R. v Giardino, 2023 ONSC 2917

Court File and Parties

COURT FILE NO.: CR-22-0028 DATE: 2023-05-15 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Natasha Jerome, for the Crown

- and -

LEON GIARDINO Kendra Stanyon and Justis Danto-Clancy, for the Accused Accused

HEARD: March 7, 2023 at Thunder Bay, Ontario Regional Senior Justice B. R. Warkentin

Reasons on Pretrial Application to Admit Evidence

1The Crown seeks to introduce evidence to demonstrate similar acts and prior discreditable conduct of the accused as part of their case against Mr. Giardino. The accused is charged with 9 counts of assault, one count of assault with a weapon, one count of assault with choking against his spouse, Santina Giardino, the complainant. He is also charged with one count of mischief, one count of uttering threats, one count of harassment and three counts of failing to comply with his release order. These allegations span the course of approximately eight years from 2013 to 2021.

2In addition to the complainant, the Crown seeks to call nine witnesses in chief who will testify about the accused’s conduct and his nature. She also expects to call six police officers. The Crown also seeks to call two additional witnesses in reply, in anticipation that the defence will argue that the complainant has fabricated her evidence.

3The Crown has acknowledged that the evidence of many of the witnesses is presumptively inadmissible however, she argued it should be admitted in this trial because the defence has indicated its intention to argue that the evidence supporting the charges is fabricated, and that the complainant had a motive to fabricate the evidence. She contends that admissibility would be for the limited purpose of rebutting the defence theory of the case.

[4] The witnesses the Crown proposes to call in chief are: a) Santina Giardino (the complainant), b) Lucas Giardino (adult son), c) Alex Giardino (adult son), d) Samuel Giardino (minor son), e) Lucy Felice (sister of complainant), f) Patricia Maltese (friend of complainant), g) Dr. Arlene Capricci (complainant’s family doctor), h) Wasim Salim (employee of accused), i) Allair Nolin (employee of accused), j) Maxwell Ukrainec (brother-in-law of complainant), and k) Six police witnesses.

[5] The Crown seeks to call two reply witnesses: a) Frank Deleo (brother of complainant), and b) Grace Ukrainec (sister of complainant).

6Counsel for the defence does not object to the complainant and two of the parties’ sons, Lucas Giardino and Samuel Giardino testifying. There may be some redaction required to Samuel Giardino’s evidence because he is a minor and a prior statement may be sought to be introduced. I directed the Crown and defence to attempt to reach agreement on any redactions that may be required and that I would rule on only those requested redactions where there is disagreement.

7It was the position of counsel for the defence that all the remaining witnesses proposed by the Crown, with the exception of the police officer witnesses, should not be permitted to testify because none of their evidence relates to the offences for which the accused is charged.

8Counsel for the defence also indicated that she anticipated that there will be an Agreed Statement of Fact for most if not all the evidence to be introduced by the police witnesses. Again, I directed counsel to attend to that in advance of the trial for trial efficiency.

9During the pretrial application, Crown and defence directed me to review the Will Say Statements of the proposed witnesses. These statements were prepared for the preliminary hearing and it was agreed that these statements were sufficient to address the evidentiary issues in this pretrial application.

10I provided oral rulings denying the Crown’s application to admit evidence from Patricia Maltese, Wasim Salim and Allair Nolin. The proposed witness Maxwell Ukrainec was added to the Crown’s proposed witness list, however, there was nothing provided to the defence or the court regarding the evidence that Mr. Ukrainec would provide and therefore the application to admit his testimony is also denied.

[11] The evidence sought to be introduced from the remaining witnesses that defence opposes is as follows: a) The parties’ son, Alex Giardino will testify to his observations of his father’s conduct in the home and in his business. He recounted four instances in his Will Say Statement: i) In the summer of 2008, at age 10, he observed his father and mother having a verbal argument while they were outside doing yardwork. In the course of that argument, he observed his father swing a functioning weed whacker at his mother while calling her names and swearing at her. ii) In the winter of 2009, he observed his father assault his brother, Lucas, with a snow shovel. His father was angry at Lucas for not having all the snow cleared during a snowfall. iii) In the summer of 2017, his father came into Alex’s bedroom and began yelling at him for not getting up and doing his chores. His father called him names and then grabbed him by the neck. iv) In the summer of 2019 Alex worked in the family business and observed his father calling the other employees names. His mother also worked in the family business and during this summer he saw his father demean his mother, call her names and on one occasion his father threw papers at his mother while screaming at her. b) Lucy Felice, the sister of the complainant would testify about an incident when the complainant showed up at Lucy’s home with the children in the middle of the night: i) The complainant told Lucy that the accused had become very angry and was smashing the dishes in the sink that she had not washed. The complainant told Lucy that the accused was also throwing dishes at her. The children woke up to see this conduct and out of fear, the complainant took the children and fled to Lucy’s home. ii) The next morning, after the complainant left for work and the children had gone to school, the accused showed up at Lucy’s home looking for the complainant. He was yelling and smashed the doorbell buzzer, threatening to knock the door down. The accused left when a neighbour threatened to call the police. iii) Lucy Felice will also testify about the accused’s controlling behaviour. When their mother was dying, he dictated the amount of time the complainant was able to spend with her mother in the hospital. At their mother’s funeral she overheard the accused tell the complainant to stop being a drama queen and if she cried, he would give her something to cry about. c) Dr. Arlene Capricci, the complainant’s family physician will testify that during a physical examination of the complainant in January of 2019, she observed a large bruise on the complainant’s inner left thigh and when questioned about it the complainant told her that the accused had thrown a remote control at her.

12The Crown also seeks to introduce a medical note from September 1992 from a different physician, a Doctor B.J. Hartford, who saw both the accused and the complainant. The purpose of that visit appears to be for the accused to seek counselling for anger control issues. In that meeting the accused apparently agreed to seek counselling, and the physician made referrals to that effect.

13Dr. Hartford is not available to testify. The Crown seeks to introduce this medical record as a business record and an admission by the accused to violence towards the complainant.

14The defence opposes the introduction of this record arguing that this is not a business record, and it is also the accused’s private medical record that he had not consented to producing and therefore it is inadmissible.

[15] In reply, the Crown seeks to call the complainant’s brother, Frank Deleo and her other sister, Grace Ukrainec: a) Frank Deleo will describe the accused’s rage against the complainant; that the accused would yell and scream at her and call her names. He will also describe the controlling nature of the accused, in particular, regarding not permitting the complainant to visit her mother in the hospital or to spend time with other family members. He will also describe an incident when their mother was dying, and the accused prevented the complainant from leaving the car to visit with her mother. How Frank had to send an older uncle to intervene to get the complainant into the hospital. He has witnessed the accused push the complainant, pull her hair and spit in her face. b) The Crown also submitted that Frank Deleo would testify that the complainant had her credit card statements sent to their parent’s home so that the accused would not be able to control her finances or to get angry when he would see what she was spending. This evidence is not in his will say statement. c) Grace Ukrainec will describe the controlling nature of the accused that includes the same information about not permitting the complainant to visit her sisters and her mother. She will also describe the accused’s controlling nature over the parties’ finances. He is so controlling that he reviewed all her bank account and credit card statements and if she has purchased something he did not like he would destroy it. She observed him calling her names and insulting her on a regular basis.

16The Crown acknowledged that the evidence sought to be adduced by these witnesses does not describe any of the offences for which the accused is charged. She submitted, however, that this evidence is material because it demonstrates the accused’s violent nature and, in some cases, describes other incidents of physical abuse as against the complainant.

17It was the Crown’s position that this evidence should be admitted for the purpose of supporting the complainant’s evidence of the climate of the parties’ marriage and to support the credibility of the complainant and the lack of credibility of the accused, when his defence will be that the complainant was fabricating her evidence.

18It was defence counsel’s position that all the proffered evidence, in addition to being presumptively inadmissible, is highly prejudicial and does not meet the exception for admission.

19The Crown relied upon the case of R. v. Z.W.C., 2021 ONCA 116 as support for her request for inclusion of the above noted prior discreditable conduct evidence is relevant, material and, on the balance of probabilities, that its probative value outweighs its prejudicial effect (para 97).

20In Z.W.C., Chief Justice G. Strathy noted that admitting evidence of this nature should be in exceptional circumstances, and set out the following guidance for judges when considering whether to admit this evidence (at paras. 98 and 99):

98The assessment of the probative value of the evidence requires the trial judge to consider: (a) the strength of the evidence that the extrinsic acts in question occurred; (b) the connection between the accused and the similar acts, and the extent to [page153] which the proposed evidence supports the inferences the Crown seeks to make (sometimes referred to as the "connectedness" between the similar act evidence and the "questions in issue"); and (c) the materiality of the evidence -- that is, the extent to which the matters the evidence tends to prove are live issues in the proceeding: see David Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 74-75.

99The second and third factors must not be glossed over. The Crown must be prepared to establish exactly what inferences it will be asking the jury to draw from the evidence, and the extent to which the evidence tends to permit those inferences.

21Evidence of uncharged prior discreditable conduct has frequently been admitted in domestic violence cases to describe the nature of the parties' relationship, sometimes referred to as “context” or “background”. It has also been used to establish “animus”. Establishing animus may be relevant to both the actus reus and the mens rea of the offences. It is for these reasons the evidence may have probative value (Z.W.C. at paras. 106 and 107).

22Where such evidence demonstrates a "strong disposition" to act violently towards the victim, it is not being used to prove the bad character of the accused but to support the specific inferences that the accused is disposed to act violently towards the victim and that the accused had that disposition on the occasion in question (Z.W.C. at para. 107, citing The Law of Evidence, at p. 90).

23Strathy, CJ in Z.W.C. noted that whether to include discreditable conduct evidence is case specific. At paragraph 108 he made the following comments:

108In H. (J.), at paras. 54-55, Watt J.A. observed that the exercise of whether or not to admit the uncharged prior discreditable conduct evidence in domestic assault trials is inherently case-specific. He described this as follows:

Whether the evidence will be admitted by exception or excluded under the general rule is a function of the circumstances of each case. These circumstances determine where the balance as between probative value and prejudicial effect will settle, not some prefabricated rule or exclusive list of exceptions: J.A.T., at para. 54.

Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:

i. as part of the narrative of relevant events; ii. to provide context for other evidence; iii. to facilitate understanding of the nature of the relationship between the principals; iv. to demonstrate motive or animus on the part of the accused for committing the offences; v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and vi. to rebut a claim of fabrication.

24The Crown contends that the evidence proposed is necessary for all the issues identified above. It was her position that the probative value outweighs the prejudicial effect and should be admitted considering the defence position that the complainant has fabricated the allegations of domestic assault.

25The Crown acknowledged that the evidence demonstrates “bad character” by the accused but that because this is a judge alone trial, the risk of either propensity reasoning or moral reasoning that the accused is a bad man and therefore is guilty of the offences charged, is minimal.

26Counsel for the defence argued that the Crown has not discharged her onus to provide a specific foundation for the admission of this evidence in order for the court to appreciate the nature and scope of the evidence it proposes to adduce, and to assess whether the probative value exceeds its prejudicial effect. (Z.W.C. at para. 123)

27Defence counsel noted that in the Crown’s materials filed in this application, the Crown provided “hints” of the proposed evidence. At the hearing, the Will Say Statements were introduced at the request of defence counsel to provide a stronger foundation for the proffered evidence. Defence counsel submitted that almost all the proposed witnesses, to whose evidence the defence objects, is hearsay in nature and is with respect to uncharged conduct of the accused.

28I agree with the position of the defence. The proffered evidence from these witnesses is highly prejudicial to the accused. While the evidence may relate to the issues identified in paragraph 108 of Z.W.C., to admit the evidence from the proposed witnesses would have the effect of being used to prove bad character of the accused, regardless of the contention that it is only being used to support the specific inference that the accused is disposed to act violently towards the complainant.

29The Will Say Statements describe someone who is mean, disrespectful, emotionally abusive and controlling. The statements do not describe domestic assault as defined in the Criminal Code, except as hearsay or vague references to observations.

30The proposed evidence is also unnecessary in assisting the court in understanding the evidence that will be admitted. Much of the proposed evidence would tend to bolster the evidence of the complainant and lead to the risk and appearance of impermissible reasoning should the accused be convicted. The probative value does not exceed its prejudicial effect, having regard to both moral prejudice and reasoning prejudice.

31I therefore find that the witness evidence sought to be introduced by the Crown that the defence opposes is denied. Notwithstanding this ruling, the complainant, and the parties’ two sons who will testify, may be provided leeway to describe the conduct of the accused in the family setting as part of the narrative of their evidence. I will address that evidence during the course of the trial, should an objection arise.

Notice of Application for Dismissal

32In addition to objecting to the proposed disreputable conduct evidence, defence counsel argued that the Crown’s application should be dismissed regardless of the merits, on the basis that the application was filed late, it was formally deficient and failed to include a factum 30 days prior to the hearing and did not file a Book of Authorities.

33Because I have dismissed the Crown’s application on the merits, it is unnecessary to rule on the application for dismissal.

Regional Senior Justice B. R. Warkentin