakra, who was standing a short distance away, did not participate but merely accepted the phone.
[15] On this evidence Mr. Abouchakra did more than stand by during the robbery. He came with the other two involved in the robbery and observed the phone being taken from Mr. Miszkiel and the victim being assaulted. It is against that background that Mr. Abouchakra received the phone and left with the other two assailants.
[16] The appeal in relation to the second incident is dismissed.
C. Third Incident
[17] In terms of the third incident, Mr. Adams, a City of Ottawa employee observed the incident that took place approximately 100 feet away from where he was parked. Mr. Adams saw Mr. Lapierre approach an unknown man and attempt to rob him of his satchel. Two other men stood within 15 feet of the attack. Mr. Adams testified that he had also observed the earlier incident involving Mr. Miszkiel and that the same individuals were involved in both incidents.
[18] The trial judge found that these two other men knew, or were wilfully blind to, Mr. Lapierre’s intention as he approached the victim. The two other men had just participated in the robbery of Mr. Miszkiel and in the assaults that took place in Confederation Park, and were ready to assist Mr. Lapierre, if required. The trial judge convicted all three of attempted robbery.
[19] Counsel for Mr. Abouchakra submits that it was speculation on the trial judge’s part to find that he was there to assist Mr. Lapierre, if and when required.
[20] Given that all three transactions took place during a 30 minute period, and that Mr. Abouchakra was close at hand during this attempted robbery, the trial judge was entitled to make the common sense inference she did. We also note that Mr. Adams also saw the three appellants afterwards sitting together, pointing back to the area and laughing.
[21] The appeal in relation to this incident is dismissed.
D. Sentence
[22] With respect to sentence, in light of the very fair submissions by counsel for Mr. Abouchakra, we would not grant leave to appeal sentence.
E. Disposition
[23] In relation to Mr. Lapierre, the appeal as to conviction is dismissed. In relation to Mr. Abouchakra the appeal as to conviction and sentence is dismissed.
“K.M. Weiler J.A.”
“Janet Simmons J.A.”
“Gloria Epstein J.A.”