ONTARIO COURT OF JUSTICE

CITATION: R. v. Di Luciano, 2021 ONCJ 662

DATE: December 10, 2021

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PAOLO DI LUCIANO

Before Justice M.L. Hogan

Reasons for Judgment

T. Goddard ………..……………………………………………….…. counsel for the Crown

J. Virk ………………………………………. counsel for the defendant, Paolo Di Luciano

HOGAN J.:

[1] This is the matter of Paolo Di Luciano who was charged that on July 4, 2019 he in committing an assault on Brett New used a weapon – a bicycle lock, contrary to s. 267 (a) of the Criminal Code, that on July 4, 2019 he in committing an assault on Brett New caused bodily harm to him, contrary to s. 267 (b) of the Criminal Code, and that on July 4, 2019 he did commit mischief under $5,000. by wilfully damaging the automobile of Brett New, contrary to s. 430 (4) of the Criminal Code.

[2] On November 10, 2021 Mr. Di Luciano pleaded not guilty to all counts. Crown counsel, Mr. Goddard elected to proceed summarily and the trial proceeded in front of me on November 10 and 12, 2021. The matter was ultimately adjourned to today’s date for judgment.

[3] Briefly, the facts as alleged by the Crown were that on the late afternoon of July 4, 2019 the Complainant and the Defendant were at the intersection of York St. and Bremner Blvd in the City of Toronto. The Complainant was in his car stopped at a green light at the intersection waiting for the pedestrians and a car in front of him to move so he could execute his right turn. The Defendant, a bicycle courier, was on his bicycle at the intersection and seeing that the Complainant could not move forward decided to cross in front of the Complainant’s vehicle against the red light. The Complainant honked his horn and then the Defendant kicked the front of the Complainant’s vehicle. The Complainant then left his vehicle and came up to the Defendant. A heated verbal discussion took place during which the Complainant raised his hand and arm to the Defendant. The Defendant then struck the raised hand with his bicycle lock that was in his hand. Following this the Defendant grabbed the Complainant’s back collar and pulled him to the ground causing him to hit the back of his head on the pavement. The Defendant then got on his bicycle and fled. The Complainant estimated the damage to his car from the kick to be approximately $5,000.

[4] Crown counsel called three witnesses, the Complainant and two bystanders who witnessed the altercation. He also submitted video and photographic evidence. Defense counsel called one witness – the Defendant.

[5] Crown counsel submitted that the evidence showed the Defendant to be the aggressor, and that the evidence with regard to the counts of assault with a weapon and assault cause bodily harm did not support a defence of self-defence on the part of the Defendant. He submitted that the evidence supported a finding of guilt with regard to the count of mischief under.

[6] Defense counsel submitted that with regard to the counts of assault with a weapon and assault cause Bodily Harm that the evidence did support a defence of self-defence. He also submitted that the evidence did not support a finding that the Defendant had damaged the Complainant’s car and thus committed mischief.

[7] I have considered the evidence adduced by both Crown and Defense counsel, the exhibits filed, the caselaw cited, and the submissions of both counsel. It is my decision that there should be a finding of not guilty on all counts. The following are my reasons for this decision.

[8] This case is somewhat different from many, in that a lot of the incident was caught on video. The alleged assaults were caught on video – what was not caught was the initial part of the incident where it was alleged by the Defendant that the Complainant moved his car forward toward him, the Defendant’s kick to the car and the initial part of the subsequent action of the Complainant leaving his car and approaching the Defendant.

[9] The evidence of both the Complainant and Defendant was fairly similar regarding the beginning of the incident. The Defendant testified that he crossed in front of the Complainant’s car against a red light and then the Complainant honked his horn aggressively at him and moved his car forward. He thought he was going to get caught between two cars and so he tapped or kicked the Complainant’s car in the bumper area with his foot. He denied that this action caused any damage to the Complainant’s vehicle. The Complainant agreed he honked his horn but denied doing so loudly or aggressively and denied moving his car forward toward the Defendant. The Complainant testified that the Defendant kicked not tapped the front of his car following him honking his horn at the Defendant.

[10] Mr. Tsang, one of the bystander witnesses, testified that he heard the Complainant honk and then saw the Defendant kick the lower area of the car in the bumper area. Mr. Vescio the other bystander witness testified that he too heard the honk and saw the Defendant kick the bumper of the car.

[11] The Complainant testified he heard the kick but did not actually see the Defendant’s foot connect with his car.

[12] Having considered the evidence of all the witnesses I find that the Defendant crossed in front of the Complainant’s car against a red light, the Complainant saw him and honked and then the Defendant kicked the car.

[13] The evidence of the Complainant and Defendant differed as to whether this kick by the Defendant was done in anger or in an attempt to warn the Complainant that his car was getting too close to him.

[14] There was no evidence as to any damage to the car having been caused by this kick except from the Complainant. He testified damage was caused by the Defendant’s kick and that he received an estimate to repair the damage. He testified that this estimate was for approximately $5,000. A copy of this estimate, nor any other evidence regarding the cost to repair the damage, was not introduced as part of the evidence at trial.

[15] The Complainant produced photographs taken by the police on the night of the incident while his car was parked in his home driveway. He testified that these photographs showed the damage caused by the Defendant’s kick. I could see no damage to the car on any of the photographs except for the one close-up picture. This close-up photo, Ex. # 4(c), showed the driver’s side front headlight with a row of several scratches in a vertical direction and at the top of these a shorter row of scratches in a horizontal direction. The evidence of the Defendant and the two bystander witnesses was that the kick was to the car’s bumper area. The Complainant was not in a position to see where the kick landed. Given the evidence, I find the kick was to the bumper and not to the headlight area which was above the bumper.

[16] There was no evidence adduced as to how a kick – whether hard or light and to the bumper – could cause the markings on the headlight shown in the photograph marked as Exhibit # 4(c). I find that whatever caused these scratches would have to have moved in a scraping motion both in a horizontal and vertical direction against the headlight. This was not the evidence – the evidence of the bystanders and the Defendant was of a kick to the bumper and there was no evidence from the Complainant of any other damage to the car, aside from the headlight.

[17] Therefore, I find that while the Defendant kicked the car he did not cause the damage to the car as shown in these photos and given that there was no other damage to the car alleged I find him not guilty of the count of mischief under $5,000.

[18] As I have indicated the evidence of both the Defendant and Complainant was similar in a number of aspects. They both agreed that the Complainant was stopped at the intersection’s crosswalk, that the Defendant began to cross in front of the Complainant’s car against the red light, that the Complainant honked his horn at the Defendant, that the Defendant kicked the Complainant’s car, that the Complainant got out of his car, that the Complainant and Defendant were shouting at each other, that the two of them ended up one in front of the other at the intersection, that the Defendant struck the Complainant’s raised arm and hand with his hand containing his bicycle lock, and that the Defendant pulled the Complainant from the back and as a result the Complainant fell down backwards onto the pavement . Following this, the Defendant got back onto his bicycle and left the scene. Most of this was captured on videos taken by the two bystander witnesses.

[19] What is disputed is whether the behaviour of the Complainant was such that the Defendant feared for his safety and thus that his actions in hitting the Complainant’s hand with his bicycle lock and pulling the Complainant down to the pavement were done in self-defence.

[20] Defense counsel submitted that the Defendant should not be found guilty of the remaining two counts – assault with a weapon and assault bodily harm – as the Defendant acted in self-defence pursuant to s. 34 of the Criminal Code and he submitted the Crown had not disproved any of the essential elements of the Defendant’s defence of self-defence.

[21] Crown counsel cited the recent Supreme Court of Canada case of R .v. Khill, 2021 SCC 37, [2021] S.C.J. No. 37, as authority for his submissions that s. 34 of the Criminal Code did not apply in this case.

[22] It was his submission that the three basic elements of self defence as set out in s. 34 of the Criminal Code did not exist in this case. He submitted that the three elements are:

1. The Defendant must reasonably believe that force or a threat of force is being used against them or another person – s. 34(1)(a) – and;

2. The act that constitutes the offence is committed for the purpose of defending or protecting oneself or others from that threat or use of force – s. 34(1)(b) – and;

3. The act committed is reasonable in the circumstances – s. 34(1)(c).

[23] Further, 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, nine enumerated factors as set out in s. 34(2) of the Criminal Code.

[24] Crown counsel, Mr. Goddard submitted the evidence adduced established that there was no basis for the Defendant to believe that the Complainant was using force or threatening to use force against him. The Defendant was acting in anger not fear and not to protect himself when he hit the Complainant with the bicycle lock and pulled him to the ground, and the Defendant’s acts were not reasonable in the circumstances.

[25] Crown counsel further submitted that the Complainant left his car for the purpose of inspecting the damage to the front of his car that he believed the Defendant had caused when he kicked the car, that while he raised his arm it was not near the Defendant’s face and not done in a threatening manner and that in considering the nine factors enumerated in s. 34 (2) (a) - (h) none of them in this case established the acts of the Defendant to be reasonable in the circumstances.

[26] Specifically he submitted that the evidence showed:

a) there was no force or threat;

b) that the Defendant could have left the scene and not engaged on any level with the Complainant;

c) that the Defendant’s wrongful acts in crossing in front of the Complainant’s car against the red light and then kicking the car were what led to the escalation of the incident;

d) that the Defendant, in using the bicycle lock to strike the Complainant, used a weapon;

e) that despite the Complainant being significantly larger than the Defendant, the Defendant was younger and in better physical shape and;

f) and f1) are not applicable;

g) the use of the bicycle lock to hit the Complainant and the pulling to the ground of the Complainant and thus causing him to hit his head on the pavement was a response completely out of proportion to the circumstances and;

h) not applicable

[27] Defense counsel, Mr. Virk, submitted a very different view of the evidence regarding the incident. It was his submission, while conceding the Defendant was wrong in crossing against the red light and kicking at the Complainant’s car, that the Complainant was angry at the Defendant for both crossing in front and kicking his car, that he aggressively honked his horn, that he got out of his car not to inspect any damage to his car but to confront the Defendant, that the Complainant – not the Defendant – was the aggressor, that the Complainant was almost twice the size of the Defendant, and crossed the white line and came up close to the Defendant while yelling at him to “Come at me you mother fucker”. All of these actions he submitted resulted in the Defendant fearing for his safety and afraid to leave the scene as he feared the Defendant would follow him. He submitted that the evidence viewed in this light made out all the requirements of s. 34 of the Criminal Code for a defence of self-defence.

[28] I have considered the testimony of the witnesses including the Complainant and the Defendant, the exhibits filed, and the submissions of counsel and as I have already stated I find Mr. Di Luciano not guilty of the counts of assault with a weapon and assault bodily harm. I do so for the following reasons.

[29] I find that the evidence could be interpreted as Defense counsel submitted. I find that both the Complainant and the Defendant were in the wrong – the Defendant in crossing against the red light and kicking the Complainant’s car, and the Complainant in getting out of his car and confronting the Defendant. I find from the video Exhibit #1 that the Complainant was yelling loudly and continuously at the Defendant “Come here you mother fucker”, and did not even look at his car for damage before he closely approached the Defendant, and that he was clearly angry and intending to confront the Defendant. The video evidence shows a white line on the pavement almost exactly halfway between where the Complainant and the Defendant were standing. The videos Exhibits #1 - 2 showed the Complainant crossing this line to get at the Defendant while the Defendant did not cross the line to get close to the Complainant. These videos also show the Complainant’s raised hand in front of the Defendant. While I find it wasn’t as close as the Defendant testified he perceived it to be, I do find there was a basis at that point for the Defendant perceiving this as a threat of force and thus striking at the hand for the purpose of defending or protecting himself.

[30] I also find, having regard to the circumstances, that the Defendant’s act in striking the Complainant’s hand with the lock was reasonable having regard to the following factors in s. 34(2):

a) The raised hand and the actions and clear angry demeanour of the Complainant were sufficient to cause the Defendant to be fearful for his safety.

b) From the evidence the Defendant perceived that the Complainant was about to escalate the verbal argument to a physical one as evidenced by the Complainant crossing the line between them and raising his arm to him. I find the Defendant’s testimony credible that he feared if he fled that the Complainant would follow him – something which the videos showed the Complainant doing after he got up from the pavement.

c) I have already stated that I find that the Complainant and the Defendant both were in the wrong in regard to some of their actions.

d) The evidence of the Defendant was that he had had the lock in his hand all along and did not intentionally retrieve it to attack the Complainant.

e) The Complainant was almost twice the size of the Defendant. I accept that the Defendant was younger than the Complainant but still find that as the Defendant testified, the size of the Complainant could have contributed to the Defendant’s concern for his safety.

f) and f1) Not applicable.

g) I find that the use of the bicycle lock – which was already in the Defendant’s hand – to prevent the Complainant from striking him to not be an out of proportion response to the Complainant’s behaviour.

h) Not applicable.

[31] Given my findings above I find the requirements for a defence of self defence in regard to the assault with a bicycle lock to have been met and to have not been disproven beyond a reasonable doubt by the Crown.

[32] I am therefore finding the Defendant not guilty of assault with a weapon.

[33] The count of assault bodily harm involved the Defendant pulling the back of the Complainant’s jacket causing him to fall backward and hit his head on the pavement. Crown counsel submitted that the Complainant had turned around at that point and that there was no reason for the Defendant to take any action but to leave.

[34] Defense counsel submitted that the videos did not show the Complainant turning around completely as his feet did not move but showed only his head turning toward his car. He submitted that the testimony of the Defendant was that a) he wanted to leave at that point but feared that the Complainant would follow him and he would be unable to get to his bike and flee and b) that he intended only to pull the Complainant down to his knees so that he would have a better opportunity to flee.

[35] I find that the Defendant’s act in pulling the Complainant down does meet the requirements for a defence of self-defence. I find that the Crown has not proven beyond a reasonable doubt that the Defendant a) no longer felt threatened, b) that his attempt to bring the Complainant to his knees to allow him to get to his bike and flee was not done to protect himself and c) that the act was not reasonable in the circumstances. I agree with Crown counsel that the Complainant’s head at the time was turned away from the Defendant but I find the videos show as Defense counsel submitted that he had not turned his body completely around and was still standing over the white line close to the Defendant and the heated verbal discussion was still ongoing. The Defendant testified that he still feared for his safety and was afraid that if he tried to flee at that point that the Complainant would come after him. He testified that he therefore tried to pull the Complainant to the ground so he could get to his bike and flee before the Complainant could come after him. Having viewed the videos many times, as I was invited to do by both counsel, I find that the actions of the Defendant in pulling the Complainant from the back could be interpreted as him trying to pull him out of the way so that he could get to his bike which was on the ground very near the two of them. I note as well that the videos also show the Complainant – after he got up from the ground – moving forward toward the Defendant and appearing to follow him – exactly what the Defendant testified he feared.

[36] I also note that the Defendant’s acts of hitting with the bike lock and pulling the Complainant down could almost be considered as one continuing act. The whole incident happened very fast and there was almost no time lapse between the two acts, which I find supports the Defendant’s evidence that his fear for his safety was continuing at the time of pulling the Complainant down.

[37] I find therefore that the video evidence can be interpreted as supporting the Defendant’s testimony that he continued to fear for his safety, that he was attempting to protect himself by bringing the Complainant to the ground and that in the circumstances his act – that of simply trying to pull him to the ground – was reasonable. In assessing the reasonableness of the act I make the following findings regarding the factors that must be considered pursuant to s. 34(2) (a-h):

a) The actions and the clear continuing angry demeanour of the Complainant were sufficient to cause the Defendant to continue to be fearful for his safety.

b) The Defendant’s testimony was credible that he feared if he tried to flee at that point the Complainant would follow him – something which the videos showed the Complainant doing after he got up from the pavement.

c) I have already found the Complainant and Defendant both to have been in the wrong regarding some of their actions.

d) There was not a weapon used or threatened to be used at this point.

e) The same findings as I stated earlier regarding the Complainant’s size in relation to that of the Defendant’s.

f) and f1) Not applicable.

g) The Defendant’s intent to simply pull the Complainant to the ground so as to facilitate getting to his bike and fleeing was not an out of proportion response to the Complainant’s behaviour.

h) Not applicable.

[38] Given these findings I find that the requirements for a defence of self-defence in regard to the pulling of the Complainant to the pavement have been met and have not been disproven beyond a reasonable doubt by the Crown.

[39] I therefore find Mr. Di Luciano not guilty of the count of assault bodily harm.

Released: December 10, 2021

Signed: “Justice M.L. Hogan”