R. v. Castro, 2011 ONCJ 796

Citation: R. v. Castro , 2011 ONCJ 796 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — GARY CASTRO ) ) ) ) ) ) ) ) ) ) ) ) ) D. Polgar For the Crown D. North For the Defendant Heard: November 9 and 10, 2011 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] The police received a 911 call reporting an assault at 31 Lowden in Toronto in the early hours of May 8, 2010. On entering the house they found an assault victim, Dalton Bedford, in an upstairs bathroom and his assailant, the defendant Gary Castro, on the same floor.

They also located a marihuana “grow op” in the basement. As a result of the latter discovery, the defendant was charged with possession of marihuana and possession of the same drug for the purpose of trafficking. Bedford and a third person found in the house ( Enrico “Rico” Presutti) were also charged with the same offences. The trial before me involves only the defendant Castro. [ 2 ] The Crown called four police officers, two of whom were involved in the investigation. The third video-documented the grow op, and the fourth was a qualified expert in marihuana cultivation and the marihuana trafficking business.

Bedford, the victim of the assault, also testified for the prosecution. The Crown’s theory, in essence, is that the three persons found in the Lowden house were engaged in the production and distribution of marihuana from those premises, and that a financial dispute related to this venture led to the assault on Bedford on May 8, 2010. Bedford’s testimonial narrative traces the history and current operation of the trafficking enterprise on Lowden and the events culminating in his assault and the police intervention.

As in all criminal cases, the ultimate burden – that of establishing beyond reasonable doubt each essential element of the offences charged – rests with the Crown. [ 3 ] The defendant did not testify, nor were any other witnesses called on his behalf. The defence does not dispute the presence of a grow-op in the basement of 31 Lowden or the allegation that the defendant assaulted Bedford on the evening in question. Nor, if the defendant’s possession is proven, does the defence challenge the allegation that such possession was for the purpose of trafficking.

The defence position, in brief, is that the prosecution’s case depends on accepting Bedford’s testimony and that the witness’s credibility is so compromised and suspect that it would be unsafe to found a conviction on his account. B. EVIDENCE

(

a) Introduction [ 4 ] Given the narrow range of issues to be resolved at this trial, the evidence of the police witnesses can be relatively succinctly summarized. Bedford’s testimony requires a somewhat closer review. (

b) The Police Accounts [ 5 ] Responding to a 911 call, the police entered 31 Lowden at about 4am on May 8, 2010. Pressutti was immediately detained in the main floor living room. Three officers then went upstairs. One attended on Bedford, the obvious victim of a savage assault, who was in a bathroom. The other two, PCs Dhaliwal and Morris, approached the defendant who was standing at the end of a short hallway, just inside or just in front of one of the two bedrooms on that floor.

The defendant had a “distinct” odour of alcohol and was so drunk, stoned, or both, that Dhaliwal opined that he appeared to be out of his mind. The defendant’s knuckles were bloody, he was yelling, his eyes were dilated and he was belligerent and aggressive. He told the officers to “Get the fuck out of my house”, and he threatened to “take care of you guys too”. Eventually, and with some difficulty, he was restrained, cuffed, arrested for assault, read his rights to counsel and cautioned.

Dhaliwal later repeated these rights and cautions at the hospital as he was concerned that the defendant’s impairment had been so profound that he was incapable of initially comprehending them. Morris identified the defendant through a health card he removed from the defendant’s wallet when he conducted a search incident to the arrest. [ 6 ] Morris then checked the basement for the presence of other victims or suspects. None were found, but he stumbled upon a hydroponic marihuana grow-op behind a closed door. It contained 123 plants, each of which was approximately eight to twelve inches high.

According to the police expert, the plants were about two to ten weeks old and well cared for. The grow-op’s light and irrigation system was sufficiently automatic that no more than a couple of hours a week of maintenance were required at the plants’ intermediate growth stage.

Although hardly a matter for which expert opinion evidence is required, the police expert testified that violence is frequently linked to the drug trade. [ 7 ] A debt list and two digital scales were found on a table in the main floor living room, and a further digital scale was located in a bedroom close to where the defendant was first seen by the police.

No other evidence connected the defendant to this room or, other than Bedford’s testimony, to the Lowden house on any other occasion than May 8, 2010. [ 8 ] Dhaliwal recalled the defendant passing out (indeed, snoring) before the para-medics attended at 31 Lowden. (Morris testified the defendant never passed out in his presence.) The defendant continued yelling and resisting during his removal from the house and transport to a nearby hospital at about 5:30am. Bedford was taken to the same hospital where he was treated and then provided a statement to the police. (

c) Bedford’s Account [ 9 ] Dalton Bedford was 54 at the time of trial. He had rented a room from Mark Presutti (“Mark”) on the second floor at 31 Lowden for the 1½ to two years prior to his, Enrico “Rico” Presutti and the defendant’s arrest there in May 2010. He swore he had nothing to do with the basement grow op although he was a friend of his Mark’s and had been aware of marihuana cultivation for years. [ 10 ] Mark had been the owner or key lessee at 31 Lowden for many years. Bedford was raised in the same neighbourhood and had known Mark for 40 years, since they were both kids.

Bedford could not remember when he and his wife separated, but he was left “traumatized by the divorce”. Mark offered Bedford a room to rent and he moved into an upstairs bedroom on Lowden. Meantime, Mark and his common law wife, Jody Roet (“Jody”) occupied the main floor and took care of the marihuana operation in the basement until Mark passed away in early 2010 and Jody was hospitalized a few months later. Mark’s son, “Rico”, then returned after living for many years in Montreal, moved into the house and continued cultivating the plants.

Bedford did not himself care for the grow op and he did not know if anyone else did other than Rico. The defendant, he later agreed, had nothing to do with the grow op up to the time of Mark’s death and never watered it. Bedford assumed Jody had planted the most recent plot and that the plants were dying as no one was tending to them. [ 11 ] Bedford agreed that 31 Lowden was a drug den. Mark and Jody regularly used cocaine and oxycodone. Marihuana and cocaine were routinely sold from the premises. Bedford agreed he would sometimes answer the door for customers but denied participating in any of the sales.

A week before testifying at the defendant’s trial, Bedford pled guilty to possession of the marihuana in the Lowden basement for the purpose of trafficking. At the defendant’s trial he denied having anything to do with the grow op and insisted he had “only pled guilty to knowing about it”. He was not working while he lived on Lowden but withdrew money from his RSPs to cover his expenses. Bedford first denied using other than prescribed drugs, but later admitted that he occasionally used cocaine, and illicit oxycodone for back pain.

He insisted he never smoked marihuana. [ 12 ] Bedford had met the defendant years earlier. The backstory, as Bedford explained it, was that the defendant lived next door to 31 Lowden, had problems at home, and was taken in by Mark and Jody. Bedford knew him as “Mark’s godson”. Bedford and the defendant had an “OK” relationship prior to May 8, 2010. The defendant was not living at the Lowden address when Bedford moved in, but he would regularly visit to chat with Mark.

The defendant continued to drop by every couple of days after Mark’s death and Bedford was “pretty sure” he, like Rico, had the entry code for the house. Bedford claimed not to know what the defendant did during these visits other than talk with Rico. As Mark’s godson, the defendant “looked after the house” after Mark passed away. This task, according to Bedford, included ensuring the basement production of marihuana was sold to sustain the house.

And Rico and the defendant gave Bedford the money to pay the house bills that, for some unexplained reason, were all addressed to Bedford. [ 13 ] Mark and Jody kept the income generated by their grow op production in a locked safe in their house on Lowden. Rico maintained the safe and its contents after his father Mark’s death. A few weeks before May 8, 2010, Rico accusingly told Bedford some money was missing from the safe. Bedford responded by telling Rico not to blame him as he, Rico, was “the one with the key”. The defendant at some point told Bedford, “Whatever you took you should put back”.

On one occasion, both Rico and the defendant spoke to Bedford about the missing money. Bedford insisted that none of the money in the safe was his and that he had not taken anything from the safe. Bedford agreed it was “unclear” why he was being hassled by Rico and the defendant as he had not done anything wrong. As Bedford saw it, Rico was taking the money from the safe and blaming him for the shortfall.

[14] Bedford did not see the defendant or Rico on the day of the incident. He went to bed close to midnight and awoke to the soundof his locked door being kicked in. The defendant then severely pummeled Bedford. “You think we were kidding about the missingmoney” was the only thing Bedford recalled the defendant saying during the assault. Bedford called 911 from the bathroom when hefinally escaped from his room. [15] Once at the hospital, Bedford provided the police with a seven-page account of the events.

He either read his statement or hadit read back to him, and his signature graces the last page of the recording officer’s notes. Among other things, Bedford told the policethat he had taken a half-pound of marihuana from the house stash to trade for oxycodone but that he had lost the pot in the deal and owedthe others $1,500 as a result. Bedford testified that he had made up this story as he was afraid of the defendant who had been transferredto the same hospital. The story he told the police was, in fact, “a lie”, and, under oath, Bedford denied taking any marihuana out of thehouse.

However, when pressed in cross-examination he could not explain why he fabricated this account. He had also told the policethat all the plants and all the money in the house belonged to Rico; this assertion, he testified, “was true”. C. ANALYSIS [16] A substantial marihuana grow op was located in the basement at 31 Lowden. That its possession was for the prohibited purposeof trafficking is undisputed.

The core issue, then, is whether the Crown has proven beyond reasonable doubt that the defendant, GaryCastro, had knowledge and control of that marihuana and, thereby, its possession in law. [17] The essential Crown evidence in support of its thesis is that found in the testimony of Dalton Bedford. To be clear, none of theother evidence led by the Crown directly implicates the defendant as having knowledge or control of the drugs found in the basement ofthe house.

Further, the circumstantial force of the evidence led through the police witnesses is, viewed cumulatively and at highest, fartoo weak to carry the weight of the Crown’s heavy burden. At most, the police evidence amounts to the defendant being found on thesecond floor of a house in a very intoxicated condition while, two floors below, there is a thriving marihuana grow op. It also reasonableto infer from this evidence that the defendant had recently viciously assaulted Dalton Bedford, a second man in that house. None of thisdelivers the freight for the Crown.

Its primary incriminatory value, if any, rests with its potential to instill confidence in Bedford’saccount of the defendant’s involvement in the marihuana production and sale at 31 Lowden. Put frankly, absent adequate confirmatoryevidence Bedford’s evidence is simply too sketchy, inconsistent and self-serving to safely support the criminal convictions here sought. [18] An evaluation of Bedford’s credibility is key to the disposition of this case. Castro, the defendant, did not testify. Accordingly,the Supreme Court’s instructions for the assessment of conflicting testimony are not directly apposite: R. v.

W.(D.) (SCC), 63 C.C.C. (3d) 397. However, the third prong of W.(D.) remains a helpful reminder of the general principles – indeed, the“golden thread” – governing proof in criminal trials. As said by the Supreme Court in R. v.

J.H.S. (2008), 2008 SCC 30 , 231C.C.C. (3d) 302, at para 9, even where a defendant’s evidence is entirely rejected (or, as in the instant case, simply absent) the lesson ofW.(D.) is that “the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt”. [19] The concept of “credibility” encompasses broad range of factors bearing on an assessment of the testimonial trustworthiness ofwitnesses. It has two distinct facets: honesty (sometimes, if confusingly, itself called “credibility”) and reliability.

The first, honesty,speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex mix of cognitive,psychological, developmental, cultural, temporal and environmental factors that affect the accuracy of a witness’ perception, memoryand, ultimately, testimonial narration. The evidence of even an honest witness may still be of dubious reliability. [20] This understanding of credibility is long settled. Doherty J.A. expressed the same concepts as follows for the Court of Appealin R. v.

Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, at 205: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. Theaccuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness's veracity, one speaks of the witness's credibility.

When one is concerned with theaccuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is notcredible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable. [21] Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than otherportions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. [22] There is, I find, very little of Bedford’s testimony that I can unquestionably accept. He was admittedly vague or unreliable as tosome dates and sequencing. He acknowledged suffering from trauma that affected his memory. He had reason to bear animus towardsthe defendant, if only for the severe beating he suffered at the latter’s hand. [23] Bedford’s account of who, if anyone, was caring for the grow op after Mark’s death is patently contradictory.

His efforts todistance himself from the marihuana production and drug distribution at 31 Lowden sounds strained and hollow. Further, his testimonialdenials of any participation in these endeavours directly contradict the plea of guilty he entered to possession of those very drugs for thepurpose of trafficking merely a week or so earlier. One way or another, Bedford patently lied to or misled a court. His efforts to painthimself as the innocent victim of a false allegations respecting missing money ring equally untrue to my ear.

It makes no sense for Ricoor the defendant to accuse Bedford of taking money from the safe unless he, Bedford, had access to it – which, if he was a contributor tothe trafficking enterprise (as reflected in his earlier plea) may well have been the case but which, of course, he persistently denied underoath.

My confidence in Bedford’s reliability or, for that matter, his honesty is not enhanced by his initial denials of any drugconsumption and his subsequent acknowledgement that he consumed cocaine and, if only for therapeutic reasons, oxycodone for whichhe held no prescription. [24] The flagrant inconsistencies, as detailed earlier, between Bedford’s account to the police on the night of the defendant’s arrest

and his testimony at trial are equally troubling. His explanation for incriminating the defendant through one set of allegations rather than another are unconvincing; more telling, I find, is his ultimate admission that he did not know why he lied to the police. I am equally at a loss when it comes to confidently distinguishing between the times Bedford spoke the truth and those occasions when his evidence lacked veracity. [ 25 ] The Crown, through Bedford, posits a world in which the defendant is the master of the drug-dealing enterprise at 31 Lowden.

This broad-brush theory is simply not supported by evidence of any specific incidents involving the defendant in the harvesting, packaging or distribution of the marihuana at those premises. Nor, as was the case when Mark was still alive, did Bedford testify to drug customer traffic at the house. Nor, according to his own evidence, was Bedford privy to any of the conversations he said occurred between Rico and the defendant. Further, according to Bedford only Rico had access to the locked safe.

And further still, all the plants and money in the house belonged only to Rico. [ 26 ] The evidence led by the police adds suspicion to Bedford’s account; it does not confirm his implication of the defendant in the trafficking at the Lawson address. As noted earlier, nothing other than Bedford’s testimony ties the defendant to anything more than an ephemeral connection to the Lowden house, let alone the marihuana production there.

The defendant’s directions to the police to get out of his house are, I find, of virtually no probative value given at least one officer’s assessment that he was effectively out of his mind at the time he said these words. While a lower standard of proof might admit to a different result, in the end I am left with too many doubts to render findings of guilt on that threshold applicable to criminal proceedings. D. CONCLUSION [ 27 ] Accordingly, I find the defendant not guilty of the two charges on which he was arraigned. Released on December 21, 2011 __________________________ Justice Melvyn Green