Court of Appeal for Ontario

Date: 2019-11-05 Docket: C61045

Judges: Benotto, Brown and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Ronny Munoz-Hernandez Appellant

Counsel

Amy J. Ohler, for the appellant

Gavin MacDonald, for the respondent

Heard

October 29, 2019

On Appeal

On appeal from the conviction entered on January 14, 2015 by Justice Nola E. Garton of the Superior Court of Justice, with reasons reported at 2015 ONSC 243.

Reasons for Decision

Introduction

[1] Ronny Munoz-Hernandez – charged with second degree murder in the tragic death of Adriel Garcia, Jessica DaSilva's five-and-a-half-month-old son – appeals his conviction of the included offence of manslaughter. His sole ground of appeal is that the trial judge erred by applying uneven scrutiny to the Crown and defence evidence.

[2] Uneven scrutiny is a notoriously difficult ground of appeal, often amounting in substance to an invitation to retry the case. That is the case here, and the appeal must therefore fail.

Factual Background

[3] Mr. Munoz-Hernandez does not dispute that young Adriel died as the result of intentionally applied, significant force that caused a massive, fatal brain injury. Nor does he contest that on September 12, 2010, when the boy was brought, comatose, to the hospital, his body was covered in extensive bruising caused by the intentional application of force.

[4] Only two people, Mr. Munoz-Hernandez and Ms. DaSilva, had the opportunity to cause the fatal injury: Mr. Munoz-Hernandez, while babysitting the child when Ms. DaSilva was at a wedding; and Ms. DaSilva, upon returning from the wedding at 3:00 a.m.

[5] Both Mr. Munoz-Hernandez and Ms. DaSilva testified. Mr. Munoz-Hernandez accepts that given the significant difficulties with his own evidence, the trial judge was entitled to disbelieve it beyond a reasonable doubt. His appeal centres on the trial judge's decision to accept the heart of Ms. DaSilva's testimony beyond a reasonable doubt.

The Appellant's Uneven Scrutiny Arguments

[6] There were numerous inconsistencies in Ms. DaSilva's testimony: in the hours leading up to Adriel's death, Ms. DaSilva told a cavalcade of lies to friends and family about who was caring for him; she misled the court when narrating her life after Adriel was born; she lied under oath at the hospital to the police by offering an elaborate, false story about "Clara", a fictitious baby-sitter whom Ms. DaSilva said had care of Adriel until the morning he was taken to the hospital; and she failed to remember large swaths of the narrative surrounding Adriel's death. Mr. Munoz-Hernandez argues that the trial judge downplayed the grave problems with her evidence and failed to explain why these infirmities did not undercut her credibility and reliability generally. He contends that the decision to credit Ms. DaSilva resulted from uneven scrutiny in the following ways.

[7] First, some of the specific uneven scrutiny submissions revolve around the trial judge's keystone finding that Mr. Munoz-Hernandez had volunteered to babysit Adriel while Ms. DaSilva was at the wedding. This issue took on importance because Mr. Munoz-Hernandez claimed that he did not volunteer to watch Adriel. Rather, Ms. DaSilva foisted Adriel on him against his will because she was afraid that a babysitter would see the bruises she had inflicted on the child. Specifically, Mr. Munoz-Hernandez contends that the trial judge acted unevenly in coming to this conclusion by:

• Using Mr. Munoz-Hernandez's minimization of his relationship with Ms. DaSilva and Adriel as a discreditable attempt to create doubt about whether he would volunteer to care for Adriel, while disregarding Ms. DaSilva's minimization of her relationship with him; and

• Ignoring evidence that supported the credibility of his denial of volunteering to babysit, including: (1) his care-giving history, and (2) his apparent disinterest in Adriel as shown by repeatedly leaving Adriel alone when babysitting. The trial judge instead used this finding of disinterest as support for Mr. Munoz-Hernandez's animus against Adriel.

[8] Second, Mr. Munoz-Hernandez has further concern with the trial judge's animus finding. He claims that the trial judge disregarded Ms. DaSilva's "demonstrated indifference" toward Adriel, as well as a comment she made about his crying, while using similar evidence as proof of animus on the part of Mr. Munoz-Hernandez.

[9] Third, he argues that the trial judge treated Ms. DaSilva's evidence that Mr. Munoz-Hernandez was not prone to becoming frustrated with the baby as a demonstration of her honesty, but Mr. Munoz-Hernandez was not credited for the positive comments he made about her parenting. Instead, any negative comments he made about her parenting were treated as evidence of his eagerness to criticize Ms. DaSilva.

[10] Fourth, the trial judge found that Mr. Munoz-Hernandez told Ms. DaSilva to lie about "Clara" because he stood to benefit from the story, while failing to recognize that Ms. DaSilva also stood to gain from the creation of a third-party suspect.

[11] Finally, the trial judge speculated needlessly about how Mr. Munoz-Hernandez could have been responsible for the wet spot on the comatose child's clothing and could have dragged the playpen back into the bedroom after Adriel was found unconscious, when the playpen was beside the inflatable bed in the living room.

Court of Appeal's Analysis

[12] We do not accept that the trial judge applied different standards in assessing the evidence of the appellant and the complainant. In the following analysis, we choose not to track the precise order of issues just presented. Doing so would create unnecessary overlap. We will therefore begin by addressing the general submission that the trial judge downplayed or failed to explain why the concerns with Ms. DaSilva's testimony did not create a reasonable doubt, and then we will address, as convenient, each of the specific objections taken to the trial judge's reasoning.

Treatment of Ms. DaSilva's Evidence

[13] We reject the submission that the trial judge downplayed the concerns with Ms. DaSilva's evidence. The trial judge recognized repeatedly that Ms. DaSilva lied to friends and family about Adriel's care, gave a false account of her life after Adriel was born, lied to the police about Clara, and that much of her evidence was unreliable. Moreover, she admonished herself more than once that Ms. DaSilva's evidence "must be examined very carefully and with great caution."

[14] Nor were the frailties in Ms. DaSilva's evidence disregarded. The trial judge openly identified the weaknesses with Ms. DaSilva's testimony that Mr. Munoz-Hernandez relies upon. More importantly, having appropriately cautioned herself, the trial judge did not simply take Ms. DaSilva at her word. She accepted Ms. DaSilva's innocent account because it fit the evidence, unlike Mr. Munoz-Hernandez's account.

Implausibility of Ms. DaSilva's Guilt

[15] There was no evidence that Adriel had ever shown bruising or injury before, despite having been in Ms. DaSilva's primary care for his entire life. There was evidence that Adriel did not have bruising the day before the wedding. It was implausible that Ms. DaSilva would suddenly begin striking and bruising him in the hours leading up to the wedding, or that after an enjoyable time at the wedding she would come home and forcefully abuse Adriel because she had exchanged words with Mr. Munoz-Hernandez. The trial judge was entitled to find that if such an assault occurred, it is most unlikely that Mr. Munoz-Hernandez would have slept through it, yet he offered no evidence of hearing any such attack. In these circumstances, the foundation for the theory that Ms. DaSilva inflicted the injury was weak.

Evidence of Animus

[16] In contrast, the trial judge was entitled to accept evidence that Mr. Munoz-Hernandez exhibited animus towards Adriel when Adriel was in his care, by telling a friend that Adriel was a "cry baby" and bragging that, for this reason, he had put hot sauce on Adriel's lips, and put him in the fridge and a cold bath.

[17] The trial judge found that the indifference Mr. Munoz-Hernandez showed to Adriel's welfare by leaving him alone in the apartment on three separate occasions when he was supposed to be watching him supported her animus finding. This finding did not demonstrate uneven scrutiny. Unlike the indifference Ms. DaSilva may have shown in Adriel's caregiving on other occasions, Mr. Munoz-Hernandez's indifference had specific relevance. It was exhibited when Adriel was in his care, during the time period in which the fatal head injuries could have been inflicted.

[18] Moreover, this demonstrated indifference was not consistent with Mr. Munoz-Hernandez's innocent claim that he put the playpen next to the bed because he wanted to be near the child as he slept. The trial judge was entitled to find that his decision to move the playpen and put Adriel next to him was more logically explained by Mr. Munoz-Hernandez's concern that, even before Ms. DaSilva returned home, the child was in trouble, showing the symptoms of distress that a brain-injured child would exhibit. Mr. Munoz-Hernandez now had reason to be worried about Adriel.

[19] This inference was bolstered by the observations of the child's condition by Mr. Munoz-Hernandez's friend, Jhon Molina, shortly before Ms. DaSilva returned, and by Mr. Molina's testimony about Mr. Munoz-Hernandez's attempts at nursing the distressed child. Simply put, Ms. DaSilva's indifference did not warrant the attention in the trial judge's decision that Mr. Munoz-Hernandez's disinterest did.

Relationship Evidence

[20] Nor is it surprising that the trial judge focused on Mr. Munoz-Hernandez's lukewarm description of his relationship with Ms. DaSilva and Adriel, but not on Ms. DaSilva's lukewarm description of her relationship with him. His account took on specific relevance in the light of his testimony, but her relationship evidence was and remained an unimportant aside.

[21] Mr. Munoz-Hernandez's contradicted description of his relationship with Ms. DaSilva took on importance because he claimed that Ms. DaSilva forced him to take Adriel out of fear that another babysitter would see the bruises she had left. If he admitted to a close relationship with Ms. DaSilva, it made Ms. DaSilva's alternative version, that Mr. Munoz-Hernandez had in fact volunteered to watch Adriel, more plausible.

[22] There was other contradictory evidence that exposed his account as false, thereby reinforcing the trial judge's conclusion that Mr. Munoz-Hernandez's relationship evidence was part of his effort at deception. First, the day before the wedding, Ms. DaSilva showed no fear in letting her second cousin, Ashley Martins, see a happy and healthy Adriel. Ashley observed no bruising. Second, Mr. Munoz-Hernandez's own account of the relevant event discredited his claim that Ms. DaSilva left Adriel with him to conceal her own guilt. He described seeing only insignificant bruising when changing Adriel after Ms. DaSilva left, undermining the foundation for his own story. Moreover, Mr. Munoz-Hernandez's version was implausible, as he made no attempt to confront her about bruising, nor did he check if Adriel was really bruised when she first told him. It was in this context that Mr. Munoz-Hernandez's contradicted claim of disinterest in his relationship with Ms. DaSilva and Adriel took on importance. Ms. DaSilva's description of her relationship with Mr. Munoz-Hernandez never took on such significance.

After-the-Fact Conduct

[23] The trial judge's decision to act on the heart of Ms. DaSilva's testimony also received substantial support through Mr. Munoz-Hernandez's after-the-fact conduct.

[24] Specifically, the trial judge was entitled to treat Mr. Munoz-Hernandez's musings about how awful it would be to be put in jail in Canada, made after Adriel became ill, as an expression of concern about his own jeopardy.

[25] Mr. Munoz-Hernandez also left the hospital where Adriel was being attended to, stole his brother's driver's licence, fled to Montreal, assumed a new identity, and remained in hiding for close to a year.

[26] In contrast, after telling the Clara story to the police, Ms. DaSilva asked to be re-interviewed by the police, retracted that story, and disclosed how Mr. Munoz-Hernandez was the babysitter, without suggesting that he was responsible for the injury or attempting to cast suspicion on him.

[27] This latter feature has obvious relevance to Ms. DaSilva's credibility. It carries more significance than the positive things Mr. Munoz-Hernandez said about Ms. DaSilva's parenting, given that Mr. Munoz-Hernandez also provided negative information about her care for Adriel. It was natural and appropriate that the trial judge would give more focus to the positive things Ms. DaSilva said about Mr. Munoz-Hernandez in her decision.

The "Clara" Story

[28] We agree with Mr. Munoz-Hernandez that the lies that Ms. DaSilva told at the hospital about Clara would have benefited not only Mr. Munoz-Hernandez, but also Ms. DaSilva because they both had the opportunity to harm Adriel. The trial judge should not have treated Mr. Munoz-Hernandez as the only one who could benefit from the lie. However, this flaw in the trial judge's reasoning does not signal uneven scrutiny. She gave several reasons for accepting Ms. DaSilva's claim that Mr. Munoz-Hernandez initiated the lie, including that this account is consistent with his statements about being afraid of going to jail; he was not shy about telling Ms. DaSilva what to do; and unlike Mr. Munoz-Hernandez, Ms. DaSilva did not attempt to avoid the police. Indeed, she is the one who retracted the Clara story and did so without attempting to implicate Mr. Munoz-Hernandez, the only other potential suspect. This event supports an inference that it was not Ms. DaSilva who was looking for alternative suspects; it was Mr. Munoz-Hernandez, the one who felt the need to flee.

Speculation About Physical Evidence

[29] We also agree with Mr. Munoz-Hernandez that in order to resolve the case the trial judge did not have to determine how Adriel's shirt became wet when he was comatose, or how the playpen got back into the bedroom. However, the trial judge's passive observations that Mr. Munoz-Hernandez had the opportunity to produce both these outcomes does not indicate an imbalance in evaluating the evidence. Instead, it reflects the trial judge's careful attempt to address all the evidence in the case.

Conclusion

[30] Uneven scrutiny did not occur. The trial judge was entitled to make the credibility findings that she did, and to come to the decision that she did.

[31] The appeal is therefore dismissed.

"M.L. Benotto J.A."

"David Brown J.A."

"David M. Paciocco J.A."