Court of Appeal for Ontario

Date: January 19, 2017 Docket: C59562 Judges: Sharpe, van Rensburg and Pardu JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Nicolas Pomanti Appellant

Counsel

For the Appellant: Daniel Stein and Janani Shanmuganathan

For the Respondent: Michael Fawcett

Hearing and Appeal

Heard: November 22, 2016

On appeal from: The conviction entered on April 11, 2014 and the sentence imposed on July 2, 2014 by Justice Robert A. Clark of the Superior Court of Justice, sitting without a jury.

Decision

By the Court:

[1] Overview of the Appeal

The appellant was convicted of aggravated assault and sentenced to 22 months' imprisonment. The incident arose out of a home invasion robbery where Durkalec, a long-time acquaintance of the appellant, broke into the appellant's home. The appellant, one of his housemates, and another friend prevented Durkalec's escape, and the appellant struck him with a shovel, causing significant injuries. The only issue at trial was whether the appellant acted in self-defence. The appellant appeals his conviction and seeks leave to appeal sentence.

[2] Durkalec's Evidence

Durkalec testified that he arrived at the back door of the appellant's home wearing a wig, a balaclava, a fake moustache, two pairs of gloves, and what he thought was a bullet-proof vest. He was armed with a crowbar and a canister of bear spray, and was carrying a cellphone signal jammer. According to Durkalec, he was there to recover a stolen watch, although he told a first responder that his attendance was about a drug debt. He testified that he only intended to intimidate, but that when the appellant said "I'm going to kill you", he broke the back door window, discharged the bear spray, and then ran. He was intercepted by the appellant and his friends. The last thing Durkalec remembered before waking up in the hospital from a medically induced coma was the appellant striking him with a shovel.

[3] The Appellant's Evidence

The appellant testified that after he saw an intruder smashing the glass on the back door, he and his friends ran out through the front door and down the driveway toward the backyard. He tried to go back into the house but was overcome by bear spray and forced to run out again through the front door. He and his friends saw the person they later identified as Durkalec in the backyard putting a safe that belonged to the appellant's friend into a bag. Durkalec threw the bag over the fence and started to climb over. The friend pulled the intruder off the fence and then hopped over to retrieve his safe. Durkalec then came at the appellant with the crowbar, cornering him by the garage. During the attack, the appellant reached out and grabbed a shovel, striking Durkalec twice in the head until he fell down. When he jumped up, one of the appellant's friends said something about a gun, so the appellant hit Durkalec again. It was when Durkalec was on the ground that the appellant and his friends discovered the intruder was Durkalec. They held him down until the police arrived. At trial, the appellant claimed that all of his actions in striking Durkalec were in self-defence.

[4] Other Witnesses

There were four other witnesses at trial: two neighbours who saw and heard parts of the incident, the police officer who first arrived at the scene, and the appellant's stepfather (who claimed to have found something that looked like a safe in the backyard a few days later). Both neighbours called 911 and, at some point during the events, a 911 call was made from the cell phone of one of the appellant's friends, consistent with a "pocket dial."

[5] Trial Judge's Findings

The trial judge concluded that the appellant's claim of self-defence had no "air of reality". He found that the appellant was not a credible witness and rejected several aspects of his evidence as implausible and inconsistent with other evidence, including that of the neighbour Ms. Collins. He accepted that, while the appellant and his friends might initially have feared for their safety due to the home invasion, by the time Durkalec was struck with a shovel he had been corralled by the appellant and his friends in the backyard and prevented from escaping. The appellant had Durkalec under control and, rather than acting in self-defence, the appellant had administered a gratuitous beating.

Conviction Appeal

[6] Issues on Appeal

The appellant raises four issues on his conviction appeal. All pertain to the trial judge's findings that led to his rejection of the defence of self-defence.

[7-10] First Issue: Bear Spray Evidence

The appellant challenges the trial judge's treatment of evidence respecting the effects of bear spray.

The appellant testified that, after running out the front door of the house, he attempted to return and was overcome by bear spray. The trial judge rejected the contention that bear spray had been discharged in the front hall, and said that if bear spray was discharged in the kitchen (as Durkalec had testified), it would not have carried into the hallway sufficiently to cause the appellant the discomfort he described. The appellant submits that there was no evidence about how bear spray works or the layout of the house from which the trial judge could have made this finding. Instead, the trial judge took judicial notice of matters not in evidence, as a result of which his credibility assessment of the appellant was irreparably tainted, leading him to ignore a crucial part of the self-defence narrative.

Although the court would not characterize the trial judge's "bear spray" discussion as improperly taking judicial notice, the court agrees with the appellant that there was no evidence to support the trial judge's finding that, if bear spray had been discharged in the kitchen, it would not have spread to the front of the house and affected the appellant to the point that he was overcome and forced to run out of the house.

That said, the court is not persuaded that any error in the trial judge's treatment of the bear spray evidence had a material impact on his rejection of the appellant's claim that he was acting in self-defence. The trial judge accepted that Durkalec discharged the bear spray in the house, and that he pleaded guilty to break and enter and to administering a noxious substance with intent to endanger life. The appellant's subsequent actions in arming himself with a shovel and striking Durkalec did not suggest he was incapacitated in any way, nor did he contend that the bear spray contributed to his actions in striking Durkalec after he was attacked with a crowbar. The appellant's evidence about the bear spray was simply one aspect of his account that the trial judge rejected. It was not essential to his rejection of the appellant's evidence, and not material to his conviction.

[11-14] Second Issue: Misapprehension of Evidence Regarding the Shovel

The appellant says that the trial judge misapprehended the evidence when he rejected the appellant's claim that he grabbed the shovel in response to an attack by Durkalec in the backyard.

According to the trial judge, the appellant said he grabbed the shovel "which had been just lying on the grass, conveniently within arm's reach of where he had happened to fall." The appellant says this is a misstatement of his evidence, and that he testified that he backed up into the garage, moved to the side, and picked up a shovel from the garden. In the court's view, this is a distinction without a difference. The appellant's evidence in direct and cross-examination was that he was retreating from an attack by Durkalec who was armed with a crowbar, and that it was then that he fell back against the garage and picked up a shovel. Whether the appellant could reach the shovel from where he fell or whether he moved to the side and grabbed the shovel, it was open to the trial judge to describe this as "an unlikely coincidence".

The trial judge also said that the appellant's account of picking up the shovel while he was under attack was contrary to Ms. Collins's evidence that she saw the appellant already armed with the shovel near the street end of the driveway before he ever went up the driveway and into the backyard. Again, the appellant says that the trial judge misapprehended the evidence on this point. Ms. Collins's evidence was that she saw two people walk up to the end of the driveway from the back of the house, one of whom was carrying a shovel.

Even if the trial judge misstated Ms. Collins's evidence that the appellant was armed before he "ever" went into the backyard, the effect of her evidence was that the appellant was already armed with the shovel when she saw him go into the backyard. By either account, this was inconsistent with the appellant's contention that he grabbed the shovel once he was in the backyard, and only after being attacked by Durkalec.

[15-22] Third Issue: Number of Blows Struck

The appellant says that the trial judge erred in rejecting the appellant's evidence that he only struck Durkalec three times, and that this was based in part on improper inferences drawn from Durkalec's medical records.

The appellant testified that, in response to the attack with the crowbar, he grabbed the shovel and struck Durkalec three times in the front of the head. Ms. Collins testified that she saw the appellant strike something on the ground multiple times with a shovel, and that there were more than five blows. The trial judge concluded that she must have seen at least five blows "because the medical records…provide clear evidence…of more than three blows."

The appellant characterizes this as the trial judge taking improper judicial notice of how the injuries Durkalec sustained were caused, and the force that was needed, in the absence of expert evidence.

The court disagrees. Again, the court does not see this as a question of taking judicial notice, but whether the trial judge was entitled to draw an inference as to the number of blows Durkalec sustained from his review of the medical records.

The appellant acknowledges that the medical records were filed on consent, although defence counsel at trial argued that the trial judge ought not to use the records to interpret the amount of force the appellant used. In the court's view, the trial judge did not misuse the medical records. He was entitled to consider the injuries Durkalec sustained as documented in the medical records in his assessment of the appellant's evidence that he had only administered three blows, all to Durkalec's head.

In considering the medical records, the trial judge referred to Durkalec's fractured ulna as "strongly suggestive of a defensive blow". He referred to injuries to Durkalec's scalp, extensive fracturing of his facial bones, and the fracture of his occipital bone at the rear of his head. With the exception of the trial judge's inference that the fracture of the occipital bone was suggestive of a blow from behind (which was speculative), the trial judge was entitled to conclude that the multiple injuries and their placement indicated more than three blows were administered.

In any event, there was other evidence of the extent of Durkalec's injuries. Durkalec testified that he sustained countless facial and skull fractures, a broken vertebrae, and a broken right forearm. The police officer testified about the extensive injuries he observed to Durkalec's head and face.

The evidence of Durkalec's extensive injuries, as well as Ms. Collins's testimony about what she observed, were sufficient for the trial judge to conclude that the appellant struck Durkalec at least five times. Accordingly, there was no error in the trial judge rejecting the appellant's evidence that he struck Durkalec only three times.

[23-27] Fourth Issue: Misapplication of Self-Defence Doctrine

Finally, in oral argument, counsel for the appellant emphasized that each of the above errors reflect an overarching error by the trial judge in misapplying the doctrine of self-defence. The appellant says that the trial judge failed to appreciate the full self-defence narrative and factual tableau. He relies on this court's decision in R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at paras. 7, 24, 25, where Lauwers J.A. stated that it is an error in principle for a trial judge to "[lose] sight of the whole factual context and the tableau of the evidence", and that "the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection." The appellant says that the trial judge here downplayed the danger that Durkalec presented, and that he did not consider the claim of self-defence in the context of all of the facts. Such facts include the appellant being attacked in the middle of the day in his home by a man wearing a tactical vest, and the appellant's reasonable belief that Durkalec had a firearm. Rather, the trial judge broke down the appellant's evidence into its constituent parts and compared each piece to the evidence that he did accept.

The court disagrees. The trial judge did not lose sight of the overall circumstances. He accepted that this was a home invasion and that Durkalec was disguised, armed with a crowbar, discharged a canister of bear spray and that, at least initially, the appellant and his friends may have been afraid and armed themselves against an attack. There was no question that they were responding to a home invasion; the issue was whether, at the time the appellant struck Durkalec, he was acting in self-defence. This was not a case like Cunha where the trial judge rejected the appellant's account of self-defence except where corroborated and found facts that did not hold up against the "flow of the narrative" that he did accept (at para. 31). Here, the trial judge examined the details of the appellant's evidence in the context of the events as they unfolded, to determine whether he accepted his account of self-defence, or whether it raised a reasonable doubt.

As for the appellant's evidence that his friend said something about a gun and he saw Durkalec reaching for his waistband before he administered the third blow, although the trial judge did not mention it in his reasons, he was entitled to reject this evidence as part of his credibility assessment. According to the appellant Durkalec was holding a crowbar throughout his attack. No gun was found at the scene by the police who arrived while Durkalec was lying on the ground, and there was no mention of a gun in the pocket 911 call (where Durkalec is heard pleading for help and the appellant and his friends are threatening him).

The trial judge concluded on a review of all the evidence he did accept that the appellant was not acting in self-defence. This included: Durkalec's evidence of what transpired only to the extent it was corroborated by other evidence; the fact that the police found nothing resembling a safe in the appellant's yard; the evidence of the severity of the beating Durkalec received; the observations of Ms. Collins that the appellant and his friends were trying to corral something and that he was armed with a shovel and striking something repeatedly on the ground; her evidence and that of the other neighbour that the appellant said, "you're not going anywhere"; and the location of the crowbar by the back door, and not where Durkalec was found.

The court therefore rejects this ground of appeal.

[28] Conviction Appeal Dismissed

The conviction appeal is therefore dismissed.

Sentence Appeal

[29] Overview of Sentence Issues

As for the sentence appeal, the appellant says that the trial judge committed three errors in sentencing him to 22 months in jail.

[30-31] First Issue: Aggravating Factor of Vigilante Justice

First, the appellant says that the trial judge improperly took into account the appellant's reliance on legal authority as an aggravating factor, namely that he administered a "savage beating while purporting to exercise the limited authority the law confers upon a private citizen to apprehend law breakers." The appellant says that this circumstance was mitigating, and not an aggravating factor. He says that the judge was punishing him for unsuccessfully invoking the defence of self-defence.

The court disagrees. The trial judge identified the fact that Durkalec was engaged in a home invasion as the most significant mitigating factor. What was aggravating was not that the appellant relied unsuccessfully on the defence of self-defence, but that he took the law into his own hands and punished Durkalec for the home invasion. The trial judge said that this was not a case of a person going farther than the law allows in self-defence; he was not in a position of having to defend himself. Rather, he reacted in anger and in order to exact vengeance upon Durkalec. As such, there was no error on the part of the trial judge in treating the appellant's response to the situation and attempt to exact vigilante justice as an aggravating factor. See R. v. Louangrath, 2016 ONCA 550, 340 C.C.C. (3d) 170, at para. 101.

[32] Second Issue: "Three-on-One" Characterization

As his second ground of appeal of sentence, the appellant contends that the trial judge erred in characterizing the event as a "three-on-one affair" when there was no evidence that anyone other than the appellant assaulted Durkalec. The court disagrees. It was clear on the evidence that, even if the three individuals were not actively involved in the assault, all three were at the scene, corralling or cornering Durkalec, and holding him down while the assault was administered. In the circumstances, the trial judge's characterization of this as a three-on-one affair was appropriate.

[33-34] Third Issue: Pre-Trial Bail Conditions

Finally, the appellant says that the trial judge erred in failing to consider the period of 25 months he spent on strict bail terms as a mitigating factor on sentencing. The appellant relies on R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 37, as authority that, while pre-trial bail and pre-trial custody are very different concepts, there will be cases, such as R. v. Downes, 79 O.R. (3d) 321, where a sentencing judge should give mitigation effect to pre-trial bail, and where it is an error for the sentencing judge to fail to explain why he or she has decided not to take pre-sentence house arrest into account.

In this case, the appellant was on a form of house arrest that required him to be in his place of residence 24 hours a day except in the presence of his surety or with her written, dated permission. The appellant's surety was his mother and the evidence from the pre-sentence report was that the two had a very close relationship. There was nothing to indicate that the terms of release prejudiced or imposed undue hardship on the appellant: Downes, at para. 37. This may explain why defence counsel made no submissions that the period of pre-trial house arrest ought to be taken into consideration in mitigation of sentence. In these circumstances, the trial judge did not err in principle in failing to address the terms of the appellant's pre-sentence release as a potential mitigating factor.

[35-36] Sentence Appeal Dismissed

The court therefore sees no error in principle that would warrant interference with the 22 month sentence, which, as acknowledged by the appellant, is within the appropriate range for an aggravated assault of this type by a first offender: see R. v. Tourville, 2011 ONSC 1677.

Leave to appeal sentence is granted, however the sentence appeal is dismissed.

Released: January 19, 2017

Robert J. Sharpe J.A.

K. van Rensburg J.A.

G. Pardu J.A.