R. v. Battista, 2011 ONCJ 568

COURT FILE No.: Brampton 004485 DATE: 2011·10·31 Citation: R. v. Battista , 2011 ONCJ 568 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DOMENIC BATTISTA Before Justice J.W. Bovard Heard on October 25, 2011 Reasons for Judgment released on October 31, 2011 Ms. E. Norman ........................................................................................................... for the Crown Ms. S.

Pennypacker ...................................................................... for the accused Domenic Battista Bovard J.: [ 1 ] These are reasons for judgment after the trial of Domenic Battista on the charge that he assaulted Taylor Khan- Napoleon on April 14, 2010. Background [ 2 ] Ms. Khan-Napoleon and Mr. Battista had a romantic relationship, which broke up before the night in question. Ms. Khan-Napoleon says that they broke up because Mr. Battista cheated on her. They have one child, Ethan, who is 9 months old. After they broke up, Ms. Khan-Napoleon called Mr.

Battista a “pussy” on Facebook as a result of something that he said about another woman and this made him angry. [ 3 ] On the night in question she went to a Tim Hortons drive through with two of her friends. Ms. Khan-Napoleon was alone in one car and her friends were in another car. They parked in the parking lot of the adjacent outdoor mall to drink their beverages and talk. While they were there Mr. Battista called Ms. Khan-Napoleon and she told him where she was. [ 4 ] He showed up shortly after, got into her car and confronted her about calling him a “pussy”.

They argued vehemently and the Crown alleges that Mr. Battista pushed Ms. Khan-Napoleon’s head against the window or door frame. The Crown further alleges that when they got out of the car the fight continued and he assaulted her again by punching her and throwing her against his and her car. [ 5 ] One of Ms. Khan-Napoleon’s friends broke up the fight. Mr. Battista went and sat in his car, rolled down the window, said that he was sorry and drove off. Ms. Khan-Napoleon and her friends drove to Ms. Khan-Napoleon’s home to tell her mother what happened and she called the police. [ 6 ] The defence argues that Ms.

Khan-Napoleon, her friends and her mother colluded to frame Mr. Battista because Ms. Khan-Napoleon has filed an application in family court seeking sole custody of their child and she wants to make him look bad in the eyes of the family court. Issues [ 7 ] The issues are: 1. The credibility and the reliability of the testimony of Crown witnesses: Ms. Taylor Khan-Napoleon, Ms. Victoria Celina and Ms. Justina Wieczorek; 2. Collusion between the witnesses; 3. Motivation to fabricate on the part of the complainant in order to bolster her family law case for sole custody of her and

Mr. Battista’s child. 4. Is Mr. Battista’s apology post-offence conduct that implies guilt? The Evidence [ 8 ] Ms. Khan-Napoleon is 20 years old, goes to school and has a 9 month old child with Mr. Battista. They met in the summer of 2008 and became romantically involved in July 2009. Their relationship ended in April or May of 2010 while she was pregnant. She said that he cheated on her. [ 9 ] Their relationship was not a good one because they fought constantly about everything. They fought verbally and physically. However, she never called the police before the incident before the court today.

She was not sure why she had not called them before. [ 10 ] On the night in question at about 10 pm, Ms. Khan-Napoleon went to the drive through at Tim Hortons with Ms. Celina and Ms. Wieczorek. Ms. Khan-Napoleon was alone in her mother’s car and the other two were in Ms. Wieczorek’s car. They purchased their beverages and parked next to each other in the parking lot. Ms. Khan-Napoleon’s friends parked on the driver’s side of her car. [ 11 ] Mr. Battista called Ms. Khan-Napoleon and she told him where she was. He drove over to see her and parked on the passenger side of her car.

After five minutes he got into her car and started yelling at her because she called him a “pussy” on Facebook. He kept repeating “So you think I’m a pussy.” Although she agrees that she did this, she told him that she did not know what he was talking about. [ 12 ] During the argument, Mr. Battista pushed Ms. Khan-Napoleon’s head with his hand into the door/window frame of her car. This caused a welt by her eye. He also threw her tea onto the floor of the car and threw some coins around that she had in the console.

She told him to get out of her car, but he would not so she got out and walked to the passenger side of her car where he was sitting. He tried to get out of the car, but because she was angry she kept slamming the door shut preventing him from getting out. [ 13 ] He finally got out of her car and when he opened the door he hit her car door against his car. This angered Ms. Khan- Napoleon and she lunged at him with her palms facing him. He pretended that he was going to hit her and then grabbed her by the collar area of her jacket and slammed her into her car. She landed on her back.

She was on the hood of her car for about 30 seconds. She tried to, or did knee him in the stomach area and he loosened his grip or let her go completely. [ 14 ] He grabbed her again and threw her on his car on the right side of her back. She was thrown against the car so many times that she could not remember all of the parts of the car that she hit. In cross-examination, she recalled being on the hood of his car at one point.

She does not have any recollection of being on the hood of her own car but she remembers clearly being thrown against his car. [ 15 ] At one point she was bent over and he had his arm around her neck. He shoved her back and she hit the side mirror of one of the cars. She got a big bruise on her back from this. [ 16 ] After about 5 minutes, Ms. Wieczorek came over and broke up the fight and Ms. Khan-Napoleon ran to the other side of the car. [ 17 ] Mr. Battista went to his car and sat there for about 5 minutes. Then he rolled down his window and said that he was sorry and drove away.

The next day he apologized to her in a Facebook message. He has since contacted her several times to apologize. [ 18 ] She admitted that in her statement to the police she made it sound as if she did not fight back, which was not true, but she reported accurately what Mr. Battista did. [ 19 ] Ms. Khan-Napoleon testified that after the incident, Mr. Battista was on the run for about a month and she saw him once during this time. One day in July 2011, he called her and asked her to bring their child to his mother’s home.

She guessed that he must be there and wanted to see his child so she called the police and they went there and arrested him. [ 20 ] After he was released on bail he continued to contact her even though he was prohibited from doing so under his bail order. She is not afraid of Mr. Battista and it appears that she talked to him when he contacted her and sometimes met him in person to talk. They talked every day.

She admitted that sometimes she wanted the contact and that she spoke to him because she still loves him. [ 21 ] He asked her if they could get rid of the charge and she told him that there was nothing that she could do about that. Finally, in August 2011 she told him that she did not want any further contact, but he kept it up for a couple of weeks. He even called her from jail. [ 22 ] At the time of the incident she did not have another romantic relationship, but now she does, although she still loves Mr. Battista. In April 2011, Ms.

Khan-Napoleon brought an application in family court for sole custody of their child and for child support. She said that she does not want to have to obtain his consent to travel with their child and she does not think that Mr. Battista should have any contact with the child. In her application she states that Mr. Battista is abusive and is in jail. [ 23 ] Her injuries were a mark on her eyebrow, the side of her head was sore, she had a bruise the size of a fist on her left collar bone, a cut on the right side of her lower back, a bruise on the upper left side of her back, and had bruises under her rib cage.

She did not seek medical attention. [ 24 ] Officer Pierce said that he went to Ms. Khan-Napoleon’s home to investigate this incident on the night in question. He

arrived there at about 11:05 p.m. and spoke to her immediately upon arriving. He noticed that she was upset and that she had red marks on the left side of her head near her eyebrow and on her chest. She complained of pain, but declined medical attention. He made a note of the injuries in his note book, but not of her complaint about feeling pain. He did not take any pictures of the injuries. [ 25 ] Ms. Celina was at the scene when the fight occurred and she largely confirmed Ms. Khan-Napoleon’s evidence. She was Ms. Khan-Napoleon’s friend then, but is no longer friends with her.

She did not explain why. [ 26 ] She was in the passenger seat of Ms. Wieczorek’s car when Mr. Battista pulled up beside of Ms. Khan-Napoleon’s car on the passenger side. Ms. Khan-Napoleon was in the driver’s seat of her car and Ms. Wieczorek was in the driver’s seat of her car. There was 2 – 3 feet between the cars. [ 27 ] After a few minutes Mr. Battista got into the passenger seat of Ms. Khan-Napoleon’s car and screamed at her, repeating “So you think that I’m a pussy.” She screamed back at him. Mr. Battista grabbed Ms.

Khan-Napoleon’s head and pushed it half onto the driver’s side window and half on to the frame of the window. Mr. Battista threw all sorts of stuff around the inside of Ms. Khan- Napoleon’s car, including tea and coins. The coins were in a container under the radio and the tea was in the cup holder. She had seen it there earlier when she was in her car. [ 28 ] Ms. Khan-Napoleon got out of the car and went around to the passenger side and tried to pull Mr. Battista out of the car. Mr. Battista got out of the car somehow – she did not know if Ms. Khan-Napoleon pulled him out or not. She could tell by Mr.

Battista’s very forceful and attacking body language that he was very angry. [ 29 ] Ms. Celina was standing in front of Ms. Khan-Napoleon’s car and Mr. Battista and Ms. Khan-Napoleon were in between their cars. She saw blows exchanged between them. She did not know who got the first one in, but there were more by him. [ 30 ] She saw Mr. Battista hit Ms. Khan-Napoleon on the collar bone with his hand, but she did not know if he hit her with an open hand or with his fist. He threw 4 -5 “shots” at this time. Ms. Khan-Napoleon was throwing frantic, arm waving “get away from me” type of blows. [ 31 ] Mr.

Battista picked up Ms. Khan-Napoleon and threw her on the hood of his car. Ms. Khan-Napoleon was putting up a fight, but she was like a rag doll being slammed into the hood on her back. They kept fighting until Ms. Wieczorek broke it up. Mr. Battista stopped momentarily, but then went at Ms. Khan-Napoleon again and Ms. Khan-Napoleon tried to push him away. At this point Ms. Khan-Napoleon was against the passenger side door of her car. Suddenly, Mr. Battista stopped and got into his car, rolled down the window and said that he was sorry and drove away. [ 32 ] Although she, Ms. Wieczorek and Ms.

Khan-Napoleon had cell phones, they did not call the police at the scene. Ms. Khan-Napoleon called her mother and they went to her house and her mother called the police. [ 33 ] Ms. Celina admitted that in her statement to the police she did not mention anything about multiple blows being thrown. She said that she was flustered and scared when she gave the statement. She admitted speaking to Ms. Khan-Napoleon, Ms. Wieczorek and to Ms. Khan-Napoleon’s mother about the incident since the night in question. [ 34 ] Ms. Wieczorek’s testimony basically confirmed Ms. Wieczorek and Ms. Khan-Napoleon’s testimony.

She has known Ms. Khan-Napoleon for six years and they are friends. She was in her car with Ms. Celina. They were parked on the left side of Ms. Khan- Napoleon’s car. Ms. Wieczorek was in the driver’s seat and Ms. Celina was in the passenger seat. Although she had to look across Ms. Celina in order to look into Ms. Khan-Napoleon’s car, she could easily see into her car and could see her console because they were parked on a hill and Ms. Khan-Napoleon’s seat was pushed back. [ 35 ] Mr. Battista arrived and parked on the right side of Ms. Khan-Napoleon’s car. After a few minutes he got into Ms.

Khan- Napoleon’s car and started screaming at her saying “So you think I’m a pussy.” He banged Ms. Khan-Napoleon’s head against the rim of the window of her car by pushing her head with his hand. Ms. Khan-Napoleon screamed at him to get out of the car and he threw tea and coins around the car. [ 36 ] Ms. Khan-Napoleon got out of her car and went to the passenger side of her car and opened the door to get Mr. Battista out of the car. She slammed the door on him but Mr. Battista managed to get out of the car and threw Ms. Khan-Napoleon against one of the cars.

At first she said that she did not remember whose car he threw her against, but later she said that he threw her on the hood of his car. Mr. Battista’s back was towards Ms. Wieczorek and she saw him making a punching motion with his fist towards Ms. Khan- Napoleon, but she did not see him make contact with her body. [ 37 ] Ms. Khan-Napoleon was on the hood of the car for two minutes. Ms. Wieczorek said that she was in her car and did not know what to do. But when Ms. Khan-Napoleon got off of the hood screaming and very angry she got out of her car and broke up the fight. Mr.

Battista got into his car and sat for a few minutes, rolled down the window and said that he was sorry and drove off. [ 38 ] Although they all had cell phones and could have called the police at the scene, Ms. Khan-Napoleon called her mother and they went to Ms. Khan-Napoleon’s home to call the police. She said that it would have taken the police a long time to come to the scene. There were on lookers watching the fight but they did not ask for their help. She said that they saw what was happening, but did nothing. [ 39 ] Ms. Wieczorek spoke to Ms. Khan-Napoleon, Ms. Celina and Ms.

Khan-Napoleon’s mother about the incident but she does not have difficulty distinguishing what they said about it from what she saw happen. [ 40 ] That was all of the evidence.

The Defence Position [ 41 ] The defence argues that the Crown witnesses colluded and are lying about Mr. Battista assaulting Ms. Khan-Napoleon. It is implausible that they would not have called the police at the scene or asked the on lookers for help. Ms. Khan-Napoleon has a motive to fabricate this story because she wants to make Mr. Battista look bad in the family court proceedings. The defence also contends that if Ms. Khan-Napoleon’s allegations that he assaulted her before are true she would not have continued to see him and speak with him. [ 42 ] The defence further contends that Ms.

Khan-Napoleon said different things about where she was on the car when Mr. Battista allegedly threw her up against it and about which car she was being thrown against. [ 43 ] Concerning whether Mr. Battista’s apology is post offence conduct that implies guilt, the defence submits that he could have just been saying that he was sorry that they fought, not that he assaulted her. [ 44 ] Another point of contention according to the defence is that Ms. Khan-Napoleon said that her window was fully down and Ms. Celina and Ms. Wieczorek said that it was rolled up. [ 45 ] The defence also questions how Ms.

Wieczorek could see into Ms. Khan-Napoleon’s car as well as she said she could because Ms. Wieczorek was seated in the driver’s seat of her car and Ms. Celina was sitting next to her in the passenger seat. Ms. Khan- Napoleon’s car was parked next to her passenger side and Mr. Battista was sitting in the passenger seat of Ms. Khan-Napoleon’s car. Therefore, Ms. Wieczorek would have had to look across her car, past Ms. Celina and into Ms. Khan-Napoleon’s car past Mr. Battista in order to see the console of Ms. Khan-Napoleon’s car. [ 46 ] The Crown argues that the defence only asked Ms.

Wieczorek whether the assault really happened and did not put to the witnesses that they colluded. Therefore, it is unfair to raise this argument. [ 47 ] With regard to the witnesses’ ability to observe, the Crown points out that the cars were parked within 2 -3 feet of each other so it was easy for them to see what was happening. Analysis [ 48 ] The Crown has the onus of proving the charge beyond a reasonable doubt. The defence has nothing to prove. [ 49 ] I must consider collusion, ability to observe, and motivation as key issues in determining the witnesses’ credibility and reliability.

Collusion [ 50 ] The defence did not put the issue of collusion to any of the witnesses. Therefore, they did not have a chance to respond to this serious allegation. This is a weakness in the defence’s argument because the court did not have an opportunity to hear the witnesses respond to this charge and to gauge their demeanour in answering this accusation. [ 51 ] I considered that the witnesses did not call the police at the scene or ask for help from bystanders. They all had cell phones so they could have called the police at the scene. Perhaps it is odd that instead they chose to go to Ms.

Khan-Napoleon’s home, tell her mother and call the police from there. And they admitted that they discussed the event amongst themselves then and afterwards. But I note that Officer Pierce spoke to Ms. Khan-Napoleon within an hour of the event. This did not give the witnesses much time to concoct such a detailed account of what happened. Moreover, he made notes of injuries on Ms. Khan-Napoleon that were consistent with the reported assault. [ 52 ] I find that the circumstances before the court do not allow me to conclude that there is anything but a weakly grounded suspicion of the possibility of collusion.

In addition to the above mentioned weaknesses with this argument, Ms. Celina testified that she is no longer Ms. Khan-Napoleon’s friend. I find that it is unlikely that she would continue to collude with her to frame Mr. Battista. I considered that in her statement to the police Ms. Celina did not mention that Mr. Battista threw multiple punches at Ms. Khan-Napoleon. She said that she was flustered and scared when she gave the statement. In these circumstances, I accept this as a reasonable and believable reason for not having mentioned this and I do not think that it detracts from her credibility.

Reliability of the witnesses’ observations [ 53 ] The defence questioned the reliability of the witnesses’ observations. I grant that their testimony differed in certain aspects and that there were areas where they were not as sure as one might wish about what exactly happened.

But after considering the discrepancies that the defence pointed out, I find that they are the normal types of divergences and lacunae found in the testimony of different persons who are honestly trying to recall a fast moving and emotionally upsetting event. [ 54 ] I studied the witnesses closely as they testified and considered their testimony carefully afterwards. I found that there were several features of their evidence that lent credibility and reliability to their testimony: 1. They had excellent memories and recalled similar details of the event. 2.

They had a very good opportunity to observe what they said they saw occur. In spite of the defence’s efforts to attack Ms. Wieczorek’s opportunity to observe, her explanation of how she managed to see into Ms. Khan-Napoleon’s car made sense.

In addition, it corresponds with Ms. Khan-Napoleon and Ms. Ms. Celina’s evidence. The defence did not successfully attack Ms.Celina, Ms. Khan-Napoleon or Ms. Wieczorek’s opportunity to observe. 3. They admitted when they did not remember things and none of them tried to hide that they discussed the incident witheach other. 4. Ms.Wieczorek testified that Mr. Battista had his back to her and she saw him mak- ing a punching motion with his fisttowards Ms. Khan-Napoleon, but she did not see him make contact with her body.

She could have easily said that she saw him hit her, thereby further incriminating him, but she refrained from doing that. 5. Ms. Khan-Napoleon, Ms. Wieczorek and Ms. Celina all agreed that Ms. Khan- Napoleon fought back ferociously. Noneof them tried to minimize her role in the fight. 6. Ms. Khan-Napoleon admitted things that were not complimentary to her, for example, she admitted that when she gaveher statement to the police she omit- ted her

part in the fight. In addition she did not try to hide her animosity towards Mr. Battista. [55] Officer Pierce’s evidence supports the evidence that Mr. Battista shoved the side of Ms. Khan-Napoleon’s head againstthe door/window frame of her car because he noted injuries to her that are consistent with such an action. I find that in the circumstancesbefore the court the fact that he did not take pictures of the injuries does not detract from this evidence because he made a note of them inhis note book. [56] In addition, Officer Pierce noted that Ms. Khan-Napoleon was quite upset when he spoke to her. In R. v.

Mete[1998] O.J.No. 16 Ontario Court of Justice (General Division) Brampton, Ontario Hill J. held that: The demeanour of a complainant of sexual abuse, shortly following the alleged offence, may hold probative value as to the likelihood ofthe event occurring as described by the complainant: Regina v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9 per curiam; Regina v.Clark (1996), (ON CA), 87 O.A.C. 178 (C.A.) at para. 7 per curiam. I find that the same logic holds true for the assault alleged in the case at bar. Motive to lie [57] The defence suggested that Ms. Khan-Napoleon has a motive to lie about Mr.

Battista assaulting her in order to enhanceher family court case for sole custody of their child. This is a plausible argument because this type of thing happens. Therefore, I take itinto consideration in evaluating her credibility. But I find that however she feels about her family court case she did not make up thisstory of assault in order to further that cause. She would have had to enlist Ms. Celina and Ms. Ms. Wieczorek in this effort and since Ifound that there was no collusion, this argument does not have merit in this particular case. Post-offence conduct [58] In R. v. Teske (ON CA), [2005] O.J.

No. 3759(C.A.), Mr. Justice Doherty held that: More recent case law has…recognized that after-the-fact conduct evidence is simply a species of circumstantial evidence. Theevidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in thecontext of the entirety of the evidence and the issues raised at trial: (citations omitted) (para. 85) [59] I find that the evidence in this regard is too equivocal to permit an inference that Mr. Battista was apologizing for havingassaulted Ms. Khan-Napoleon.

I agree with the defence that he could have been apologizing for just having had the fight at all. [60] However, this is not fatal to the Crown’s case because it is not necessary to found a conviction on the charge before thecourt. The Crown witnesses testified in a plausible manner and their credibility was not successfully undermined. I accept their evidenceand I am persuaded beyond a reasonable doubt that Mr. Battista assaulted Ms. Khan-Napoleon in the way that they described and that hecaused the injuries that Ms. Khan-Napoleon reported. I find him guilty as charged and a conviction is registered.

Released: October 31, 2011 Signed: “Justice J.W. Bovard”