R. v. Castro, 2014 ONCJ 338

ONTARIO COURT OF JUSTICE COURT FILE No.: Brampton 3111 998 13 146 DATE: 2014·07·10 Citation: R. v. Castro , 2014 ONCJ 338 BETWEEN: HER MAJESTY THE QUEEN — AND — MR. TORBEN CASTRO Before Justice Patrice F. Band Heard on February 28 and June 25, 2014 Reasons for Judgment released on July 10, 2014 Ms. C. Sibian ........................................................................................... counsel for the Crown Mr. H. Ali ............................................................. counsel for the defendant Mr. Torben Castro BAND J.: 1: INTRODUCTION [ 1 ] Mr.

Torben Castro stands charged with three counts of assault and one count of assault with a weapon in relation to a series of incidents said to have taken place on January 6, 2013. The complainant in each instance is his former girlfriend, Ms. Crystal Lamore, who was pregnant with the couple’s child at the time. [ 2 ] It is further alleged that on November 24, 2012, Mr. Castro uttered a threat to kill Ms. Lamore by declaring that intention to Ms. Lamore’s daughter Serenity. [ 3 ] The trial of this matter took place before me over the course of two days: February 28 and June 25, 2014.

During that time, I heard from three witnesses. The Crown called Ms. Lamore as its only witness. The Crown also tendered a number of photographs of Ms. Lamore, which were taken at the police station within two days of the alleged assaults. Aside from the photographs, which I discuss below, the Crown’s case depends entirely on Ms. Lamore’s word. [ 4 ] For his part, Mr. Castro’s testified on his own behalf and called upon his brother, Mr. Mislen Castro as well. [ 5 ] Prior to hearing argument, I had the benefit of being able to refer to a transcript of Ms. Lamore’s evidence. 2: RECITATION OF THE EVIDENCE OF MS.

LAMORE Assaults [ 6 ] Prior to January 2013, Ms. Lamore and Mr. Castro had been a couple for approximately 2 years, and had been living

together, along with Ms. Lamore’s daughter Serenity, for approximately 6 months. [ 7 ] Leading up to the date of the assault allegations, their relationship was fine, and seemed normal, according to Ms. Lamore. She was 14 weeks pregnant at the time, with a baby that Mr. Castro did not want. Serenity was 6 years old. [ 8 ] The couple went to bed at approximately 1:15 a.m. on January 6, after a normal day and evening during which, according to Ms. Lamore, there was nothing unusual. All was fine. [ 9 ] However, as she was dozing off, she felt Mr. Castro’s hands around her throat.

The pressure was not strong and was insufficient to cut off her oxygen. When she opened her eyes, she saw the whites of Mr. Castro’s eyes. He was sitting up and looking at her. After two seconds, he released his grip, just stared her in the face and said nothing. Then, he did the same thing again, only this time with more pressure. [ 10 ] She asked him why he was choking her and he said “I didn’t choke you; go back to sleep.” He then turned over as if to go to sleep. [ 11 ] Feeling uncomfortable, Ms. Lamore took her pillow and went to sleep on the couch in the living room. [ 12 ] She wondered if Mr.

Castro had been sleepwalking. Something was not right. [ 13 ] A couple of minutes later, Mr. Castro went to the bathroom and then came to stand by Ms. Lamore’s head near the couch. He told her to come back to the bedroom. She explained that she did not feel comfortable given what he had just done to her. [ 14 ] He said he had not done anything, and to come back to bed. He appeared irritated as if asking “what are you doing out here?” [ 15 ] Then, within seconds, Mr. Castro grabbed Ms. Lamore and very quickly she found herself on the floor with Mr. Castro’s arm around her neck, choking her from behind.

This time, the pressure was very strong. She struggled and thrashed, and cried out “stop, the baby the baby, why are you doing this?” [ 16 ] Mr. Castro then pushed Ms. Lamore’s face into the sofa cushion and held it there using her pillow against the back of her head. She was horrified, and had never felt so close to death. [ 17 ] Then, just as suddenly, Mr. Castro released her and she crawled away. Again, she asked him why he had done this and he said “I’m not doing nothing.” [ 18 ] Ms. Lamore then said she was going to get her daughter (Serenity) and that the two were going to leave. Mr.

Castro said “No you’re not.” [ 19 ] Ms. Lamore then went to wake up Serenity. Mr. Castro did not follow her into the girl’s room. He went down the hall, closer to the apartment door. Ms. Lamore begged him to let her leave with Serenity. “No, you’re not leaving,” was his reply. [ 20 ] Without her cell phone, Ms. Lamore decided to try to close the door and place the dresser against it for safety. To do so, she removed the drawers as the dresser was too heavy. During this time, Mr. Castro was asking her what she was doing.

She was very fearful for her safety and that of her daughter, and hoped that somehow she would figure out how to call for help using Serenity’s laptop. [ 21 ] Then, Ms. Lamore felt the urge to go to the washroom. She asked Mr. Castro, who was just outside the door, to go to the couple’s bedroom and allow her access to the washroom. At this point, Serenity also said she had to go. Ms. Lamore heard what sounded like the couple’s bedroom door closing. She opened Serenity’s door and Serenity went to the washroom as Ms. Lamore held the couple’s bedroom door closed in case Mr. Castro tried to come out. [ 22 ] Ms.

Lamore then saw that Mr. Castro was down the hall near the living room. He had not gone to the bedroom as she had thought. He was wearing socks pulled up to his knees, which she found weird and eerie. Serenity came out of the washroom and Mr. Castro walked towards them. Ms. Lamore asked him to go to the couple’s bedroom, which he did. Ms. Lamore then went to the bathroom, leaving Serenity standing by the couple’s bedroom door. When Ms. Lamore came out of the washroom, she saw Serenity sitting on the bed with Mr. Castro. Serenity said “it’s ok, he’s ok, it’s ok.” [ 23 ] So, Ms.

Lamore said to Serenity that they should go to bed because they had church the following morning. [ 24 ] Mr. Castro got up and told Ms. Lamore to “come to the bedroom.” She said “no” and held on to Serenity’s bedroom door. Mr. Castro said “yes you are” and then pulled her. Suddenly, the two of them were on the floor in Serenity’s room. Mr. Castro began to choke her again “with all his strength” from behind, like in the living room. She struggled again, with her chin to her chest. Serenity was screaming “mommy mommy” and Ms. Lamore told her to go to the door and get out. Ms. Lamore got to her knees and Mr.

Castro tried to punch her in the stomach twice with his right fist. By crouching and using her arms, she was able to fend off the blows. [ 25 ] Then, suddenly, Mr. Castro released her. [ 26 ] Ms. Lamore then ran out of the apartment and tried to get the attention of her neighbours but no one came out. Serenity followed. [ 27 ] Then, Mr. Castro came into the hallway, socks still hiked to his knees, and said “what’s wrong, it’s ok, what are you doing?” He then said “don’t worry, I’m gonna leave, it’s ok” and walked by her. [ 28 ] She ran back into her apartment with Serenity and called 911. [ 29 ] Ms.

Lamore described her injuries as “marks on her neck” and light bruising on her leg.

[ 30 ] The photos depict Ms. Lamore’s face and neck. There are no photos of her leg. [ 31 ] In cross-examination, Ms. Lamore made the following admissions: - The January incident was totally unexplained, totally out of character and without explanation. There had been no fight, no argument, no drugs or alcohol; - The relationship had been fine until that point. Mr.

Castro had never laid a hand on her; - She was being choked and could not breathe for a number of seconds during the sofa incident; - She shouted at her daughter to leave, but she would not; - She ran past her daughter and out the door without trying to grab her hand or pick her up; - While she had been crying and emotional for much of her evidence-in-chief, she remained composed during her interview with police, taken within a couple of hours of the incident (with the exception of one minor breakdown during a time when she was left alone in the interview room); - She did not see a doctor for several days because paramedics had made her feel comfortable that she and the baby were ok; - Mr.

Castro had a history of flirting with one or more women, which Ms. Lamore found disrespectful and which made her “a tad jealous”; - There were times when she thought he was trying to make her jealous about other women; - When issues between the couple arose, Mr. Castro would tend to leave the argument and often went to be with his family; - She knew that if the relationship were to end, Mr. Castro would seek to take the baby from her; - At the time of trial, custody and access proceedings were in fact underway; and - Ms.

Lamore knew that a finding of guilt in this matter would help her argument in family court. [ 32 ] Ms. Lamore acknowledged that, several weeks prior to the January incidents, Mr. Castro went to be with his brother for a time. She then explained that she had found Mr. Castro behaving strangely: talking to things in the air, talking but not making eye contact and crawling around on his knees at 2 a.m. She contacted Mr. Castro’s brother about it. Mislen Castro came to the apartment, and Mr.

Castro left with him. [ 33 ] She further explained that Mislen Castro told her that doctors had been involved and that they had found “poison” in Mr. Castro’s system. Mislen, too, had seen the behaviour. He told her that Mr. Castro needed church. At one point, he got the bible out and a big prayer followed. He also made Mr. Castro drink salt water. [ 34 ] Ms. Lamore also testified that Mr. Castro’s sister told her that this was not the first time that such a thing had happened. She had offered to take her brother to a psychiatrist, but he declined. [ 35 ] Ms.

Lamore denied that there had been any sort of argument on the night of January 5-6, 2013. She also denied that Mr. Castro had ended the relationship on that day. Threat [ 36 ] In November of 2012, Ms. Lamore and Mr. Castro had an argument. It was a “normal” argument. She went into the bathroom with Serenity. Mr. Castro followed them in. Ms. Lamore told him to let Serenity out. He said “no.” Then he said “I’m gonna kill your mother.” 3: EVIDENCE OF MR. TORBEN CASTRO [ 37 ] Mr.

Castro testified that he has no criminal record, has been consistently employed and has recently completed studies in accounting and payroll administration. [ 38 ] He described Ms. Lamore as someone who was jealous and controlling. She wanted him at home because she always thought he was flirting with other women. She had problems with him going to visit his mother, who was sick with cancer, because she believed that he was having a relationship with a woman in her mother’s building. Her jealousy increased when she became pregnant. [ 39 ] On the date when Ms. Lamore had called Mislen, Mislen told Mr.

Castro that Ms. Lamore had advised him that he had been doing “nutty things”, such as making noises and crawling on all fours. [ 40 ] According to Mr. Castro, the dispute that day was about jealousy and his comings and goings. It was not about strange behaviour. [ 41 ] Mislen attended, and the two brothers left. Mr. Castro went to a doctor, and was not diagnosed with any mental illness or

referred to a psychiatrist. A letter from a general physician was also filed in support of Mr. Castro’s evidence. [42] About one week later, Mr. Castro agreed to return to live with Ms. Lamore after she agreed to change her ways. [43] When it became clear that she was not changing, Mr. Castro decided to end the relationship. This was on January 5, after hehad gone to help his sister move. This was something that Ms. Lamore was not happy about. When he returned home that evening, Ms.Lamore was very upset. After doing some groceries, cooking, cleaning up and putting Serenity to bed, Ms.

Lamore began asking Mr.Castro what he had been up to that day and confronting him about cheating on her. He tried to go to the bedroom to put pants on, andtold her “I don’t want to be with you anymore. This is over. I’m going to walk out of here.” But she followed him and was trying to talkto him. She prevented him from putting on his pants. He went downstairs and returned later to find the door locked. He waited, and thatis when police came to arrest him. [44] Mr. Castro denied committing any of the offences alleged. He denied that he had any mental health problems or disorders. He also denied that Ms.

Lamore had ever told him he had done strange things that he did not recall doing. [45] In cross-examination, the Crown spent some time establishing that Mr. Castro’s understanding of Ms. Lamore’s problem withhis visits to his ailing mother was not limited to the fact that he was visiting his mother. Rather, it was also motivated by her concernthat he was being unfaithful by spending time with his mother’s neighbour. In other words, the thrust of the cross-examination was that Mr. Castro had tried to cast Ms. Lamore in very bad light bysuggesting that she simply could not abide his visits to his sick mother.

I say more about this below. 4: EVIDENCE OF MR. MISLEN CASTRO [46] Mislen Castro testified that he had never seen his brother behave strangely or crawl around on the floor. When Ms. Lamorecalled him several weeks prior to the incidents of January 5, she told him that Mr. Castro had been crawling on the floor and insisted thathe come get him. [47] Mr. Castro’s bail requires that he live with his brother. As his surety, Mislen Castro regularly saw Mr. Castro since hisarrest. Mislen Castro denied that Mr.

Castro suffered from any mental illness or strange behaviour. [48] In cross-examination, he denied speaking to his brother about Ms. Lamore’s testimony of February 28. 5: THE APPLICABLE LEGAL PRINCIPLES [49] I begin by observing the central principle of our criminal law that Mr. Castro benefits from the presumption of innocencethroughout the proceedings. The corollary to this principle is that the Crown bears the burden of proving Mr. Castro’s guilt beyond areasonable doubt. That burden never shifts to Mr. Castro. [50] If the Crown is unable to do prove Mr.

Castro’s guilt beyond a reasonable doubt, he must be found not guilty. [51] This particular case is in its essence a “he said-she said.” As both counsel correctly pointed out, it calls for the analysis setforth by the Supreme Court of Canada in R. v. W.D. (1991), (SCC), 63 CCC (3d) 397 (S.C.C.).: a. First, if I believe Mr. Castro’s evidence that he is innocent, obviously I must acquit. b. Second, if I do not believe Mr. Castro’s testimony but am left in reasonable doubt by it, I must acquit. c. Third, even if I am not left in doubt by Mr.

Castro’s evidence, I must ask whether, on the basis of the evidence which I do accept,I am convinced beyond a reasonable doubt by that evidence of Mr. Castro’s guilt. [52] As the Supreme Court of Canada has stated in R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, at paragraph 23, ina case such as this, which turns solely on credibility, …the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of theevidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judge must consider whether the evidence as awhole establishes the accused’s guilt beyond a reasonable doubt. [53] These principles also apply to the analysis of the testimony of witnesses for the defence. [54] I find that in this case, the Court of Appeal’s instructions in R. v. J.J.R.D. (ON CA), (2006), 215 C.C.C.(3d) 252 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 69, are particularly apposite.

On behalf of the Court,Justice Doherty emphasized that in a “he said – she said” case, the trial judge must understand how the principle of reasonable doubt is tobe applied to the credibility assessment.

[ 55 ] There is a distinction between a finding of credibility and proof beyond a reasonable doubt. [ 56 ] In other words, a reasonable doubt can survive a finding that the complainant is credible: J.J.R.D. , at paragraph 47 . See also R. v. J.W. 2014 ONCA 322 CanLII. Credibility of Ms. Lamore [ 57 ] I must say that I found Ms. Lamore to be a compelling and believable witness. She was overwrought with emotion when she was recounting events that would have been traumatic in the extreme.

Her emotions seemed to me to be genuine and her demeanour consistent with those emotions. [ 58 ] While she stood up relatively well to a rather probing and thorough cross-examination, a number of concerns are said to arise. Among them are the fact that she is currently in litigation surrounding the child of her union with Mr. Castro and understands the advantage she would gain from a successful prosecution. Prior to the child’s birth, she also knew that Mr. Castro would seek to take custody of the child should the relationship come to an end. Both of these facts provide Ms.

Lamore with potential motives to lie. [ 59 ] By all accounts, Ms. Lamore appeared to harbour some jealousy and desire to exert control over Mr. Castro. This, too, could give rise to concerns as to animus and bias on her part. [ 60 ] Defence counsel also spent a good deal of time arguing that Ms. Lamore’s evidence was “internally inconsistent.” By this, I took him to mean that her account of her actions was inconsistent with what one would think she would have done at the material times.

I will not repeat the list of examples when a few will suffice: she did not take her daughter and leave the apartment at the first opportunity when she realized the violence was escalating; during the escalation of violence, she decided to let her daughter go to the washroom and then went to the washroom herself, leaving her daughter alone with Mr. Castro; when she finally made a run for the door, she ran past her daughter without trying to grab her by the hand or pick her up even though she knew that her daughter was not following her. [ 61 ] I acknowledge that Ms.

Lamore’s decisions do strike me as surprising for someone who was in fear for her life and that of her daughter. As such, they could undermine her account. However, Ms. Lamore was by her own admission in a state of shock and panic. In such a state, people do not always behave logically or even consistently with their own normal way of thinking. [ 62 ] Defence counsel also stressed the fact that these very serious allegations are said to have occurred for the first time, spontaneously, after a normal day, and were totally out of character. Ms.

Lamore’s suggestion that a mental disorder was at play is, according to Mr. Ali, another way of saying that “anything is possible.” [ 63 ] While I share some of defence counsel’s concerns about Ms. Lamore’s evidence, those concerns – alone or cumulatively – would not lead me to reject it in its entirety. [ 64 ] After all, if believed, Ms. Lamore’s evidence paints a fairly realistic picture of a series of assaults committed by a person in a psychotic or dissociative state. In such a case, it would hardly be surprising that Mr.

Castro would appear absent or disoriented and would not be able to recall his actions subsequently. This would also be consistent with Mr. Castro’s denial of any of the allegations as well as any of the suggestions that he has behaved strangely in the manner described by Ms. Lamore. The Photographs [ 65 ] The photographs do not show any truly noticeable injury to Ms. Lamore’s face or neck area. She pointed to some redness and attributed it to the events of the night of January 5-6. However, little can be made of such marks since the photos make it plain that Ms.

Lamore had numerous blemishes on her skin. [ 66 ] On this basis, defence counsel urges me to find that the absence of noticeable injury undermines Ms. Lamore’s testimony. I must say that I, too, am surprised that more significant and visible injuries or bruising do not appear on the photos in light of Ms.

Lamore’s description of the violence that took place – particularly her description of being choked with such force that she could not breathe for a number of seconds and feared imminent death. [ 67 ] But as a lay person, it is difficult for me to find that the absence of visible injury is necessarily inconsistent with the nature of the violence that was described. [ 68 ] As a consequence, in my view, the photographs are neutral. They do not corroborate Ms. Lamore’s evidence and, therefore, do not advance the Crown’s case. Credibility of Mr. Torben Castro [ 69 ] Mr. Castro denied the allegations against him.

He denied that he suffered from any mental disorder or that he engaged in any of the bizarre behaviour that Ms. Lamore described. [ 70 ] He provided an account of the breakdown of his relationship with Ms. Lamore as a result of her jealousy and attempts to control him. He gave an account of the reason for his departure with his brother a few weeks prior to January 5, and an explanation of his decision to return to Ms. Lamore on certain conditions. [ 71 ] In all of this, Mr. Castro’s version of events is dramatically at odds with Ms. Lamore’s. Certainly, both cannot be true.

[ 72 ] In my view, Mr. Castro’s evidence was straightforward, plausible and reasonable. He did not go out of his way to disparage Ms. Lamore despite obvious opportunities to do so. [ 73 ] Crown counsel urged me to find that Mr. Castro had attempted to leave the court with the belief that Ms. Lamore was hostile to his visits to his ailing mother. This, of course, would seem reprehensible and cast her in very poor light. She based this argument on a portion of her cross-examination that resulted in Mr. Castro’s agreement that Ms.

Lamore was also concerned that he was having an affair with his mother’s neighbour. [ 74 ] With respect, the Crown’s point is overstated. First, when asked about this issue in his testimony in chief, Mr. Castro testified that Ms. Lamore had a problem with his visits to his mother. His response to the following question was that “she thought I was not really going there.” [ 75 ] In cross-examination, Mr. Castro agreed that Ms. Lamore “yelled at [him] for visiting [his] mother” several times.

To the next question: Not because you were visiting your mother but because she was suspicious that you were visiting another lady who lived nearby? Mr. Castro’s response was “perhaps.” [ 76 ] In my view, in the context of his evidence in chief on the same point, Mr. Castro’s evidence was consistent and complete. It withstood cross-examination. In short, his evidence was believable. Credibility of Mr. Mislen Castro [ 77 ] Mislen Castro’s evidence corroborated his brother’s testimony that he did not and does not suffer from a mental disorder.

He gave his evidence calmly and dispassionately. [ 78 ] He was not challenged in cross-examination on that issue. I found him credible. 9: CONCLUSION [ 79 ] Criminal trials are not credibility contests. The question is whether the Crown has proven its case beyond a reasonable doubt. [ 80 ] I found the evidence of each of the witnesses – Ms. Lamore, Torben Castro and Mislen Castro – to be believable on its own terms. [ 81 ] Unlike the situation in R. v. Jaura [2006] O.J. No. 4157 (OCJ) , the prosecution’s evidence does not lead me to reject the accused’s.

To the contrary, the evidence of Torben and Mislen Castro leaves me with a reasonable doubt. [ 82 ] As a result, I find Mr. Castro not guilty of any of the offences charged. Released: July 10, 2014 Original Signed by The Honourable Justice P.F. Band ______________________________ Justice P.F. Band