ONTARIO

COURT FILE NO.: 21-17388AP

DATE: 2023/02/09

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Gian-Franco Barilla

Appellant

Emma Loignon-Giroux for the Respondent

Eric Grainger, for the Appellant

) HEARD: October 26, 2022

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

ANNE LONDON-WEINSTEIN J.

Introduction:

[1] The Appellant became involved in a dispute at a Tim Horton’s on December 26, 2020 after he entered without wearing a mask. He sat on the counter of the restaurant and swore at staff members. He also swore at a customer who asked him to calm down.

[2] The second incident occurred in a Walmart on January 21, 2021. The Appellant again was not wearing a mask. He called a woman working at a nearby Wine Rack store a bitch. She threatened to call police if he did not calm down. The Appellant was advised repeatedly to exit out of a door which had been set aside for exiting due to COVID-19 social distancing protocols. The Appellant refused and tried to force the door open while the Walmart greeter held the door shut. The Appellant moved to the other door to try to exit from that door. The greeter tried to block that

door as well, however, when he did so, he suffered a burst of pain from a pre-existing injury in his rib.

[3] The Appellant was charged with two counts of causing a disturbance and one count of assault bodily harm. He was convicted of two counts of causing a disturbance and one count of assault.

[4] The Appellant was self-represented at trial. This was a one-day trial where the Crown called three witnesses. The Appellant testified and called one witness, his daughter. The trial judge gave oral reasons for judgment at the culmination of the trial. The incidents were recorded on video which was presented at trial.

[5] The Appellant appeals the findings of guilt on the basis that the trial judge erred in law by failing to specifically address essential elements of the offence of assault and causing a disturbance, in failing to give sufficient reasons for making findings of guilt, and on the basis that the findings of guilt were unreasonable. The trial judge imposed a conditional discharge.

Factual Background:

The Tim Horton’s Incident:

[6] The Appellant was refused service by two employees of a Tim Horton’s restaurant on December 26, 2020 for refusing to wear a mask during the COVID-19 pandemic. He was served by a different employee. A dispute arose between the Appellant and a staff member named Wasi.

[7] Mr. Nichola Montreuil testified that on December 26, 2020 he was working as a baker at Tim Hortons at 3869 Innes Road in Ottawa. He was 17 at the time. The Appellant was again not wearing a mask. The Appellant and an employee named Wasi had a fist fight. The trial judge found that Wasi appeared to, if not initiate the fight, at least consented to being involved in the fight. This comment by the trial judge is of further significance in this appeal, as it indicates the trial judge was alive to the issue of consent. In the Walmart assault, the Appellant faults the trial judge for not specifically adverting to the need for the Crown to prove that Mr. Black did not consent to being assaulted by the Appellant. I will have more to say about the Walmart assault later in these reasons.

[8] Mr. Montreuil’s younger sister was also working at Tim Horton’s, and she went to call police. She also threw a cardboard tray at the Appellant. Wasi and Mr. Montreuil’s sister went to the back of the restaurant. Wasi and Mr. Montreuil’s sister refused to serve the Appellant due to prior altercations with him.

[9] The Appellant sat on the counter. Mr. Montreuil had decided to serve him to get him out of the restaurant. He asked him to please get off the counter. The Appellant was swearing at Mr. Montreuil. A customer asked the Appellant to calm down. The Appellant swore at the customer. Mr. Montreuil said that the Appellant told the customer to mind his own business and asked: “Do you wanna get some of this as well?” Mr. Montreuil said the Appellant was “kind of like” threatening the customer. The customer appeared frightened to Mr. Montreuil.

[10] Wasi came back out and Mr. Montreuil stood between him and the Appellant to not escalate the situation. Mr. Montreuil thought that the Appellant had left and returned to the restaurant several times.

[11] The Appellant testified that Wasi initiated the fight, and that the Appellant was the one who called 911.

Issues regarding The Tim Horton’s incident:

1. Did the trial judge provide sufficient reasons in convicting the Appellant?

2. Did the trial judge fail to undertake an analysis of the essential element of each charge?

3. Were the trial judge’s reasons inadequate due to lack of evidence?

The law regarding sufficiency of reasons:

[12] Reasons explain the “why” of a decision, provide public accountability and permit appellate review. R. v. R.E.M., 2008 SCC at para 11.

[13] Judges are presumed to know the law and apply it correctly. Reasons provided orally serve the objective of judicial efficiency and certainty. R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656 at 664.

[14] The standard of review regarding an appeal based on insufficiency of reasons requires the Appellant to demonstrate that the reasons were not only deficient, but that the deficiency caused prejudice to the exercise of his legal right to an appeal. R. v. Shepard, 2002 SCC 26 at para 33.

[15] To determine whether the reasons were insufficient, the reviewing court must apply the standard of adequacy. If the reasons, when read in context, show why the trial judge decided as she did, those reasons are not inadequate. R. v. R.E.M., at para 26, R. v. Vuradin, 2013 SCC 36 at para 16.

[16] Context matters in assessing adequacy of reasons. A trial judge need not record the entirety of his or her analysis, answer every argument, reconcile every frailty in the evidence, refer to all the conflicting evidence, and set out every finding made in reaching a verdict. If perfection were the standard, busy trial courts, where judges often deliver oral reasons, would grind to a halt. Reasons need only be sufficient in the context of the case when read in context. R. v. Ali, 2015 BCCA 333 at para 13, R. v. G.F., 2021 SCC 20 at paras 68-70.

[17] When the trial judge’s reasons are read in context, it is clear that she turned her mind to the externally manifested disturbance caused by the Appellant physically mounting the counter and swearing at employees and a customer who cautioned him to calm down. Her failure to specifically refer to the requirement that the disturbance be manifested externally does not render her reasons inadequate when her reasons are read along with the evidence and the submissions of counsel.

[18] The restaurant serves food to the public. There was evidence that the Appellant swore at and threatened a customer. The Applicant climbing on top of the counter was obviously a distraction for Mr. Montreuil, who rather than baking donuts, had to deal with the Appellant’s outburst.

[19] When the trial judge’s reasons are read in context, it is clear why she found that the Appellant had caused a disturbance in the Tim Horton’s. Contrary to the Appellant’s contention, the trial judge did not find that cause disturbance was made out by the Appellant merely sitting on the counter. Rather, she found he was swearing and yelling while he was on the counter. The record demonstrates he began swearing at Mr. Montreuil when he was asked to get down off of the counter. The evidence was that a customer told him to calm down and the Appellant swore at the

customer.

The evidence was that the Appellant told the customer to fuck off and asked him if he wanted to get some of this as well. Mr. Montreuil described it as “kind of like threatening the other customer”, because he had told him to calm down. The customer looked frightened and surprised and “kind of backed off,” Mr. Montreuil said. Mr. Montreuil was 18 at the time of trial. He described himself and his younger sister who was also working at the time as being shaken for a long time after the event. These pieces of evidence, which exemplify how the operation of Tim Horton’s was disturbed that day by the actions of the Appellant are exactly what constitutes external manifestations of a disturbance as contemplated by the Supreme Court in R.v. Lohnes. 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167

[20] The submissions of counsel and the evidence are part of the record. The reasons must be read alongside the evidence and the submissions. The proper question is whether in the context of the reasons, the evidence, the issues and the submissions, taken together, can the reason for the verdict be discerned. R. v. R.E.M. at para 18 to 25 and 37.

[21] In her submissions the trial crown pointed out that the Supreme Court has defined causing a disturbance as interference with the ordinary and customary conduct of a business or in a public place may constitute something as small as being distracted from one’s work. The crown pointed out that a disturbance must be present and must also be externally manifested. The Crown was citing from R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167

[22] The Crown submitted that the Appellant’s yelling and swearing at customers constituted a disturbance which met the Lohnes test. In his submissions, the Applicant submitted that when people treat him in a disrespectful manner, he just acted the way he reacted. The trial judge gave oral reasons for judgment after submissions. She referred to the Supreme Court of Canada’s definition of causing a disturbance. The Appellant argues that the trial judge’s reasons were deficient as she merely indicated that the Appellant’s behaviour met the Supreme Court of Canada definition of cause disturbance.

[23] However, the trial judge was clearly referring to the definition in Lohnes which had just been read moments earlier. It is clear, when her reasons are read functionally and in context, that she found climbing up on top of a counter and yelling and swearing at an employee and a customer

constituted causing a disturbance as defined by Lohnes, and that the disturbance was externally manifested. The definition had just been read to her from Lohnes. The reason for her conclusions can be clearly discerned when the evidence, the issues and the submissions are read together. R. v. R.E.M., at para 18-25. The trial judge clearly found that the disruption in the Tim Horton’s was more than mere internal upset, but that the operation of the business was being disrupted by the Appellant’s angry outburst and climbing on to a counter while swearing at staff and a customer.

[24] In my view, the trial reasons demonstrate that the judge ‘seized the substance of the matter’. Detailed recitations of fact and law are not required. R v.R.E.M., at para 4.

[25] The trial judge’s reasons sufficiently informed the appellant why the case was decided against him and permitted meaningful review. Finally, the conviction in relation to the cause disturbance count at Tim Horton’s is not unreasonable. The trial evidence reveals a factual basis open to the trial judge to find guilt beyond a reasonable doubt. I turn now to the Walmart incident.

The Walmart Incident:

[26] Ryan Black, a greeter at the Walmart store located at 3900 Innes Road testified that he was working on January 21 2021 when he encountered the Appellant. Part of Mr. Black’s duties at that time was to ensure people were following COVID-19 protocols, including the one door-in and one-door out policy. He was also tasked with ensuring that people were following the health guidelines.

[27] To reduce the risk of contamination, one set of doors was the in-door. This entrance was clearly marked with large red signs about two and a half feet by three feet.

[28] The exit door was also marked with big red signs, two and a half feet by three feet. The entrance and exits were at opposite ends of the store.

[29] Mr. Black testified that the Appellant was ducking under the blocked off aisles and shouting. Mr. Black said he has known the Appellant previously during the pandemic period and he was exhibiting increasingly aggressive and hostile behaviour the entire time.

[30] Mr. Black said the Appellant was about to run straight through a group of elderly people and young children. Mr. Black had been advised to close the door to persons ignoring the rules and ask them to use the actual exit. He did so.

[31] Mr. Black closed the door. The Appellant began calling him names and accused him of being a slave to a conspiracy.

[32] A lady at the Wine Rack adjacent to the entrance asked the Appellant to calm down or she would call the police. He called her a bitch and said she was not permitted to speak to him because he was a citizen and that the lady and Mr. Black worked at Walmart and he paid their pay cheque, owned them and they had to obey his rules.

[33] Mr. Black’s evidence was that he asked the Appellant about 10 times to please use the exit and not the entrance due to pandemic rules. Mr. Black’s evidence was that the Appellant became increasingly aggressive. He placed down the items he had purchased and tried to force the door open.

[34] Mr. Black’s evidence was that at this point he was seriously concerned for the safety of the young children and the elderly behind the door. As a result, he reached to his side and put his hand on the door where it slid to keep it shut. The Appellant attempted to force the door open. He failed so he went to the other door. Mr. Black went to the other door as well. He felt a burst of pain as his rib popped out of its socket. Mr. Black was attempting to hold the door shut when he was injured.

[35] Mr. Black testified that earlier he heard the Appellant run down an aisle and scream at a woman with children that she should get the children out of his way or it would not be his fault when he runs them over. Mr. Black was concerned that if the Appellant went through the other door, he would just plow into the line.

[36] As Mr. Black tried to hold the door shut with his arm extended, he continued to instruct the Appellant to please use the designated exit.

[37] The Appellant managed to get through the door. At trial, the Appellant did not suggest that Mr. Black consented to being assaulted. Rather, he suggested to Mr. Black that he, the Appellant

was being forcibly confined. The trial judge made an express finding that this was not the case. Mr. Black responded that he was free to use the proper exit.

[38] Mr. Black testified that a lady approached him because she was disturbed by the Appellant. He directed her to the customer service desk to make a complaint. Mr. Black reiterated that the Appellant’s actions caused him to be concerned for customer safety.

[39] Mr. Black testified that he heard the Appellant say that he would not be responsible if he ran someone over in the store.

[40] The Appellant testified that Mr. Black would not let him exit from the door where he entered, advising him it was against store policy.

Legal Analysis Regarding the Walmart Incident:

1. Did the trial judge provide sufficient reasons in convicting the Appellant?

2. Did the trial judge fail to undertake an analysis of the essential element of each charge?

3. Were the trial judge’s reasons inadequate due to lack of evidence?

The Law regarding sufficiency of reasons:

[41] I will not repeat my legal analysis regarding sufficiency of reasons again. My comments regarding the Tim Horton’s incident and sufficiency of reasons apply with equal force to the trial judge’s analysis and reasons for finding guilt in the Walmart incident. When her reasons are read along with the evidence and submissions of counsel, it is clear why she convicted the Appellant, and her reasons are capable of judicial review.

[42] In regard to her failure to mention that consent needs to be disproved by the Crown, I do not accept that she failed to turn her mind to the issue. She mentioned the requirement when dealing with the fight at Tim Horton’s. The trial judge is highly experienced and is also presumed to know the law. She considered the requirement that consent be disproven when dealing with the Tim Horton’s fight between Wasi and the Appellant.

[43] Further, when the evidence of Mr. Black is read fairly, there is no air of reality to the contention that he consented to a fight with the Appellant. He asked the Appellant 10 times to use the other exit. He testified he was afraid that the Appellant would hurt children and other elderly

customers waiting to enter the store. Mr. Black’s state of mind was evident from the evidence. It was open to the trial judge to find that no consent to fight, or to an assault was provided and her failure to specifically mention that fact does not render her reasons inadequate. It is evident from the record why she found that consent did not apply in this case.

[44] The reason for the verdict can be clearly discerned when the evidence, the issues and the submissions are read together. R. v. R.E.M. at para 18-25. In my view, the trial reasons demonstrate that the judge ‘seized the substance of the matter’. Detailed recitations of fact and law are not required. R. v. R.E.M. at para 43.

[45] The trial judge’s reasons sufficiently informed the appellant why the case was decided against him and permitted meaningful review. The trial judge again adverted to the Supreme Court of Canada’s definition of cause disturbance which had just been read by the trial crown, from Lohnes. It would have been clear to the parties, as it is to this court, that she had found that the evidence at trial met the definition which had just been provided by the trial crown. In addition, the evidence of the Applicant swearing at the woman at the Wine Rack to the point that she threatened to call police, along with the upset customer who wished to complain about the Appellant’s conduct, provided a basis by which it was open to the trial judge to make findings of guilt in relation to the cause disturbance count. Her findings of guilt were not unreasonable based on the evidence at trial. The evidence at trial demonstrates that the Appellant’s actions caused an externally manifested disturbance of the public peace in the sense that his actions interfered with the ordinary and customary use of a place by members of the public. It went beyond emotional upset. R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167 at 181-82. The evidence of Mr. Black reveals that the Appellant’s actions caused him to fear for the safety of children and elderly customers. He had to hold the door against the Appellant rather than letting the waiting customers into the store. This is an external manifestation of the disturbance. These actions interfered with the customary use of Walmart. Further, the employee at the Wine Rack felt that the Appellant’s behaviour warranted a call to the police. In my view, there was ample evidence by which the trial judge could find guilt on the cause disturbance and the assault, and her reasons when read along with the submissions of counsel, and the evidence at trial clearly reveal why she convicted the Appellant. Her reasons are apparent from the record.

[46] The Appellant’s appeal is therefore dismissed.

Anne London-Weinstein J.

Released: February 9, 2023

COURT FILE NO.: 21-17388AP

DATE: 2023/02/09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Gian-Franco Barilla

Appellant

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Anne London-Weinstein J.

Released: February 9, 2023