WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:
486.4 (2.1) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) Mandatory order on application — In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
B.C.
Before Justice M. Sean Gaudet
Heard on June 2, 3 and September 3, 2025
Reasons for Judgment released on November 10, 2025
Stuart Rothman counsel for the Crown
Lorant Kiss counsel for the defendant B.C.
Gaudet J.:
Introduction
1The defendant, B.C., is charged with assaulting his former spouse, F.G. and their eldest son, Y.C. on February 6, 2024, contrary to section 266 of the Criminal Code. It is alleged that the defendant pushed F.G. in the entranceway of her apartment as she was attempting to prevent him from leaving with her personal smartphone, and of pushing Y.C. as he came to the aid of his mother.
2The defendant admits that he applied force to his ex-wife and to their son but claims that he was acting in self-defence.
3The central issue at trial is therefore whether the Crown has proven beyond a reasonable doubt that the defendant was not acting in self-defence during the altercation where he is alleged to have pushed the complainants away from him when trying to leave the apartment.
4The defendant was also originally charged with a count of theft, namely of stealing the smartphone belonging to F.G. The Crown withdrew this charge at the outset of the trial.
The position of the Crown and the Defence
5Counsel for the Defence argues that the defendant acted in self-defence. The defendant and his ex-wife were arguing heatedly in her apartment over F.G.’s alleged infidelity. As the situation was escalating it became clear to the defendant that he had to leave the apartment. He was afraid that F.G. might become physical, and it was his right to leave the apartment.
6However, as the defendant was trying to leave the complainants grabbed him, which amounted to their applying force to his body to prevent him from leaving. The amount of force he used to remove their hands from his body was proportionate and reasonable in order to respond to the situation where he was being physically prevented from leaving the apartment.
7The Crown argues that the principle of self-defence does not apply in this case. The defendant’s purpose in pushing away F.G. and Y.C. was not to defend himself but to leave the apartment with F.G.’s smartphone in order to take away evidence of her infidelity. Nor were defendant’s actions were not reasonable under the circumstances; he could have ended the situation by simply returning the smartphone to the complainant. In terms of the defendant’s role in the incident, he was the instigator, not the victim. The force applied to push the complainants was disproportionate and unnecessary.
Background to the incident – the marital dynamic
8The defendant and F.G. are originally from Morocco, where they were married in 2009. They came to Canada in 2011, and took up residence in Toronto. They have two sons, who were aged 12 and 8 at the time of the incident. The complainant Y.C. is their eldest son.
9At the time of the incident F.G. worked at a bakery making cookies and cakes, while the defendant worked in the information technology field.
10F.G initially described their relationship as being generally positive. She testified that approximately ten years before the incident took place the defendant’s behaviour changed, and he began to display controlling behaviour. She testified that he controlled every aspect of her behaviour – her work, her finances, and her personal relationships, including her interactions with their children. He even chose her friends, and most of her friends were the wives of his friends. The defendant made her wear a hijab during their relationship, which she removed after her separation from him.
11The defendant testified. He devoted much of his testimony to the nature of his relationship with F.G. prior to the February 6th, 2024, incident, and her betrayal. He described their relationship in very different terms from F.G. His evidence was that their relationship was characterized by mutual trust and loyalty, despite having the typical ups and downs experienced by every relationship. The relationship began to deteriorate in the spring of 2022, when he began to notice changes in her attitude and behavior, such as her sending photos of herself with parts of her body uncovered.
12When asked to respond to the suggestion that the defendant was “controlling”, in particular in relation to financial matters, the defendant testified that consistent with the way things are when he comes from, the man is the provider and the wife stays home. According to him, both he and F.G. were happy with this arrangement. He also noted that she had access to the joint chequing account and credit cards.
13In April 2023 the defendant discovered evidence of his wife’s betrayal. The defendant had access to F.G.’s Instagram and Facebook accounts for him to post advertisements for her home cooking business, which is where he found intimate messages on her social media between her and a male work colleague. He logged on to F.G’s phone when she had left it in the bathroom, and found “love messages” with her colleague. He confronted F.G. about it, and she asked for a divorce.
14Given the defendant’s conservative religious background, this was not acceptable to him. He described the situation as having a traumatic effect upon him, and described himself as being in a state of shock. He testified that “This is not us, this is not how we were raised, this is not the type of people we are.”
15The defendant refused to accept F.G.’s wish for a divorce. He wanted to preserve his family. He wanted a reconciliation.
16During the course of his testimony the defendant testified that F.G. became addicted to pills given to her by someone from her workplace – originally to deal with headaches she was suffering from – and that she asked the defendant for money ostensibly to purchase gifts for an upcoming trip to Morocco in the summer of 2023, that she in fact used to buy more pills. The defendant also described F.G. as being compromised by this work colleague, who became her lover.
17I noted during the examination in chief of the defendant that this evidence was not put to the complainant by defence counsel during her cross-examination, which gave rise to Brown v. Dunne fairness concerns. The parties addressed the impact of this omission in final submissions, which I turn to later in this judgment.
The incident of February 6, 2024
18In February 2024 the defendant and the complainants were living apart. F.G. was living in an apartment on the 9th floor of a high rise building with their two sons; the defendant was living in a separate home.
19The evidence of the complainants and that of the defendant was at odds in material respects with respect to what happened on February 6, 2024. I address each version of events in turn.
F.G.’s evidence
20F.G. testified that on the date of the incident, she and the defendant had been separated for about 5 to 6 months. The defendant did not accept their separation, and would come to F.G.’s apartment on occasion.
21On February 6, 2024, the defendant came to F.G.’s workplace at around 2:00 p.m. – three hours before the scheduled end of her shift. Before he showed up at her place of work, he called her on her phone and was screaming and yelling at her. She told him that she wanted a divorce, but he insisted on creating a problem.
22When the defendant showed up at her workplace he was angry. When she saw him, she put on her hijab that she kept in her locker, out of fear of him. He yelled at her to take her things and come back to the apartment. F.G. was frightened and agreed to leave her work before the end of her shift. She was afraid she was going to lose her job. Her supervisor asked her if she wanted to leave with the defendant, and she told her it was okay. She would go with him.
23At the parking lot of the apartment building he yelled at her, asking her why put on her hijab since he knew she had taken it off, and he grabbed it off of her hair.
24In the elevator on the way up to the apartment the defendant took F.G.’s smartphone out of the pocket of her coat.
25This was the only phone F.G. had. The defendant paid for the complainant’s phone and had access to her Gmail and WhatsApp accounts.
26Upon entering the apartment, he started yelling and screaming in front of the children. She did not want them to witness their fighting and wanted them to go to their room, but he insisted that they stay so that they could see what kind of mother they had.
27F.G. told the defendant that he could not take her phone. She tried to take it from him. It was in the right pocket of his coat. She followed him down the stairs and tried to take it out of his coat pocket. In the struggle for the phone she ripped his coat.
28At the bottom of the stairs by the door the defendant pushed F.G. to the ground with two hands. As she tried to get up he pushed her down with his foot.
29F.G. testified that she saw her son, Y.C. try to push his father away, and that the defendant pushed Y.C. and his head hit the wall. She testified that she then lost consciousness.
30When she regained consciousness, neighbours from the apartment across the hall came were in her apartment and took her upstairs.
31F.G. stated that she suffered injuries: she could not move her right hand and injured her face, she was semi-paralyzed because of her stress. Her neighbour called 911, and she was taken by ambulance to the hospital. In cross-examination F.G. conceded that she was released from the hospital without any injuries.
32The incident at the doorway occurred only a few minutes after F.G. and the defendant arrived at the apartment.
Y.C.’s evidence of the incident
33The parties eldest child, Y.C. testified. He is 12 years old. He testified that on February 6, 2024, he and his brother had come home from school around 3:45 p.m. His parents came home soon thereafter. They were arguing. His mother told them to go upstairs, but their father insisted that they stay. They continued arguing. He could not recall what they were arguing about, but for his mother asking her father to give her phone back, but his father kept ignoring her.
34His father tried to leave the house by running down the stairs. His mother was following behind him, pulling on him. His mother was trying to grab her phone out of his pocket. At that point he saw the defendant push his mother on to the stairs with two hands. He observed her trying to get up but she could not. Y.C. heard his mother cry out to him for help.
35Y.C. went down the stairs to help his mother. He tried pulling his father back, to keep him inside the apartment. His father managed to remove Y.C.’s hands and pushed his chest with one hand, which caused him to fall back and his head to hit the wall.
36Then his father left the apartment, going in to the hallway. He initially ran to his right, and then turned around and ran back to his left, dropping personal items such as some cards and his glasses.
37After his father left, the neighbours arrived. Together they carried his mother up the stairs to the living room.
The defendant’s evidence of the incident
38The defendant’s testimony about the February 6th 2024 incident began with his description of efforts he was making to effect a reconciliation with F.G.. Their wedding anniversary had been on January 30th. He bought her gifts and invited her to dinner. He wrote her a poem.
39On February 6th 2024 at approximately 3:00 p.m. the defendant found out that F.G. was still in a relationship with her colleague from work. He phoned her at work, but she did not answer the phone. He drove to her workplace, spoke to her supervisor and told her that he wanted to speak to his wife. When F.G. came out he told her to pack up her things, and to come with him. She asked him what he wanted to talk about, and he responded “just pack your stuff and let’s come out – let’s go talk”.
40The defendant described his state of mind at this time as being irritated and frustrated – the first time F.G. had cheated on him he could forgive, but this was the second time. Things were different. With possession of her phone, he had evidence of her betrayal. Her reputation was on the line, and this evidence of her betrayal of him would not be good for her reputation either with her family, his family, or anyone else. It would also be bad for her in terms of having custody of the children.
41The defendant denied trying to touch F.G. in the parking garage of her apartment and denied that he tried to grab her hijab.
42They went up the elevator to the floor of her apartment. In the elevator, the defendant realized that the evidence of her betrayal was on her smartphone, he saw it in her pocket, so he reached into her pocket and grabbed it, without any resistance from her.
43Once they entered the apartment, they both went up the stairs to the living room. Their children were at home. F.G. told the children to go upstairs, but he insisted that they stay. He admitted that she asked him to give her the phone back, and that he said no.
44The defendant thought that the situation was going to escalate so he turned to leave the apartment. After he opened the door, she grabbed on to his jacket. He turned around and, as he described it, “let go of her hands”. He did not push her. Because of the force that she was applying to him, after he let go of her hands she leaned against the wall. He did not push on her with his foot. His son then grabbed on to him. He “let go of his hand” as well which led to him “leaning against the wall” because of the pressure Y.C. was applying against him. In his evidence, he simply released his son, rather than pushed him.
Analysis
The Browne v. Dunne concerns
45When the defendant testified in chief, he brought with him a notebook that contained key points that he wanted the Court to hear about incidents involving F.G. that led to the incident of February 6th 2024, so that the Court could appreciate that it was he who was the real victim on this case, not the complainants. This included the defendant’s evidence about F.G.’s alleged drug use, about how she got into a relationship with her work colleague because he offered her drugs to deal with a headache, that she was taking anti-depressant and anti-anxiety medication before the incident. The defendant testified to other sensitive personal matters well, in particular an abortion the defendant stated she underwent in 2022. These matters were not put to the complainant by the defence in her cross-examination.
46The defendant did not seek permission from the Court to rely on this notebook prior to testifying, and once it became known that he was relying on this material to assist his testimony he was instructed to stop doing so.
47The cross-examination of the defendant was conducted some three months after his examination in chief. The Crown asked the defendant to produce the notebook that he had taken up with him to the stand. He did not have it, and the Crown did not seek an adjournment for him to retrieve it.
48In R. v. Quansah, 2015 ONCA 237, the Court of Appeal dealt with the application of the rule in Brown v Dunne, which requires a party to put to a witness of an opposing party contradictory evidence that the party intends to introduce through their own witness. The rule is rooted in the principles of fairness to the witness whose credibility is attacked (in this case the complainant F.G.), to the party whose witness is impeached (in this case, the Crown), and to the trier of fact.
49In my view there were instances where the defendant gave evidence that fell afoul of the rule in Brown v Dunne. The defence conceded that the evidence about these matters was not relevant – evidence about the complainant’s pill use, the abortion, the complainant being compromised by her co-worker over her alleged addiction, and her using funds given to her to buy these drugs – and that it was not relying upon them.
50In my view none of this evidence is relevant to the central issue that I have to decide in this case, specifically whether or not the Crown has established beyond a reasonable doubt that the defendant did not act in self-defence. None of my credibility findings about F.G. are impacted by this evidence. Nor could they be, since she was given no opportunity to respond to them.
Credibility Findings
51Credibility assessments are not winner take all contests. I can choose to believe some, all or none of the defendant’s testimony.
52Overall, I found the complainant F.G. to be a credible and reliable witness. Her evidence was overall consistent with the evidence of her son. It was internally consistent. She admitted that she initiated the physical contact with the defendant when she tried to physically prevent him from leaving her apartment.
53Generally F.G.’s evidence bore the hallmarks of honesty. There was one area where her evidence was inconsistent with her previous statement to the police. F.G. testified that when the defendant pushed her to the ground he kicked her to prevent her from getting up. She failed to mention being kicked to the police when she gave them her statement on February 7, 2024. Portions of the video recording of her statement was played for the witness in Court, and while she did state that the defendant pushed her again and again when she was down, the video shows that she was gesticulating with her hands when using the word “push”. Additionally, her son’s evidence was not corroborative on this point. The defence suggests that F.G.’s evidence about the kick is a recent fabrication.
54On this point, I believe the evidence of the defendant that he did not kick the complainant after she had fallen to the stairs. It may be this evidence is a recent fabrication intended to cast the defendant in a more negative light and therefore impacts upon her credibility, or it may be that her memory on this point is simply mistaken and impacts upon her reliability on this point. Ultimately, little turns on this, as it is admitted that the defendant applied force to the complainant using his hands, although whether he pushed her or simply let her go is in dispute.
55I find that F.G. exaggerated somewhat the extent of the injuries she claims to have suffered as a result of the incident. F.G. testified that she suffered injuries to her face and right hand as a result of the push to the ground, but admitted that she was released from the hospital without any injuries. She described swelling to the face, but she gave inconsistent evidence as to when this injury manifested itself – whether the day of the incident or a week later. She said she was referred to a neurologist, but it emerged that this referral was for a condition that existed prior to the incident.
56Ultimately, I do not find that these aspects of her testimony detract from her overall credibility on the ultimate issues in this case.
57Y.C. was a child witness, and overall I found him to be a credible witness. He provided a coherent and internally consistent narrative of what happened in the apartment between his parents. He admitted when he could not remember an aspect of the incident, for example he admitted he could not recall what they were arguing about. On the key aspect of whether the defendant pushed him with his hand, or simply let go of him which caused him to hit the wall, I prefer the evidence of Y.C. to that of the defendant.
58I did not find the defendant to be a credible witness. Rather, he presented as a witness who was trying to downplay or minimize the seriousness of his actions and of his responsibility for causing this situation to escalate to the physical encounter that occurred in the apartment. He wanted the Court to know that he was the true victim in this case.
59Overall, I found the defendant’s evidence to be self-serving. He cast himself as the wronged party, as the true victim. He described himself as a person who was raised with proper values and to do the right thing, in order to justify his actions. His undisputed actions undermined these assertions of personal virtue, however.
60The defendant admitted that he took the complainant’s phone out of her pocket without her consent, yet emphasized that she did not resist him from doing so. While admitting that he was raised not to take what did not belong to him, he justified his taking her phone without her permission as being “for the sake of his family and for the sake of knowing the truth”.
61He forced F.G. to leave her workplace before her work was done for the day, to her embarrassment and with the risk of jeopardizing her continued employment because “family came first.”
62He disputed that that the smartphone that he took from the complainant was her phone, and that really belonged to him because he paid for it and was paying for the SIM card. She was just the user of the phone, as if this were some sort of a justification for his having taken it from her and refusing to give it back, although his evidence then shifted, and he denied that he was suggesting that it was either her or his phone.
63The defendant claims he did not push his wife or son, but just let them go, as if he was holding on to them and released them, instead of them holding on to him and him pushing them away. I do not believe that the incident happened the way the defendant describes it. I find that the defendant pushed both complainants, which caused both of them to fall – F.G. to fall to the stairs and Y.C. to fall against the wall where he struck his head.
64The defendant conceded in cross-examination that he should not have insisted on his children being present during the argument with his ex-wife. If he could do it all over again, he would have had the “conversation” about F.G.’s infidelity in the parking lot, not in the apartment. This expression of regret appeared genuine, but did not serve to rehabilitate the defendant’s overall credibility.
The Crown has established beyond a reasonable doubt that the defendant was not acting in self-defence
65It is not disputed by the defence that the defendant used force against the complainants without their consent, and with the knowledge that they did not consent.
66The Court of Appeal in R v Reid, 2003 CanLII 14779 (ON CA), [2003] O.J. No. 2822 (ONCA) at para. 72 instructed trial judges to apply a modified W.D. test in cases where self-defence is raised and a W.D. instruction is warranted. This principle is directly applicable to this case. Accordingly, the first two steps in W.D. I must apply are as follows:
If I accept the accused's evidence and on the basis of it I believe or have a reasonable doubt that he was acting in lawful self-defence I must find the accused not guilty.
Even I do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence I must find the accused not guilty.
67To answer these questions in the modified W.D. analysis, I must also consider the relevant self-defence provisions in section 34 of the Criminal Code, which reads in material part as follows:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
68The three requirements in section 34(1) are conjunctive. In other words, the Crown bears the onus of proving beyond a reasonable doubt that the answer to at least one of the requirements in section 34(1) is “no”.
69To satisfy the requirement in s. 34(1)(a) the defendant must subjectively believe that force or a threat of force was being used against him or another person. The Crown concedes this requirement in this case. The complainants were applying force against the defendant by grabbing on to him to try to prevent him from leaving the apartment with F.G.’s phone.
70I find that the defendant has not satisfied the second requirement. The defendant did not push away the complainants to defend or protect himself from the use of force. His subjective purpose was to take away F.G.’s phone, because it contained all the evidence of her renewed infidelity during a period when he thought they were trying to reconcile.
71I also find that the defendant’s acts in pushing the complainants with sufficient force that F.G. fell on to the stairs and Y.C. fell against the wall were not reasonable in the circumstances, within the meaning of section 34(1)(c). In making this determination I have considered the relevant circumstances of the defendant, the complainants and his acts.
72The amount of force being applied to the defendant was minimal – they were holding on to him.
73There were other means available to the defendant to respond to the use of force applied by the complainants. He could have defused the entire situation just by giving the complainant back her phone. He knew that she needed this phone to communicate with her family, for her work, to communicate with anyone. This was unimportant to the defendant. He refused to return the phone to her because it contained the evidence that he needed of her alleged infidelity that he could show to her family to show that she was the true guilty party. It had the evidence of everything that she was doing. He needed to have hard evidence of her betrayal.
74The key factor here is the defendant’s role in the incident – the criterion in section 34(2)(c). The defendant narrowly focusses on the physical altercation at the door of the apartment, at the very end of the incident. However, in assessing self-defence, I must pay close attention to the entire factual context and the tableau of the evidence and not limit my consideration to the evidence of what occurred at the doorway (R. v. Cunha, 2016 ONCA 491 at para 24).
75When considering the entire factual context it is clear that the defendant was the true instigator of this incident. While he has clad himself in the mantle of victim, this is an ill-fitting garment. He is responsible for starting the chain of events that led to the incident in the doorway of F.G’s apartment.
76When the defendant found out about the complainant’s alleged affair he insisted that she leave her place of work before the end of her shift to come home with him. He did not care about the possible negative impact that her leaving her job in midst of a shift could have on her employment, because “family comes first” and he needed to have resolution of the issue immediately. He needed to have a conversation, that was what mattered to him at that moment. In other words, his needs came first.
77The defendant’s behaviour in the parking garage also is relevant in terms of the overall evidentiary context. I believe the complainant’s evidence that the defendant removed her hijab from her hair, and that he was yelling at her in the parking garage.
78There was no need for the defendant to go up to F.G.’s apartment to have the confrontation he needed to have with her. He insisted in cross-examination that even though he did not live there, it was really his apartment since he paid the rent, and his name was on the lease. In his words, he was “entitled” to the place. As previously stated, he acknowledged in cross-examination that he should not have come up to the apartment to continue the argument, where it escalated to physical violence.
79The defendant is also larger and stronger than both of the complainants. The amount of force he used was not proportional to the amount of force being applied to him. I reject his evidence that he simply let go of F.G. and Y.C., and that they fell with enough force to hit the stairs and strike the wall. I have no doubt that he pushed them both, and that the degree of force he used to push them on to the stairs and into the wall was not proportionate. This was not a case of two assailants attacking one person. Y.C. came to his mother’s aid and grabbed on to the defendant after he had pushed F.G. to the ground.
80Upon review of the totality of the evidence, I find beyond a reasonable doubt that the defendant did not act in self-defence when he pushed the complainants and find the defendant guilty on both counts of assault.
Released: November 10, 2025
Signed: Justice M. Sean Gaudet