COURT FILE NO.: CRIMJ(P) 662/17 DATE: 2018 12 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN I. Singh, for the Crown
- and -
MICHAEL SAPIANO W. Jackson, for the defence
HEARD: October 16, 17, 18, 2018 at Brampton
REASONS FOR JUDGMENT
André J.
[1] Mr. Michael Sapiano is charged with one count of committing an aggravated assault on Kenneth Kotzan on August 30, 2016. He testified during the trial that he had acted in self-defence.
SUMMARY OF THE EVIDENCE
Mr. Kotzan’s Evidence
[2] Fifty-four-year-old Mr. Kotzan, testified that he used to be friends with Mr. Sapiano before their friendship ended suddenly after he received a number of threatening messages from Mr. Sapiano about two years ago. Mr. Sapiano accused him of theft and started to send him rather bizarre messages. The messages suggested that things were going to happen and that Mr. Kotzan should watch what he was doing.
[3] In one incident prior to August 30, 2016, Mr. Sapiano charged Mr. Kotzan, who was riding a bicycle at the time, “like a raging bull”. Mr. Kotzan rode away on that occasion. Mr. Sapiano later sent him an incoherent message.
[4] Mr. Kotzan testified that on August 30, 2016, he was riding his bicycle westbound on Bloor St. in Mississauga at approximately 10 to 15 kph on his way to visit two friends, when Mr. Sapiano again approached him “like a raging bull”, and punched him on the right cheek bone. Mr. Kotzan fell to the ground, unconscious. When he regained consciousness, someone was stomping on him. Mr. Kotzan recalled that Mr. Sapiano was wearing dirty coveralls, a hat and work boots at the time of the assault.
[5] Mr. Kotzan suffered a broken clavicle and cheekbone, nine broken ribs and swelling and bruising to his face. He was hospitalized for four days.
[6] Under cross-examination, Mr. Kotzan admitted to having a criminal record of criminal harassment and theft under. He conceded that he was also convicted in 1995 for uttering threats and in 2004 for two counts of criminal harassment, one count of failing to comply and another of uttering threats; and in November 2006, one count of theft under and another of failing to comply. Mr. Kotzan explained that he had received a document from Pardons Canada which led him to believe that he had been pardoned for these additional offences. Mr. Kotzan denied that he had a few words with Mr. Sapiano before the assault and that he said to Mr. Sapiano: “Motherfucker, I got or caught you”. He also denied getting ready to strike Mr. Sapiano before the accused punched him.
Ms. Kidd’s Testimony
[7] Maxine Kidd testified that she was driving westbound on Bloor Street in the left lane when she noticed a man on a bicycle heading westbound. The man was riding on the sidewalk. When the cyclist approached the accused, the latter extended his hand and punched the cyclist who immediately fell to the ground with his head striking the concrete pavement.
[8] “He didn’t see it coming at all”, Ms. Kidd testified.
[9] Ms. Kidd further testified that “out of nowhere [the] punch knocked the gentleman from the bike”.
[10] Ms. Kidd then pulled to the side and went to the cyclist to render assistance. He was bleeding from the nose.
[11] When defence counsel put to Ms. Kidd that the cyclist was trying to hit the accused, she replied that that wasn’t the case. She described the action as “one quick punch to the head.”
[12] Ms. Kidd testified that the cyclist was unconscious when she arrived on the scene but regained consciousness when an ambulance arrived.
[13] Following the incident, the male who had struck the cyclist continued to walk eastbound on Bloor Street towards an Islamic Centre in the area. He continued to walk at the same pace he was walking before he struck the cyclist. The male was wearing some kind of work overalls. He wore a hat and had a satchel over his shoulder. Ms. Kidd testified that she was forty feet away from the incident when it happened. In cross-examination, she reiterated that she saw no confrontation between the two men when the unknown male struck the cyclist.
Mr. Sapiano’s Evidence
[14] The 61-year-old accused testified that his friendship with Mr. Kotzan ended in the middle of 2014 because of Mr. Kotzan’s drinking. In one incident before August 30, 2016, Mr. Kotzan met him close to a McDonald’s restaurant, said something derogatory to him, gave him the finger and continued riding. He denied ever approaching Mr. Kotzan “like a raging bull”. He admitted sending Mr. Kotzan text messages before 2014.
[15] On August 30, 2016, he was walking eastbound on the north side of Bloor Street in the late afternoon. He saw Mr. Kotzan riding westbound on the south side of Bloor Street. As he approached, Mr. Kotzan started yelling at him. Mr. Kotzan went past Mr. Sapiano, turned around, crossed the road and came towards him on the north side of Bloor Street.
[16] While doing so, Mr. Kotzan continued shouting and yelling. When Mr. Kotzan was twenty feet away from Mr. Sapiano, Mr. Kotzan yelled at Mr. Sapiano: “Motherfucker, I got you, I caught you”.
[17] Mr. Kotzan then took his hand from the handlebar of his bicycle and made a fist. Mr. Kotzan was some ten feet away when he removed his hand from the handlebar. Mr. Sapiano punched Mr. Kotzan in the face after he saw that Mr. Kotzan had made a fist.
[18] “He was moving his hand out to hit me”, Mr. Sapiano testified.
[19] Mr. Sapiano further testified that Mr. Kotzan was riding “fast enough to make me scared”. After striking Mr. Kotzan, he walked away as if nothing had happened and without rendering any assistance.
ANALYSIS
[20] Defence counsel submitted that pursuant to s. 34(1) of the Criminal Code, Mr. Sapiano acted in self-defence in that he used reasonable force to defend himself from being attacked by Mr. Kotzan. He submits that the Crown has failed to prove beyond a reasonable doubt that in punching Mr. Kotzan, Mr. Sapiano had not acted in self-defence.
The Law
[21] Section 34(1) of the Code provides that:
Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he used is not intended to cause death or grievous bodily harm and is no more necessary to enable him to defend himself.
[22] Section 37 of the Code provides that:
(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
[23] In R. v. Antley, [1963] O.J. No. 853, the Ontario Court of Appeal noted at paras. 10 and 11 that it is not necessary for a person to “wait until he has first been struck before using any force against his attacker. If he has reasonable grounds for apprehending immediate and impending danger from his attacker he is justified in law in striking the first blow, if he reasonably deems it necessary for his own protection”.
[24] In R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, Hourigan J.A. noted the following at para. 28:
The test for self-defence was, therefore, simplified into three basic requirements, applicable to all cases:
(i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;
(ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and
(iii) Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.
[25] The burden is on the Crown to prove that the accused did not act in self-defence: see R. v. Petel (1994), 87 C.C.C. (3d) 97 (S.C.C.) at p. 104; R. v. Butter, [2010] O.J. No. 698 (S.C.J.), at para. 2.
[26] In R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 29, the Court of Appeal noted the following:
As Professor Paciocco notes at p. 36:
The law's readiness to justify "mistaken self-defence" recognizes that those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made.
Application of the Law to the Evidence
[27] Did Mr. Sapiano, find himself in a situation of perceived peril such that he was required to use reasonable force to repel an impending attack against him? Clearly, if I accept Mr. Sapiano’s version of events, or alternatively find that it raises a reasonable doubt in the Crown’s case, the defence of self-defence would have been made out and Mr. Sapiano is entitled to an acquittal. However, I have a number of concerns about Mr. Sapiano’s testimony concerning what happened between Mr. Kotzan and himself on August 30, 2016.
[28] First, Mr. Sapiano’s testimony clearly reveals that he harbours a great deal of animosity towards Mr. Kotzan. He initially testified that Mr. Kotzan had ridiculed him for years. Under cross-examination, he testified that Mr. Kotzan’s drinking made him “very annoying” and that he “didn’t particularly care for him”. He also testified that he wasn’t fond of Mr. Kotzan.
[29] Second, Mr. Sapiano has a record for dishonesty which negatively impacts his credibility. Between 1999 and 2011, he was convicted on five separate occasions for the offence of theft under $5,000 and one conviction for possession of property obtained by crime under $5,000.
[30] Most importantly, Mr. Sapiano’s testimony was directly contradicted by the testimony of Maxine Kidd, the only independent witness in this incident. There is no evidence of any collusion between Ms. Kidd and Mr. Kotzan. Neither is there any evidence that she did not have an unobstructed view of the incident or she was mistaken in what she observed. Indeed, she was unshaken in cross-examination about her version of the events she had witnessed.
[31] Inexplicably, defence counsel made no reference to Ms. Kidd’s testimony during his submissions although her testimony significantly contradicted Mr. Sapiano’s testimony in many respects. For example, she denied that Mr. Kotzan had tried to hit Mr. Sapiano. To the contrary, she testified that it was “one quick punch to the head”. She reiterated in cross-examination that there was no confrontation before the punch she had seen. She testified that Mr. Kotzan was not riding fast at all and was going slowly while Mr. Sapiano testified that Mr. Kotzan was riding “fast enough to make me scared”. Furthermore, Ms. Kidd testified, regarding the punch she had observed: “He [i.e. Mr. Kotzan] didn’t see it coming at all”. Finally, Ms. Kidd testified that she did not hear Mr. Kotzan say anything while Mr. Sapiano testified that Mr. Kotzan was shouting and yelling at him.
[32] Furthermore, Ms. Kidd’s testimony corroborates Mr. Kotzan’s testimony that this was an unprovoked assault. Ms. Kidd’s testimony also corroborates Mr. Kotzan’s testimony that he fell to the ground after being assaulted and about the clothing worn by his assailant at the time of the incident.
[33] For the above reasons, I find that Mr. Sapiano’s version of events is unworthy of belief and is incapable of raising a reasonable doubt in the Crown’s case.
[34] That said, I have some concerns about Mr. Kotzan’s testimony. He understated his criminal record although it appears that he honestly believed that he had been pardoned by the Canadian government. Second, there is some internal inconsistency in his evidence given his testimony that he saw Mr. Sapiano stomp on him despite his testimony that he became unconscious after Mr. Sapiano punched him in the face. Third, he gave a prior inconsistent statement that he was on foot when he was punched. However, this could be explained by the fact that he suffered facial injuries and was hospitalized when he spoke to the police. Fourth, Mr. Kotzan testified at the preliminary hearing, on September 18, 2017, that he was punched twice in the face. He also told the police he had earlier consumed four beers before Mr. Sapiano assaulted him.
[35] That said, Mr. Kotzan’s trial testimony is corroborated by that of Ms. Kidd on the critical issues in this trial. Her testimony corroborates Mr. Kotzan’s testimony that it was an unprovoked assault, and that Mr. Kotzan had not tried to strike Mr. Sapiano before the assault. Furthermore, Ms. Kidd’s testimony confirmed that of Mr. Kotzan to the effect that he was riding slowly when he was suddenly punched by Mr. Sapiano.
[36] I am therefore satisfied, based on the totality of the evidence I accept, that the Crown has proven Mr. Sapiano’s guilt beyond a reasonable doubt.
CONCLUSION
[37] I find Mr. Sapiano guilty of aggravated assault.
André J.