Ontario Court of Justice

Citation: R. v. Macciacchera, 2018 ONCJ 743

Date: 2018-10-25

Court File No.: Toronto 17-15009525

Between:

Her Majesty the Queen

— and —

Mr. William Macciacchera

Before: Justice Patrice F. Band

Reasons for Judgment released on: October 25, 2018

Counsel:

Ms. J. Stanton, counsel for the Crown

Ms. S. Kelly & Mr. C. Cawkell, counsel for the defendant Mr. Macciacchera

I. INTRODUCTION

[1] This is a tragic case in which a man lost his 82 year old mother and others lost a beloved sister and family member.

[2] Mr. Macciacchera is in his late 50s or early 60s. It is apparent that he suffers from some form mental disorder. He has lived in a house with his mother, Elsa Paolitto, for decades, if not his entire life.

[3] On October 13, 2017, Mr. Macciacchera's aunt, Annunziata Staniscia, and his mother were standing in the area of the front door of the house. The two women were standing next to each other. Mr. Macciacchera and Ms. Staniscia were arguing and he pushed her out of the house. She fell onto the concrete porch. In the process, she fell into his mother, who fell down a set of concrete stairs leading from the porch to a cement path. Both women were injured. Ms. Paolitto was taken to hospital, where she died a week later.

[4] Mr. Macciacchera was charged with manslaughter in relation to the death of Ms. Paolitto and assault causing bodily harm in relation to Ms. Staniscia.

[5] The trial took place over a number of days in July and September, 2018. The Crown called a number of police witnesses to describe the scene. Ms. Lina Kim, a nurse who happened to be passing by, saw much of the incident. She also administered first aid to Ms. Paolitto. Ms. Annunziata also testified about the incident. Finally, Dr. Kona Williams, a forensic pathologist, testified about her post-mortem examination. After Dr. Williams's testimony, the Crown indicated that a finding of guilt for manslaughter would no longer be sought. Instead, the Crown would seek a finding of guilt for aggravated assault in relation to Ms. Paolitto.

[6] Mr. Macciacchera did not testify or call any additional evidence. Nonetheless, the Crown bears the entire burden of proof in this case beyond a reasonable doubt.

[7] As the parties all agree, the facts in this case are quite simple and largely uncontroversial. The question of Mr. Macciacchera's criminal liability is more difficult. It is made all the more difficult by the fact that Mr. Macciacchera's situation calls for great sympathy. In that vein, I would like to commend all counsel and the officer-in-charge for the compassion they showed Mr. Macciacchera throughout the trial.

[8] A summary of the facts will help to put the legal issues in context.

II. SUMMARY OF THE FACTS

[9] Mr. Macciacchera and his mother lived in typical house in Little Italy. The front door opens onto a small, raised concrete porch. The surface of the porch lies three to four inches below the threshold of the door and the entrance to the house. The distance from the threshold of the door to the edge of the porch is just over five feet. Directly in front of the door are three concrete stairs that lead down to a concrete path that spans the depth of the front yard.

[10] A metal fence runs along the front edge of the porch from the adjoining neighbour's house to the concrete stairs, where it joins a vertical piece of similar metal that goes from the surface of the porch to the overhanging roof. There are also metal railings on either side of the stairs.

[11] Ms. Paolitto was 82 years old and in poor health. She was 5'3" and weighed 180 lbs. Ms. Staniscia is in her late 60s or early 70s, is taller than her sister and has a sturdy build. Mr. Macciacchera is taller than his aunt and mother, and has a stalky build.

[12] According to Ms. Staniscia, Mr. Macciacchera suffers from a number of mental disorders including schizophrenia, depression and paranoia. He does not take medication and has not left the house for at least 12 years. Ms. Staniscia's relationship with Mr. Macciacchera was distant; conversation with him was difficult if not impossible. She believed that he needed help, and had been saying so to Ms. Paolitto for years.

[13] Every couple of weeks, Ms. Staniscia came over to see Ms. Paolitto and bring groceries. Usually, she would take Ms. Paolitto out shopping, for coffee or for a meal. The visits always took place outside the home.

[14] On October 13, the plan was for the two sisters to go out for the afternoon. Ms. Staniscia arrived with groceries in the early afternoon. She went downstairs to the kitchen to put them away. She heard her sister tell Mr. Macciacchera not to go downstairs. He came down minutes later, and stood near the bottom of the stairs. By doing so, he was blocking Ms. Staniscia's way back up. It was clear that Mr. Macciacchera did not want his mother to leave. Ms. Staniscia wanted to go upstairs to leave with her sister. She was becoming increasingly angry as a result of Mr. Macciacchera's behaviour that day and years of frustration about the situation. She told Mr. Macciacchera in a commanding way that he needed to go get help from a doctor. She knew she was "pushing his buttons." Mr. Macciacchera threw a plate in her direction. It missed her head and smashed against the backsplash of the sink behind her. In response, she threw a full pop can at him. It missed and landed on the ground at the bottom of the stairs. He picked it up and went to the laundry room. This gave her the opportunity to run upstairs.

[15] Mr. Macciacchera came up behind her and the argument continued. She continued to tell him that he should go see a doctor. Ms. Paolitto went to the front door and opened it. She also opened the exterior screen door, and held it open with her foot. She was half inside and half outside the door, and very quietly said "let's go, let's go" to Ms. Staniscia. Mr. Macciacchera told his mother to go to her room and stay there. Ms. Staniscia argued back to him that her sister was not in jail and could do what she wanted. Mr. Macciacchera was also asking for his money. Ms. Staniscia told him he could go to the bank. She also said she could take him to the doctor.

[16] By this point, all three of them were at the front door: Ms. Paolitto was standing in the door frame or just outside the door, perpendicular to the plane of the door, still propping the screen door open with one foot. Ms. Staniscia was standing just inside the house, shoulder to shoulder and arm-in-arm with Ms. Paolitto, facing and arguing with Mr. Macciacchera. Mr. Macciacchera was standing inside the house, facing outward. He told Ms. Staniscia to "get out" and pushed her with both hands in the area of her upper chest or front shoulders, as she described it. The force was not enough to send Ms. Staniscia down the concrete steps. It was enough to push her out of the house, beyond the threshold. It propelled her body into Ms. Paolitto's. As she put it, she fell into Ms. Paolitto, but not on top of her. Ms. Staniscia ultimately fell onto the surface of the concrete porch, near the edge. Sadly, Ms. Paolitto fell down the concrete stairs to the concrete path.

[17] Mr. Macciacchera closed the door immediately after pushing his aunt and was not seen again until after police arrived.

[18] Ms. Staniscia sustained bruising to her chest and thigh. She had scratches on her chest and left arm. She had small injuries on the side of her nose and near her eye, and her eyeglasses were broken.

[19] Ms. Paolitto suffered significant bruising to her face, arms, abdomen, back, buttocks and legs. She also sustained a gash on the back of her head. Her skull was not fractured and she did not suffer a traumatic brain injury. She died in hospital several days later as a result of a combination of factors. Dr. Williams's observations were insufficient to establish the requisite degree of causation to prove manslaughter.

III. THE SUBMISSIONS OF THE PARTIES AND THE ISSUES

[20] The Information alleges that Mr. Macciacchera did unlawfully cause the death of Elsa Paolitto and thereby commit the offence of manslaughter, contrary to section 236 of the Criminal Code of Canada. It also alleges that Mr. Macciacchera committed the offence of assault causing bodily harm in relation to Ms. Staniscia.

[21] From the beginning of this trial to its end, it has been clear that no one involved in the proceedings – including me – believes that Mr. Macciacchera wanted to harm his mother, much less to cause her death.

[22] That is not what this trial is about.

[23] At the opening of the trial, Crown counsel declared that her theory of liability in relation to Ms. Paolitto's death would likely rest on the common law doctrine of "transferred intent." It should be noted that at that time, Dr. Williams had not yet provided her post-mortem report.

[24] The Defence indicated that it would argue that what happened to Ms. Paolitto was an unforeseeable accident and that the push was either an act of defence of property or part of a consensual fight. As a result, acquittals on both counts would be sought.

[25] I received the parties' submissions in two volleys. First, a short time after the close of the case, when the Crown provided written notes of the evidence, written legal summaries and authorities to complement oral submissions. The Defence argued orally and filed a number of authorities. Then, sometime later, both parties filed written submissions in response to a series of written questions I had provided to them and which form part of the record. I refer to these as the parties' "initial closing submissions" and "final written submissions" for purposes of these reasons.

Initial Closing Submissions

[26] The Crown argued that the proposed defences lacked an air of reality and that the assault causing bodily harm charge involving Ms. Staniscia had been made out beyond a reasonable doubt. The Crown argued that the assault on Ms. Staniscia provided a legitimate foundation for a finding that Mr. Macciacchera should be found guilty of aggravated assault involving Ms. Paolitto on the basis of transferred intent. That is, serious but unintended injuries befell Ms. Paolitto as a result of the intentional and unlawful assault on Ms. Staniscia, and Mr. Macciacchera ought to be found guilty in relation to both.

[27] The Defence argued that the push was not strong enough to allow for the foreseeability of bodily harm in relation to Ms. Staniscia or Ms. Paolitto. The force used was only enough to get Ms. Staniscia out of the house; everything else was unintentional. Moreover, the push was part of a consensual fight as the two of them had been engaged in a heated verbal dispute. Alternatively, the push was justified either because Mr. Macciacchera was defending himself against a perceived threat that Ms. Staniscia intended to take him to hospital against his will or, in the further alternative, because he was defending his home. Finally, and for the same reasons, the Crown's argument based on transferred intent could not be accepted.

[28] In sum, everything beyond a push that was only sufficient to place Ms. Staniscia on the other side of the threshold was an accident and was unforeseeable. In making these arguments, the Defence urged me to take into account all of the circumstances, including Mr. Macciacchera's apparent mental illness. This last point is particularly thorny, and I return to it below.

Final Written Submissions

[29] After considering the parties' arguments and reviewing the authorities they filed, I was left with a number of unanswered questions. I asked for further submissions on a number of issues, including:

• The applicability of the doctrine of transferred intent to the specific facts of this case based on my reading of the authorities, particularly R. v. Deakin, 1974 CanLII 1464 (MB CA), [1974] 3 W.W.R. 435 (M.B.C.A) and R. v. Gordon, 2009 ONCA 179 which, in my view, are difficult to reconcile with each other;
• The availability of more direct and conventional paths to liability for the harm done to Ms. Paolitto that would not require resorting to transferred intent, a "legal fiction" that has been the subject of criticism in this province: see Gordon, supra, at paras. 48, 68, 75 and 77; see also R. v. Irwin, 1998 CanLII 2957 (ON CA), [1998] O.J. No. 627 at para. 6 and fn 1 (C.A.). Specifically, I inquired about assault causing bodily harm and unlawfully causing bodily harm (s. 269 of the Criminal Code, as discussed in R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944); and
• Whether either of those offences are available "lesser and included offences" in light of the way in which the manslaughter count reads.

[30] As a result of all the submissions I have received, the issues in this trial are the following:

A1. Are assault causing bodily harm or aggravated assault lesser and included offences of manslaughter in this case?

A2. Is unlawfully causing bodily harm a lesser and included offence of manslaughter in this case?

B. Was the push on Ms. Staniscia part of a consensual fight?

C. If not, is there an air of reality to the defences of (1) self-defence or (2) defence of property?

D. If not, is the offence of assault causing bodily harm on Ms. Staniscia proved beyond a reasonable doubt?

E. If so, is Mr. Macciacchera guilty of unlawfully causing bodily harm to Ms. Paolitto?

[31] Before proceeding to my analysis of the issues, I must address a number of credibility and factual questions raised by the Defence and the evidence itself.

IV. FINDINGS OF FACT AND CREDIBILITY

[32] Only Ms. Staniscia's credibility was questioned by the Defence. There are also some differences between her evidence and Ms. Kim's concerning the force of the push and the positions of the two women before and after the push.

[33] The Defence submitted that what actually happened in the basement was a "red herring" except to the extent that it raised concerns about Ms. Staniscia's credibility. I agree. I also find that Ms. Staniscia minimized her role in the events that took place in the basement. While she agreed that she threw the pop can, she denied that it was because Mr. Macciacchera had thrown the plate at her and that she was aiming at him when she did so. Rather, she said that she had aimed for the stairs as she wanted to go upstairs. I did not believe her about that. However, I did believe her that she did not throw the pop can hard enough to injure or hurt Mr. Macciacchera. She tossed it, as she demonstrated in court.

[34] Aside from the pop can issue, Ms. Staniscia was a credible witness overall and I believed her. She appeared to be trying to be as fair as possible to Mr. Macciacchera, and much of her evidence was favourable to him. For instance, when asked if he had been aiming the plate at her head, she said "you'd have to ask him." She agreed that she had been "instigating him." She agreed that she had been angry and had been confronting him in a commanding way. She did not want him to be charged for assaulting her unless it meant he would get help. Most importantly, she agreed that while the push caused her to fall down, its force was only enough to get her out of the house onto the porch – not all the way to the stairs.

[35] According to Ms. Kim, the two women were standing shoulder to shoulder and arm-in-arm, with their backs to Mr. Macciacchera and the force of the push caused them both to tumble down the stairs.

[36] Given her detailed account of what happened to her, I accept Ms. Staniscia's version of the push and where it caused her and her sister to land. The Defence urges me to accept Ms. Kim's observation that the two women had been standing arm-in-arm even though Ms. Staniscia did not remember that, and I am prepared to do so.

V. ANALYSIS

A.1 Are aggravated assault or assault causing bodily harm lesser and included offences of manslaughter in this case?

[37] The Crown submitted that assault causing bodily harm is a lesser and included offence of manslaughter in this case, but offered no authority or argument in support of that assertion.

[38] In their final written submissions, the Defence argued that to include any of the other proposed offences would cause injustice and cited relevant case-law. They also argued that this case was, like R. v. Wong, 2006 CanLII 18516 (ON CA), [2006] O.J. No. 2209 (C.A.), "all or nothing."

[39] The starting point to this analysis is R. v. Barton, 1928 CanLII 17 (SCC), [1929] S.C.R. 42 as discussed in R. v. Simpson (No. 2), 1981 CanLII 3284 (ON CA), [1981] O.J. No. 23 (C.A.). In Simpson (No. 2), at para. 37, Martin J.A. wrote:

a count charging manslaughter in the language of the enactment creating it (s. 268) did not, in the absence of a description of the offence in the court specifying the unlawful act relied upon, contain as an included offence an unlawful act which might be disclosed by the evidence, and which was alleged to have caused the death of the deceased, in the event that the jury was not satisfied that the necessary causal connection was established. The reason, it seems to me, is apparent, namely, that the enactment creating the offence of manslaughter does not contain a description of the offence which necessarily includes such unlawful act. Even if the words, "as described in the enactment creating it" in s. 589(1) refer to the enactment creating the offence and the enactment defining the offence, read together, I would nonetheless, be of the opinion that an indictment, charging merely that the accused at a named time and place killed the deceased and thereby committed manslaughter, does not contain as included offences and of the many unlawful acts which, if they cause death, constitute manslaughter. This is because the enactment creating the offence as to necessarily include it, even when the enactment creating the offence and the enactment defining it are read together. Unless particulars are furnished, the accused would not know the unlawful act he had to meet until the close of the Crown's case.

[40] In this case, reference to the "enactment" cited in the Information is of no assistance, since what is cited – s. 236 – is the punishment section. Also, to my knowledge, particulars were neither sought nor offered.

[41] On their face, Barton and Simpson (No. 2) appear to be categorical: unless particularized, a manslaughter count like the one before me does not include other offences. However, it is difficult to ignore the fact that both cases were decided before the Charter came into force and before the age of full disclosure. This might explain why Simpson (No. 2) was not treated as an iron-clad rule in R. v. Spence, 2010 ONSC 5919. Rather, in that case, the trial judge treated the question as one that turned on notice and fairness. Her Honour referred to R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371. In G.R., the principles set out at paras. 25-27 include the following:

• An offence is "included" if its elements are embraced in the offence charged or it is expressly stated to be an included offence in the Criminal Code itself.
• It must "necessarily" be included. What is not "necessarily included" is excluded.
• The test is strict and is linked to the requirement of fair notice of legal jeopardy.

[42] I note also that Her Honour felt that it was fair to amend the Indictment pursuant to s. 601 of the Criminal Code because, based on the admissions and the facts, the accused had been on notice.

[43] Manslaughter can be committed in various ways, not all of which necessarily involve an assault. Applying the principles set out in G.R., I find that assault causing bodily harm and aggravated assault are not included in the offence of manslaughter for purposes of this trial.

[44] Even if my interpretation of the authorities is wrong, I find that it would be unfair in this case to hold otherwise.

[45] The Crown's theory rests upon the doctrine of transferred intent.

[46] Based upon my review of the law, that doctrine is both inconsistent in its application and the subject of criticism in this province. It is difficult to apply in a principled and sufficiently circumscribed fashion to allegations like those before this court. Unless special care is taken to ensure that the actus reus relates to the actual/unintended victim, as I believe paras. 68-71 of Gordon, supra, require, the doctrine runs the risk of leading one to focus exclusively on harm. In some cases, that could lead to unfairness. I believe that Deakin, supra, can be read as doing so. To the extent that it does, it conflicts with Gordon and is unpersuasive.

[47] Even if the doctrine is technically available in this case, I would find that is unnecessary and unduly complicated. That is because, in my opinion, the single application of force, pushing Ms. Staniscia, necessarily entailed the direct or indirect application of force to Ms. Paolitto. It would be artificial to say that a bowler intending to hit a strike only intends to hit the head pin and that the impact on the other pins was only intended by transfer. The Crown's argument is similarly artificial in this case.

[48] However, from the outset of the trial and through their "initial closing submissions," Crown Counsel rejected the proposition that Mr. Macciacchera assaulted his mother directly or indirectly. It was not until I repeated this line of inquiry in my written questions that the Crown acknowledged that the incident could be described as an indirect application of force to Ms. Paolitto and that the actus reus relating to both women was one and the same.[^1]

[49] In these circumstances, and in the absence of any admission that Mr. Macciacchera committed in any unlawful act, I cannot find that he was on reasonable notice of jeopardy in relation to the offence of assault causing bodily harm (or aggravated assault) regarding Ms. Paolitto.

[50] I note that I was not asked to amend the Information to conform to the evidence in this regard. The Crown has had two opportunities to make submissions and has not made such a request. Had it been made, I would not have granted it for the reasons I have just explained.

A2. Is unlawfully causing bodily harm a lesser and included offence of manslaughter in this case?

[51] While manslaughter can be committed in various ways, it cannot be committed without an unlawful act in combination with a reasonably foreseeable risk of bodily harm that is neither trivial nor transitory. In my view, the offence of unlawfully causing bodily harm pursuant to s. 269 of the Criminal Code is necessarily a lesser and included offence in this case.[^2]

[52] What is more, there is no unfairness or injustice in making such a finding in this case. First and most importantly, from the outset, Mr. Macciacchera has been on notice that, according to the Crown, what happened to his mother was the result of what he did to Ms. Staniscia: namely, pushing her. That act was explicitly alleged to have been unlawful and is included as a separate offence on the Information. The principles set out in R. v Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, which overlap with the offence of unlawfully causing bodily harm, were applicable to this case from the outset.

[53] The thrust of the Defence's approach to the evidence was to challenge Ms. Staniscia's version of events, to raise concerns about the foreseeability of harm to both women and to assert defences for that conduct or otherwise argue that it was not unlawful. While I accept that neither party had received the post-mortem report until mid-trial and that, therefore, the ultimate cause of death remained an open question, both parties wanted to proceed in its absence and it was evident that both women had been harmed by their falls.

[54] Importantly, in their "initial closing submissions," the Defence raised no concerns as to the very notion that the manslaughter count on the Information exposed Mr. Macciacchera to jeopardy for what happened to Ms. Paolitto short of causing her death. It was not until I inquired about included offences that these arguments were made.

[55] Moreover, I reject the Defence argument that the allegation involving Ms. Paolitto was "all or nothing." It cannot be said that the Defence's approach to the case regarding Ms. Paolitto was so binary or that it was limited to the issue of the cause of her death. If it had been, one would not have expected the Defence to willingly proceed without the post-mortem report.

[56] On these facts, the conclusion that Mr. Macciacchera was on notice of his potential jeopardy for unlawfully causing bodily harm to Ms. Paolitto causes no unfairness or injustice.

B. Was the push on Ms. Staniscia part of a consensual fight?

[57] I reject without reservation the argument that Mr. Macciacchera and Ms. Staniscia were involved in a consensual physical altercation. First, at its highest, the evidence shows that Ms. Staniscia was berating him and that they were both raising their voices. Second, as the Defence has rightly submitted, what happened in the basement was a "red herring." No one who is being verbally berated by another in the way that has been described in this case can reasonably believe that the other is consenting to the application of anything beyond trivial physical force. The Crown has proved lack of consent beyond a reasonable doubt.

C. Is there an air of reality to (1) self-defence or (2) defence of property?

(1) Self-defence

[58] Ms. Staniscia told Mr. Macciacchera that he should go the doctor; she also told him that she could take him. She said so in a commanding or affirmative way. Given Mr. Macciacchera's apparent mental illness, which included the fact that he had not left the house in years, she acknowledged that he could have taken what she said as meaning that he did not have an option. In reexamination, she explained that she had made suggestions and that she did not know how he took them. I accept that further explanation as it makes sense.

[59] The Defence argued that it is implicit that Mr. Macciacchera would not have gone to the doctor willingly and that force would have been necessary to make him do so. Therefore, by putting it to him in a commanding tone, Ms. Staniscia threatened such a use of force. Mr. Macciacchera's response – to push Ms. Staniscia out of the house – was done for the purpose of protecting himself and was reasonable in all the circumstances.

[60] Section 34(1) of the Criminal Code states that a person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them … or that a threat of force is being made against them …;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves…; and

(c) the act committed is reasonable in the circumstances.

[61] In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, the Supreme Court of Canada provided an analytical framework regarding the availability of the defence. Each of the elements has an objective and subjective component. For a self-defence to have an air of reality, there must be evidence as to every element of the defence. The question is whether, "if the jury were to accept the construction of the evidence most favourable to the accused's position, the requisite inferences could reasonably be drawn." Put another way, "if a jury could not reasonably come to the conclusion that the accused's perceptions were reasonable," then the defence should not be put to the jury. (See in particular paras. 93-98; see also R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3.)

[62] The central question is whether there is an air of reality to the first element of the defence: whether Mr. Macciacchera reasonably believed that a threat of force was being made against him. To answer this question, I am required to take the evidence at its highest and ask myself if a reasonable and properly instructed jury could acquit Mr. Macciacchera if it accepted that evidence as true.

[63] The evidence relating to Mr. Macciacchera's state of mental health is fundamental to the Defence's argument. It is here that the Defence breaks down.

[64] First, Ms. Staniscia's evidence that Mr. Macciacchera suffers from mental disorders is hearsay. I flagged this concern for the parties during the cross-examination of Ms. Staniscia.[^3] Second, even if it is not inadmissible hearsay, it is nothing more than a lay person stating a number of bald diagnoses from which a jury would not be permitted to draw any of the inferences sought. Diseases like schizophrenia are not monolithic and resort should not be had to stereotypes. Third, if her evidence that Mr. Macciacchera had not left the house in 12 years is not hearsay, it too is a bald assertion that she was not in a position to make. She only came over every couple of weeks.

[65] Even if I were to accept Ms. Staniscia's evidence concerning Mr. Macciacchera's mental health and find, as a fact, that he perceived her to be threatening him, s. 34(1)(a) requires that his perception be objectively reasonable. In this case, it was not. The fact that a mentally disordered person's honestly held perception is consistent with his or her putative beliefs or fears does not make it objectively reasonable. A jury could not find that it was without collapsing the objective criterion into the subjective one.

[66] Based on the evidence before me, the argument runs the risk of inviting me to circumvent s. 16 of the Criminal Code.

(2) Defence of property

[67] The Defence argues that Mr. Macciacchera was justified in pushing Ms. Staniscia out of the house because he had told her to "get out" and also because Ms. Paolitto had very quietly told her sister "let's go, let's go."

[68] Section 35 of the Criminal Code states that a person is not guilty of an offence if:

(a) they either believe on reasonable grounds that they are in peaceable possession of property …;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

[69] I have no difficulty finding that Mr. Macciacchera had been in peaceable possession of the home together with his mother for years leading up to the incident. However, Mr. Macciacchera could not have reasonably believed that he was entitled to forcibly remove Ms. Staniscia after telling her to "get out." She was his mother's guest as she had been many times before.

[70] Likewise, assuming that he heard it, Mr. Macciacchera could not have reasonably believed that, by saying "let's go, let's go" to Ms. Staniscia, Ms. Paolitto was in effect telling her that she was no longer welcome. No reasonable and properly instructed jury could acquit Mr. Macciacchera on this basis.

[71] Both proposed defences lack an air of reality in this case.

D. Is assault causing bodily harm on Ms. Staniscia proved beyond a reasonable doubt?

[72] The actus reus of assault causing bodily harm is the intentional application of force on another person without their consent resulting in bodily harm. The mens rea adds the requirement that the risk of bodily harm was an objectively foreseeable consequence of the accused's conduct: see R. v. Nurse (1993), 83 C.C.C. (3d) (C.A.).

[73] The Crown's case has proved beyond a reasonable doubt that Mr. Macciacchera intentionally applied force to Ms. Staniscia by pushing her out of the house and that she suffered bodily harm in the form of bruising and scratches.

[74] I also find that the Crown has proved beyond a reasonable doubt the mens rea of assault bodily harm involving Ms. Staniscia. Ms. Staniscia is a woman in her late 60s or early 70s. She was looking at him as they were arguing. Mr. Macciacchera pushed her in the upper chest with both hands off a three to four inch ledge, onto a concrete porch that is five feet wide and bordered by metal fencing. In doing so, he pushed her into her sister, who was standing beside her. In those tight conditions, the risk of bodily harm was objectively foreseeable to someone in Mr. Macciacchera's circumstances. That Ms. Staniscia acknowledged losing her balance does not change my conclusion.

[75] The Defence argued, by analogy to sentencing hearings, that the mens rea for assault causing bodily harm should be diminished in Mr. Macciacchera's case because of his mental illness. There is no authority for this type of "diminished capacity" argument in Canadian criminal law and I reject it. Again, it appears to be an invitation to circumvent the strictures of s. 16 of the Criminal Code.

[76] The Defence also argued that, because Mr. Macciacchera had not been out of the house in 12 years, I should have a reasonable doubt that he was aware of the ledge at the front door. This argument does not raise a reasonable doubt in my mind. The door had been open prior to and during the argument in broad daylight. Also, Ms. Staniscia testified that he had lived in or frequented that home since his birth.

[77] Finally, the Defence argued that it is possible that Ms. Paolitto contributed to Ms. Staniscia's instability and fall by pulling her down because the two had been arm-in-arm. This would also explain at least some of the scratch marks Ms. Staniscia suffered. Even if Ms. Staniscia had not denied that her sister pulled her down or contributed to her fall, the argument would not raise a reasonable doubt in my mind. The Crown does not have to prove that the exact mechanism by which injuries were sustained was foreseeable: see DeSousa, supra, at para. 33.

E. Is Mr. Macciacchera guilty of unlawfully causing bodily harm to Ms. Paolitto?

[78] In DeSousa, supra, at paras. 19-28, the Supreme Court of Canada described the offence of unlawfully causing bodily harm. The actus reus is the act of committing the underlying unlawful offence and causing bodily harm. The mental element of the offence has two parts. First, the mens rea for the underlying offence must be proved. Second, the unlawful act must be "objectively dangerous" in the sense that the act is "one that is likely to subject another person to danger of harm or injury" that is more than merely trivial or transitory in nature. It will "in most cases involve an act of violence done deliberately to another person."

[79] As the Court noted at para. 33, there is "no constitutional requirement that intention, either on an objective or subjective basis, extend to the consequences of unlawful acts in general."

[80] The proved offence of assault causing bodily harm against Ms. Staniscia constitutes the underlying unlawful act that caused Ms. Paolitto to suffer bodily harm. It was an objectively dangerous act that was likely to subject Ms. Paolitto to the risk of harm or injury. In this case, there was a very tight causal nexus between the push and the bodily harm both women sustained.

[81] Therefore, this offence has also been proved beyond a reasonable doubt in this case.

VI. CONCLUSION

[82] As a result, I find Mr. Macciacchera guilty of assault causing bodily harm in relation to Ms. Staniscia and unlawfully causing bodily harm to Ms. Paolitto.

Released: October 25, 2018

Justice Patrice F. Band

[^1]: In their response, Crown Counsel argued that the actus reus is not "used up" simply because the intended victim was also harmed. For that proposition, they relied (wrongly, in my view) on The People v. Bland, 28 Cal. 4th 313 at pp. 322-323 (Sup. Ct. 2002). In that case, the accused shot and killed one person and injured others in the process. The Court held that intention is not "used up" once it is employed to convict a person of murdering the intended target. In any event, in my view, where the actus reus in relation to the intended and unintended victims is one and the same, it makes no sense to suggest that it is "used up" by a conviction regarding one of them.

[^2]: It may also be of interest that the offence of unlawfully causing bodily harm was not enacted until the 1950s, well after the Court of Appeal's decision in Barton, supra: see Criminal Code, 1953-54, c. 51, section 231(2).

[^3]: For the discussion that followed, see Transcript of Proceedings, July 3, 2018, at pp. 47-48.