Court File and Parties

Ontario Court of Justice

Date: 2015-11-06

Court File No.: Central East - Newmarket 4911-998-14-07798-00

Between:

Her Majesty the Queen

— and —

Giuseppe Joseph Galati

Before: Justice David S. Rose

Heard on: March 10, June 8, September 15, 16 and October 29, 2015

Reasons for Judgment released on: November 6, 2015

Counsel:

• J. Fuller and M. Rumble, for the Crown
• G. Logan, for the defendant Giuseppe Galati

ROSE J.:

Charges

[1] Mr. Galati is charged with the following:

1. Assault against Nancy Stol on August 22, 2014;
2. Assault against Nancy Stol between August 20 and 22, 2014;
3. Uttering a Threat to Nancy Stol between August 1, 2014 and 21 August 2014;
4. Fail to Comply Recognizance by failing to Keep the Peace and Being of Good Behaviour between August 20, 2014 and 21 August 2014;
5. Assault against Nancy Stol between August 1, 2013 and 30 September 2013;
6. Disobey Court Order by communicating with Nancy Stol between August 25, 2014 and 5 October 2014 under s. 127 of the Criminal Code;
7. Disobey Court Order by communicating with Michael Crosby between August 25, 2014 and 5 October 2014 under s. 127 of the Criminal Code; and
8. Obstruct Justice between August 25, 2014 and 5 October 2014 by contacting Nancy Stol and Michael Crosby demanding that they recant their statements.

[2] In argument, Ms. Rumble fairly conceded that counts 6 and 7 were laid under the wrong section of the Criminal Code and that it was too late in the trial to amend the charges. She asked that they be dismissed. Accordingly, I dismiss Counts 6 and 7 against Mr. Galati.

Evidence

[3] The Crown called two witnesses, Michael Crosby and Nancy Stol. The Defence called no evidence. Numerous photographs, a Non-Communication order and a Recognizance dated November 20, 2013 were put into evidence. On September 16, 2014 I ruled that two out of Court statements of Nancy Stol were admissible for the truth of their contents.

Michael Crosby

[4] Mr. Crosby testified that he was living with Giuseppe, or Joe, Galati and Ms. Stol in the summer of 2014. He grew up with Mr. Galati and knew him his whole life, and identified him in Court. In his words, Mr. Galati gave him work and he tried to give it back. In the summer of 2014 he was living in Don Mills but moved out two weeks before his rent was due. He met up with Joe and asked for some help. He ended up moving into Mr. Galati's rented house at 325 King Street in Holland Marsh. He thought that was at the end of July or August – he couldn't remember exactly. Nancy Stol was living there at the time, and he didn't really know her before moving in. He had never lived with Mr. Galati before, and said that things were not so bad at first. Mr. Galati yelled at Nancy, and Mr. Crosby would yell at Joe that they had to go to work. He said that Joe would yell at her for ridiculous things like spending money or doing things wrong, or putting dishes in the wrong spot. He testified that Nancy Stol was working with Joe. After a complaint by Nancy Stol, he asked Joe Galati if he was hitting her, and he said no, that she was crazy.

[5] Mr. Crosby testified that he was staying on the main floor of the house on the couch. Nancy Stol's bedroom was about 12 feet away. At one point he saw Joe come out of Nancy's room. He was angry, and walked upstairs right after. Nancy was in her bedroom on her mattress on the floor. She was in pain, and holding her shoulder. She complained that Joe had beaten her. There was a bruise on her left shoulder. After that incident he decided to tell Ms. Stol to call the police but she said no. He saw Joe hit her another time in her bedroom. Again Joe went out and upstairs. That time it was a slap as she was lying on her back. Joe was standing on top of her. Mr. Crosby saw Joe's arm go up and down, and then Mr. Crosby heard a thud. That altercation was preceded by an argument instigated by Mr. Galati over money. Mr. Crosby said that the assault was one or two days before he went to the police.

[6] Mr. Crosby testified to other incidents between Nancy and Joe. Once Joe took Nancy Stol, slapped her and pushed her against the wall. The same day Mr. Galati slapped Ms. Stol he told her that he would pour gasoline on her and put her on fire. He made a statement to the police the very next day, August 24, 2014, which dates the slap and threat as August 23, 2014.

[7] After Mr. Crosby went to the police Joe was arrested at the house in Holland Marsh. Crosby was at the house when Joe was arrested. Since Mr. Galati's arrest he received phone calls from Mr. Galati. Mr. Crosby lent his phone to Ms. Stol and was present when Mr. Galati would call her on Mr. Crosby's phone. This happened often. He testified that he could hear Mr. Galati tell Ms. Stol that she should say that nothing happened. He testified that Mr. Galati would tell her to lie and tell the court that nothing happened. He knew it was Joe on the other end of the line because his voice was so loud. He said that Mr. Galati was trying to get Ms. Stol to concoct a story about Mr. Crosby trying to get back at Joe. After Mr. Galati's arrest he moved into a shelter with Ms. Stol.

[8] Mr. Crosby identified the pictures of Nancy Stol indicating a purple mark under the right eye.

[9] Mr. Crosby admitted to using drugs. He used crack cocaine on a daily basis and marijuana. He is on the methadone program because of an addiction to OxyContin. So was Nancy Stol. When he testified, Mr. Crosby admitted to smoking crack with Nancy Stol as recently as 3 weeks ago. Later he admitted that he was smoking crack daily. He testified that he was in a professional relationship with Ms. Stol, but they share a room at a shelter as a couple. When he was at 325 King Street he said he was unhappy with the arrangement and wanted to move out, but ended up living there until November 4.

[10] Mr. Crosby denied calling the police to get a rent free house after Joe Galati's arrest.

[11] Mr. Crosby has a lengthy criminal record, and spent time in prison as recently as December 4, 2014. His record includes offences of dishonesty.

Nancy Stol

[12] Ms. Stol testified after Mr. Crosby. She spoke about her various ailments, including recent surgery for carpal tunnel syndrome 4 days before her evidence. She said she was taking Percocet. She appeared to me to be in some physical discomfort while she testified but said that she was alright, even if she was shivering.

[13] Ms. Stol came from Alberta about 3 – 4 years ago, and found employment in Southern Ontario as a roofer. That is how she met Joe Galati, who she identified in Court. Joe owns a company, Capital Roofing. She worked for Capital Roofing. She said she was good friends with Joe Galati.

[14] She testified before me that she couldn't remember Joe's involvement in the matters that brought her to Court. She was quite distraught at that point in her testimony. She did say that she moved in to 325 King Street in Holland Marsh with Joe either 2 years, or one and a half years ago. In her words days and dates don't exist unless she has a doctor's appointment.

[15] When she lived at 325 King Street with Joe Galati she confirmed that Michael Crosby lived with them. He moved in a while after Nancy and Joe had moved in, perhaps months. Joe occupied the bedroom in the loft, and she had a bedroom on the first floor. She moved out of 325 King Street when the Sherriff took the house back on January 20, 2015.

[16] Nancy Stol described her relationship with Michael Crosby as being friends. She testified that she wanted to be more than friends with Joe, but Joe would not allow it. She was quite clear in her testimony that she loved him with all her heart and wants him out of custody. In Court I observed her to be looking at Mr. Galati fondly and frequently during her evidence. Towards the end of her testimony she did not behave that way in Court and was more neutral towards Mr. Galati, although I can discern no reason for the change in attitude. That change coincided with her evidence that when her testimony was finished she intended to go back to Alberta.

[17] Ms. Stol explained that she had been using recreational drugs for about 12 – 15 years. She said that her plan was to take Joe's money to send him to jail. The whole idea was hers. She said she did not tell Mike Crosby of the plan. She explained in evidence that she got a black eye from Mike throwing a pack of cigarettes at her.

[18] She said she showed Mike the black eye, but did not tell him anything. Mike called the police and both went to the police station for that purpose. She had a warrant for her arrest and spent the evening in custody. She said that it was not part of the plan to have Mike give a statement, and has no idea what Mike said to the police. The warrant for her arrest lead to a court appearance and conviction for Theft Under $5000 and 2 years of probation.

[19] Nancy Stol was not a cooperative witness for the Crown. She went some distance to disavow herself from the two statements that she gave to the police. She was not interested in reviewing her August 2014 statement and said that she was not truthful when she gave it. Nor was she truthful when she gave a statement to the police in May of 2015. After she was shown her August 2014 statement she said that it didn't help with her memory of what happed at that time, because it was all a lie. The May 2015 statement was also shown to her and she described it in similar terms, namely it was lie when she said that Joe hit her.

[20] Ms. Stol testified that she didn't remember why the police were called in August 2014, perhaps because Joe Galati was yelling. I permitted Mr. Fuller's application under s. 9(2) under the Canada Evidence Act to cross-examine Ms. Stol on her statements. In that cross-examination Ms. Stol said that she was indeed in love with Joe Galati and would do anything for him, and that when she spoke with Det. Hip in May of 2015 she told the truth and similarly told him the truth in August 2014. That said, she denied that she told Detective Hip the truth about Joe assaulting her or threatening her. After that cross-examination I ruled that both statements could be admitted for the truth of their contents.

[21] In cross-examination by Mr. Logan, Ms. Stol said that the arrest warrant against her for the outstanding Theft charge was a source of tension between her and Joe Galati. She elaborated on her drug problem to say that she was heavily into drugs right up until the time of Mr. Galati's arrest. It was, she admitted, a dark period – so deep that she would do anything to get a score. Similarly she was using drugs when she gave the May 2015 statement to Det. Hip. She was not protecting Mike Crosby. She did admit in her testimonial evidence that Joe did assault her, but just once. He did this by pushing her against a wall. Shortly after that point in her testimony she said that she didn't remember the push.

[22] Nancy Stol testified that Joe has been calling her about the Capital Roofing and running the company. None of those calls related to her testimony.

[23] In my review of the August 2014 statement Ms. Stol appears lucid, coherent and responsive to questioning. She was asked by Det. Hip "Is there anything I need to know in order to understand your statement today? Basically is there any physical or mental conditions, use of alcohol or drugs or anything that is going to inhibit you or prevent you from giving a proper statement today?" Her answer was "No." Her demeanor during the statement was consistent with that.

[24] In her August 24, 2014 videotaped statement Ms. Stol says the following:

• she has known Giuseppe Galati for 2 years;

• she got her black eye because a couple of days ago Mr. Galati got mad and "…took it out on me." He did this by hitting her in the head while she was lying on the bed watching TV. At that time he also "…gave me a good shot to the ribs." Mr. Galati used a closed fist. The incident took about a half hour or hour;

• in another incident Mr. Galati accused Ms. Stol of taking his drugs, which she did not. "And then he started like punching me and kicking and then he said I'm going to burn me and bury me in the backyard, and its all your fault that I'm financially broke and I just had some kicks and punches and I just kind of sit there and kind of block and wait for it to be over." That incident was on Wednesday or Thursday of the week before the statement. That incident took place in her room while she was trying to go to sleep. She told Det. Hip that Mr. Galati first hit her in the head and then the ribs. As she put it, "The first hit is always to the head.";

• the hits she suffered from Mr. Galati were a daily occurrence for about 6 months. The black eye she showed Det. Hip on August 24 was not the first he had given her. Her "ribs are always sore all the time."; and

• in the summer of the previous year she was at the Park Plaza hotel with Mr. Galati when he hit her in the face. That assault did not result in an injury.

Findings

[25] I have concerns about Mr. Crosby's credibility, and can place very little weight on it for the following reasons:

• he was evasive about the nature of his relationship with Nancy Stol. He was at pains to explain that it was a professional relationship but he was evasive when pressed;

• he was evasive about his drug use; at times minimizing it, but then admitting to smoking crack daily;

• he was evasive when pressed about his level of satisfaction with the living arrangement at 325 King Street;

• when asked about his criminal record for Break and Enter, he denied ever committing Break-ins, even though he pleaded guilty to the charges;

• his evidence about who owned his van was nonsensical. At one point he said that it was his van, not Joe's van, but at the same time said that he transferred ownership of the van into Joe Galati's name. This was internally inconsistent; and

• he has a criminal record for offences of dishonesty.

I view any unconfirmed testimony of Mr. Crosby as unreliable.

[26] As regards Ms. Stol's evidence in Court, it has the following frailties:

• her affection in Court for Mr. Galati was apparent at some points in her evidence but not in others. From this I infer that her feelings towards Mr. Galati are not always the same. At times her in-court affection for Mr. Galati coincided with her reluctance to adopt previous statements that she had made to the police. I therefore have concerns that she is not telling the truth in Court because of her feelings towards Mr. Galati;

• her viva voce evidence that she sustained a black eye from a pack of cigarettes being thrown at her is ludicrous. The pictorial evidence of the black eye shows nothing like an injury that could be sustained by a small light object hitting her face. In that regard it is externally inconsistent;

• any testimony of a plan to have Joe Galati arrested is not born out on the facts. Both Mike Crosby and Nancy Stol testified that Joe Galati earned a living as a roofer and spread the work around to both of them. There is no evidence that any money was taken from him, or that Nancy Stol and Mike Crosby obtained any material benefit from Joe Galati's arrest other than staying at 325 King Street without paying rent until the Sherriff took the house back. I reject as nonsensical the idea that it was a material benefit to have Joe Galati arrested so that Nancy and Mike could go from being workers earning money to squatters; and

• while I accept that Ms. Stol was a drug user, I reject the idea that she was so heavily addicted to drugs that she went to the police to have Mr. Galati arrested so that she could steal his money and buy more drugs. I reject as highly speculative and unlikely Ms. Stol's viva voce evidence that she was so addicted to drugs that she made an appointment with a police detective so that a third party (Joe Galati) could be arrested, knowing all the time that she too would be arrested on an outstanding Theft charge warrant.

[27] After rejecting Ms. Stol's viva voce testimony I must analyze her out of Court statements. The August 24, 2014 statement was video recorded, and even if it wasn't under oath, it was fully cautioned. In it she appears lucid and coherent. After speaking at length to Det. Hip about being the victim of assaultive conduct by Mr. Galati she is asked by him if she wants to speak about her outstanding Theft charge. She declines. She is then asked:

Q. Okay, fair enough. Okay, and you understand the importance of telling the truth, right?

A. Yes.

Q. Any everything you have told me is the truth today?

A. Correct.

[28] Ms. Stol demonstrates ample ability to decide what to talk about and what not to talk about. Furthermore, Ms. Rumble argues that in her August 2014 statement Ms. Stol gives a somewhat balanced view of Mr. Galati. Det. Hip asks her:

Q. Yeah, Is there anything you would like to tell me about him, though?

A. At the end of the day, he does have a good heart. I know it sounds funny, but…

Q. Sorry?

A. I know it sounds funny, but at the end of the day he does have a good heart. He wants to be a good person, he just doesn't know how.

[29] I accept the Crown's argument that from this, I can conclude that Ms. Stol's statement presents an accurate picture of what she saw, heard and felt in August 2014 right after two of the assaults by Mr. Galati. Furthermore, her statement that the black eye was suffered from the closed fist of Mr. Galati is consistent with the pictorial evidence of her face taken at the time of the statement. I reject as wholly unworthy of belief her viva voce evidence that she got the black eye from a cigarette pack being thrown at her by Mr. Crosby. Simply put, a cigarette pack won't cause that type of injury. The pictorial evidence provides external confirmation of the reliability and trustworthiness of Ms. Stol's August 2014 statement.

[30] Ms. Stol's May 27, 2015 statement to Det. Hip was a departure from the August statement. By May 27, 2015 Ms. Stol had appeared for this trial and been bound over. As I have indicated previously Ms. Stol's appearance as a witness at this trial began with visible affection for Mr. Galati. By May 27, 2015 Ms. Stol told Det. Hip that she was taking prescription medication for carpal tunnel syndrome. This included Percocet, Hydromorphs and Meloxicam. In that statement she said that she made up parts of the August 24, 2014 statement. When asked about what she said at that time, on May 27 she simply said she "lied", and that "its not correct", or "I made that up." She was asked by Det. Hip about a meeting with her in October 2014:

Q. "…but you gave us a lot of information that day, without give us a formal statement.

A. I say a lot of shit, I talk a lot of shit.

[31] Tellingly, she denied having a phone that Det. Hip had actually reached her on. Ms. Stol also went on to say things that allow me to conclude that she had in fact been in contact with Mr. Galati about the facts that brought her to Court:

Q. But we also know that people need to be accountable for their actions.

A. I know but he's sorry.

Q. Sorry?

A. I know he's sorry.

Q. And you know what? That's the first step though. That's the first step. But what do you mean he's sorry? What's he sorry about?

A. He knows he did wrong.

Q. But what did he do wrong? What do you mean?

A. He – he's remorseful and he's…

Q. He's remorseful?

A. …not going to do it again. He's learned his lesson.

Q. He's not going to do what again, though?

A. He's not gonna make the same mistakes. He's learned his lesson. He's gonna be nicer. He's…

Q. Oh.

A. …opened up his eyes to be able to become that good person that he is at the end of the day.

Q. ...what's he gonna stop doing?

A. He says that – he says that he wants to get counselling so that he can learn to see his own triggers.

Q. Yeah? So what do you think is different between this time and – and now any of the last times?

A. He's sober now and the drugs are out of his system.

Q. Sorry?

A. He's sober now that drugs are out of his system. He actually is…

Q. yeah.

A. ...truly thinking clearly.

A…I told him he has to be calm.

Q. You told him that? When did you tell him that?

A. Tell him all the time. He's gotta show he can stay calm and be quiet.

Q. Yeah, yeah.

A. Listening – listening is the key to peace.

Q. How hard is it to hear his voice, knowing he is in custody? How hard is – how hard has it been when you're receiving those phone calls. It must be tough eh? How was it – those five phone calls that you got from him? How was that? Does he end off with "I love you?"

A. Yeah.

Q. …Okay

A. I just want – maybe for me to tell him if he tries to stop phoning me, like, I don't want him to stop phoning me, but it...

[32] Even with this, Ms. Stol tells Det. Hip that Mr. Galati hit her in the living room and held her up against the wall. When asked if Mr. Galati was calling her from the jail she initially says "no comment", and then she says, "…And he's not necessarily calling me. He has other people calling me." The May 27, 2015 interview is replete with comments from Ms. Stol that could only have been made after conversations with Mr. Galati after his arrest about the charges. When Ms. Stol testified that she had seen Mr. Galati in the jail, I believe her evidence on that point, but I disbelieve her evidence that she hasn't discussed the charges.

[33] I find that on May 27, 2015 Ms. Stol had no real reason to disavow the truth of the August 24, 2014 statement other than her recently developed fondness for Mr. Galati, which was developed from her jail visits and his phone calls to her. Such a change in mind is palpable and overwhelming in the May 27, 2015 interview.

Findings

[34] It is axiomatic that I may accept some, all, or none of any witnesses' testimony.

[35] There is evidence before me in Exhibit 2 that Mr. Galati was on a recognizance between August 20 and 22, 2014. That bail was for a Dangerous Driving Charge dated 18 May, 2013. Mr. Galati was therefore bound by the statutory term of his recognizance that he keep the peace and good behaviour. Assaultive conduct would, if proven, be a violation of that term.

[36] I accept Mr. Crosby's testimony to the extent that it is confirmed by other reliable evidence. Given my findings below I therefore accept his evidence that the living situation in 325 King Street in July and August 2014 was marked with hostility between Mr. Galati and Ms. Stol and that on two occasions he hit her for no apparent reason as well as a threat. Those incidents occurred in the days prior to August 24 of 2014. This is confirmed by Ms. Stol's statement to Det. Hip on August 24, 2014, and the picture take of her face that day.

[37] I find Ms. Stol's statement to the police of August 24, 2014 to be reliable and credible. I disregard her viva voce evidence that the statement is not true because of the frailties in her testimony. Accordingly, I do not accept any of her viva voice evidence or her Statement of May 27, 2015 which contradicts Ms. Stol's August 24 statement, and the Crown has therefore proven beyond a reasonable doubt that Mr. Galati assaulted Ms. Stol as she described it on August 24, 2014, namely on August 22, 2014, Between August 20 and 21, 2014 threatened her with death sometime between August 1 and 21, 2014, failing to comply with his Recognizance between August 20 and 22, 2014, and Assaulted Nancy Stol between August 1, 2013 and 30 September 2013. He is therefore found guilty of Counts 1- 5 on the Information.

Count 8

[38] There is evidence that Mr. Galati asked both Ms. Stol and Mr. Crosby to fabricate their testimony while he was detained pending trial. This flows from:

i – Mr. Crosby's testimony that Mr. Galati had phoned Ms. Stol while in custody was confirmed by Ms. Stol in her May 27, 2015 statement and I accept that part of Mr. Crosby's testimony as confirmed by Ms. Stol on May 27, 2015.

ii – Ms. Stol's admissions in her May 27, 2015 Statement to Det. Hip that she had been in contact with Mr. Galati while he was detained pending trial;

iii – Ms. Stol's statement to the police on August 24, 2014;

iii – Ms. Stol's denials in Court, and on May 27, 2015 of the truthfulness of her August 24, 2014 statement with no apparent reason.

iv – Ms. Stol's visible affection for Mr. Galati while in Court.

[39] Putting these facts together there is only one conclusion I can come to, which is that Ms. Stol was told by Mr. Galati to change her testimony from the inculpatory statement she gave about Mr. Galati on August 24, 2014 to her May 27, 2015 statement and then viva voce testimony at trial which did not inculpate Mr. Galati. But that does not end the matter. Count 8 is particularized to name the contacted persons as being both Mr. Crosby and Ms. Stol. In order to obtain a conviction the Crown must prove beyond a reasonable doubt that both were told to recant their statements. While Mr. Crosby gave evidence about himself being asked to recant his statement, I am uncomfortable accepting his viva voce evidence alone on this point. He gave viva voce testimony inculpating Mr. Galati. Nowhere else in the evidence is Mr. Crosby confirmed on this point. While highly suspicious, I cannot find that Count 8 is made out beyond a reasonable doubt with Mr. Crosby.

[40] It is trite law that the Crown must prove the charge as particularized. But the averment in a count must be a particular to fall within that rule and not mere surplusage. Sometimes the name of the victim is mere surplusage, such as where the charge is discharge of a firearm (see R. v. Melo (1986), 29 C.C.C. (3d) 173 (C.A.)). At other times the name of the victim is an essential averment, such as when the victim of a robbery is named in the Indictment (see R. v. Austin (1955), 113 CCC 95 (Ont. C.A.)). In the case at Bar the Crown lead evidence that Ms. Crosby and Ms. Stol were together as witnesses at this trial. They were both present during much of the allegations, and have had ongoing contact since the time of the allegations. In the circumstances of the trial before me I find that the names of the victims in Count 8 are particulars and not mere surplusage. While the Crown has proven beyond a reasonable doubt that Ms. Stol was told to recant her testimony, I have a doubt about whether Mr. Crosby was told the same thing. It follows that I must acquit Mr. Galati of Count 8.

[41] In the result Mr. Galati is found guilty of Counts 1, 2, 3, 4, 5 and found not guilty of Counts 6, 7, 8.

Released: November 6, 2015

Signed: Justice David S. Rose