COURT FILE No.: Toronto

DATE: 2014.01.15

Citation: R. v. Ferreira, 2014 ONCJ 21

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GILBERTO FERREIRA

Before Justice Fergus ODonnell

Heard on 3 July & 27 November, 2013

Reasons for Judgment released on 15 January, 2014

Mr. Paul Alexander................................................................................................ for the Crown

Mr. Paul Marshall............................................................... for the defendant Gilberto Ferreira

ODonnell, J.:

Overview

1. Gilberto Ferreira stands charged of two counts of assaulting his then domestic partner, Maria Lemus on consecutive days in April, 2012. The case for the Crown consisted of Ms. Lemus’s testimony and some photographs of the injuries she attributed to Mr. Ferreira. Mr. Ferreira testified and denied Ms. Lemus’s allegations. Many elements of Mr. Ferreira’s version of events were never put to Ms. Lemus for her comment, in clear violation of the rule in Browne v. Dunn. (1894) 1893 65 (FOREP), 6 R. 67 (HL).

The Evidence

2. Ms. Lemus testified that she and Mr. Ferreira lived together for about eight years. She said the last few years were tough but she stuck it out, hoping for the relationship to improve. They were sleeping apart. She characterized Mr. Ferreira as probably being a good person, but one who did not know what it took to be a good husband. When it came to Mr. Ferreira’s turn, he characterized Ms. Lemus as a hard-headed person.

3. Mr. Ferreira had a Jeep for personal use and a crew-cab truck for his work. Ms. Lemus had a car of her own. Their driveway was a single lane with a broader space by the sidewalk where one vehicle could park without blocking the driveway. Mr. Ferreira testified that until their troubles began each of them parked their personal car behind the house and he parked his construction truck on the front pad. Ms. Lemus traced the immediate conflict to an incident in which her car was parked in such a way that it blocked Mr. Ferreira’s personal car. Ms. Lemus said that she could not find her car keys, so Mr. Ferreira had to take his truck instead of the Jeep when he went out. The conflict began the next day.

4. Ms. Lemus said that Mr. Ferreira changed a lock in one of the rooms in the house where he had some items stored and then went out and started shutting off the house water intake at the municipal shut-off on the sidewalk. She did not suggest any particular trigger for him doing that. She told him to stop, but he refused. She started to take pictures of him with her iPhone and threatened to call the police and show the pictures. He responded by hitting her hand and knocking the phone to the ground. Ms. Lemus said that her hand was swollen for a couple of days.

5. The following day, Ms. Lemus said she woke to find that her car was blocked in by one of Mr. Ferreira’s vehicles. She had a friend take her to work and left her car in the driveway. When she returned home, she found that her car had been dragged ten metres down the driveway, leaving black tire skid marks. She asked him why he had done that and he said he needed to get his vehicle out. He did not have a key to her car.

6. Ms. Lemus then followed Mr. Ferreira to the basement, where he was removing couches. She asked why and he did not answer. She told him to stop because he would damage them. She followed him to the garage, where he said he looked very angry and told her that she did not know what he was capable of. He got angry when he could not find a tool box and then accused her of taking it, which she denied. As she turned away he pulled her from behind and smacked her in the head in the same instant. Her hand was also injured when it hit the garage wall. He then left the garage and the property. She called the police.

7. Ms. Lemus identified photographs that showed an injury to her hand that was consistent with the manner of injury she described (it hitting a rough garage wall) and skid marks on the driveway consistent with a motor vehicle being dragged the length of the driveway. This latter point was agreed by Mr. Ferreira when he testified.

8. Ms. Lemus had a dated criminal record, having received suspended sentences for assault causing bodily harm and failure to comply with a recognizance.

9. Mr. Ferreira also testified. He had met Ms. Lemus in 2003 and they moved in together within about a year. Ms. Lemus and her brother wanted to buy a house together, but since Mr. Ferreira is in business he did not want a property under his name, so he was not going to go in on it. He did help them look for the house and covered a $15,000 shortfall when the time came for closing. Mr. Ferreira said there was an agreement that they would share the mortgage and expenses, but he said that Mr. Lemus’s brother never kept up his end of the bargain so he started carrying the cost of the house instead. Mr. Ferreira set about renovating the house and creating a salon for Ms. Lemus in one of the basement rooms. About a year later, the brother moved out because he couldn’t afford the expenses and agreed, verbally, that Mr. Ferreira could keep his “share” of the house.

10. Closer to the time of these events, Mr. Ferreira testified that the relationship began to sour. Ms. Lemus was not flexible in response to his suggestions about how they should change the ownership of the house to reflect his equitable interest in a more tangible fashion. Ms. Lemus began to spend a lot of time away from the house, leaving him to fend for himself. About six months before these events, he went home to Portugal and did not take her with him, contrary to past practice. When he returned from that trip, he said, he found that she had changed the locks to the house and he had to get the police involved. This was one of a number of details that came out in Mr. Ferreira’s testimony, either in chief or in cross-examination, but that had not been put to Ms. Lemus when she was cross-examined. From that point on, Mr. Ferreira testified that he had stopped paying the mortgage and bills for the house in an effort to get Ms. Lemus to agree to sell the house. Also within the same time frame, Mr. Ferreira testified that Ms. Lemus had changed the lock to the salon in the basement and he did not have a key. The internal water shut-off for the house was in that room and Mr. Ferreira said that Ms. Lemus would from time to time shut off the water supply, denying him the ability to have showers at times and forcing him to go to friends’ houses for that purpose. This was one of the details that was not put to Ms. Lemus in cross-examination.

11. Mr. Ferreira testified that the day he was arrested, he had come home from work and wanted to take a shower before going to visit his grand-daughter, who was in hospital. But Ms. Lemus, he said, had cut off the water and rejected his request that she turn it back on to allow him to clean up before going to the hospital. If Mr. Ferreira’s version is true, it demonstrates the folly of using the workings of a house as a weapon when your partner is a contractor. He said that when Ms. Lemus refused to turn the water back on from the internal valve in her basement salon, he decided that if he couldn’t have water, neither could she and so went to the street shut-off valve outside the house. He shut off the water there as Ms. Lemus filmed him with her mobile phone, he told her she was not allowed to do that and he swatted or tapped the phone but not her directly. Obviously, an assault does not require direct contact.

12. The following morning, Good Friday ironically, Mr. Ferreira said he got up and prepared to go do some work at his shop. Before he left the house, he said, he specifically asked Ms. Lemus to make sure her car was not parked in the single-lane driveway and thus blocking in his personal car, which was parked at the back of the house, where, until recently, both of them had parked their cars allowing each of them unobstructed ingress and egress. Ms. Lemus did not respond. She left. He left for the shop. He returned in mid-afternoon to find her car blocking the driveway. He hooked his work truck up to her car and pulled it forward with a chain, thus allowing him to remove his car from the back of the house. He went in, took a shower, and sat around for a while. Ms. Lemus then came in and started berating him over moving her car

13. Mr. Ferreira testified that he had responded to Ms. Lemus’s comments by going to the hospital to visit his grand-daughter in the hospital again and then went to Mississauga for his nephew’s birthday. He had not moved any furniture and had not struck Ms. Lemus before leaving the house. While he was at the party he got a telephone call saying the police had been looking for him. When he got home Ms. Lemus’s son was waiting for him and the police arrived soon after. He said that he had done nothing wrong. When he had been leaving the house that afternoon, he said that Ms. Lemus had followed him, yelling at him for moving her car and saying that what he had done was not fair. He said that he had not slapped her hand or grabbed her hair as she had alleged.

Has The Crown Proved The Charges Beyond A Reasonable Doubt?

14. Mr. Ferreira is presumed innocent. He has nothing to prove. The burden is on the Crown to prove each charge beyond a reasonable doubt. A criminal trial does not involve any either/or analysis, that is to say it is not limited simply to me determining which version of events is more likely as between Ms. Lemus and Mr. Ferreira. Obviously, if I believe Mr. Ferreira or if his evidence creates a reasonable doubt, he is entitled to an acquittal. Even if I do not believe him or if his evidence does not create a reasonable doubt, the burden remains on the Crown to make out its case beyond a reasonable doubt.

15. Ms. Lemus told her story without any flavour of malice or apparent exaggeration. She was cross-examined at some length over the fact that her statement to the police did not mention the changing of the lock, a detail the relevance of which, at the time of her police statement, escapes me to this day, but she was not faced with the many details of the chronology and history that played such a prominent role in Mr. Ferreira’s characterization of the relationship. As I said at the outset, the failure to confront a witness with such assertions so that she has an opportunity to address them is a palpable breach of the rule in Browne v. Dunn, which leaves the trier of fact with only one side of some parts of the evidence.

16. Ms. Lemus was not materially moved in her cross-examination. It was suggested to her that the injuries to her hand could have been burns from her work as a hair stylist, which she denied. The injuries do not look like burns; they look like scrapes. Her response to this suggestion was entirely believable. The suggestion made to Ms. Lemus in cross-examination that her hair did not look out of place is not supported by the photograph of her taken by the police. In that photograph, Ms. Lemus’s hair is clearly dishevelled and her testimony as to how it would normally look made sense.

17. There is arguably some discrepancy between Ms. Lemus’s description of her work schedule and the details of Mr. Ferreira’s alleged movement of furniture as between her police statement and her testimony. At its highest, this is not a major discrepancy and it may be explained by the fact that English does not appear to be Ms. Lemus’s first language.

18. Mr. Ferreira also testified in a straightforward manner. I do not think that he was materially moved in cross-examination either. He was cross-examined at some length about the imprudence (and by implication the implausibility) of his financial affairs in relation to the ownership and registration of the house he and Ms. Lemus shared. I agree that the relationship was imprudent, but Mr. Ferreira’s answer that people do things like that when they trust one another was a valid response to Mr. Alexander’s scepticism and his explanation for how the arrangement came about and his concerns in relation to property ownership (i.e. keeping him as a contractor judgment-proof and wanting the house transferred out of Ms. Lemus’s brother’s name because his business activities could likewise jeopardize the asset) were logical. To twist Mr. Alexander’s challenge to Mr. Ferreira in cross-examination, despite the fact that the arrangement as described by Mr. Ferreira in some ways made no sense when measured under the microscope of logic and dispassion, it could nonetheless be truthful when measured under the microscope of human foibles.

19. I also disagree with the Crown’s implicit suggestion that Mr. Ferreira’s story of Ms. Lemus changing the lock on the salon and thus depriving him of access to the water shut-off was improbable, given that he was a contractor and she was a hairstylist. The changing of a lock is not a complicated matter; it is likely well within the skill-set of the average hairstylist; it is so straightforward that even some provincial court judges have been known to change locks without adult supervision. Mr. Ferreira’s answer, that he did not unilaterally change the salon lock back to one he could open because he was afraid of being charged by Ms. Lemus was also a logical response, although, again, it did depend somewhat on his portrayal of Ms. Lemus as a bit of an ogre, which in turn was built largely on allegations never put to her in cross-examination by Mr. Marshall.

20. Mr. Alexander also suggested that Mr. Ferreira’s credibility suffered because he referred for most of the trial to Ms. Lemus’s phone as an iPhone but then backtracked from that degree of specificity towards the end of his evidence. I do not believe much hangs on that divergence. I think it is fully explained by Mr. Ferreira’s description of himself as an old-fashioned guy who struck me as probably being less familiar or concerned with the various products of the Apple empire and its competitors than the generations that followed his. I do not believe his divergence was done with intent to evade. As for Mr. Alexander’s suggestion that no lawyer would give advice to three sides of a real estate financing without telling them to get independent legal advice, I wish I could share Mr. Alexander’s abiding and unremitting confidence in the standards of the legal profession, but experience suggests that there may be a few lawyers who might fail to tick all the boxes as Mr. Alexander suggests. I suspect that the Law Society’s discipline files do not match Mr. Alexander’s confidence in the profession as a whole. I do not see that detail of Mr. Ferreira’s evidence as undermining his credibility.

21. The greatest weakness to the defence case, and it was a major shortcoming, is that there were very many details of the relationship chronology that were never put to Ms. Lemus. No explanation was given for this series of significant oversights. It may well be that Mr. Ferreira’s versions of various nuances about the relationship and the chronology leading up to the two alleged assaults are true, but the failure to put those details to Ms. Lemus deprives Ms. Lemus as a complainant of the chance to give her version and me as a fact-finder of the chance to compare apples and apples. At the very least, given the number of details that were not put to Ms. Lemus, this failure to put those propositions to Ms. Lemus justifies me drawing a negative inference about the defence version of events and makes it impossible for me to say with any confidence that I believe Mr. Ferreira’s version of events.

22. The decision of the Supreme Court of Canada in R. v. W.D. sets out a template for how a judge should decide a “he-said, she-said” type of case. The cases that have followed make it clear that it is open to a judge in such a case to make a finding of guilt even where only the two parties have testified, i.e. that a judge can decide to reject a defendant’s evidence based solely on the evidence of the complainant in an appropriate case. In this case, I am of the view that the truth of the relationship likely lies somewhere between Ms. Lemus’s version and Mr. Ferreira’s and that it is more likely than not that the assault in the garage did occur largely as Ms. Lemus said. I think the quality of her evidence and the nature of the objectively visible injury (which did not appear at all to be a burn and which was definitely consistent with hitting a rough wall) combine to make her version more likely true than Mr. Ferreira’s denial, but I cannot say on all the evidence that that charge is made out beyond a reasonable doubt.

23. That brings me to the water shut-off assault. In that case, Mr. Ferreira has admitted tapping at the phone in Ms. Lemus’s hand in order to swat her off because, in his view, she had no right to film him. She, of course, had as much right to film him as any person has to film any other person in a public place, so his use of force was not authorized. Mr. Marshall suggests, however, that the concept of de minimus non curat lex, or “the law does not concern itself with trifling matters”, applies here and that the degree of force used was so minor as not to make out an offence.

24. Despite its long roots in the common law, the de minimus doctrine’s availability and scope in Canadian common law are not well defined. In R. v. Hinchey, 1996 157 (SCC), [1996] 3 S.C.R. 1128, at paragraph 69, L’Heureux-Dube, J., noted of the de minimus principle: “I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below.” In R. v. Murdock, 2003 4306 (ON CA), [2003] O.J. 2470, at paragraph 29, Doherty, J.A., writing for the Court of Appeal for Ontario, described the principle as follows: “The "de minimis" defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest.”

25. The following year, in R. v. Kubassek, 2004 7571 (ON CA), [2004] O.J. 3483, Catzman, J.A. again had occasion to comment on the uncertain state of the de minimus defence in Canadian criminal law. In the result, the Kubassek court determined that, assuming for the purposes of the appeal that de minimus was an available principle for a defendant in a criminal case, Ms. Kubassek’s act, of pushing a minister in the midst of a religious service, causing him to fall backwards and almost trip over a pew, did not fit the standard of triviality historically required. In the course of his reasons, Catzman, J.A. makes the following comments:

19 The principle de minimis non curat lex is of considerable antiquity. The first record of the principle in the law reports is found in Taverner v. Dominum Cromwell (1594), 78 E.R. 601. Over two centuries later, the meaning of the expression was amplified in a case involving the seizure of a British ship for breach of British revenue laws by exporting logwood from Jamaica to the United States, which prohibited its importation: The Reward (1818), 2 Dods. 265, 165 E.R. 1482. In rejecting an invitation by the owners of the ship to reverse its condemnation because of the relative insignificance of the amount of logwood in issue, Sir Walter Scott (later Lord Stowell) said, at 269-270 Dods., 1484 E.R.:

The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim, de minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.

26. It might well be argued that the widespread availability of criminal diversion programmes greatly reduces any need for such a principle, although it is doubtful that the existence of a discretionary programme could ever be a complete answer to the question of whether a principle immunizing a defendant from legal culpability does or does not exist. It might also be argued that the availability of absolute and conditional discharges has changed the criminal law landscape such that there is no need for a concept of de minimus in criminal law, although that argument would blur the line between culpability and penalty.[^1] For the time being, however, there is no clear appellate guidance as to the availability or unavailability of the doctrine of de minimus in Ontario. It seems to me, that while such a doctrine will necessarily be of narrow ambit, it is appropriate that such a doctrine be recognized as a legitimate means of permitting a criminal court, in the words of The Reward, supra, properly to overlook a deviation that was a mere trifle that would weigh little or nothing on the public interest. The criminal law is a blunt instrument and it is consistent with the good repute of the administration of justice that the courts reserve to themselves the right, in appropriate cases, to safeguard a defendant from a criminal finding where the conduct, although technically criminal, is so trifling as to raise no abiding concern. I should also say that I am reinforced in my conclusion that the de minimus principle does exist in Canadian criminal law by my review of the judgment of Duncan, J. in R. v. Juneja [2009] ONCJ 572, in which he not only provides a helpful review of the lower court decisions on the principle (as well as one oblique appellate reference to its existence), but also outlines a philosophy in relation to the reasons for the doctrine to exist that has much to commend it.

27. Even allowing for the adverse inference that should be drawn by the failure to put it to Ms. Lemus, Mr. Ferreira’s tale of his tit-for-tat reaction to the alleged shutting off of the water might well be true, however unflatteringly it may reflect on two people of an age where they should know better. In that context and in the context of a relationship both parties characterized as in terminal decline, I am satisfied that the facts proved beyond a reasonable doubt, i.e. of Mr. Ferreira swatting away Ms. Lemus’s phone and thereby applying indirect force to her is not a matter that should weigh on the public interest.[^2]

Conclusion

28. I think it is more likely than not that Mr. Ferreira caused the injury to Ms. Lemus’s hand in the garage but cannot be satisfied of that conclusion beyond a reasonable doubt. I find Mr. Ferreira not guilty of that charge.

29. On the evidence, it is clear that Mr. Ferreira applied force indirectly to Ms. Lemus through the medium of her phone, which would otherwise make out an assault as defined by the Criminal Code. I am satisfied, however, that the doctrine of de minimus non curat lex exists in Canadian criminal law and properly applies in the circumstances of this case to free Mr. Ferreira from criminal liability and find him not guilty of that charge also.

Released: 15 January, 2014

[^1]: Assuming that Mr. Ferreira, at the age of 57, has no prior or recent criminal record, it seems that an absolute discharge would be a fitting penalty if the iPhone incident makes out an offence. It is inherent in my comments that I am not satisfied beyond a reasonable doubt that Ms. Lemus suffered swelling to her hands for two days as described in her testimony. If I were satisfied of that assertion beyond a reasonable doubt, I would not entertain the de minimus argument.

[^2]: I recognize that what will be tolerated under the de minimus principle might well differ depending on the context, just as the context of Ms. Kubassek’s assault on the pastor was relevant to the availability of the doctrine in that case. In general terms, the potential ambit of the principle in domestic assault cases may diverge from its availability in other contexts.