Court File and Parties

Court of Appeal for Ontario Date: 20241004 Docket: COA-23-CR-0719

Tulloch C.J.O., MacPherson and Monahan JJ.A.

Between

His Majesty the King Respondent

and

Claudio Hernandez Barrios Appellant

Counsel: Mark C. Halfyard, for the appellant Étienne Lacombe, for the respondent

Heard: October 2, 2024

On appeal from the conviction entered on December 19, 2022, by Justice Kimberly E. M. Moore of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant, Claudio Hernandez Barrios faced charges for seven offences he allegedly committed against his partner, the complainant Cindy Medina, between December 21 and 28, 2020. At the conclusion of the evidence, the Crown withdrew three charges and proceeded on the remaining four charges – assault, forcible confinement, assault with a weapon (scissors), and criminal harassment by repeatedly communicating with the complainant and causing her to fear for her safety.

[2] After a five-day trial, the appellant was convicted of a single offence – forcible confinement. He appeals the conviction on this offence.

[3] On December 20, 2020, the complainant spent the evening at the appellant’s home. They consumed a lot of alcohol and talked about many things, including their relationship. The complainant testified that she slept on the couch and the appellant slept in his bedroom. The appellant testified that they both slept on the couch and he went to his bedroom in the morning while the complainant was still asleep.

[4] In the morning, the complainant wanted to go home. The appellant did not want her to leave as he wanted to discuss their relationship. Both parties ended up in the appellant’s bedroom. The complainant testified that the appellant pushed her down the hallway into the bedroom while the appellant testified that the complainant walked into the bedroom herself. There was more conversation as the appellant tried to convince the complainant to stay and talk about their relationship. The appellant testified that the complainant hit him in the chest and shoulders and kicked at him as she attempted to get out of the bedroom.

[5] After reviewing the evidence on the forcible confinement charge, the trial judge reached the following conclusion:

As soon as Ms. Medina said she wanted to leave, that is the end of it. He had no right to say, or do, anything to get her to stay. He had no right to block the door, even if he didn’t place a hand on her. He clearly knew she wanted to leave. He clearly knew she was not consenting to stay. He clearly knew that she was very upset. On the evidence before me, it is obvious that what Ms. Medina wanted was completely irrelevant to Mr. Hernandez Barrios. He was not allowing her to leave until he has said what he wanted to say. The moment she said she wanted to leave he should have stepped aside and let her go. I find that Mr. Hernandez Barrios was not going to permit her to go anywhere until he had his chance to say everything that he wanted to. On Mr. Hernandez Barrios’ evidence alone, I find that the Crown has proven the charge of forcible confinement beyond a reasonable doubt.

[6] The appellant contends that the trial judge misapprehended the evidence in reaching this conclusion and, therefore, the conviction should be set aside. He says that he was clear in cross-examination that he was not blocking the door; rather he ended up in or near the doorframe when the interaction occurred, not with any intent to block the complainant’s ability to leave the room. Nor did he block her in fact. Accordingly, there is no rational interpretation on which the trial judge could conclude that on “Mr. Hernandez Barrios’ evidence alone” he was confining her to the bedroom.

[7] We do not accept this submission. A “stringent standard” applies to claims that a trial judge caused a miscarriage of justice by misapprehending the evidence: R. v. Lohrer, 2004 SCC 80, at para. 2. As expressed by LeBel J. in R. v. Sinclair, 2011 SCC 40, at para. 53:

In my opinion, for an appellate court to decide to order a new trial on the basis of a miscarriage of justice resulting from a misapprehension of the evidence, more is needed than an “apparent” mistake (e.g., an error that the trial judge may have committed) in the reasons. A court of appeal should not, in applying the Lohrer test, order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake. When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious.

[8] The appellant cannot meet this stringent standard. During his testimony, the appellant repeatedly asserted that he stood at or in the doorway. On one occasion he said: “After awhile, like I was standing at the door so she just moved forward, tried to push me. I didn’t move. I stayed there, no, we need to talk”. Later the appellant testified that he “wasn’t in the door frame anymore”. Relying on the appellant’s evidence, the trial judge was entitled to find that the offence of forcible confinement was made out.

[9] The appeal is dismissed.

“M. Tulloch C.J.O.” “J.C. MacPherson J.A.” “P.J. Monahan J.A.”