File No. Cr-10-1456

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

V.

MICHAEL DAVID ITALIANO

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE R.C. BOSWELL,

on September 27, 2012 at PETERBOROUGH, Ontario

APPEARANCES:

J. Costain Counsel for the Crown

D. McFadden Counsel for Mr. Italiano

THURSDAY, SEPTEMBER 27, 2012

REASONS FOR JUDGMENT

BOSWELL, J. (Orally):

The following are my reasons for judgment.

Stroll downtown at about two a.m. on a summer time Saturday night in just about any reasonably sized City in Canada and you will likely witness two things; bars letting out, and drunken patrons fighting.

Mr. Italiano is before the court facing one count of aggravated assault, arising from a post-pub punch that landed on the chin of Jamie Hall, knocking him out and sending him to hospital. The facts are reasonably straightforward. Two groups of individuals came into conflict on George Street in Peterborough in the early morning hours of July 25^th, 2010, apparently as a result of the combination of too much booze and bravado. George Street is Peterborough’s principal downtown thoroughfare and is home to a variety of shops, restaurants, pubs and nightclubs. The altercation in issue took place outside a Subway Restaurant, located between two nightclubs known as Sin City and the Junction.

Group One consisted of four males: Mr. Italiano, Mr. Davis, Mr. Millard and Mr. Carlson. Group Two consisted of two males and a female: Mr. Hall, his step-brother, Mr. Parsons, and Mr. Parsons’ girlfriend, Ms. Haney. The members of the two groups were unknown to each other.

The narrative began to unfold as Group Two were congregating near a hotdog stand not far from the Junction. The time was between 2:30 and 3:00 a.m. The members of Group One were walking southbound on George Street, headed for Mr. Davis’ car. Somehow Mr. Italiano and Mr. Hall came into conflict. How is not entirely clear from the evidence. There was a consensus, and I accept, that oral unpleasantries were exchanged between the two groups.

All of those involved, save Mr. Millard and Mr. Hall, testified at trial. This is not a case where identity is an issue. Mr. Italiano testified and he confirmed that he threw the punch that injured Mr. Hall. The important issues surround the circumstances in which the punch was thrown, and whether those circumstances include a consensual fight, or alternatively, self-defence.

Mr. Carlson said that the altercation began with angry words exchanged between one member of his group, whose name he could not remember, and Mr. Hall, who he did not know. He said that Mr. Hall is the person who started the fight, but when asked by the Crown he was not sure how it was that Mr. Hall did so.

Mr. Davis was, perhaps still is, a friend of Mr. Italiano. He testified that his group went past Group Two. Words were exchanged that triggered the altercation. He was not clear on what words were uttered or who initiated the exchange. He was clear that the young woman in Group Two, Ms. Haney, was quite vocal, and made threatening comments to Mr. Italiano, such as, “My boyfriend is going to kill you.” Mr. Hall, who he did not know, got into the face of Mr. Italiano and they exchanged words. He said he was pretty sure that he saw Mr. Hall flinch as though he was going to make an aggressive move, and then Mr. Italiano punched him in the face.

Ms. Haney provided a slightly different account. She said that as Group One passed by them on George Street, one of the males called her a vulgar name and bumped a shoulder into Mr. Hall. Otherwise Group One kept walking down George Street until either Mr. Parsons or Mr. Hall yelled something at them, at which time they turned around and came back. She could not recall what was yelled. She went on to say that one of the members of Group One began yelling at Mr. Hall. He was a stocky male, with a chin-strap beard and he was wearing a baseball hat backwards on his head. It is not in issue that this description is that of Mr. Italiano.

According to Ms. Haney, Mr. Italiano was standing between one and three feet from Mr. Hall. He told Mr. Hall that he would “fold him in half” and then he struck him. Under cross-examination, she admitted that she turned away briefly and did not actually see the punch thrown, although she maintained that she heard it and that she saw Mr. Hall fall to the ground. According to her testimony, she did not recall saying anything during the altercation. She denied making any threatening comments about what her boyfriend would do to anyone. She also said that Mr. Hall did not say anything, but just stood quietly facing the male who struck him. She did not see Mr. Hall flinch before being punched, but accepted that it was possible that he did so when she briefly turned away.

An unusual aspect of this trial is that the complainant, Mr. Hall, never testified at all. His stepbrother, Mr. Parsons, who one might have expected to be an important eye witness, remarkably claimed that he could not remember anything about the incident at all. According to him, he became aware of it because the next day someone told him that his brother was in the hospital. I am not privy to the reasons supporting the decision that Mr. Hall would not testify, but the posturing of Mr. Parsons in the witness box and the weak testimony that he gave suggests to me that he may prefer to settle this score outside of the courtroom. I hope that that is not the case.

In my view, not a whole lot turns on exactly how the altercation was initiated. I find that there were two groups of individuals who had been out drinking that night. Provocative words were exchanged as they passed each other on the street. As for who said what to whom and who started it, I am unable to say. None of the witnesses seemed entirely clear. There is a general consensus among the witnesses who testified that words were exchanged between unknown members of Groups One and Two as their paths crossed on George Street. Group One kept walking southbound, but as a result of further vocal exchanges, Group One, led by Mr. Italiano, turned and walked back to confront the members of Group One outside the Subway shop. Mr. Italiano and Mr. Hall faced each other down. Mr. Italiano threw a punch and knocked down Mr. Hall, and then Group One turned and left.

To prove that an aggravated assault was committed by the accused, the Crown must establish the following essential elements beyond a reasonable doubt, firstly, that Mr. Italiano intentionally applied force to Mr. Hall; second, that the intentional application of force was unlawful, and; third, that the intentional application of force endangered the life of Mr. Hall.

There is no dispute that Mr. Hall was punched in the face and that Mr. Italiano threw the punch. Clearly, the punch to the face was an intentional application of force. I am satisfied that the first essential element is proved beyond a reasonable doubt.

Counsel filed an agreed statement of fact, which was marked as trial Exhibit Number Four. One of the agreed facts is that Mr. Hall’s life was endangered by the result of the punch. When Mr. Hall fell after the punch he struck his head on the sidewalk, causing a mild subarachnoid hemorrhage. I am satisfied beyond a reasonable doubt that the third essential element is made out.

The case really turns on whether the application of force was unlawful. In this respect, the defence argues alternatively that the fight was consensual, and or that the punch was thrown in self-defence. I will consider the issue of consent first, because in my view it is determinative. Before I do so, however, I wish to comment on the fact that Mr. Italiano testified in his own defence. He said, amongst other things, that he perceived that Mr. Hall wanted to fight; that Mr. Hall made a move that suggested he was about to strike Mr. Italiano; and that in the result Mr. Italiano threw a single punch to defend himself, having no intention to seriously injure Mr. Hall.

It is necessary to analyze Mr. Italiano’s evidence in accordance with the principles annunciated by the Supreme Court of Canada in R.v. W.(D), reported at [1991], 63, C.C.C. (3d), at page 397. In particular, it is important to recognize that this is not simply a credibility contest between different versions of events. If I believe Mr. Italiano’s evidence on the issues of consent and or self-defence, then he must be acquitted of the charge against him for the simple reason that I will have been satisfied that no crime was committed. Even if I do not believe his evidence, however I must still acquit him if his evidence leaves me in a state of reasonable doubt about his guilt. Finally, even if I am not left in doubt by Mr. Italiano’s evidence, I must still be satisfied, on the evidence I do accept and rely upon, that it is satisfactory to prove his guilt beyond a reasonable doubt.

So I turn now to the issue of consent. An unlawful assault occurs when there is an intentional application of force that is not consensual and where the person applying the force knows that it is not consensual. The accused argues that the fight between him and Mr. Hall was consensual, and as such the punch thrown in the course of the fight was not unlawful. I agree. The evidence establishes that each of Mr. Hall and Mr. Italiano consented to fight one another. I have already found that words were exchanged between members of Group One and Group Two as they encountered one another on the street by the hotdog stand. Group One moved off, but the members of Group Two did not leave well enough alone. I am satisfied that Ms. Haney, in particular, continued to shout at Mr. Italiano and his companions. That said, I am satisfied that Mr. Hall participated in the verbal jousting as well. I accept that something provocative was said that caused Mr. Italiano to turn around and return to the area by the hotdog vender. Upon turning around, Mr. Italiano says that he witnessed Mr. Hall and Mr. Parsons taking off their shirts. Mr. Davies corroborates Mr. Italiano’s evidence. He too saw the males bare-chested. One of the police officers who was first on the scene, Officer Curry, testified that when he first arrived, Mr. Hall was lying on the sidewalk without a shirt on. Ms. Haney testified that Mr. Hall had a tank top on, but I prefer the evidence of the officer, Mr. Italiano, and Mr. Davies, all of whom were sober, or reasonably sober. The officer’s evidence was objective, credible and reliably supported by his notes made at the time of the incident. I also found Mr. Davies’ testimony to be credible and reliable. He was a Crown witness even though he was a friend of Mr. Italiano. It was obvious that he was uncomfortable having to give testimony for the prosecution in a case against his friend. Nevertheless, his reticence did not impair his forthrightness. Significantly, when identity was still a live issue, he was clear that it was Mr. Italiano who was in the altercation with Mr. Hall, and he was clear that Mr. Italiano was the one and the only one who threw a punch.

Finally, I found Mr. Italiano’s evidence to be credible and reasonably reliable as well. Though I suspect that there was more verbal jousting than he let on, he did not downplay his involvement in the incident. He acknowledged that he could have walked away or found other alternatives to deal with the conflict apart from throwing a punch. His description of the development of the altercation is consistent with those provided by Crown witnesses, although not entirely on all fours with the evidence of Ms. Haney.

Crown counsel fairly conceded that the reliability of Ms. Haney’s evidence is strained by the quantity of alcohol she consumed. She admitted to having had drinks before going to the nightclub, then five to seven whisky drinks, as well as a number of shots of Tequila. She described herself as moderately intoxicated, which I think puts a fairly favourable spin on it. She denied that she had made any provocative statements leading up to or during the altercation. That evidence is not believable in all the circumstances and not consistent with other Crown witnesses’ testimony. Ms. Haney conceded that her boyfriend, Mr. Parsons, took his shirt off. She said he did so after the punch was thrown. I accept that Mr. Parsons’ shirt was off, but I find that it came off before and not after the punch was thrown. I accept the evidence of Mr. Davies and Mr. Italiano about the timing of the shirts coming off. Of significance to me, however, was Ms. Haney’s statement that Mr. Parsons takes his shirt off when he gets agitated. I find that the removal of the shirts was indeed a signal of aggression and provocation on the part of Mr. Parsons and Mr. Hall.

In summary, the comments shouted, the provocative act of removing his shirt, and the face-to-face showdown with Mr. Italiano, satisfy me that Mr. Hall was interested and prepared to engage in a fight. Indeed in the words of Crown counsel, Mr. Hall was “spoiling for a fight.”

Mr. Italiano, I find, was similarly prepared to fight. He and his companions had moved down the street some 30 feet, and there is no reason why they could not simply have kept walking on, regardless of what shouts or challenges were made. Mr. Italiano turned and he saw Mr. Hall and Mr. Parsons taking their shirts off. He heard them shout at him. He chose to walk back. I have no doubt that he would have understood the provocative acts of the members of Group Two as a challenge to a fight. I have no doubt that he knew, walking back to Mr. Hall’s position, confronting him face-to-face, that a fight was likely to result. He was prepared to go back nevertheless because he was prepared to and consented to fight.

I find that Mr. Hall and Mr. Italiano stood each other down, face-to-face, waiting for someone to make the first move. I accept Mr. Italiano’s evidence, corroborated by Mr. Davies, and otherwise unchallenged, that Mr. Hall flinched first. Now, whether a casual, but reasonable observer on the street would have perceived Mr. Hall’s movement as the signal bell to fight is something that will remain unknown, but in the dynamic, highly emotionally charged atmosphere outside the Junction that night, I am satisfied that Mr. Italiano came to the split second conclusion that the fight was on.

The Crown concedes that Mr. Hall and Mr. Italiano consented to an altercation, but defines the altercation as something short of a fist fight. In other words, there was a consent to a showdown, or exchange of harsh words, perhaps even some pushing and shoving, but not a consent to the throwing of punches. Mr. Italiano, the Crown argues, exceeded the mutual consent when he punched Mr. Hall in the face.

In my view, the evidence supports a finding that both Mr. Hall and Mr. Italiano were being aggressive and provocative and both would have understood in those circumstances that a physical altercation was the likely outcome - neither backed down from it. Both appear to me to have encouraged it by their actions. Trying to find an arbitrary line short of a fist fight as to how far their consent extended strikes me as artificial, and it is not consistent with the probabilities of the circumstances considered as a whole.

Once a consent to fight is established, it is only vitiated where the court concludes that the accused intended to cause serious bodily harm and where serious bodily harm is actually caused. See R.v. McDonald, [2012], O.N.C.A., at page 379. While serious bodily harm did occur on this occasion, I do not find that Mr. Italiano intended to cause it. The evidence I rely upon is both direct and circumstantial. Mr. Italiano testified, and I accept, that he did not put all of his force behind his punch and that he did not intend to hurt Mr. Hall. He said that he just reacted to Mr. Hall’s first move. He was surprised and upset to learn after his arrest that Mr. Hall had been seriously injured. His evidence is supported by Mr. Davies, a Crown witness, and it was otherwise uncontradicted. I accept it. Mr. Italiano only threw one punch. He did not follow that up with any further aggression, either physical or verbal. He simply turned and walked away and went home.

The law in Canada does not exclude the availability of a consent defence in circumstances of fist fights. The court must still, regardless of the nature of the fight, determine that there was an intention to cause serious bodily harm and that such harm ensued. As I said, I do not find such an intention present on the facts of this case.

I turn now to a brief examination of the self-defence argument. Our law provides that anyone who applies force to another person to defend himself does not commit a crime when his conduct comes within the limits the law imposes. Self-defence arises from the need for self-preservation. It is not Mr. Italiano’s responsibility to prove that he was justified in using force. It is Crown counsel’s responsibility to prove beyond a reasonable doubt that Mr. Italiano was not justified in using force. To determine the issue of self-defence, the following questions must be considered: First, did Mr. Hall unlawfully assault Mr. Italiano or did Mr. Italiano reasonably apprehend that he was being assaulted; and secondly, did Mr. Italiano use more force than necessary to defend himself. Given my factual findings on the issue of consent, I do not find that Mr. Hall unlawfully assaulted Mr. Italiano. Even if Mr. Hall did flinch or make an aggressive move towards Mr. Italiano, I find that Mr. Italiano consented to engage in a fight, and cannot, under the circumstances, complain that Mr. Halls’ actions were unlawful.

In the result, the determination of consent governs and self-defence does not apply.

Given my findings on the issue of consent, an acquittal will be entered. I do not wish this acquittal to be taken as acceptance or condonation of what happened here. The facts of this case demonstrate poor judgment on the part of a number of individuals, and certainly on the part of both combatants. Engaging in street-side brawls is not only brutish and uncivilized, but it is extremely risky behaviour for the parties involved. Moreover, it contributes in a direct and substantial way to the creation of an unsafe and unwelcoming atmosphere in the core of our communities. This type of behaviour is completely unacceptable and is to be resoundingly discouraged.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

I, Sharon Reynolds, certify that this document is a true and accurate transcript of the recording of R.v . Michael David Italiano in the Ontario Court of Justice held at 470 Water Street, Peterborough taken from Recording No. 3311-2-064-2012, which has been certified in Form 1.

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(Date) (Signature)