Court File and Parties

Ontario Court of Justice Date: 2021-02-24 Court File No.: Toronto 19-55002043

Between: Her Majesty The Queen

— And —

Mylo Barreto

Before: Justice Peter N. Fraser

Heard on: February 1-4, 2021 Reasons for Judgment released on: February 24, 2021

Counsel: Tom Lissaman, for the Crown Matthew Eaton-Kent, for the defendant Mylo Barreto

Fraser J.:

Overview

1Mylo Barreto stands charged with assault causing bodily harm, robbery and unlawful confinement in connection with an incident on June 21, 2019. He is alleged to have committed these offences against Allan Howe, from whom he was renting a room.

2There was a dispute over the rent money and the pending eviction of both men from the property they were occupying together. Mr. Howe testified to a violent attack perpetrated by the accused and his two friends that spanned several hours. He claimed he was confined, severely beaten and robbed of his money. Mr. Howe suffered significant bruising and abrasions to his face, neck, torso and legs. These injuries were documented in police photographs taken shortly after the event. Mr. Barreto admitted to causing the injuries, but testified that he was acting in self-defence. He denied the involvement of his friends, the confinement and the taking of money.

3The central issues at trial were the credibility and reliability of the two main witnesses and whether the accused’s evidence, if accepted, amounted to lawful self-defence.

Legal Principles

Legal Principles

4As in any criminal trial, the accused is presumed innocent. The Crown must prove the essential elements of each offence beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and never shifts to the defence.

5A 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: R. v. Lifchus, [1997] 3 S.C.R. 320. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient to ground a conviction.

6Where the case turns on the credibility of the complainant and the accused, the trier of fact does not simply choose between the two competing narratives. The issue is not which version of events is preferred, but whether the Crown has proven the case beyond a reasonable doubt. In assessing the evidence in this case, I must apply the principles and analysis set out by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742:

• If I believe the evidence of the accused, I must acquit.
• If I do not believe the evidence of the accused, but I am left in a reasonable doubt by it, I must acquit.
• Even if I am not left in doubt by the evidence of the accused, I must ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the accused’s guilt.

7The elements of the three offences charged are well known and there was no dispute that the complainant’s evidence, if believed, would make them out. The injuries suffered by Mr. Howe clearly met the legal definition of bodily harm as contained in section 2 of the Criminal Code. The money, if taken in the manner alleged, involved significant violence rendering the act of stealing it a robbery. And the hours-long confinement, coupled as it was with actual and threatened violence, would comfortably meet the definition of unlawful confinement. In R. v. Pritchard, 2008 SCC 59 at para. 24 the Supreme Court determined that a confinement occurs if"for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire." See also: R. v. Magoon, 2018 SCC 14 at para. 64.

8In cases involving a claim of self-defence, the Court must apply the law as set out in section 34 of the Criminal Code, which reads as follows:

34(1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances.

9As the Ontario Court of Appeal observed in R. v. Bengy, 2015 ONCA 397 at paras. 27-29, these amended provisions have simplified the test for self-defence into three basic requirements: (1) a reasonable belief in the use of force or threat of force (2) a defensive purpose, which is a question of subjective intent, and (3) a reasonable response. Where the first two requirements are met, Parliament has provided a non-exhaustive list of factors to assist in the determination of the reasonableness of the response. These factors need not be reproduced here, but I have considered them.

10A person who is attacked in his own home is not obliged to retreat. Nor is a trier of fact entitled to consider whether an accused could have retreated from his home in the face of an attack in assessing the elements of self-defence: R. v. Forde, 2011 ONCA 592 at para. 55. The court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection and cannot be expected to weigh to a nicety the exact measure of necessary defensive action: R. v. Cunha, 2016 ONCA 491 at paras. 7-9. Finally, the accused bears no burden of proving the components of self-defence. Where there is an air of reality to the defence, the Crown must prove that the accused was not acting in self-defence.

Evidence of the Complainant

Evidence of the Complainant

11Allan Howe, was 60 years old at the time of trial. In June of 2019, he was renting a small two-bedroom bungalow at 68 Twenty-Fourth Street in Toronto. He had been subletting one of the rooms to Mr. Barreto since the fall of the preceding year. Mr. Howe had struggled to pay the rent for several months and was facing eviction at the time of these events. He testified that he told Mr. Barreto about the eviction and returned his last month’s rent (which Mr. Barreto had paid up front). He also agreed to return a pro-rated amount for the last week of June since they would not be able to stay to the end of that month.

12On June 21, 2019, Mr. Howe came home at around 7:00 p.m. and found a note on the table that read, “Where’s my money”. He left the agreed-upon $220 on the table and went to his room. Mr. Barreto was in his own room drinking beer with two friends, who were not identified by police or charged on this information. Another note appeared sometime later, demanding $500. Mr. Howe explained to Mr. Barreto that this was not the agreement. Some time after that, one of accused’s friends began to repeatedly demand money from Mr. Howe, and eventually became hostile. Mr. Howe told him to leave and threatened to call police. At this point, Mr. Barreto came out of his room, smashed the complainant’s phone and flipped his plate of food over onto the counter.

13According to the complainant, Mr. Barreto attacked him with a flurry of punches, slaps and kicks. Mr. Howe fell to the ground and the blows continued to rain down on him. He was struck in the head, face, torso and legs.

14At first, the accused’s two friends were laughing and drinking beer. Later on they assisted Mr. Barreto in confining, assaulting and degrading Mr. Howe over the course of several hours. All three males appeared to be “tweaking”, which is to say they appeared to be under the influence of some kind of drug. Mr. Barreto was saying “weird” things that were, at times, difficult to understand.

15Mr. Howe was forced into the bathroom tub. During a long period of confinement in the bathroom, Mr. Howe had crushed cigars, water from the shower and beer poured on him. Mr. Barreto would periodically punch, slap and kick him in the face causing his head to hit off the tiled walls. Mr. Howe testified that one of the accused’s friends threatened him repeatedly with a kitchen knife, while the other menaced him with a hammer. They were laughing, joking and talking about how they were going to teach him a lesson and how he didn’t deserve to live. During this time, the three males located Mr. Howe’s wallet and stole some $800-900 from him.

16On Mr. Howe’s evidence, there were periods of respite throughout the night. At one point, Mr. Barreto gave him ice for his injuries and one of his friends offered him beer and poured some into his mouth to drink. They brought him to the kitchen table and offered him marijuana. At this time, the accused called his girlfriend and asked what they should do with the complainant. It appeared to Mr. Howe that she was advocating further violence. He was already in “bad shape” and thought he was going to die that night.

17Mr. Howe swung a chair at one of the accused’s friends and tried to escape through the front door, but Mr. Barreto caught him, grabbed him by the throat and punched him in the face. He was dragged to the laundry room area and beaten again over an extended period of time.

18According to the complainant, the whole series of events lasted some three to four hours. At the end of it, the accused locked him in the bathroom and left him there for the night. He eventually escaped through the bathroom window and ran to his neighbour’s house where police were called.

Analysis of the Complainant’s Evidence

Analysis of the Complainant’s Evidence

19I found Mr. Howe to be a compelling witness. His narrative of events was detailed, internally consistent and did not deviate materially from his statement to police. The nature of the cross-examination was such that Mr. Howe repeated long portions of the examination in chief a number of times. Despite the cross-examination, the chronology of the events he described, which spanned several hours, remained clear.

20Mr. Howe has a criminal record containing 4 convictions registered between 1982 and 2010. I would characterize two as offences of dishonesty. The complainant’s assertion that he is not a violent person is at odds with his conviction for assaulting a peace officer. However, the contradiction posed by this single entry from 2010 did not meaningfully affect his credibility in my view. The record as a whole is quite dated, but it causes me to approach the complainant’s evidence with some caution.

21The defence submits that the complainant’s evidence was inconsistent around the issue of the June rent money. According to Mr. Howe, he told the Accused about the eviction and returned his last month’s rent sometime in May. This left some question as to why he would have collected rent for June at all, such that he had to return a pro-rated amount for the last week as described. This point went unresolved and raised some concern about the complainant’s credibility and reliability.

22Mr. Howe’s account of the incident was confirmed in the following ways by the physical evidence at the scene, as photographed by police:

• Physical injuries: the photographs revealed extensive bruising and abrasions about Mr. Howe’s face, head, neck, chest, abdomen, and legs. These injuries are consistent with him being punched and kicked repeatedly over a prolonged period as he described.
• Ashes in the bathtub: Mr. Howe testified that he was forced into the bathroom and put into the tub, where the assault continued. He claimed the accused and his friends crumpled cigars over him, poured beer on him and ran the water from the faucet over him. The photographs depict a dark granular material in and around the bathtub, which is consistent with the contents of a cigar.¹
• Ice cube tray: According to the complainant, Mr. Barreto gave him ice for his injuries while confining him in the bathroom. There was an ice cube tray photographed beside the sink in the bathroom.
• Puncture marks in the wall: After being release from the bathroom, Mr. Howe testified that he was dragged to the laundry room area where the beating continued. He reported that one of the accused’s friends threatened him with a kitchen knife and stabbed the wall close to his head during this part of the assault. The photographs show at least eight puncture marks in the drywall which are consistent with a knife being thrust into the wall.
• Kitchen knife: A kitchen knife located by police in a drawer, and identified by the complainant as the knife in question, had a white substance on the tip that resembles the material inside drywall panels.
• Potted plant: Mr. Howe claimed that the accused dumped dirt on him from a potted plant while assaulting him in the laundry room. The photographs show soil all over the floor in this area along with part of a plant.
• Dresser in the hallway: According to the complainant, Mr. Barreto confined him in the bathroom a second time and barricaded the door from the outside. Police photographs depict a large dresser in the hallway just outside the bathroom door.
• Pillow, marijuana and beer: according to the complainant, when Mr. Barreto left him confined in the bathroom at the end of the sequence of events, he offered him a pillow, as he would be in there all night. Mr. Barreto also left him with beer and marijuana. The photographs show a pillow, beer cans and a green leafy substance that appears to be marijuana in the bathroom.
• Disassembled window: Mr. Howe testified that he removed the window panes from the bathroom window and climbed out in order to escape. Police photographs show four panes of glass stacked against the vanity near the open window.

23The defence position is that the complainant was the aggressor and that his injuries resulted from the defensive actions of the accused. On its face, this position is at odds with the extensive number and nature of Mr. Howe’s injuries. The defence argues that he was so under the influence of drugs and alcohol that he repeatedly attacked Mr. Barreto over the course of some two hours. I find that narrative difficult to accept, as a matter of common sense and experience, given the serious beating he received. I would also observe that both Officer Bescoe and Mr. Howe’s neighbour, Winta Ghebre, interacted with the complainant shortly before 2:00 a.m. and observed no signs of impairment.

24The defence contends that the complainant staged the crime scene after the accused had left and created a false narrative of the events. This would have involved, among other things, stabbing holes in the wall with the kitchen knife, moving the dresser into the hallway, putting ashes in the tub, dismantling the bathroom window and banging on the neighbour’s door in the middle of the night to report the assault. I find it extremely unlikely that Mr. Howe would have staged such an elaborate scene or fabricated such a detailed and peculiar narrative when the damage to his body already offered a compelling testimonial of violence. That kind of carefully manufactured deception would be at odds with the defence submission that Mr. Howe was so intoxicated that he persisted in attacking the accused despite a mounting collection of injuries. I also find it unlikely that Mr. Howe would have taken the time to do this before seeking help, given how badly hurt he was. On the accused’s version of events, the 911 call would have been placed some four hours after he and his friends had left the house.

25Defence counsel argues that Mr. Howe did all this in order to conceal his own culpability and to extort money from the accused. On the first point, there was no suggestion that police would be called until Mr. Howe called them. As to the second, counsel cites a text message Mr. Howe sent to the accused’s girlfriend, indicating he would ask police to “go easy on them” if he got his $1000 and his phone back. I do not find this message impacts Mr. Howe’s credibility. He continued to assert the accused’s guilt in the message, and the content is consistent with his evidence that roughly this amount of money was stolen from him and that his phone was smashed. I would also observe that Mr. Howe owed some $14,000 in arrears to his landlady. In this context it makes little sense that he would go to these lengths to extort $1000 from the accused.

26To be clear, I consider the question of the complainant’s motive to fabricate, or lack thereof, only insofar as to address the submissions of defence counsel. I do not consider the absence of a motive to fabricate as evidence assisting the prosecution in the circumstances of this case: see R. v. Ignacio, 2021 ONCA 69.

27Though I have addressed the evidence of the complainant first in these reasons, I have not considered his evidence in isolation. I have evaluated Mr. Howe’s testimony in the context of all the evidence at trial and, in particular, the testimony of the accused which I turn to now.

Evidence of the Accused

28Mr. Barreto was 24 years old at the time of the trial (he was 22 when the incident occurred). He testified that the complainant had become depressed in the months leading up to June 21, 2019. He had lost his mother, seemed stressed and was behaving erratically. Mr. Barreto claimed the complainant was drinking a lot and smoking crack.

29According to Mr. Barreto, the complainant told him about the eviction a few days before the incident in question. He agreed to return his security deposit and the rent for June, which had already been paid. Mr. Barreto believed he was owed $1,600. Mr. Barreto testified that he was “overloaded” by everything going on in his life and had no reaction to the eviction.

30On June 21, 2019, Mr. Howe paid the accused only $200. Mr. Barreto testified that he said nothing about this, as he was “not in a good head space” to focus on the issue of the money. He later emerged from his room to find Mr. Howe standing over his friend, pointing down at him with a knife and fork in his hands. Mr. Barreto “just reacted physically” and punched him the face, leading the two men to start fighting. Mr. Howe was behaving like a “drunk maniac.”

31According to Mr. Barreto, the fighting continued for what might have been a couple of hours. They would fight for some five to ten minutes at a time and then pause for two to three minutes. During the breaks, they would talk or sit at the kitchen table. Mr. Barreto claimed that each time the complainant would start fighting him again. He admitted causing the complainant’s injuries, but claimed he was acting in self-defence. Mr. Barreto testified that his friends were not involved in the altercation, that there was no confinement, and there was no taking of money.

Self-Defence

Self-Defence

32The Crown submits that Mr. Barreto’s evidence does not amount to lawful self-defence because his testimony in fact describes a consent fight. Mr. Barreto would then be guilty of assault causing bodily harm, as one cannot legally consent to bodily harm, which the complainant clearly suffered here: see R. v. Jobidon, [1991] 2 S.C.R. 714. I would observe parenthetically that this view of the facts would still afford Mr. Barreto a defence to the charges of robbery and unlawful confinement.

33On Mr. Barreto’s account, either man could have left the house at any time. Their continued re-engagement with each other was suggestive of some level of agreement to continue the hostilities. However, as stated above, Mr. Barreto had no legal obligation to retreat from his own home. On fair reading of his evidence as a whole, Mr. Howe was the aggressor throughout and the accused was responding to assaultive conduct levelled against his friend and later himself. I do not agree that what Mr. Barreto described was a consent fight.

Analysis of Accused’s Evidence

Analysis of Accused’s Evidence

34There was a troubling vagueness about many aspects of Mr. Barreto’s evidence. For example, on his account there was no apparent reason for the initial confrontation between his friend and the complainant. There was no cogent reason for the prolonged violence that occurred between Mr. Howe and him. And there seemed to be no explanation for why the lengthy confrontation ended either. When it was suggested to Mr. Barreto in cross-examination that he could have left the house at any time, he asserted that he did not wish to leave his belongings in the house with the complainant. But on his evidence, he did leave the residence with only his money and passport, leaving the rest of his belongings behind.

35I found the accused’s evidence around the role of his two friends to be problematic. Both were close friends whom the accused had known for years. But there was no suggestion that they ever came to his aid, or even came out of the bedroom to see what was going on despite the violence persisting for some two hours. There was no suggestion that Mr. Barreto ever called out to them for help, sought the refuge of their company, or communicated with them in any way at all.

36Most significantly, Mr. Barreto’s claim that he acted in self-defence is not consistent with the extensive injuries he inflicted upon the complainant. The photographs reveal, in stark terms, the level of force visited upon Mr. Howe and there was no dispute that Mr. Barreto was the cause of the injuries. In examination in chief, the accused made no mention of being injured himself. When asked whether he suffered any injuries in cross-examination, he answered “I believe so” and added there was nothing so severe as to require hospitalization. He offered no further detail. Nor did his counsel seek any clarification about the nature of his injuries in re-examination. This was obviously an important issue, given the visceral nature of Mr. Howe’s injuries, and the claim of self-defence being advanced. I find that Mr. Barreto’s response in cross-examination was a vague and unconvincing attempt to level out the one-sided nature of this altercation. I find that Mr. Barreto suffered no injuries of any consequence.

37It is possible for an attacking party to get the worst of an exchange at the hands of someone acting in lawful self-defence. And, as stated above, a person under attack is not required to weigh the responsive force used to a nicety. However, in this case, the sheer nature and number of the injures to the complainant undermines Mr. Barreto’s position. Moreover, his explanation for the extent of the injuries strains the boundaries of common sense. I find it difficult to accept that Mr. Howe would have repeatedly thrown himself at a man half his age, over the course of some two hours, all while receiving a completely one-sided beating.

38I am mindful of the Crown’s burden of proving the case beyond a reasonable doubt. And I am guided by the framework set out by the Supreme Court in R. v. W.D. That being said, the evidence of the accused is not to be evaluated in a silo, separate and apart from the rest of the evidence in the case. The question at the first and second branches of the W.D. analysis is not whether the accused’s evidence, viewed in isolation, should be believed or is capable of raising a reasonable doubt. Rather, the accused’s evidence must be assessed in the context of all the evidence in the case.

39This point tends to be uncontroversial when the accused’s evidence is rejected on account of conflicting physical evidence, such as DNA or video footage. Greater caution is required where the conflicting evidence is that of the complainant. In that scenario, there is a danger of the case being resolved by way of a mere credibility contest, where the trier of fact simply chooses between competing narratives and loses sight of the ultimate question of whether the Crown has proven the case beyond a reasonable doubt. As the Supreme Court reminds us, a reasonable doubt can remain despite a rejection of the accused’s evidence: see R. v. W.D., supra. And a reasonable doubt can survive a finding that the complainant is credible too: see R. v. J.W., 2014 ONCA 322 at para. 26.

40In certain cases, the evidence of the complainant may provide a proper basis to reject the evidence of the accused. The Ontario Court of Appeal made this point in R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69. As the Court stated at paragraph 53:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

41The validity of this approach was affirmed recently by the Court of Appeal in R. v. T.A., 2020 ONCA 783 at para. 36, with the admonition that, “To invoke J.J.R.D., a trial judge must assess the whole of the evidence and reject the defence evidence based on a considered and reasoned acceptance of the Crown’s evidence.”

42In this case, I have identified problems with the substance of the accused’s evidence, as detailed above. In addition to those frailties, I find that the combined effect of the complainant’s evidence and the physical evidence from the scene, serves as a further basis for the rejection of the accused’s testimony. After careful consideration of all the evidence, I reject the testimony of the accused and find that it does not raise a reasonable doubt.

43Having rejected the evidence of the accused, I must consider whether the evidence I do accept satisfies the Crown’s burden of proof beyond a reasonable doubt. I find that it does. I accept Mr. Howe’s description of the events of June 21, 2019. In my view he was a credible and reliable witness. The few areas of concern identified above were of minimal significance in the context of the evidence as a whole. I am satisfied beyond a reasonable doubt of the truthfulness of the complainant’s evidence, in light of the wealth of physical evidence confirming his account of that night.

Conclusion

Conclusion

44I find the evidence proves the essential elements of the three offences charged beyond a reasonable doubt. And I am satisfied the Crown has proven, beyond a reasonable doubt, that the accused was not acting in self-defence.

45I, therefore, find Mr. Barreto guilty of assault causing bodily harm, robbery and unlawful confinement.

Footnotes

1. 1Defence counsel submitted that the ashes should have been wet, given the complainant claimed beer and water were poured on him as well. I cannot discern from the photographs whether they are wet or not. In either case, the photos were taken many hours after the events in the tub and I would not expect moisture to be apparent at that time.