R. v. Shane Freitas, 2010 ONSC 2031

CITATION : R. v. Shane Freitas, 2010 ONSC 2031 COURT FILE NO.: 09-00963 DATE: 20100422 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) HER MAJESTY THE QUEEN ) ) ) Y. Laine, for the Crown ) Crown ) ) - and - ) ) ) SHANE FREITAS ) ) ) A. Katz, for the Defendant ) Defendant ) ) ) ) HEARD: April 6-7, 2010 REASONS FOR DECISION LAUWERS J. [ 1 ] Shane Freitas is charged with five offences under the Criminal Code : one count of assaulting Stephanie Denuzzo contrary to

section 266; two counts of assaulting her under

section 267(

a) while using a knife and a pool cue as weapons; and one count of confining her contrary to section 279(2), all on January 28, 2009. Mr. Freitas is also charged with assault on Ms. Denuzzo on January 29, 2009 contrary to

section 266. [ 2 ] The Crown must prove the elements of the offences beyond a reasonable doubt, and relies primarily on the evidence of the complainant, Ms. Denuzzo. Her story was relatively consistent throughout the evening on January 29, 2009, albeit with increasingly elaborate details, to the 911 operator, then to medical personnel at South Lake Regional Health Centre, next to Officer Peter Bezemer and finally to Detective Constables Ted Higgins and Jesse Mann in an audiotaped statement given by her at 11:00 p.m. that evening.

Her evidence at trial was, however, inconsistent both with the taped 911 telephone call, and with the audiotaped statement. While she confirmed that she and the accused were in serious conflict on the days in question, she recanted all allegations of physical contact between the accused and her. Ms. Denuzzo’s trial evidence [ 3 ] The complainant Stephanie Denuzzo testified that she was giving evidence with mixed emotions. She is afraid that she might

get charged as a result of the changes in her evidence. [ 4 ] Ms. Denuzzo graduated from grade 12 in 2007. In September, 2007, she signed a one-year lease for a basement apartment at 80 Clearmeadow Boulevard in Newmarket. Eventually she met the accused, Shane Freitas, and they began dating. By May 2008 she was pregnant with his child (due on February 20, 2009) and he moved in with her in June or July of 2009. [ 5 ] After the accused moved in, they each paid half the rent until she was required to go on bed rest in her sixth month of pregnancy in November and was not employed again.

The accused then took over responsibility for the finances. They got by but had difficulty in doing so. For the most part, they got along well but they had had their ups and downs and they had had arguments. She identified the time that she went on bed rest as the beginning of their more serious interpersonal conflicts. These arguments escalated until they became almost daily. [ 6 ] Ms. Denuzzo testified that they had differences of opinion on how their child should be raised. These became the subject of their arguments.

At the time of the alleged assaults she was eight months pregnant. [ 7 ] On January 28, 2009, she was in the apartment with the accused. Ms. Denuzzo does not recall if the accused was drinking or consuming drugs on that day. There was no one else there. In the afternoon or the evening they were arguing about which members of their respective families would be the child’s godparents. Ms. Denuzzo recalls that they were angry, yelling and screaming at each other. She testified that the argument did not become physical. The argument ended when she left the residence. [ 8 ] Ms.

Denuzzo left because she was getting “pissed off” and wanted things to cool down rather than escalate. On other occasions when things had gotten to this point, she had “thrown stuff”. She testified that typically one or the other would leave so that they could cool off if an argument got too heated. [ 9 ] Ms. Denuzzo testified that she then took the Viva bus, which she said one can board without paying, to Finch Avenue. She sat at the Finch station until the next bus arrived and went back up to Newmarket, and arrived home at about 2:00 a.m. By her estimation, she was gone one and a half to two hours.

She testified that she and the accused exchanged a few “last words” which amounted to a “few sarcastic comments”, but she has no recall of the precise content. They went to bed. There was no physical contact between them after she returned home. [ 10 ] On January 29, 2009, they got up and did not talk about the night before. The accused’s friend, Gordie McCann came over. He and the accused spent their time in the living room. Ms. Denuzzo spent time in the bedroom and eventually fell asleep. [ 11 ] When she woke up, she found that the accused and Gordie had prepared a meal of lamb which they were eating.

Ms Denuzzo finds lamb offensive and she and the accused exchanged words over it. [ 12 ] The accused and Gordie were drinking and the accused was “goofy”. He was drunk. She does not know if he had also consumed drugs. Eventually, the accused passed out on the living room couch that is up against the bedroom wall. Gordie was sitting on the other couch. [ 13 ] Ms. Denuzzo talked to Gordie about the future of the relationship with the accused. She told Gordie that it was getting to be too much and that she did not know whether she wanted to be with the accused any more.

She ventured the opinion that it was not going to work out. When things got strange, they could not handle each other. In her view, they did not balance each other very well. [ 14 ] Gordie eventually left and the accused woke up 10 to 30 minutes later. The accused then asked her to get him a glass of water. She refused. They both started screaming at one another. She described the accused as very angry. He was slamming doors and cupboards, but he did not touch her. [ 15 ] Ms. Denuzzo testified that she felt physically frightened of the accused and that she “wanted him out of my house”.

She had “never seen him so pissed off before” and had never seen him drunk. She had not seen this kind of behaviour. Ms. Denuzzo told him to get out of her home and that “he needs to leave”. His response was that he paid the bills and she could leave. [ 16 ] Ms. Denuzzo testified that she called the police because she “wanted him out of my house”. She described her emotions when she called 911 as “nervous” and “scared”. She did not want him to come back but to “just leave”. She said that she was scared and did not know what was going to happen.

She thought it was “very possible that he could have hit me.” When he realized what she was doing, he said “Don’t call the cops”, “Don’t do this”. Then he packed his stuff up and left very soon into the telephone call. [ 17 ] Ms. Denuzzo testified that the paramedics arrived first and then the police arrived a little later. The paramedics checked her and her baby. They then said that she should go to the hospital and she agreed. They asked her medical questions such as how far along she was in her pregnancy. Ms.

Denuzzo says she did not speak to the paramedics about the assaults, but she also testified that they put a baby monitor on her after she told them that she had been kicked in the stomach by the accused, a statement that she now says was not true. [ 18 ] When the police arrived, they asked her what happened. She went into the bedroom with them. Ms.

Denuzzo testified that she told the police officers that she had thrown the picture that was found on the bedroom floor. [ 19 ] She was in the apartment, by her estimation, about 15 minutes with the paramedics and the police officers before she went to the hospital in an ambulance. The trip took about 10 to 15 minutes. When Ms. Denuzzo arrived she was hooked up to a baby monitor. She remained overnight so that she could have an ultrasound in the morning. [ 20 ] Ms. Denuzzo testified that she provided information at the hospital to Officer Peter Bezemer who had attended at her apartment.

After a while, Detective Constables Mann and Higgins arrived and took the audiotaped statement. [ 21 ] Ms. Denuzzo gave birth to her son Rocky on February 24, 2009. When asked about whether the accused should play a role in his

son’s life, Ms. Denuzzo said that she did not “really care if he’s there”. She noted that they have now been apart longer than they were together. She has received no child support and that, in her words, “kinda sucks”. There is no family court process in place. She is now living with her parents. She is unemployed and is receiving benefits from Ontario Works. She has been attending Seneca College since February 2010. Ms. Denuzzo testified that she has had no contact with the accused since January 29, 2009. They have not seen each other in person, spoken, or contacted each other through media such as Facebook.

Officer Brad Boogaard [ 22 ] Officer Boogaard has been a member of the York Regional Police Service for three and a half years. On January 29, 2009, he was working the night shift from 7:00 p.m. to 7:00 a.m. and was in a patrol car. He got a call at 8:18 p.m. concerning a domestic dispute at 80 Clearmeadow and got there at 8:24 p.m. He was the first officer at Ms. Denuzzo’s apartment and arrived shortly after the paramedics. He went to the side door as instructed and entered the apartment. [ 23 ] Officer Boogaard found Ms.

Denuzzo sitting on a couch in the living room being attended by the paramedics who were talking to her. She presented as distraught and evidently pregnant. The complainant was giving information to the paramedics about what had happened. Officer Boogaard stood behind the paramedics and listened in. She was crying and sobbing, and volunteering pieces of information. Officer Boogaard said that he did not question her. [ 24 ] Shortly thereafter Officer Peter Bezemer arrived. According to Officer Bezemer’s notes, Ms. Denuzzo was transported to the hospital at 8:39 p.m.

Officer Boogaard therefore had about 15 minutes with her before Officer Bezemer arrived. [ 25 ] The paramedics decided to transport Ms. Denuzzo to the hospital. Officer Boogaard stayed with her until she left with the paramedics. He remained in the apartment and was joined by Officer R. Vingerhoets who attended as the Forensic Identification Officer, arriving on the scene at 8:39 p.m., shortly after the ambulance had departed. [ 26 ] Officer Vingerhoets took a number of photographs of the premises. The place appears to have been untidy.

On the floor of the bedroom, there are items of clothing, pieces of broken glass and a photograph of Ms. Denuzzo and Mr. Freitas in which the glass has been broken out. Officer Vingerhoets found a large kitchen knife on the floor in a space about 20 inches wide, judging from the photograph, between the foot of the crib and the wall lying alongside a laundry hamper. In her evidence, Ms. Denuzzo identified the 10 to 15-inch knife as one that the accused kept in his sock drawer as something he might use in the event of a break-in.

She also testified that it was part of a set of knives stored in a butcher block in the kitchen. [ 27 ] Officer Boogaard was at the apartment until 9:07 p.m. when he left to go to the nearby home of the accused’s stepfather, Mark Wilson, at 239 Saw Mill Valley Crescent, where he hoped to find the accused or learn of his whereabouts. Officer Peter Bezemer [ 28 ] Officer Bezemer has been with the York Regional Police since November 2004. On January 29, 2009, he was working the night shift from 6:00 p.m. to 6:00 a.m. on general patrol.

He got a call at 8:18 p.m. to attend at 80 Clearmeadow and arrived at 8:28 p.m. [ 29 ] He testified that the paramedics were attending to Ms. Denuzzo in the living room area. He found her to be very upset. She was speaking very quickly and was very emotional. Officer Bezemer said that he did not ask her questions at the apartment while the paramedics were attending to her. [ 30 ] The paramedics decided to transfer her to Southlake Regional Health Centre and Officer Bezemer followed at 8:39 p.m. When Ms. Denuzzo got there, she was brought to the 4 th floor maternity ward and put into a private room.

Officer Bezemer got to the hospital at 8:46 p.m. Shortly afterwards, Road Sergeant Lambert, his superior, arrived. They interviewed Ms. Denuzzo and eventually summoned Detective Constables Jesse Mann and Ted Higgins. Officer Bezemer left shortly thereafter. The precise time of his departure is not in the evidence, but the audiotape recorded by Detective Constable Mann commenced at 11:00 p.m. The 911 recording [ 31 ] The Crown relies heavily on the 911 recording to refute the veracity of Ms. Denuzzo’s recantation. The Crown points particularly to the decision of the Court of Appeal in R. v.

Nicholas , 2004 CanLII 13008 (ON CA) , [2004] O.J. No. 725, 70 O.R. (3d) 1 at para. 91 : 91 With respect to reliability, the 911 call was made approximately ten minutes after the attack, indicating that there was little time to fabricate. It was audiotaped and the police statement was videotaped. The police statement, although not under oath, was not elicited by leading questions. The location of the statement, taken at the police station and made to a person in authority is also indicative of reliability (see R. v. Fleet (2001), 2001 NSCA 158 (CanLII) , 48 C.R. (5th) 28 (N.S. C.A.)).

The trial judge found that G.W.'s demeanour was credible. Perhaps most significantly, he found an absence of any motive to fabricate and that G.W.'s statement was not consistent with other hypotheses. (See Justice David Watt, Watt's Manual of Criminal Evidence, (Toronto: Carswell, 2002) at pp. 368-372). [ 32 ] The Crown also relies on the decision of Desmarais J. in R. v. Rahmanzadeh , [2005] O.J.

No. 925, 64 W.C.B. (2d) 208 at para. 9 : 9 I am satisfied on the basis of the evidence that I have heard in the voir dire that notwithstanding that the 911 call was made one to one and a half hour after the alleged occurrence, that it is nonetheless admissible as an exception to the hearsay rule. In my view, the call to the 911 operator was made in circumstances where she continued to be distraught and fearful, and that the reflective capabilities of the complainant were sufficiently paralyzed as indicated by Mr. Justice McIsaac in Regina v. W.T.V., [2001] O.J.

No. 4737 , "... as to discount the potential for concoction." [ 33 ] In this case, the 911 call began while the accused was still present. The Crown submits that there was therefore no real potential for concoction and the recording is therefore admissible on the basis that it comes under the res gestae exception to the hearsay rule.

The recording, which is 11 minutes and 8 seconds in length, was played in open court. Ms. Denuzzo acknowledged its accuracy and completeness. [ 34 ] When the call began Ms. Denuzzo was audibly distressed. She described herself as upset, furious and scared, but she calmed down audibly as the call progressed. The 911 call began with her statement that “My boyfriend’s hitting me”. The operator asked whether there were “any weapons?” and Ms. Denuzzo replied “No, no”. She said that “He was choking me and he was (inaudible) against the wall and he was hittin’ me in the head…” [ 35 ] Ms.

Denuzzo then said that he “threw me up against the wall and he was hittin me in the head and this isn’t the first time this has happened. Last night he was hitting me with a pool stick and he’s hit me before and I’m pregnant and he was (inaudible).” [ 36 ] She was asked whether he had taken any drugs that evening. She responded “I think he smoked weed. Like, he was really bad, like, he was throwing up and everything.” [ 37 ] There is then a long set of comments by Ms. Denuzzo: SD: I – you know what? I don’t know.

Yesterday, him and I got into a huge fight and then today, he just woke in this bad mood and he had a buddy come over and I just stayed in the bedroom all day. And then they’d been drinkin’ all day. They were bein’ stupid. And then I came out; he was throwin’ up. And then he just started freakin’ out because he – whatever – whatever I was watchin’ on T.V., he didn’t wanna watch. And he – I just told him. I was like, “You know what?” I’m like saying, “I don’t wanna be with you anymore. I’m like, “Just get out of my house.” And he started freakin’ out. He’s like, “This isn’t your house.

This is my house”, da-da-da-da-da. And he didn’t wanna leave. And I told him what I – like, I was like, “Whatever”, ‘cause I know how he gets. And then he just started freakin’ out. And he’s like, “What, you wanna play games tonight? You wanna play games? You wanna start a fight?” And then I – he just started goin’ crazy. And then I told him, I’m like sayin’, “If you touch me, I’m gonna call the cops.” And he goes, “Go. I wanna see. I wanna call your bluff.” And then he started hittin’ me. And like I said, like last night, he was hittin’ me with a pool cue, you know? OP: And last night he hit you with a pool cue?

SD: Yeah. You know, like I’m a big girl. I can defend myself but like I’m pregnant. I’m eight months pregnant, like what am I supposed to do? OP: Okay. Did he hit you at all in the stomach area? SD: Yes. He kicked me when I was sittin’ on the couch. He was puttin’ his feet on me and I told him to get it off and then he kicked me in like the side of my stomach. [ 38 ] Ms. Denuzzo concluded shortly thereafter with the following comment: “I just – like I could see in his eyes that he was going crazy and I didn’t (inaudible) want it to get any worse.” [ 39 ] In cross-examination by the Crown, Ms.

Denuzzo testified that parts of the statement were true and parts were untrue. For example, the fact that he was there when the call began and that he left almost immediately was true. In essence, Ms. Denuzzo denied all the allegations she made in the 911 tape concerning the accused’s violence January 28 and 29, 2009, and on any earlier occasion. The KGB audiotape [ 40 ] The audiotaped statement was taken by Detective Constables Higgins and Mann on January 29, 2009 between 11:00 p.m. and 11:54 p.m. It was admitted by me under the principles in R. v.

B. (K.G.) , 1993 CanLII 116 (SCC) , [1993] 1 S.C.R. 740 as a “KGB” statement. It is admissible as an exception to the hearsay rule. The tape was played in open court and the accuracy and completeness of the transcription were acknowledged by Ms. Denuzzo. The statement consists of a further elaboration of events on January 28 and 29, 2009. She was responsive to the questions asked and the questions were not leading. She was audibly composed and clear in her evidence.

She only showed real emotion at a point later in the recording when she recounted that the accused had spat on her before. [ 41 ] In the statement, Ms. Denuzzo related the beginning of the argument on January 28, 2009, which was about who would be the baby’s godparents. She went into the bedroom to cool off and Mr. Freitas pursued her and began pushing her and pulling her hair. He then left and said he would be back in five minutes. At some point, she began filling a bag with some clothes. He took the clothes out of the bag and threw them across the room. He hit her and put a choke hold on her.

He held a pillow over her face and then his hands to stop her from screaming. He then left and said he would be back “in five minutes for round two”. He followed her into the washroom and put his arms around her neck and she “kind of rammed him into the back of the wall and like there’s a hole in the wall.” She then hit him with a can of hair straightener and he returned with the fat part of a two piece portable pool cue and hit her on the hip with it a few times. He then “grabbed a knife and he – he – he – he like jabbed it towards me, like not close to me but like jabbed it in my direction. And I moved back.

And he goes ‘If you really wanted to kill yourself you wouldn’t have moved back.’” [ 42 ] In Ms. Denuzzo’s estimation, he left and came back into the bedroom three times. She said that he pulled her hair and smacked her in the face. She continued, stating “If I try to get up, he would push my whole body down on the bed. He would tell me you know, ‘You’re not getting up.’ You know? ‘You’re not going anywhere.’” She tried leaving, but he would not let her out the door. Every time she got up, he would push her back onto the bed. This was the Crown’s only evidence of confinement. [ 43 ] Ms.

Denuzzo said in the audiotaped statement that she did not feel threatened by the knife. She thought that he used the knife “just to show that he’s in control”. The knife was kept in the sock drawer “in case someone ever breaks into the house.” And that’s where he got it from. After he “jabbed it in my direction…he put the knife behind the baby’s crib…so that I couldn’t get it.” She does not know where the pool cue came from or where it went. Ms. Denuzzo then said that she had smashed the photograph. [ 44 ] She described Mr.

Freitas as having personality “switches” in which he would be difficult one moment, and then apologetic the

next. This behaviour went on for about an hour until about 8:30 or 9:00, when he switched and things calmed down. [ 45 ] Ms. Denuzzo asked Mr. Freitas to run her a bath and when he went to do so, “I put a few pairs of underwear in my purse and I grabbed his debit card and I put it in my purse and I grabbed my purse and I ran. And I ran up the stairs. And on the stairs, he started fighting me and grabbin’ my coat from me, so I gave it to him. I just let go of my coat and I gave it to him.

And I put on my shoes and I ran outside.” He pursued her and then at some point offered to give her the coat, which she asked him to drop it on the ground. He did so and she put it on. [ 46 ] Ms. Denuzzo then walked to his Bank of Nova Scotia branch and took out $1,000 with his debit card, which was half of the money “from the kid’s account,” since he had about $2,000 in cheques of hers in the house. [ 47 ] When Ms. Denuzzo left the bank, he was there in a cab and demanded his debit card, which she returned.

She got change for the Viva bus to the Finch station and got on it. (This is inconsistent with her trial evidence that she got on the bus without paying.) She got off the bus in Aurora and went to the Filly and Firkin bar to use the payphone to call a girlfriend for a place to stay. She also called the accused who was distressed and begged her to come home. She got on a later bus and went down to the Finch station and sat there for a half-hour unsuccessfully calling friends. [ 48 ] Ms. Denuzzo called the accused who asked her to come home.

She said that she was scared to come home and he offered to meet her somewhere else. They met at Gabby’s, a restaurant in Newmarket, had something to eat and drink and chatted. They went home. Once in the house, he began to berate her and smacked her a few times on her back and backside. [ 49 ] The next day, on January 29, 2009, one of the accused’s friends, Gordie McCann, came over with bagels and a movie which they watched. Mr. Freitas and Gordie then began playing video games. She and the accused argued a bit. She went into the bedroom and fell asleep.

At about 5:30 p.m., he woke her up and invited her to eat a lamb dinner that he had prepared. She dislikes lamb and they had an argument about that. [ 50 ] According to the audiotape, her statement was that the accused and his friend had been drinking all day “and he was pretty drunk. You could just tell by how stupid he was actin’. And then I heard him throwin’ up.” He then went for a bath and she and Gordie watched T.V. and chatted. [ 51 ] After the bath, the accused came out and lay down on the couch and “just passed out”. She continued her chat with Gordie.

She then said, “And then Shane woke up and gave me a kick to the side of my stomach.” She said that “I don’t think he would do anything to hurt the baby”, but it was definitely a kick. According to the audiotape, Gordie was still there at the time. Gordie then left at about 6:00 or 6:30. Later she said that she was not sure that Gordie would have noticed the kick. “He’s – was drunk. He was in his own little world…” [ 52 ] After Gordie left, Mr. Freitas woke up and said, “Steph, can you go get me a drink of water?” (The evidence in this paragraph and the immediately preceding paragraph about when Mr.

Freitas woke up is inconsistent.) She refused and they had another fight which he “started hittin’ me and puttin’ pressure on my stomach” while holding his arm across her throat. [ 53 ] Ms. Denuzzo said that he smacked her in the face three times and then she said “Shane, get out of my house.” In response, “he like put his hand on the left side of my head and like drove me into the wall, right, like pushed back and then with his hand – and hit my head into the wall. And I told him, I’m like, ‘if you touch me one more time, I swear to God, I’m going to call the cops on you,’ and then he smacked me in the face.

And he goes, ‘I’m callin’ your bluff.’ So I gave him a big push away from me and I grabbed the phone and I dialed 9-1-1. And once he saw it, he went to go unplug the phone. And I go, ‘Do it Shane.’ I’m like, ‘Do it. They’ll see that this number called.’ I’m like, ‘They’ll trace the number. They’ll call’ – you know, ‘they’ll come here.’ I go, ‘Do it. Unplug it.’ And then as soon as the girl picked up and he heard what I was sayin’, he was freakin’ out. ‘No, Steph. Please don’t do it this, Steph. Don’t do this.

You don’t know what they’re gonna do, Steph.’ And then he – he – and I was tellin’ the girl what he did to me. And then that’s when he grabbed his stuff and he left and I locked the door.” [ 54 ] In the audiotape Ms. Denuzzo went on to relate an incident two or three weeks before where she did not feel the baby moving and so went to the hospital with the accused. They walked part-way home, and she went into a bus shelter and sat down. She then said that “He then pushed me down into the seat and he was like full-out line punched me in the head like three times.

And like he – he spat on me before.” These were closed-fist blows. The cross-examination of Stephanie Denuzzo and related evidence [ 55 ] It was agreed that the evidence on the KGB voir dire would serve as evidence in the trial. Both the Crown and the defence had and took the opportunity to cross-examine Ms. Denuzzo. [ 56 ] Ms. Denuzzo testified that she began to have second thoughts about what she had said, perhaps even at the hospital, but certainly by the next day. There is no evidence that she informed anyone about her misgivings. She was adamant that she did not want to get Mr.

Freitas into the kind of trouble that he was in as a result of what she said. She began to think that she had to “fix this”. [ 57 ] Detective Constable Mann, who was the officer in charge, recalled speaking briefly with Ms. Denuzzo on January 30, 2009 when he answered questions that she had about the charges. Detective Mann advised her that prosecution was not a matter of her choice. He later served her with the subpoena for the preliminary hearing and the trial. At no time did she tell him that the evidence that she gave was untrue. [ 58 ] Detective Constable Higgins testified that he contacted Ms.

Denuzzo on February 4, 2009, to advise her that Mr. Freitas had been arrested and to advise her about his next court appearance. Ms. Denuzzo stated that she did not want to proceed with the charges. She indicated that she wanted to have no further contact with Mr. Freitas, but did not wish to go to court. She did not say that any of the statements that she had made on the audiotape were false. Detective Constable Higgins had no further involvement with her.

[ 59 ] Ms. Denuzzo approached legal counsel, Susan Tucker, on February 10, 2009, just prior to Mr. Freitas’ bail hearing which was then scheduled for February 11, 2009. (It eventually took place on February 17, 2009.) Ms. Tucker testified that Ms. Denuzzo was concerned about her legal obligations and the possibility of jail. She drafted an affidavit in which Ms. Denuzzo recanted the assault allegations. Ultimately, however, Mr. Freitas’ counsel at the bail hearing chose not to use the affidavit and a copy was not provided to the Crown. [ 60 ] I find that Ms.

Denuzzo’s decision to recant was taken shortly after the charges were laid but it was not communicated to the Crown until later. [ 61 ] Ms. Denuzzo gave more evidence in defence cross-examination. The questions were leading and Ms. Denuzzo, having recanted, was not adverse in interest. She was quite suggestible and appeared to have been somewhat rehearsed. [ 62 ] The picture that the defence sought to paint through the questions and answers is that Ms. Denuzzo was overwrought on January 29, 2009 and wanted Mr. Freitas out. Things were coming to a head. She felt trapped.

They fought and argued about everything, particularly godparents, finances, how the baby would be raised, and their religious differences. That night, she was particularly distressed. As she put it, it is “not a great thing to see the father of your son passed out on the couch like a bum.” She saw no real future with Mr. Freitas. [ 63 ] Ms. Denuzzo decided that calling 911 would work to get him to leave because Mr.

Freitas would be afraid, given his record, that the police were going to come and arrest him. [ 64 ] Having called 911, she testified that she felt compelled to say something to ensure that the police would eject Mr. Freitas and not her. She said she was especially worried because he was the one who paid the rent even though the lease was in her name so he had to be painted as the one at fault. I do not find this explanation for her elaborate statements to the 911 operator and to the police officers to be entirely plausible. [ 65 ] As the 911 conversation unfolded, however, and particularly after it ended, Ms.

Denuzzo said that she began to think about the risks of losing her child as an unfit parent. She said that she felt compelled to answer the officers’ question while at the apartment, which were open ended, such as “What happened here?” On balance I find that the officers likely questioned her briefly at the apartment even though they say they did not. The place was a mess. Her elaborate details were intended, she said, to explain the clothing on the floor, which she said Mr.

Freitas had taken out of a bag she was packing, to explain the knife behind the crib because after threatening her with it, he put it there to keep it out of her reach, and so on. I do not find this explanation to be plausible. [ 66 ] Ms. Denuzzo expressed a concern in defence cross-examination about the involvement of the Children’s Aid Society. She said she was worried that unless she could explain the shambles of her apartment, the CAS might take her child at birth as an unfit mother. Ms. Denuzzo’s evidence was that she received a telephone call from the CAS on January 30, 2009.

There was no evidence explaining the genesis of the CAS call apart from some speculation that in a case of spousal abuse, there is an automatic report. This evidence struck me as after-the fact; I doubt that the prospect of future CAS involvement played a role in her behaviour and her statements on January 28 and 29. [ 67 ] Her evidence under defence cross-examination was that on January 30 or the next day, she began to regret calling 911. She decided that “I have to fix it.” She did not want Mr. Freitas to go to jail and “felt horrible”.

At the same time, she was concerned about the possibility that she might be charged herself, with the nightmare result being the prospect of giving birth in jail. That is why she retained Ms. Tucker. [ 68 ] Ms. Denuzzo accepted some responsibility for the escalation in tension. Things got out of control. She testified that her mood swings were exaggerated “so little things got big”. She would pick fights with Mr. Freitas and “scream, yell, break stuff” such as the picture, when she “freaked out”. This was her highly emotional state when she called 911. This comes perilously close to typical victim self-blame.

But there is a tinge of credibility to this aspect of her story. Ms. Denuzzo is about six feet tall. She played competitive rugby for five or six years and has kept in good shape. She testified that she is in good shape now. Her current weight is 200 pounds. At the time of the alleged assaults during her pregnancy she weighed about 275 pounds. Mr. Freitas is shorter than her and probably lighter. In general terms, the exchanges between Ms. Denuzzo and Mr. Freitas were relatively evenly matched. She did not appear to be particularly afraid of him.

Analysis [ 69 ] While I found that the 911 recording was admissible as part of the res gestae exception, and that the KGB statement was admissible and achieved threshold reliability, my task is to determine what relevant parts of each achieves ultimate reliability. The Crown must prove the charges beyond a reasonable doubt, as explained by the Supreme Court in R. v. Lifchus , 1997 CanLII 319 (SCC) , [1997] 3 S.C.R. 320 at para. 39 in its suggested jury instruction: A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice.

Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. [ 70 ] The defence submitted that Ms. Denuzzo’s recantation was honest and that the Court should accept her sworn evidence at trial that she lied about physical contact between her and Mr.

Freitas on January 28, and 29, 2009, and on other occasions. [ 71 ] The defence pointed out the lack of personal benefit to Ms. Denuzzo in recanting. In fact, Mr. Katz submitted, she has exposed herself to a possible criminal charge. The relationship, according to her, is over. She does not stand to gain from recanting. He argued that “she’s recanting because she wants to make things right, to be honest.” She overacted on January 29, 2009 and now regrets it. [ 72 ] The Crown pointed out, however, and I agree, that Ms. Denuzzo did have motive to fabricate the recantation. This is the father of

her child with whom she had a long-term relationship. She does not want him to go to jail and she needs his financial support. [ 73 ] The defence pointed out, most importantly, that there is no physical evidence of the assaults. For reasons that are not clear, the police officers who attended at the home were not advised that a pool cue had been used as a weapon. Accordingly, they did not look for a pool cue and none of the photographs show one. Ms. Denuzzo testified that she does not own such a cue. One of her friends does own one so she was familiar with the article. She was not asked whether Mr.

Freitas owned such a cue or kept it in the apartment. [ 74 ] Ms. Denuzzo testified that she offered to show the spot on her hip where she was hit with the pool cue to the officer, but he did not look. The medical records of Ms. Denuzzo completed by the paramedics, records that there were no bruises noted on her head or neck and that Ms. Denuzzo stated that there was no bruising on her abdomen. A consultation note completed by Dr. Svystonyuk notes that, “There were no obvious signs of bruising or laceration on the anterior abdominal wall.

The patient mentioned specifically that she was hit once in her right lower quadrant area and felt a short-term episode of lower abdominal discomfort.” Presumably the examination by this doctor would have produced evidence of a bruise from the kick that she attributed to Mr. Freitas and from the blows of the pool cue if they were there. The only evidence of violence is this entry “Obviously, erythema was identified on both her left and right cheeks as a result of being slapped on a few occasions.” The problem with this evidence is that Ms.

Denuzzo’s high colouring, which she retained through two hearing days, could easily be mistaken as the result of a slap. The neck hold that Mr. Freitas is said to have placed on her would not, as the Crown notes, lead to bruising. [ 75 ] The blows to her head might have produced bruising but these would have been covered by her hair and Ms. Denuzzo does not seem to have drawn attention to that at the hospital.

In her evidence, she described a hole in the wall in the bathroom that was the result of one of their altercations, but there was no police follow-up on that evidence. [ 76 ] I conclude that there is no physical evidence to corroborate the assaults or the veracity of Ms. Denuzzo’s evidence in the 911 call or the audiotape. [ 77 ] The defence questioned the statement in the audiotape that on January 28 Mr. Freitas emptied out a bag that Ms. Denuzzo had packed. The photographs show some clothing on the floor, not all of which is hers, and which seems unlikely to have been packed in a bag.

There was a top on the floor which she discarded on getting into bed. Again, the physical evidence does not match the audiotape story very well. [ 78 ] Another area of focus was the knife. During the 911 call, Ms. Denuzzo specifically said that there were no weapons involved. But, as the Crown points out, the incident with the knife occurred on January 28 and not on January 29 when the call was made. Ms. Denuzzo testified that there was an innocent explanation for the knife being beside the crib. They had used it to open up shower gifts. [ 79 ] Ms.

Denuzzo’s evidence in chief was that she saw the knife behind the crib from her seated position on the couch in the living room and felt obliged to make up a story about it. She was not able to explain why she did so. It is also quite plain that there is no physical way, as shown by the photographs, that Ms. Denuzzo could have seen the knife from her seated position in the living room. Nor could she have seen it if she were standing because there were a number of objects in the way.

Her innocent explanation of them using the knife to open boxes and bags that were shower gifts has some plausibility in explaining why the knife was on the floor near the crib. Her explanation in the audiotape statement that Mr. Freitas put the knife behind the crib to keep it away from her is nonsensical, because it would have been easily accessible to her by moving either the laundry hamper or rolling away the crib itself. [ 80 ] I reject the evidence of Ms. Denuzzo in the audiotaped statement that Mr. Freitas threatened her with the knife.

She may well have said at some point that she felt like killing herself, and he may well have taunted her by holding up the knife as the means for her doing so. But she said that she did not feel threatened, undoubtedly at least in part because she knew that Mr. Freitas would do nothing to harm the child. [ 81 ] For the same reason, I reject the evidence of Ms. Denuzzo in the 911 call and in the audiotaped statement that Mr. Freitas kicked her in the abdomen. The evidence is that he was lying on the couch and had just woken up. She was sitting on the couch at his feet.

That is a difficult position from which to give someone in her position a kick. At worst, he might have flicked her with his foot to indicate his annoyance. [ 82 ] The defence also focused on the bus trip that Ms. Denuzzo took on January 28 after their fight that day. Ms. Denuzzo did not deny that she took the bus trip. However, she denied that she got off the bus in Aurora to go into the Filly and Firkin bar to make a phone call. She also denied that she met the accused at Gabby’s in Newmarket after she came back north.

It seems unlikely that she would have gotten off the bus in Aurora on a cold and dark January night to make a phone call, since that would have put her in the position of having to continue the trip on the next bus even later. There is no explanation as to why she would have lied about these details. Conclusions [ 83 ] Taking the evidence as a whole, it is plain to me that the relationship between Mr. Freitas and Ms. Denuzzo started impulsively. They were immature young adults who quickly found themselves faced with the serious responsibility of raising a child. She still evinces a child-like demeanour.

They did not have the maturity to handle their situation. Instead of rising to the demands of imminent parenthood, they fell to squabbling like school children or siblings. [ 84 ] As time went on and the pregnancy progressed, the bickering and the arguments escalated to the point that things became intolerable for Ms. Denuzzo. On January 29, 2009, she took action to get Mr. Freitas out of the house by calling 911. Both she and Mr. Freitas know what actually happened that night. I believe Ms.

Denuzzo when she said she was frightened because his behaviour had taken a turn for the worse and he revealed a side of his personality that she had not seen before. It would not surprise me if he actually did hit her that evening, but that does not equate to proof beyond a reasonable doubt. [ 85 ] The Crown relies most heavily on the text of the 911 call. In her evidence, Ms. Denuzzo said, “If you touch me, I’m gonna call the cops”. Mr. Freitas then said, “I wanna call your bluff”. That, says the Crown, is the real explanation for the call to 911.

Her words to the 911 operator show that she was being assaulted by Mr. Freitas at the moment that the call was made.

[ 86 ] In my view, Ms. Denuzzo called 911 either because he was hitting her at the time or because she wanted him to leave in order to alleviate the pressure she felt she was under after two days of solid fighting. She also knew that she needed to say something to the 911 operator to explain the call and also to motivate the accused to leave, which he did. [ 87 ] There was a triggering event to the 911 call, but I am not satisfied beyond a reasonable doubt that it was a physical assault on Ms. Denuzzo by the accused.

It probably was a physical assault, but that does not meet the burden of proof beyond a reasonable doubt. The absence of any physical corroboration is problematic. If the assaults took place, then there should have been some bruising on her hip and on her abdomen. There is no evidence of such bruising. If a pool cue was used in an assault on January 28, 2009, then it should have been found as part of the police investigation. Ms. Denuzzo said in her evidence on the audiotape that there was a hole in the wall related to one of the assaults.

There was no police evidence of such a hole in the wall. [ 88 ] The Crown pointed to the abundance of detail in Ms. Denuzzo’s increasing elaborations of the assaults. The Crown argued that these are hallmarks of truths since very few people are capable of making things up on the spur of the moment and remaining consistent. I agree in general terms with that observation, but a narrative thread can be held together if the central core is true, while the details are exaggerated, which I find to be the case here. As the evidence shows, Ms. Denuzzo is a thoroughly unreliable witness.

In the absence of other independent corroborative evidence I am unable to rely on her evidence alone to convict Mr. Freitas. [ 89 ] Both Mr. Freitas and Ms. Denuzzo have behaved badly. Both may have committed criminal acts. Perhaps this prosecution will serve as a parenting lesson to wake them both up to the awesome responsibility that they have for the future of their child. [ 90 ] The Crown has not proven the charges against Mr. Freitas beyond a reasonable doubt. I dismiss all five counts on the indictment. ___________________________ P.D. Lauwers J. Released: April 22, 2010