Court File and Parties

Court File No.: Halton 10-2523

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Menno Giglia

Before: Justice Sheilagh O'Connell

Heard on: October 6, 7, 19, 20, 2011, March 7, 8, June 7, 13, 2012

Reasons for Judgment released on: August 21, 2012

Counsel:

• Ms Amy Stevenson for the Crown
• Mr. Dominic Basile for the accused, Menno Giglia

O'Connell J.:

1. Introduction

[1] Menno Giglia is charged with the offence of assault, contrary to section 266 of the Criminal Code. The assault is alleged to have occurred on August 3, 2010 in the city of Burlington at an office of Fernbrook Homes. The complainant is Amanda Newberry, a Fernbrook Homes' employee at the time of the alleged assault.

[2] The Crown elected to proceed summarily. The issues of identity, date and jurisdiction are admitted by Mr. Giglia.

2. Overview

[3] Fernbrook Homes ('Fernbrook") is a home building company. Mr. Giglia and his wife purchased a home from Fernbrook and encountered a number of difficulties with the home after they took possession. On the afternoon of August 3, 2010, Mr. Giglia and his wife attended one of Fernbrook Homes' "Customer Care" offices to speak to the manager for their housing development. The office was located in a trailer at the site of their housing development in Burlington, Ontario. While in the trailer, there was an altercation between Mr. Giglia and the Fernbrook staff. It is alleged that Mr. Giglia assaulted Ms Amanda Newberry, the office administrator, during this altercation.

[4] Mr. Giglia denies assaulting Ms Newberry. He states that if he did touch Ms Newberry or make physical contact with her without her consent, then his action was not intentional, but an involuntary or reflex action in response to Ms Newberry pulling his shoulder. Alternatively, he states that if this Court finds that he did intentionally apply force to Ms Newberry without her consent, then it was either in self-defence, or the contact was trifling, and therefore the legal doctrine of "de minimus non curat lex" applies, which simply means that the law does not concern itself with trifles, and the charge should therefore be dismissed.

[5] Mr. Giglia is presumed innocent. The onus is on the Crown to prove the essential elements of the offence of assault beyond a reasonable doubt. Mr. Giglia and Ms Newberry both testified at this trial, as well as a number of witnesses for the Crown and the defence. As such, in evaluating the credibility of the witnesses, I am mindful of the principles established by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742; (1991), 63 C.C.C. (3rd) 397.

3. The Evidence

[6] The Crown called four witnesses at trial. Three of the witnesses were Fernbrook employees at the time of the incident: the complainant, Ms Newberry, Ms Dona McIntosh, the building manager for that Fernbrook site, and Mr. Antony Maccaro, a Fernbrook customer service representative. All three were at the trailer on the day of the alleged assault. The fourth witness for the Crown was Officer Shannon Bonny, the investigating officer. The Defence called three witnesses which included the defendant, Mr. Giglia, his wife, Ms Stella Iatropoulus, who went to the trailer with Mr. Giglia on that day, and Mr. Giglia's mother-in-law. As well, an audio recording of the 911 call made by Ms Newberry at the time of the incident was entered as an exhibit and played at trial.

[7] Mr. Giglia is the general manager of Zorro's, a steak house owned by his father-in-law. Mr. Giglia's wife, Ms Iatropoulus, is a full-time homemaker and mother. They have one young child. Mr. Giglia and his wife purchased the Fernbrook home in the Burlington area before the home was actually built and took possession of the home in December of 2008. They moved into the home at that time, however, there were too many problems with the home so they moved out until May of 2009. When they moved back into the home in May 2009, they continued to experience a number of problems with the home's heating system, which was apparently missing the required heating ducts, the plumbing system, in that the toilets flushed continuously, and continuous water leakage.

[8] It is not disputed that the couple repeatedly sought assistance from Fernbrook staff to address these problems, particularly Ms Iatropoulus, as Mr. Giglia worked very long hours in her father's restaurant. Ms Iatropoulus had called Fernbrook repeatedly and made several appointments with them. Two of the Crown witnesses estimated that Ms Iatropoulus called the Fernbrook staff at least eighty times over the six months leading up to the alleged assault. It is further not disputed that both Ms Iatropoulus and Mr. Giglia were considerably frustrated by what they perceived was a lack of progress by Fernbrook in resolving the issues with their home, which they had purchased for approximately $600,000.00.

[9] On the afternoon of August 3, 2010, Ms Newberry, Ms Macintosh and Mr. Maccaro, the three Fernbrook staff, were all at the trailer. Ms Newberry and Mr. Maccaro were both outside when Mr. Giglia arrived. They both observed him enter the trailer, although Mr. Maccaro could not recall that Ms Newberry was also outside when Mr. Giglia arrived. Both Ms Newberry and Mr. Maccaro gave evidence that when Mr. Giglia entered the trailer that afternoon, he was already extremely angry. Ms McIntosh was sitting in her office in the trailer, on the telephone. Her office is located at the end of a narrow hallway in the trailer, past the front receptionist's desk, where Ms Newberry sits. All three witnesses testified that after Mr. Giglia entered the trailer, he started screaming and yelling almost immediately. Ms Newberry testified that she then followed Mr. Giglia into the trailer to see what was happening and to assist Ms McIntosh.

[10] All three Crown witnesses testified that Mr. Giglia was uncontrollably angry and that he was screaming profanities first at Ms McIntosh and then at Ms Newberry when she tried to intervene. The Crown witnesses testified that Mr. Giglia called Ms McIntosh and Ms Newberry, various profanities, such as "fucking cunt", "bitch", "trailer trash", usually accompanied by other swear words, in a very loud voice and that he appeared to be out of control. Mr. Maccaro testified that when he and James Aguilar, another Fernbrook employee, tried to intervene, Mr. Giglia started yelling and swearing at them as well.

[11] All three Fernbrook staff described the scene as chaotic, extremely loud, and frightening. The trailer was described by the witnesses for both the Crown and the Defence as a small physical space.

[12] Mr. Giglia does not dispute that he was screaming and swearing very loudly at both Ms McIntosh and Ms Newberry in close proximity to them in their work place. Mr. Giglia testified that he was extremely angry on that day, however, he does not admit that he was out of control. Mr. Giglia also denies being angry before he entered the trailer. He testified that he only became angry after speaking with Ms McIntosh. He also admits that he called Ms McIntosh and Ms Newberry "fucking cunt", "fucking bitch" and "fucking trailer trash", among other words, and that he was yelling very loudly.

The Alleged Assault

Amanda Newberry

[13] Ms Newberry testified that she was outside of the trailer having a cigarette when Mr. Giglia and his wife arrived. She testified that Mr. Giglia, his wife and their two year old daughter were in the car. Ms Newberry testified that she went into the trailer after she heard the screaming. Mr. Giglia's wife and daughter remained in the car. She went down the hall to Ms McIntosh's office and saw Mr. Giglia leaning over Ms McIntosh's desk, swearing and screaming at her and throwing things off of her desk. She testified that Mr Giglia was bent over the desk and pointing his finger in Ms McIntosh's face, who was on the other side of the desk. She described Mr. Giglia's emotional state as 'exploding" and that he was smashing his fists on the desk.

[14] Ms Newberry testified that she told Mr. Giglia that he could not do this and asked him to leave. According to Ms Newberry, Mr. Giglia responded by turning around and pushing her into the wall outside of Ms McIntosh's office. She testified that he turned around and she got "thrown into the wall".

[15] Ms Newberry gave evidence that she never initiated any physical contact with Mr. Giglia. She denied touching, grabbing or pulling at his shoulder. She admitted yelling at him to leave and that when Mr. Giglia called her "cunt" and said "fuck you, trailer trash", she responded by saying, "no fuck you, you cannot come in here and do this." She testified that this made Mr. Giglia angrier and she was then thrown into the opposite wall in the hallway outside of Ms McIntosh's office.

[16] Ms Newberry testified that she went to her phone to call the police. By this time, Mr. Maccaro was in the trailer and he saw the second push against the wall. Ms Newberry testified that both the first and second push by Mr. Giglia were hard enough to knock her into the wall and then cause her to fall to the ground.

[17] Ms Newberry testified that Ms Giglia's wife remained outside with her daughter but she believes that she did get out of the car near the end when Ms Newberry was on the phone with the 911 operator. Ms Newberry testified that she could see the child and she could hear the child crying, which is what she told the 911 operator.

Dona McIntosh

[18] Ms McIntosh is a warranty manager for Fernbrook Homes. It is her responsibility to ensure that any defects or repairs in a Fernbrook home be addressed within a two year warranty period. Ms McIntosh had only been the warranty manger for that particular site for approximately six months. She was aware of the problems that Mr. Giglia and Ms Iatropoulus were having with their home. She testified that Ms Iatropoulus would come to the office often before August and that she received a lot of phone messages from her regarding items that she wanted repaired at the home. She testified that she was sympathetic with Ms Iatropoulus and did her best to address the problems because in her opinion, the previous warranty manager could have done more for her. She did not recall having any direct contact with Mr Giglia and up until that day, there had been no unpleasantness or difficulties in her dealings with Ms Iatropoulus.

[19] Ms McIntosh testified that on August 3rd, she had a lot of appointments at homeowners' homes and tried to juggle them the best she could. She had an appointment with Ms Iatropoulus in the morning, but she did not get there until late afternoon. Ms McIntosh testified that she received a telephone call from Ms Newberry advising Ms Iatropoulus was waiting for her and that she was upset. When Ms McIntosh arrived at the home, she observed Ms Iatropoulus was very upset. Ms McIntosh tried to calm her down but Ms Iatropoulus continued to be upset, swearing and using profane words, and she then eventually slammed the door on her. Ms McIntosh returned to her office at that point.

[20] Ms McIntosh testified that approximately one half hour later, Mr. Giglia arrived at her office. She described his emotional state as "outraged and very very upset". Ms McIntosh was on the phone at the time with another homeowner and Mr. Giglia asked her if she was Dona McIntosh. She testified that she held up her hand to indicate that she would speak to him after finishing the telephone call. She testified that she finished the telephone call and Mr. Giglia was right up at her desk, yelling at her, calling her names and accusing her of yelling at his wife. She testified that his body was over her desk and that he was pointing his finger in her face. He called her "a fucking bitch" and "a cunt" and demanded that she fix all of the repairs in their house.

[21] Ms McIntosh testified that when Ms Newberry came in, she saw both Ms Newberry and Mr. Giglia both raise their hands and that she believed that Mr. Giglia pulled or pushed Ms Newberry aside. Ms McIntosh stated that everything happened so fast it was difficult to see. She testified that she was very frightened and that she was trying to reach for her phone to call the police. It was her recollection that Mr. Giglia followed Ms Newberry out into the hallway and when Ms Newberry tried to call the police, Mr. Giglia pushed Ms Newberry, resulting in her body falling forward. She testified that it was during this push that Mr. Maccaro came into the trailer. She testified that Mr. Giglia did not appear to calm down at all and the amount of yelling that he was doing and his body language was very scary. Ms McIntosh testified that she did not know whether he was going to hurt somebody.

[22] At some point Ms Iatropoulus came into the trailer and started to try to pull Mr. Giglia out of the trailer. Both Mr. Giglia and his wife left after the 911 call. Ms McIntosh also very emphatic that their daughter was in the car during this incident.

Tony Maccaro

[23] Mr. Maccaro testified that he came into the trailer when he heard his name being screamed out. He raced into the trailer and saw Mr. Giglia swearing and yelling at both Ms Newberry and Ms McIntosh. He recalled Mr. Giglia calling Ms Newberry "a cunt", "trailer park whore" and used other verbally offensive language. He testified that he saw Mr. Giglia physically pin Ms Newberry to the wall. He testified that when he and James Aguilar, another co-worker attempted to calm him down, it just enraged him more. He testified that when James tried to touch his shoulder and talk to him, Mr. Giglia screamed at him to "don't fucking touch me" and James immediately pulled his hand away.

Menno Giglia

[24] Mr. Giglia testified that on that on August 3rd, 201, he had the day off and his wife had dropped their daughter off at his mother-in-law's home. He stated that he and his wife had planned to go to a movie, but decided to drop by the trailer to speak to Ms McIntosh about the issues with their home. He denied arriving at the trailer angry. He testified that he was not upset at all before he went into the trailer and that it was his intention to make "a little headway" regarding the home issues because he had the afternoon off. However, he admitted to immediately lapsing into anger after he entered the trailer.

[25] Mr. Giglia also denied that his wife had met Ms McIntosh earlier that day and was very upset. He testified that the meeting between his wife and Ms McIntosh had occurred approximately one week earlier. He acknowledged that his wife was very upset at the meeting with Ms McIntosh at their home, although he was not present for this meeting.

[26] Mr. Giglia testified that when he arrived at the trailer, he saw that the door was already open and that the desk at the front was unoccupied. He heard a voice at the end of the hallway and walked towards the office at the end of the hallway. He saw Ms McIntosh at her desk on her cell phone. He then asked her, "Are you Dona?" When Ms McIntosh acknowledged this, he then identified himself as Stella's husband. Mr. Giglia testified that Ms McIntosh stated, "I know exactly who you are. I have nothing to say to you."

[27] Mr. Giglia testified that it was at that point he became very angry and told Ms McIntosh that he did not appreciate the lack of respect she gave homeowners and coming to his home and intimidating his wife. He testified that his level of frustration hit an "ultimate high" and he told her Ms McIntosh to "get off the fucking phone."

[28] Mr. Giglia admits that he was extremely angry and that he was yelling very loudly at Ms McIntosh and using profanities. He testified that he called her "a fucking bitch", a "cunt", and "a fucking bull-shitter", among other words to that effect.

[29] Mr. Giglia denies leaning over Ms McIntosh's desk. He testified that he remained at her doorway at all times. He testified that while he was yelling at Ms McIntosh, he heard someone behind him say, "excuse me, excuse me" and felt someone pulling at his right shoulder. Mr. Giglia testified that he then made a sweeping motion with his right hand going backwards and made contact with that person. He told the person to "get the fuck off me." As the same time, he turned his body and saw that it was Ms Newberry. Mr. Giglia described his movement as a "shushing motion."

[30] Mr. Giglia testified that Ms Newberry "took one step backwards from the shush." Mr. Giglia testified that he did not use much force and that she did not fall to the ground at anytime. He testified that that he was reacting to Ms Newberry pulling on his shoulder.

[31] Mr. Giglia testified that after he had "shushed" her, Ms Newberry yelled, "this guy just assaulted me. I'm calling the police." She then turned and started walking towards the phone on her desk. Mr. Giglia testified that he followed Ms Newberry towards her desk and he kept yelling at her, calling her "trailer trash", "cunt", and "bitch".

[32] Ms Giglia testified that his wife was in the trailer at that point. He testified that when Mr. Maccaro came in, he turned his attention towards him and started yelling and swearing at him as well. Mr. Giglia testified that when James Aguilar came into the trailer, he thought that he was just "an innocent bystander". He did not know that he was also a Fernbrook employee. He testified that when Mr. Aguilar touched him on the shoulder in an attempt to calm him, he yelled at him to "get your fucking hands off of me." Mr. Aguilar immediately removed his hand.

[33] At that point, Mr. Giglia left the trailer with his wife, although he admitted that he was still yelling very loudly. He recalls yelling that "none of this is finished. You are going to fix the problems I've had with my home, I'm going to keep coming back until the problems are finished", along with a lot of profanities. He and his wife then got into his car and left. He did not stay and wait for the police.

[34] Mr. Giglia testified that from the time he entered the trailer until the time he left was approximately ten to thirteen minutes. He described a level of frustration and anger that he had never reached before in his life. He admitted to telling the investigating officer later that he was "enraged with anger", "at his wits' end" and that he had "lost his mind" that day. As a result of the events of that day, Mr. Giglia testified that after discussing with his family, he decided to attend anger management counseling.

Stella Iatropoulus

[35] Ms Iatropoulus testified that on August 3, 2010, her husband had the day off and her mother agreed to look after their daughter so that they could go see a movie. On the way to the movie, her husband decided to drop by the trailer to make an appointment to see Ms McIntosh. She testified that she had earlier told her husband earlier that she was "done" with Fernbrook after the altercation that she had at her home with Ms McIntosh. She denied meeting Ms McIntosh at her home on that day and stated that the altercation with Ms McIntosh at her home occurred the week before.

[36] She testified that they used her car and that their daughter was definitely not with them. When they arrived at the trailer, Ms Newberry was outside having a cigarette. She stayed in the car while her husband went into the trailer. She testified that approximately fifteen seconds after her husband went into the trailer, she could hear him screaming. She then saw Ms Newberry enter the trailer and she followed Ms Newberry into the trailer.

[37] Ms Iatropoulus's evidence is very similar to her husband's evidence regarding the events that took place inside the trailer. She observed her husband standing at the foot of Ms McIntosh's office and screaming profanities. She observed Ms Newberry put her hand on her husband and her husband yell at her to "get the fuck off of me." She observed her husband sweep his arm backwards and make contact with Ms Newberry. She did not see Ms Newberry fall and she did not see her husband push Ms Newberry. She testified that her husband was basically defending himself.

[38] She confirmed that her husband was yelling very loudly and that he used vulgar and profane language directed at both women in the trailer. She confined that her husband called both Ms McIntosh and Ms Newberry "a cunt" and that he called Ms Newberry "trailer trash", in addition to other profane words. She observed Ms Maccaro and Mr. Aguilar enter the trailer and her husband scream and swear at them as well. She said that the entire incident was approximately ten minutes in length.

[39] In cross-examination, Ms Iatropoulus testified that her husband was "happy and calm" when he first entered the trailer. Although she testified that she had never seen her husband that angry before, and that his behavior was out of character, she did not try to intervene while this was happening and she did not try to calm him down. She further testified that she was not embarrassed or humiliated by his behavior on that day, and instead, she felt sorry for him and simply waited for him. She said that after they left the trailer, they went to a movie. She testified that she did think her husband should go for anger management counseling because he did not need it.

Parthena Iatropoulus

[40] Mr. Giglia's mother-in-law testified that on the afternoon of August 3, 2010, she was looking after her granddaughter while her daughter and Mr. Giglia went to see a movie. She testified that her granddaughter was with her the whole day and that Mr. Giglia and her daughter picked up their daughter from her around 9:00 p.m. that night. She testified that when they arrived they looked upset. She asked her daughter what happened and her daughter told her that they went to the Fernbrook trailer to make an appointment and Mr. Giglia "argued with the lady"

4. The Law and Analysis

General Principles

[41] This charge is a Criminal Code offence and as with all Criminal Code offences, the onus is upon the Crown, on the totality of the evidence, to prove the essential elements of the offence beyond a reasonable doubt in order for the accused to be found guilty of the offence charged. The accused is presumed innocent.

[42] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus (1997), 118 C.C.C. (3d) Justice Cory J. stated:

Ordinarily even the most important decisions of a lifetime are based upon carefully calculated risks. They are made on the assumption that certain events will in all likelihood take place or that certain facts are in all probability true. Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held.

Indeed, to liken reasonable doubt in any way to daily activities weakens the special significance of the criminal standard of proof unique to the legal process. (par. 24)

[43] Later on in the Lifchus case, the Supreme Court of Canada held that the meaning of proof beyond a reasonable doubt is as follows: "the standard of proof is higher than…a balance of probabilities yet less than proof to an absolute certainty". In R. v. Starr (2000) 2000 SCC 40, 147 C.C.C. (3d) 449, the Supreme Court of Canada indicated that in order to convict, something less than absolute certainty and something more than probable guilt is required. The court further defined the reasonable doubt standard by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities.

[44] In evaluating the evidence, and in particular, the credibility of both the accused and the complainant as well as the conflicting evidence of the Crown and defence witnesses, I have considered the direction provided by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 CCC (3rd) 397 in cases where credibility is important. In that case, the Court made it clear that the Crown's burden of proving guilt beyond a reasonable doubt applies to the issue of credibility and provided the following instruction to trial judges:

1. first, if the trial judge believes the evidence of the accused, the accused must be acquitted;

2. second, if the trial judge does not believe the evidence of the accused but is left in reasonable doubt by it, the accused must be acquitted;

3. third, even if the trial judge is not left in doubt by the evidence of the accused, the trial judge must still decide, on the basis of the evidence which is accepted, whether the guilt of the accused has been established beyond a reasonable doubt. (page 409)

[45] The W. (D.) instruction applies only to the elements of the offence charged, which must be proved by the Crown beyond a reasonable doubt and to the elements of the defences raised by the evidence, which must be negated by the Crown beyond a reasonable doubt. In R. v. B.D. 2011 ONCA 51, [2011] O.J. No. 198 (C.A.), the Ontario Court of Appeal held that:

"As a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence. Different considerations arise, however, when conflicting evidence is presented to the jury on an essential element and the jury is required to make credibility findings with respect to that conflicting evidence." (par. 96)

[46] A trial judge may believe all, none or some of a witness' evidence. See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 65; R. v. Francois, [1994] 2 S.C.R. 27 at para. 14; D.R. et al. v. The Queen, (1996), 107 C.C.C. (3d) 289 (S.C.C.); R. v. Hunter, [2000] O.J. No. 4089 (C.A.). Accordingly, a trial judge is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trial judge can accord different weight to different parts of the evidence that the judge has accepted. See R. v. Howe, [2005] O.J. No. 39 (C.A.) at para. 44.

The Offence of Assault

[47] Section 265.(1) (a) of the Criminal Code provides that "a person commits an assault when without the consent of another person, he applies force intentionally to that other person, either directly or indirectly". In order to find Mr. Giglia guilty of assault, the Crown must prove beyond a reasonable doubt that Mr. Giglia intentionally applied force to Ms Newberry without her consent and that he knew that Ms Newberry did not consent to the force he intentionally applied.

[48] The application of force cannot be accidental or inadvertent. It must be intentional. In R. v. Starrat, [1971] O.J. No. 1762 (C.A.), a police officer swung his handcuffs through a window towards the complainant and the cuffs unexpectedly hit the complainant in the mouth and damaging his teeth. The police officer was convicted of assault causing bodily harm. In overturning the conviction, the Ontario Court of Appeal held as follows:

"To constitute the offence of assault occasioning bodily harm it has to be shown beyond reasonable doubt that a person intentionally applied force. The trial Judge found that any application of force resulted from either the appellant's action in the course of duty, which is proper, or his carelessness, but made no finding that there was an intentional application of force in the sense of being a wrongful application of force."

[49] Further, if the action was a result of an "involuntary or reflex action", then no assault was committed because an essential element of the offence of assault is that it must be intentional. In R. v. Wolfe, [1974] O.J. No. 868 (C.A.), the trial judge found that the complainant hit the accused, who then "in a reflex action turned quickly and hit the complainant on the head with a telephone receiver, causing a serious cut on the complainant's forehead." The trial judge convicted the accused of assault. The Ontario Court of Appeal set aside the conviction as the accused's action was the result of a reflex or involuntary movement and not intentional. In doing so, it held as follows:

"No offence of assault.. is committed when the accused as a result of being struck by the complainant, strikes back in a reflex action since the element of intent, which is an essential ingredient of the offence, does not exist."

[50] Even if the application of force is intentional, the authorities provide that it must be somehow a wrongful application of force, regardless of the level of force applied. Both the Defence and the Crown provided a number of helpful authorities in considering this. In all of the cases provided, it is clear that the definition of assault under section 265 of the Criminal Code is based on the English common law concepts of assault and battery, which provide that the intentional application of force must be wrongful or have some element of criminality. In R. v. Burden, [1981] B.C.J. No. 1259, the British Columbia Court of Appeal states as follows:

"I agree with the argument presented here on behalf of the Crown that Section 244 of the Criminal Code is patently based upon the commonlaw of England which can be referred to assist in interpreting it. In particular, I refer to Taschereau's Criminal Code 1893, and the extract there quoted from Hawkins Pleas of the Crown, Volume 1 at page 110. I will not read it all, but Section 2 part of it dealing with battery seems to me particularly apposite to the question before us. The extract is this:

"Section 2: As to the second point. What shall be said to be a battery. It seems that any injury whatsoever, be it never so small, being actually done to the person of a man, in an angry or revengeful or rude or insolent manner, as by spitting in his face, or any way touching him in anger or by violently jolting him out of the way are batteries in the eyes of the law."

And later from the same source in Taschereau's Criminal Code, dealing with the subject of battery, the conclusion is stated in these words:

"Battery seemeth to be when any injury whatsoever, be it ever so small, is actually done to a person of a man in an angry or avengeful or rude or insolent manner, For the law cannot draw the line between different degrees of violence, and therefore, totally prohibits the first and lowest stages of it, every man's person being sacred, and no other having a right to meddle with it in any, the slightest manner:"

[51] In R. v. Bochar [1994] O.J. No. 1153 (C.J.), Justice Vaillancourt found that a principal of a school was not guilty of assault when, acting in her capacity as principal, she reached out and took hold of the complainant's elbow with the intention of directing the complainant (a teacher at the school) to her office. Justice Vaillancourt found that the force used was not wrongful, but directional. In finding that no assault took place, Justice Vaillancourt also looks at the common law definition of assault and battery and at paragraph 21 of the decision, quotes directly from the case of R. v. Matsuba:

"It should be noted that our Criminal Code has included the ancient common law notions of "assault" and "battery" into our s. 265 definitions of assault. Section 265(1)(a) essentially covers the ancient "battery". When one looks at the above noted quotation the applicable definitions, which technically relate to what is called a "battery", involve a concept which seems to go a little further than merely intentional touching to the person of the victim without that victim's consent. I refer to the fact that the two definitions which are set out above talk about the injury being committed in circumstances of anger, revengefulness, rudeness, or insolence. It is not simply enough that there be an intentional deliberate touching, without consent, but it is necessary, in order to conclude that the particular touching constitutes "force" within the meaning of the statutory provision, that there be a connotation of anger, revengefulness, rudeness, or insolence, or at least some like behaviour accompanying or attached to the touching performed before it can be said that there is the "force" which completes the legal definition of assault. It seems to me that this must be so, otherwise any deliberate application of physical contact that exhibited nothing more than the general intent to intentionally touch the victim without the victim's consent would be actionable at the instance of the criminal law."

Credibility

[52] In analyzing this case in accordance with the principles set out above, I make the following assessments. There were inconsistencies within each of the accounts of the three Crown witnesses at the trailer. All three witnesses gave different versions at trial of some of the events that occurred on that day. The complainant, Ms Newberry, was not a reliable witness. Her evidence at trial had a number of significant inconsistencies. Further, her evidence at trial was significantly different from her statement to the police and what she described to the 911 operator. She did not tell the police or the 911 operator that she fell to the ground after being pushed by Mr. Giglia, although she testified at trial that she fell to the ground twice. She also told the 911 operator that she was thrown into the door, although she denied this at trial. At trial, Ms Newberry testified that Mr. Giglia threw her across the trailer "like a rag doll" and that she flew quite a distance. Both Ms McIntosh and Mr. Maccaro testified that they did not see Ms Newberry fall to the ground at all, nor did they see her being thrown. Ms Newberry told the 911 operator that Mr. Giglia started throwing everything from Ms McIntosh's desk, although at trial she admitted that this did not happen. Ms McIntosh also testified that Mr. Giglia did not throw anything off her desk.

[53] Although there is no question that Mr. Basile's cross-examination was very vigorous and difficult, Mr. Newberry did not withstand cross-examination well. At times, she was extremely agitated and argumentative and she had a number of outbursts during her testimony. At one point during cross-examination, she abruptly walked out of the courtroom after calling Mr. Giglia "a psycho". I found that at times, Ms Newberry also exaggerated her evidence. In addition to the examples above, when asked whether she would describe this assault as a major or minor one, Ms Newberry testified that it was a major assault, despite having no injuries and no need for medical treatment.

[54] Mr. Maccaro was also a hostile and combative witness. His testimony was inconsistent in that he initially testified that he observed Ms Giglia to pin Ms Newberry up against the wall and then drag her for a number of feet. This is very different from the evidence of the other Crown witnesses. During cross-examination, Mr. Maccaro appeared frustrated, impatient and angry with the trial process.

[55] Ms McIntosh was a credible witness who was doing her best to tell the truth and reconstruct the events of that day in a credible and calm manner. However, she was not able to give specific details regarding the assault. According to her evidence, she was not able to directly observe Mr. Giglia assault Ms Newberry because he was standing in front of Ms McIntosh with his back towards her. She candidly admitted that she assumed an assault had occurred because she saw Ms Newberry fall backwards and she heard a "thud" against the wall. She did not see Ms Newberry fall to the ground, nor did she observe Mr. Giglia throw things off of her desk. She recalls that both Ms Newberry and Mr. Giglia had their hands raised at some point and it was clear that she did not exactly see what had happened. She acknowledged in cross-examination that Mr. Giglia could have been making "an aggressive shooing motion" with his hands to get Ms Newberry off of him.

[56] Ms McIntosh was emphatic in her evidence that she had met with Mr. Giglia's wife earlier that afternoon. She testified that Ms Iatropoulus was very upset that afternoon because Ms McIntosh had missed a scheduled appointment at her home and that when she arrived, Ms Iatropoulus slammed the door in her face. She testified that when Mr. Giglia first arrived, she did not recognize him, but after he identified himself as "Stella's husband" she initially believed that he came to trailer that day because of what had happened earlier that afternoon at his home with his wife.

[57] Despite the inconsistencies in the evidence of the Crown witnesses, there were significant consistencies in the account of each witness. All three of the witnesses described Mr. Giglia as uncontrollably angry, verbally abusive, out of control and yelling very loudly. All three described a scene that was chaotic and frightening and that Mr. Giglia was angry before he entered the trailer.

[58] Although credibility was clearly an issue in this trial, I am satisfied beyond a reasonable doubt that Mr. Giglia committed an assault against Ms Newberry on that day. I find that, on his own evidence, Mr. Giglia purposefully applied force to Ms Newberry by pushing her out of the way during his verbal tirade against Ms McIntosh. He knew that Ms Newberry did not consent to this force and in my view, the force was wrongful. Although I found that Ms Newberry exaggerated her evidence regarding the assault, I also find that Mr. Giglia minimized his actions regarding the assault.

[59] In his own words, Mr. Giglia admitted that he "shooed" or "shushed" Ms Newberry away with a sweeping motion of his arm. He admitted that there was physical contact and that Ms Newberry did not consent to the contact. He admitted to pursuing her because she had become a target of his anger. He testified:

"She did not stumble back, she took one step back and I saw that because my body turned at the same time as my arm went back. I only did it with enough force for her to stop pulling at my shoulder. She did not even hit a wall."

[60] Mr. Giglia's actions were purposeful and directed by anger and his intentional application of force caused Ms Newberry, at a minimum, to step back. This was not an involuntary or reflex action of his body. Even if Ms Newberry did touch Mr. Giglia's shoulder, I find that she was attempting to stop Mr. Giglia and to get him to leave as he was clearly trespassing at this point. The trailer was the Fernbrook staff's workplace and Mr. Giglia was no longer a guest in a private workplace once he started screaming and verbally abusing the staff.

[61] Mr. Giglia admitted to being enraged and extremely angry that day. I reject his evidence that he was not angry before he entered the trailer. This aspect of his evidence is incredible and does not accord with common sense. Under cross-examination, Mr. Giglia admitted the following:

1. he and his wife were not getting what they wanted from Ms McIntosh despite repeated efforts on their part;

2. it was his belief before entering the trailer that Ms McIntosh had the ability to make the repairs on their home that he and his wife were requesting, but she was choosing not to;

3. their efforts to contact Ms McIntosh were being thwarted;

4. prior to going to the trailer that day, his wife had told him that Ms McIntosh and Mr. Maccaro had come to their home and started yelling at her so she slammed the door in Ms McIntosh's face;

5. his wife was very upset after this incident and told him to deal with it;

[62] For Mr. Giglia then to testify that he was not angry when he entered the trailer and that he was just hoping to "resolve things" is not credible. I accept the evidence from other witnesses that Mr. Giglia was extremely angry before he entered the trailer. I have no doubt that he stormed into the trailer to confront Ms McIntosh and that he immediately started yelling at her. I find that on the day in question, Ms McIntosh had in fact arrived late for her scheduled appointment with Ms Iatropoulus, causing Ms Iatropoulus to become extremely upset and triggering Mr. Giglia's rage, leading him to the trailer that day.

[63] I also find it incredible that Ms Iatropolus was not embarrassed by her husband's behavior and that she did not try to intervene and to calm him down on that day. It was clear from Ms Iatropoulus's evidence that she was trying to protect her husband. She repeatedly looked at her husband before and during her response to questions in cross-examination.

[64] Mr. Basile submits that if I find that Mr. Giglia's child was not present at the trailer on that day, then this fact significantly undermines the credibility of the Crown witnesses and should raise a reasonable doubt in my mind regarding whether the offence occurred, following the instructions in R. v. W. (D.), supra.

[65] Although I am uncertain as to whether Mr. Giglia's child was present that day, I am not convinced that she was not present. The Court of Appeal has made it clear that the W. (D.) instruction applies only to the elements of the offence charged. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact or any item of evidence, unless that fact or item is an element of the offence or an element of the defence: see R. v. B.D., supra. Even if I find that there was no child present on that day, this does not change the fact that I am satisfied beyond a reasonable doubt that Mr. Giglia assaulted Ms Newberry on August 3, 2010.

[66] Although not forcefully advanced by the defence, I further reject that Mr. Giglia acted in self-defence. Mr. Giglia testified that when Ms Newberry allegedly pulled his shoulder and told him to leave, he was not frightened by her, he was not in fear for his safety and that he did not fear that he was going to suffer injury. He just wanted her to "get the fuck off of him", to use his words. His admitted that his state of mind was not fear, it was anger.

The Doctrine of de minimus non curat lex

[67] The Defence submits that even if I find that Mr. Giglia assaulted Ms Newberry, the non-consensual physical contact was of such a trifling and trivial nature, that the legal maxim de minimus non curat lex should apply and the charge should be dismissed.

[68] Mr. Basile concedes that Mr. Giglia's conduct on the day in question was not trifling. He submits, however, that the doctrine of de minimus applies to the physical contact itself, not the circumstances surrounding the contact.

[69] Although the de minimis doctrine has never been authoritatively adopted or rejected as being applicable in Canadian law, a number of trial courts have applied it in assault cases and there is appellate support for the availability of this defence: R. v. Wolfe [1074] O.J. No 868 (C.A.); R. v. Carson [2004] O.J. No. 1530 (C.A.). See also R. v. Juneja 2009 ONCJ 572, [2009] O.J. No. 5119 (C.J.).

[70] In R. v. Carson [2004] O.J. No. 1530 (C.A.), the Ontario Court of Appeal explains the rationale for the principle of "de minimus non curat lex", that 'the law does not concern itself with trifles:

This principle seeks to avoid the criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest: R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.). ....(par. 24).

[71] In the case above, the accused appealed his convictions on charges of assault against his former girlfriend. The trial judge found that the complainant had inflicted serious injury on the accused and in contrast, the injuries inflicted by him were minor. The trial judge also expressly rejected the complainant's version of events in the bedroom as not credible or reliable.

[72] The Court of Appeal held that regardless of the trial judge's findings regarding the complainant, this did displace the fact that the appellant's conduct towards the complainant constituted an assault at another point during their altercation. In rejecting the de minimus defence, the Court of Appeal did not focus solely on the physical contact but considered the entire context in which the conduct took place and stated the following:

"The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in a crime. The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated."

[73] In my view, the doctrine of de minimus does not apply to the circumstances of this case. It is clear that the entire circumstances must be examined when considering the defence of de minimus. Mr. Giglia's assault against Ms Newberry cannot be viewed in isolation and must be considered in context. Mr. Giglia's conduct on that day was not harmless. It is not acceptable to enter into people's workplace and behave the way Mr. Giglia behaved. This is not trifling conduct, nor something that our society would condone. There is a societal interest in protecting people in their work place.

[74] On the totality of the evidence, I am satisfied beyond a reasonable doubt that the Crown has established the essential elements of the offence. Mr. Giglia is found guilty of the offence of assault, contrary to the Criminal Code.

[75] I wish to thank counsel for their professionalism throughout and their very helpful submissions.

Released: August 21, 2012

Signed: Justice Sheilagh O'Connell