R. v. Ruscitti, 2016 ONCJ 813

ONTARIO COURT OF JUSTICE CITATION: R. v. Ruscitti, 2016 ONCJ 813 DATE: December 6, 2016 COURT FILE No.: Central East Region: Oshawa Courthouse 15-21590 BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTOPHER RUSCITTI Before Justice Peter C. West Heard on December 5, 2016 Reasons for Judgment delivered on December 6, 2016 Mr. D. Slessor.................................................................. counsel for the Crown Mr. D. Embry..........................

Counsel for the defendant Christopher Ruscitti WEST J.: [1] Christopher Ruscitti was charged on June 7, 2015 with the following offences: assaulting Margaret Woolhead with a weapon, towit: a garden clipper; mischief under $5000; threatening Margaret Woolhead’s dog and theft under $5000. He was also charged withassaulting Ms. Woolhead on June 5, 2015. At the commencement of the trial Mr. Ruscitti pleaded guilty to the mischief under andthreatening Ms. Woolhead’s dog. He pleaded not guilty to the three remaining charges. [2] Two witnesses testified on the trial, Margaret Woolhead and Christopher Ruscitti.

The Crown filed a number of photographsrelating to the damage caused to Ms. Woolhead’s residence and the injuries allegedly suffered by Ms. Woolhead as a result of the twoassaults, Exhibits 1 and 2. A number of voice messages, eight in total, from Mr. Ruscitti to Ms. Woolhead, were also played and filed asExhibit 3. At the conclusion of the evidence during the submissions by the Crown I was invited to dismiss the theft under charge relatingto the gardening tools belonging to Ms. Woolhead.

Consequently, the theft under charge is dismissed. [3] This case involves the operation of the principles set out by Justice Cory in R. v. W. (D.), (SCC), [1991] 1S.C.R. 742. The position of the Crown is I should reject Mr. Ruscitti’s evidence because of the implausibility of his evidence and thenumerous inconsistencies that were evident. Mr. Ruscitti’s evidence should not be believed having regard to his upset and rage, which isdemonstrated by the mischief and damage caused to Ms. Woolhead’s house and property, which is admitted by Mr. Ruscitti and is alsoevident in the voice messages left on Ms.

Woolhead’s phone by Mr. Ruscitti. The Crown argues having rejected Mr. Ruscitti’s evidenceI should not be left with a reasonable doubt by it. Finally, I should accept Ms. Woolhead’s evidence respecting the two assaults as it isconsistent with the bruising depicted in the photographs and her evidence is internally consistent. [4] The defence argues I should accept Mr. Ruscitti’s evidence as Ms. Woolhead’s evidence is not worthy of belief. Her descriptionof the assault on June 5, 2015 by Mr. Ruscitti is impossible and I should not accept it. Further, Ms.

Woolhead told the 911 operator shedid not suffer any injuries from Mr. Ruscitti’s assault on June 7, 2015, yet she now points to a bruise to her left cheek by her jaw line.The defence argues I should reject Ms. Woolhead’s evidence respecting the two assaults. At best the defence submits I should be leftwith a reasonable doubt as to how Ms. Woolhead suffered the bruising depicted in the photographs, which would result in a dismissal ofboth charges of assault.

The Law [5] As in any criminal case, Mr. Ruscitti is presumed innocent until proven guilty. I have reminded myself that I need not firmlybelieve or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that theCrown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by theSupreme Court of Canada in R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40 , 147 C.C.C. (3d) 449 (S.C.C.).

Proof of aprobability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminalproceedings. [6] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if Iaccept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole.

If I reject his evidence,or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of thedefendant beyond a reasonable doubt. [7] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such anapproach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonabledoubt: W.(D.) supra, at 409 per Cory J. [8] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J.

No 311 at para 5 noted: W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, theyprohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence ofCrown witnesses to that of defence witnesses. [9] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes andpermits comparing and contrasting the evidence of those witnesses.

The Court of Appeal in Hull continued: However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, includingthe testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positiveduty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with areasonable doubt concerning the guilt of the accused. [10] The Court of Appeal in R. v. D. (J.J.R.), [2006] O.J.

No. 4797 also held an outright rejection of the accused’s evidence based ona considered and reasoned acceptance beyond a reasonable doubt of the truth of the complainant’s evidence is “as much an explanationfor the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or thesubstance of the accused evidence” (see para. 53). [11] Proof beyond a reasonable doubt means what it says.

There is thus nothing illogical in rejecting the defendant’s evidence but stillnot being sufficiently satisfied by the complainant’s evidence to find that the case has been proven. A state of uncertainty at a trial likethis, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have areasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or theevidence of any other defence witness, or the absence of evidence, the charge must be dismissed.

Analysis [12] The facts not in dispute are that Mr. Ruscitti and Ms. Woolhead have known each other since high school when they dated foreither three years, according to Ms. Woolhead or one year, according to Mr. Ruscitti. They have continued to be in touch over the yearsand in July 2014 their relationship recommenced until these incidents before the court occurred. [13] It is also agreed by both parties that a week or two before June 5, 2015, Mr. Ruscitti and Ms. Woolhead video-taped the two ofthem performing various sexual acts with each other using a mini iPad owned by Mr. Ruscitti.

It is also agreed that prior to June 5, 2015,Ms. Woolhead wanted Mr. Ruscitti to delete the video because the relationship was over and Mr. Ruscitti refused to do so at that time. [14] What is interesting is Mr. Ruscitti’s evidence respecting his relationship with Ms. Woolhead. Initially in his evidence in chiefMr. Ruscitti testified he was not in a relationship with Ms. Woolhead and only was seeing her in 2014 and 2015 to purchase marihuanafrom her. Mr. Ruscitti was quick to add this was before he obtained a medical marihuana license, through which he now purchasesmarihuana. This allegation was not put to Ms.

Woolhead in cross-examination and consequently she was not given an opportunity torespond. [15] Mr. Ruscitti; however, changed his evidence and subsequently he reluctantly admitted he was in a relationship with Ms.Woolhead from July 2014 until the dates of the two incidents. He maintained the relationship between them was tumultuous. He testifiedhe thought on June 5 their relationship was still going but then testified on the night before he told her she was being “shift deleted” fromhis mind. In my view, Mr. Ruscitti’s evidence on his relationship with Ms.

Woolhead was less than forthright and internally inconsistentas reflected by his sudden change in testimony. [16] Mr. Ruscitti testified Ms. Woolhead called him on June 4, 2015 and told him their relationship was over and she wanted him todelete the sex video. Mr. Ruscitti told her he would not delete it because he wanted “solace” on the weekend because June 6 was theanniversary of his brother’s death and he wanted to be left alone. [17] In my view, his position of refusing to delete the sex video did not make any sense as he knew its destruction was of the utmostimportance to Ms.

Woolhead and his refusal to delete it would only cause Ms. Woolhead to continue to request its destruction and hewould not be left alone.

[ 18 ] The evidence of Mr. Ruscitti and Ms. Woolhead respecting her attending his residence on June 5, 2015, is completely at odds and divergent. Mr. Ruscitti testified he was home watching the NHL playoffs. His front door was open and the front screen door was unlocked because it was hot out. Initially he testified this was the only day he had left both doors unlocked but he changed this evidence when confronted with the unlikelihood of this being the case and admitted the two doors were in fact unlocked on many occasions. [ 19 ] When Mr.

Ruscitti was asked who was playing in the NHL playoff game he was watching, he testified he could not recall. He initially testified it was not the championship series but when his attention was directed to the time of year he changed his evidence and said it was the championship series but could not recall who was playing. His attention was drawn to the fact Ms. Woolhead arrived at his house around 4 p.m. and no championship game would be played at that time of day. In fact, Mr. Slessor told Mr. Ruscitti there was no NHL game on Friday, June 5, 2015. Mr.

Ruscitti changed his evidence again and said maybe he was listening to music as testified to by Ms. Woolhead. He then changed his evidence again and testified he now recalled he had PVRd the Wednesday game and was watching that game. This was after the Crown showed him a printout of the championship games, with dates and times. Suffice it to say, I found Mr. Ruscitti’s constant shifting of his evidence to be very concerning and troubling. I found his veracity to be extremely wanting during cross-examination. [ 20 ] It was Mr. Ruscitti’s evidence that Ms.

Woolhead showed up unannounced at his house, did not knock but walked into his house and demanded he delete the sex video from the iPad. Mr. Ruscitti refused to delete the video. It was Mr. Ruscitti’s evidence that the iPad was covered by papers on his coffee table and was not visible, yet somehow Ms. Woolhead knew to look under the items on the coffee table, find the iPad and then leave Mr. Ruscitti’s house. Mr. Ruscitti testified he told Ms. Woolhead to have fun with the iPad. He did not try to stop her from taking it. He knew it was password protected and she did not know the password. Ten minutes later Ms.

Woolhead, according to Mr. Ruscitti was back at his house asking him for the password and he gave her a hint and sent her on her way. In my view, this does not make sense. [ 21 ] Further, Mr. Ruscitti testified Ms. Woolhead called again on June 6, 2015, and threatened to destroy the iPad, by smashing it or submerging it in water, if he did not provide her with the password. He refused to provide her the password as he did not want her to see the other things he had on it.

Again, this evidence is inconsistent with his testimony he let her take the iPad and later gave her a hint as to what the password was. [ 22 ] On Sunday, June 7, 2015, Mr. Ruscitti testified there was a knock on his door and when he went to the door he saw Ms. Woolhead driving away and found his iPad in his mailbox. He knew she had deleted everything because of the smile on her face. His evidence as to how he knew she had wiped everything off the iPad and not just the sex video, in my view, was also inconsistent and not credible.

What is clear; however, is that he became enraged by her action of deleting everything on the iPad. [ 23 ] This sequence of events does not make sense given Mr. Ruscitti’s evidence he did not want her to get into the iPad as he had other things on it he did not want her to see that were important to him.

Further, jumping ahead, his reaction to her deleting everything from the iPad: damaging her air conditioner by cutting its power supply with a large garden shear; cutting her cable box off the side of her house; cutting wires on her lawnmower to render it inoperable; pouring gasoline on her deck, bedroom window screen and sliding door screen; and the content and anger reflected in the eight voice messages left on Ms. Woolhead’s answering machine, threatening her and her dog, demonstrate, in my view, the implausibility of what Mr. Ruscitti describes occurring in his testimony. [ 24 ] Ms.

Woolhead testified she decided the relationship she had with Mr. Ruscitti was over and as a result she became very concerned about a sex video she had made with Mr. Ruscitti a couple of weeks before June 5. Mr. Ruscitti had refused to delete the video and had told her he was going to post it on YouTube. It became very important to Ms. Woolhead for Mr. Ruscitti to delete the sex video. On June 5, 2015, after Mr.

Ruscitti had refused to delete the video during a phone call, she went to his house to ask him in person. [ 25 ] The doors to his house were unlocked and she went in and found him sitting in his easy chair in the living room listening to music. She asked him to delete the video. He said he would delete the video but was not ready to do so right then. Ms. Woolhead testified she startled Mr. Ruscitti when she entered the house. They were both yelling at each other. The iPad was on the coffee table, which was between the TV and two chairs facing the TV. Ms. Woolhead picked it up and Mr.

Ruscitti took it from her and put it on the computer desk in the dining room, which was right beside the living room. He came back towards Ms. Woolhead and kicked her in the chest. She was standing by a chair with arms and when he kicked her she fell back into the chair. She thought he kicked her with his left foot. She could not recall if he had shoes on. Her side hit the arm of this chair. [ 26 ] Ms. Woolhead testified she got out of the chair, knew she had to leave so she went to the computer table took the iPad and left the house and went to her car and drove away. In cross-examination Ms.

Woolhead agreed she told Mr. Ruscitti she was going to go to the police and tell them he drugged her and made a sex video if he did not delete it. Mr. Ruscitti came back to where she was standing after he put the iPad on the computer table. She testified Mr. Ruscitti lept into the air and kicked her in the chest. She knows he is capable of doing this because he did it to her. She did not know how he landed after he kicked her as she went backward into the chair with arms. [ 27 ] Exhibit 1 are a series of photographs taken by police on June 7, 2015, shortly after Mr. Ruscitti had caused the damage to Ms.

Woolhead’s house. After Mr. Ruscitti left her house she called 911. There are five photographs, pp. 5 and 6 of Exhibit 1, showing a significant bruise to Ms. Woolhead’s chest, just above her breast area on her chest below her neck. This bruise is black and blue and red in colour and appears to be in the shape of a foot. It is my view this bruise is consistent with Ms. Woolhead being kicked in the chest. Exhibit 2 is a further series of photographs taken by the police on June 8, 2015, when she returned to the police station. The third page has three photographs depicting a small round bruise just above Ms.

Woolhead’s left elbow, which she testified must have happened when she went back into the chair with arms. Further, there are four photographs, pp. 3 and 4, depicting a linear bruise on her left side, which Ms. Woolhead testified occurred from being kicked into this chair and her side hitting the arm of the chair. These bruises, in my view, are consistent with Ms. Woolhead being kicked back into this chair and her left side and left elbow striking the chair’s arm. [ 28 ] There are also four additional photographs of the bruise to Ms.

Woolhead’s chest area, which are now yellow in colour as opposed to what is depicted in the photographs taken the previous day. Again, these photographs are consistent with Ms. Woolhead’s evidence as to how she was kicked in the chest by Mr. Ruscitti.

[ 29 ] It was Mr. Ruscitti position he caused the damage to Ms. Woolhead’s residence and property on June 7, 2015 to dissuade and stop her from ever coming to his house again. I do not accept Mr. Ruscitti’s characterization of his actions and find he caused the damage as a result of a desire on his part to punish Ms. Woolhead for completely erasing the data on his iPad.

He was angry and enraged and in my view was sending the message to her that he is not someone to cross or mess with because he will retaliate and he will win. [ 30 ] These are the clear sentiments expressed in his eight voice messages of making Ms. Woolhead pay for what she did to his iPad. In the third message he tells her he knows she called the police yet he continues to leave threatening messages. The message from Mr. Ruscitti to Ms. Woolhead was “You reap what you sow and you’re going to be sowing a lot more.” This statement is made after he caused all of the damage set out above.

One of the voice messages was made by Mr. Ruscitti when the police are knocking on his door (message 4), which he indicates does not cause him any concern as he does not intend to answer it so they will need to get a warrant. [ 31 ] At one point Mr. Ruscitti interrupted his counsel’s questioning to directly address the Court and he expressed his apology for the vulgar language he used in the voice messages, It is my view this apology was disingenuous and in no way sincere and it is my finding Mr. Ruscitti’s use of vulgar language was to convey to Ms.

Woolhead “there will be hell to pay” for her deleting everything on his iPad. [ 32 ] In the 5 th message Mr. Ruscitti confesses to damaging Ms. Woolhead’s air conditioner, her cable and her lawnmower. He tells her she poked the bear, referring to himself and later threatens her by saying he caused all the damage without any planning on his part, it was “ad lib,” improvising. He then makes a veiled threat, “So what I’m getting at is wait till I prepare, wait till I prepare especially for you.” It is clear from the messages Mr. Ruscitti intended to frighten and terrorize Ms. Woolhead. In his final message Mr.

Ruscitti tells her he is “happy with his moves,” he is “feeling really good right now,” and he is “feeling a lot better.” He tells her the way he feels better is to attack her and she is “going to learn.” His final comment is “I cannot wait to hear from you when your dog is dead.” [ 33 ] It is my view, all of the above conduct engaged in by Mr. Ruscitti puts a lie to his evidence of “gently” throwing the small gardening shear towards the house and it landing in front of the wall. The photographs in Exhibit 1 show the deck and the wall Mr. Ruscitti testified he threw the small gardening shears towards.

There is no small gardening shear on the deck. Mr. Ruscitti agrees with Ms. Woolhead this small gardening shear only had 2”-3” blades. The gardening shears on the deck have much larger blades, somewhere between 9”-12”. I find Mr. Ruscitti was evasive in his evidence surrounding his throwing the small garden shears at the wall of the house. Initially he agreed the blades were only 2”-3” but he then testified they were longer and tried to point to the shears on the deck with 9”-12” blades as being the ones he threw. He then agreed these were not the shears he threw, the blade was much smaller.

When confronted they were not in any of the photographs close to the wall where he said they landed he testified they were probably removed. [ 34 ] Further, Mr. Ruscitti was in a rage when he was at the house causing the damage. This rage and extreme upset did not subside after he finished causing the damage. The eight messages prove this. In fact, in message 5 Mr. Ruscitti, in my view, admits to throwing the small gardening shears at Ms. Woolhead not at a wall. “I aimed at your heart with those shears and you know obviously I didn’t hit your heart because you’re heartless right.” The defence argues this was Mr.

Ruscitti spewing hyperbole and being rhetorical; however, I find this was Mr. Ruscitti admitting he threw the shears at Ms. Woolhead. He may not have seen them connect with her left cheek but I find he deliberately threw them in her direction, intending to hit her. [ 35 ] The defence argues Ms. Woolhead told the 911 operator when asked if she had any injuries that she only had injuries to her chest from Mr. Ruscitti kicking her on Friday night and she had no injuries from Mr. Ruscitti’s actions on Sunday afternoon. I accept Ms.

Woolhead’s evidence she was unaware of the bruise to her left cheek, seen in Exhibit 2 in the four photographs on p.2, until her doctor pointed it out to her on Monday when she went to have her chest examined. The bruise depicted in those photographs is consistent with Ms. Woolhead’s evidence respecting Mr. Ruscitti throwing the shears at her when she was attempting to stop her dog from going onto the deck where Mr. Ruscitti had poured gasoline. I also accept Ms.

Woolhead’s evidence of the small gardening shears landing inside her house through the open sliding door she was standing at. [ 36 ] There are other examples of Mr. Ruscitti’s evidence being evasive or inconsistent, for example his evidence surrounding YouTube and his telling Ms. Woolhead he still had a snippet or excerpt of the sex video on his computer and his intending to post it onto YouTube. Considering the totality of the evidence in this trial I do not accept Mr. Ruscitti’s evidence in respect of the two assaults. Further, I find Mr.

Ruscitti’s evidence does not raise a reasonable doubt when I consider it in the context of the evidence as a whole. I find the Crown has proved the two charges of assault beyond a reasonable doubt given my acceptance of Ms. Woolhead’s evidence in respect of Mr. Ruscitti’s assaultive behaviour of kicking her in the chest on June 5, 2015 and throwing the small gardening shears at her, striking her on her left cheek on June 7, 2015. I find the photographs of bruises to Ms. Woolhead’s chest, left side and left elbow corroborate and are consistent with Ms. Woolhead’s description of how Mr. Ruscitti kicked her.

I also find the bruise to her left cheek corroborates her evidence of Mr. Ruscitti throwing the small shears at her when she was bent over holding her dog. Finally, I find Mr. Ruscitti admitted to throwing the shears at Ms. Woolhead in his 5 th message. [ 37 ] As a result of these findings there will be convictions registered on the assault and assault with a weapon charges. [ 38 ] As a result of Mr. Ruscitti’s pleas of guilty to the mischief under and threatening to kill Ms. Woolhead’s dog and the evidence led during this trial there will also be convictions registered on both of these charges.

Released: December 6, 2016 Signed: Justice Peter C. West