Court File and Parties
Ontario Court of Justice
Date: 2020-11-30
Court File No.: Hamilton 20-1851
Between:
Her Majesty the Queen
— and —
Robert Rakoczy
Before: Justice J.P.P. Fiorucci
Heard on: September 10th, October 5th and 30th, 2020
Reasons for Judgment released on: November 30th, 2020
Counsel:
- S. Dudzic, counsel for the Crown
- J. Cohen, counsel for the Defendant Robert Rakoczy
FIORUCCI J.:
INTRODUCTION
[1] Robert Rakoczy and Lisa Giulietti had been in an intimate relationship for twelve years. In August of 2019, Mr. Rakoczy told Ms. Giulietti that the relationship was not working out. After the relationship ended, the two remained friends. They even continued to live together during certain periods of time. They were living together in January of 2020. Ms. Giulietti held out hope that the couple would reconcile. Mr. Rakoczy had different ideas.
[2] On January 26th, 2020, shortly after 5:00 p.m., two police officers arrived at the apartment that Mr. Rakoczy and Ms. Giulietti were sharing. The police came in response to a 911 call made by Ms. Giulietti. Mr. Rakoczy was arrested and charged with assaulting her.
[3] Mr. Rakoczy entered a plea of not guilty to the charge. Ms. Giulietti and Mr. Rakoczy both testified at the trial. They gave very different accounts of what preceded Ms. Giulietti's 911 call. Ms. Giulietti claimed that Mr. Rakoczy assaulted her, which Mr. Rakoczy denied. A police officer who spoke with Ms. Giulietti at the apartment that evening also gave evidence at the trial.
[4] On October 30th, 2020, I found Mr. Rakoczy not guilty of assaulting Ms. Giulietti. I advised the parties that my written reasons would follow. These are my reasons for finding that the Crown did not meet its burden of proving beyond a reasonable doubt that Mr. Rakoczy is guilty of the charge.
THE EVIDENCE
[5] On the evening of January 25th, 2020, Mr. Rakoczy and Ms. Giulietti went out for dinner together. According to Ms. Giulietti, the couple was working on reconciling and decided to take a cruise together. Mr. Rakoczy agreed that they discussed a cruise when they were at dinner that evening. However, he testified that he did not commit to taking the cruise with Ms. Giulietti. He told her that he would consider going on the cruise with her, but he also told her that he was hesitant to do so because it may create in her a false hope that they were reconciling.
[6] After dinner, Ms. Giulietti returned to the apartment that she and Mr. Rakoczy shared. Mr. Rakoczy did not. He attended a birthday party where he met up with Rachel, a woman he was dating at that time. According to Ms. Giulietti, before she parted ways with Mr. Rakoczy after dinner, he assured her that he was not going to see Rachel. Mr. Rakoczy, on the other hand, testified that he told Ms. Giulietti that he would be seeing Rachel at a birthday party that night.
[7] Mr. Rakoczy had not yet returned to the apartment when Ms. Giulietti went to bed. When she awoke on the morning of January 26th, Mr. Rakoczy was asleep in his bed. He woke up sometime in the early afternoon. Mr. Rakoczy and Ms. Giulietti both gave evidence that an argument preceded the arrival of police on January 26th, and that the argument started when Ms. Giulietti asked Mr. Rakoczy if he had seen Rachel.
[8] This verbal dispute lasted three to four hours. Their respective accounts of how the argument progressed diverged in certain respects, including some of the words that were exchanged. However, what is clear from the testimony of both Mr. Rakoczy and Ms. Giulietti is that one of the main features of the dispute was Ms. Giulietti's desire to get answers from Mr. Rakoczy about the state of their relationship.
[9] Ms. Giulietti was hurt that Mr. Rakoczy had seen Rachel. She really wanted things to work out between her and Mr. Rakoczy. She wanted answers from him about where the relationship was going. This was important to her. Ms. Giulietti characterized Mr. Rakoczy's attitude during the argument as evasive, moderately sarcastic, and rather glib. According to her, he was not forthcoming, and very much trying to avoid any sort of conversation about their future.
[10] Mr. Rakoczy described the argument as largely one-sided, with Ms. Giulietti berating him on a variety of topics, including the future of their relationship, and the fact that he had seen Rachel the night before. According to Mr. Rakoczy, he would move from room to room to avoid engaging with Ms. Giulietti, and his lack of engagement appeared to upset her even more. He stated that, in addition to her attempts to discuss the relationship, Ms. Giulietti made multiple threats, including threats to interfere with his livelihood and to "take America away from [him]". Mr. Rakoczy explained that he was a frequent traveller to the United States, and had family and business relationships there. He took Ms. Giulietti's words to mean that she would ensure he was arrested and fingerprinted, which would impede on his ability to travel to the U.S.
[11] Ms. Giulietti left the apartment for a short time during the argument. She testified that she left to "get [her] head in gear" and "wrap [herself] around what was going on". The events that transpired when she returned led to her 911 call.
[12] Ms. Giulietti claimed that the argument escalated and that the two of them both got angrier. At one point, Mr. Rakoczy asked her how much money it would take for her to get out of his life. He then continued to be evasive and went into his bedroom.
[13] Ms. Giulietti testified that she was standing in the hallway outside the bedroom still trying to get answers from him. Suddenly, he turned and said, "I was going to give you $5,000.00 and first and last month's rent, but now you get nothing". Mr. Rakoczy then came at her, grabbed her by the collar of her hoodie and threw her to the ground. According to Ms. Giulietti, Mr. Rakoczy got on top of her, and while straddling her, he shook her back and forth, holding her by the collar of her hoodie with both hands. During the assault, he said, "don't you understand that everything I'm doing is because I love you".
[14] Ms. Giulietti testified that she was not sure how the assault ended. She did not know whether she managed to wiggle away, or whether Mr. Rakoczy was just done and got up. She did recall reaching into the pocket of her hoodie for her phone and telling Mr. Rakoczy that she would call police. According to Ms. Giulietti, he challenged her to do so, stating things like, "go ahead, I dare you", or "I'd like to see you do it".
[15] Mr. Rakoczy denied assaulting Ms. Giulietti. He claimed that when she returned to the apartment, she immediately came into the bedroom and said things like, "you're going to start paying attention to me", "you're going to start listening to me", and "you're going to discuss our relationship".
[16] According to Mr. Rakoczy, he told Ms. Giulietti that they could talk about it later when she was calmer. Ms. Giulietti then jumped up on the bed, took his phone from him while he was on it, and threw it across the room. Mr. Rakoczy got off the bed and was trying to leave the bedroom, but Ms. Giulietti walked backwards in front of him. When she reached the threshold of the doorway, Mr. Rakoczy slammed the door shut. Ms. Giulietti stated, "I'm not going to let you get away with this, I'm going to call the police". Mr. Rakoczy opened the door and asked, "call the police, what are you going to tell them?". He then told her to go ahead and call the police.
[17] According to Mr. Rakoczy, Ms. Giulietti retrieved her phone. While she was standing no more than a foot away from him, she dialled 9-1 and hung up. She then dialled 911, hit the "start" button, but hung up again. Ms. Giulietti dialled a third time. This time, she turned and walked down the hallway with the phone to her ear. Mr. Rakoczy heard her say "police".
[18] Mr. Rakoczy thought Ms. Giulietti was pretending. He went to shower. He was planning to leave to go stay at a hotel for a couple of nights. When he got out of the shower and heard Ms. Giulietti still talking on the phone, he realized that perhaps she had indeed called the police. Two police officers arrived at the apartment shortly thereafter to arrest Mr. Rakoczy.
ANALYSIS
[19] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
[20] In this case, Mr. Rakoczy testified. His evidence was exculpatory. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused's evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused's evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
[21] I must determine whether the Crown has proven the specific criminal allegation it has made beyond a reasonable doubt. Even if I do not accept Mr. Rakoczy's exculpatory testimony, his evidence — viewed in the context of all of the evidence — may leave me in a state of reasonable doubt about his guilt. If it does, he is entitled to an acquittal.
[22] A criminal trial is not a "credibility contest". Even if I were to prefer the complainant's narrative to the one offered by the accused, it does not resolve whether I have a reasonable doubt about the accused's guilt. There are other options requiring acquittal, including "the legitimate possibility" that I am unable to resolve the conflicting evidence and am accordingly left in a reasonable doubt.
[23] The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation. I can accept all, some or none of a witness's evidence.
[24] The W.D. case "does not describe three sequential analytical steps that a trier of fact must pass through, one at a time". As Code J. stated in R. v. Thomas:
A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W. D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.
[25] The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.
[26] Having considered the totality of the evidence, I am left in a state of reasonable doubt in this case. There is nothing in the substance of Mr. Rakoczy's evidence, or in the manner in which he gave his evidence, that would cause me to disbelieve his evidence. His testimony, including his denial of the assault, was credible, logical and internally consistent. Nor was his evidence shaken on cross-examination. My assessment of the totality of the evidence, including Mr. Rakoczy's testimony, has led me to conclude that the Crown has not met its burden in this case. My finding is bolstered by concerns I have identified in Ms. Giulietti's evidence that undermine her testimonial credibility.
[27] Mr. Rakoczy described being berated and threatened by Ms. Giulietti on a variety of topics, including the status of their relationship. His testimony that she became more upset when he did not engage in the argument is consistent with Ms. Giulietti's evidence. Ms. Giulietti acknowledged that the discussion became more heated because of Mr. Rakoczy's continued evasiveness, and her inability to get answers from him about "where [she] stood and what [her] future was going to be". Ms. Giulietti admitted that she was angry because Mr. Rakoczy refused to talk about their relationship. She was also hurt by the fact that he had seen Rachel after what she perceived to be attempts to reconcile their relationship.
[28] I find that Mr. Rakoczy was trying to avoid the confrontation by moving from room to room. As Ms. Giulietti put it, "at times he would crawl back into bed so he wouldn't have to answer the questions". Ms. Giulietti was not deterred by Mr. Rakoczy's attempts to physically avoid her. She followed him around the apartment, attempting to get answers that she had been wanting for six months.
[29] Ms. Giulietti left the apartment to temporarily remove herself from the situation. She was frustrated because she was not getting the answers she wanted from Mr. Rakoczy. I accept Mr. Rakoczy's evidence that when Ms. Giulietti returned to the apartment, she was intent on getting his attention. She was intent on getting him to listen to her. She was intent on making him talk about their relationship.
[30] I also accept Mr. Rakoczy's evidence that Ms. Giulietti jumped onto the bed, took his phone from him, and threw it across the room. Defence counsel cross-examined Ms. Giulietti about this:
Q. Okay. Did at any point during that time did you jump on the bed to take away his phone and then throw it against the wall?
A. Not that I recall, no. I may have taken his phone if he was talking to someone, but I don't recall, no.
[31] I find that Ms. Giulietti was not forthright when she answered this question. She should have been able to readily recall whether the argument escalated to the point where she took Mr. Rakoczy's phone away from him while he was speaking with someone else. I find that she attempted to evade the question by saying that she may have taken his phone but could not recall.
[32] I am unable to find that Mr. Rakoczy assaulted Ms. Giulietti after her prolonged and incessant questioning of him. Although Ms. Giulietti's evidence about the assault remained consistent throughout her testimony, I found it troubling that she could not recall how the assault ended.
[33] Furthermore, Ms. Giulietti's testimonial credibility was significantly undermined when she gave evidence about what occurred when the police arrived to investigate her 911 call. I found her evidence in this area to be implausible and contrived, which in turn made me doubt the credibility and reliability of her claim that she was assaulted by Mr. Rakoczy.
[34] Two police officers arrived at the apartment to investigate the 911 call. P.C. Ivan Svec was the officer who spoke with Ms. Giulietti. P.C. Svec became involved in the investigation at approximately 5:10 p.m. and did not leave the apartment until 6:50 p.m., when Ms. Giulietti collected her belongings, locked the apartment door and left.
[35] Ms. Giulietti's claim that P.C. Svec did not ask her to provide a statement is implausible. P.C. Svec had a duty to investigate this allegation of domestic assault, and he did so. I accept P.C. Svec's testimony that he asked Ms. Giulietti to provide a statement, which she declined to do because she did not want Mr. Rakoczy charged or arrested. Once Ms. Giulietti learned that Mr. Rakoczy would be charged with assault, she declined to provide a formal statement and signed a brief notation in P.C. Svec's notebook that stated that she did not wish to provide a statement to police.
[36] When Ms. Giulietti was confronted in cross-examination with the fact that she signed P.C. Svec's notebook to that effect, she gave confusing and incredible testimony to attempt to explain it away. She admitted signing the notebook but explained that it was dark in the apartment so she could not read, understand or realize what she was signing.
[37] Ms. Giulietti claimed that the officer did not turn any lights on in the apartment, but only took out his iPhone to shine it on his notebook. According to Ms. Giulietti, she asked the officer what would happen if she did not sign his notebook because she could not see it, to which he replied that her 911 call "stands as the charges".
[38] I accept P.C. Svec's evidence that Ms. Giulietti did not tell him that she was unable to see, or know, what she was signing because it was too dark. P.C. Svec's testimony that there was sufficient light in the apartment to conduct his investigation is logical.
[39] I also accept P.C. Svec's evidence that Ms. Giulietti did not want Mr. Rakoczy charged, which was the reason she declined to provide a statement to the police that evening. The police gave Ms. Giulietti an opportunity to provide a statement on the day of the incident and she expressly declined that opportunity.
[40] Ms. Giulietti's testimony about her interactions with P.C. Svec was unworthy of belief. Her claim that the police did not ask her to provide a statement is implausible. It is also implausible that P.C. Svec would have Ms. Giulietti sign his notebook if she had expressly stated to him that she could not see what she was signing.
[41] The fact that Ms. Giulietti did not provide a statement to the police on January 26th, and her reluctance to have Mr. Rakoczy charged, do not permit me to draw an inference that the assault did not occur. However, Ms. Giulietti's concoction of implausible explanations for what appears in P.C. Svec's notebook affects her testimonial credibility.
[42] I also reject Ms. Giulietti's evidence that P.C. Svec did not offer her Victim Safety literature, and that she had to look it up online the next day. I accept P.C. Svec's testimony that he did offer her the literature and that Ms. Giulietti told him she did not need it. I found this to be another example of Ms. Giulietti failing to give her evidence in a balanced way. She attempted to control the narrative by shifting the focus away from her reluctance to participate in the investigation, and by claiming that the police failed in their duty to conduct a proper investigation.
[43] P.C. Svec was called as a Defence witness. Crown counsel cross-examined him regarding the Domestic Violence Risk Management (DVRM) Report, a document he created as part of the investigation. In the DVRM Report, P.C. Svec checked off a box in the checklist of risk factors suggesting that the victim had participated in the completion of the form. The cross-examination revealed that Ms. Giulietti had not participated in a question and answer session with the officer to complete the report. P.C. Svec agreed with Crown counsel's suggestion that his notation on the form was inaccurate. However, I accept the officer's explanation that he used all of the information he gathered in the investigation to complete the risk factors, including Ms. Giulietti's 911 call and discussions he had with Ms. Giulietti in the apartment. P.C. Svec's inaccurate notation on the report does not affect the credibility and reliability of his evidence regarding what occurred in the apartment when he spoke with Ms. Giulietti.
[44] Mr. Rakoczy's evidence that he continually tried to physically remove himself from the situation and tried to avoid engaging in a discussion with Ms. Giulietti, even after she threw his phone, is plausible. He had been trying to avoid her for over three hours. Mr. Rakoczy offered a conflicting version of events, namely that Ms. Giulietti made the 911 call to get his attention, which she had been unable to do by any other means to that point.
[45] Mr. Rakoczy's conflicting version of events, and the credibility concerns I have identified in Ms. Giulietti's testimony, leave me in doubt about whether Mr. Rakoczy assaulted Ms. Giulietti. On the second prong of the W.(D.) framework, Mr. Rakoczy must be acquitted. I find him not guilty of the assault charge.
Released: November 30, 2020
Signed: Justice J.P.P. Fiorucci