Ontario Court of Justice

Date: 2021·01·29 Court File No.: Scarborough 19-35004106

Between:

HER MAJESTY THE QUEEN

— AND —

ROBERTO SUAREZ FLORES

Before: Justice K. Caldwell

Heard on: December 17- 20, 2019; February 20, March 11, December 8-10, 2020

Reasons for Judgment released on: January 29, 2021

Counsel: Mr. Peter Fraser and Mr. Joseph Hanna ............................................ counsel for the Crown Mr. James McLaren .......................... counsel for the defendant Mr. Roberto Suarez Flores

K. Caldwell J.:

[1] Mr. Suarez Flores is charged with four counts of assault [^1] involving incidents with his now estranged wife, Ms. Eunice Soler Rijo, and their two sons. At the time, the two boys, Roeuny and Robelin, were ten years and fourteen years old respectively. At trial, Roeuny was twelve years old and Robelin was sixteen years old.

[2] The boys and their mother had lived in the Dominican while Mr. Suarez Flores had lived in Canada for many years. In September 2017 Ms. Soler Rijo and the boys came to Canada so that the family could reunite and build a life together. The incidents occurred within the first year of their arrival here.

[3] I heard from the two boys and Ms. Soler Rijo during the Crown’s case. Mr. Suarez Flores was the only witness called by the defense. I first will deal with the last allegation which is the incident between Mr. Suarez Flores and Ms. Soler Rijo. I also will address issues of overall credibility in my assessment of that incident. I will then move to the incidents involving the boys.

The June 19, 2018 Incident

[4] Mr. Suarez Flores’ and Ms. Soler Rijo’s relationship deteriorated over time and appeared to reach its lowest point on June 19, 2018. By this time, Mr. Suarez Flores had moved out but was still paying for the apartment. He came over that day, for reasons that are in dispute, and an incident occurred between Mr. Suarez Flores and Ms. Soler Rijo, leaving both of them injured. Both took photos immediately after the event. Each claimed that the other was the instigator and primary aggressor.

[5] Ms. Soler Rijo testified that Mr. Suarez Flores used his key to get into the apartment on the afternoon of June 19th. Ordinarily she wouldn’t have been there as it was the time she’d pick her younger son up from school but, unbeknownst to Mr. Suarez Flores, she’d arranged for the older son to pick up the younger one.

[6] Ms. Soler Rijo said she received a message on her phone while he was there. She said he tried to grab the phone from her to find out the identity of the messenger, saying that he paid the phone bill and that he was in charge. She resisted, and he pushed her, causing her to fall onto the glass coffee table, cutting her head and shattering the table.

[7] She tried to escape by running for the balcony but he grabbed her long braid, telling her she wasn’t going anywhere. She tried to get to the front door but he threw her down on the ground, and put his foot on her neck, making it difficult to breathe. She managed to reach up and grab his T shirt near its collar, scratching his chest, and getting out from under him. She then fled the apartment.

[8] Mr. Suarez Flores testified that he had gone to the apartment that day to get the children’s passports as he needed them to complete their permanent residency application. He said that there was no incident regarding a phone.

[9] Instead, he testified that Ms. Soler Rijo became angry that he was taking the passports. He said that she grabbed him by the collar of his shirt, pulling him into the living room area. She then pushed him, causing him to fall onto the coffee table, breaking it. He also ended up with a cut on his hand.

[10] Both of them had injuries that were consistent with either version of the events.

[11] Overall, I found Ms. Soler Rijo to be a very credible witness. She testified not only to this incident but also to incidents involving her sons, and about her views of the relationship with her husband. She testified that shortly after arriving in Canada she learned that her husband was in a relationship with another woman, Ms. Martinez. This was a contributing factor in her decision to leave Canada a few weeks after she arrived. She then returned in April, 2018, both to reunite with her boys and in the hopes that the relationship between she and Mr. Suarez Flores could work. It did for a time upon her return but then deteriorated once again, culminating in the June incident.

[12] She testified that she and her husband argued about his absence from the home in the fall of 2017, and about his relationship with Ms. Martinez but that those arguments didn’t become physical. I find that her overall description of the dynamic between them, and her testimony about the lack of physical violence over this issue, adds to her credibility as it would have been very easy to embellish this testimony. Further, as I will reference later in this judgment, she testified that she heard from her younger son about an incident with a haircutting tool rather than witnessing it herself. As by all accounts she was in the apartment at the time, it would have been simple for her to embellish her testimony by stating that she had witnessed that incident. Her failure to do that is yet another factor that leads me to conclude that she was a credible witness overall.

[13] I had serious issues with Mr. Suarez Flores’ overall credibility. In particular, I found that he changed his testimony between the time he provided the bulk of his in-chief evidence and the time he was cross-examined. Given the Covid pandemic, there was a gap of some months between the first segment of his testimony and the second but that gap does not account for the nature of the evidence change.

[14] Mr. Suarez Flores initially testified that at the end of the June altercation with his wife he remained for some time vacuuming, picking up the glass and also removing the carpet to ensure that there was a thorough clean as he did not want his children to be hurt by the broken glass when they returned from school. He also testified that he cut his left hand when he fell on the glass table.

[15] Under cross-examination, he said that he immediately fled the apartment after the fight as he had to get away from his wife who was the aggressor. He denied helping with the clean-up. Further, he testified that his left hand was cut when his wife attacked him with a jagged piece of glass, not as a result of falling on the table.

[16] I find that these contradictions in his evidence are very material and significant. They are not peripheral details which someone could become confused about with the passage of time. I find as a fact that Mr. Suarez Flores embellished his evidence under cross-examination in order to cast his wife in a more negative light. I reject his evidence about his immediate flight from the apartment and her attack on his left hand. This alteration of his testimony also leads me to conclude that he is not a credible witness.

[17] Further detracting from his credibility is his overall description of his time alone with his sons when Ms. Soler Rijo was back in the Dominican. Initially he had described this as a time that was extremely difficult for him. He was working, and shouldering the full load of caring for his children, cooking, cleaning, picking them up from school, and taking them to appointments. In fact, he said that this led to him welcoming Ms. Martinez back into his life as he required her help with the domestic chores.

[18] Under cross-examination, however, it became apparent that his employed work during this time period was inconsistent. Further, and most importantly, he described this as a joyous time of little stress despite the financial strain as he was enjoying the time he could devote to his boys. I reject his evidence provided under cross-examination as I find that it directly contradicts his in-chief evidence and furthermore defies common sense. I find as a fact that his time alone with his boys was a difficult time in his life, as he described initially, and I find that the clear contradiction was an attempt to portray himself in a better light. I also find that this alteration in his evidence detracts from his overall credibility.

[19] I am left in some doubt regarding the June incident, however, despite my comments regarding overall credibility. It is open to me to accept some, all, or none of a witness’s evidence. Assessments of reliability, credibility and facts are not assessments that demand a consistent response in all instances – a witness can be quite credible overall, or with respect to one incident, yet leave doubts regarding another incident.

[20] Further, the law outlined in R v W.D. [^2] applies:

• First, if I believe the evidence of the accused, I must acquit;
• Secondly, if I do not believe the testimony of the accused but I am left in a reasonable doubt by it, I must acquit;
• Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[21] I am left in doubt regarding exactly what happened on June 19th. Ms. Soler Rijo said that the incident flowed from Mr. Suarez Flores’ upset over a message which Ms. Soler Rijo received. Mr. Suarez Flores testified that it was sparked by Ms. Soler Rijo’s upset at his attempt to take the children’s passports. Both triggers are possible. Mr. McLaren argued that Mr. Suarez Flores would not be upset about a message because he had moved on with his life and was involved with Ms. Martinez. Individuals mired in a marital break-up, however, do not always respond in a manner that appears wholly rational to outsiders.

[22] On the other hand, there was and continues to be ongoing tension regarding possession of the children’s passports. It would make sense in the context of this relationship that any attempt by Mr. Suarez Flores to remove them would be triggering for Ms. Soler Rijo.

[23] Finally, there is the message Mr. Suarez Flores received from Ms. Soler Rijo’s nephew. The nephew lives in Miami and neither party called him as a witness but the message was entered on consent. It is difficult to know what information he had or what discussions he had with his aunt prior to sending the message though Ms. Soler Rijo insisted that the specifics were not written at her direction. In that message, he requested that Mr. Suarez Flores return the passports and other items and he stated that in exchange Ms. Soler Rijo would not proceed with the charges stemming from the June 19th incident.

[24] This message obviously raises concerns.

[25] Given all of the factors that I have outlined, I am simply left in doubt regarding exactly what happened on June 19th. It is not for me to reconcile the two versions or pick between them. At the end of the day, I am just left with the uncertainty and as a result I find Mr. Suarez Flores not guilty of Count #1.

The Incidents Involving the Sons

Overall Credibility Assessment of the Sons

[26] I turn now to the remaining three counts. These involve two assaults on the elder son, Robelin, which include one that involved a snow brush as a weapon, and an assault count on the younger son, Roeuny.

[27] Overall, I found both sons to be strikingly credible witnesses. In making this assessment I have taken into consideration the ages of the boys both at the time these incidents occurred and at the time of trial. Roeuny was ten at the time of the incidents and twelve when he testified. Robelin was fourteen at the time, and sixteen when he testified. The youthfulness was particularly apparent with Roeuny, both in overall demeanour and in his testimonial manner.

[28] The caselaw is crystal clear – the standard of proof to be met at a criminal trial is a constant regardless of the age or maturity of the prosecution witnesses. What also is clear, however, is that the ages of young witnesses is a factor to be considered in assessing their evidence. To quote the Court of Appeal, “it is familiar terrain that a trial judge should take a common sense approach in dealing with the evidence of young children and not impose the same exacting standard on them as in the case of adults” [^3].

[29] I am well aware that Robelin, in particular, would not qualify as a “young child”. But those dictates of the appellate courts must be applied on a sliding scale. The point is that the ages of the younger witnesses, both at the time of the events and at trial, are relevant factors to consider when assessing evidence – young persons are not adults and will not behave as adults.

[30] I found that they provided their evidence in a manner that made sense in the context of the overall events, befitting their ages, and that reflected the fact that they were remembering back almost two years to a tumultuous year in their lives that involved repeated incidents that they would not be documenting for future purposes.

[31] Mr. McLaren argued forcefully that Roeuny could not be believed because he testified that he had seen his father slap his mother in the fall of 2017. He argued that this evidence was incredible given that it had not been raised prior to his trial testimony, and because the mother testified that her sons did not witness any violence of their father towards her.

[32] Though the slap testified to by Roeuny does not constitute a charge before me, I find as a fact that the slap occurred. Roeuny testified to this incident in a detailed, straightforward manner and was not shaken on this point under cross-examination even though it was clear to me that he found the court process difficult.

[33] Further, he spoke of his mother retaliating by both slapping and scratching his father. It was clear that he was protective of his mother. I reject the idea that he would have testified to that response on her part if it hadn’t happened.

[34] Assessing Roeuny’s evidence on this point – and the timing of first speaking of it at trial – also requires assessing the context of these charges. Regarding Ms. Soler Rijo, the focus of the investigation and of the trial questioning was on the June 19th incident. It also was clear that a very tumultuous year preceded the laying of charges and the events of that year hadn’t been documented by either the boys or their mother in preparation for future litigation. It is not surprising that disclosure would come out incrementally, including at trial.

The Snow Brush Incident

[35] Both boys testified that they were in the car with their father when they began arguing with each other about Robelin’s wet, smelly shoes. It was winter, Robelin’s feet and shoes were wet, and he had removed the shoes, causing the smell. I inferred from the brothers’ testimony that the argument was loud, partly playful, partly serious, very rambunctious, and very annoying to their father.

[36] Once they were all out of the car, the boys began playfighting and both boys testified that Mr. Suarez Flores hit them hard with a snow brush, causing injury. Roueny said that his father threw it like a spear at Robelin. Robelin insisted the snow brush introduced by Mr. Suarez Flores in evidence was not the brush used two years prior as that one broke when he hit them.

[37] There were details that were inconsistent between the two of them – when precisely this happened and who else was there. For example, Roueny thought that his father’s girlfriend, Ms. Martinez, was off buying donuts for them while Robelin placed her at the scene. There was also confusing testimony about the precise design of the brush.

[38] Mr. Suarez Flores testified that he remembered the smelly feet dispute but said that he was not angered by it as boys will be boys. He denied hitting them.

[39] I accept the boys’ evidence of the assaults with the snow brush as fact. I have considered the conflicts in their testimony but find that it is entirely logical that they would not remember exactly when this, or any of the other incidents, occurred particularly in light of the tumult over the months from the time they originally arrived in Canada to the time their parents fully separated. The details of who was in the general area, on the periphery, also are not details I would expect them to recall with accuracy.

[40] They were cross-examined extensively on the snow brush’s construction. They had not been in Canada long and it was clear from their testimonies that Canadian winters, and the tools used to cope with them, were unfamiliar to both boys. That confusion, in fact, led to an issue and subsequent amendment to the assault with a weapon charge. Originally it was described as a shovel, given in part an issue with translation, and it became clear that the brothers both struggled to define the object precisely. I find this fact only adds to the credibility of both as it is illogical that they would manufacture an incident about an object that they struggled to name.

[41] Both were cross-examined at length yet the core elements of their descriptions of this incident didn’t change. The incident itself made sense – the fight over the shoes, followed by their father’s frustration which then turned into assaults. I also found Roeuny’s emotional reaction upon being shown the snow brush also added to his credibility and was very in keeping with his age.

[42] I accept the boys’ evidence regarding this point and find that Mr. Suarez Flores’ outright denial does not leave me with a reasonable doubt.

The Speaker Wire Incident

[43] Roeuny testified that he was hit by a speaker wire on two occasions, one of which was more vivid in his mind than the other. Regarding the more vivid one, he testified that he was hit with it several times after an incident at school. The hits were repetitive and they hurt a lot, leaving red marks. He said his father got the wire from a box in the closet. His brother also testified that Roeuny had been hit and that it happened after an incident at school. Both boys said that their father told Roeuny to wear long sleeves to hide the marks.

[44] Mr. Suarez Flores denied hitting Roeuny and said that the wire was kept in a box under the bed, stating that he had never shown it to his wife or sons.

[45] I accept Roeuny’s evidence as fact and find that he was hit by his father with the wire. I make this finding because I found him forthright in his evidence, and he added details which made sense and were consistent with what I’d expect a child of his age to remember – the repeated nature, the fact that it occurred due to a school problem, and the requirement by his father to wear long sleeves. I also accept his evidence given Robelin’s corroboration.

[46] I reject Mr. Suarez Flores’ evidence and find it does not leave me with a reasonable doubt. I also find it impossible to accept that the boys would have manufactured an incident about a speaker wire if they had never seen it in the home, as testified to by Mr. Suarez Flores.

The Haircut Tool Incident

[47] Roeuny testified in detail regarding an incident involving a haircut tool. He said that his father hit him hard on the top of the head with the tool when he complained about his father cutting his hair.

[48] Roeuny said that Robelin was letting his hair grow long and he wanted to do the same. His father was upset with him for that and appeared to be about to hit him when he protested his father’s attempts to cut his hair so he ran to his mother. He was uncertain where his mother was at the time but thinks it was in the kitchen cooking. His father followed and hit him on the head which led to his mother defending him verbally.

[49] Under cross-examination, he clarified that he and his father were in the bathroom and he ran to the kitchen where his mother was cooking. He was upset that his father was going to hit him. They both went into the living room and it was then that his father also came in and hit him hard on the head.

[50] His mother, in her testimony, didn’t recall being there for the hit but remembers Roeuny running to her to complain about it.

[51] Mr. Suarez Flores remembers his son being upset about the haircut but denies hitting him.

[52] I find as a fact that Mr. Suarez Flores did hit his son in the head with the haircut tool. I make that finding despite the inconsistency between Roeuny and his mother regarding her presence.

[53] I find that Roeuny’s description of this incident made sense. The fact that almost two years later, in testifying, he recalled his mother being there though that was not her recollection does not detract from either his credibility or reliability. As I said at the outset, I do not find the witnesses’ vagueness and differing memories regarding who was present at what time to be of much significance especially given the passage of time and the fact that they are recalling numerous incidents over an extended period of time.

[54] I find Roeuny’s description fit the experience of a young boy – wanting to grow his hair like his older brother, becoming upset when his father tried to prevent that, running to his mother. I also find that his description of the changes of location in the apartment made sense regarding how such a scenario would unfold and that it would be highly unlikely that he would add in such complexity if the event had not occurred.

[55] I find that Mr. Suarez Flores’ denial does not leave me with a reasonable doubt. As with the snowbrush incident, Mr. Suarez Flores testified to a similar scenario, simply absent the physical violence. I find it incredible that the two boys, especially given their youth at the time, would manufacture assaults that they would insert into scenarios that Mr. Suarez Flores himself said took place. I also note that all the scenarios were the type that logically could be annoying or irritating to a parent – the ongoing bickering and fighting between the brothers in the case of the snowbrush, the problems with school, and the upset over the haircut.

The Fists and the Broom Incidents

[56] Both brothers testified to being hit by Mr. Suarez Flores’ fist on occasion. They were less detailed about these incidents than they were about the other incidents outlined above. Robelin recalls one occasion occurring after he defended his mother when his father was being abusive towards her.

[57] Robelin also testified to an incident involving a broom. He said his father hit him with a broom when he was taking out the garbage because his father thought he was fooling around. Roeuny also remembers his father throwing a broom at his brother. Robelin didn’t recall Roeuny being present. Initially Robelin only remembered being hit on the leg by the broom but upon reviewing his video statement he remembered being hit on the arms as well.

[58] Mr. Suarez Flores denied hitting his sons at any time.

[59] I find as a fact that the boys were each hit by Mr. Suarez Flores and that Robelin was hit with a broom. I am not left with a reasonable doubt by Mr. Suarez Flores’ denial.

[60] I make these findings for the same reasons that I made the other findings regarding the other incidents. The broom incident made sense in terms of how Robelin described it and was corroborated by Roeuny. The fist incidents were less detailed but I note that they were less distinctive in their surrounding details. Again, I note that both boys are recalling numerous acts of violence over a months long period of time that occurred over roughly two years prior to the trial. I further note that they would not be recording the specifics of each incident for future litigation purposes – especially given their ages, it would not even cross their minds to behave in that fashion.

Conclusion

[61] I find that there is more than sufficient evidence which I accept as fact to find that the Crown has proven beyond a reasonable doubt that Mr. Suarez Flores is guilty of all three counts involving his sons, specifically, Counts #2, 3 and 4 on the information. I find him not guilty of Count #1, the count involving his wife Ms. Eunice Soler Rijo.

Released: January 29, 2021 Signed: “Justice K. Caldwell ”

[^1]: Three of the counts were simple assault. A fourth was assault with a weapon, namely a snow brush. [^2]: (1991), 63 C.C.C. (3d) 397 (S.C.C.) [^3]: See R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 at para. 63 referencing R. v. B.(G.), [1990] 2 S.C.R. 30 (S.C.C.) and R. v. W.(R.), [1992] 2 S.C.R. 122 (S.C.C.)