COURT FILE NO.: CR-22-0028-00 DATE: 2023-06-28
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: May 23, 24, 25, 26, 29 and 30, 2023 at Thunder Bay, Ontario
Justice B. R. Warkentin
Reasons for Judgment
[1] The accused, Leon Giardino is charged with 17 counts on an 18-count indictment. Count 17 was withdrawn at the commencement of trial. There are nine counts of assault pursuant to s. 266 of the Criminal Code, two counts of assault with a weapon contrary to s. 267(a) of the Code, one count of choking while committing an assault contrary to s. 267(c) of the Code, one count of mischief, contrary to s. 430(4) of the Code, one count of uttering threats contrary to s. 264.1(1)(b) of the Code, two counts of failing to comply with a release order contrary to s. 145(5)(a) of the Code and one count of harassment contrary to s. 264(1),(2)(c) of the Code.
[2] The charges are with respect to allegations of domestic abuse against the accused’s former spouse, Santina Giardino, that occurred between 2013 and 2021.
[3] The accused and Ms. Giardino were married in 1988 and separated on July 10, 2021. They separated on the day that Ms. Giardino called 911 to report that she had been assaulted by her spouse. The charges in this indictment are with respect to nine separate incidents.
[4] The Crown called three witnesses: Santina Giardino, Lucas Giardino (the oldest of three sons of the accused and Ms. Giardino) and Staff Sergeant Lori Quinlan of the Thunder Bay Police Service. The Crown and defence also entered an Agreed Statement of Facts that included certain video recordings as well as the transcript from the bail hearing of the accused. A portion of the statement to the police that was provided by the youngest son of the accused and Ms. Giardino was entered on consent. There is a publication ban with respect to his identity due to his age, therefore he will be referred to as the youngest son in these reasons.
[5] At the conclusion of the Crown’s case I directed a verdict of dismissal of count 13, assault s. 266 of the Code and count 16, harassment s. 264(1),(2)(c) of the Code.
[6] The accused also testified and denied the allegations against him.
[7] I delivered brief oral reasons on June 22, 2023. I indicated that these written reasons would follow.
Background History
[8] The accused and Ms. Giardino were married in 1988 and separated on July 10, 2021. They have three sons, the oldest, Lucas is 28, the middle son is 24 and the youngest son is 15.
[9] The accused operated two businesses, Mileage Auto Inc. located on the same property as the family home on Kline Road, and Mileage Auto Plus operates out of a business location on Simpson Street in Thunder Bay. The businesses in July of 2021 were owned by the accused, 50%, Ms. Giardino, 49% and Lucas, 1%. Mileage Auto Inc. ceased operation in July 2021 after these charges were laid. Mileage Auto Plus is currently operated by the accused.
[10] It was an original condition of the accused’s release order that he not be within 100 meters of the family home on Kline Road or anywhere he knew her to be. The release orders were amended over time. The relevant release order for count 18 on the indictment required the accused to remain in his home unless in the presence of his surety. There were some exceptions, one of which was for the purposes of traveling to, from and while at employment duties for Mileage Auto Plus.
Summary of the Allegations
[11] The evidence at trial regarding the alleged incidents of assault and related offences are as follows:
Incident #1, December 24, 2013 (Count 1, Assault)
[12] Ms. Giardino testified that the family attended a Christmas Eve dinner at her sister’s home. At trial she thought this event might have been in 2017 but was uncertain. She noted that it was common for the families to celebrate Christmas together. She recalled that their youngest son was around six years of age.
[13] Ms. Giardino stated that the accused warned her in advance that when he told her it was time to leave, she was to pick up their youngest son and get into the car.
[14] When the accused told her it was time to leave, their older sons did not want to go, and Ms. Giardino asked the accused if they could stay a bit longer. This request was denied and when they were in the car driving home, Ms. Giardino testified that the accused began punching her on her leg and shoulder.
[15] In the statement of the youngest son, he testified about a lot of verbal arguments and other incidents, but did not mention that there was punching when in the car.
[16] The defence acknowledged that Ms. Giardino’s confusion about the date of this incident was not material to her evidence because she was clear about the age of the youngest son. However, Mr. Giardino denied that he assaulted Ms. Giardino in this fashion on this date or any other date.
[17] The accused vaguely recalled the evening and said that they had argued about going home at a reasonable time. He claimed that notwithstanding the agreement to leave when he decided it was time to leave, Ms. Giardino wanted to stay later and this caused them to argue.
Incident #2, February 4, 2017 (Count 2, Assault)
[18] Ms. Giardino and the accused took their youngest son and a friend of his to dinner at Kelsey’s restaurant for their son’s birthday. During the dinner, the accused saw a text on Ms. Giardino’s cell phone. The text was from her brother letting her know that her Mastercard had arrived at their mother’s home.
[19] Ms. Giardino alleged that the accused grabbed her phone and was yelling at her in the restaurant. She tried to calm him down, but he picked up his plate of food and smashed it down on the table in front of her. She stated that “boy did I get it when I got home”. She did not testify about the details of the alleged assault that happened when they got home.
[20] The accused recalled this incident. He was upset that Ms. Giardino would not have told him that she was getting a secret credit card. He found this to be very disrespectful of him. He confirmed that they argued about it but denied that he threw a plate of food at her or raised his voice in the restaurant. He stated that when they returned home, they had a discussion about this, but at no time did he assault her.
[21] The youngest son did not provide any evidence regarding this incident, although he was present in the restaurant when the accused became angry.
Incident #3, April 28, 2017, (Count 3, Assault)
[22] Ms. Giardino testified that she wanted to attend her uncle’s 80th birthday party at a restaurant in Thunder Bay called New York Subs. She claimed that she snuck out of the house with some clothes to change into for the party because she knew that the accused would not let her attend. She claimed the accused did not like her family. She went to her sister’s home to change and then drove to the restaurant.
[23] Ms. Giardino alleged that the accused had followed her and when she got out of her car he also got out of his car, and he began calling her names and then pushed her against the wall of the restaurant and choked her. She testified that while she was being choked, to get him to stop, she told him that her family was expecting her and that he could also come to the party. She claimed he then released her and let her go inside and he followed her inside a short time later.
[24] The defence noted that her evidence at trial was inconsistent with the information she provided to the police. In her statement to the police, she did not include information about going to her sister’s first to change or that they parked near the curling club (close to the restaurant). In her statement to the police, she described the incident coming to an end when another car came into the parking lot.
[25] The accused testified that he had wanted to attend the party as a family, but that he was working late that evening. He said he asked Ms. Giardino to wait for him so they could go together, but she did not wait. He claimed he arrived at the party on his own. He denied that he followed Ms. Giardino or that he assaulted her outside the restaurant.
Incident #4, July 15 - 22, 2017 (Counts 4 & 5, Assault)
[26] In July 2017, Lucas Giardino, the accused and Ms. Giardino’s oldest son, purchased a home. He was there with the accused doing some repairs/improvements prior to moving in. Ms. Giardino testified that Lucas called her and told her he was feeling very ill, and that the accused would not let him go to the hospital. Ms. Giardino picked up Lucas and took him to the hospital where it was discovered that Lucas had a ruptured appendix and required emergency surgery.
[27] Lucas also testified and confirmed that his father refused to permit him to go to the hospital and was calling him names, accusing him of being a “fucking pussy” and that he was not as ill as he was alleging. Lucas then called his mother for assistance and confirmed that his parents argued about how ill he was. He was in the hospital for a few days after the surgery and then again for a few weeks because of an infection.
[28] Ms. Giardino testified that she returned to the family home after leaving the hospital and sometime later Mr. Giardino came home. She said that the accused told her he had got into an argument with Lucas’s girlfriend. Ms. Giardino testified that her immediate response was to ask the accused what he had said to the girlfriend that caused the argument. She claimed that this enraged the accused because she was taking the girlfriend’s side instead of his, and that the accused began to punch and kick her.
[29] The accused agreed that Lucas was taken to the hospital by Ms. Giardino and was diagnosed with a ruptured appendix. He denied refusing to let Lucas go to the hospital. (I note here that this information was admitted for background information regarding the narrative of the allegations that make up these charges and not for any other purpose.)
[30] The accused confirmed that he got into an argument with Lucas’s girlfriend about some of the work he was doing on Lucas’s house. He said that he felt disrespected by her because she was telling him what to do. When he went home, he told Ms. Giardino about the argument and was upset when she took the girlfriend’s side instead of his. The accused agreed that they had an argument and that he felt he had been disrespected because Ms. Giardino favoured Lucas’s girlfriend over him.
[31] He denied punching her or assaulting her in any way.
[32] The defence pointed to inconsistencies in Ms. Giardino’s evidence. At trial she alleged that she was punched in the stomach and that he pulled her hair. In her statement to the police on July 18, 2021, she alleged she was kicked and spit on and did not mention hairpulling or being punched.
Incident #5, October 8, 2018 (Counts 6 & 7, Assault)
[33] Ms. Giardino made plans to attend a family wedding in Toronto. She had asked the accused in advance, and he agreed that she and their youngest son could attend. She claimed that as she was packing her suitcase, the accused became enraged, accusing her of purchasing a new suitcase without his permission. She alleged that he grabbed the suitcase and threw her clothes out of the suitcase and then assaulted her by kicking, hitting her and grabbing her by the hair.
[34] The accused denied having ever thrown her clothes out of a suitcase or assaulting Ms. Giardino about going to a wedding.
[35] In cross-examination, Ms. Giardino testified that she could not recall the exact order of the assault, but recalled being kicked, punched in the stomach and having her hair pulled.
Incident #6, June 19, 2021 (Counts 8 & 9, Assault with a Weapon)
[36] Ms. Giardino testified about an incident that occurred in the garage located on the family property. The garage was a large space where some of the accused’s business was conducted. She went into the garage to speak with the accused about selling a “side-by-side” vehicle that belonged to their youngest son. She alleged that she was begging him not to sell it. While they were talking, she claimed he grabbed a hose and was coming after her with it.
[37] Ms. Giardino alleged that she was assaulted with both the hose of an air compressor and a water hose. Because she had turned and walked away, she could not say exactly what struck her, but that she felt water being sprayed on her back and head.
[38] This incident is captured on a video camera from inside the garage. There is no audio, but there are two separate camera angles. The video shows Ms. Giardino entering the garage and having a discussion with the accused. The accused is seen pulling down what is described by the accused and their son, Lucas who was present in the garage on that day, as an air compressor hose.
[39] The video then shows Ms. Giardino walking away and the accused following with the air compressor hose in his hand. The video shows him using the hose near the side-by-side, but Ms. Giardino is not visible in the camera angle, although she had just walked out of the garage.
[40] Lucas also testified about this incident. He was present during the argument; however, he had not given the police a statement regarding this incident but had supplied the video footage to them. Lucas testified that he saw the incident and that he saw his father spray his mother with the hose.
[41] The accused testified that he never sprayed Ms. Giardino with the hose, but was using it to wash the side-by-side.
[42] Defence counsel submitted that Lucas’s evidence at trial should be given little weight. She argued that Lucas was present during the interviews Ms. Giardino had with the police and it was not until shortly before giving his evidence at trial that he said he had observed these assaults.
[43] She also argued that the video does not show an assault as alleged by Ms. Giardino and Lucas. In this instance, the accused’s denial of the assault is supported by the video evidence. Defence also submitted that the video only shows one argument, not the two separate ones that Ms. Giardino alleged.
[44] The Crown argued that the video does show that the accused used the air compressor hose to spray Ms. Giardino and that Ms. Giardino and Lucas should be believed.
Incidents #7 on June 20, 2021, #8 on July 7, 2021, and #9 on July 10, 2021
[45] Incidents 7, 8 and 9 are part of an ongoing series of alleged assaults that resulted in the July 10, 2021, call by Ms. Giardino to the police. Ms. Giardino described what she referred to as escalating anger by the accused during this period of June and July in 2021. She decided that it was time for her to leave the accused and indicated she consulted a family lawyer.
[46] Ms. Giardino testified that the accused began targeting their youngest son who was about 13 years of age at that time. She stated that the accused would call their son names and began taking away his privileges such as the selling of the side-by-side and not permitting him to use his computer/electronic devices. The accused then began harassing their son when he was in the shower.
[47] The youngest son confirmed that the accused’s anger during this time was causing a lot of conflict in the home. Both he and Ms. Giardino described an incident where they were going to the marina with the accused and the accused became very angry when the son was struggling with helping to get the boat ready. The accused began calling the youngest son names, and the son ran away. Ms. Giardino described getting back in the car and picking up the son and they discussed that Ms. Giardino was going to leave the accused.
[48] This started a period of Ms. Giardino and the youngest son moving around by staying at Lucas’s home, Ms. Giardino’s sister’s home and on one occasion in a hotel. They would return to the family home later in the evening when they hoped the accused would be in bed to shower and collect fresh clothing and at times stay the night.
[49] The youngest son corroborated Ms. Giardino’s testimony about the fact that they would stay with his older brother, Lucas or one of Ms. Giardino’s sisters during this period and on one occasion they stayed in a hotel because it was too late to ask Lucas or Ms. Giardino’s sister to let them stay.
Incident #7 on June 20, 2021 (Count 10, Mischief)
[50] Ms. Giardino described the accused as becoming enraged when their youngest son would take showers. Ms. Giardino stated that the accused would bang on the bathroom door when their son was in the bathroom, demanding that he get out of the bathroom. In this incident she described that his anger reached the point where he damaged the bathroom door by hitting it so hard. He cracked the door and there were holes as a result.
[51] The youngest son confirmed that the accused would get angry when he tried to shower. He described that the accused would “start banging on the bathroom door and yelling. And if I’m not out in time, he’ll do something like, again, break something. Uh, there was one time where he, uh, ripped off the shower head completely.”
[52] The accused denied that he was the one who punched holes in the door. Defence counsel submitted that without confirmatory evidence of the damage to the property from the date the allegation was made, such as photos of the damage, the count must fail. She noted that Ms. Giardino provided older photos to the police and could not explain why she had not provided evidence about the holes she claimed were made on June 20, 2021.
[53] The accused agreed that he had been angry with their youngest son for taking showers late at night. He claimed that the bathroom was located next to his bedroom and that the noise of the shower prevented him from being able to sleep.
[54] The accused denied causing damage to the bathroom door. He acknowledged there was damage to some of the doors in the house, but not to the bathroom door. He could not explain how the damage occurred.
Incident #8 on July 7, 2021 (Count 11, Assault; Count 12, Assault by Choking)
[55] On the night of July 7, 2021, Ms. Giardino and the youngest son had returned to the family home in the evening as had been their habit in recent days. The youngest son was in the bathroom and planning to have a shower. The accused began yelling at him to get out of the shower. Ms. Giardino used her cell phone to record the accused’s anger.
[56] Ms. Giardino was asking the accused to leave their son alone and let him shower. The video records a very angry accused calling Ms. Giardino and their son ugly names. He is accusing her and their son’s plan to shower of being the cause of his anger. Ms. Giardino is heard telling him not to hit her and he responds by calling her a “fucking farmer” and saying: “the beatings you did on my fucking brain over the years were unbearable” and then, “you are a fucking farmer, a destroyer”. The recording lasts for approximately three minutes and the accused continues to swear and call Ms. Giardino names. She threatens to call the police if he hits her.
[57] During the argument on the video, Ms. Giardino is also heard asking the accused to turn the water back on so that their son can have his shower. The accused had gone into the basement/crawl space of the home and turned off the hot water. It was at this point that the recording stopped.
[58] Ms. Giardino explained that the repeated references to her being a farmer relate to the low opinion the accused has of her and her family; that this was a common insult he used towards her and to members of her family during their marriage.
[59] Ms. Giardino testified that she continued to ask the accused to turn the water back on because their son was in the middle of showering. It was during this argument that the accused grabbed her by the neck, she struggled to escape, and he then grabbed her arm, pushed her head onto the kitchen counter and began spitting on her.
[60] Ms. Giardino stated that after this occurred, the accused went into his bedroom and she was able to figure out how to turn on the hot water and let her son finish showering. She testified that she was not certain if they left that night or if it was the night when they locked themselves in her bedroom.
[61] The youngest son, in his statement, recalled that his father had turned off the hot water and he stated that he was “pretty sure-, he did something to her. I think he may have grabbed her. I think around-, like a-, at the neck, but it’s fuzzy, so”. Counsel for the defence submitted that this statement is speculation and not evidence that the son observed an assault.
[62] In the youngest son’s statement, he told the police that the accused told him that it was his mother who broke the hot water, but that it was his mother who figured out how to get the water back on.
[63] When asked about the events on the night of July 7, 2021, the accused expressed embarrassment and remorse for the language he used towards Ms. Giardino and their youngest son, from the recording but he denied that he had assaulted or spit on Ms. Giardino.
[64] He agreed that he had turned off the hot water and claimed that it was he who turned the water back on, not Ms. Giardino. He said his anger was because the location of the shower was next to his bedroom and the noise of the shower running would wake him up and keep him from getting to sleep.
Incident #9 on July 10, 2021 (Count 14, Uttering Threats to Burn Property)
[65] Incident #9 took place in the home during the late hours of July 9 and into the early morning hours of July 10, 2021. Ms. Giardino and their youngest son, who had stayed at Lucas’s home the night before, returned home in the evening as had been their recent habit. Ms. Giardino testified that when she went to put on her pajamas, she saw that all her clothes had been removed from her closets. Ms. Giardino stated that the accused was outside the house in a gazebo on the property where he was speaking on the phone. She asked him where her clothes were, and he started calling her names and told her that he had burned her clothing. She claimed that he said “I burned them you cunt”. She claimed that the accused was enraged.
[66] Ms. Giardino testified that she first called her sister and on her sister’s advice she called 911. She made the youngest son go outside on their front yard where she joined him. She stated that she was afraid for her life and the 911 operator stayed on the phone with her until the police arrived. The police then arrested the accused and took a statement from Ms. Giardino.
[67] Ms. Giardino claimed that the next day she and her sons wandered around their property and located her clothing in garbage bags in various of the vehicles on the property as well as in the bushes.
[68] During cross-examination Ms. Giardino was shown the video from the body camera of the police interview from that night. In that interview she told the police that the accused had threated to burn her clothes whereas at trial she testified that he told her he had burned her clothes.
[69] Defence counsel suggested that the dispute was about the fact that the accused had discovered cash missing from the house and that he had taken her clothes until she returned the missing cash. Ms. Giardino denied knowing about any cash kept on the property.
[70] The accused testified that he returned home from work around 6:00 or 6:30 pm and discovered that there were things missing from the house. In particular, he stated that about $20,000.00 of cash that was kept in the room where Ms. Giardino kept her clothes was missing. He claimed he then packed her clothing in garbage bags and put them in his company truck. When Ms. Giardino came home later that evening, he told her he would return her clothes when she returned the money. He denied either threatening to burn her clothing or committing an assault that night.
[71] Defence counsel argued that Ms. Giardino’s evidence regarding the incidents on July 7th and 10th, was inconsistent and that she was not able to describe what had occurred in a coherent or reliable manner. It was her position that Ms. Giardino was exaggerating the events on July 10th in an effort to avoid having to return the cash that she had taken. The defence argued that the accused’s evidence about withholding the clothing because of missing cash had a ring of truth.
Violation of Release Order, July 10, 2021 (Count 15)
[72] When the accused was released after his arrest in the early morning of July 10, 2021, there was a condition that he not be within 100 meters of the family home or anywhere he knew Ms. Giardino to be.
[73] After his release, the accused attended at the garage on the property where Mileage Auto Inc. was located. The garage is an approximate distance of 60 meters from the family home and as such the accused was charged with violating the terms of his release order.
[74] As part of the Agreed Statement of Fact, a copy of the bail hearing transcript was included. The accused was represented by duty counsel and the 100 meter restriction was discussed in detail. One of the accused’s concerns was being able to attend the garage on the property for his business. Through duty counsel, he informed the Justice of the Peace that the distance between the house and the garage was between 200 and 250 meters. The Justice of the Peace indicated that with that distance, it would not be a problem for the accused to attend at the garage, provided he stay the required distance from the house.
[75] At trial, the accused testified that he mistakenly used meters instead of feet when advising duty counsel about the distance between the house and the garage. He indicated that he had no intention of violating his release order on the day he was released after his arrest.
Violation of Release Order, November 7, 2021 (Count 18)
[76] The final charge is for a violation of the condition of the accused’s arrest that he remain in his residence unless in the company of his surety, Adrianna Giardino.
[77] On Sunday, November 7, 2021, Lucas Giardino was driving to his mother’s home and came upon the accused at an intersection in which the accused was in a company vehicle without his surety. Lucas testified that he clearly recognized the accused and that it appeared that the accused saw him and reclined his seat to avoid being seen. He testified that as soon as the light changed, the accused sped off. Lucas reported this incident to the police.
[78] There was an exception in the accused’s release order that permitted him to travel to and from his place of employment without his surety accompanying him. Lucas testified that the while he had not worked in the family business since 2017, that when he worked in the business, the garage was not open on Sundays. Lucas also testified that he “Googled” the business and the hours posted on-line demonstrated that the business was not open on Saturday or Sunday.
[79] Video obtained by the police from the garage in the building where the accused resided with his surety showed what appeared to be the accused walking through the garage on his own the morning of November 7, 2021.
[80] The accused testified that he did not keep regular work hours. He stated that the nature of his work required that he assist his customers at all times of the day and often on weekends. The accused was not able to say whether he was working on Sunday, November 7, 2021. His response when asked was: “I possibly, might have went out”.
[81] When shown the video from the garage in his surety’s condo building, he claimed he could not identify himself in the video but agreed it was possibly him.
Discussion and Application of the Evidence
[82] Because the accused testified and denied the charges against him, a consideration of the legal principles in the Supreme Court of Canada’s decision of R v W.(D.), [1991] 1 S.C.R. 742 is necessary.
[83] W.(D.) provides a framework to assist the trier of fact in evaluating conflicting testimony to determine whether the Crown has proven its case beyond a reasonable doubt. The test is set out at paragraph 28 of that decision as follows:
First, if you believe the evidence of the accused, you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[84] As noted by Justice D. Paciocco from the Ontario Court of Appeal in “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22:1 Can. Crim. L. Rev. 31 at pp 35 & 36:
A criminal trial is not an inquiry into what happened, or whose case is stronger. Its ultimate function is to determine whether the Crown can prove the specific criminal allegations it has made beyond a reasonable doubt. I may well prefer a criminal complainant’s narrative to the one offered by the accused, but that does not resolve whether I have a reasonable doubt about the accused’s guilt. This is because there are other options requiring acquittal, including “the legitimate possibility of [the decision-maker] being unable to resolve the conflicting evidence and, accordingly, being left in a reasonable doubt.” (R. v. Challice, 1979 CarswellOnt1322, 45 C.C.C. (2d) 546 (C.A.) at 566.)
[85] In a case such as this where there were no witnesses to most of the alleged assaults and charged conduct, W.(D.) prohibits me from concluding that the Crown has met its burden if I decide to prefer the evidence of Ms. Giardino to that of the accused. It is not enough even if I believe that the accused is probably guilty.
[86] I have a duty to assess the evidence of the accused considering the whole of the evidence, including the evidence of Ms. Giardino and, in so doing, compare the evidence of each of them. I must be satisfied beyond a reasonable doubt on all the evidence that the accused committed the offences for which he is charged, to find him guilty of the charges. I would add that if, after considering all the evidence, I am unable to decide whom to believe, I must acquit.
[87] In most of the counts on the indictment I am faced with opposing versions of what happened. Ms. Giardino alleged the assaults and other offences occurred. The accused recalled some, but not all, the events for which he is charged. He denied that he has ever assaulted Ms. Giardino or committed the other offences on this indictment.
[88] In pretrial applications and at trial, there were significant submissions regarding the admissibility of prior disreputable conduct evidence. With very few exceptions where testimony was permitted as part of the narrative, evidence of prior disreputable conduct was not admissible in this trial. Where testimony occurred that involved accusations, primarily by Ms. Giardino, of other allegations of abuse that were not part of the charges against the accused, I have informed counsel that I have disabused myself of those allegations of prior disreputable conduct.
[89] Ms. Giardino’s testimony during examination in chief was clear and she gave detailed descriptions of the allegations of assault and other charged conduct. From her evidence and other video evidence submitted as exhibits, it was apparent that the relationship between Ms. Giardino and the accused involved a lot of angry verbal interactions. The interactions captured on the video recordings did not involve physical abuse or assaults within the meaning of the Code.
[90] When Ms. Giardino was cross examined about why her testimony at trial at times differed from the written statements she had provided to the police on July 18 and 22, 2021, she explained that the police had asked her to provide a brief outline of incidents that she recalled that involved the accused assaulting her and that she did not know which of the events she described would result in charges against the accused. Also, when pressed on cross examination, about the specific order that the individual events and assaults took place, Ms. Giardino was at times unable to clarify the order of being kicked and punched, but was unshaken on her evidence regarding the details of when the assaults occurred and the circumstances surrounding them.
[91] Defence counsel submitted that most of the charges on the indictment lack corroboratory evidence and as such the credibility and reliability of the evidence of Ms. Giardino and the accused is at issue. It was her position that the inconsistencies in the evidence of Ms. Giardino and her inability to recall dates with specificity render her evidence unreliable regarding the individual incidents. She argued that even if I find Ms. Giardino to be a credible witness, the accumulation of inconsistencies should render all the evidence of Ms. Giardino unreliable.
Findings and Disposition
[92] In considering the evidence presented in the trial that I have deemed admissible, I do not accept the evidence of the accused in his denials of the charges against him. I find that his testimony was self-serving and lacked believability. The accused, although acknowledging that there was conflict in the home, downplayed his role throughout his testimony. On the whole of the evidence, it was quite clear that there was much more to this marriage than verbal hostilities.
[93] I find that the evidence of Ms. Giardino to be both credible and reliable. She recalled each of the instances as alleged and was able to describe the circumstances and family events that surrounded the assaults she identified. She was not shaken on these instances in cross examination even when repeatedly asked to describe the same events.
[94] I accept that the differences between Ms. Giardino’s original written statements to the police and her testimony at trial, when those were put to her, were adequately explained. She testified each time she was asked about certain discrepancies that the police had asked her for only brief summaries of events to include a background of her relationship with the accused. Her explanation for why she did not recount each allegation in complete detail in those summaries to the police is a credible explanation for the inconsistencies. I do not find that those inconsistencies, which I consider to be insignificant, impact either her credibility or her reliability.
[95] Notwithstanding that I have found the accused’s evidence was not believable and I have found Ms. Giardino’s evidence to be credible and reliable, this does not mean that the Crown has met its burden on each of the charges against the accused. In my assessment of the evidence, I have been careful not to make my findings as part of a credibility contest between the two versions of events. I must consider the evidence as a whole.
[96] It is important, however, to note that my consideration of the evidence as a whole is different than determining the outcome of each count by comparing the similar facts of all of the evidence. In other words, I have considered each count on its own, but have considered all of the evidence as a whole in assessing the credibility and reliability of Ms. Giardino and whether the Crown has proven guilt beyond a reasonable doubt.
[97] The fact that I do not believe the evidence of the accused in his denials does not rise to an automatic verdict of guilt beyond a reasonable doubt. Where I have found the accused to be guilty beyond a reasonable doubt on some of the counts in the indictment, I have arrived at that conclusion because the evidence that I have accepted, when considered alongside the other evidence that I accept, does not leave me in a reasonable doubt. Where I have acquitted on some counts, it is because the evidence to prove guilt beyond a reasonable doubt lacked the sufficiency required to convict.
[98] I have carefully reviewed all the evidence presented at trial and I make the following findings regarding each count:
a) Count #1: I find that the Crown has met the burden of establishing this offence beyond a reasonable doubt. Both Ms. Giardino and the accused testified about the nature of the argument that ensued over this Christmas Eve dinner. I am not left in reasonable doubt with respect to the accused’s evidence. In the context of the evidence presented by the Crown and of the accused as a whole, I find the accused guilty of the offence of assault pursuant to s. 266 of the Criminal Code. b) Count #2: I do not find there was evidence presented to support a finding of guilt for this charge. There was no evidence led that established that an assault had occurred. The evidence alleged an altercation in the Kelsey’s Restaurant where a plate of food was smashed on the table. There was no other testimony of an assault as defined in s. 265(1) of the Code other than a broad statement that Ms. Giardino knew she was going to get it when she got home. Therefore, there shall be an acquittal on Count #2. c) Count #3: As with Count #1, I find that the Crown has met the burden of establishing this offence beyond a reasonable doubt. Ms. Giardino testified about the specifics of the 80th birthday party; how she planned to attend without letting the accused know and how she was followed and the resulting assault. I find the inconsistencies in her description to the police and at trial to be insignificant. I have already found that I do not believe the accused’s testimony. With respect to this count, assault, I am convinced beyond a reasonable doubt as to the guilt of the accused. I find the accused guilty of the offence of assault pursuant to s. 266 of the Criminal Code. d) Counts 4 and 5: For the same reasons I have already articulated above, I find that the Crown has met the burden of establishing these offences of assault. Ms. Giardino clearly recollected the events that surrounded the medical emergency regarding Lucas and his ruptured appendix. She described how she said the wrong thing by defending his girlfriend that resulted in the assaults. As with her other testimony, I do not find the inconsistencies in her evidence to be material. Similarly, I do not believe the accused when he claimed that he felt disrespected that this resulted in only a verbal argument. I did not find his evidence to be credible in consideration of the evidence as a whole, regarding this incident. I find the accused guilty of the offence of assault on both counts pursuant to s. 266 of the Criminal Code. e) Counts 6 & 7: For the same reasons articulated above, I find the accused committed the assaults alleged. Ms. Giardino recalled in specific detail how she obtained the accused’s permission to attend a family wedding in Toronto and how that plan evaporated when the accused became enraged over whether she had purchased a new suitcase and his reaction as a result. The accused claimed to have no recollection of this event. I find that the evidence presented by the Crown proved these charges beyond a reasonable doubt and I am convinced beyond a reasonable doubt that the assaults as alleged occurred. I find the accused guilty of the offence of assault on both counts pursuant to s. 266 of the Criminal Code. f) Counts 8 & 9: I do not find that the Crown has proven these offences beyond a reasonable doubt. I am not left in doubt about Ms. Giardino’s testimony that she felt some drops on her body as she left the garage. However, the video evidence leaves me with a reasonable doubt that an assault with a weapon occurred and acquittals shall be entered on these counts. g) Count 10: I accept the defence position that without physical evidence of the damage to the property as alleged, when such corroboration should have been provided, that the Crown has not proven this offence of mischief by willfully damaging property beyond a reasonable doubt and an acquittal shall be entered on Count 10. h) Counts 11 & 12: I find that the Crown has proven these charges of assault beyond a reasonable doubt. In the recounting of these charges, Ms. Giardino was consistent in her evidence about the escalation of the accused’s anger, as was the youngest son, during this period before the police were called on July 10, 2021. Her allegations were supported by the evidence of the youngest son through the evidence from his statement to the police. I am convinced beyond a reasonable doubt about his guilt on these charges. I find the accused guilty of the offence of assault pursuant to s. 266 and assault by choking pursuant to s. 267(c) of the Criminal Code. i) Count 14: I find that the Crown has proven this charge of uttering threats to burn property beyond a reasonable doubt. I find that he knowingly uttered threats to burn clothing belonging to Ms. Giardino. I do not believe the accused’s evidence regarding this occurrence. Ms. Giardino was clearly caught unawares at trial regarding the allegation that the accused had taken her clothing because he wanted the return of monies that were allegedly stored in the home. The accused’s version of events is simply not credible in the face of the 911 call that was made that evening and the fear that Ms. Giardino described as a result of the ongoing conflict between her and the accused. In her description of the evening shown on the police video camera, there is no mention of a return of clothing in exchange for the return of cash. I find that I am not left in doubt about the guilt of the accused regarding this count. I find the accused guilty of the offence of uttering threats pursuant to s. 264.1(1)(b) of the Criminal Code. j) Count 15: Having read the transcript from the bail hearing, I accept the accused’s submission that he was not aware that he was violating his release order when he attended the garage on the family property. I accept that he believed he was permitted to attend the garage based upon the discussion that had occurred at the bail hearing and that it was by inadvertence that he misstated the distance between the house and the garage as being 200 meters rather than 200 feet. An acquittal shall be entered on this count. k) Count 18: I find that the accused breached his release conditions on November 7, 2021, by leaving his home without being in the presence of his surety on a Sunday morning. The suggestion that he might have been on work-related business did not bear an air of reality, particularly considering the accused’s inability to articulate who he was working with and why on that date. I accept the evidence of Lucas that he observed the accused travelling in a vehicle alone in violation of his release conditions. I also find that it was the accused seen walking alone in the garage in his surety’s building. I find the accused guilty of failing to comply with a condition of his release order pursuant to s. 145(5)(a) of the Criminal Code.
[99] I therefore find the accused guilty of Counts 1, 3, 4, 5, 6, 7, 11, 12, 14 and 18.
Justice B. R. Warkentin
Released: June 28, 2023
COURT FILE NO.: CR-22-0028-00 DATE: 2023-06-28 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING - and – Leon Giardino Accused REASONS FOR JUDGMENT B. R. Warkentin J. Released: June 28, 2023