Court File and Parties

Ontario Court of Justice

Date: 2018-08-09

Court File No.: Niagara Region 998 17 W0849 & 998 17 W0850

Between:

Her Majesty the Queen

— and —

Paolo Rego and Mario Rego

Before: Justice J. De Filippis

Heard: May 15, 2018

Reasons for Judgment Released: August 9, 2018

Counsel:

• Mr. M. Sokolski, counsel for the Crown
• Mr. A. Freud, for the defendants

Judgment

De Filippis, J.:

[1] Introduction

[1] The two defendants are charged with assault causing bodily harm and uttering threats. I heard from the complainant, his common law spouse, a police officer, and the defendants. I have concluded that the defendants are guilty. These are my reasons.

Evidence

Complainant's Testimony

[2] The complainant, Mr. Federico Procopio, is 62 years old and self-employed in the construction industry. He testified that Paolo Rego, known to him as "George" Rego, was once a friend and that together they purchased the Welland Inn in July 2015. The complainant said he sold his interest in that hotel in March 2017. The complainant has met Paolo Rego's brother, Mario Rego, but added that he "barely knows him".

[3] On February 15, 2017 the complainant drove a motor vehicle, with his spouse, Ms. Amanda Poulin, as a passenger to the Welland Inn. He explained they did so to ensure that all was in order for the property to be sold. He testified that they arrived at around 6 PM but did not linger as Ms. Poulin was hungry. They returned after dinner at about 10 PM and drove near the front doors and stopped. It was dark and all lights in the building were shut off. The complainant found this odd and telephoned another investor in the hotel purchase, "Kubinda" for an explanation. The latter told him she did not know why the lights had been turned off.

[4] According to the complainant, as he was making these inquiries, the defendants, and a third person, ran to his car and banged on it. The complainant heard Paolo Rego scream, "Let's kick the shit out of this piece of shit" while Mario Rego and the other man grabbed him. The complainant put the car in park and was pulled from the vehicle. He said he fell to the ground and hit the back of his head. While on the ground he was kicked in the face by one or more of the three men.

[5] The complainant testified that at some point during this incident, Paolo Rego threatened to kill him and shouted that he would "take care of Amanda and ensure she would remember this day as long as she lives". That defendant also claimed that the complainant had "stolen food from his table" and shouted that he "would show him what it means to be Portuguese". The complainant added that Mario Rego "was basically saying the same things".

[6] After the defendants and the third man departed, an ambulance arrived. The complainant refused to go to the hospital until the police came. He signed a waiver to this effect and promised to go to the hospital after speaking to the police. The paramedics left the scene. An officer arrived, spoke briefly to the complainant and his spouse, and said he would return after speaking to the defendants. The complainant testified that after 45 minutes the officer had not returned so he went to the hospital.

[7] At the hospital, the complainant learned from his spouse that the police had decided not to arrest anybody in this matter. After leaving the hospital, he and Ms. Poulin went to the police station to object to this decision. They were told the police had spoken to the defendants and were satisfied that charges were not warranted. This upset the complainant as he claims he had not been interviewed by about the incident. He testified that they were escorted from the station and told not to return. Subsequently, the complainant attended before a justice of the peace and laid a private Information alleging the defendants had assaulted and threatened him. The prosecution was taken over by the Crown.

[8] The complainant stated that at the time of this incident he was 5'8" and 260 lbs. He was suffering from cancer and "on standby for surgery. He testified that he has since lost 30 pounds and uses a cane but that he did not have a crutch, cane, or walking stick at the time of these events.

Spouse's Testimony

[10] Ms. Poulin is a 44 year old college graduate and employed at one of the hotels in the Niagara Falls. She testified that she and the complainant have "been together for three years". She knows both defendants and is aware that Paolo Rego and the defendant jointly owned the Welland Inn.

[11] Ms. Poulin's trial testimony is in accord with that of the complainant but she provided these additional details: It was "pitch black" at the hotel when they returned there after dinner. As the complainant slowly drove around the parking lot, she tried unsuccessfully to telephone the hotel and then their accountant. Suddenly she heard banging on the car and shouts of "hey, hey, hey, hold up". She noted that the complainant put the car in park "and then it happened"; the defendants and a third man shouted "get out of car you fat fucker….you piece of garbage….and other vulgar name calling". Ms. Poulin tearfully described how the complainant was pulled from the car as she tried to hold him back and added, "I knew they were going to hurt him, it was obvious because of their anger". After the complainant was "dragged out to the back of car, they hit him with something on the back of his head". Ms. Poulin later saw "a small block of wood, the size of a small Kleenex box" on the ground near the complainant as "they were kicking him in the face". She had exited the motor vehicle and "was trying to get Mario [Rego] off him. The complainant was on the ground "in the fetal position" with the defendants standing around him. Ms. Poulin heard Paolo Rego shout "kick him harder, the son of a bitch, you stole from my daughter". He also said to her, "you're next". Ms. Poulin screamed for help. She elbowed Mario Rego and he hit her back. The assailants left and she helped the complainant get up before calling 911.

[12] Ms. Poulin testified that a police officer arrived after the paramedics but he left saying the complainant was too incoherent to be interviewed and promising to return. She confirmed the complainant refused to go to the hospital so as to await the officer and signed a waiver to this effect. When it appeared he would not return, the parties made their way to the hospital.

[13] According to Ms. Poulin, the officer met them at the hospital to report he had spoken to the defendants and decided not to arrest them as he accepted their statement that they had defended themselves from the complainant wielding a stick. Ms. Poulin objected by saying "you haven't spoken to us and he's 62 and was dragged out of car". She testified that, "I was angry and what happened was wrong and I was there and he is getting his head x-rayed and I expressed this anger to the officer, I was upset and crying". The witness confirmed that their later complaints at a police station were not acted upon and they had a private Information laid. Ms. Poulin testified that the complainant did not have or use a stick of any kind. She took photographs of the complainant's injuries while at the hospital. They depict bodily harm; there are marks on the back of his head and nose, a black eye, and bruises to his knee and inner thigh.

Police Officer's Testimony

[14] PC Fyfe was called by the Crown, at the request of the Defence, for the purpose of cross-examination. He responded to the 911 call placed by Paolo Rego's employee. It was reported that the complainant had attacked the defendants with a stick and they reacted in self-defence. When he arrived at the front of the hotel he saw the paramedics attending to the complainant. He confirmed that it was dark. He spoke to him and Ms. Poulin for couple of minutes but was unable to obtain any meaningful information from the former because he was agitated and upset. He testified that Ms. Poulin was relatively calm. She reported that they were making inquiries about all lights being shut off at the hotel when they were attacked by three men, including the two defendants. The officer went inside the hotel to speak to the defendants and met the complainant again at about 1 AM at the hospital. He advised that believed he had two options; charge all parties or nobody. He elected to do the latter.

[15] PC Fyfe acknowledged that he did not search for evidence of a stick at the hotel or in the complainant's car. He was told by Mario Rego that the stick used by the complainant was four feet in length with carvings on it. That was the extent of his investigation about the weapon. At 3 AM the complainant and Ms. Poulin presented themselves at the Welland Police Station. They were angry about his decision. The officer said he attempted unsuccessfully to explain it and eventually, the parties were told to leave by the S/Sgt in charge.

Defence Evidence - Mario Rego

[16] Mario Rego testified that he saw the defendant arrive by motor vehicle about 10 PM. He agreed there was no lighting in the parking lot but added that there was some artificial lighting in the hotel. When pressed on this point, he conceded that this lighting was in the lobby and that it was dark in the area of the confrontation outside. Mario Rego had gone to that area to smoke a cigarette. The altercation began after "they drove by and Amanda [Poulin] was laughing at me and both calling me an idiot". He told them to get out and followed the car as it proceeded in front of the hotel.

[17] Mario Rego is 6 feet tall and 220 lbs. He agreed that the complainant was "not the picture of health" but did not know about his medical issues. He denied using "bad language" and insisted he was upset but not angry. When challenged about this he agreed he might have said "get the fuck out of here" and may have used other derogatory language. He said that the refusal of the parties to leave did not make him more upset. At this point, his brother came outside. Mario Rego testified there was not a third person, as alleged. He testified that the complainant stopped his car, "jumped out in anger" and attacked them with a walking stick. He described it as four feet in length with carvings on it. He resisted the suggestion that it would not be possible to quickly exit a car with a stick that size and said that he was struck in the left ear. He added that, "I half blocked it with arm" and gave the complainant "a couple of quick punches to the face", causing him to fall to the ground. He cannot say what happened with the stick or where it might have gone afterwards. He said that all this happened rapidly, that his brother did nothing, and he could not understand why the latter was charged.

Defence Evidence - Paolo Rego

[9] Defence counsel produced an agreement of purchase and sale for the Welland Inn dated November 17, 2016 by which the defendant sold his 45% interest to Kubinda Sahota for $125,000, as follows: three payments of $25,000 on November 17, 2016, December 16, 2016 and January 16, 2017 and a final payment of $50,000 on February 1, 2017. The agreement does not provide for a closing date but states that "the date of ownership of the shares is the date of the first payment". Attached to the agreement filed in evidence by the Defence is a cheque in the amount of $50,000 to the defendant from a law firm. It is dated March 31, 2017. With this somewhat confusing state of affairs, counsel confronted the defendant with the suggestion that on the day of the alleged assault, the hotel had already been sold and his presence was not for the purpose of checking on the property but to "pick a fight". The defendant denied this and asserted the sale had not been completed. He also rejected the suggestion that he had threatened the complainants and attacked them with a "carved walking stick".

[18] Paolo Rego testified that at the time of this incident, the complainant was no longer a co-owner of the Welland Inn. He insisted that there were lights on inside the hotel. This is his version of events: He received a telephone call from a tenant in the building to report that the complainant was in the parking lot demanding to talk to him and making derogatory remarks. He went outside and saw the complainant in his car. The later called him a "pork chop", an insulting term for Portuguese people. Paolo Rego responded, "if you want to talk to me come inside the hotel, there is no reason for you to be here". The complainant exited the motor vehicle carrying a stick. Paolo Rego said, " I know the stick because I am familiar with it…it is from his office…he calls it a beating stick …he ran to my brother and hit him with it and Mario to defend himself punched him to the ground…the stick fell from his hands…I clearly saw that stick". Paolo Rego called on his brother to come inside and called the police to report an assault by a person "who had no business being here". He cannot say what happened to the walking stick.

[19] In cross-examination, the Crown asked Paolo Rego if he had personally spoken to the 911 dispatcher. The defendant said, yes. The question was repeated and the answer confirmed. Following this exchange, the 911 call was played to the witness. It reveals that one man is talking to the dispatcher with directions from another man in the background. The report lasts for about five minutes with the caller providing details of an assault by the man with a stick. Paolo Rego acknowledged that he is the man in the background. He explained that the actual call was made by his employee, "Ben", and that his previous answers that he personally made it is correct because "we were making the call together".

[20] During cross-examination, Paolo Rego said his brother "is a good guy…we are not the criminals…those people sitting there [pointing to the complainant and Ms. Poulin] are the criminals…you wouldn't believe what we have gone through". The defendant made reference to a prior threat to him, by the complainant, through a third party and alluded to a previous incident in which the complainant took financial advantage of a nearby restaurateur.

Analysis

Legal Standard

[21] The Crown must prove its case beyond a reasonable doubt. If the Defence calls evidence there must be an acquittal if the testimony is believed or the testimony is not believed, but nevertheless raises reasonable doubt. An acquittal will follow even if the Defence evidence is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3D) 397 (S.C.C.). The proper approach to the burden of proof is to consider all the evidence. This also means that any Defence evidence is not to be viewed in isolation.

Consent Fight and Self-Defence

[22] The Defence submits that there should be an acquittal because it was a consent fight or the defendants were acting in self defence. I do not accept this submission.

[23] It is not in dispute that the complainant suddenly stopped a motor vehicle he was driving in the parking lot of the hotel. The Defence says he did so just before getting out to attack the defendants with a stick. The Crown claims it was in response to the defendants banging on his car just before he was pulled out of it and beaten. On either version, it could not be a consent fight. Moreover, this is not a case in which one side or other is mistaken. Somebody is not telling the truth; the complainant is either the victim or the aggressor.

Credibility Assessment

[24] In my view nothing turns on the confusing evidence about whether, at the time of this incident, the hotel sale had been finalized. Assuming that the complainant is correct in asserting that it had not been completed, it is not clear to me why he needed to check up on it. That he did so more likely reflects historical tensions with Paolo Rego, not the state of the property. In any event, it is obvious that he was not welcome there by the defendants. It may be that during the events that quickly transpired the complainant made derogatory remarks about the Portuguese, but such insults would not justify the assault described by him and Ms. Poulin. In this regard, their testimony was clear, coherent, and not undermined. Indeed, the latter witness was not challenged at all. With respect to the former witness, the suggestion that the complainant went to the hotel to "pick a fight" does not make sense, having regard to all the evidence.

[25] I find as a fact that the confrontation occurred in an isolated area of the parking lot in which it was difficult to see, as would be expected at 10 PM in mid-November in the absence of artificial lighting. Ms. Poulin described it as "pitch black". The complainant said it was dark. This is confirmed by PC Fyfe and Mario Rego. This finding is significant. Why would the complainant choose this setting, in the presence of his spouse, to attack the defendants? Why do so when he was sick and outnumbered? If he is the aggressor, why go to such lengths to have charges laid against the defendants, including a complaint about the failings of an officer and attendance on a justice of the peace to lay a private Information? These questions help show why I reject the challenge to the complainant. In this regard, the complainant's concern about the police investigation is reasonable. The officer did not interview him or search the scene for any weapons. Finally, I note that the photographs of injuries to the complainant are consistent with his account, and that of Ms. Poulin, about what transpired. There is no reason to doubt the narrative provided by the complainant and Ms. Poulin.

Self-Defence Analysis

[26] I accept that the evidence called by the Crown otherwise meets the criminal law standard of proof. This does not end the inquiry. The Defence evidence if believed or if it raises a doubt means the charges must be dismissed. Moreover, if there is an air of reality to the claim of self defence, the Crown must disprove it beyond a reasonable doubt.

[27] I reject the Defence version of events and find there is no air of reality to the assertion of self defence. The testimony by the defendants is internally inconsistent and externally inconsistent with other evidence. Mario Rego testified that he was taunted by the complainant and told them to "get the fuck out" and that his brother did nothing. Paolo Rego said he invited them inside to settle matters and admits engaging with the complainant, albeit denying physical contact. Both men claim the complainant jumped out of his vehicle and quickly a struck Mario Rego with a weapon. The place where the confrontation occurred is, again, significant. Why would Mario Rego exit the hotel and leave what may have been dimly lit front lobby doors to walk to an area of darkness to smoke his cigarette? In any event, how, in this setting, could he and his brother see what kind of stick the complainant jumped out of the car with to strike Mario Rego? Even assuming they could identify it as a "walking stick", how is it possible that they saw carvings on it? These questions help show why I cannot accept the narrative provided by the defendants. I am mindful of the fact that Paolo Rego suggested he knew this stick because he had previously seen it in the complainant's office. That does not mean the complainant had it with him on this night. Be that as it may, Mario Rego made no claim to prior knowledge of the weapon. Finally, I note that there is no evidence before me of any injuries to the arm or head of Mario Rego to support the claim he was struck with a stick.

Conclusion

[28] I conclude that the events unfolded as described by the complainant and Ms. Poulin. In this regard, I find that the 911 call made by Paolo Rego's employee, on his behalf, was simply an attempt to deflect the investigation away from the defendants. That effort almost succeeded.

[29] Both defendants are guilty of assault causing bodily harm, with Paolo Rego primarily encouraging his brother and the third male to strike to Mr. Procopio. Paolo Rego is also guilty of threatening to kill the complainant.

Released: August 9, 2018

Signed: Justice J. De Filippis