Notice of Non-Publication and Non-Broadcast Order
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Case Information
DATE: 2025-01-16
Location: Toronto
Court: Ontario Court of Justice
BETWEEN:
HIS MAJESTY THE KING
— AND —
LUIS TRINDADE PEREIRA
Before Justice Mara Greene
Reasons for Judgment released January 16, 2025
Counsel:
K. Kirec and A. Dimiskovski — For the Crown
J. Dos Santos — For Mr. Trindade Pereira
Background and Charges
1Mr. Trindade Pereira is charged with three different sets of offences. The first set alleges a host of offences from October 15, 2022 until November 22, 2022. They include an assault with a weapon, two sexual assaults, uttering threats, and breaching an undertaking.
2The second set of charges allege that in March 2023, Mr. Trindade Pereira breached his release order by contacting M.G. both on March 13 and 19, 2023. It is further alleged that on March 13 and February 10, 2023, Mr. Trindade Pereira attempted to obstruct justice and attempted to intimidate M.G. to drop the charges against him.
3The final set of charges allege that on November 19, 2022, Mr. Trindade Pereira assaulted M.G., uttered a threat to her, and uttered a threat to her son, S.G.
4It is agreed by all parties that M.G. and Mr. Trindade Pereira were involved in a romantic relationship in 2022 for a short period of time. M.G. alleged that during this time, Mr. Trindade Pereira assaulted and sexually assaulted her culminating in the relationship ending on November 19, 2022, when M.G. went to police. At that time, M.G. reported the allegations of assault and uttering threats from November 19, 2022. M.G. alleged that after this date, despite being charged and ordered to have no contact with her, Mr. Trindade Pereira continued to contact her and threaten her and her family. M.G. went to police again and reported the contact and threats. She also reported the alleged sexual assaults from November 12 and 19, 2022. M.G. alleged that after his arrest on these new charges, Mr. Trindade Pereira continued to contact her and tried to coerce her to drop the criminal charges. Mr. Trindade Pereira testified at trial and denied all of the offences. At the end of the trial, Crown counsel invited me to find Mr. Trindade Pereira not guilty of the sexual assault from November 19, 2022 and the breach of a release order from March 19, 2023. I will nonetheless review the evidence as it relates to these two allegations because, in my view, it is relevant to my overall assessment of the issues in this case.
5On December 2, 2024, I advised Mr. Trindade Pereira that he was not guilty of all charges. I indicated that my reasons would follow. These are my reasons.
Summary of the Evidence
6Mr. Trindade Pereira and M.G. met through an online site. In October 2022 the relationship turned romantic. It ended one month later.
7According to M.G., after their first week together, Mr. Trindade Pereira started to become aggressive with her. M.G. described Mr. Trindade Pereira as someone who was always drunk and on drugs. She further testified that he liked to have sex in a rough manner and that he derived pleasure from burning cigarettes onto her breasts and having sex without her consent.
(i) The allegations from November 12, 2022
8M.G. testified that by November 12, 2022, she had already advised Mr. Trindade Pereira that she did not want to continue their relationship. Nonetheless, Mr. Trindade Pereira called her and stated that he needed to speak to her. M.G. only agreed to meet him because he threatened to hurt her children if she did not meet him.
9M.G. went to Mr. Trindade Pereira’s residence. He confronted her about the breakup. He then removed both his and M.G.’s clothing and proceeded to sexually assault M.G. She told him no, but he ignored this and forced vaginal sexual intercourse without a condom. During this sexual assault he also burned her breast with a lit cigarette. M.G. testified that she still has scars from the burns. According to M.G., after the sexual assault, Mr. Trindade Pereira told her not to tell anyone what took place or he would hurt her children.
10Mr. Trindade Pereira denied sexually assaulting M.G. on this date. According to Mr. Trindade Pereira they were still dating at this point in time and in fact, M.G. sent him a text that morning stating, “good morning love”. This text was made an exhibit at trial.
11Mr. Trindade Pereira testified that he and M.G. had consensual sexual relations on November 12. At the end of the night, he paid for a taxi for M.G. to return home. Later that night/early morning, they sent loving text messages to each other. These text messages were also made exhibits at trial.
12M.G. admitted to sending some of the text messages but testified that she was forced to send them and that they did not accurately reflect her feelings towards Mr. Trindade Pereira. M.G. denied sending all the texts; she testified that Mr. Trindade Pereira used her Facebook to text message himself pretending to be her.
(ii) The allegations from November 19, 2022
13M.G. testified that on November 19, Mr. Trindade Pereira sent her a text message asking her to buy food and to attend his place for dinner. M.G. followed his instructions out of fear for her son’s safety.
14Upon arriving at the residence, M.G. testified that Mr. Trindade Pereira forced her to have dinner with him and his roommate. After dinner, M.G.’s daughter and son-in-law came over for a short visit. According to M.G., once her daughter left, Mr. Trindade Pereira ripped off her stockings and forced her into his bedroom. Once in the bedroom, she tried to call her daughter on her cell phone, but Mr. Trindade Pereira took it away and hit M.G. in the face with the cell phone. He then locked the door, threatened to kill her and sexually assaulted her. The sexual assault included forced anal and vaginal intercourse.
15After the sexual assault, M.G. wanted to leave but Mr. Trindade Pereira would not let her. She finally called a friend and asked that friend to call police. According to M.G., Mr. Trindade Pereira then threatened to kill her. He then went to grab a knife; while doing so, M.G. telephoned her daughter and asked her to pick M.G. up because she thought Mr. Trindade Pereira was going to kill her. M.G.’s daughter picked her up and took her home.
16Upon arriving home, M.G. telephoned the police. She told them that Mr. Trindade Pereira assaulted her. She made no mention of a sexual assault. M.G. testified that she did not mention the sexual assault because she was fearful of Mr. Trindade Pereira.
17Mr. Trindade Pereira testified that no sexual assault occurred on November 19, 2022. According to Mr. Trindade Pereira, on this date, M.G. came over and they had dinner with his roommate. After dinner, M.G.’s daughter and son-in-law came over. When they arrived, Mr. Trindade Pereira offered them a drink and they socialized for approximately an hour. When M.G.’s daughter wanted to leave, Mr. Trindade Pereira walked them to their vehicle and then returned to his residence. Mr. Trindade Pereira found M.G. in his bedroom. She was angry about text messages she had read on Mr. Trindade Pereira’s cellular telephone. Mr. Trindade Pereira told her to leave and suggested she call her daughter to come and pick her up. According to Mr. Trindade Pereira, M.G. threatened to call police on Mr. Trindade Pereira and then left. An hour later, Mr. Trindade Pereira received a message from M.G.’s daughter advising that her mother was calling the police. He was later arrested for assaulting M.G.
18An agreed statement of fact was filed at trial. According to this document, Gilberto Reis, Mr. Trindade Pereira’s roommate, confirmed that M.G., her daughter and son-in-law came over on November 19, 2022. He further confirmed that after her daughter left, M.G. went to Mr. Trindade Pereira’s room, but only remained there for five minutes. He heard Mr. Trindade Pereira state “Who said you could be looking at my phone”. M.G. responded “What are you doing with these women on here”. Mr. Trindade Pereira then told M.G. to call her daughter to pick her up as he did not want M.G. in his apartment. It was agreed by both parties that this evidence confirmed that a sexual assault could not have occurred on November 19, 2022.
(iii) Contact after November 19
19After his arrest, M.G. learned that Mr. Trindade Pereira was released with conditions to have no contact with her. According to M.G., Mr. Trindade Pereira nonetheless contacted her by calling her on the telephone. He was angry that she went to police and threatened that there would be consequences for this to her and her children. Police were called and Mr. Trindade Pereira was arrested again.
20M.G. alleges that throughout 2023, Mr. Trindade Pereira continued to contact her. He even communicated with her on Facebook while he was in custody.
21Mr. Trindade Pereira denied any contact with M.G. after his arrest on November 19, 2022.
General Legal Principles
22The starting point in understanding any decision in a criminal court is understanding the burden of proof. The burden lies on the Crown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Trindade Pereira is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.
23The issues in the case at bar are directly linked to the credibility and reliability of the witnesses at trial.
24Before I engage in assessing the evidence, a few comments must be made about the fact-finding process. In Canadian criminal law, there is a clear process for addressing evidence where the defendant testifies. The court must consider whether she believes the defendant’s evidence. If the court does not believe the defendant, she must go on to consider whether the defendant’s evidence leaves her with a reasonable doubt about the commission of the offence. Where there are competing versions of events the court is not permitted to merely decide which version of events the court likes better. In assessing whether or not to accept the defendant’s evidence the court must consider all the evidence, including the evidence of the complainant. A considered and reasoned acceptance of the complainant’s evidence beyond a reasonable doubt is a sufficient basis to reject the testimony of the defendant. As was stated in R. v. J.J.R.D., 2006 ONCA 747, para 53:
53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. 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.
25While it is open to the court to reject the evidence of the defendant because she believes the complainant, there may be occasions where the court believes both the defendant and the complainant. In such a case, the court will be left in a reasonable doubt.
Analysis
26This case really revolves around the credibility and/or reliability of the witnesses. The only witnesses at trial were Mr. Trindade Pereira and M.G. I also have the text messages between Mr. Trindade Pereira and M.G. and an agreed statement of fact about Mr. Reis’ evidence. Both counsel advised that I can accept Mr. Reis’ evidence as credible and reliable.
27In the case at bar, I fully accept Mr. Trindade Pereira’s evidence. He was an honest, credible and reliable witness. There were no meaningful inconsistencies in his evidence, and I have no basis to reject his testimony. I completely believe him. Moreover, his evidence as it relates to November 19, 2022 is corroborated by Mr. Reis. This alone is sufficient to raise a reasonable doubt on all charges. I will nonetheless address M.G.’s evidence.
28In my view, M.G. was not a credible witness and I reject her evidence in its entirety. I reach this conclusion for a number of reasons. Firstly, her evidence is contradicted by independent evidence that even the Crown agrees I should accept. Secondly, the text messages sent by M.G. to Mr. Trindade Pereira are inconsistent with her evidence about her feelings towards Mr. Trindade Pereira. In my view, M.G.’s explanations for this inconsistency were inconsistent and non-sensical. Thirdly, M.G.’s evidence was inconsistent in other key evidence that in my view goes to the heart of her allegations.
29In relation to my first reason for rejecting M.G.’s evidence – the presence of evidence that directly contradicts M.G.’s evidence – this relates to the evidence of Mr. Reis. According to Mr. Reis, on November 19, 2022 M.G. left shortly after her daughter left, making it impossible for the protracted sexual assault as described by M.G. to have occurred. Crown counsel agreed that Mr. Reis’ evidence, filed as an agreed statement of fact, should be believed and therefore invited me to find Mr. Trindade Pereira not guilty of this offence. Crown counsel argued, however, that this should not lead me to conclude that M.G. was untruthful about the event. Instead, she argued that M.G. could have been mistaken about the date. She argued this was a reliability issue as opposed to a credibility issue. Respectfully, I disagree.
30November 19, 2022 was not some insignificant date in the midst of a lengthy relationship. November 19, 2022 was the first time M.G. telephoned the police. It was the day that Mr. Trindade Pereira was arrested and the last time that M.G. was actually at Mr. Trindade Pereira’s residence. Moreover, during the course of their short relationship, M.G. had only been at Mr. Trindade Pereira’s residence on three occasions and it was the only time that her daughter and son-in-law came over to his residence. It is inconceivable given these factors that M.G. could have been mistaken about the date and that this sexual assault did occur, but on a different date. The only reasonable inference is that M.G. was not truthful about this allegation. In my view, having found M.G. was not truthful about this allegation, it clouds the entirety of her evidence. If M.G. could lie about this, I am unable to be satisfied that the rest of her evidence is truthful.
31Furthermore, M.G. denied that she was jealous about Mr. Trindade Pereira being with other women and denied making any statement to that effect. Yet, according to Mr. Reis’ evidence, on November 19, M.G. made specific comments about Mr. Trindade Pereira and other women that can only be viewed as an expression of jealousy. Crown counsel conceded that Mr. Reis’ evidence on this point should be believed.
32The next frailty relates to the text messages M.G. sent to Mr. Trindade Pereira from November 12 until November 19, 2022. In my view, the text messages and M.G.’s evidence about the text messages further establish that M.G. was not truthful with this court.
33The text messages filed at court start on November 12, 2022 and go until November 19. In these text messages, M.G. expressed her love for Mr. Trindade Pereira at times and at other times expresses jealousy and anger due to his inattentiveness to her and attention to other women. M.G. was cross-examined extensively about these text messages as they directly contradict her evidence that from very early on she wanted to end the relationship, but Mr. Trindade Pereira would not let her. M.G.’s initial explanation for these text messages was that Mr. Trindade Pereira forced her to write them. When it was pointed out that he was not with her when she wrote the messages, M.G. testified that he telephoned and threatened her to write these messages. This included not just the love messages, but also her jealous text messages. M.G. went on to testify that some of the text messages were actually written by Mr. Trindade Pereira. He commandeered her Facebook and sent the messages himself, sometimes while in the same room with M.G. At other points in her evidence, M.G. testified that she would be in the same room with Mr. Trindade Pereira, and he would dictate to her what text messages to send to him. In my view, these explanations are inconsistent with each other and defy common sense. I will point out a few particularly problematic posts and explanations.
34The first issue relates to the evolution of M.G.’s evidence during the course of cross-examination explaining the text messages. M.G. originally testified that she had no contact with Mr. Trindade Pereira between the 12th and 19th of November. This is directly contradicted by the text messages filed at trial. When first confronted about the text messages, M.G. was evasive in her responses and presented as not wanting to explain the texts. When pressed further, M.G. testified that she was forced to write the text messages. When she was reminded that Mr. Trindade Pereira could not possibly have been in her presence when some of the texts were written (for example the “Good morning love” text from November at 7:17 am and the “I love you” text from November 13, a short time after the alleged sexual assault), M.G. testified that Mr. Trindade Pereira telephoned her first and told her she had to send the text messages.
35Many of the text messages M.G. sent to Mr. Trindade Pereira expressed her jealousy and anger at Mr. Trindade Pereira for either being with other women or ignoring M.G. Again, M.G. testified that Mr. Trindade Pereira forced her to write these messages and at times even took over her Facebook account and sent the messages himself. This makes no sense at all. These texts were not protestations of love. These messages are expressions of M.G.’s jealousy and her anger at Mr. Trindade Pereira for being with other women. It makes no sense at all that he would force M.G. to write out these texts. In my view, the texts accurately reflect M.G.’s state of mind at the time — that she was jealous.
36Another series of text messages that are inconsistent with M.G.’s overall evidence relates to a series of texts from November 13, 2022. The relevant series starts with Mr. Trindade Pereira writing that this is his last message for the night. M.G. responded questioning whether Mr. Trindade Pereira was breaking up with her. At trial M.G. testified that she was happy they were breaking up. Yet, when Mr. Trindade Pereira did not respond to this text, M.G. wrote “answer me”. If she wanted them to break up, why was she demanding a response? Mr. Trindade Pereira finally responded stating that he was not breaking up with her, he just meant that it was his last text for the night. M.G. responded with “I love you”. In my view, these text messages contradict M.G.’s assertion that she was happy they were breaking up. The only reasonable inference to be drawn from these messages is that M.G. misunderstood Mr. Trindade Pereira’s original text and thought he was breaking up with her. This upset her and when she realized the error and that he was not ending the relationship, M.G. was relieved.
37The final issue with M.G.’s testimony relates to the inconsistencies in her evidence. I am mindful that witnesses are often inconsistent. Not because they are being untruthful, but because memories fade with time. There was one inconsistency, in my view, that cannot reasonably be attributed to memory issues and is another example of M.G. not being truthful with the court.
38M.G. originally testified that her daughter came over to Mr. Trindade Pereira’s residence on November 19, 2022 because she knew that Mr. Trindade Pereira was aggressive. The essence of this was that her daughter was there for a protective purpose which if true bolstered M.G.’s evidence. However, later in her evidence, M.G. testified that her daughter came over on November 19, 2022 because she wanted to meet Mr. Trindade Pereira. M.G. also testified, however, that her daughter and son-in-law had already met Mr. Trindade Pereira, liked him and came over to visit with him. When pressed on this at one point during her evidence, M.G. denied that her daughter had met Mr. Trindade Pereira before. When the inconsistency was pointed out, M.G. testified they had met in “photos”.
39At trial, when asked about why she did not leave with her daughter and son-in-law on November 19, 2022 given her fear of Mr. Trindade Pereira, M.G. testified that she could not because Mr. Trindade Pereira had a weapon in his backyard. Despite the numerous statements M.G. made to police, she had never mentioned this weapon before.
40In my view, M.G. was not a credible witness and I do not accept her evidence. Moreover, I do accept Mr. Trindade Pereira’s evidence in its entirety. As such, the Crown has not proven any of the offences before the court beyond a reasonable doubt and I find Mr. Trindade Pereira not guilty of all counts.
Released January 16, 2025
Justice Mara Greene