R. v. Iannuzziello, 2010 ONCJ 574

COURT FILE No.: Toronto 4814 09/40 005331-99 DATE: 2010-11-25 Citation: R. v. Iannuzziello , 2010 ONCJ 574 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — FELICE IANNUZZIELLO Before Justice Fergus ODonnell Heard on 27 September and 8 November, 2010 Reasons for Judgment released on 25 November, 2010 Mr. Paul Cooper.................................................................................................... for the Crown Mr. Martin Sabat............................................................................................. for the defendant ODonnell, J.: Overview 1 .

In Italian, the word “felice” means “happy” or “content”. This case is about a domestic situation apparently devoid of happiness or contentedness for many, many years that is now making its second appearance in the criminal courts. Arising out of the decline of that relationship Felice Iannuzziello stands charged with four offences arising out of a confrontation between him and his wife, Ida, in their family home on 23 June, 2009. Those charges are: a . That he assaulted her. b . That an assault in the kitchen caused bodily harm in the form of a cut to her head. c .

That he refused her direction to leave the apartment, thus being in violation of a term of his peace bond. d . That he also violated the peace bond’s “keep the peace and be of good behaviour” condition by virtue of the alleged assault. 2 . I heard from Ms. Iannuzziello and Mr. Iannuzziello. I also heard from two responding police officers. 3 . Ms. Iannuzziello testified that she and Mr. Iannuzziello have been married for twenty years.

While the marriage was pretty good for the first few years, there was no real warmth or affection from her husband after their son was born in 1993 and she was the object of a lot of verbal and mental abuse from that time onwards, although it escalated during the last few years. The mental abuse consisted of frequent unkind comments about Ms. Iannuzziello’s appearance. She said that there were arguments over the home and over ownership of material things. She believed that he felt that as a stay-at-home mother she didn’t contribute while he went out to work. 4 . Ms.

Iannuzziello testified that there was previous police involvement in 1995. They argued over Ms. Iannuzziello’s attendance at a bridal shower and her concomitant inability to care for their son that day. Mr. Iannuzziello pushed her and she fell and called 911 but no charges were laid. It became an agreed fact by the end of the trial that there was no record of any 911 call in 2005 to corroborate that incident. There was also an incident in 2008 when they were arguing in their car behind their building and he pushed her and the neighbours called the police. 5 . Ms. Iannuzziello was at home on 23 June, 2009. Mr.

Iannuzziello was living in the family home at the time as a result of a letter Ms. Iannuzziello had written allowing him to be there, since any contact was otherwise prohibited by the terms of the peace bond. Their son was home from school; their daughter had attended school that day. She said that around that time she had finally decided she didn’t want to be married any longer. She had raised this with Mr. Iannuzziello before and he would typically react by saying for her to go to her mother since nothing was in Ms. Iannuzziello’s name. She said that when Mr.

Iannuzziello returned home, he was upset because she had said the marriage was over. He had a box of groceries with him and complained that he had to do all the work, including the groceries. She suggested that they split up amicably; he told her ‘no’, everything was his and she should just get out. 6 . By this time it was after 4 p.m. Ms. Iannuzziello said that their son had left around 4 p.m. and their daughter had gone to a friend’s next door. This last point was about the only thing Ms. Iannuzziello and Mr. Iannuzziello agreed upon. They were not even agreed about their son’s whereabouts. 7 . Ms.

Iannuzziello said she told Mr. Iannuzziello that he should grab his stuff and go back to his mother’s house. This utterance is important because, if I am satisfied that it was made, it would constitute a verbal revocation of Mr. Iannuzziello’s right to be present. He refused, saying it was his house. She said she wanted him to leave so that they would stop arguing and that if he

didn’t leave, she would call the police. She couldn’t believe he would take the chance of staying despite her order to leave, considering he had been in trouble in 2008. 8 . Ms. Iannuzziello said that when Mr. Iannuzziello refused to leave, she ran to the bedroom to call the police. He pushed her onto the bed and straddled her and told her she couldn’t use the telephone. This would constitute an assault. At some point, she lifted the bedroom phone receiver, but it didn’t work. She got up and ran to the kitchen to use the portable phone, at which point Mr.

Iannuzziello pushed her from behind and her head banged into the wall on the right side. When asked in cross-examination who had pushed her into the wall, Ms. Iannuzziello paused for a long time and ultimately said that Mr. Iannuzziello had. Ms. Iannuzziello touched her head with her hand and saw blood. She was upset as a result and wanted to call for help. She could not recall the exact details but they ended up in the bathroom. Mr. Iannuzziello had a mobile phone on his belt and they struggled over it, with Ms. Iannuzziello eventually throwing it into the toilet.

She later said that she couldn’t recall how his mobile phone got into the toilet. 9 . Ms. Iannuzziello said that she needed to use the telephone. The telephone in the bedroom was broken from before that day. She had no mobile phone of her own. The portable phone in the kitchen had no batteries (she said Mr. Iannuzziello often removed the batteries so that she couldn’t use the phone), but Ms. Iannuzziello said she must have taken the batteries from the TV remote to get it working. 10 . Ms. Iannuzziello said that she called Mr. Iannuzziello’s mobile phone and told him not to return.

She thought she had told him she would call the police and he said to go ahead and do that. She said that she was more concerned about the head injury, so she called 911 for that but the police showed up. By the time they arrived, she was less concerned about medical attention and eventually had her head wound examined at a hospital after giving a video statement to the police. 11 . Ms. Iannuzziello testified about her injuries. When asked if a mark on her arm had been there before that day, Ms. Iannuzziello hesitated for a very long time and said she was not sure.

She also could not recall if discolouration on her thigh had been there before and said she only recalled the head injury. 12 . Ms. Iannuzziello said that Mr. Iannuzziello never punched her. 13 . When Mr. Cooper showed Ms. Iannuzziello a photograph of her with a man, she identified the man as “Sam”, a friend. She said she was unsure if that was his surname. She at first said the woman in the photograph was “probably” her and then said it was her. She had no idea when the photograph was taken. Then she said she was possibly in a relationship where she would know the man’s last name.

Then she said his name was Sammy Samuel. 14 . Constable Carlo Colacci responded to Ms. Iannuzziello’s call to the police. He described her as appearing a little scared and said that he had the impression that he was holding back from her. He had to establish a rapport with her before she told him what had happened. 15 . Constable Colacci described Ms. Iannuzziello’s apparent injuries as including rosiness on the left side of her cheek, fresh blood on the right side of her head and several bruises on both arms. When asked to point out what caused the cut to her head, Ms.

Iannuzziello pointed to the wall between the kitchen and the dining room, not the front entry. She said that Mr. Iannuzziello had grabbed her and hit her head against the wall and that the bruises to her arms were from Mr. Iannuzziello grabbing her. There was no reference to Mr. Iannuzziello punching her or to any struggle in the bathroom. 16 . Mr. Iannuzziello’s testimony was dramatically at odds with his wife’s. He denied assaulting Ms. Iannuzziello or being in the apartment without her consent.

He said that she accidentally caused the injury to herself in the course of an argument about delays in getting the family van fixed. 17 . In terms of the background to that day’s events, Mr. Iannuzziello testified that he was seriously ill with a long-term illness. The illness made him anaemic and tired and he was not able to work every day but had to work that day. At the same time, divorce proceedings were underway in family court. 18 . There was something wrong with the transmission on the family’s van. Mr. Iannuzziello testified that the day began with Ms. Iannuzziello swearing at him to get the van fixed.

He said that verbal abuse by Ms. Iannuzziello was common. He had told her that he was ill and that they didn’t have the money, but he would do his best. During the day, Ms. Iannuzziello called him at work and told him that she would call 911 if he didn’t get the van fixed. He asked her to be patient. He said it was common for Ms. Iannuzziello to use the police as a threat, even though she had given her consent for him to return to the family home after the previous allegations. 19 . Ms. Iannuzziello had a different story about the van. She said she had called Mr.

Iannuzziello during the day and he said first that the van was at one shop, then at another and then he said he had gotten rid of it and then he said he had blown it up and put it in the lake. She wanted the van fixed because she had to transport the kids. Her daughter was at school and Mr. Iannuzziello came home and picked her up. She did not remember telling Mr. Iannuzziello that if he didn’t fix the van, she would call the police. She had told the police she called the two shops Mr.

Iannuzziello mentioned; in court she did not recall if she had called or if she just looked the numbers up in the Yellow Pages. 20 . Mr. Iannuzziello testified that he and his daughter came into the apartment with the groceries. He started putting the groceries away and Ms. Iannuzziello asked about the van. He said it was not fixed yet and she started swearing. Their daughter left for a friend’s apartment; their son came and asked Ms. Iannuzziello to stop swearing. 21 . Mr. Iannuzziello said that Ms. Iannuzziello grabbed his mobile phone, which was attached to his waist and said she was going to call 911.

She kicked him in the right leg and struck him on the right chest, where he still shows a scar. He said he was cut and bled and it took a long time to heal; he was too embarrassed to go to the hospital. She was strong; he was weakened by his illness. He asked her not to call the police and tried to retrieve his mobile phone. It is possible that he grabbed her arms in this attempt, but any contact would have been perhaps two seconds. [1] He said that Ms. Iannuzziello turned, seemed to trip over her own feet and hit her head against the corner of the wall.

She got up again and ran with his mobile phone to call 911. 22 . Mr. Iannuzziello testified that his telephone ended up in the toilet, though he did not see how it got there. He retrieved the telephone and left the building. He did not get any calls on the mobile phone; it no longer worked. He was never in the bedroom at any time. 23 . Mr. Iannuzziello testified that he thought he still had a scar, but one does not like to dwell on these things. He made a gesture down the right side of his chest, from under his armpit to just above his waist.

When he removed his shirt, there was a faint line approximately 2 ½ inches down that side of his chest. In the photograph, however the scar appeared on the left side. 24 . Mr. Iannuzziello said that there was a land-line telephone in their bedroom that day and it worked. There was also a cordless phone, the base unit for which was in the kitchen. 25 . Mr. Iannuzziello said that he wasn’t angry with Ms. Iannuzziello, not even upset, not even when he found his phone in the toilet. He was calm. He always tries to talk nicely to calm things down. His exact words to here were “please don’t push 911”.

26 . The outcome of this case depends on the answers to four questions: a . Did Mr. Iannuzziello assault Ms. Iannuzziello in the bedroom? b . Did Mr. Iannuzziello push Ms. Iannuzziello head into the kitchen wall? If this is proved, Mr. Cooper concedes that the injury to Ms. Iannuzziello constitutes bodily harm. c . Is the peace bond valid? The peace bond itself was signed by the issuing judge, but the information is not signed by her in the place allocated for the signature of the judge issuing the order (it is duly endorsed by the justice of the peace who received the information).

If the peace bond is valid, and if the assault is made out, Mr. Cooper concedes that this would constitute a breach of the peace, in violation of the terms of the bond. d . Did Ms. Iannuzziello direct Mr. Iannuzziello to leave the apartment, thus withdrawing the consent that each of them agreed she had earlier given for him to have contact with her? This would make out the second alleged breach of the peace bond. The Unsigned Peace Bond Issue 27 . I will deal with the peace bond issue first. Mr. Cooper argues that the peace bond is effective only if there was jurisdiction to issue it.

The fact that the hearing judge did not endorse her signature on the s. 810 information when she issued the peace bond, says Mr. Cooper, means that there was no jurisdiction to issue the order and thus the peace bond is not effective. 28 . This argument cannot succeed. In the process of issuing a peace bond under s. 810 of the Criminal Code , three judicial signatures are involved. The first is the signature of the justice of the peace, which signifies that the information has been sworn. That signature is present on the s. 810 information in this case.

Whether or not the absence of the justice of the peace’s signature would be fatal is not an issue before me. In any event, the swearing of the information commences the process and this information appears to have been properly sworn. 29 . The second signature is the signature of the hearing judge on the s. 810 information endorsing the outcome of the hearing. That signature is missing here, although all of the relevant boxes and blanks setting out the procedure and outcome of the hearing are filled in, as is the name of the hearing judge. 30 .

The third signature is the signature of the judge on the peace bond itself. The hearing judge’s signature is endorsed on the peace bond. The presence of that signature leaves no room to dispute that the peace bond was in fact issued and that it bound Mr. Iannuzziello. [2] Mr. Iannuzziello himself admitted signing the peace bond and being bound by its terms. 31 . The hearing judge’s jurisdiction to order the peace bond was not rooted in her endorsement of the s. 810 information, it was rooted in the laying of that information and the information was clearly duly sworn.

The judge’s signature noting the disposition on a s. 810 information is not an antecedent or foundational precondition for the peace bond itself. It is a simultaneous event. The judicial act was the hearing of the application, the assessment of the merits and the pronouncement of the order, in this case done on consent. The physical act of endorsement is merely an administrative act at the conclusion of the judicial proceeding. Given the presence of the judge’s signature on the actual peace bond and Mr.

Iannuzziello’s admission that he was bound by it, there is no infirmity in the peace bond arising from the missing signature on the information. [3] Has The Crown Proved Its Case Beyond A Reasonable Doubt? 32 . This case directly engages the Supreme Court of Canada’s decision in R. v. W.(D.). Although Constable Colacci’s observations of Ms. Iannuzziello’s emotional state are potentially admissible to buttress the Crown’s case, pursuant to the Court of Appeal for Ontario’s decision in R. v.

J. (A.) 2010 ONCA 491 , there are limits to the weight of that evidence in this case and it is potentially ambiguous. [4] There were only two witnesses to the events and their stories diverge dramatically. 33 . Obviously, if I believe Mr. Iannuzziello’s evidence or if it creates a reasonable doubt, I must acquit. Even if an acquittal does not come about from either of those analyses, the burden remains on the Crown throughout, to prove Mr. Iannuzziello’s guilt beyond a reasonable doubt. 34 . There are certainly some serious problems with Mr. Iannuzziello’s evidence.

These range from minor inconsistencies to more major problems. In the former category, Mr. Iannuzziello started off by saying he was working that day laying tile; in cross- examination, he was grouting. In his evidence in chief he said that he had picked up both kids en route home from work, getting groceries on the way. Later he testified that he and his daughter came into the apartment with the groceries; his son was at home. 35 . Mr. Iannuzziello was also inconsistent with respect to the photographs of his injuries taken by his son. At first he said they were taken by his son downstairs.

He could not recall when or where that was. He then said that they could have been taken inside or outside the unit. Yet the implication of his earlier testimony was that he left the apartment promptly after retrieving his mobile phone from the toilet. Mr. Cooper asks me, in assessing this discrepancy, to keep in mind that Ms. Iannuzziello herself could not recall where a picture of her with another man had been taken. Mr. Cooper’s point would be well-taken except for the fact that I felt that Ms.

Iannuzziello’s supposed failure to recall where the photo was taken was itself implausible and reflected negatively on her credibility. 36 . Mr. Iannuzziello’s description of his injuries and his inability to locate them when asked to do so in court was also troubling. He described Ms. Iannuzziello kicking him in the leg and hitting him in the chest. He produced photographs taken of those injuries, photos that he said were taken by his son that day. There is no corroboration of the timing of these photos by an independent third party as there is with the photos of Ms. Iannuzziello, which were taken by the police.

On one level, this could be troubling. On the other hand, I can perfectly understand that a father would not want to call his teenage son to testify in a criminal proceeding that pits mother against father, so I draw no negative conclusion from the failure to call the son to testify about that day’s events. What is troubling is that Mr. Iannuzziello at first said that he still had a scar on his chest, then retreated to thinking he had a scar and ended up with a physical examination showing no scar on the side he described and a smaller mark that could be the remnants of a scar on the other side of his chest.

There were various explanations given for this, none of which was entirely satisfactory. The concern that arises out of this is whether the frailties in reference to the ongoing scar might give cause for caution with respect to other parts of his evidence. 37 . There were significant problems with Ms. Iannuzziello’s evidence also. For example, she said that Mr. Iannuzziello was dismissive of her and had told her to go home to her mum whenever she said she wanted to break up, since all the property belonged to him.

Yet she said that her desire to leave was the reason he was upset when he came home on 23 June (although she later said she wasn’t sure why he was upset). Ms. Iannuzziello often asked for straightforward questions to be repeated, which was peculiar. There were sometimes awkward pauses before she answered questions. She said in her evidence that Mr. Iannuzziello never punched her, but on the video statement said that he had punched her while she was on the bed. When confronted with the video, she re-affirmed her earlier evidence that she had not been punched, but then said that she was also being truthful to the

police. She followed that with an odd statement to the effect that if Mr. Cooper wanted her to say something, she would say it. 38 . Ms. Iannuzziello’s evidence about the phones in the house was also problematic. In her video statement, she said that Mr. Iannuzziello pulled the bedroom phone wires out as soon as he got home. When asked by Mr. Cooper if Mr. Iannuzziello did that on 23 June, 2009, Ms. Iannuzziello answered that it was not just that day. She explained the discrepancy by saying there was more than one wire, seeming to suggest different wires were pulled out on different days and then said that Mr.

Iannuzziello pulled the wire out when she ran to the bedroom, which is not the same as pulling the wire out when Mr. Iannuzziello first got home. All in all, Ms. Iannuzziello’s evidence about telephones was confusing and seemingly implausible. For example, if she was grabbing Mr. Iannuzziello’s mobile phone to call 911, why would she “probably” throw it in the toilet on purpose. 39 . Ms. Iannuzziello’s answers to the questions about “Sam” and the photograph were also not reassuring.

For whatever reason, she was clearly being at best evasive and perhaps openly dishonest about the details of his name and about the photograph “probably” being her. The photograph itself clearly represents a fairly intimate moment. When one considers that Ms. Iannuzziello is wearing a leprechaun hat and Sam is wearing a bright green necklace, accoutrements typically worn on the one day of the year when everybody wants to be Irish, Ms. Iannuzziello’s assertion that she did not know where the photograph was taken rings hollow. 40 . On the other hand, there were elements of Ms.

Iannuzziello’s evidence that rang with truth. There were points in her evidence where it struck me that she was genuinely trying to remember and points where it would have been easier for her to be more harsh in relation to her husband. At one point, she readily conceded that he was a good father, no small concession in a relationship that, viewed from any angle, was clearly toxic and had been for a long time. There were also small elements of her testimony that sounded realistic—her description of Mr. Iannuzziello’s answers about the whereabouts of the van, for example, struck me as very plausible, as did Ms.

Iannuzziello’s description of the content of Mr. Iannuzziello’s hurtful words. 41 . The Supreme Court of Canada’s decision in R. v. W.(D.) sets out three questions I must ask myself. There is no real magic in the order in which I answer those questions. It is not essential in every case that I answer all of them. Obviously, if I believe Mr. Iannuzziello, I must find him not guilty. In light of the problems with Mr. Iannuzziello’s evidence set out above, however, I do not see how I can confidently accept his version of events over Ms. Iannuzziello’s recitation. 42 . Turning directly to Ms.

Iannuzziello’s evidence, upon which the Crown’s case rests, I think it is highly probable that Ms. Iannuzziello told Mr. Iannuzziello to leave the family home, exercising the power she enjoyed under the terms of the peace bond and that he failed to leave, which would be a violation of the peace bond. I think it is more likely than not that Ms. Iannuzziello’s version of how she got the injury to her head is, in general, more accurate than Mr. Iannuzziello’s recitation. For very good reason, however, Mr.

Iannuzziello is presumed innocent and that presumption is not displaced by “more likely than not” or even by high probability. The presumption of innocence is displaced only by proof beyond a reasonable doubt. This is a case in which it appears to me that each party’s evidence is a mixture of truths, partial truths, evasions and imperfect recollection. Their relationship is so toxic and appears to have been so dysfunctional for so long that each may actually have come to believe some of their own inaccuracies and exaggerations. Given the manner in which the numerous concerns I have about Ms.

Iannuzziello’s evidence permeate that evidence, I am left in a situation where I cannot be satisfied that the Crown’s evidence suffices to displace all reasonable doubt, regardless of where I think the preponderance of evidence would lead me. Conclusion 43 . In the result, I find Mr. Iannuzziello not guilty of each of the charges. Released: 25 November, 2010 Signed: “Justice Fergus ODonnell”