Charges dropped against teen accused in Caledonia beating

Paul Legall
The Hamilton Spectator

(Sep 24, 2008)

The Crown has dropped the case against a Six Nations teenager who was charged last year after a violent confrontation that landed Caledonia house builder Sam Gualtieri in hospital with severe injuries.

Assistant Crown attorney Mitchell Hoffman withdrew charges of assault and break and entry against Byron Powless, 19, at the conclusion of Powless's preliminary hearing in Hamilton yesterday.

After hearing the evidence of a key prosecution witness, Hoffman said the case wasn't strong enough to prove beyond a reasonable doubt the teenager was involved in the incident.

"There no longer is a reasonable prospect of a conviction," he told Ontario Justice Norman Bennett, who endorsed dropping the charges.

Powless was charged with attacking Dominic Gualtieri during an altercation at his uncle Sam's partially-built house. He was one of three teens charged in connection with the September 2007 incident while police were trying remove Six Nations protesters from the Stirling Woods subdivision in Caledonia.

The turn of events has frustrated and angered the family of Sam Gualtieri, 53, who was allegedly attacked with a large club by another teenager. He suffered facial injuries, a fractured shoulder blade and two skull fractures. He is suing the OPP for failing to protect him against protesters occupying the site.

"It hurts us that justice wasn't served," Sam's younger brother, Joe Gualtieri, said yesterday.

Gualtieri family members were in court Monday and yesterday when construction worker Duane Davies testified for the Crown. He was in the house during the altercation and was considered a key witness in identifying Powless as the man who attacked Domenic Gualtieri.

"He's fighting individuals ... he couldn't say 100 per cent," Joe Gualtieri said, adding that identification is complicated by the fact that Powless has a twin brother.

He suggested there were three other witnesses inside the house who could have strengthened the Crown's case.

Outside the courtroom, Powless said he was elated by the decision. He still faces other charges, laid Monday, of mischief and disguise with intent in relation to a highway blockade in Caledonia in April. He is out of custody and was ordered to return to court in Cayuga.

Richard Smoke, 19, still faces charges of break and entry and aggravated assault in connection with the attack on Sam Gualtieri. Smoke is to return to Cayuga court Oct. 15.

A 16-year-old also faces charges in connection with the incident.