Court File and Parties
Ontario Court of Justice
Date: 2018-08-22
Court File No.: Niagara Region 998 17 N1036
Between:
Her Majesty the Queen
— and —
Gabriel Lupia
Before: Justice J. De Filippis
Heard on: May 2-3, 10, 28 & July 31, 2018
Reasons for Judgment released on: August 22, 2018
Counsel:
- Mr. G. Smith, counsel for the Crown
- Mr. R. Charlebois, for the defendant
Judgment
De Filippis, J.:
Introduction
[1] The defendant had a trial with respect to two charges; assault causing bodily harm to Cody Fisher and aggravated assault with respect to Stephanie Jennex. The allegations arise as a result of events that occurred on February 22, 2017 at the City of Niagara Falls. I heard testimony from six witnesses called by the Crown and another four by the Defence. These reasons explain why I dismiss the charges.
Evidence
[2] The following facts are not in dispute: On the evening of February 21, Jonathan Green invited several friends to celebrate the birthday of Mr. Fisher at the Bull Market in Niagara Falls. By 10:30 PM, these two men had been joined by Tony Montana, Ms. Jennex, Vaughan McMillan and Tanisha Burch. Around midnight, after several drinks at this bar, the group went to Jack's Cantina and stayed there until the bar closed at 2 AM. The defendant and a group of his friends had also recently arrived at Jack's Cantina. After closing time, there was an altercation involving numerous individuals in the parking lot of the bar. The ten witnesses were present for and/or participated in this confrontation. All are young people in their early twenties. Several were drunk. The dispute began because Mr. Fisher, one of the complainants was aggressive towards another man, Danny Ledwez. The latter initially backed away but eventually engaged in mutual shoving with Mr. Fisher. Two groups immediately confronted each other; one that included the two complainants and the other, including the defendant, that supported Mr. Ledwez. During the events that quickly unfolded, somebody punched Mr. Fisher, causing him to fall face first onto the ground. He suffered injuries that amount to bodily harm. As several people from the two groups fought with each other, the second complainant, Ms. Jennex ran to assist Mr. Cody. After doing so, she was struck by the defendant. Leaving aside the question of liability, the resulting injuries to her meet the definition of aggravated assault.
[3] The issues in this trial are these: Did the defendant punch Mr. Fisher? Does the defendant's act in striking Ms. Jennex amount to an assault or self-defence? With respect to the latter, the law is not in dispute; this case turns on the facts.
Crown's Evidence
[4] According to Mr. Green, he saw the following: As his group of friends made their way to the parking lot, Mr. Fisher was yelling at an unknown man who was part of a group of about eight people. Suddenly, one of them suddenly "sucker punched" Mr. Fisher. He was hit in the side of the jaw and "knocked unconscious". Mr. Montana retaliated by "throwing a punch" at someone in the other group. Mr. McMillan approached "with hands in the air" and asked everyone to calm down. He was "hit a couple of times and backed away". Ms. Jennex and Ms. Burch were on the ground assisting Mr. Cody. Ms. Jennex turned him over to reveal a face that was "very cut up".
[5] Mr. Green called 911 for an ambulance and then intervened in support of his friends. He was assaulted and backed away. He testified that he heard Ms. Jennex scream and saw her holding the side of her head. Mr. Montana shouted, "Who hit my girlfriend" and a man replied, "I did, what are you going to do about it?"
[6] Mr. Green described his level of intoxication as "four out of ten" and conceded that he "didn't have a full grasp of what was going on". He added that he cannot identify the person(s) who struck the two complainants.
[7] Mr. McMillan added the following observations: He left Jack's Cantina at closing time with Ms. Jennex. When they reached the parking lot, he heard his friend, Mr. Fisher, arguing with a man wearing a white baseball cap. All of a sudden a crowd of eight to ten people formed at this scene. Mr. Fisher kept yelling and "a fist came out from the crowd" and hit him. A person stepped out of the crowd and punched Mr. Fisher again and the latter fell to the ground. Mr. Montana intervened to assist Mr. Fisher and was struck by one or more persons.
[8] Mr. McMillan testified that he approached the crowd with "hands up and hands extended and said 'stop, he's knocked out' and they turned and started punching me". He quickly lost his glasses and was repeatedly punched and kicked. He heard somebody say "have mercy, he's had enough" and the beating stopped.
[9] Mr. McMillan said he had consumed about 10 drinks during the evening and "was a little bit drunk". He cannot identify the defendant "as being involved in any of this".
[10] Mr. Montana lives with Ms. Jennex in the home of his mother. He testified as follows: He left the bar with Ms. Jennex at closing time and saw Mr. Fisher arguing with a man, known to him, as Danny Ledwez, at the parking lot. Mr. Fisher was upset because the latter had looked at him and said, "What's up". Mr. Fisher took this as a sign of disrespect and pushed Mr. Ledwez. A crowd had formed as the two men argued. A man "in a white hood" punched Mr. Fisher and as he faltered, Mr. Ledwez punched him again, knocking him to the ground. After Mr. McMillan intervened and was struck, Mr. Montana ran to his aid. For these efforts, he was knocked to the ground and kicked in the face. As the fighting ended, he heard Ms. Jennex crying and ran to her. On learning she was injured, he shouted, "who hit my girlfriend" and "the same guy with hood as before who sucker punched Cody [Fisher] said it was him and 'what are you going to do about it'". He identified this man as "Gabe", the defendant. Mr. Montana added that the person who assaulted both complainants had "the same white hood".
[11] When pressed for details of his identification of Mr. Ledwez and the defendant, Mr. Montana explained that after the fight broke up and the two groups separated, he discussed the events with his friends and was provided with these names. He conceded that he was drunk, "seven out of ten, not over the top".
[12] Mr. Montana also testified that one week later, he had a meeting with the defendant's brother, Joshua Lupia, as arranged by a mutual friend, "to discuss what had happened and how to go forward". The three men met in a parking lot. Mr. Joshua Lupia enquired "what it would take to put this matter behind him". Mr. Montana took this to be an offer of a money to settle matters and said he would accept $1,000. He said that Joshua Lupia agreed and insisted that, in return, Ms. Jennex must tell the authorities that she hit the defendant first. Ultimately, nothing came of this meeting.
[13] Mr. Fisher remembers arriving at Jack's Cantina where he "danced and partied". He recalls little else apart from this: "I went outside and somebody got in my face…I don't know the person….I had a lot of alcohol….everything is blurry…we were in each other's face…I got mad and wanted to fight….I pushed him…that's the last thing I remember until I woke up in the ambulance… I'm embarrassed about the whole situation". He testified that his injuries required stitches to the left chin and right forehead and that scars remain.
[14] Ms. Jennex consumed four mixed drinks and one bottle of beer over the four hours she was at the two bars. She confirmed her relationship with Mr. Montana and that she was present in the parking lot when two groups became involved in a confrontation that started because Mr. Fisher was arguing with another man. She tearfully described how she ran to Mr. Fisher after he had been knocked to the ground: "He was face down, I flipped him over, there was blood everywhere, I didn't know if he was alive and behind me is a brawl". She added that after Mr. Fisher opened his eyes, "I told Tanisha [Burch] we had to get away from this situation…as we walked away, the same kid who hit Cody [Fisher] hit me, hit in my right ear…I'm freaking out and screaming…I can't see …my glasses were knocked off". She said this man wore a white hoodie and that he hit her from behind.
[15] Ms. Jennex stated that she was upset at what happened to Mr. Fisher but cannot say if she confronted the defendant about it. When this point was pressed, she replied that she does not know if she was "pounding him on the back" before being struck. She added that Ms. Burch would know as she was with her.
[16] A "bouncer" found the complainant's glasses as the fighting ended and Mr. Montana came to her and saw that she was injured. She testified that "Tony [Montana] goes to group and asked who hit her…"Gabe' said, 'I did'…Tanisha [Burch] knew who it was and that is how I learned it was Gabe [Lupia]". She explained that she is confident the same man hit her and Mr. Fisher but that she did not know his name. That information was provided by Ms. Burch.
[17] Ms. Jennex was taken to the hospital and diagnosed with a concussion, bruising behind the ear, and a hairline rupture to her ear drum. The concussion caused her to experience nausea and dizziness for a week. She could not work during this time and lost income. She testified that her hearing has been affected; some days it is diminished and at other times, she awakes and cannot hear anything at all. She is waiting for an appointment at a hearing clinic.
[18] Ms. Jennex testified that she was not a party to any discussions with Joshua Lupia and was not offered money to "make this go away".
[19] Ms. Burch testified that in the confrontation between Mr. Fisher and another man, she saw "a fist strike Cody and he fell". She was emotional as she described his injuries while he laid on the ground with Ms. Jennex shouting at him to wake up. When Mr. Fisher opened his eyes, Ms. Jennex stood up and was "yelling at everyone to stop…then I saw his face right there and his arm hit her as hard as he could in the temple and she fell to the ground". Mr. Burch pointed to the defendant as the man responsible for this and said that she was standing immediately beside Ms. Jennex at the time. She said she never saw Ms. Jennex hit the defendant or anyone else and that that there was no warning of the assault. She said that she saw her friend yelling and "then Gabe Lupia was there and punched her in the right temple and then he stepped back after she fell to the ground… Tony [Montana] came over and shouted 'who hit my girlfriend' and Gabe said 'yeah it was me'". Ms. Burch noted that in saying this, the defendant, gestured with "his hands in the air". Ms. Burch testified that she did not see who hit Mr. Fisher. She recognizes the defendant as the man who struck Ms. Jennex because she met him several years before this incident in high school.
Defence Evidence
[20] Gabriel Lupia is a student at Brock University and works part time at a steakhouse. He is 6'3" tall, weighs 200 pounds and has been active in soccer, hockey, and boxing. He testified that on February 21, 2017 he and about 10 friends met for drinks at one of their homes. The defendant consumed two bottles of beer. All then went to Jack's Cantina and remained there until closing time. The defendant said he had no alcohol at the bar and was wearing a pink sweater, not a white hoodie. He left the establishment with others. As they walked to the car, he saw Mr. Ledwez walking backward with his hands in the air trying to de-escalate a confrontation. He saw Mr. Fisher, whom he described as "super aggressive" and looking for a fight, push Mr. Ledwez several times. The defendant intervened by asking for calm and pushing Mr. Fisher away. He denies punching him. He testified that he was "roughed up by two or three people, one of whom was Tony Montana".
[21] According to the defendant, the fighting began to dissipate as bouncers came out of the bar into the parking lot. He walked away and was hit many times: "I couldn't see who it was, my head was turned....I turned with an open palm to push the person away and my hand connected with someone…This is when I saw it was a girl…I had no idea it was a girl and had no intention to hit a girl". The defendant now knows the woman in question to be Ms. Jennex. He said she was with "a darker skinned girl [Ms. Burch]". He saw them together after he had hit her. He testified that he had his head turned to the right and that Ms. Jennex came from his left and started to punch him "in the head with a closed fist" and that he "pushed back with open hand and saw her go down". The defendant added that, "After I heard Tony [Montana] say 'who the fuck hit my girlfriend'…I tried to explain why she got hit… Tony runs at me…we scuffle…it breaks up quickly and I left".
[22] Mr. Ledwez was part of the group of ten that accompanied the defendant to Jack's Cantina. He testified that he was the designated driver and sober. He testified that when he went to the parking lot after closing time he saw his friend, Cody Penner, talking to a man he now knows to be Mr. Fisher. As the latter was staring at him, Mr. Ledwez said "hey, what's up". This appeared to enrage Mr. Fisher who pushed him and demanded to know what he meant by those words. Mr. Ledwez said he backed off and was pushed again. He turned and walked back toward the door of the bar and met the defendant. He was followed and taunted by Mr. Fisher, a man he now knows to be Mr. Montana, and a third unknown male. Mr. Ledwez testified that he saw Mr. Montana throw a punch at the defendant as Mr. Fisher clenched his fist toward him. He responded by punching Mr. Fisher and knocking him to the ground. Mr. Ledwez added that the was tackled by an unknown person and fell to the ground, where he was kicked by one or more persons.
[23] Mr. Ledwez testified that after he managed to stand up he saw the defendant "with two guys trying to fight him and a girl run from behind him and punching him on the back three or four times". He added that the defendant "swatted her out of the way to protect himself and she starts crying".
[24] When Mr. Ledwez was asked to demonstrate how the defendant struck the woman, he made a gesture with his arm swinging sideways. In this regard, he rejected the suggestion the defendant punched her. When confronted with the fact that the defendant did not testify that the woman joined two men in attacking him, Mr. Ledwez maintained the men did so.
[25] Noah Dino was part of the defendant's group of friends. He testified that he was sucker punched and knocked down by an unknown person during the confrontation with the group associated with the two complainants. When he stood up, the fighting was ending and he saw the defendant, "getting hit from behind by a girl…he was getting hit in the back and head by a girl". Mr. Dino testified that he saw the defendant's "arm sweep sideways with an open palm". When asked to describe how this was done, he gestured in the same manner as Mr. Ledwez. He added that he did not see if the defendant's hand made contact with the woman. Afterwards, he heard someone shout, "who the fuck hit my girlfriend".
[26] Mr. Penner is a friend of both the defendant and Mr. Fisher. He testified that he was present when Mr. Fisher, Mr. Montana and others were "chirping" and aggressive towards the defendant's group in the parking lot. He saw Mr. Fisher push Mr. Ledwez and saw them both on the ground. He did not see how they fell. He helped Mr. Fisher in getting up. After this fight subsided, he saw a woman hitting the defendant on the back of the head and saw him turn quickly around. He did not see if he hit her but heard the woman scream and hold her ear. Then he heard Mr. Montana should "who hit my girlfriend".
Analysis
[27] 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 and not to view each piece in isolation.
[28] The initial events in question unfolded quickly, at night, and involved numerous people, some of whom became involved in additional fights. Several of the Crown witnesses who testified to these events were drunk. In these circumstances, and for the additional reasons below, even in the absence of defence evidence, I could not conclude, beyond a reasonable doubt, that the defendant caused the bodily harm to Mr. Fisher. However, I would have found him guilty of the assault upon Ms. Jennex were it were not for the doubts cast upon such a conclusion by the Defence evidence.
Charge of Assault Causing Bodily Harm to Mr. Fisher
[29] Mr. Fisher was heavily intoxicated, belligerent, and has little recollection of what happened. Mr. Green and Mr. Mitchell were both moderately intoxicated. Both saw someone punch Mr. Fisher but neither can identify the person. Mr. Green also heard Mr. Jennex scream but cannot shed more light on that incident.
[30] Mr. Montana participated in the confrontation between Mr. Fisher and Mr. Ledwez and saw the former get hit by a man in a white hoodie. Later, when he demanded to know who hit his girlfriend, the identified the same person in the white hoodie claim responsibility. The defendant has admitted he struck Ms. Jennex and admitted this to Mr. Montana at the scene. Quite apart from his denial that he wore a white hoodie, I could not conclude, based on Mr. Montana's testimony alone, that he is also one who punched Mr. Fisher. There are three reasons why it is not safe to rely upon Mr. Montana's evidence: He was drunk, he attempted to obstruct justice, and he may have been influenced in identifying the culprit by a group discussion immediately after the events.
[31] Ms. Jennex, like her boyfriend, Mr. Montana, maintains that the person who punched Mr. Fisher wore a white hoodie. She said that this same man is the one who punched her. Ms. Burch saw the person who hit Ms. Jennex and also claims he wore a white hoodie. She identified him as the defendant. Ms. Burch was sober. She otherwise impressed me as a witness. I also have faith in Ms. Jennex, but her perception is coloured by her consumption of alcohol and her emotional reaction to dealing with the injured Mr. Fisher. As noted, it is clear that these witnesses discussed the identity of the assailant with Mr. Montana and others. I could not be certain that the defendant wore a white hoodie and is therefore linked to the assault on Mr. Fisher. However, there is no controversy about the fact that he struck Ms. Jennex. I turn now to the Defence evidence.
Charge of Aggravated Assault Against Ms. Jennex
[32] The defendant testified that he only had two bottles of beer over several hours. He denied punching Mr. Fisher and claims he was assaulted when he tried to help his friend, Mr. Ledwez. The defendant admits he struck Ms. Jennex but that he did so in self defence, without intention to cause the injuries she suffered. He explained that after Mr. Fisher fell to the ground, he was punched several times from behind and swung his arm sideways against the unknown person. He turned to see it was a woman. The defendant said he tried to explain to Mr. Montana that it was an accident.
[33] In assessing the credibility of the defendant, I am mindful that Mr. Joshua Lupia, and Mr. Montana attempted to obstruct justice by arranging a cash payment to have Ms. Jennex change her testimony. As noted, this reflects badly on the credibility of Mr. Montana. However, in the absence of other evidence on point, the fact that Joshua is his brother is not sufficient for me to make a finding that the defendant was involved. I also note that during the course of the trial, it was reported to me that the defendant's father had been cautioned by the officer in charge of the case for calling one of the Crown witnesses "a rat". This might be viewed as the crime of intimidating a witness. Or, it could simply reflect frustration and anger. In either case it was irresponsible. While I condemn the actions of the defendant's father and brother, I cannot visit their sins upon him.
[34] Mr. Ledwez testified that he was the one who wore the white hoodie and punched Mr. Fisher. He claims that he saw a woman punch the defendant and that he "swatted her…to protect himself". That he is trying too hard to help his friend at this trial is revealed by his demonstration of the sideway swing "with an open palm". Mr. Dino also did so when he provided the same description and demonstration. I am confident that there was nothing gentle about the defendant's actions. However, this bias does not persuade me to reject their support of the defendant's claim that he acted in self defence, without an intent to cause the injuries in question. Moreover, it is supported by a witness I have greater confidence in; Mr. Penner.
[35] Mr. Penner was sober and considers the defendant and Mr. Fisher to be friends. He testified he would not lie for his friend. There is no reason to doubt this. He saw Mr. Ledwez punch Mr. Fisher. He also said that, soon after, Ms. Jennex punched the defendant on the back and head. This shines a different light onto the testimony of Ms. Jennex and Ms. Burch.
[36] Ms. Jennex was shocked by the violence inflicted on Mr. Fisher. She ran to assist him and thought he might be dead. She was relieved to learn otherwise. When asked if she struck the defendant, she replied that she did not know and deferred to the observations of Ms. Burch. It is reasonable to conclude that she did so. Ms. Jennex was hysterical and believed the defendant to responsible for the injuries to her friend. I conclude that she does not remember her reaction. As I also accept the sincerity of Ms. Burch, I find that she did not see what Ms. Jennex did just before the defendant hit her. Looked at this way, the evidence of these two witnesses is not inconsistent with the Defence position. Although both said the defendant punched Ms. Jennex in the side of the head, Ms. Jennex also said "I saw his face right there and his arm hit her as hard as he could in the temple and she fell to the ground". In this scenario, the obvious difference in height between the defendant and complainant would account for where his blow landed and the resulting injuries.
[37] The Crown has not met its burden of proof.
Released: August 22, 2018
Signed: Justice J. De Filippis