



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Munoz-Hernandez, 2019 ONCA 870

DATE: 20191105

DOCKET: C61045

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronny Munoz-Hernandez

Appellant

Amy J. Ohler, for the appellant

Gavin MacDonald, for the respondent

Heard: October 29, 2019

On appeal from the conviction entered on January 14, 2015
    by Justice Nola E. Garton of the Superior Court of Justice, with reasons
    reported at 2015 ONSC 243.

REASONS FOR DECISION

[1]

Ronny Munoz-Hernandez  charged with second degree murder in the tragic death
    of Adriel Garcia, Jessica DaSilvas, five-and-a-half-month-old son  appeals
    his conviction of the included offence of manslaughter. His sole ground of
    appeal is that the trial judge erred by applying uneven scrutiny to the Crown
    and defence evidence.

[2]

Uneven scrutiny is a notoriously difficult ground of appeal, often
    amounting in substance to an invitation to retry the case. That is the case
    here, and the appeal must therefore fail.

[3]

Mr. Munoz-Hernandez does not dispute that young Adriel died as the
    result of intentionally applied, significant force that caused a massive, fatal
    brain injury. Nor does he contest that on September 12, 2010, when the boy was
    brought, comatose, to the hospital, his body was covered in extensive bruising caused
    by the intentional application of force.

[4]

Only two people, Mr. Munoz-Hernandez and Ms. DaSilva, had the
    opportunity to cause the fatal injury: Mr. Munoz-Hernandez, while babysitting
    the child when Ms. DaSilva was at a wedding; and Ms. DaSilva, upon returning
    from the wedding at 3:00 a.m.

[5]

Both Mr. Munoz-Hernandez and Ms. DaSilva testified. Mr. Munoz-Hernandez
    accepts that given the significant difficulties with his own evidence, the
    trial judge was entitled to disbelieve it beyond a reasonable doubt. His appeal
    centres on the trial judges decision to accept the heart of Ms. DaSilvas
    testimony beyond a reasonable doubt.

[6]

There were numerous inconsistencies in Ms. DaSilvas testimony: in the
    hours leading up to Adriels death, Ms. DaSilva told a cavalcade of lies to
    friends and family about who was caring for him; she misled the court when
    narrating her life after Adriel was born; she lied under oath at the hospital to
    the police by offering an elaborate, false story about Clara, a fictitious
    baby-sitter whom Ms. DaSilva said had care of Adriel until the morning he was
    taken to the hospital; and she failed to remember large swaths of the narrative
    surrounding Adriels death. Mr. Munoz-Hernandez argues that the trial judge downplayed
    the grave problems with her evidence and failed to explain why these
    infirmities did not undercut her credibility and reliability generally. He contends
    that the decision to credit Ms. DaSilva resulted from uneven scrutiny in the
    following ways.

[7]

First, some of the specific uneven scrutiny submissions revolve around
    the trial judges keystone finding that Mr. Munoz-Hernandez had volunteered to
    babysit Adriel while Ms. DaSilva was at the wedding. This issue took on
    importance because Mr. Munoz-Hernandez claimed that he did not volunteer to
    watch Adriel. Rather, Ms. DaSilva foisted Adriel on him against his will
    because she was afraid that a babysitter would see the bruises she had
    inflicted on the child. Specifically, Mr. Munoz-Hernandez contends that the
    trial judge acted unevenly in coming to this conclusion by:

·

Using Mr. Munoz-Hernandezs minimization of his relationship with
    Ms. DaSilva and Adriel as a discreditable attempt to create doubt about whether
    he would volunteer to care for Adriel, while disregarding Ms. DaSilvas
    minimization of her relationship with him; and

·

Ignoring evidence that supported the credibility of his denial of
    volunteering to babysit, including: (1) his care-giving history, and (2) his
    apparent disinterest in Adriel as shown by repeatedly leaving Adriel alone when
    babysitting. The trial judge instead used this finding of disinterest as
    support for Mr. Munoz-Hernandezs animus against Adriel.

[8]

Second, Mr. Munoz-Hernandez has further concern with the trial judges
    animus finding. He claims that the trial judge disregarded Ms. DaSilvas demonstrated
    indifference toward Adriel, as well as a comment she made about his crying,
    while using similar evidence as proof of animus on the part of Mr.
    Munoz-Hernandez.

[9]

Third, he argues that the trial judge treated Ms. DaSilvas evidence
    that Mr. Munoz-Hernandez was not prone to becoming frustrated with the baby as a
    demonstration of her honesty, but Mr. Munoz-Hernandez was not credited for the
    positive comments he made about her parenting. Instead, any negative comments he
    made about her parenting were treated as evidence of his eagerness to criticize
    Ms. DaSilva.

[10]

Fourth, the trial judge found that Mr. Munoz-Hernandez told Ms. DaSilva
    to lie about Clara because he stood to benefit from the story, while failing
    to recognize that Ms. DaSilva also stood to gain from the creation of a
    third-party suspect.

[11]

Finally, the trial judge speculated needlessly about how Mr.
    Munoz-Hernandez could have been responsible for the wet spot on the comatose
    childs clothing and could have dragged the playpen back into the bedroom after
    Adriel was found unconscious, when the playpen was beside the inflatable bed in
    the living room.

[12]

We do not accept that the trial judge applied different standards in
    assessing the evidence of the appellant and the complainant. In the following
    analysis, we choose not to track the precise order of issues just presented.
    Doing so would create unnecessary overlap. We will therefore begin by
    addressing the general submission that the trial judge downplayed or failed to
    explain why the concerns with Ms. DaSilvas testimony did not create a
    reasonable doubt, and then we will address, as convenient, each of the specific
    objections taken to the trial judges reasoning.

[13]

We reject the submission that the trial judge downplayed the concerns
    with Ms. DaSilvas evidence. The trial judge recognized repeatedly that Ms. DaSilva
    lied to friends and family about Adriels care, gave a false account of her
    life after Adriel was born, lied to the police about Clara, and that much of
    her evidence was unreliable. Moreover, she admonished herself more than once
    that Ms. DaSilvas evidence must be examined very carefully and with great
    caution.

[14]

Nor were the frailties in Ms. DaSilvas evidence disregarded. The trial
    judge openly identified the weaknesses with Ms. DaSilvas testimony that Mr.
    Munoz-Hernandez relies upon. More importantly, having appropriately cautioned
    herself, the trial judge did not simply take Ms. DaSilva at her word. She accepted
    Ms. DaSilvas innocent account because it fit the evidence, unlike Mr.
    Munoz-Hernandezs account.

[15]

There was no evidence that Adriel had ever shown bruising or injury
    before, despite having been in Ms. DaSilvas primary care for his entire life. There
    was evidence that Adriel did not have bruising the day before the wedding. It was
    implausible that Ms. DaSilva would suddenly begin striking and bruising him in
    the hours leading up to the wedding, or that after an enjoyable time at the
    wedding she would come home and forcefully abuse Adriel because she had
    exchanged words with Mr. Munoz-Hernandez. The trial judge was entitled to find
    that if such an assault occurred, it is most unlikely that Mr. Munoz-Hernandez
    would have slept through it, yet he offered no evidence of hearing any such attack.
    In these circumstances, the foundation for the theory that Ms. DaSilva
    inflicted the injury was weak.

[16]

In contrast, the trial judge was entitled to accept evidence that Mr.
    Munoz-Hernandez exhibited animus towards Adriel when Adriel was in his care, by
    telling a friend that Adriel was a cry baby and bragging that, for this
    reason, he had put hot sauce on Adriels lips, and put him in the fridge and a
    cold bath.

[17]

The trial judge found that the indifference Mr. Munoz-Hernandez showed to
    Adriels welfare by leaving him alone in the apartment on three separate
    occasions when he was supposed to be watching him supported her animus finding.
    This finding did not demonstrate uneven scrutiny. Unlike the indifference Ms.
    DaSilva may have shown in Adriels caregiving on other occasions, Mr. Munoz-Hernandezs
    indifference had specific relevance. It was exhibited when Adriel was in his
    care, during the time period in which the fatal head injuries could have been
    inflicted.

[18]

Moreover, this demonstrated indifference was not consistent with Mr.
    Munoz-Hernandezs innocent claim that he put the playpen next to the bed
    because he wanted to be near the child as he slept. The trial judge was
    entitled to find that his decision to move the playpen and put Adriel next to
    him was more logically explained by Mr. Munoz-Hernandezs concern that, even before
    Ms. DaSilva returned home, the child was in trouble, showing the symptoms of
    distress that a brain-injured child would exhibit. Mr. Munoz-Hernandez now had
    reason to be worried about Adriel.

[19]

This inference was bolstered by the observations of the childs
    condition by Mr. Munoz-Hernandezs friend, Jhon Molina, shortly before Ms.
    DaSilva returned, and by Mr. Molinas testimony about Mr. Munoz-Hernandezs
    attempts at nursing the distressed child. Simply put, Ms. DaSilvas
    indifference did not warrant the attention in the trial judges decision that
    Mr. Munoz-Hernandezs disinterest did.

[20]

Nor is it surprising that the trial judge focused on Mr.
    Munoz-Hernandezs lukewarm description of his relationship with Ms. DaSilva and
    Adriel, but not on Ms. DaSilvas lukewarm description of her relationship with
    him. His account took on specific relevance in the light of his testimony, but
    her relationship evidence was and remained an unimportant aside.

[21]

Mr. Munoz-Hernandezs contradicted description of his relationship with
    Ms. DaSilva took on importance because he claimed that Ms. DaSilva forced him
    to take Adriel out of fear that another babysitter would see the bruises she
    had left. If he admitted to a close relationship with Ms. DaSilva, it made Ms.
    DaSilvas alternative version, that Mr. Munoz-Hernandez had in fact volunteered
    to watch Adriel, more plausible.

[22]

There was other contradictory evidence that exposed his account as
    false, thereby reinforcing the trial judges conclusion that Mr.
    Munoz-Hernandezs relationship evidence was part of his effort at deception. First,
    the day before the wedding, Ms. DaSilva showed no fear in letting her second cousin,
    Ashley Martins, see a happy and healthy Adriel. Ashley observed no bruising. Second,
    Mr. Munoz-Hernandezs own account of the relevant event discredited his claim
    that Ms. DaSilva left Adriel with him to conceal her own guilt. He described
    seeing only insignificant bruising when changing Adriel after Ms. DaSilva left,
    undermining the foundation for his own story. Moreover, Mr. Munoz-Hernandezs
    version was implausible, as he made no attempt to confront her about bruising,
    nor did he check if Adriel was really bruised when she first told him. It was
    in this context that Mr. Munoz-Hernandezs contradicted claim of disinterest in
    his relationship with Ms. DaSilva and Adriel took on importance. Ms. DaSilvas
    description of her relationship with Mr. Munoz-Hernandez never took on such
    significance.

[23]

The trial judges decision to act on the heart of Ms. DaSilvas testimony
    also received substantial support through Mr. Munoz-Hernandezs after-the-fact
    conduct.

[24]

Specifically, the trial judge was entitled to treat Mr.
    Munoz-Hernandezs musings about how awful it would be to be put in jail in
    Canada, made after Adriel became ill, as an expression of concern about his own
    jeopardy.

[25]

Mr. Munoz-Hernandez also left the hospital where Adriel was being
    attended to, stole his brothers drivers licence, fled to Montreal, assumed a
    new identity, and remained in hiding for close to a year.

[26]

In contrast, after telling the Clara story to the police, Ms. DaSilva
    asked to be re-interviewed by the police, retracted that story, and disclosed
    how Mr. Munoz-Hernandez was the babysitter, without suggesting that he was
    responsible for the injury or attempting to cast suspicion on him.

[27]

This latter feature has obvious relevance to Ms. DaSilvas credibility.
    It carries more significance than the positive things Mr. Munoz-Hernandez said
    about Ms. DaSilvas parenting, given that Mr. Munoz-Hernandez also provided
    negative information about her care for Adriel. It was natural and appropriate that
    the trial judge would give more focus to the positive things Ms. DaSilva said
    about Mr. Munoz-Hernandez in her decision.

[28]

We agree with Mr. Munoz-Hernandez that the lies that Ms. DaSilva told at
    the hospital about Clara would have benefited not only Mr. Munoz-Hernandez, but
    also Ms. DaSilva because they both had the opportunity to harm Adriel. The
    trial judge should not have treated Mr. Munoz-Hernandez as the only one who could
    benefit from the lie. However, this flaw in the trial judges reasoning does
    not signal uneven scrutiny. She gave several reasons for accepting Ms.
    DaSilvas claim that Mr. Munoz-Hernandez initiated the lie, including that this
    account is consistent with his statements about being afraid of going to jail;
    he was not shy about telling Ms. DaSilva what to do; and unlike Mr.
    Munoz-Hernandez, Ms. DaSilva did not attempt to avoid the police. Indeed, she
    is the one who retracted the Clara story and did so without attempting to
    implicate Mr. Munoz-Hernandez, the only other potential suspect. This event
    supports an inference that it was not Ms. DaSilva who was looking for
    alternative suspects; it was Mr. Munoz-Hernandez, the one who felt the need to
    flee.

[29]

We also agree with Mr. Munoz-Hernandez that in order to resolve the case
    the trial judge did not have to determine how Adriels shirt became wet when he
    was comatose, or how the playpen got back into the bedroom. However, the trial
    judges passive observations that Mr. Munoz-Hernandez had the opportunity to
    produce both these outcomes does not indicate an imbalance in evaluating the
    evidence. Instead, it reflects the trial judges careful attempt to address all
    the evidence in the case.

[30]

Uneven scrutiny did not occur. The trial judge was entitled to make the
    credibility findings that she did, and to come to the decision that she did.

[31]

The appeal is therefore dismissed.

M.L. Benotto J.A.

David Brown J.A.

David M. Paciocco
    J.A.


