Court File and Parties

Court: Ontario Court of Justice

Date: August 31, 2015

Court File No.: Brampton 13-15491

Between:

Her Majesty the Queen

— AND —

Milton Pacheco

Before: Justice J.W. Bovard

Heard on: November 7, 2014; March 11, June 24, 2015

Reasons for Judgment released on: August 31, 2015

Counsel:

• Mr. M. Morris — counsel for the Crown
• Mr. A. Moeser — counsel for the defendant Milton Pacheco

BOVARD J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Milton Pacheco for assaulting his partner, Kassaundra Da Silva, and threatening to kill her on November 25, 2013.

Issues

[2] The issue is the credibility of the witnesses.

The Evidence

Complainant's Evidence

[3] Ms. Da Silva said that she met Mr. Pacheco in September 2013. They moved in together in October 2013 and lived together until the incident of November 25, 2013. They have one child, Liam. On the day in question they were living with Mr. Pacheco's father. About one week before Ms. Da Silva took a home pregnancy test that showed that she was nine and a half weeks pregnant. Mr. Pacheco was there when she took the test.

[4] On the day of the alleged assault they went to a pre-natal appointment with Ms. Da Silva's doctor. When they got home Ms. Da Silva spoke to her mother on the telephone from the garage about an issue that they were having that had nothing to do with Mr. Pacheco. But Mr. Pacheco thought that he was the issue. They argued about his perception that her family did not like him. He was angry.

[5] After the call, Ms. Da Silva went to the bedroom and called her cousin. She told her cousin that she wanted to go home to her mother's. Mr. Pacheco was in the bedroom and he heard her say this. She sat down on the bed and he pushed her down by the shoulders with both hands, straddled her and grabbed her arms. Then he applied pressure to her neck with one hand. It was painful.

[6] She does not remember how or why but he got off of her. She got up and started packing her things to go back to her mother's. She was too scared to stay in the house. Mr. Pacheco was pacing back and forth in the room and then went to the hallway and paced back and forth there.

[7] Ms. Da Silva went to the closet to get some of her things and he came back into the room. As she was getting her things he slammed the door shut on the fingers of her right hand. Her fingers were caught in the door and she fell to her knees crying and screaming in pain. It was clear that her fingers were bleeding, but she does not know if he noticed. She did not say anything about it.

[8] On November 7, 2014, the first day of her evidence, she said that "Milton" opened the door. She went to the washroom to wash them. Mr. Pacheco went outside of the house. She agreed that this was "probably" an accident.

[9] On March 11, 2015, her second day of Ms. Da Silva's evidence, defence counsel suggested to her that Mr. Pacheco's father was on the same floor of the house when "this" happened. Defence counsel did not specify what he meant by "this". Ms. Da Silva said that she believed that his father was on the same floor, but she disagreed that he witnessed everything that occurred in the bedroom. He arrived after Mr. Pacheco shut the closet door on her fingers. He helped pry the door open and then took her to the bathroom to wash off her fingers. She explained that on the first day of her testimony when she said that "Milton" opened the door she meant Milton Sr., Mr. Pacheco's father.

[10] After she washed her fingers she continued packing. When she finished packing he came back upstairs and told her that if she left he would kill her and the baby.

[11] He went back outside to the porch where his father was. Before she went downstairs she called her mother and told her what happened. Her mother called Ms. Da Silva's uncle and asked him to pick her up. Ms. Da Silva went downstairs and "snuck right past" Mr. Pacheco and his father and got in her uncle's car which was in the driveway. Then they drove away. She told her uncle what happened but she did not report the incident because she was terrified about what Mr. Pacheco might do.

[12] She went to the hospital the same day because she thought that her fingers might be broken. The doctors checked her and determined that they were not but they put a splint on her finger anyway.

[13] On November 28, 2014, three days after the incident, she called Mr. Pacheco and told him to stop calling her family to try to find out where she was. He told her that he was going to court to seek custody of their child. She was very scared of what he might do and decided that she needed to get a "restraining order". The next day she went to the police to report the incident.

[14] Defence counsel suggested to Ms. Da Silva that "the reason you decided to go on the 28th to file a report with the police was because Mr. Pacheco had advised you that if the relationship was over he was going to be seeking custody of your to be born child, would agree with that?"

[15] She replied "Yes, and I also told him that he was still able to see his child".

[16] The court asked her to clarify, "I'm sorry, ma'am (sic), you said yes, does that mean that you agree that the reason you called the police…" Ms. Da Silva interrupted with "no, that's not the reason – that's not the reason why I actually went to the police station. I was – it was because of the fact that he was harassing my family to find out my whereabouts". [1]

[17] In re-examination, she embellished this a bit by saying that she went to the police because "Again, I was pregnant, I was frantic and I was concerned for my own safety, that if he's harassing my family what would he possibly do if I didn't go to the police". [2]

[18] She disagreed that she made these allegations against Mr. Pacheco because she was afraid of losing custody of their future child.

Accused's Evidence Regarding Police Contact

[19] Mr. Pacheco testified that he called her on November 28, 2014 because Ms. Da Silva's aunt had told him that Ms. Da Silva was going to call him in a couple of days, but she had not called. He said that he was going to call Ms. Da Silva's father to find out where she was. He was concerned because she was pregnant with his child.

[20] Two minutes later Ms. Da Silva called him. She called him an "asshole" and yelled at him. She told him that he would be able to see their child when she wanted. He told her that it was not going to be like that. She did not have a job and he had a good job. He told her that he would "go for custody battle". Mr. Pacheco said that she told him to "go f myself and hung up the phone".

Inconsistencies in Complainant's Evidence

[21] Ms. Da Silva agreed that on November 29, 2014 when Officer Jimenez filled out the Domestic Violence Supplementary Report, she told the officer that Mr. Pacheco had been drinking when the incident occurred.

[22] In contrast, when she testified on March 11, 2015, she explained that on the morning of the day in question she and Mr. Pacheco went to a pre-natal doctor's appointment at around 9 a.m. On page 8 of the transcript, lines 4-9, the following exchange took place between the defence and Ms. Da Silva:

Q. Nine o'clock. Okay. Okay, And – okay. So – in the morning Mr. Pacheco was with you, so obviously he wasn't drinking, he wasn't drunk? Anything of…

A. No, not that…

Q. …that nature?

A. …I was aware of.

[23] Ms. Da Silva agreed that what she told Officer Jimenez is different from her testimony. Mr. Pacheco denied drinking that morning.

[24] Defence counsel showed Ms. Da Silva where she told Officer Jimenez that she feared that Mr. Pacheco would seriously injure or kill her or "the children" because he had tried to choke her "in the past". She agreed that in her testimony of March 11, 2014 she told the court that this was the first time that it had ever happened.

[25] In re-examination, she explained these discrepancies by saying that "Honestly this happened so long ago that I just don't necessarily remember. Again, it's just myself being nervous and – yeah". [3]

[26] But she believes that Mr. Pacheco was drinking on the day in question. And she said that he had assaulted her previously. Her explanation for having told the court that it was the first time was "I do not know. I, again, I – it happened a while ago and I'm just – I was nervous".

Videotaped Statement Discrepancies

[27] In a videotaped statement that she gave to another officer she said that Mr. Pacheco pushed her onto the bed by pushing her chest. She qualified this in her testimony of March 11, 2014 by saying that "In the video I had said chest but I had showed exactly whereabouts". [4]

[28] Defence counsel played the videotaped statement in court. Ms. Da Silva agreed that it showed that the officer asked her specifically if Mr. Pacheco pushed her on her shoulders and she said, no. The defence agreed that when she said this Ms. Da Silva "waved [her] hands in front of [her] chest".

[29] Ms. Da Silva said that she pointed "to exactly just below my shoulder, above my chest". She disagreed that her motion started "at [her] chest plate and [extended] out towards [her] shoulders…" [5]

Telephone Calls and Physical Evidence

[30] With regard to the two telephone conversations that she had at their home on the day in question, one to her mother and one to her cousin, she told the court that she had completed both of them prior to the assault occurring. In her videotaped statement she said that she made an additional call to her cousin after the assault.

[31] On November 30, 2014 the police took pictures of her arms. The pictures are exhibits. They show bruising to both of her arms and to her right middle finger.

[32] The defence asked her if she ever had rough sex with Mr. Pacheco. She said that she did not. He would never grab her by the arms.

Rough Sex and Prior Statements

[33] The defence suggested to her that in an interview with the previous Crown, Ms. Emily Beaton, she told Ms. Beaton that an alternative cause of the bruising could have been that she and Mr. Pacheco engaged in rough sex. Ms. Da Silva denied that she said that to Ms. Beaton.

[34] She said that Ms. Beaton told her that Mr. Pacheco "was saying that it was due to rough sex". Mr. Pacheco said that he never spoke to Ms. Beaton. He never spoke to any Crown attorney about his defence.

[35] Counsel agreed to the introduction in evidence of an email that Ms. Beaton sent to the Crown conducting this trial. In the email Ms. Beaton states:

I met with the complainant the morning of the trial to prepare her, and in the course of our discussions about what she could expect while on the witness stand, she made reference to the fact that she and the accused sometimes had rough sex and she was worried that would come up in cross examination. The OIC and the VWAP worker were present for this conversation and I of course shared it with counsel.

[36] Ms. Da Silva agreed that the day before the alleged assault she had an argument with Mr. Pacheco over pictures that he found on her cell phone which suggested to him that she cheated on him.

[37] He had taken her phone from the bedroom and went through it. They were "basically half naked photos" that she sent by email to a man that she was "actually talking to". The Crown asked her "…did they include you"? She said that they did.

[38] Mr. Pacheco went to the bathroom where she was taking a bath and confronted her with the photos. She explained to him that she sent them two years before she met him. He did not believe her.

[39] She did not agree that the anger that they generated in that argument carried over to the next day. She had "Basically got over it". She disagreed that what happened on the day in question was a continuation of their argument over the pictures. However, she agreed in re-examination that on the day of the incident before the court, Mr. Pacheco had not gotten "over the argument" on the day before. He had gone to bed angry.

[40] She disagreed that she made up the assault.

Complainant's Uncle's Evidence

[41] Ms. Da Silva's uncle, Christopher Jewell, testified that Ms. Da Silva's mother called him and asked him to pick up Ms. Da Silva from Mr. Pacheco's home.

[42] When he got to the house he saw Mr. Pacheco and his father on the porch. He got out of his car and was half way between his car and the porch when he asked where Ms. Da Silva was. Mr. Pacheco's father said that she was inside the house. Mr. Pacheco was pacing back and forth with a very aggressive look on his face. He was uttering "Nobody does this to me, nobody does this to me".

[43] Mr. Pacheco's father tried to console him by putting his arm on his shoulder but "his tone to his father was don't touch me, bro". He repeated several times "Don't touch me bro".

[44] Five or six minutes later Ms. Da Silva came out of the house. Nothing was said. She went directly to Mr. Jewell's car. She was crying. She wanted to get away from there and go home.

[45] She sat in the middle of the rear seat. He noticed the injury to her middle finger. She was very quiet, crying and kept to herself on the way to her mother's.

[46] He did not notice any other injuries on her that day, but the next day he went to her house to see if she was okay and noticed some bruises that had started appearing on her arms.

[47] In cross-examination, he did not remember at first that he gave a statement to the police in which he said that Ms. Da Silva told him that Mr. Pacheco had thrown her down a few times and that he had grabbed her arm several times. But once defence counsel showed the statement to him, he agreed that Ms. Da Silva told him these things. He said that Ms. Da Silva never mentioned anything about Mr. Pacheco choking her or grabbing her throat.

Accused's Evidence

[48] Mr. Pacheco testified that around September 22 he and Ms. Da Silva met on a website called Tango. They started living together around October 1.

[49] Ms. Da Silva had told him that she had a friend named Frank with whom she went out for coffee. The day before the incident he looked at her phone. He saw that she sent him text messages or emails at night while he was working on October 9, 10, and 11.

[50] Frank told her that he wanted her back. She told him that she was not sure. She did not mention her relationship with Mr. Pacheco.

[51] He searched her phone further and discovered nude photos of herself that she had sent to Frank and two other guys four days before she and Mr. Pacheco had met.

[52] At one point in his testimony he said that he did not get angry, but at another he said that he was initially angry when he saw the photographs. He said that he was also disgusted and with her and he was disappointed. He confronted her in the bathroom while she was taking a bath. He told her to leave him alone and that he did not want to talk to her.

[53] He told her that he had to think about what happened and about what was going to become of their relationship. He was no longer angry at this point. He was sad. He did not know what he was going to do. She was very apologetic. He was still disgusted with her. He no longer knew if he wanted to be with her. He went to bed.

[54] The next day they went to the doctor for the pre-natal visit. When they returned he checked his land line and saw that there had been many private calls that had been made during the time that he was at work or sleeping. All of his family members have cell phones so they do not make calls on the land line. They just receive calls. Ms. Da Silva did not have a cell phone plan. She could only use her phone to send text messages via a Wi-Fi internet connection.

[55] Ms. Da Silva told him that the calls were to her cousin and a friend "this, that". He told her that the next time she gets a call he wants her to put it on speaker phone so he can hear who it is. She said that was not a problem.

[56] Less than 10 minutes later the phone rang. She put it on speaker. It was her cousin, Sarah. She told Ms. Da Silva that she hoped that their mothers do not "talk as much shit about my boyfriend as they do about Milton".

[57] Ms. Da Silva told him that she did not know why they spoke badly of him. She said that "you know, it's me…" Mr. Pacheco told Ms. Da Silva that he would forgive her and that he would "squash everything about those photos if you're telling me the truth, and you call your mother right now and put her in place saying stop bothering us, that I'm not doing nothing, I'm the only actually telling you to go there, go there, and you don't want to go there. Tell them it's you, not me". [6]

[58] Ms. Da Silva called her mother "And then that's where everything began". Then she called her cousin, and then her mother. She made seven or eight calls. He said that she made these calls from the kitchen. None was made in the garage as Ms. Da Silva said.

[59] Ms. Da Silva yelled at Mr. Pacheco that he was an "asshole, this and that". They argued for about 40 or 45 minutes. His father was sleeping upstairs during this time. Then Ms. Da Silva said that she could not take it anymore and she went upstairs. He followed her and as they were going up the stairs his father came out of his room and asked what was going on.

[60] Ms. Da Silva went into the bedroom and told him that she was going to pack her things and leave. His father asked him to let him talk to her. He agreed and went downstairs.

[61] After 10 minutes his father came downstairs and told him that she was packing and that she was leaving. Mr. Pacheco (the accused) went upstairs and saw her packing. His father was right behind him. The door to the bedroom was partially closed. Mr. Pacheco (the accused) pushed the door to go in and it banged against the closet door and slammed it shut. He saw her hand jammed in the door. It was an accident. He told her that he was sorry and offered to take her to the hospital. His father told him to let her be so he went downstairs to the porch.

[62] Mr. Pacheco said that Ms. Da Silva never sat on the bed while they were in the bedroom together. He never pushed her shoulders or chest. She was never lying on the bed. He never straddled her or pinned her down. He never grabbed her by the arms to restrain her or put his hands around her neck. Neither did he threaten to kill her and the baby.

[63] With regard to their sex life, he said that they had rough sex daily. The last time they had sex was the day before the incident right before she went to take a bath.

[64] One thing that they did was that she would get on top of him and he would hold her arms and push her down hard and fast. He always did this.

[65] He would have his hands on her hips and shoulders, too. She liked it. He said "There was tied, there was smacking, there was all kinds of things". They had sex four or five times a day. She would get bruises on her arms from this but it was all consensual. This was the cause of the bruises on her arm.

[66] When his father came downstairs he spoke to Mr. Pacheco on the porch and told him that Ms. Da Silva wanted to go back home but he should leave her alone for a couple of days and then she would call him to let him know what was going on. Mr. Pacheco was very concerned that she was having his child and he testified that he needed to know what was going on.

Accused's Father's Evidence

[67] Mr. Pacheco senior testified that he was sleeping on the day in question and was awakened by his son and Ms. Da Silva coming upstairs and her screaming and very loud speech. It took him about 30 seconds to get out of bed and go to see what was happening. Ms. Da Silva was in the bedroom and his son was by the door. His son was trying to comfort her. She was screaming that she was leaving. His son was pleading with her not to go – to think about the baby.

[68] He said that his son was not angry, but he asked him to go downstairs and calm down. In cross-examination, he said that he was cool and that it was Ms. Da Silva that was upset. He told his son that he would talk to Ms. Da Silva. His son went downstairs and Mr. Pacheco senior spoke with Ms. Da Silva. She did not want to tell him what happened. He asked her why she was leaving. She told him that she would be back in a couple of days.

[69] Mr. Pacheco senior was standing in the frame of the doorway to the bedroom. The bedroom door was open half way. Ms. Da Silva was inside the bedroom by the closet. At this point, his son came back upstairs. He asked Ms. Da Silva again not to go. She said that she was leaving.

[70] His son tried to go into the bedroom. At the same time Ms. Da Silva grabbed the closet door, which is behind the bedroom door. When one opens the bedroom door it hits the closet door. The bedroom door hit the closet door and jammed her finger. It was an accident. His son could probably have seen part of Ms. Da Silva's body from outside the bedroom where he was, but he would not have been able to see her hand in the doorway.

[71] She exclaimed that he hurt her finger. Mr. Pacheco senior offered to take her to the hospital, but she said that it was "nothing". He took her to the bathroom to wash her finger. He touched it to see if she was okay. She said that it was alright but she wanted to leave.

[72] Mr. Pacheco senior told his son to go back downstairs and stay there. He told his son that she wanted to go so he should let her go. He obeyed his father. His son did not threaten Ms. Da Silva in anyway. All he did was to try to convince her to stay. He never touched her.

[73] Mr. Pacheco senior escorted Ms. Da Silva down the stairs and to the porch. His son was there smoking. He did not say anything. Mr. Pacheco senior told him to go inside because Ms. Da Silva's relatives were coming to pick her up. When her uncle arrived she left with him.

[74] Mr. Pacheco senior said that during the month that Ms. Da Silva lived with them he never saw bruises on her. He said that he never looked at her "checking her out". He did not spend a lot of time with her.

[75] That was all of the evidence.

Legal Framework

[76] The Crown did not pursue the injury to Ms. Da Silva's finger as a basis for the assault charge. He is relying solely on the evidence of Mr. Pacheco grabbing Ms. Da Silva's arms and neck.

[77] The applicable law in case where credibility is the 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.

Crown's Submissions

[78] The Crown submitted that Mr. Pacheco was evasive, loud and aggressive when he gave his evidence. He argued that he was "flat out lying". He is a "loud, controlling, dominant individual". He snuck around to find and then search Ms. Da Silva's cell phone. He felt that since he was in his home he could do what he wanted.

[79] With regard to the assault on the bed, Mr. Pacheco senior could not have seen what happened in the bedroom during the 30 seconds that it took him to put on his pants and leave his bedroom to go to his son and Ms. Da Silva's bedroom. Therefore, there is this gap in his opportunity to observe what was happening in their bedroom.

[80] Mr. Pacheco said that the bruising on Ms. Da Silva's arms was due to rough sex. The Crown submits that Ms. Beaton's email does not necessarily trump Ms. Da Silva's evidence of how the rough sex issue came up in their conversation.

[81] The Crown submits that in spite of all the rough sex that Mr. Pacheco said they had, Ms. Da Silva had only one bruise. Mr. Pacheco senior did not notice any bruising on Ms. Da Silva. In addition, it is not realistic that Ms. Da Silva would have rough sex because she was approximately 8 weeks pregnant.

[82] The Crown argues that Mr. Pacheco senior is biased in favour of his son. His account of his son simply pleading with Ms. Da Silva not to leave him and to think of the baby does not accord with the circumstances as revealed by the other evidence.

[83] In addition, Ms. Da Silva's uncle testified that the accused's demeanor was much angrier when he was on the porch than what his father described. And he was muttering "Nobody does this to me".

Disposition

[84] The Crown made some good points. For example, if Mr. Pacheco and Ms. Da Silva were having rough sex as many times a day as Mr. Pacheco said one would expect that Ms. Da Silva would have had more bruises on her arms.

[85] In addition, Mr. Pacheco tried to downplay the fact that he was angry at Ms. Da Silva because of the pictures that he found on her phone. Ms. Da Silva's uncle's testimony that Mr. Pacheco was pacing back and forth on the porch with an aggressive look on his face and muttering "Nobody does this to me" is consistent with him being angry. I agree with the Crown that Mr. Pacheco senior appeared to be trying to downplay his son's anger as well.

[86] The Crown also pointed out correctly that Mr. Pacheco gave his testimony in a very rambling and at times apparently evasive manner. It was practically impossible to get him to answer the question without editorializing and giving long accounts about things that were not relevant to the question asked. But, after considering this matter I conclude that as maddening as it was to have to deal with his manner of testifying I am inclined to believe that he behaved this way because he is a very excitable, unfocused person who was under the pressure of facing serious charges and testifying in court; not because he was lying or being generally unreliable.

[87] I have to consider all of the circumstances in deciding whether I'm persuaded beyond a reasonable doubt that Mr. Pacheco assaulted Ms. Da Silva and threatened to kill her. Aside from the points that the Crown made I found that Mr. Pacheco told a consistent story. He was not caught in any significant contradictions or inconsistencies and I find that what he said could have happened the way he said it did.

[88] Moreover, I found that Ms. Da Silva's evidence lacked credibility for the following reasons.

1. Absence of Corroborating Physical Evidence

She said that Mr. Pacheco applied pressure to her neck with one hand and that it was painful. However, the police did not report any bruising on her neck, the pictures that they took of her did not reveal any, and her uncle did not notice any on the day of the incident or the next day.

2. Timing of Police Report and Custody Dispute

Four days after the alleged incident, and the day after Mr. Pacheco told Ms. Da Silva that he was going to seek custody of their child, she reported the alleged assault and threat to the police. This raises the obvious concern that she concocted the allegations in order to gain an upper hand in what appeared to be an upcoming custody battle in family court.

3. Inconsistency Regarding Alcohol

In the Domestic Violence Supplementary Report, Ms. Da Silva said that Mr. Pacheco had been drinking on the day in question. In her testimony, she said that he had not. Then she said that she believed that Mr. Pacheco had been drinking. This raises a concern that she fabricated this part of her account of what happened.

4. Inconsistency Regarding Prior Choking

In the same report she stated that Mr. Pacheco had tried to choke her before. However, in her testimony, she said that it was the first time. Her explanation for this was unsatisfactory: "Honestly this happened so long ago that I just don't necessarily remember. Again, it's just myself being nervous and – yeah". In another part of her testimony, she said "I do not know. I, again, I – it happened a while ago and I'm just – I was nervous".

5. Inconsistency Regarding Rough Sex

Ms. Da Silva said that Ms. Beaton, the Crown who was preparing her for trial, told her that regarding the bruising Mr. Pacheco "was saying that it was due to rough sex". Mr. Pacheco said that he never spoke to Ms. Beaton. He never spoke to any Crown attorney about his defence. In the email that Ms. Beaton sent to the trial Crown she said that "in the course of our discussions about what she could expect while on the witness stand, she made reference to the fact that she and the accused sometimes had rough sex and she was worried that would come up in cross examination". The trial Crown said that Ms. Beaton's statement does not necessarily trump Ms. Da Silva's evidence; however, given all of the problems with Ms. Da Silva's evidence, I prefer Ms. Beaton's evidence. This is another factor that damages Ms. Da Silva's credibility.

6. Inconsistency in Uncle's Account

Ms. Da Silva's uncle agreed that he told the police that when he picked her up she told him that Mr. Pacheco threw her down a few times and grabbed her arms during sex. Ms. Da Silva did not ever report or testify that Mr. Pacheco threw her down a few times.

[89] Therefore, for all of the above reasons I am not persuaded beyond a reasonable doubt that Mr. Pacheco assaulted or threatened to kill Ms. Da Silva and the baby. I accept his evidence and I reject Ms. Da Silva's. He is found not guilty.

Released: August 31, 2015

Justice J.W. Bovard