



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapierre, 2016 ONCA 346

DATE: 20160506

DOCKET: C59779

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Lapierre

Appellant

DOCKET: C59821

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Abouchakra

Appellant

Ian McLean, for the appellant Nicholas Lapierre

Michael Smith and Jessica Abou-Eid, for the appellant
    Joseph Abouchakra

Holly Loubert, for the respondent

Heard and released orally: April 29, 2016

On appeal from the convictions entered on April 30, 2014
    and the sentence of Mr. Abouchakra imposed on December 8, 2014 by Justice Catherine
    A. Kehoe of the Ontario Court of Justice.

ENDORSEMENT

[1]

Joseph Abouchakra, Nicholas Lapierre and John Mangione were convicted of
    robbery, attempt robbery, assault causing bodily harm and assault (x3)
    following three separate incidents over the span of half an hour. They admitted
    their presence at the first and second incidents.

[2]

Mr. Lapierre and Mr. Abouchakra both appeal their convictions, arguing
    in essence that the verdicts were unreasonable.

[3]

Mr. Abouchakra also seeks leave to appeal and, if leave is granted,
    appeals his sentence of 12 months jail on each of the offences to be served
    concurrently.

A.

First Incident: Confederation Park

[4]

In the evening of July 5, 2012, after celebrating Rodrigo Brands 50
th
birthday, he and members of his family visiting from Alberta, the Tootles, walked
    through Confederation Park, in Ottawa. The appellants approached the family. A
    fight ensued. The family subdued the three men and called police.

[5]

The appellants submit that the trial judge erred in holding that there
    was no air of reality to their defence of self-defence in relation to the fight
    between the Brand-Tootle family and the appellants.

[6]

While the appellants rely on the concept of air of reality at law, this
    was a judge alone trial and, in light of the trial judges findings that the Brand-Tootles
    were acting in self-defence, we read the trial judge as simply saying that the
    Crown had proved beyond a reasonable doubt that the appellants were not acting
    in self-defence. This holding was open to her on the evidence. There was no
    evidence that the Brand-Tootles provoked the fight, or that they threw the
    first punch.

[7]

The trial judge found that all three appellants were actively engaged in
    the assault.

[8]

Mr. Abouchakra contends that there was insufficient evidence to find
    more than his mere presence at the scene.

[9]

The trial judges findings as to what happened during the first incident
    are amply supported by the evidence. See e.g., the evidence of Jonathan Tootle,
    Gary Tootle, and Rodrigo Brand. The evidence was that at the outset of the
    altercation when the person in the red shirt took an aggressive stance towards
    Robert Tootle, the other two men, wearing black shirts, stepped in behind and
    supported him.

[10]

Mr. Lapierre also contends that there was insufficient evidence as to
    his identity, namely, that he was the person wearing the red shirt. The trial
    judges findings are owed considerable deference on appeal and we would uphold
    her finding in this regard.

[11]

The appellants also submit that there is no evidence of a common
    intention in relation to this incident. There did not have to be. On the
    findings of the trial judge the three were all common participants and
    principal actors. See
R. v. Ball
, 2011 BCCA 11, 267 C.C.C. (3d) 532,
    at para. 25.

[12]

The appeal with respect to the first incident is dismissed.

B.

second Incident: The Laurier Transit Station

[13]

In relation to the second incident involving Ryan Miszkiel, counsel for
    Mr. Abouchakra submits that there is no evidence he was involved in the
    robbery. Counsel submits that, at its highest, the evidence establishes that Mr. Abouchakra
    was in possession of stolen property.

[14]

The record indicates that Mr. Lapierre took the cell phone from
    Mr. Miszkiel, a second aggressor punched the victim in the eye and
    Mr. Abouchakra, who was standing a short distance away, did not
    participate but merely accepted the phone.

[15]

On this evidence Mr. Abouchakra did more than stand by during the
    robbery. He came with the other two involved in the robbery and observed the
    phone being taken from Mr. Miszkiel and the victim being assaulted. It is
    against that background that Mr. Abouchakra received the phone and left with
    the other two assailants.

[16]

The appeal in relation to the second incident is dismissed.

C.

third Incident

[17]

In terms of the third incident, Mr. Adams, a City of Ottawa employee
    observed the incident that took place approximately 100 feet away from where he
    was parked. Mr. Adams saw Mr. Lapierre approach an unknown man and attempt to
    rob him of his satchel. Two other men stood within 15 feet of the attack. Mr.
    Adams testified that he had also observed the earlier incident involving Mr.
    Miszkiel and that the same individuals were involved in both incidents.

[18]

The trial judge found that these two other men knew, or were wilfully
    blind to, Mr. Lapierres intention as he approached the victim. The two other
    men had just participated in the robbery of Mr. Miszkiel and in the assaults
    that took place in Confederation Park, and were ready to assist Mr. Lapierre,
    if required. The trial judge convicted all three of attempted robbery.

[19]

Counsel for Mr. Abouchakra submits that it was speculation on the trial
    judges part to find that he was there to assist Mr. Lapierre, if and when
    required.

[20]

Given that all three transactions took place during a 30 minute period,
    and that Mr. Abouchakra was close at hand during this attempted robbery, the
    trial judge was entitled to make the common sense inference she did. We also
    note that Mr. Adams also saw the three appellants afterwards sitting together,
    pointing back to the area and laughing.

[21]

The appeal in relation to this incident is dismissed.

D.

Sentence

[22]

With respect to sentence, in light of the very fair submissions by
    counsel for Mr. Abouchakra, we would not grant leave to appeal sentence.

E.

Disposition

[23]

In relation to Mr. Lapierre, the appeal as to conviction is dismissed. In
    relation to Mr. Abouchakra the appeal as to conviction and sentence is
    dismissed.

K.M.
    Weiler J.A.

Janet
    Simmons J.A.

Gloria Epstein J.A.


