Court File and Parties

Court File No.: Halton 14-2850 Date: 2015-04-17 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Nelson Cabral

Before: Justice D. A. Harris

Heard on: October 1, 6, 29, 31 & November 19, 2014 and February 11, 20, 2015

Reasons for Judgment released on: April 17, 2015

Counsel:

• Mary Ward, for the Crown
• Brendan Neil, for the defendant Nelson Cabral

Judgment

HARRIS J.:

[1] Nelson Cabral is charged with three counts of assault, all involving his spouse Tara Boehmer.

[2] Crown counsel elected to proceed summarily. Mr. Cabral pled not guilty. We commenced the trial. There were admissions made with respect to identity, dates and jurisdiction.

[3] Ms. Boehmer was called as a witness for the Crown. Ms. Boehmer testified that she did not remember any assaultive behaviour by Mr. Cabral. Crown counsel applied for permission pursuant to section 9(2) of the Canada Evidence Act to cross-examine Ms. Boehmer with respect to a videotaped statement which she had made to the police. Ultimately, I allowed this request.

[4] Crown counsel then applied to admit the contents of that statement into evidence for the proof of its contents. Ultimately, I allowed that application too.

[5] In her statement, Ms. Boehmer said that Mr. Cabral assaulted her on three occasions.

[6] Mr. Cabral testified that he did not assault her at any time.

[7] This case then turns on my findings with respect to the credibility and the reliability of these two witnesses.

Legal Framework

[8] In resolving that issue, I am guided by the Supreme Court of Canada decision in R. v. W. (D).

[9] If I believe the testimony of Mr. Cabral, I must find him not guilty.

[10] Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.

[11] If I do not know whom to believe, it means that I have a reasonable doubt and I must find him not guilty.

[12] Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[13] In determining this, I must keep in mind that Mr. Cabral, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard … falls much closer to absolute certainty than to proof on a balance of probabilities"[^1].

[14] This is a tough standard and it is so tough for very good reason. As Cory J. said in R. v. Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt …… is one of the principal safeguards which seeks to ensure that no innocent person is convicted"[^2].

[15] I did not believe Mr. Cabral. His evidence did not leave me with a reasonable doubt. After considering all of the evidence I am satisfied that the Crown has proven him guilty beyond a reasonable doubt. My reasons for these findings are as follows.

Credibility of the Complainant

[16] I found the video statement by Ms. Boehmer to be very compelling. I base this conclusion on a number of factors.

[17] There was no reason for Ms. Boehmer to fabricate her allegations against Mr. Cabral.

[18] On the contrary, she made it clear that she had every reason to deny that he had done anything wrong. During her viva voce evidence she stated that she wanted a future with Mr. Cabral, that she wanted her family back. Her mother's evidence made it clear that both women believed that this would be impossible if Mr. Cabral was convicted.

[19] During cross-examination, counsel for Mr. Cabral repeatedly suggested to Ms. Boehmer that she had been attempting to make Mr. Cabral pay, that she wanted to get back at him for his cruel comment to her to the effect that he was glad that their unborn child had died. Ms. Boehmer repeatedly rebuffed all of these suggestions.

[20] In that regard, I also note that Ms. Boehmer never called the police or asked for anyone else to do so. It was her mother and her step-father who made the decision that led to Ms. Boehmer being interviewed by Detective Theriault.

[21] The absence of a motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process.[^3] It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for Ms. Boehmer to lie, then she must be telling the truth. Rather, I must assess the credibility and reliability of her evidence in the light of all of the other evidence[^4]. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.[^5]

[22] There was no reason for any memory problem here. The statement to Detective Theriault was made the day following the events complained of with respect to two of the charges and within 15 days of the other charge.

[23] It was only at the trial itself that Ms. Boehmer's memory supposedly failed her. I am satisfied however that this amnesia was the result of her desire to ensure a future relationship with Mr. Cabral.

[24] Ms. Boehmer repeatedly suggested during her viva voce evidence that at the time that she made the statement to Detective Theriault she was "confused", "cranky", "emotional", "very tired" and "a not very nice person". It was a very traumatic time in her life. She had consumed a large vodka and diet Coke drink and half of a bottle of red wine the night before.

[25] None of this was borne out however when I watched the video. There was nothing in the content of her statement or in her demeanour while making it to even suggest that she was experiencing any difficulties as a result of mental or physical distress, or fatigue or impairment by alcohol.

[26] Quite frankly, she appeared more upset and uncertain and confused in court than she did during the interview. Again, I am satisfied that I saw the real Ms. Boehmer in the video. The performance in court was an act intended to save Mr. Cabral and to save their relationship.

[27] Her story came out without prompting. Detective Theriault asked almost no leading questions. Ms. Boehmer provided an uninterrupted narrative, often including considerable detail. She did this in a very matter of fact manner.

[28] She was physically demonstrative in a fashion that was extremely compatible with what she had to say.

[29] She did not overstate her case against Mr. Cabral. On the contrary, she pointed out to Detective Theriault that certain physical marks on her body were caused by Mr. Cabral assaulting her, but that other marks had been caused by something else.

[30] With regard to her demeanour during the interview, I am well aware that a finding of credibility should never be based on demeanour alone.[^6] The credibility and reliability of a witness must be assessed in the light of all of the evidence.[^7]

[31] Finally, Ms. Boehmer never repudiated the video statement during her viva voce evidence even though she was given repeated opportunities to do so. She did not say that these events did not happen. She simply did not recall whether they did or did not happen.

[32] I found that this was as far as Ms. Boehmer was prepared to go to protect Mr. Cabral in court. She was not prepared to lie outright and say that the events had not taken place.

[33] During cross-examination Ms. Boehmer was adamant that she was not lying to Detective Theriault. She appeared to be genuinely taken aback when counsel suggested that she might have been lying "inadvertently" and she responded by asking counsel quite forcefully "what do you mean by that?"

[34] She said that she had been trying to remember things correctly when giving her statement. She did not agree with counsel's suggestion that she had been inaccurate in what she had said to Detective Theriault.

The Allegations

[35] So what did she say during that interview?

First Incident

[36] With respect to the first incident, Ms. Boehmer said that she and Mr. Cabral were arguing over a letter from the Children's Aid Society. She was holding the letter and he tried to grab it from her. He said that it was his mail. She said that it was her letter addressed to her and that she was going to make a copy of it for him. She was at the copy machine when she dropped the letter and bent over to pick it up from the floor. Mr. Cabral grabbed her and pulled her up twice banging her head each time on the underside of the desk.

Second Incident

[37] She alleged that the second assault occurred later that night. She had decided that she was going to take a bath. She became distracted from this and started folding laundry. Mr. Cabral then came up and started running the water for the bath. She questioned him about this. He invited her to join him in the bath and she said "no". She was angry that he had done this.

[38] She waited until he was finished his bath before she brought a glass of wine with her to the bathtub and had a bath of her own. Eventually she got out, put on pyjamas, climbed into bed and began watching a movie.

[39] Mr. Cabral was in the bed with her. He leaned over and grabbed her pyjamas and pulled her towards him. She told him to stop. He ripped her pyjamas. He took her hands. She told him "I'm not fucking you". He pinned her down and was between her legs. She tried to push him off. He took her hands and started striking her on her face with her hands. He called her "a cunt" and "a bitch" as well as other names.

Third Incident

[40] The third assault was actually the first one in time. It occurred two weeks earlier on a "date night". They were going through a difficult time. They had lost a baby to a miscarriage. At some point he told her that he was glad the baby had died and that he would never have another baby with her. She was quite upset and angry with him.

[41] They went for dinner at Milestones restaurant that night. It was by the theatre on Burloak Drive. Afterwards, she did not want to get into the car with him. He pulled up in the car and opened the door. He grabbed her jacket and pulled her into the car. He hit her head. He shook her.

[42] At some point he said to her "stop hurting me … stop hurting me" and he tried to take her hand and make her hit him with it. She never did hit him. She told him he was crazy and pulled back. Ultimately she refused to get into the car and go home with him. Instead, she called her mother and her step-father who came and picked her up at the Tim Horton's at Mainway and Burloak and drove her home.

Credibility of the Accused

[43] As I said earlier, Mr. Cabral testified that he never assaulted Ms. Boehmer on any of these occasions but I did not believe Mr. Cabral. His evidence did not leave me with a reasonable doubt as to his guilt.

[44] His evidence was contradicted by the statement given by Ms. Boehmer.

[45] In addition, his evidence simply made no sense with respect to a number of important points.

[46] According to Mr. Cabral, he and Ms. Boehmer were definitely not getting along the night when they argued about the letter. However, this was simply a verbal argument and not a physical altercation. She did bang her head on the desk but that was an accident and he had not been involved in that. He then succeeded in getting the letter from her. Then, after all that, he simply crumpled the letter up into a ball and threw it into the garbage without reading it. He then left the house and went back to work.

[47] His failure to express any concern for her, like asking "Are you alright?" is inconsistent with the suggestion that this was simply a verbal argument. It is quite consistent with him having deliberately caused her to bump her head on the underside of the desk.

[48] Crumpling the letter up and throwing it into the garbage without reading it is inconsistent with his claim that he genuinely wanted to know what "his" letter said. It was entirely consistent with a very angry man who was more interested in imposing his will on Ms. Boehmer.

[49] Mr. Cabral also testified that despite that argument and the accident and her rejecting his offer to share a bath, Ms. Boehmer began to get physically intimate with him in their bed. He rolled on top of her and then at that point he said to her "I can't believe that you were such a bitch to me all day." Counsel for Mr. Cabral describes this as a distasteful comment made at the wrong time. I found it to be unbelievable. It is inconsistent with someone who was about to quite willingly become physically intimate with his spouse. It was consistent however with someone whose spouse had just told him "I'm not going to fuck you".

[50] I note as well his comments about ripping her pyjamas. During her viva voce evidence, Ms. Boehmer conceded that she and Mr. Cabral were occasionally aggressive in their lovemaking and that pyjamas had been ripped before. She suggested that this might have happened again on this occasion although she had no actual memory of that. In her statement to Detective Theriault she made it clear that Mr. Cabral was attempting to initiate sexual intimacy with her but that she had said "no" both in her words and by her actions.

[51] Mr. Cabral testified that he had ripped her pyjamas that night but that this was a regular occurrence. He had in fact ripped approximately six of her pyjamas or nightgowns in total but that they were only ones from prior relationships. He did not rip night clothes that he and Ms. Boehmer had purchased together. Again, I found this highly detailed evidence to be unbelievable.

[52] He said that he never saw her face clearly that night and did not see any mark on her face. He had not struck her in any way that should have left any such marks. Her mother certainly saw one. So did her step-father certainly despite the fact that he was not a particularly observant person himself that night. The police officers also saw the mark.

[53] He said that Ms. Boehmer did bang her head on the underside of the desk while attempting to retrieve the letter but that she did this to herself.

[54] He said that there was a struggle between them in the bed later but that she had attacked him and that he simply defended himself.

[55] He said that there was a struggle in the car two weeks earlier but that she was trying to get out of a moving car and he was trying to protect her from herself.

[56] He suggested that she fabricated these accusations in order to get even with him for the cruel things that he had said to her.

Conclusion

[57] As I said before, I did not believe Mr. Cabral. His evidence did not leave me with a reasonable doubt. In fact, after taking all of the evidence into account, I am satisfied that the Crown has proven all three assaults beyond a reasonable doubt.

[58] I find Mr. Cabral guilty of all three charges.

Released: April 17, 2015

Signed: "Justice D.A. Harris"

[^1]: R. v. Starr, 2000 SCC 40, at para. 242.

[^2]: R. v. Lifchus, at para. 13.

[^3]: R. v. Jackson, [1995] O.J. No. 2471, at para. 5.

[^4]: R. v. R.W.B., [1993] B.C.J. No. 758, per Rowles J.A. at para. 28; R. v. L.L., 2009 ONCA 413, per Simmons J.A. at para. 44; R. v. O.M., 2014 ONCA 503, per Cronk J.A. at para. 107.

[^5]: R. v. Czibulka, per Rosenberg J.A. at para. 44; R. v. L.L., supra at para. 44; R. v. O.M., supra at para. 107.

[^6]: R. v. Norman, per Finlayson J.A.; R. v. Stewart, per Finlayson J.A. at para. 19; R. v. G.G., per Finlayson J.A. at paras. 14–19; R. v. Gostick, per Finlayson J.A. at paras. 15–17; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, per Doherty J.A. at para. 66.

[^7]: R. v. Stewart, supra at para. 27; R. v. M.G., per Galligan J.A. at para. 23; R. v. Gostick, supra at para. 14.