R. v. Lupusella, 2017 ONCJ 364

ONTARIO COURT OF JUSTICE CITATION: R. v. Lupusella , 2017 ONCJ 364 DATE: 2017 03 21 COURT FILE No.: Brampton 3111 998 15 16554 BETWEEN: HER MAJESTY THE QUEEN — AND — ALFONSO LUPUSELLA Before Justice G.P. Renwick Heard on 20 March 2017 Reasons for Judgment released on 21 March 2017 M. Stevens............................................................................................ counsel for the Crown J. Pyzer......................................................................................................... for the defendant RENWICK J.: Introduction 1 .

Alfonso Lupusella is charged with one count of Assault causing bodily harm to Claudine Braithwaite, his former common-law spouse. 2 . The Crown called one witness, Claudine Braithwaite, and introduced into evidence the following items: i. Ms. Braithwaite’s hand drawn sketches of the main floor and the laundry room where the alleged assault took place (exhibits 1-2); ii. Photographs of her injury before and after medical treatment (exhibits 3-4); and iii. Email messages exchanged between the defendant and the witness (exhibits 5a-5b).

3 . No evidence was called by the defendant. Issues 4 . There was only one issue for resolution in this trial: Did the prosecution prove beyond a reasonable doubt that Mr. Lupusella intended to assault Ms. Braithwaite, causing the tear to her left, middle finger. Analysis 5 . Ms. Braithwaite testified in a straightforward and candid manner. She did not appear to embellish or exaggerate her evidence in any way. I accept her evidence as truthful where she describes the events of 26 December 2015. 6 .

Based upon all of the evidence that I have heard and the diagrams and photographs I have seen, I find that the facts are as follows: i. Mr. Lupusella and Ms. Braithwaite were arguing in their home on 26 December 2015 about the fact that he had purchased her a Christmas present, contrary to their prior agreement not to buy each other a gift; ii. Mr. Lupusella was upset that Ms. Braithwaite had not purchased him a Christmas present; iii.

The argument began in the kitchen, which was a short distance away from the living room where their children were watching TV (one of whom they shared, while one child was from a prior relationship); iv. The argument was heated and loud and Mr. Lupusella called Ms. Braithwaite several names, including: “bitch, cunt, whore, slut, monkey;” v. Ms. Braithwaite is a woman of colour, whereas Mr. Lupusella appears to be Caucasian. I find that the use of the word “monkey” was intended as a racist insult; vi. Ms.

Braithwaite did not deny swearing at the defendant, during the argument, but she attempted to disengage herself and remained silent for the most part; vii. After about 15-20 minutes, Ms. Braithwaite left the kitchen area and went upstairs to their bedroom; viii. Mr. Lupusella followed Ms. Braithwaite and continued to argue with Ms. Braithwaite; ix. Ms. Braithwaite left their bedroom and attended the laundry room, which is also on the second floor. Mr. Lupusella followed Ms. Braithwaite and continued the argument in the laundry room;

x. While Ms. Braithwaite was unloading laundry from the washing machine, the door of the washer was forcefully slammed shut and the middle finger of her left hand was pinched by the washer door, causing the skin to be ripped from the palm-side of her finger near the joint at the end of the finger; xi. Ms. Braithwaite did not see how the washer door was slammed shut, nor what part of Mr. Lupusella he used to slam shut the washer door; xii. Mr. Lupusella forcefully slammed the washing machine door, which caused the injury to Ms. Braithwaite; xiii. Ms.

Braithwaite immediately screamed, she felt pain, and she realised she was badly injured; xiv. The children attended the laundry room and Ms. Braithwaite complained that Mr. Lupusella had slammed the washer door on her finger; xv. Mr. Lupusella began to say that he didn’t mean it and now he would be charged by the police; xvi. Ms. Braithwaite went to her bedroom where she clutched her hand and she observed that blood was pouring from her finger; xvii. Mr. Lupusella offered to take Ms. Braithwaite to the hospital but she ended up driving herself after dropping off one of the children at her Mother’s house; xviii.

Ms. Braithwaite took photographs of her injury within minutes of the incident, with her cell phone while she was in the car; xix. Ms. Braithwaite attended the hospital and received five stitches to close the tear to the skin of her left, middle finger; xx. After receiving her injury, Ms. Braithwaite did not initially want to have Mr. Lupusella charged. Instead, she wanted a restraining order in place so that he would leave her alone; xxi. At the hospital, Ms. Braithwaite spoke with a social worker and was told that a restraining order was not guaranteed; xxii. On the night of the incident, Ms.

Braithwaite agreed with Mr. Lupusella that the injury had been accidentally caused, she said, in order to end any further discussion about the matter, before they went to sleep for the night in the same bed; xxiii. On the next day, Ms. Braithwaite decided to report the matter to the police during another argument with Mr. Lupusella; xxiv. Ms. Braithwaite spoke with the police on 27 December 2015 and again on 24 April 2016 about her injury. Photographs were taken by the police on the earlier occasion; xxv. When Ms. Braithwaite returned to speak with the police in April, she made no mention that she and Mr.

Lupusella had communicated with each other by telephone, email, and text messages, since his arrest; xxvi. In her April statement, Ms. Braithwaite told the police that her injury may have been an accident but Mr. Lupusella’s actions were not accidental;

xxvii. In June 2016, Mr. Lupusella drafted an email which he sent to Ms. Braithwaite to be sent to the Crown Attorney to explain her injury was the result of an accident; xxviii. In her response to Mr. Lupusella’s email, sent later that day, Ms. Braithwaite made no mention of Mr. Lupusella’ s draft email for the Crown Attorney; xxix. In addition to the medical treatment she received (five stitches), Ms. Braithwaite suffered pain and stiffness in her finger for some period of time following the injury; and xxx. Ms. Braithwaite appears to have fully recovered from her injury. While testifying, Ms.

Braithwaite used her left hand, without any apparent discomfort or difficulty to describe various actions, to turn the pages of a transcript of her police statement, and to review the photographs of her injury. 7 . Although I generally found Ms. Braithwaite to be a truthful witness, I decline to make any findings of fact with respect to her having been pushed or grabbed by Mr. Lupusella (and having received bruises) as she claimed had happened in the past, while testifying under cross-examination.

There were no details about these incidents and whether or not they involved consensual physical altercations, or how any bruising was caused. I take from her evidence that there were occasions in the past when each of them were physical with the other. The Law 8 . In order to find Mr. Lupusella guilty of this offence, I must be satisfied that each of the following elements have been proved, beyond a reasonable doubt: i. That Mr. Lupusella intentionally applied force to Ms. Braithwaite; ii. That Ms. Braithwaite did not consent to the force that Mr. Lupusella intentionally applied; iii. That Mr.

Lupusella knew that Ms. Braithwaite did not consent to the force that he intentionally applied; and iv. That the force Mr. Lupusella intentionally applied caused bodily harm to Ms. Braithwaite. 9 . If the Crown has failed to satisfy me beyond a reasonable doubt of each of these essential elements, I must find Mr. Lupusella not guilty of assault causing bodily harm. Conversely, if I am satisfied of each of these essential elements beyond a reasonable doubt, I must find Mr. Lupusella guilty of this offence. 10 .

I remind myself that this offence may be committed by the direct application of force, for example if a defendant uses his foot to crush someone’s ribs. Or the offence may be committed by the indirect application of force, such as slamming a washing machine door closed on someone’s finger. 11 . The force that is applied must be intentional and against the complainant’s will. An accidental application of force (direct or indirect) is not an intentional application of force.

12 . To find Mr. Lupusella guilty of this offence requires that I find that he intended to slam the washing machine door on Ms. Braithwaite, without her consent, and thereby caused her bodily harm. Application of the Law to the Facts 13 . There is no doubt in my mind that Mr. Lupusella slammed the washing machine door out of frustration during his argument with Ms. Braithwaite. She was ignoring him, refusing to participate in any argument or discussion, and she was not even looking at him. She had used this form of “silent argument” many times before and he was upset and frustrated with her.

I do not accept that the washing machine door somehow closed or was caused to close by the actions of Ms. Braithwaite, as counsel for Mr. Lupusella suggested. Ms. Braithwaite did not consent to this application of force. 14 . However, I am unable to find on all of the evidence proof beyond a reasonable doubt that Alfonso Lupusella intentionally slammed the washer door knowing that it would catch the complainant’s finger and cause her injury. This follows from the evidence for these reasons: i. There is no evidence that Mr. Lupusella could see Ms.

Braithwaite’s hand at the exact moment when he slammed the washer door. Unfortunately, Ms. Braithwaite was looking into the washing machine at the time when her injury was caused and she cannot say where he may have been looking, what his vantage point was, or how he slammed shut the door at that exact moment in time; ii. Ms. Braithwaite agreed in cross-examination that Mr. Lupusella may not have seen where her hand was because her hands were moving; iii. Ms. Braithwaite’s hands were in motion and it is a reasonable inference that although Mr.

Lupusella intended to slam the washing machine door, he did not intend to slam the washer door on Ms. Braithwaite’s finger. Ms. Braithwaite explained that she had removed some sheets from the washer and placed them in the dryer and was about to repeat this process when the washer door slammed on her finger and caused her injury. I take from this description that rather than having her hand in the washing machine when the door was slammed, her hand was not yet in the machine but it was moving from the dryer back to the washer.

This was not exactly canvassed by either counsel, but this is a reasonable inference on the wording she used in describing the incident and how it occurred and the fact that she did not describe almost having her whole hand hit by the washer door, nor did she mention having anything in her hand at the point of impact, nor does it appear that any sheet she was retrieving or about to retrieve had actually interfered with the door shutting on her finger, all of which I expect would have happened if Ms. Braithwaite’s hand were moving out of the washing machine at the point her finger was caught by the appliance door.

If this inference is correct, her hand was not yet in the washing machine when Mr. Lupusella slammed the door closed; iv. Mr. Lupusella immediately claimed that “he didn’t’ mean it.” Granted, this expression is capable of more than one

interpretation: he didn’t mean to slam the door, or he didn’t mean for the door to hit Ms. Braithwaite’s finger, or, he intended to hit her with the door, but he did not intend to use the amount of force he did, or that he intended to hit her whole hand or arm, rather than having the skin of her finger torn apart. Nonetheless, I am left in a state of doubt about this statement and I cannot use this utterance to find as a fact that Mr. Lupusella intended what had happened and was attempting to dissuade the complainant from reporting this to the police, as suggested by the prosecutor; v. Ms.

Braithwaite’s own actions support a finding that her injury was an accident. Initially, she did not want to call the police, but merely wanted him to leave her alone. Ms. Braithwaite accepted his explanation (it was an accident) and did not even try to rebut this suggestion when they discussed it later that evening. She seems to have forgiven him, possibly because she recognized that it may have been an accident, and she was content to leave the matter and go to sleep; and vi. Ms. Braithwaite told the police that her injury may have been accidental, although Mr.

Lupusella’s actions (slamming the washer door) were deliberate. Conclusion

15 . Mr. Lupusella exercised extremely poor judgment by escalating the argument that day, first in the area where they could be overheard by their children, secondly, by yelling insults and deplorable names at Ms. Braithwaite, thirdly, by repeatedly following her and attempting to continue an argument that she clearly did not want to have, and lastly, by using the washing machine door as a means to send a message or to get Ms. Braithwaite’s attention. 16 . I am unable to find that Mr. Lupusella intentionally slammed that washer door knowing that it would catch and injure Ms. Braithwaite’s finger.

I am unable to find that Mr. Lupusella was reckless as to whether or not the slamming of the door would catch and injure Ms. Braithwaite’s finger. There is nothing in anything he said or did before the injury was caused or subsequently to help me answer these questions in any satisfactory way. 17 . While I have serious misgivings about Mr. Lupusella’s behaviour on 26 December 2015 and I accept the majority of the evidence given by Ms. Braithwaite about what happened that afternoon, I am unable to accept her opinion that the injury was deliberately caused by Mr.

Lupusella based on the amount of force it took to slam the washing machine door and to cause the tear to her finger. I have a reasonable doubt on this element of the offence and I must acquit Mr. Lupusella, accordingly. 18 . I thank both counsel for your able arguments and your conduct during this trial. Released: 21 March 2017 Justice G. Paul Renwick