Court File and Parties
Ontario Court of Justice
Date: 2020-01-13
Court File No.: Newmarket 19 00067
Between:
Her Majesty the Queen
— and —
Daniel S Boatto
Before: Justice David S. Rose
Heard: November 27, 2019
Reasons for Judgment Released: January 13, 2020
Counsel:
- Mr. P. Hsiung, counsel for the Crown
- Mr. M. Owoh, counsel for the Defendant
Reasons for Judgment
Rose J.:
Facts
[1] Mr. Boatto is charged with assaulting Antonio Foggetti on December 2, 2018. The trial heard three witnesses, the complainant Mr. Foggetti, a witness Ms. Poticca, and Mr. Boatto in his own defence.
[2] Mr. Foggetti testified that he was living in Nobleton in December of 2018 with his wife, and their family. One of his sons is Matteo, and on December 2 Mr. Foggetti was delivering Matteo to a hockey tournament at the Vaughan Sports plex on Rutherford Road. The game was at 9am.
[3] It is clear that both Mr. Foggetti and Mr. Boatto are heavily involved in youth hockey. They both have sons who play, and they both coach. Matteo had played on a team called GT Capitals with Mr. Boatto's son Marcus. When Matteo left GT Capitals for another competing team Mr. Foggetti was of the view that the team physically targeted Matteo, even if it is a no hitting league.
[4] Mr. Foggetti testified that he arrived at the rink at about 8 am on December 2. He and Matteo were let out of the family car by his wife Nadia. Nadia started to drive the car away to go get coffee while Matteo and his father walked from the drop off point on the driveway to the front door of the rink. Mr. Foggetti was holding Matteo's hockey bag over his right shoulder.
[5] Mr. Foggetti testified that as he approached the front door he was ambushed by Mr. Boatto. Mr. Foggetti described Mr. Boatto as tackling him, grabbing him by the upper shoulders. Nothing like this had happened before – there was no animosity that he knew of. Mr. Foggetti did talk about an incident that happened the day before. In that previous incident Mr. Foggetti had been at a hockey game watching his son play. His son was pushed into the boards and Mr. Foggetti, as a spectator, said out loud "Dirty Bastard". It turned out that it was Mr. Boatto's son who pushed Matteo into the boards although Mr. Boatto was not at the game. Mr. Foggetti was of the view that his son was attacked in the previous hockey game, but in his evidence he directed his comment of the moment toward the coach of the opposing team and not a player.
[6] The incident outside the Vaughan Sports plex on December 2 was captured by a surveillance camera which captures the front plaza area. The video shows Mr. Foggetti backing away from the front entrance. The video starts when Mr. Foggetti backs up and drops his son's hockey bag. His back is to Mr. Boatto who follows Mr. Foggetti by a few steps.
[7] According to Mr. Foggetti Mr. Boatto was at this point saying words to the effect that "If you have a fucking problem with my son then you have a problem with me".
[8] The video shows Mr. Boatto reaching out to Mr. Foggetti and shove him with both hands about 20 – 30 feet towards the driveway. Mr. Foggetti grabs ahold of Mr. Boatto as he is pushed backwards. Neither men fall. The shoving action was constant until Mr. Foggetti reached the driveway. Once the two men reach the driveway others get involved. By this point the two are just outside the rear passenger side of a white SUV parked at the curb. The rear hatch of the white SUV is open with the lower lip of the rear hatch about face level. The shoving between Mr. Boatto and Mr. Foggetti moved both men to the rear of the white SUV. Mr. Foggetti hit his head on the rear hatch of the car and cut his head badly. He required several stitches to close the gash.
[9] Various people intervened to separate Mr. Boatto and Mr. Foggetti when they were around the white SUV. In the immediate aftermath Mr. Foggetti can be seen being held back by one of the interveners while he attempts to get back at Mr. Boatto. As Mr. Foggetti testified, by that point he was angry.
[10] Mr. Foggetti denied that he was a hot head, and denied that this incident happened because of the comment he made at his son's hockey game the previous day.
[11] He was cross-examined on the part of the incident which was not captured by the rink video camera. He said that he was grabbed in the upper chest with enough force to push him back before the hockey bag is dropped. The initial grabbing ended when he pulled away just before he dropped the hockey bag. He said that when he saw Mr. Boatto that morning he had no sense that his comment from the previous day would come up. As he put it, the comment at Matteo's hockey game was not directed at Mr. Boatto or his son.
[12] Mr. Foggetti gave a statement to the police about the incident in which he said that when he approached the door of the rink Mr. Boatto got in his face and they backed up. He never mentioned that he was grabbed in the first part of the altercation off camera.
[13] Mr. Foggetti testified that he turned around and dropped the bag to the ground because he was fearful that he was going to get hit. He disagreed that when he was pushed the to area of the driveway his movement with Mr. Boatto was altered by Mr. Foggetti's wife intervening such that the direction of the two men changed and brought Mr. Foggetti's head in contact with the rear hatch of the SUV.
[14] The Crown also called Cristine Poticca as a witness. Her SUV can be seen on the driveway in the video as she dropped her son off at the rink. She watched her son walk with Matteo and his father to the front door of the rink. As they approached the door a man came out of the entrance. There was a lot of yelling and screaming. When she realized that it was an altercation she got out of her car. Mr. Boatto was by then pushing Mr. Foggetti backwards with both hands. Mr. Foggetti was struggling, and ended up being pushed backwards into a car parked at the curb. He was pushed into its lift gate. She couldn't make out what the two men were saying. She knew both men from the rink.
[15] Ms. Poticca got close to the struggle and saw Mr. Foggetti hit his head, and collapsing. His wife was by then part of the altercation. Her son, and Mr. Foggetti's son, were just standing watching the incident. She knew little about the relationship between Mr. Foggetti and Mr. Boatto from before the incident. In cross-examination she confirmed that the first physicality between Mr. Boatto and Mr. Foggetti was after the hockey bag was dropped.
[16] Mr. Boatto testified. He is married with two boys. One of them Markus, plays hockey. Mr. Boatto knew Mr. Foggetti from their son's hockey. In fact, he was his son's coach the previous season. In the 2018/2019 hockey season he would see him every Wednesday and every other Friday.
[17] He knew from other parents that the day before the altercation with Mr. Foggetti that Mr. Foggetti was at a hockey game and had something like 'you dirty bastard'. He said that his son Angelo had come home from that previous game and was uncomfortable, awkward and scared of Mr. Foggetti.
[18] On December 2, 2018 he was at the rink waiting for his wife to arrive and take him and Markus to another hockey game. He wasn't sure if he was going to say anything to Mr. Foggetti, but he saw him walk up to the front door of the rink, and walked over to him. In Mr. Boatto's evidence he said "do you also want to call me a fucking dirty bastard or just to my son". He took 3 – 4 steps towards him because he thought it was a good opportunity to talk to him. He testified that his demeaner was calm. Mr. Foggetti got upset and angry right away. Mr. Foggetti had a scowl on his face, and an aggressive posture and body language. Mr. Boatto testified that Mr. Foggetti then said "you better back up", to which Mr. Boatto said, "or what?". Mr. Foggetti then said "or I will knock you the fuck out". Mr. Boatto was shocked and threatened. The next thing that happened was a second or two stare down after which Mr. Foggetti pushed past him, not very hard. Mr. Boatto thought that he was being bullied, and he pushed back with this hands very light. At that point Mr. Foggetti started swearing and threatening Mr. Boatto. After the threats he backed up, dropped his hockey bag and said "it's on". Mr. Boatto thought he wanted to fight. He was still saying that he wanted to knock me out.
[19] Mr. Boatto testified that he pushed Mr. Foggetti backwards, but didn't really see much else. The two men were locked up. After a couple of seconds his wife entered the scrum and she grabbed his neck. Mr. Boatto said that his head was down. He wasn't going to let go of Mr. Foggetti's grip until he stopped. Mr. Boatto was fearful that Mr. Foggetti would throw punches. The struggle ended when Mr. Foggetti stopped resisting. He had no intention of pushing him into the vehicle. He denied ever punching or slapping Mr. Foggetti.
[20] In cross-examination Mr. Boatto agreed that he had a good relationship with Foggetti before this incident. They had been friends. He said that he knew from his wife and others about Mr. Foggetti's comments the day before, and that Mr. Foggetti's comments upset his son. He admitted to being disappointed, but not upset. Swearing and verbal abuse is discouraged in his son's hockey league, especially by parents. He did not try and contact Mr. Foggetti the night before to raise the matter of his comment at the hockey game because he knew he would run into him at the rink within days.
[21] He admitted in Court to feeling strongly enough about the comment the day before to approach Mr. Foggetti and ask him "you call me a fucking dirty bastard". He felt he could, even if it was in the presence of Mr. Foggetti's son. He testified that he didn't see Matteo there. He felt it was a good opportunity to bring up the comment.
[22] He denied that his encounter with Mr. Foggetti was from the beginning confrontational. As Mr. Boatto testified, it wasn't hard for Mr. Foggetti to pass him. With that said Mr Boatto admitted to pushing Mr. Foggetti with two hands to the chest. He testified that he didn't feel threatened until Mr. Foggetti said he would knock him out. Mr. Boatto testified that he thought Mr. Foggetti was the instigator because he was staring down Mr. Boatto, and even though he felt threatened by Mr. Foggetti. Mr. Boatto was not sure if Mr. Foggetti put his hands on him but he testified to putting his head down and pushing him so that he would take a swing with his fist.
[23] Mr. Boatto denied that he could simply walk away from Mr. Foggetti. He denied that he could have disengaged. He believed that he had no option but to push Mr. Foggetti to avoid getting knocked out by Mr. Foggetti. As he put it, once Mr. Foggetti threatened him they were locked in.
Legal Analysis
[24] Two issues are identified in this case. The first is one of credibility and the second one is whether Mr. Boatto acted in self-defence.
Credibility
[25] Mr. Boatto testified that he acted in self-defence. On its face it is exculpatory because of section 34 of the Criminal Code. When defence evidence is exculpatory and conflicts with Crown evidence, as it does here, the reasoning from R. v. W.D., [1991] S.C.J. No. 26 applies. Those principles are authoritatively summarized in Justice David M. Paciocco's February 2017 essay Doubt About Doubt: Coping with R. v. W. (D.) and Credibility Assessment 22 Can. Crim. L. Rev. 31.
[26] Mr. Boatto's evidence has frailties. I would identify the following:
i) Inconsistency regarding presence of Matteo
When questioned about whether he could raise the issue of Mr. Foggetti's comments the day before with Mr. Foggetti as he arrived he said that he could. He said that he didn't see Mr. Foggetti's son with him at the time. That is a testimonial inconsistency. The video clearly shows Mr. Foggetti with him right by his side. There is no way that Mr. Boatto didn't see Matteo there, and he admitted to knowing Matteo from the previous hockey season. Furthermore Mr. Foggetti was carrying Matteo's hockey bag. The issue is relevant because the circumstances which lead to the physical altercation are an important part of the narrative here, and the first few seconds are not seen on video. Mr. Boatto knew Mr. Foggetti to be a hockey dad. There is no evidence that he was ever at the rink without his son. This is a serious inconsistency because Mr. Boatto would have me believe that Mr. Foggetti's arrival at the rink was an appropriate moment to confront him about a comment in a hockey game. That would be less appropriate if Mr. Foggetti was with his son in tow walking to the dressing room. That is unbelievable since he knew that Mr. Foggetti was bringing his son to the rink to play a game. He knew that whatever he had in mind would only interrupt this to the detriment of Foggetti's son, and that other kids were there. Mr. Boatto, by his own admission confronted Mr. Foggetti when he was least expecting it, namely while arriving at the rink getting his son ready for his game. Put another way, a discussion with Mr. Foggetti was only going to result in a delay in getting Matteo ready for his game. Mr. Boatto chose a moment when Mr. Foggetti was taking care of someone else to raise a difficult topic. His evidence that it was an appropriate time is not believable.
ii) Denial of confrontational nature
Mr. Boatto also denied that his encounter with Mr. Foggetti was confrontational from the beginning. That is unbelievable. He admitted asking Mr. Foggetti "do you also want to call me a fucking dirty bastard or just to my son". That was plainly, and seriously, confrontational. His denial that he was being confrontational when saying that is a serious frailty in his evidence. I find that his denial on that is nothing more than an attempt to deny to the Court that his aggression was the thing that started the physical altercation, when the opposite is true.
iii) Denial of opportunity to disengage
Mr. Boatto denied that he could have disengaged at the beginning of the altercation. His evidence was that he believed that he had no option but to push Mr. Foggetti to avoid getting knocked out by Mr. Foggetti. As he put it, once Mr. Foggetti threatened him they were locked in. I don't believe him. The video shows Mr. Foggetti walking away from the front entrance with his back to Mr. Boatto, who then pushes him once he had dropped his son's hockey bag and turned around to face Mr. Boatto. There was no locking in. Mr. Foggetti walked away from Mr. Boatto a few steps and then turned around. In that period there is a clear opportunity for Mr. Boatto to disengage. Mr. Boatto's denial of that is a serious frailty.
[27] For these reasons I do not believe Mr. Boatto in his testimony that Mr. Foggetti was the aggressor as he approached the front door of the rink where Mr. Boatto was standing. I believe him insofar as he told Mr. Foggetti "do you also want to call me a fucking dirty bastard or just to my son" or words to that effect. It is an admission against his interest which makes sense in the overall context of the evidence. That statement is also similar to Mr. Foggetti's statement that Mr. Boatto said "If you have a fucking problem with my son then you have a problem with me". But I do not believe the balance of Mr. Boatto's evidence. His credibility is undermined by his testimonial frailties.
Self-Defence Analysis
[28] Section 34 of the Criminal Code makes self-defence available. It reads:
34 (1) Defence — use or threat of force
A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
34 (2) Factors
In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person's response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[29] Self-defence has both objective and subjective elements. The WD instruction only applies to the latter part of the test, see R. v. Nieto, 2007 MBCA 82. It has, broadly, three components: a reasonable belief by the accused that force or threat of force is being used against him or someone else; a defensive purpose, namely a subjective purpose for responding to the threat, which is to protect oneself or others; a reasonable excuse that the acts committed are objectively reasonable in the circumstances. See R. v. Bengy, 2015 ONCA 397.
[30] Applying section 34 of the Criminal Code it does not raise a reasonable doubt in this case. Having rejected the balance of Mr. Boatto's testimony I find that Mr. Boatto did not have reasonable grounds to believe that Mr. Foggetti was either using force or that there was threat to use against him.
[31] Over and above that, his actions in pushing Mr. Foggetti all the way to the curb towards the cars was not reasonable. The circumstances were that Mr. Boatto by his own admission had a beef with Mr. Foggetti. He believed, not unreasonably, that Mr. Foggetti had made a disparaging comment about Mr. Boatto's son when he was playing hockey the previous day. But such a comment in no way gave reason for a highly charged confrontation authored by Mr. Boatto. The comment was a day old and there was no immediate threat. It was a comment that should not have been made, but there was nothing in it which gave rise to a confrontation. There was no element of threat or foreboding or imminent harm in the rinkside heckle. No one testified that the previous day's rinkside heckle was a threat to do Mr. Boatto's son harm in any way. It was out of place, and inappropriate, but nothing more than that. Self-defence cannot be watered down to permit a physical response to something which did not require one.
[32] Mr. Boatto's assault on Mr. Foggetti amounted to pushing him backwards with both hands aggressively. He pushed him perhaps 20 feet into the driveway area of the rink. The nature of the force used by Mr. Boatto was excessive. There was no imminent harm in the situation. Having rejected the balance of Mr. Boatto's evidence but accepting his evidence that he said "do you also want to call me a fucking dirty bastard or just to my son" I have no difficulty finding that the incident turned from a man and his son walking into a rink for a scheduled hockey game into a fight because Mr. Boatto started it. He was the one who turned an uncomfortable passing in the doorway to a fight and verbal altercation. He was the instigator. There were no weapons used. There was no direct evidence but my observation in Court is that both men seem to be of roughly the same age, size and level of fitness. They both are involved in coaching youth hockey. I can discern no physical advantage that either men had over the other. Both men knew each other from before the day on a friendly basis. They coached together and knew each other in that capacity. By all accounts they were friendly. There was no animus which might explain what happened. Lastly, Mr. Boatto's pushing of Mr. Foggetti went on for some distance. I find that the point of self-defence did not extend all the way to the driveway of the rink. Mr. Boatto had an opportunity to withdraw from the altercation once Mr. Foggetti was away from the door. Instead, he kept shoving Mr. Foggetti.
[33] In sum, Mr. Boatto's evidence does not raise a reasonable doubt. I reject his self-defence argument.
Assessment of Complainant's Evidence
[34] Mr. Foggetti's evidence was not without its own frailties. It was a testimonial inconsistency in his evidence insofar as his statement to the police he never mentioned being grabbed by Mr. Boatto at the very beginning of the incident, as he said in Court. He became quite testy when pressed about this in Court, despite the completely professional way in which Mr. Owoh questioned him about it. This lends support for the defence submission that Mr. Foggetti is hot-tempered.
[35] With that said, Mr. Foggetti's evidence is confirmed in large measure by the surveillance video. It shows him walking to the front door of the rink with a young boy. He has a hockey bag over his shoulder. He is only off camera a few seconds after which he walks back a few steps, drops the hockey bag and then turn around. It is clear that Mr. Boatto at that point rushes at him with both hands pushing Mr. Foggetti backwards with several shoving motions. Mr. Foggetti is pushed back all the way to the driveway. The driveway had a SUV parked at the curb with the rear hatch open. By the time that Mr. Foggetti and Mr. Boatto reach the curb locked together others intervene. This moves the crowd sideways and towards the open hatch of the SUV. Mr. Foggetti's head then strikes the open hatch. The two men are separated and Mr. Foggetti takes an aggressive posture as he is led away from Mr. Boatto. Mr. Foggetti is clearly aggressive at that point in the sequence and uninterested in standing down.
[36] The assault started when Mr. Boatto shoved Mr. Foggetti away from the rink door and ended when the two men were separated at the driveway. I agree that the two men move toward the back hatch of the SUV because others intervene to break up the fight, but it was reasonably foreseeable that the struggle would have lurched in any number of directions once it started, including toward objects in the vicinity, including the open hatch of the car which had been there all along. There is no intervening act which caused Mr. Foggetti's head to be cut. It was attributable directly and substantially to the assault commenced and carried on by Mr. Boatto.
Verdict
[37] In the result Mr. Boatto is found guilty of the assault.
Released: January 13, 2020
Signed: Justice Rose