Court File No. CR-22-215

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

v.

HELDER VERTENTES-ARRUDA

Proceedings

BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS

on March 26, 2024, at BRAMPTON, Ontario

APPEARANCES:

D. D'Iorio Counsel for the Crown

J. Dos Santos Counsel for Helder Vertentes-Arruda

Table of Contents

Witnesses

WITNESSES Examination in-Chief Cross- Examination Re- Examination

Exhibits

EXHIBIT NUMBER ENTERED ON PAGE

LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically

Transcript Ordered: August 1, 2024 Transcript Completed: August 22, 2024 Ordering Party Notified: September 16, 2024

TUESDAY, MARCH 26, 2024

...EXCERPT BEGINS ...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED

Ruling

STRIBOPOULOS, J. (Orally):

Introduction

Mr. Vertentes-Arruda is currently on trial for a charge of first-degree murder in the death of his mother-in-law, Maria Manuela Correia, and five charges of attempted murder relating to his wife, three daughters and father-in-law.

What happened on the morning of the alleged offences is not disputed. Mr. Vertentes-Arruda acknowledges that early on December 4, 2020, he attended his in-laws' residence at 148 Martindale Crescent in Brampton. The home's occupants, including his in-laws, wife and three daughters, were asleep at the time.

Mr. Vertentes-Arruda broke a living room window at the front of the home with a landscaping stone he retrieved from the front garden and entered the house. The sound of the breaking glass woke his wife, who went to investigate. Mr. Vertentes-Arruda does not dispute his wife Christine Vertentes-Arruda's account of what happened next.

According to her, she encountered Mr. Vertentes-Arruda inside the home. He was carrying a gas canister, which he unscrewed, then splashed gasoline on her and the floor, and ignited it.

Incredibly, Ms. Vertentes-Arruda managed to remove her top, which was on fire, go to the basement to wake her father, and then escape the home. Once outside, Mr. Vertentes-Arruda assaulted her. She believes he struck her with a metal object of some kind.

Although his wife, children and father-in-law all escaped the fire that quickly engulfed the home, tragically, Mrs. Manuela Correia did not; she died from smoke inhalation. Her lifeless body was recovered from inside the house by firefighters, who attended within minutes of the start of the fire.

At the trial's outset, Mr. Vertentes-Arruda attempted to plead guilty to manslaughter for causing the death of Maria Manuela Correia. However, the Crown refused to accept that plea.

Although what happened on the morning of December 4, 2020, is not contested, Mr. Vertentes-Arruda's state of mind is. The critical issue at this trial is whether he possessed the mens rea for the offences of attempted murder and murder. And with the latter, if he did, whether the murder was planned and deliberate.

Mr. Vertentes-Arruda applies to exclude a video and audio recording captured by a surveillance camera that the Crown hopes to proffer into evidence. He submits that the recording is more prejudicial than probative.

The Crown opposes the application. It submits that the recording constitutes relevant and probative evidence, and that any potential prejudice can be more than adequately addressed with a limiting instruction.

The Evidence at Issue

The recording is from a surveillance camera located at 136 Martindale Crescent, six houses down and on the same side of the street as 148 Martindale Crescent. It lasts 6 minutes and 57 seconds, beginning at 3:53 a.m., and ending at 3:59:57 a.m.

The camera's view takes in the driveway of 136 Martindale and the street. The home at 148 Martindale Crescent is beyond its view. Visually, the only evidence of the fire captured by the video recording is the illumination of the street as the fire at 148 Martindale Crescent ebbs and flows as it engulfs the residence.

More significantly, the recording captures, albeit imperfectly, the sound of many of the events that are the focus of this trial.

At 3:54:34, one can hear two hollow banging sounds, followed by breaking glass. That is undoubtedly the sound of Mr. Vertentes-Arruda breaking the front living room window with a landscape rock from the home's front garden, before he enters the residence.

Within approximately 20 seconds, the street becomes illuminated, and one can hear Ms. Vertentes-Arruda's screams, as the flames first engulf her and then her parents' home. A high pitch voice is audible within seconds, but what is said is difficult to understand. The Crown contends that is the deceased's voice.

By 3:54:24, the voices become more audible. Ms. Vertentes-Arruda's terrified screams become louder, and she cries out, "What you do?" followed immediately by, "Stop, stop, stop." Then, what sounds like a male voice, likely Mr. Vertentes-Arruda, says something inaudible. Ms. Vertentes-Arruda's screams punctuate the recording at this point. She yells, "Stop," yet again, and shouts, "Oh, my god, stop," and, "Stop it." Interspersed with her voice is that of a man, but his words are mostly inaudible. Although, it sounds as though at one point he yells the word, "cunt," in accented English. The screams and voices fall silent by 3:55:30. These sounds seem to correspond with a period when Ms. Vertentes-Arruda describes Mr. Vertentes-Arruda assaulting her outside the home.

At 3:55:36, the voice of another woman becomes audible. It is Maria Manuela Correia's neighbour, Kelly Mesquita. She screams, "Vic, Vic, call 911." At 3:56:30, the recording audibly records what sounds like a little girl's voice, followed by her screams. After that, an adult woman's voice says, "Girls." It would appear that this is Ms. Vertentes-Arruda addressing the couple's daughters, who managed to escape the fire.

Following that, beginning at 3:56:50, Ms. Vertentes-Arruda can be heard yelling, "Mom, where are you?" and, "Mom." Additionally, she says to someone, "Do you know where my mom is?" and then, "I don't know where she is." Ms. Vertentes-Arruda continues crying out to her mother. She does so repeatedly and sounds increasingly frantic as she does so.

By 3:58:30, one can again hear Ms. Mesquita's voice. She asks, "Where's your mom?" Ms. Vertentes-Arruda responds, "I don't know where she is." After that, Ms. Vertentes-Arruda's cries for her mother are accompanied by Ms. Mesquita shouting out, "Maria," repeatedly. During this period, Ms. Vertentes-Arruda's screams grow more desperate and shriller.

Law and Analysis

It is now well established that trial judges have the discretion to exclude relevant and material evidence where its prejudicial effect outweighs its probative value: see R. v. Corbett , [1988] 1 S.C.R. 670, at pp. 697 to 698 , and at pp. 729 to 746, per Justice La Forest, dissenting; R. v. Seaboyer , [1991] 2 S.C.R. 577, at pp. 610 to 612; R. v. Mohan , [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Buhay , 2003 SCC 30 , [2003] 1 S.C.R. 631, at para. 40; R. v. Schneider , 2022 SCC 34 , 418 C.C.C. (3d) 137, at para. 59.

Probative value

In assessing probative value, it is necessary to consider the degree to which the evidence is relevant to the material issues in the case, and the strength of the potential inference, or inferences, that the evidence is logically capable of supporting: see R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, at para. 26; R. v. Robertson , [1987] 1 S.C.R. 918, at p. 943; Schneider , at para. 60.

Additionally, when assessing probative value, judges must necessarily, "Consider the credibility and reliability of the evidence while remembering that they are not charged with resolving the factual issues before them:" David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 51; see also R. v. Hart, 2014 SCC 52 , [2014] 2 S.C.R. 544, at paras. 95-98; Handy , at para. 134.

In that respect, the judge's task is to decide, "The threshold question of whether the evidence is worthy of being heard by the jury and not the ultimate question of whether the evidence should be accepted and acted upon:" Hart , at para. 98, quoting R. v. Abbey, 2009 ONCA 624 , 97 O.R. (3d) 330, at para. 89.

With the governing principles summarized, I turn first to the probative value of the evidence, before then considering its potential prejudicial effect.

Portions of the audio recording have at least some probative value concerning the material issues in this prosecution; whether Mr. Vertentes-Arruda possessed the mens rea for the offences charged when he started the fire. The recording bears upon that issue in a few ways.

First, the recording reveals how quickly events progressed that morning. Although Mr. Vertentes-Arruda does not challenge his wife's account of the relevant events, it is apparent from the recording that the time estimate she will likely provide during her evidence, based on her testimony at the preliminary inquiry, will be inaccurate.

For example, at the preliminary inquiry, when asked how long she spent in the kitchen putting out the flames on her clothing and body before going to the basement to alert her father, she estimated, "Maybe two to five minutes or so." The recording demonstrates that these events must have taken mere seconds rather than the many minutes she estimated.

Objective and reliable evidence, like that provided by the recording, concerning the timing of the relevant events, would assist the jury in assessing Mr. Vertentes-Arruda's state of mind. The more time one enjoys while an event is taking place, the greater opportunity for thought and reflection. In contrast, when events unfold quickly, as they did here, there is undoubtedly less time for that.

All of that may assist the jury when it comes to drawing inferences concerning Mr. Vertentes-Arruda's intentions and the deliberateness of his actions.

Second, the recording is powerful evidence of Mr. Vertentes-Arruda's animus towards Ms. Vertentes-Arruda and, as such, could assist the jury in assessing his intentions relating to her that morning. Although Ms. Vertentes-Arruda will testify that after she escaped the home Mr. Vertentes-Arruda assaulted her and called her names as he did so and that she pleaded with him to stop, her description of these events is not nearly as compelling as the recording.

In short, the recording is the best evidence. It will make the jury an ear witness to the relevant events, and better position them to assess Mr. Vertentes-Arruda's mindset than they would be if they only had the benefit of Ms. Vertentes-Arruda's testimony describing those events.

Third, the recording may assist the jury in determining the chronology of the relevant events. For example, Ms. Vertentes-Arruda cannot pinpoint when during the chaos of that morning Mr. Vertentes-Arruda left the scene, nor can any other witness who will testify.

In his police statement, which the court has ruled admissible, Mr. Vertentes-Arruda suggested that he helped his daughters escape the blaze.

The Crown advises that during her testimony, Ms. Mesquita will testify that there was no sign of Mr. Vertentes-Arruda when she came outside that morning. The recording first captures the sound of her voice at 3:55:36. The sound of a little girl's voice is first audible at 3:56:30.

The combination of Ms. Mesquita's evidence and the recording could support an inference that Mr. Vertentes-Arruda fled the scene before his daughters exited the burning house, which could assist the Crown in refuting the claim that he escorted his daughters out and, by implication, that he did not intend to harm them.

In concluding that the recording has probative value for the reasons just noted, I also acknowledge that it is far from perfect. Much of what is said is inaudible; and some of what is said is open to interpretation. Nevertheless, much of what is said is clear, as is who is saying it. Further, the "how" and "when" is unmistakeable. These aspects of the recording imbue most of it with considerable probative value.

Further, it does not lessen the recording's probative value because there will be evidence that Mr. Vertentes-Arruda was under the influence of alcohol and drugs during the relevant events, although the defence will contend that the jury should have a reasonable doubt that he possessed the mens rea for the offences charged because of that.

It is not my role to adjudicate that issue in deciding whether to admit the recording. Doing so would confuse the threshold question that this court must decide – whether the evidence is worthy of being heard by the jury – with the ultimate question that is exclusively for the jury to determine: what weight, if any, to place on the recording: Hart , at para. 98.

That said, I am hard-pressed to conclude that anything captured on the recording after 3:56:50 has any probative value. At that point, one can hear Ms. Vertentes-Arruda calling out for her mother, followed shortly by Ms. Mesquita joining in. There is no dispute that by that point Maria Manuela Correia was still in the home, dying, or already dead. Of course, their calls ultimately went unanswered.

As a result, the portions of the recording after 3:56:50 have no probative value. In other words, they have no bearing on the material issue in this case.

Prejudicial effect

The law primarily aims to prevent two potential forms of prejudice that proffered evidence may sometimes occasion; moral prejudice and reasoning prejudice.

"Moral prejudice" concerns the risk that the evidence will engender an emotive rather than a reasoned response from jurors. The law endeavours to guard against the admission of evidence that appeals to jurors' prejudices or has such an overpowering effect on their emotions that it will interfere with their capacity to evaluate it rationally and objectively.

Some exclusionary rules of evidence have their justification in that sort of concern, like the rules which generally foreclose evidence concerning a sexual assault complainant's prior sexual history, or an accused's uncharged criminal conduct.

However, in cases where evidence likely to result in moral prejudice evades an established exclusionary rule – for example, gruesome crime scene or autopsy photographs – the court's discretion to exclude evidence which is more prejudicial than probative serves as a means of safeguarding the integrity of the trial process from its potential caustic effects: see Paciocco, Paciocco and Stuesser , at p. 52 ; Handy , at paras. 31, 42, 72; Hart , at para. 74; R. v. D. (L.E.) , [1989] 2 S.C.R. 111, at pp. 127-128.

"Reasoning prejudice" concerns evidence that can distract the jury from what should be its proper focus. This relates to situations where, for example, the evidence will inordinately consume valuable court time, redirect attention towards extraneous matters, or impair the jury's ability to assess it rationally and dispassionately: see Paciocco, Paciocco and Stuesser, at pp. 52-53; Handy , at paras. 31, 42, 72; Hart , at para. 74; R. v. Ansari, 2015 ONCA 575 , at para. 108.

Finally, prejudice can result from admitting evidence if, "There was a significant unfairness associated with obtaining it, such that it would render the accused's trial unfair": Schneider , at para. 59; see also Buhay , at para. 40.

In this case, the only operative concern relates to moral prejudice; the risk of the recording having an overpowering effect on jurors' emotions and interfering with their capacity to evaluate it (and the case more generally) rationally and objectively.

To be sure, the sounds captured on the recording are, at several points, disturbing. Ms. Vertentes-Arruda's screams as the flames initially engulf her are challenging to listen to, as are her cries for Mr. Vertentes-Arruda to stop as he assaults her.

Finally, only the most hardened person would not be profoundly impacted by hearing Ms. Vertentes-Arruda frantically calling out for her mother, especially knowing that her mother could not answer her calls, because she lay dying or dead inside the burning home.

That said, as the Supreme Court of Canada has recognized, "Trials are not, nor are they meant to be, tea parties": Groia v. Law Society of Upper Canada , 2018 SCC 27 , [2018] 1 S.C.R. 772, at para. 3.

The crimes charged in this case are by their very nature horrific. There is simply no escaping any of that.

To the extent that what jurors hear on the recording will impact them viscerally, I am not satisfied that it carries an undue risk of occasioning prejudice.

In saying that, I am mindful that a warning and a limiting instruction will precede its introduction. The court will caution the jury that they may find what they hear disturbing. At the same time, the court will remind them of their obligation to evaluate the evidence in this case rationally and objectively, without sympathy.

Conclusion

For these reasons, Mr. Vertentes-Arruda has failed to establish that the recording's prejudicial effect, at least before 3:56:50, outweighs its probative value. That portion of the recording is, therefore, ruled admissible.

However, after 3:56:50, nothing captured on the recording has any probative value. Given its potential prejudicial effect, that portion of the recording is inadmissible.

As a result, the Crown may proffer the entire video recording into evidence. However, the audio from the recording after 3:56:50 is ruled inadmissible.

Certificate of Transcript

FORM 3

ELECTRONIC Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Amanda Speers, certify that this document is a true and accurate transcript of the recording of R. v. Helder Verentes-Arruda in the Superior Court of Justice held at 7755 Hurontario St, Brampton, Ontario, taken from Recording No(s). 3111_215_20240326_085020__30_STRIBOJ.dcr, which has/have been certified in Form 1.

September 16, 2024 (Date) (Electronic Signature of Authorized Person)

2310721777________________ (Authorized Court Transcriptionist's Identification Number)

Ontario, Canada. (Province of Signing)

*This certification does not apply to the Ruling which was judicially edited.

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.