ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-104

DATE: 20201106

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ISIDORO PACHECO

Defendant

Counsel:

Hanieh Azimi for the Crown

Robert Guerts, James Gilbert and Alexandra Shackman for Mr. Pacheco

HEARD: September 14-23, 2020

ruling on gardiner application

c. boswell j.

I. introduction

[1] Divorce is hell. It is a painful, stressful, expensive and taxing experience for anyone going through it. Isidoro Pacheco knows first-hand how hard it can be. He and his wife were going through marital problems in the late summer of 2018. Those problems became markedly worse when Mr. Pacheco ran down the man he suspected his wife of having an affair with. That man was Mr. Gary Phillips – Mr. Pacheco’s neighbour and erstwhile best friend.

[2] Mr. Pacheco appeared before this court facing one count of dangerous driving causing bodily harm. When his trial commenced on September 14, 2020 he entered a guilty plea. I conducted a plea inquiry and satisfied myself that Mr. Pacheco understood the nature and consequences of his plea and that it was offered voluntarily.

[3] Traditionally, the next step in a guilty plea is for the Crown to read in a synopsis of the facts, for the accused person to accept that the facts read in are substantially true, and for sentencing to proceed. A consensus on the facts is necessary to provide an evidentiary basis sufficient to make out the essential elements of the offence and to provide a basis for the court to assess the aggravating and mitigating circumstances of the offence.

[4] Mr. Pacheco’s guilty plea did not proceed in the traditional way because there is a very significant part of the factual context where there is no consensus. Specifically, Mr. Pacheco’s state of mind at the time he struck Mr. Phillips with his pick-up truck. The Crown asserts that Mr. Pacheco drove at and struck Mr. Phillips intentionally. Mr. Pacheco submits that he did not intend to hit Mr. Phillips. He accepts that his driving demonstrated a marked departure from that expected of a reasonable and prudent driver in the circumstances. But he contends that striking Mr. Phillips was the result of misadventure.

[5] In the circumstances, the court conducted what is conventionally known as a Gardiner hearing. The goal of a Gardiner hearing is to resolve contested facts relevant to sentencing. Gardiner hearings are governed by a framework set out in s. 724(3) of the Criminal Code which provides:

Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[6] Mr. Pacheco’s alleged intent to strike Mr. Phillips is most certainly an aggravating factor. The Crown must accordingly establish that purported intent to the reasonable doubt standard.

II. THE EVIDENTIARY RECORD

[7] This is a fact-finding ruling. My findings of facts are, of course, drawn from the evidence adduced during the hearing. It is not necessary that I painstakingly review all of the evidence tendered, but because the evidence is almost entirely circumstantial it is necessary that I canvass it in some detail. I will begin with some contextual background, then zero in on the circumstances of the offence.

CONTEXT

The Friendship

[8] In September 2018 Isidoro and Grace Pacheco lived at 28 Baker Crescent in Barrie with their two adult children, Cassandra and Jonathon, and Grace’s mother. Gary Phillips lived two doors west of them at number 24. He lived alone, being recently estranged from his wife, Leah.

[9] The Pachecos and Phillips were good “couple friends”. They socialized often, sharing meals at home and at restaurants, having bonfires and playing cards. Mr. Pacheco and Mr. Phillips were particularly good friends. They