Court File and Parties
Ontario Court of Justice
Date: 2014-11-20
Court File No.: Halton 13-1134
Between:
Her Majesty the Queen
— and —
Artur Ivashinnikov and Claudio Topulli
Before: Justice L.M. Baldwin
Heard on: January 7, 2014; January 14, 2014; January 20, 2014; and March 24, 2014
Reasons for Judgment released on: November 20, 2014
Counsel
M. McGuigan — counsel for the Crown
T. Morris — counsel for the defendant Artur Ivashinnikov
D. Hotz — counsel for the defendant Claudio Topulli
BALDWIN J.:
Charges
[1] Count #1: Artur Ivashinnikov and Claudio Topulli each stand charged that on or about the 16th day of March 2013, at the Town of Oakville, they did commit an assault on Brian Cardinal, contrary to s. 266 of the Criminal Code.
[2] Count #2: Artur Ivashinnikov and Claudio Topulli on 16th day of March 2013 in Oakville — ABH on Evan Hie — dismissed on March 24, 2014.
[3] Count #3: Artur Ivashinnikov further stands charged on or about the 16th day of March 2013, at the Town of Oakville, that he breached a probation order made in Milton on January 16th, 2011 by failing to keep the peace and be of good behaviour contrary to s. 733.1 of the Criminal Code.
[4] The Crown proceeded summarily.
Background
[5] The events in question took place inside the 'Less Than Level' bar located at 381 Kerr Street in Oakville.
[6] The two accused were patrons of the bar. They had been there before. Claudio, in particular, had been banned from attending the bar on previous occasions by bar manager, Jon Joseph.
[7] Jason Rivau was the bouncer on duty that night. He was watching Claudio and Artur because of their previous bad behaviour in the bar.
[8] Jon Joseph, the bar manager, was acting as back-up security and he was also keeping a special eye on Claudio that night in the bar.
[9] It is alleged that the two accused kicked Brian Cardinal, a patron of the bar, repeatedly when Brian was down on the ground in a defenceless position.
[10] Brian Cardinal was drunk at the time and his evidence is of little value.
[11] A melee gathered outside of the bar where Evan Hie and others were injured. Evan Hie was drunk at the time and his evidence is of little value. Count #2 was dismissed on the last day so I will not be discussing the conflicting evidence of the fighting that took place outside of the bar.
[12] Derek Thomson was a patron in the bar that night. He may or may not have been drinking alcohol before the events occurred. He sees little inside of the bar. Most of his trial evidence was about what took place outside.
[13] The videotape filed as an Exhibit did not capture the direct events inside of the bar and was of little value at the end of the trial.
[14] The incident happened at about midnight.
[15] There was no defence evidence in this case.
[16] The case rises or falls on the evidence of the two sober witnesses: Jason Rivau (bouncer) and Jon Joseph (bar manager).
[17] Exhibit #1 — Artur Ivashinnikov's Probation Order dated January 16th, 2012 for 2 year period (reporting order with conditions including curfew; no drugs; non-assoc.)
[18] Exhibit #2 — medical records of Evan Hie
[19] Exhibit #3 — medical records of Jason Rivau
Testimony of Jason Rivau
[20] Mr. Rivau was 25 years of age when he testified at trial. He has completed Police Foundations. He has worked as a volunteer with disadvantaged youth. He wants to be police officer someday.
[21] He was working as the bouncer/security person at the bar the evening and into the morning of March 15/16, 2013. He had worked there for over a year on weekends.
[22] The bar is downstairs from street level.
[23] Mr. Rivau was working at the door making sure people entering the bar had ID and no one entering or exiting the bar was carrying alcohol.
[24] The bar (capacity for 180 people) typically had regular customers. It has 3 pool tables and a dance floor. Sometimes DJs or bands play music. The bar had approximately 60 people in there at the time of the incident. Mr. Rivau testified that this bar is usually quiet compared to other bars where he has worked as security. (pp. 90, 91)
[25] Later in the evening of Friday March 15th, 2013, Claudio, Artur and a third male approached the downstairs door to enter the bar.
[26] Claudio and Artur were regulars at the Less Than Level bar. (p. 11) He knew Claudio by his first name from checking his ID before and from dealing with him at other bars in Halton. He knew Artur by his face. They would come into the bar together.
[27] He had dealt with them at the bar on previous occasions because of their aggressive behaviour.
[28] At the door, he asked Claudio for his ID. Claudio did not want to provide it. The manager, Jon Joseph, intervened, Claudio produced his ID and the 3 men got admitted into the bar.
[29] Later in the evening, Mr. Rivau noticed that patron Brian Cardinal was having some words with the 3 men in this group. That sent off some warning bells in his mind because it could explode into a fight.
[30] It appeared that the 3 men were being aggressive with Brian.
[31] Later that evening Artur walked by and Mr. Rivau asked him what happened. Artur told him not to worry about it. Mr. Rivau decided to keep an eye on the situation.
[32] Artur left the bar and went upstairs to have a smoke or something.
[33] Then Claudio and the unknown third male approached Mr. Rivau. Claudio began telling him about his income and how he makes a large amount of money related to his drug dealing.
[34] In cross-examination, defence counsel Mr. Hotz put it this way:
Q. So suddenly you're faced sir, with a bunch of guys who are talking about making a thousand dollars a night and coke dealers and cocaine dealers and marijuana dealers and these guys are there throwing it in your face. Would that be fair to say?
A. Yeah, that's correct.
[35] Mr. Rivau testified that the first time he met Claudio at the bar he caught Claudio doing cocaine in the bathroom and Mr. Rivau was aware that there was drug dealing going on out of the bathroom.
[36] Claudio was getting very close to Mr. Rivau at the time. Mr. Rivau repeatedly told Claudio to just sit down and drink your beer. The other fellow he was with was also trying to calm Claudio down at the time. (pp. 16, 82)
[37] Claudio did not sit down. He kept coming closer to Mr. Rivau. Claudio was so close to him that Mr. Rivau could feel Claudio's spit. (p. 60)
[38] Mr. Rivau pushed Claudio away from him.
[39] Artur came running up (Mr. Rivau does not know how he got back inside) and Jon Joseph came over to see what was happening.
[40] There was physical contact between Claudio and Jon and the fight inside the bar broke out. Mr. Rivau put Artur in a headlock to get him off Jon.
[41] Bar patrons jumped in to assist. Approximately 10 people were involved.
[42] Mr. Rivau released his hold on Artur and then saw Brian on the floor. Mr. Rivau does not know how Brian ended up on the floor.
[43] Claudio and Artur began kicking Brian repeatedly. (pp. 18, 46, 63, 68, 87)
[44] Mr. Rivau saw the blows connect. Brian had his hands around his head trying to protect himself. He was not fighting back.
[45] Claudio, Artur and the unknown third male were pushed up the stairs and out of the bar.
[46] The fighting continued outside of the bar. (A number of people were seriously injured – stabbed, split lips, lost tooth, black eyes, etc.)
[47] At the end of the melee Mr. Rivau realized that he had been stabbed in the leg. He drove himself to hospital and received stitches. He has no idea who stabbed him in the bar.
[48] Brian Cardinal was also stabbed during the melee. He did not discover his injuries until the next day after work. He was treated in hospital and received stitches.
Exhibit #11 – Agreed Statement of Fact
Witness Jason Rivau
[49] Lineup #1 — Photo #12 selected, was photo of accused Artur Ivashinnikov
[50] Lineup #2 — Hesitated over Photo #10, which was a photo of accused Claudio Topulli
Witness Jon Joseph
[51] Lineup #1 — Photo #4 selected, was photo of Artur Ivashinnikov
[52] Lineup #3 — Photo #10 selected, was photo of accused Claudio Topulli
Evidence of Jon Joseph
[53] Mr. Joseph was 31 years of age when he testified at trial. His mother is the owner of the bar and he is one of 2 managers.
[54] He knows Brian Cardinal. At the time Brian would regularly come into the bar. Brian was working on a construction site behind the bar at the time. Mr. Joseph's brother was working at the same construction site.
[55] Mr. Joseph located himself inside the bar standing at the back door. He could see the front door from there.
[56] On March 15th, 2013, he saw Claudio come down and he was giving the bouncer a little bit of a hard time about showing his ID. Mr. Joseph went over and explained to Claudio that the bouncer was doing his job. Claudio apologized and said he understood.
[57] Claudio had been in the bar a few times before. Mr. Joseph has talked to him about his behaviour in the bar before. This happened "mostly whenever he came down" to the bar. (p. 43) Claudio would be told to leave for "misbehaving…acting up or intoxicated, or trying to sneak booze out…loud rowdiness…almost getting into fights with people…(saying to patrons) this is where we're going to be hanging out, get the 'F' out of here…" (p. 113) He was cocky and disrespectful. (p. 114)
[58] Despite this, Mr. Joseph said he likes to give people second chances and he would let Claudio back into the bar after some time had passed based on Claudio saying that he would not cause trouble.
[59] After the ID issue at the front door, Claudio sat down with Artur inside the bar.
[60] Later, Mr. Joseph saw an issue developing by the pool tables. He saw Jason Rivau heading toward Claudio, Artur and Brian. Mr. Joseph went over to diffuse it.
[61] When he got over there Brian was on the ground and there were customers kicking at him. Three or four people were kicking Brian.
[62] He saw Claudio and Artur kicking Brian. (p. 49) He definitely saw Claudio kick Brian once. (pp. 50, 51) He did not see if any of the kicks by Artur landed on Brian. (p. 52)
[63] Brian was being kicked in his stomach and chest area. Brian was 'turtling', covering himself up at the time.
[64] He grabbed Claudio and Artur too and moved them away and put them up against the wall.
[65] Jason was also restraining somebody.
[66] Then Claudio and Artur were pushed towards to the door to go up and leave the bar. Mr. Joseph had one hand on each of their chests and was pushing them backwards and out of the bar.
[67] Claudio was yelling and spitting at him and the other patrons involved. (p. 61)
[68] Artur head-butted him and he sustained a black eye.
[69] Jason and other patrons were helping him to get these troublemakers out of the bar.
[70] They got them outside and the fighting continued.
Testimony of Brian Cardinal (Victim in Count #1); Derek Thomson (Regular Patron); Evan Hie (Victim in Count #2)
[71] These Crown witnesses testified on January 14th and 20th, 2014. Their evidence has been transcribed and comprises approximately 130 pages of transcript.
[72] Brian Cardinal was drunk when he was assaulted. He has no idea how he ended up on the ground or what happened to him thereafter.
[73] Derek Thomson did not know the names of the 2 accused in this case until he was told after. He had not seen them in the bar before. He saw a fight break out in the bar. He saw the bouncer put Artur in a headlock. Jonny, the manager, was dealing with Claudio. Derek was part of the group that pushed Claudio, Artur and a third male out of the bar. He saw somebody head-butt Jonny in the face in the process.
[74] Evan Hie was drunk during the events in question. He was a regular patron of the bar. He ended up being seriously injured in the melee that continued outside of the bar.
Analysis
[75] In submissions, a number of red herrings and collateral issues were raised. These included the evidence about how Claudio got his cell phone back during or after the melee; conflicting evidence about who the third male was with Claudio and Artur; Mr. Joseph's previous dealing with Claudio's brother, Hager. None of these issues inform the matter.
[76] It was clear on the evidence of Jason Rivau and Jon Joseph that Claudio was the prime instigator of the physical aggression inside the bar. Artur was right beside him and aiding him at the time.
[77] There is no doubt on the evidence that I accept as accurate, reliable, unbiased and true, that Claudio kicked Brian Cardinal when he lay defenceless on the ground. Jason Rivau was in the best position to see that and he repeated his evidence clearly in that regard.
[78] Jason Rivau also observed Artur kicking Brian Cardinal. Mr. Joseph was not sure if he could see if the kicks connected, but there was no doubt that Artur was right there when Claudio was seen to kick Brian Cardinal.
[79] Claudio and Artur were rude and aggressive for their approximately one-hour stay in this bar that night. It started at the front door upon their arrival, escalated inside the bar and, once pushed out of the bar, erupted into serious violence. At this trial, it was learned that 3 different people were stabbed during this violence. However, they are not charged with those offences.
[80] The Crown has proven an assault on Brian Cardinal beyond a reasonable doubt.
[81] Mr. Ivashinnikov and Mr. Topulli are found guilty of Count #1.
[82] Mr. Ivashinnikov is found guilty of breaching his 'keep the peace and be of good behaviour' probation condition on Count #3.
Obiter
A JPT was held on November 30, 2013. Counsel estimated 2.5 days of trial time to complete the matter. This is another seriously under-estimated trial that has led to reserved judgments being delivered with delay here in Halton Region. Justice is not well served when it is delayed.
Released: November 20, 2014
Signed: Justice L.M. Baldwin