ONTARIO COURT OF JUSTICE

COURT FILE No.: Brampton 3111 998 13 146

DATE: 2014·07·10

Citation: R. v. Castro, 2014 ONCJ 338

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MR. TORBEN CASTRO

Before Justice Patrice F. Band

Heard on February 28 and June 25, 2014

Reasons for Judgment released on July 10, 2014

Ms. C. Sibian ........................................................................................... counsel for the Crown

Mr. H. Ali ............................................................. counsel for the defendant Mr. Torben Castro

BAND J.:

1: INTRODUCTION

[1] Mr. Torben Castro stands charged with three counts of assault and one count of assault with a weapon in relation to a series of incidents said to have taken place on January 6, 2013. The complainant in each instance is his former girlfriend, Ms. Crystal Lamore, who was pregnant with the couple’s child at the time.

[2] It is further alleged that on November 24, 2012, Mr. Castro uttered a threat to kill Ms. Lamore by declaring that intention to Ms. Lamore’s daughter Serenity.

[3] The trial of this matter took place before me over the course of two days: February 28 and June 25, 2014. During that time, I heard from three witnesses. The Crown called Ms. Lamore as its only witness. The Crown also tendered a number of photographs of Ms. Lamore, which were taken at the police station within two days of the alleged assaults. Aside from the photographs, which I discuss below, the Crown’s case depends entirely on Ms. Lamore’s word.

[4] For his part, Mr. Castro’s testified on his own behalf and called upon his brother, Mr. Mislen Castro as well.

[5] Prior to hearing argument, I had the benefit of being able to refer to a transcript of Ms. Lamore’s evidence.

2: RECITATION OF THE EVIDENCE OF MS. LAMORE

Assaults

[6] Prior to January 2013, Ms. Lamore and Mr. Castro had been a couple for approximately 2 years, and had been living together, along with Ms. Lamore’s daughter Serenity, for approximately 6 months.

[7] Leading up to the date of the assault allegations, their relationship was fine, and seemed normal, according to Ms. Lamore. She was 14 weeks pregnant at the time, with a baby that Mr. Castro did not want. Serenity was 6 years old.

[8] The couple went to bed at approximately 1:15 a.m. on January 6, after a normal day and evening during which, according to Ms. Lamore, there was nothing unusual. All was fine.

[9] However, as she was dozing off, she felt Mr. Castro’s hands around her throat. The pressure was not strong and was insufficient to cut off her oxygen. When she opened her eyes, she saw the whites of Mr. Castro’s eyes. He was sitting up and looking at her. After two seconds, he released his grip, just stared her in the face and said nothing. Then, he did the same thing again, only this time with more pressure.

[10] She asked him why he was choking her and he said “I didn’t choke you; go back to sleep.” He then turned over as if to go to sleep.

[11] Feeling uncomfortable, Ms. Lamore took her pillow and went to sleep on the couch in the living room.

[12] She wondered if Mr. Castro had been sleepwalking. Something was not right.

[13] A couple of minutes later, Mr. Castro went to the bathroom and then came to stand by Ms. Lamore’s head near the couch. He told her to come back to the bedroom. She explained that she did not feel comfortable given what he had just done to her.

[14] He said he had not done anything, and to come back to bed. He appeared irritated as if asking “what are you doing out here?”

[15] Then, within seconds, Mr. Castro grabbed Ms. Lamore and very quickly she found herself on the floor with Mr. Castro’s arm around her neck, choking her from behind. This time, the pressure was very strong. She struggled and thrashed, and cried out “stop, the baby the baby, why are you doing this?”

[16] Mr. Castro then pushed Ms. Lamore’s face into the sofa cushion and held it there using her pillow against the back of her head. She was horrified, and had never felt so close to death.

[17] Then, just as suddenly, Mr. Castro released her and she crawled away. Again, she asked him why he had done this and he said “I’m not doing nothing.”

[18] Ms. Lamore then said she was going to get her daughter (Serenity) and that the two were going to leave. Mr. Castro said “No you’re not.”

[19] Ms. Lamore then went to wake up Serenity. Mr. Castro did not follow her into the girl’s room. He went down the hall, closer to the apartment door. Ms. Lamore begged him to let her leave with Serenity. “No, you’re not leaving,” was his reply.

[20