



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pomanti, 2017 ONCA 48

DATE: 20170119

DOCKET: C59562

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicolas Pomanti

Appellant

Daniel Stein and Janani Shanmuganathan, for the
    appellant

Michael Fawcett, for the respondent

Heard: November 22, 2016

On appeal from the conviction entered on April 11, 2014
    and the sentence imposed on July 2, 2014 by Justice Robert A. Clark of the Superior
    Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant was convicted of aggravated assault and sentenced to 22
    months imprisonment. The incident arose out of a home invasion robbery where
    Durkalec, a long-time acquaintance of the appellant, broke into the appellants
    home. The appellant, one of his housemates, and another friend prevented
    Durkalecs escape, and the appellant struck him with a shovel, causing
    significant injuries. The only issue at trial was whether the appellant acted
    in self-defence. The appellant appeals his conviction and seeks leave to appeal
    sentence.

[2]

Durkalec testified that he arrived at the back door of the appellants
    home wearing a wig, a balaclava, a fake moustache, two pairs of gloves, and
    what he thought was a bullet-proof vest. He was armed with a crowbar and a
    canister of bear spray, and was carrying a cellphone signal jammer. According
    to Durkalec, he was there to recover a stolen watch, although he told a first
    responder that his attendance was about a drug debt. He testified that he only
    intended to intimidate, but that when the appellant said Im going to kill
    you, he broke the back door window, discharged the bear spray, and then ran. He
    was intercepted by the appellant and his friends. The last thing Durkalec
    remembered before waking up in the hospital from a medically induced coma was
    the appellant striking him with a shovel.

[3]

The appellant testified that after he saw an intruder smashing the glass
    on the back door, he and his friends ran out through the front door and down
    the driveway toward the backyard. He tried to go back into the house but was
    overcome by bear spray and forced to run out again through the front door. He
    and his friends saw the person they later identified as Durkalec in the
    backyard putting a safe that belonged to the appellants friend into a bag.
    Durkalec threw the bag over the fence and started to climb over. The friend pulled
    the intruder off the fence and then hopped over to retrieve his safe. Durkalec then
    came at the appellant with the crowbar, cornering him by the garage. During the
    attack, the appellant reached out and grabbed a shovel, striking Durkalec twice
    in the head until he fell down. When he jumped up, one of the appellants
    friends said something about a gun, so the appellant hit Durkalec again. It was
    when Durkalec was on the ground that the appellant and his friends discovered
    the intruder was Durkalec. They held him down until the police arrived. At
    trial, the appellant claimed that all of his actions in striking Durkalec were
    in self-defence.

[4]

There were four other witnesses at trial: two neighbours who saw and
    heard parts of the incident, the police officer who first arrived at the scene,
    and the appellants stepfather (who claimed to have found something that looked
    like a safe in the backyard a few days later). Both neighbours called 911 and,
    at some point during the events, a 911 call was made from the cell phone of one
    of the appellants friends, consistent with a pocket dial.

[5]

The trial judge concluded that the appellants claim of self-defence had
    no air of reality. He found that the appellant was not a credible witness and
    rejected several aspects of his evidence as implausible and inconsistent with
    other evidence, including that of the neighbour Ms. Collins. He accepted that,
    while the appellant and his friends might initially have feared for their
    safety due to the home invasion, by the time Durkalec was struck with a shovel
    he had been corralled by the appellant and his friends in the backyard and
    prevented from escaping. The appellant had Durkalec under control and, rather
    than acting in self-defence, the appellant had administered a gratuitous
    beating.

[6]

The appellant raises four issues on his conviction appeal. All pertain
    to the trial judges findings that led to his rejection of the defence of
    self-defence.

[7]

First, the appellant challenges the trial judges treatment of evidence
    respecting the effects of bear spray.

[8]

The appellant testified that, after running out the front door of the
    house, he attempted to return and was overcome by bear spray. The trial judge
    rejected the contention that bear spray had been discharged in the front hall,
    and said that if bear spray was discharged in the kitchen (as Durkalec had
    testified), it would not have carried into the hallway sufficiently to cause
    the appellant the discomfort he described. The appellant submits that there was
    no evidence about how bear spray works or the layout of the house from which
    the trial judge could have made this finding. Instead, the trial judge took
    judicial notice of matters not in evidence, as a result of which his
    credibility assessment of the appellant was irreparably tainted, leading him to
    ignore a crucial part of the self-defence narrative.

[9]

Although we would not characterize the trial judges bear spray
    discussion as improperly taking judicial notice, we agree with the appellant
    that there was no evidence to support the trial judges finding that, if bear
    spray had been discharged in the kitchen, it would not have spread to the front
    of the house and affected the appellant to the point that he was overcome and forced
    to run out of the house.

[10]

That said, we are not persuaded that any error in the trial judges
    treatment of the bear spray evidence had a material impact on his rejection of
    the appellants claim that he was acting in self-defence. The trial judge
    accepted that Durkalec discharged the bear spray in the house, and that he
    pleaded guilty to break and enter and to administering a noxious substance with
    intent to endanger life. The appellants subsequent actions in arming himself
    with a shovel and striking Durkalec did not suggest he was incapacitated in any
    way, nor did he contend that the bear spray contributed to his actions in
    striking Durkalec after he was attacked with a crowbar. The appellants
    evidence about the bear spray was simply one aspect of his account that the
    trial judge rejected. It was not essential to his rejection of the appellants
    evidence, and not material to his conviction.

[11]

Second, the appellant says that the trial judge misapprehended the
    evidence when he rejected the appellants claim that he grabbed the shovel in
    response to an attack by Durkalec in the backyard.

[12]

According to the trial judge, the appellant said he grabbed the shovel which
    had been just lying on the grass, conveniently within arms reach of where he
    had happened to fall. The appellant says this is a misstatement of his
    evidence, and that he testified that he backed up into the garage, moved to the
    side, and picked up a shovel from the garden. In our view, this is a
    distinction without a difference. The appellants evidence in direct and
    cross-examination was that he was retreating from an attack by Durkalec who was
    armed with a crowbar, and that it was then that he fell back against the garage
    and picked up a shovel. Whether the appellant could reach the shovel from where
    he fell or whether he moved to the side and grabbed the shovel, it was open to
    the trial judge to describe this as an unlikely coincidence.

[13]

The trial judge also said that the appellants account of picking up the
    shovel while he was under attack was contrary to Ms. Collinss evidence that
    she saw the appellant already armed with the shovel near the street end of the
    driveway before he ever went up the driveway and into the backyard. Again, the
    appellant says that the trial judge misapprehended the evidence on this point.
    Ms. Collinss evidence was that she saw two people walk up to the end of the
    driveway from the back of the house, one of whom was carrying a shovel.

[14]

Even if the trial judge misstated Ms. Collinss evidence that the
    appellant was armed before he ever went into the backyard, the effect of her
    evidence was that the appellant was already armed with the shovel when she saw
    him go into the backyard. By either account, this was inconsistent with the
    appellants contention that he grabbed the shovel once he was in the backyard,
    and only after being attacked by Durkalec.

[15]

Third, the appellant says that the trial judge erred in rejecting the
    appellants evidence that he only struck Durkalec three times, and that this was
    based in part on improper inferences drawn from Durkalecs medical records.

[16]

The appellant testified that, in response to the attack with the
    crowbar, he grabbed the shovel and struck Durkalec three times in the front of
    the head. Ms. Collins testified that she saw the appellant strike
    something on the ground multiple times with a shovel, and that there were more
    than five blows. The trial judge concluded that she must have seen at least
    five blows because the medical recordsprovide clear evidenceof more than
    three blows.

[17]

The appellant characterizes this as the trial judge taking improper
    judicial notice of how the injuries Durkalec sustained were caused, and the
    force that was needed, in the absence of expert evidence.

[18]

We disagree. Again, we do not see this as a question of taking judicial
    notice, but whether the trial judge was entitled to draw an inference as to the
    number of blows Durkalec sustained from his review of the medical records.

[19]

The appellant acknowledges that the medical records were filed on
    consent, although defence counsel at trial argued that the trial judge ought
    not to use the records to interpret the amount of force the appellant used. In
    our view, the trial judge did not misuse the medical records. He was entitled
    to consider the injuries Durkalec sustained as documented in the medical
    records in his assessment of the appellants evidence that he had only
    administered three blows, all to Durkalecs head.

[20]

In considering the medical records, the trial judge referred to Durkalecs
    fractured ulna as strongly suggestive of a defensive blow. He referred to
    injuries to Durkalecs scalp, extensive fracturing of his facial bones, and the
    fracture of his occipital bone at the rear of his head. With the exception of
    the trial judges inference that the fracture of the occipital bone was
    suggestive of a blow from behind (which was speculative), the trial judge was
    entitled to conclude that the multiple injuries and their placement indicated
    more than three blows were administered.

[21]

In any event, there was other evidence of the extent of Durkalecs
    injuries. Durkalec testified that he sustained countless facial and skull
    fractures, a broken vertebrae, and a broken right forearm. The police officer
    testified about the extensive injuries he observed to Durkalecs head and face.

[22]

The evidence of Durkalecs extensive injuries, as well as Ms. Collinss
    testimony about what she observed, were sufficient for the trial judge to
    conclude that the appellant struck Durkalec at least five times. Accordingly,
    there was no error in the trial judge rejecting the appellants evidence that
    he struck Durkalec only three times.

[23]

Finally, in oral argument, counsel for the appellant emphasized that
    each of the above errors reflect an overarching error by the trial judge in
    misapplying the doctrine of self-defence. The appellant says that the trial
    judge failed to appreciate the full self-defence narrative and factual tableau.
    He relies on this courts decision in
R. v. Cunha
, 2016 ONCA 491, 337
    C.C.C. (3d) 7, at paras. 7, 24, 25, where Lauwers J.A. stated that it is an
    error in principle for a trial judge to [lose] sight of the whole factual
    context and the tableau of the evidence, and that the court must be alive to
    the fact that people in stressful and dangerous situations do not have time for
    subtle reflection. The appellant says that the trial judge here downplayed the
    danger that Durkalec presented, and that he did not consider the claim of
    self-defence in the context of all of the facts. Such facts include the
    appellant being attacked in the middle of the day in his home by a man wearing
    a tactical vest, and the appellants reasonable belief that Durkalec had a
    firearm. Rather, the trial judge broke down the appellants evidence into its
    constituent parts and compared each piece to the evidence that he did accept.

[24]

We disagree. The trial judge did not lose sight of the
    overall circumstances. He accepted that this was a home invasion and that
    Durkalec was disguised, armed with a crowbar, discharged a canister of bear
    spray and that, at least initially, the appellant and his friends may have been
    afraid and armed themselves against an attack. There was no question that they
    were responding to a home invasion; the issue was whether, at the time the appellant
    struck Durkalec, he was acting in self-defence. This was not a case like
Cunha
where the trial judge rejected the appellants account of self-defence except
    where corroborated and found facts that did not hold up against the flow of the
    narrative that he did accept (at para. 31). Here, the trial judge examined the
    details of the appellants evidence in the context of the events as they
    unfolded, to determine whether he accepted his account of self-defence, or
    whether it raised a reasonable doubt.

[25]

As for the appellants evidence that his friend said something about a
    gun and he saw Durkalec reaching for his waistband before he administered the
    third blow, although the trial judge did not mention it in his reasons, he was
    entitled to reject this evidence as part of his credibility assessment. According
    to the appellant Durkalec was holding a crowbar throughout his attack. No gun
    was found at the scene by the police who arrived while Durkalec was lying on
    the ground, and there was no mention of a gun in the pocket 911 call (where
    Durkalec is heard pleading for help and the appellant and his friends are
    threatening him).

[26]

The trial judge concluded on a review of all the evidence he did accept that
    the appellant was not acting in self-defence. This included: Durkalecs
    evidence of what transpired only to the extent it was corroborated by other
    evidence; the fact that the police found nothing resembling a safe in the
    appellants yard; the evidence of the severity of the beating Durkalec received;
    the observations of Ms. Collins that the appellant and his friends were trying
    to corral something and that he was armed with a shovel and striking something
    repeatedly on the ground; her evidence and that of the other neighbour that the
    appellant said, youre not going anywhere; and the location of the crowbar by
    the back door, and not where Durkalec was found.

[27]

We therefore reject this ground of appeal.

[28]

The conviction appeal is therefore dismissed.

[29]

As for the sentence appeal, the appellant says that the trial judge
    committed three errors in sentencing him to 22 months in jail.

[30]

First, the appellant says that the trial judge improperly took into
    account the appellants reliance on legal authority as an aggravating factor,
    namely that he administered a savage beating while purporting to exercise the
    limited authority the law confers upon a private citizen to apprehend law
    breakers. The appellant says that this circumstance was mitigating, and not an
    aggravating factor. He says that the judge was punishing him for unsuccessfully
    invoking the defence of self-defence.

[31]

We disagree. The trial judge identified the fact that Durkalec was
    engaged in a home invasion as the most significant mitigating factor. What was
    aggravating was not that the appellant relied unsuccessfully on the defence of
    self-defence, but that he took the law into his own hands and punished Durkalec
    for the home invasion. The trial judge said that this was not a case of a
    person going farther than the law allows in self-defence; he was not in a position
    of having to defend himself. Rather, he reacted in anger and in order to exact
    vengeance upon Durkalec. As such, there was no error on the part of the trial
    judge in treating the appellants response to the situation and attempt to
    exact vigilante justice as an aggravating factor. See
R. v. Louangrath
,
    2016 ONCA 550, 340 C.C.C. (3d) 170, at para. 101.

[32]

As his second ground of appeal of sentence, the appellant contends that
    the trial judge erred in characterizing the event as a three-on-one affair
    when there was no evidence that anyone other than the appellant assaulted Durkalec.
    We disagree. It was clear on the evidence that, even if the three individuals
    were not actively involved in the assault, all three were at the scene,
    corralling or cornering Durkalec, and holding him down while the assault was
    administered. In the circumstances, the trial judges characterization of this
    as a three-on-one affair was appropriate.

[33]

Finally, the appellant says that the trial judge erred in failing to
    consider the period of 25 months he spent on strict bail terms as a mitigating
    factor on sentencing. The appellant relies on
R. v. Ijam
, 2007 ONCA
    597, 87 O.R. (3d) 81, at para. 37, as authority that, while pre-trial bail and
    pre-trial custody are very different concepts, there will be cases, such as
R.
    v. Downes
(2006), 79 O.R. (3d) 321 (C.A.), where a sentencing judge should
    give mitigation effect to pre-trial bail, and where it is an error for the
    sentencing judge to fail to explain why he or she has decided not to take
    pre-sentence house arrest into account.

[34]

In this case, the appellant was on a form of house arrest that required
    him to be in his place of residence 24 hours a day except in the presence of
    his surety or with her written, dated permission. The appellants surety was
    his mother and the evidence from the pre-sentence report was that the two had a
    very close relationship. There was nothing to indicate that the terms of
    release prejudiced or imposed undue hardship on the appellant:
Downes
,
    at para. 37. This may explain why defence counsel made no submissions that the
    period of pre-trial house arrest ought to be taken into consideration in mitigation
    of sentence. In these circumstances, the trial judge did not err in principle
    in failing to address the terms of the appellants pre-sentence release as a
    potential mitigating factor.

[35]

We therefore see no error in principle that would warrant interference
    with the 22 month sentence, which, as acknowledged by the appellant, is within
    the appropriate range for an aggravated assault of this type by a first
    offender: see
R. v. Tourville
, 2011 ONSC 1677.

[36]

Leave to appeal sentence is granted, however the sentence appeal is
    dismissed.

Released: R.J.S. January 19,
    2017

Robert J. Sharpe J.A.

K. van Rensburg J.A.

G. Pardu J.A.


