Court File and Parties

Court File No.: Toronto 1203-13 - Integrated Domestic Violence Court (IDVC)

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Matondo Lutete

Before: Justice J.W. Bovard

Heard: December 13, 2013

Reasons for Judgment Released: January 9, 2014

Counsel:

• C. Faria, for the Crown
• P. Mergler, for the accused Matondo Lutete

BOVARD J.:

Introduction

[1] These are reasons for judgment after the trial of Matondo Lutete on the charge of threatening to kill Wendy Flores on December 14, 2012. The trial took place in Toronto's Integrated Domestic Violence Court (IDVC).

[2] Mr. Lutete and Ms. Flores had a romantic relationship for about two and one half years. They broke up over alleged assault and mischief charges perpetrated against Ms. Flores by Mr. Lutete while Ms. Flores was pregnant with their child. When their son was born he rapidly became the subject of family court litigation.

[3] Ms. Flores wants sole custody of the child with restricted access to Mr. Lutete. Mr. Lutete wants joint custody.

[4] The Office of the Children's Lawyer (OCL) wrote a report that recommends joint custody. Ms. Flores disagrees with the recommendation. Mr. Lutete argues that she made up the allegation that he threatened to kill her because she wants to gain the upper hand in Family Court.

Issues

[5] The sole issue is the credibility of Mr. Lutete and Ms. Flores.

The Evidence

[6] Ms. Flores met Mr. Lutete in 2007. They became romantically involved in 2008. They were together between January 2008 and March 31, 2010, however, they never lived together. On occasion, they fought but she described their relationship as "Okay".

[7] Ms. Flores said that on March 31, 2010 there was an incident in which Mr. Lutete hit her and ripped her jacket. The police charged him with assault and mischief to private property. Ms. Flores and Mr. Lutete agreed to break up after this incident.

[8] On October 23, 2010, their child was born. They no longer had a romantic relationship; they argued and were not friendly, but they were co-parents. Between October 2010 and December 2011, they fought, but she let him see their son. He saw him in the lobby of her apartment and in the park in the summer. The only thing that they talked about was their son.

[9] They disagreed on the type of access that Mr. Lutete could have with the child. Ms. Flores wanted Mr. Lutete to have supervised access and Mr. Lutete wanted unsupervised access. In December 2011, Mr. Lutete filed an Application in Family Court to obtain unsupervised access to his son.

[10] The Court ordered that he have access to his child once a week for two hours at a public park. The Order did not require it, but Ms. Flores stayed close by while he exercised his access. Sometimes this upset Mr. Lutete and sometimes it did not.

[11] After the Court made this order, Ms. Flores and Mr. Lutete continued fighting. He called her stupid and a loser.

[12] In July 2012, they tried to reconcile their differences and resume their relationship. They tried for three weeks, but Ms. Flores decided that it was not working.

[13] After this, the Family Court made a further Order that Mr. Lutete have supervised access at a supervised access centre for two hours every Saturday. Apparently, when the Court made the supervised access order it also ordered that that they not contact each other except through emails and only for the purpose of arranging Mr. Lutete's access to the child. From the time that the Court made this Order to the day of the alleged death threat, nothing untoward happened between them.

[14] On the day in question, Ms. Flores arrived at Mr. Lutete's apartment for his access visit. His door was open and she called out "Hello" about five times, but he did not answer. She started to leave with the child when he called out to them.

[15] She went back to his apartment with the child and told him to get ready to go outside with their son for the visit. He told her angrily that he was going to start Family Court proceedings for unsupervised access at his apartment. She told him to go ahead.

[16] Mr. Lutete started undressing the child and she asked him what he was doing because they were going outside. Mr. Lutete got angry and called her stupid and an idiot. He was very angry. He started dressing the child in a very agitated manner. He put on his jacket and zipped it up.

[17] Then he told her that he was going to kill her and then kill himself. She asked him if that was a treat and he told her that it was. She was scared because their son was there and she was afraid of what might happen to him. She left with the child.

[18] As she walked down the hallway he told her that she would explode like a balloon. She thought that this meant that he was going to do something to her. She thought that he might get a bomb or something. She told him that he would go to jail.

[19] He came up to her very close and hit his palm with his fist. He told her that he would break her. He looked like an animal. Due an incident that occurred in 2010, he always said that if she ever called the police he would do something "really bad" to her.

[20] She told him that she would call the police because she wanted to prevent him from being at her home when she arrived there with the child. She did this because he had done this before after access visits.

[21] She left the area and took the streetcar home with the child. He sent her an email saying "Pray for a miracle." She took this as a threat.

[22] She has not communicated with him since this day. The access visits stopped.

[23] The next time that she saw him was in Family Court on January 3, 2013. During the court hearing she told the judge that Mr. Lutete threatened to kill her. She asked for a Restraining Order. The judge reduced Mr. Lutete's access to one hour a week at a supervised access centre.

[24] Since January 3, 2013, the Court increased Mr. Lutete's access to unsupervised access. Contact between Ms. Flores and Mr. Lutete has been as directed by the Family Court.

[25] Mr. Mergler, defence counsel, questioned Ms. Flores about the incident on March 31, 2010 in which she said that Mr. Lutete hit her and ripped her jacket. He cross-examined her on an Affidavit that she swore on September 23, 2010 concerning that incident. The Affidavit is Exhibit 1.

[26] In her Affidavit, Ms. Flores states that Mr. Lutete "never hit me" and that "He has never ripped my jacket."

[27] She also stated that:

1. She was eight months pregnant and unemployed;

2. They had a "wonderful relationship" and had never had any serious problems, and she loves him very much;

3. Mr. Lutete does not have mental or anger issues;

4. She called the police on March 31, 2010 for assistance in getting her belongings from Mr. Lutete after an argument;

5. Due to the charges that he faced as a result of the incident on March 31, 2010, he was prohibited from contacting her so she has had to deal with her pregnancy on her own. She wanted him to be present for the birth of their child.

6. She wanted full contact with him because she is not afraid of him.

7. She received independent legal advice with respect to the Affidavit and she makes it in support of Mr. Lutete's charges being withdrawn.

[28] She testified that she lied in the Affidavit. She swore the Affidavit because Mr. Lutete asked her to.

[29] The first time that she told anyone about the allegations in the case at bar was during an appearance in Family Court on January 3, 2013 when she told the judge during the hearing. Just prior to this the Office of the Children's Lawyer had written a report in which it recommended joint custody. Mr. Lutete told the OCL that Ms. Flores was a good mother. But she was unhappy and upset by this recommendation. She wanted sole custody. She denied that on the day in question she told Mr. Lutete with regard to the Report that he had "crossed the line".

[30] Regarding the timing of her disclosure of the death threat, she testified that she did not know that she could report a threat to the police. She said that when she went to the police before she had marks on her body. She was not worried that the judge would follow the OCL's recommendation for joint custody. The judge would do what he thought best.

[31] She agreed that her mother paid for a private investigator to clandestinely monitor Mr. Lutete's access visits with his son. This took place on three occasions: August 17, 24, and September 7, 2013. The Reports are exhibits in this trial.

[32] The Reports state that the purpose of the surveillance is for "Child Custody/Access". All of the Reports contain a timed commentary of what Mr. Lutete and his son did during the access visit from the time that he picked him up at the access centre to the time that he returned him there.

[33] Two of the Reports contain pictures of Mr. Lutete and his son doing things that parents normally do with their children. The private investigator did not find anything untoward with regard to Mr. Lutete's behaviour during the access visits. Ms. Flores testified that Mr. Lutete fed their son something that he was allergic to, but there was no evidence to support this, or that if it did happen, that he did it on purpose.

[34] She said that she wanted the surveillance to make sure that Mr. Lutete was obeying the Court's access Order. She commented that the access was taking place in a public place where anything can happen. The child was just learning to speak so she could not depend on him to report back to her.

[35] With regard to the email that Mr. Lutete sent to her saying that she should "Pray for a miracle", she agreed that it could have meant that she would need a miracle to persuade the Family Court to deny him increased access.

[36] With regard to Mr. Lutete's comment that she was going to "explode like a balloon", she agreed that they have had discussions before about her weight and that she told the police in her statement that he said that she was going to "blow up like a balloon." She said that, nonetheless, in the circumstances she took it as a threat.

[37] Mr. Lutete testified that he was hoping for joint custody. He got a copy of the OCL Report in November 2012. There was a meeting between him, Ms. Flores and her lawyer and the OCL in September or October 2012 to discuss the Report.

[38] The first time that he heard the allegation that he threatened to kill Ms. Flores was in Family Court on January 3, 2013. He denied that he threatened to kill her. When she and the child arrived at his apartment on the day in question he was cooking something to eat for his son. Ms. Flores seemed angry and she left. He thought that she was joking. He went after them and they returned to his apartment.

[39] He started to take off the child's clothes because he was going to feed him. Ms. Flores got angry and started to leave and the child cried. He agreed that they were both angry because they differed as to whether to take the child outside or keep him in the apartment.

[40] Ms. Flores was angry at the recommendation of the OCL. She told him that he had "crossed the line". She told him that she was going to get someone to kill him. Previously, in July 2012, she said that she would never be a single mother and that she would just kill him. He did not report this to the police because he did not believe her.

[41] He was upset and angry at her reaction to the OCL recommendations. He wanted her to stop fighting him about their son.

[42] With regard to his email in which he said that Ms. Flores should "Pray for a miracle", he testified that he meant that she would need a miracle to get what she wanted in Family Court.

[43] He stated that he currently has access for two hours. He did not say, but I presume that this is on a weekly basis.

[44] He testified that he did not have anything to do with the Affidavit that Ms. Flores swore. He did not pay for it. However, he agrees that what she states is true.

[45] That was all of the evidence.

The Law

[46] The applicable law in cases where credibility is at issue is stated in D.W. v. The Queen, 63 C.C.C. (3d) 397 @ 409:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[47] In Nadeau v. The Queen, 15 C.C.C. (3d) 499, @501, the Supreme Court of Canada said that, "The accused benefits from any reasonable doubt at the outset…moreover, the jury does not have to choose between two versions [of a set of events]."

[48] In R. v. Nimchuk, 33 C.C.C., (2D) 209, the Ontario Court of Appeal said that, "if reasonable doubt existed in view of conflicting testimony, as to where exactly the truth lay, it would of course, require an acquittal."

[49] As always, the Crown has the onus to prove the charge beyond a reasonable doubt. The defence does not have anything to prove.

Disposition

[50] After considering all of the evidence, the circumstances, the law, and counsel's submissions, and for the following reasons, I find that the Crown did not prove beyond a reasonable doubt that Mr. Lutete threatened to kill Ms. Flores.

[51] The alleged threats are that Mr. Lutete told Ms. Flores that he was going to kill her, that she would explode like a balloon, that he would break her, and that he told her to "pray for a miracle".

[52] I did not find Ms. Flores to be a credible witness.

[53] It is clear that Ms. Flores and Mr. Lutete are locked in a highly contentious Family Court proceeding with regard to custody of and access to their son. Ms. Flores wants sole custody with limited access to Mr. Lutete. She faces a Report from the OCL that recommends joint custody and Mr. Lutete's claim for joint custody. She testified that she disagrees with the OCL's recommendation and that she is upset and angry about it.

[54] Mr. Lutete received the OCL Report in November 2012. There was a meeting between him, Ms. Flores and her lawyer and the OCL in September or October 2012 to discuss the Report. Ms. Flores made the death threat allegations in Family Court two or three months later. She testified that she did not report the incident to the police because she did not know that she could do this.

[55] Ms. Flores reported allegations of domestic violence against Mr. Lutete before so she is familiar with the process. She stated that she reported these incidents because she had marks on her body. She testified that she did not know that in the absence of such marks she could report a threat on her life. This is hard to believe and I do not believe it.

[56] Ms. Flores proved that she has the wherewithal to hire a private investigator to spy on Mr. Lutete's access visits with his son. It is incredible that someone with this degree of sophistication and determination would not realize that she could report a death threat to the police, or at least try to report it.

[57] In addition, by her own admission, Ms. Flores lied under oath when she swore the Affidavit recanting her allegations that Mr. Lutete assaulted her and ripped her jacket. She blamed it on Mr. Lutete, saying that she did it for him because she asked him to, but it was a lie nevertheless.

[58] One might argue that she swore the Affidavit because she was eight months pregnant and she needed him to help her because she was not employed. But she did not say that in the Affidavit, nor did she state this in her testimony when she had the chance.

[59] Her Affidavit states that she needed his help with her pregnancy and that she wanted him to be present for the birth. These can be good reasons for recanting, but the fact remains that the way that she chose to deal with her circumstances was to lie under oath. This damages her credibility in a substantial way; she may be doing the same thing now. Rather than swear a false affidavit, she could have just as easily called the police or the Crown Attorney's office or the office of the Victim/Witness Assistance Program to tell them that she wished to recant.

[60] It is clear that Ms. Flores has a strong resolve to obtain sole custody of her and Mr. Lutete's son and to restrict his access to the child. She admits that she is unhappy, angry and upset at the OCL's recommendation for joint custody.

[61] The timing of her accusation that Mr. Lutete threatened to kill her is quite suspicious. It is not completely clear, but it appears to have occurred on the next Family Court appearance after the OCL Report was released and after the meeting with her, her lawyer, Mr. Lutete and the OCL.

[62] In addition, the fact that she would go to the length of hiring a private investigator to spy on Mr. Lutete's one-hour access visits with his son shows how determined she is to find something that she can use against Mr. Lutete.

[63] Mr. Lutete testified that he did not threaten to kill Ms. Flores. He agreed that he was angry and that they argued over whether to take their son outside for the access visit. This admission bolsters his credibility because it is something that could go against him.

[64] Mr. Lutete's explanation for the "Pray for a miracle" email is plausible and I accept it. He was of the view that he was going to get what the OCL recommended and that she would need a miracle to avoid that.

[65] Lastly, I do not find that his statement that Ms. Flores would blow up like a balloon to be a death threat. Ms. Flores admitted that they have discussed her weight in the past and in her statement to the police she told them that on the day in question he said she was going to "blow up like a balloon." She said that, nonetheless, in the circumstances she took it as a threat. She thought this meant that he might be getting a bomb or something. I find this implausible and fanciful.

[66] With regard to Ms. Flores's evidence that Mr. Lutete pounded his palm with his fist and told her that he would break her, I have a reasonable doubt that he said this because for the reasons stated above, I do not believe her.

[67] All of the circumstances of this case, the evidence that I heard, including Mr. Lutete's testimony and Ms. Flores's resoluteness to obtain sole custody, raise a reasonable doubt in my mind as to the truthfulness of Ms. Flores's evidence that Mr. Lutete threatened to kill her.

[68] Therefore, for all of the above reasons, I find that the Crown did not prove beyond a reasonable doubt that Mr. Lutete threatened to kill Ms. Flores and I find him not guilty.

Released: January 9, 2014

Justice J.W. Bovard