2019 QCCA 2078, 2019 QCCA 2078

Iacono c. R. 2019 QCCA 2078 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006559-171 (500-01-140274-165) DATE: October 23, 2019 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A. ANTONINO IACONO APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals a judgment rendered on October 13, 2017 by the Honourable Mr. Justice Robert Marchi of the Court of Québec (Criminal and Penal Division), District of Montreal, that convicted him of assault causing bodily harm ( s. 267 (

b) Cr.C . ). [1] [ 2 ] The appeal concerns the reasonableness of the verdict. *** [ 3 ] The appellant had known the complainant since 2012. Since then, he had prepared the complainant’s tax returns for a fee. A disagreement arose regarding the price he wanted to charge for preparing the 2015 income tax return. The complainant refused to pay the requested fee. She then consulted someone else, who prepared a tax return whose result was more advantageous for her. She informed the appellant of this.

On March 23, 2016, she showed up without an appointment at the appellant’s home to discuss the matter. [ 4 ] The appellant asked the complainant to leave the premises, but since she did not immediately comply, he expelled her with firmness . *** [ 5 ] At trial, the appellant and the complainant provided different versions of the altercation. [ 6 ] According to the complainant , the appellant asked her whether she was angry and told her that he had clients in his office. He took her by the shoulder and asked her to leave the premises. She told him not to touch her.

He took her by the shoulder more firmly, brought her to the ground and sat on her. He punched her about ten times below the sternum. She grabbed the appellant’s glasses, which broke during the fight. While she was under the appellant’s control, the latter’s mother came down to the basement. She asked the complainant to leave the premises and immediately went back upstairs. The appellant then grabbed the complainant by the coat, opened the door and pushed her outside the house very violently, striking her between the chest and neck.

The complainant fell onto a step at the entrance, where she lay on her back for approximately ten minutes due to acute pain in her shoulder. [ 7 ] According to the appellant , when he opened the door to the complainant, she immediately headed to the waiting room. He told her he was busy with clients and that they would speak another time. The complainant did not budge. He reiterated that he was busy and asked her if she would leave the premises on her own or if he needed to call the police. She told him to call the police. He steered her towards the exit. She told him not to touch her, but he hadn’t touched her.

The complainant moved towards the exit. Suddenly, she raised and waved her arms. Knowing that she was angry, the appellant feared for his safety. He then grabbed her wrists and again asked her if she would leave the premises or if he needed to call the police. She told him to call the police. The appellant did not let go. A scuffle ensued. They fell, with the appellant ending up sitting on the complainant. He asked her the same question a third time and the complainant reiterated her answer. During the scuffle, the complainant scratched his face, broke his glasses and tore his shirt.

He acknowledged that he “might” have struck her once. When the appellant’s mother came down to the basement, he asked her to open the front door, which she did. He then picked up the complainant in his arms and placed her down on the ground outside, gently as he explained. ***

[8] The trial judge concluded that the appellant’s testimony was not credible for severalreasons: • He had difficulty answering simple questions (paras. 48-49 of the judgment); • Under cross-examination, he contradicted certain elements of his testimony (paras. 50-52of the judgment); • His statement to the effect that he was not angry during the incident is incompatible withthe evidence as a whole (paras. 53-56 of the judgment); • His statement to the effect that he wanted to call the police when the complainant refusedto leave the premises is not plausible, given the relationship between him and the complainant(para. 57 of the judgment); • The appellant’s explanation as to how he ended up sitting on the complainant isunreasonable and untenable (para. 58 of the judgment); • His testimony was contradicted by that of his mother on certain significant points (paras.59-62 of the judgment). [9] The judge also concluded that the Crown had proved the appellant’s guilt beyond areasonable doubt.

He found the complainant’s testimony to be very credible: [66] The testimony of the Complainant on what happened between herself and the Accusedwas rendered clearly, candidly and truthfully. As already stated, her testimony is confirmed ingreat parts by the testimony of the Accused but for what happened in the basement. Thatcontributes to bolster her credibility. She did not attempt to exaggerate what really happenedbetween herself and the Accused. For example, she admitted that she and the Accused werefriends and that they saw each other regularly.

She also admitted that nothing similar to whathappened in this case had ever happened between them, that the Accused had never been violenttowards her. [67] She described the bodily harm she suffered because of the incident, again, very honestly.This was never challenged or contradicted and suffice to constitute bodily harm. Finally, she gave a reasonable explanation as to why she only attended the hospital on the 25th and not the 24th.

Forall these reasons, her testimony is credible, trustworthy and reliable and the Court thereforebelieves her testimony. *** [10] The appellant argues that this verdict is unreasonable within the meaning ofs. 686(1)(

a) Cr.C. [11] In R. v. R.P., Deschamps, J. recalled the applicable standard of review in such matters: To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v.Yebes, (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15 ,[2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructedjury or a judge could reasonably have rendered.

The appellate court may also find a verdictunreasonable if the trial judge has drawn an inference or made a finding of fact essential to theverdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support ofthat inference or finding, or (2) is shown to be incompatible with evidence that has not otherwisebeen contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40 , [2011] 3S.C.R. 3, at paras. 4, 16 and 19-21; R. v.

Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190).[2] *** [12] The Court is of the opinion that the appellant has not proved that the verdict isunreasonable. [13] In his appeal brief, he claims that certain gaps in the evidence affected the fairness of thetrial. First, he argues that the Crown should have filed his and the complainant’s medical records,the police and incident reports as well as the complainant’s statement. Next, he asserts that thejudge erred by allowing the Crown to call his mother as a witness a second time.

Lastly, hecriticizes the judge for his lack of knowledge of English, to such an extent that he argues thejudge was unable to grasp subtleties in the evidence. [14] At trial, the appellant did not allege any facts with respect to his state of health or that ofthe complainant at the time of the events, nor did he file any evidence on this subject. [15] Before this Court, the appellant insisted that the judge should have known that his stateof health (anxiety and depression) affected his memory, concentration and the manner in which hetestified.

That said, in the same breath, he acknowledged that he had not mentioned his health

problems to the judge. He assumed that the judge was trained to detect this type of illness. He also assumed that the other judges before whom he had appeared had noted his state and placed a note to that effect in the file, the way doctors and nurses do in the hospital. [ 16 ] This reproach is unfounded.

If the appellant, who is sufficiently well to handle his own defence, believed that his state of health was a consideration, it was up to him to prove it or, at the very least, mention it to the judge, which he did not do. [ 17 ] The appellant faults the judge for having resorted to speaking French at one point to express himself and, more generally, for his lack of knowledge of English.

A reading of the discussions between the judge and the various parties in the case, however, as well as a reading of the judgment, demonstrate the judge’s ease in English. [ 18 ] The Crown had no obligation to file the police or incident reports or the complainant’s statement. The judge explained to the appellant that if he wanted to refer to the content of such a document, its author had to be present to testify to the truthfulness of the facts, because the document itself was hearsay. The judge did not err on this point.

Furthermore, the appellant did not explain how these documents could have affected the outcome of the trial. [ 19 ] The appellant argues that the judge indulged the Crown by allowing it to call his mother to testify a second time. He is mistaken.

It should be noted that the judge’s decision was intended to allow the appellant’s mother to testify about the broken car mirrors, an element the appellant addressed in his defence. [ 20 ] As regards the verdict itself, the appellant asks the Court to reconsider the evidence and assess it differently from the trial judge, which is not the role of an appellate court, as the Supreme Court has stated on many occasions. [3] More specifically, during the hearing before the Court, the appellant insisted on the lack of credibility and reliability of the complainant’s testimony.

He faulted the judge for not having gone on the Internet to look at photographs of his house, arguing that if he had, he would have realized that the complainant was lying when she stated that she had hurt her shoulder when she fell on a step outside his house. He stated that there is no such step. [ 21 ] Here, too, the reproach is unfounded. The judge’s duty is to adjudicate based on the evidence presented to him. He is not required to investigate to verify the accuracy of the facts stated by the witnesses.

It is up to the parties – the appellant in the case at bar – to present their evidence. [ 22 ] Moreover, the appellant has not managed to prove that the trial judge erred by dismissing his defence of property argument. Given the facts the judge accepted, which show that the appellant did not give the complainant sufficient time to leave the premises, the argument was unfounded. [ 23 ] In the case at bar, there was an argument coupled with violence between the appellant and the complainant.

It was up to the judge to decide who was the victim and who was the aggressor, taking into consideration the applicable burden of proof. [ 24 ] The evidence supports all of the reasons the judge gave for rejecting the appellant’s testimony. The appellant had trouble answering simple questions, he contradicted himself, certain answers were implausible and, in addition, his mother’s testimony contradicted his own. Conversely, the complainant testified in a composed and clear manner and did not exaggerate anything.

Consequently, in light of the applicable standard of review, the Court cannot conclude that the verdict is unreasonable. FOR THESE REASONS, THE COURT: [ 25 ] DISMISSES the appeal. JACQUES CHAMBERLAND, J.A. FRANCE THIBAULT, J.A. MARIE-JOSÉE HOGUE, J.A. Mr. Antonino Iacono Appellant Mtre Maude Payette DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent

Date of hearing: August 29, 2019