Court File and Parties

Court File No.: Newmarket 13-1580 Date: 2013-06-13 Ontario Court of Justice

Between: Her Majesty the Queen — and — Dominic Loccisano

Before: Justice Joseph F. Kenkel

Heard on: June 13, 2013 Judgment Delivered: June 13, 2013

Counsel:

• Mr. Brian McCallion for the Crown
• Mr. Paul Mergler for the accused

KENKEL J.:

Introduction

[1] Mr. Loccisano is charged with Assault with a Weapon contrary to s. 267(a) of the Criminal Code.

[2] The charges arise out of a domestic incident in which it's alleged he threw a block of hard cheese at his wife causing bruising. The complainant and the accused both testified and gave different accounts of the incident. Credibility is the central issue at trial and the framework in R. v. W.D., [1991] SCJ No. 26 assists in the assessment of reasonable doubt in that context.

Evidence at Trial

[3] The complainant testified that during an argument with her husband she turned away as she was cooking dinner. She felt a blow to her side, and when she turned back she saw the block of hard cheese that hit her on the floor. She did not see the cheese being thrown. Other than her husband the only other person in the kitchen was their 9 year old son. Prior to returning to her cooking the complainant had seen her husband at the island in the kitchen on an angle to her with the block of cheese cutting a slice for himself and their son.

[4] The complainant testified that while she felt the impact of the cheese, her feelings were hurt more than she was. She left her cooking and took the children to her mother's house. She then went to the police to report the incident. At the station she was surprised to find that the red marks on her side which she'd noticed earlier had turned to bruising. Exhibit 1 is a photograph taken at the police station showing bruising to the complainant's left side at the rib area.

[5] The accused agreed that they'd argued about going out to dinner and his wife had said they couldn't afford it and had started making dinner. He was at the island counter in the kitchen grating cheese for the pasta she was cooking. He testified that he put the block of cheese at the end of the island, then his wife fell backwards into the island and the cheese fell to the floor. He recalls that his wife then asked him if he'd thrown the cheese at her. He does not recall his son being in the kitchen at that time.

Submissions

[6] The defence submits that the complainant bears a strong animus towards the accused given their marital difficulties and that her testimony to the effect that she didn't know what consequences would result from her complaint to the police isn't credible given past domestic incidents. The defence submits that the complainant wanted the accused out of the house and lied about the incident to accomplish that purpose.

[7] The Crown submits that the complainant's evidence is credible and consistent and that there's no evidence that shows an oblique motive for her complaint. The accused's evidence gives no reason for the complainant to fall and is inconsistent with several circumstances both witnesses describe.

Analysis

[8] I've considered the testimony of both witnesses along with the two exhibits at trial together as a whole and make the findings of fact that follow in that context.

[9] Both witnesses testified in a straightforward manner and both were responsive in cross-examination. At times they showed emotion when discussing the various circumstances leading to the breakup of their marriage, but I do not find anything in the demeanor of either witness to be of assistance in assessing credibility.

[10] The fall described by Mr. Loccisano could not have been a slight slip. The location of the bruising to his wife shows that she would have had to fall back away from the stove where she was cooking in such a manner that her left side then contacted the island counter causing two bruises not at her hip but to her rib area indicating a significant loss of balance. Although he was in a position to see the cause of the fall Mr. Loccisano testified that he didn't see what caused it.

[11] While it may be possible that Mr. Loccisano would not be looking up and see his wife's fall, it's not reasonably possible that she wouldn't know she fell. Yet Mr. Loccisano's evidence is that after she fell the cheese was on the ground and she accused him of throwing it at her. If his wife had fallen away from the stove as described she would be well aware of that circumstance and would have no reason to accuse her husband of throwing cheese. Mr. Loccisano's evidence on this point is inconsistent with his description of the fall but is consistent with the complainant's account.

[12] There's no direct evidence that the complainant fell. The accused says he did not see his wife fall and at best his evidence merely offers a possible explanation for the bruising later photographed by police. There's no circumstance or testimony by either witness that would account for such a significant loss of balance by someone otherwise occupied cooking dinner. The lack of any evidence of a fall and any reason for such a fall I find detracts substantially from the credibility of the accused's testimony.

[13] If Mr. Loccisano was on the other side of the island opposite to his wife as he described, and assuming he was finished with the cheese as he said, it appears illogical that he would then move around the island to put the cheese down on the opposite end by his wife close enough to the edge that it would be on the floor by her. The fact that the cheese fell by her not him is confirmed in his evidence by reference to her complaint about it being thrown. I find this aspect of Mr. Loccisano's evidence unlikely.

[14] Both witnesses agree that the complainant abandoned her cooking and took the children to her mother's house. Those actions would not be logical in the context the accused described but are consistent with the complainant's evidence and her explanation that she was not particularly injured after being hit with the cheese but her feelings were hurt, and she wanted to leave.

[15] While it's plain that both parties have some hard feelings towards the other in the context of their breakup, I can find little evidence to support the assertion that the complainant has a history of embellishing complaints to the police and nothing supports the assertion that she lied to the police on this occasion in order to gain advantage in marital proceedings.

[16] The complainant called the police in 2008 in relation to a domestic incident. The accused was charged but the matter was ultimately resolved by way of a peace bond. She wanted her husband home and she hoped things would be better. In 2011 she called the police from her daughter's room. The accused was outside the locked room banging on the door and she called for the police to intervene. She did not complain of any threats, physical violence or property damage but requested police intervention in an apparent attempt to ensure that nothing further happened. She did not want her husband charged and no charges resulted. The evidence regarding prior contact with the police shows reasonable requests for assistance with very limited complaints made. There's no evidence of embellishment. On the contrary the complainant explained that she left out an aggravating detail about being grabbed by the jaw in relation to the 2008 incident.

[17] The present complaint shows no sign of exaggeration. If the complainant wanted to fabricate a story for civil advantage as alleged, throwing a piece of cheese without any threats, property damage or physical violence is not likely to be the story she would choose to make up. As with her past contact with police she described a very limited incident without any further aggravating feature. Her testimony that she did not know what if any action police would take despite past incidents is credible given the very limited conduct she described and her past experience that not every incident related to police led to charges. I find it credible that she wouldn't necessarily know that throwing cheese was a criminal offence or that it would be something the police would proceed to charge.

[18] The complainant's evidence was logical and internally consistent. Her statement regarding the thrown cheese and the action she took afterwards to abandon dinner and leave with the children as confirmed by both witnesses are consistent with her account. Her evidence on the central point is consistent with the photographs of bruising taken by the police.

[19] When considered in the context of the evidence as a whole I find I cannot accept the accused's evidence that his wife may have fallen and caused the bruising in Exhibit 1. The accused's account is illogical given that there's no apparent cause for a significant fall, it's internally contradictory given the statements and the actions of the complainant he admits afterwards and it's contradicted by credible external evidence.

Conclusion

[20] Considering all of the evidence heard, I can find no credible evidence which reasonably could leave a doubt. I find the Crown has proved the count alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered: June 13, 2013

Justice Joseph F. Kenkel