Court File and Parties

Ontario Court of Justice

Date: 2014-03-20

Court File No.: Halton 1365/12

Between:

Her Majesty the Queen

— and —

Marco Pagoada Vallecillo (aka Marco Vallecillo Pagoada)

Before: Justice L.M. Baldwin

Heard on: March 27, 2013, May 24, 2013, June 13, 2013 and June 25, 2013

Reasons for Judgment released on: March 20, 2014

Counsel:

• Tony MacKinnon, for the Crown
• Graham Clark, for the defendant Marco Vallecillo

BALDWIN J.:

Overview

[1] Marco Pagoada Vallecillo is charged with two counts of assaulting Stephanie Berardi on April 25th and April 29th 2012 in Oakville.

[2] The Crown proceeded summarily.

[3] Date, jurisdiction and identification were admitted at the outset of the trial.

KGB Statement dated April 29, 2012

(Trial Exhibits – DVD and Transcript)

[4] On Sunday April 29, 2012 between 12:03 p.m. and 12:40 p.m., Stephanie Berardi was interviewed on video-tape by D/Cst. Ropponen at 20 Division in Oakville.

[5] After advising Ms. Berardi that the video equipment was turned on, and after ensuring that she had the spelling of Ms. Stephanie Berardi's name correctly, D/Cst. Ropponen stated as follows:

"Okay, so as I explained, I'm just going to read this form over to you. If you have any questions let me know and I'll try my best to explain okay? So I'm conducting an electronic interview with you concerning your knowledge and involvement in a domestic assault. Do you understand?

Stephanie Berardi: Yes

D/Cst Ropponen: Okay. This statement will be taken under oath or solemn affirmation and will be electronically recorded. You must understand that it is a criminal offence to mislead a police officer during an investigation. You may be liable to prosecution under section 140 of the Criminal Code of Canada if you mislead a police officer during this investigation. And if convicted, you could be sentenced for up to 5 years in jail. You must also understand that it is a criminal offence to attempt to obstruct justice during a police investigation. And if you do so, you could be prosecuted under section 139 of the Criminal Code of Canada. And if convicted, you could be sentenced up to 10 years in jail. You must further understand that you may be a witness at a trial concerning the events you describe in your statement. If at any time you change your statement or claim not to remember the events, the contents of the statement you now give may be used as evidence at the trial. In such circumstances, you may be liable to prosecution under section 137 of the Criminal Code of Canada. And if convicted, you could be sentenced for up to 14 years in jail. Do you understand the criminal consequences of making a false statement?

Stephanie Berardi: Yes.

D/Cst. Ropponen: Okay. This part I'm going to read out loud to you. If you agree with it, we'll both sign and date it, okay?

Stephanie Berardi: Okay.

D/Cst. Ropponen: So by signing this document – I will read it on your behalf – I acknowledge that I have received the above warning. I also acknowledge that I understand that I am not obligated to give this statement. (I give this statement) of my own free will, voluntarily, without threats or favours being held out to me. Do you understand and agree with that?

Stephanie Berardi: Yes.

D/Cst. Ropponen: Okay. I guess that means that you don't have to give a statement. You're doing it because it's something you want to do and I'm not pressuring you to provide this statement. Do you agree with that?

Stephanie Berardi: Can I know his charges before I give a statement?

D/Cst. Ropponen: I don't know what they are until I talk to you.

Stephanie Berardi: Okay.

D/Cst. Ropponen: Okay? I'll get you to sit right there and I'll get the Commissioner. I'll be right back, okay. Oh that was good." (pp. 3, 4 of video statement)

[6] I observed Ms. Berardi to be calm, quiet and attentive during this part of the statement. There was no hesitancy in her affirmative responses stating that she understood what the officer had read to her and that she was voluntarily giving a statement to the officer.

[7] At 12:07 the Commissioner of Oaths enters the room and Stephanie Berardi swore on the bible to tell the truth in her statement. I observed no hesitancy on Ms. Berardi's part during this process.

[8] The Commissioner of Oaths repeats that lying under oath is a serious criminal offence under the Criminal Code of Canada. Ms. Berardi is asked again if she understands this. Ms. Berardi for a second time replied, "Yes".

[9] At the outset of the interview, Ms. Berardi describes how she met Marco. They have been in a relationship for 7 months. She lives in Woodbridge and he lives in Oakville.

[10] She described the relationship as having its ups and downs and immediately stated that Marco has a three-year-old son with another woman and how she just can't accept this and that this is the cause of their arguments.

"…it's always our arguments. Like he doesn't understand that I have questions and I have feelings towards this and whenever I try to talk to him about it – that's it – he explodes. Whether it's being like verbal or now it's getting to physical, it's just his temper in some way comes out. So today was enough." (p. 8)

[11] Marco's son, Adrian, lives with his mother and Marco has access to his son for the weekend every second week.

[12] Adrian was sitting on the couch and watched what happened today between them.

[13] Ms. Berardi stated that over the last few months things have gotten worse. When they argue, Marco would say "That's it, we're over". She also stated that Marco has a temper which gets worse when he consumes alcohol.

[14] When asked to describe what happened today, Ms. Berardi started by talking about yesterday and how she was not physically feeling well – she's been in two previous car accidents – her back was hurting – she has not been able to sleep – she was PMSing. Adrian was there for the weekend and she told Marco again that she was not okay with him having a son. It was the same argument. He told her to leave and said that was the end of the relationship. She left.

[15] The next morning she returned to Marco's Oakville residence. Marco and Adrian were sitting on a couch in the family room.

[16] She and Marco went into the kitchen and started arguing over the issue of his having a son again.

[17] She stated that Marco was drinking rum and coke. It was just past 10:00 a.m.

[18] He started pushing her and she said, "Don't put your hand on me today because I will call the cops on you today. Boom. Pushes me again to the floor of the kitchen (indicates) strangling me. As he's doing that I (indicates) can't breathe. He's like, 'How does it feel? (Demonstrates). How does it feel? (Demonstrates) (Demonstrates) I hit him in the face and (indicates) his nose started to bleed (indicates) hence the blood on me, k? I got up and ran into his room…" (p. 14)

[19] She was yelling for help but no one else in the house would help her. Two tenants live in the basement. No one responded. "Someone is yelling for help and no one did anything". (p. 14)

[20] She could not find her car keys to leave.

[21] She ran downstairs and started banging on the tenants' doors. They did not come out. Marco followed her down with his son in his arms and she ran back upstairs.

[22] She called her best friend (Melissa Di-Placido from Woodbridge) and asked her to come to the house because she was too upset to drive and she could not find her keys.

[23] Marco came up to her and told her that he had been talking to his ex – his son's mother. To hear him say that was "once again emotionally just killing me". (p. 14)

[24] He told her to get out. She said she did not have her car keys. Marco went into his room and got them for her. She left the house, got into her car and "I called the cops". (p. 15)

[25] At first she called the non-emergency number to ask them what she should do. They put her through to the 911 dispatch.

[26] Marco and one of the tenants in the basement drove away.

[27] "And then the ambulance came and the police came and as I was in the back of the ambulance being (indicates) examined because he choked me, they came back." (p. 15)

[28] In providing more detail, Ms. Berardi stated that Marco started slapping her in the family room in front of Adrian.

[29] She described and demonstrated four "really really hard" open-handed slaps. Then they went into the kitchen where she was pushed and shoved to the floor and choked.

[30] Ms. Berardi stated that she did not understand what was happening at the time. It was like "crazy" to her (p. 17). "I feel like this is a dream and like I wanna wake up". (p.17)

[31] Ms. Berardi repeated that the argument was over her not being a hundred percent on his having a son. She stated that she loves Marco.

[32] During the remainder of this lengthy and detailed interview, Ms. Berardi makes over 50 physical demonstrations of the alleged assaults.

[33] Ms. Berardi stated that she could not breathe when she was pushed to the kitchen floor and choked for approximately 10 seconds. (p. 23)

[34] Ms. Berardi stated that after she ran out of the kitchen, she ran into Marco's bedroom. "Again, he pushes (demonstrates) me down to the floor and once again starts choking me. And I'm like, 'This is not okay – that's it. Like today, I'm gonna call the cops. I'm calling the police'." (p. 26)

[35] Marco let go of her and she ran downstairs and banged on the tenants' door for help. They did not respond – they probably didn't want to get involved – they've never helped. (p. 28)

[36] Ms. Berardi described the earlier incident as happening last week (on Wednesday). (Count #2)

[37] It was over conflicting social plans. "First he starts with the yelling and swearing and the pushing and everything. He ended up basically throwing me down. (He) punched me in the nose. My nose is actually still 'til today is really swollen. I had a black eye from it. Bleeding everywhere." (p. 31)

[38] When Marco was on top of her "I think I scratched his neck." (p. 36)

[39] Marco's brother intervened and Marco got off of her. She ended up leaving. A couple of days later they were back together as a couple again. (p. 31)

[40] Officer Ropponen noticed a little bit of redness on Ms. Berardi's collarbone. Ms. Berardi indicated that it was caused by the incident that day. The officer states that she will have some photographs taken. (Photographs were taken and entered as Exhibits at trial)

[41] Ms. Berardi states that she will provide the police with photographs she took after the Wednesday incident showing redness. (Entered as Exhibits at trial)

[42] The interview ended.

Call to Police and Statements to 911 Dispatcher

[43] On April 29, 2012, between 10:50:33 a.m. and 10:58:48 a.m. Ms. Berardi spoke to a 911 dispatcher with Halton Regional Police: Exhibits #1(a) & (b).

[44] Ms. Berardi requests that police attend at 357 Bronte Road in Oakville and states the problem as follows: "My boyfriend just put his hands on me and I had to like defend myself so he has a cut on his nose. But I'm sitting outside in the car…So I'm not able to drive". (p. 3)

[45] Ms. Berardi declines the need for an ambulance.

[46] She states that Marco choked her, threw her to the floor and slapped her really hard a few times on both sides of her face.

[47] Ms. Berardi stated that Marco had been drinking.

[48] The dispatcher asked her what had started the fight. Ms. Berardi stated that yesterday they had an argument because she told Marco that it's hard for her to understand that he has a son by someone else. She ended up leaving his place. (pp. 5, 6)

[49] Today she returned to his house and the argument continued. He started pushing her and threw her to the floor for no reason. He spat in her face.

[50] "You know and as I'm pushing him off you know what I did hit him there like in the face as he's on top of me. But now it's like oh you know oh I'm bleeding and whatever. Like two weeks ago as well he smashed me in the face like I had a black eye from it. And I haven't done anything but like this is just crazy to me now." (p. 6)

Officer Conrad Bertasson

[51] This officer was dispatched to attend 357 Bronte Road at 10:53 a.m. He arrived on scene at 10:58 a.m.

[52] He located Ms. Berardi standing in the driveway between two cars. She gave him some information about what had happened.

[53] The Officer observed her to be "very very emotional". She was crying. She also had some redness on her neck and chest area.

[54] This Officer was present when Marco returned back to the house with one of his tenants named Steve Arnold. The Officer observed a bit of blood in Marco's nose and maybe some droplets on his shirt.

[55] The Officer detected an odour of alcohol on Marco's breath.

[56] After other officers arrived on scene, Marco was arrested for assault and taken to 20 Division.

Officer Yvonne Jane Martin

[57] Officer Martin has been employed with HRPS for over 24 years.

[58] She attended the scene at 10:58 a.m. and first observed Ms. Berardi standing in the driveway crying.

[59] She and Officer Bertasson entered the residence and checked on the well-being of the three-year-old child. He was in the house with the tenant named Ms. Evans.

[60] Around this same time, Marco returned to the residence. Officer Bertasson spoke with him.

[61] Officer Martin spoke with Steven Arnold and then Ms. Berardi who was with ambulance personnel.

[62] The Officer observed redness to Ms. Berardi's neck and collar bone area. Ms. Berardi was visibly upset and crying.

[63] Officer Martin spoke to Ms. Berardi and obtained grounds for the arrest of Marco Pagoada.

Melissa Di Placido

[64] Melissa has known Stephanie through work for 5 years. They were friends prior to the incident.

[65] Ms. Di Placido is a clinic manager for Physiotherapy rehab clinics in the GTA.

[66] She first met Marco in September of 2011. She was with Stephanie on a plane to Miami when they all first met.

[67] Up until April of 2012, she had seen Marco about a half dozen times in Stephanie's company for social occasions.

[68] Prior to the incident she was good friends with Stephanie and she would see her socially about once a week.

[69] Melissa got a call from Stephanie on April 18, 2012 and then saw her the next day. She observed some swelling in Stephanie's nose and a little bit of bruising under her left eye.

[70] On April 29, 2012, Stephanie called her at 10:30 a.m. and she was "hysterical". She was crying, and could not catch her breath or barely say anything. (Tr. p. 44)

[71] Because of that call, Melissa left her home and drove to Stephanie's location.

[72] When she got to Marco's house the police were already on scene. Stephanie was still hysterical.

[73] Stephanie was yelling and screaming "why are they arresting him?" An Officer approached and asked Melissa to drive Stephanie to the station, which she did. Stephanie was hysterical the whole way to the station.

Summary of the Testimony of Det./Cst. Cassandra Ropponen

[74] Det./Cst. Ropponen has been an officer with the Halton Regional Police since December of 2002.

[75] She was on duty on April 29, 2012 working in the Domestic Violence Unit. She was advised that Ms. Berardi was on her way into the station.

[76] She met Ms. Berardi at the front entrance of 20 Division at 11:58 a.m. At 12:02 p.m. she was in the interview room with Ms. Berardi. At 12:03 p.m. the videotaping began.

[77] In the four to five minutes before the video equipment was turned on, Ms. Berardi said she wanted to give a statement and tell the truth about what happened.

[78] Det./Cst. Ropponen testified that she always makes sure that a victim wants to give a statement before she places them on the video camera. Before the video was started, Officer Ropponen was trying to explain to Ms. Berardi how the interview was going to be conducted.

[79] There was minimal conversation with the complainant before the video started. Ms. Berardi asked if Marco was okay and the Officer, who knew he was at 20 Division, responded that he was okay.

[80] The Officer did not observe Ms. Berardi to be under the influence of drugs or otherwise unable to give a voluntary statement.

[81] Det./Cst. Ropponen testified that Ms. Berardi's condition did not change during the 40 minute interview.

Summary of the Testimony of Stephanie Berardi

[82] Ms. Berardi testified on the KGB Application and on the trial at large.

[83] Her extensive evidence was heard on March 27, 2013, May 24, 2013 and June 13, 2013.

[84] During the course of her evidence, Ms. Berardi testified that she has been in two serious car accidents prior to the events in question. As a result she is in poor health, traumatized and has poor memory. She was on at least seven medications at the time of the incidents in question: Replax, Celebrex, Elavil, Apo-Tizanidine, Lyrica, Novo-gesic Forte, Ratio-Lenoltec #2. (Tr. pp. 94, 95) These medications are for issues relating to nervousness, anxiety, irritability, restlessness and depression.

[85] She adamantly denies the veracity of the statements she made to the 911 dispatcher and to police in her KGB statement. She has written the Crown Attorney's Office on two prior occasions, May 2, 2012 and July 4, 2012, recanting all statements made to the police in this matter.

[86] I conclude that her evidence is highly unreliable as it is riddled with inconsistencies, distorted realities and lacks common sense.

[87] I will provide a number of examples in support of my conclusion. There were others that emerged in her three days on the witness stand.

The Unreasonable and Unresolvable Argument

[88] When she returned to Marco's residence on April 29th, 2012 she continued the argument with him that they were having the night before. The argument was again about him having a son and how she was having trouble accepting that. She was frustrated, furious, crying, yelling and calling names. Marco was calm and was trying to diffuse the situation.

[89] "Q. What happened next?"

[90] "A. I don't remember." (Tr. March 27/13 pp. 55, 56)

[91] This is an example of how Ms. Berardi cannot accept the reality of Marco having a child and being an active parent in his son's life. Ms. Berardi knew from day one of the relationship that Marco had a son, yet she entered into and pursued a relationship in circumstances that she claims she could not accept. This was a highly unstable position she put herself, Marco and Marco's son in. Because she refused to accept reality, she provoked arguments about a situation that could not be changed.

Physical Contact with Marco on April 29, 2012

[92] At one point Marco just sat her down, not hurting her, to try to calm her down and have her relax. She was emotional and having trouble breathing.

[93] She kept yelling at him and saying mean things and "at one point I did actually smack him". She testified she probably smacked his face as Marco was sitting on the couch next to his son.

[94] She could recall no other physical contact between her and Marco before she left the house. (Tr. March 27/13 pp. 59, 60, 61, 62)

Why She Called the Police

[95] When asked how this argument ended Ms. Berardi testified that she called the "non-emergency police line" when she was inside her car parked in Marco's driveway. She was outside because Marco had asked her to leave his residence. (Tr. March 27/13 pp. 57, 58, 59, 60)

[96] Ms. Berardi testified that she only wanted the police to come out and counsel them and to help them resolve the argument.

What She Reported to the 911 Dispatcher

[97] When asked about her reports to the 911 dispatcher, Ms. Berardi testified that "I don't recall it happening. I can't remember how it happens. I can't remember any of that…I just won't remember". (Tr. March 27/13 pp. 64 & 70)

[98] Ms. Berardi testified that she was an emotional "disaster" when she called the police. (Tr. p. 94)

What She Said in her Video-Taped Statement

[99] Ms. Berardi testified that what she said is not what happened. (Tr. p. 74) She did not tell the officer all the things that she did. "…that I wouldn't drop it, that I kept instigating it, that I kept throwing in comments, I threw in the jabs…I want to be clear that Marco didn't just come up to me and get physical with me out of nowhere." (Tr. pp. 74, 75)

[100] When asked if viewing the video-taped statement refreshed her memory in any respect about what happened, Ms. Berardi stated that it did not and she could not remember. (Tr. p. 76)

[101] She does remember arriving at Marco's house on April 29th and "…being a total bitch. Like I would not listen to him. I was just reacting off a lot of emotion and a lot of built up anger I have inside of me for other aspects of my life and it got taken out on him. I know for a fact that if I had gone there that day calmly, or just listened when he was trying to calm me down, none of this would have happened." (Tr. p. 76)

[102] Ms. Berardi testified that she felt she had no choice about giving a statement to the police on video-tape. She stated that she was told that she had to give a statement because she had called the police. She has made a complaint about how the police forced her to give a statement. Ms. Berardi stated that Det./Cst Ropponen told her before the video-tape was turned on that she had to make a statement because she called 911. She stated that she did not call 911 – she called the non-emergency line and they put her through to 911. She wanted the police to come out and "diffuse a disagreement". (Tr. pp. 87, 88, 89, 90, 97). She also stated that Det./Cst. Ropponen threatened her into giving a statement. (Tr. pp 99, 102)

Injuries Sustained by the Accused

[103] Ms. Berardi agreed that she scratched Marco's neck as depicted in a photograph trial Exhibit. She was not sure when she inflicted those injuries. (Tr. pp. 91, 92)

Redness Observed on Ms. Berardi's Neck

[104] Ms. Berardi testified that her neck often gets red when she is nervous and upset. (Tr. May 24, 2013 p. 57)

Defence Evidence

[105] Marco Pagoada Vallecillo testified on his own behalf. He denied all the allegations.

[106] His version of the events was supported by the downstairs tenant, Mr. Steven Andrew Ross Arnold, who was a relatively unbiased witness in this case.

Conclusions – Value of the KGB Statement on the Ultimate Issues

[107] Ms. Berardi's evidence at this trial has compromised all the guarantees of reliability in her statements to the police. Accordingly, I cannot rely upon those statements for the truth of their contents.

[108] There was little to no independent evidence to support the statements made to police with respect to the events of April 25 and 29, 2012.

[109] As noted above, Ms. Berardi's trial evidence is concerning. She is clearly an emotionally weak person and she will flail out at and attack others when she gets frustrated and upset. This reaction appears to have been at play in her calling the police that day. Marco had ended the relationship with her and asked her to leave his house. She could not accept this.

[110] I reject her evidence that she thought the police would come out and counsel them. That is not the job of the police and as a 28-year-old employed woman I find her statements in this regard incredulous.

[111] Ms. Berardi repeated this victim-like then attack-like mode when she accused Det./Cst. Ropponen of forcing her to give a statement. This testimony is rejected as outright fabrication by Ms. Berardi who was once again demanding her way or the highway. For unexplainable reasons, Ms. Berardi claims to have a clear memory of a four-minute unrecorded conversation with this officer, yet she cannot remember anything else despite audio and video recordings.

[112] The police conducted this investigation in a skilful and professional manner.

[113] The KGB statement taken in this case is the Gold Standard with respect to cautions and warnings concerning the legal necessity of telling the truth. No more could have been said or done to ensure that Ms. Berardi understood the importance of this.

[114] The Crown Attorney had a duty to pursue this prosecution given the seriousness of the allegations made under oath to the police.

[115] I find as a fact that Ms. Berardi and Mr. Vallecillo had a toxic relationship and I hope that it will not be resumed for the welfare of both of them and in particular, for the welfare of a little boy named Adrian.

[116] For these reasons findings of not guilty are registered.

Sufficiency of Reasons for Judgment

[117] This trial was originally scheduled to take one day. The matter proceeded over the course of 5 split-up days. Judgment was originally reserved until December 6, 2013. Judgment could not be delivered that day due to the high volume of reserved judgments in the OCJ trial Courts in Halton. During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. The OCJ Judges do not get judgment writing weeks like the SCJ Judges have. In Halton, the fastest growing Region in Canada, judgment time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

[118] This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. Vuradin 2013 SCC 38; R. v. S. (T.), 2012 ONCA 289; R. v. H. (J.M.), 2011 SCC 45; R. v. Drabinsky, 2011 ONCA 107; Decision-makers under new scrutiny: sufficiency of reasons and timely decision-making, David Stratas, Administrative Law Roundtable (C.I.A.J.) May 2010; R. v. Dinardo, 2008 SCC 24; R. v. R.E.M. 2008 SCC 51; R. v. Walker, 2008 SCC 34; R. v. Gagnon, 2006 SCC 17; R. v. Braich, 2002 SCC 27; R. v. Sheppard, 2002 SCC 26.

Released: March 20, 2014

Signed: "Justice L.M. Baldwin"