Court File and Parties

Date: March 10, 2016

Court File No.: 15-6047

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christopher Tinglin

Before: Justice Paul F. Monahan

Heard on: February 8 and 9, 2016

Reasons Released on: March 10, 2016

Counsel:

• Mr. W. Dorsey for the Crown
• Mr. M. Quigley for the defendant Christopher Tinglin

MONAHAN J.:

Introduction and Overview

[1] Christopher Tinglin is charged that on or about December 14, 2014 that he did unlawfully in committing an assault on Mariam Mohamed, cause bodily harm to that person contrary to section 267(b) of the Criminal Code of Canada (the "Code").

[2] The trial took place on February 8 and 9, 2016. The Crown called four witnesses namely the complainant, Ms. Mariam Mohamed, and three police officers who were involved in the investigation: Constables Lazar, Munroe and Silvestre. The defence called the defendant Christopher Tinglin.

[3] It is common ground that Ms. Mohamed and Mr. Tinglin were in a romantic relationship from approximately November 2013 to November 2014. They lived together from approximately March 2014 to December 2014.

[4] It is also common ground that an altercation occurred between them at approximately 3 AM on December 14, 2014. Ms. Mohammed ended up with significant bruising and swelling to the right side (and to a lesser extent to the left side) of her face. She required medical attention. She testified that within a week of the incident she had 10 or 11 screws inserted in her cheek at the hospital so as to address what she understood were fractures to some of the bones in her face. Mr. Tinglin ended up with a scratch above his eye which caused some swelling and he said that he had some of his hair pulled out. Mr. Tinglin's defence was that Ms. Mohamed attacked him with a broken beer bottle and later held him by his hair so that he was bent over at his waist facing the floor and that she would not let go of him. He said he was "worried for his life". He testified that he had no choice but to strike her in the face once with the back of his hand/fist. He said he struck her only once in self-defence. He denied assaulting her as she alleged. Ms. Mohamed version of events was strikingly different: she testified to Mr. Tinglin punching her multiple times in the face on both the left and right side of her face. She testified that as that assault was occurring to defend herself she scratched him and pulled his hair and she acknowledged that she may have pulled a small amount of his hair out.

Evidence

[5] This is a so-called "she said, he said" credibility case. I will set out a brief overview of the evidence. I will in some cases expand on the evidence in the discussion and analysis section below.

Video Clip

[6] Mr. Tinglin took a video of part of the interaction with Ms. Mohamed. I start with a transcription of the video. The video clip captures the period of time shortly before the alleged assault by Mr. Tinglin or the alleged act of self-defence by Mr. Tinglin. As a result, in my view, it is helpful for setting the context in which the offence is alleged to occurred. The transcription is simply based on the Court having watched and listened to the video and sets out what appears to have been said and to have taken place on the video.

[7] A transcription of what is said on the video is as follows:

Mohamed: [yelling]

Tinglin: you see how she is acting, if she touches me something is really going to happen. I am sitting down here [inaudible] she comes to touch me.

[Mr. Tinglin is seen sitting smoking relaxed on the couch with his feet crossed]

Mohamed: me I have nothing else to lose I am done-my life is over-hold that lighter to me all that you want because Mariam does not give a fuck anymore. Say (inaudible) don't give a fuck about her anymore I don't care I don't care that is what you lose-you lost sight of

Tinglin: yo the girl threw a glass after my fucking head, a candle bro that touch me.

Mohamed: the same fucking eye injury that I had that has been documented

Tinglin: oh well you brought it on yourself. Don't touch a [expletive]. – [expletive] don't even fuck with me on the street. What is fucking wrong with you?

Mohamed: as you want to be a little bitch right

Tinglin: if that is what it is yo. My mother raised no fool. I ain't supposed to hit no girl but no girl is supposed to hit me either and get away with that- that shit – fucking nuts. I am going to sit here and be a beaten stick-yo right. You want to throw glass you are fucking nuts bro-who does that-throw glass at someone's head. If that hit me in the head bro – wow. Fucking glass – go get [inaudible] out. That is what you want someone to be there with you-if you throw in a thing it is on camera.

Mohamed: take that shit off of me

[can hear some slapping/hitting]

Tinglin: stop touching me

Tape ends.

Mariam Mohamed

[8] Ms. Mohamed testified that she was in a romantic relationship with Mr. Tinglin from approximately November 2013 in November 2014. She testified that she was working as an escort during some or all of the time that they were together and afterwards. They lived together from March 2014 through to December 2014. They continued to live together after they broke up.

[9] In the day or two leading up to the events on December 14, 2014, Ms. Mohamed's grandmother had died. She asked Mr. Tinglin if she could have the house to herself for that night and had offered to pay for a hotel for him if he really needed it and didn't have anywhere else to stay. When he asked by text "where am I to go" she told him to just forget about it.

[10] She was out during part of the afternoon and evening of December 13 and into the early morning hours December 14. She was with a friend and they were drinking at her place in the evening. She testified that she had two drinks at her friend's house and then five drinks quickly at the club that they went out to. She acknowledged being tipsy but she said that she was not drunk. Later, in cross-examination she acknowledged that she had told police she was drunk. It is apparent from my review of the short video clip that she was somewhat intoxicated and slurring her words but she still appeared to be stable on her feet and aware of her surroundings.

[11] She testified that she came home about 3 AM on December 14, 2014. Mr. Tinglin was there. She had hoped that he would "take the hint" and not be there even though she acknowledged in cross-examination that she had said to forget that. Accordingly, she testified, and I accept, that she was upset to see him. I think it is also fair to say from her evidence that she was generally upset with him because of the breakup.

[12] She testified that he was on the couch and she asked him to get off of it because that was where she wanted to sleep. She testified that they were arguing for about 10 minutes and that the entire event was approximately 30 to 35 minutes. Is apparent to me that part of that argument is captured on the video.

[13] She testified that they ended up in the kitchen with him coming very close to her and her shoving him and that this was the first physical contact between them.

[14] She said that they fell in the kitchen after he shoved her and that she cut her foot on a broken beer bottle. He was positioned on top of her and she said he was choking her with his hands around her neck. He then dragged her by the hair from the kitchen into the living room. Once he had her in the living room, he was sitting on top of her and started to hit her in the face on the right side but he also hit her on the left side. She testified that she thought she blacked out. When he was on top of her she testified that she scratched him in the face and pulled his hair and that she took these steps try to stop the assault. She said that she might have pulled one piece of his hair out. She also testified that she cut two of her fingers and the underside of her right foot on broken glass from a broken bottle on the floor.

[15] She testified that after the assault, she saw his shadow running down the stairs and she assumed he left in his car. She didn't have her cell phone and so she pulled the fire alarm. The Fire Department came as did the police and she made a complaint to the police and gave a videotaped statement.

[16] She testified that the pain was in her face and it was pain like she had never felt before. She was also bleeding from the mouth. She was taken to Trillium Hospital where she was released. She said that approximately a week later she was treated at Mount Sinai Hospital where she said it was her understanding that doctors put 10 or 11 screws in her cheek near her eye.

[17] She has had no contact with Mr. Tinglin since December 14, 2014.

[18] She testified to thinking that he was shining a flashlight in her face at one point and that she later understood it was a cell phone.

[19] In cross-examination some inconsistencies were put to her. It was put to her that she had told police that she had been dragged by Mr. Tinglin from the front door to living room rather than from the kitchen to the living room (which she testified to in Court). She explained this by saying that the kitchen and the front door were very close and that they were really the same thing.

[20] She also acknowledged that she never told police that she blacked out which is something she told the Court in her testimony.

[21] She acknowledged she did not specifically go into detail with police as to how she had fallen in the kitchen with him putting his leg behind her leg.

[22] It was suggested to her that her entire story was a fabrication and that in fact she had attacked Mr. Tinglin with a broken beer bottle. She denied this and, as well, denied throwing anything at him at any time.

Photographs

[23] Photographs taken by police shortly after the incident of Ms. Mohammed's injuries were introduced into evidence and marked as an exhibit on consent.

[24] The video clip described above as well as six photographs of Mr. Tinglin's injuries were also marked as exhibits on consent. It is unclear precisely when these photographs were taken but they are dated December 14, 2014 on the electronic file. While there was no specific evidence on the point I consider it to be implied that they were taken by Mr. Tinglin on or about December 14, 2014. The video and the photographs produced by Mr. Tinglin were also marked as exhibits at trial on consent.

Constable Mihai Lazar

[25] Constable Lazar has been with Peel Regional Police for three years He got a dispatch call at 6:19 AM December 14, 2014. He attended at Trillium Hospital where he saw the victim in the emergency department at about 6:46 AM. He attended the hospital with Constable Silvestre. There was already another officer there and that was Constable Monroe.

[26] He attended the residence of Ms. Mohamed and Mr. Tinglin at about 11:36 AM December 14, 2014. He said there was glass on the kitchen floor but that it was not all over the place.

Constable Kenneth Munroe

[27] The Crown called Constable Kenneth Munroe. He has been a member of the Peel Regional Police for three years.

[28] He responded to a fire alarm call on December 14, 2014 and attended at the residence of Ms. Mohamed and Mr. Tinglin. He arrived on scene at approximately 6 AM on December 14, 2014. When he attended the scene he found Ms. Mohammed lying on the floor in the townhouse. There were signs of injuries. The Fire Department was already there and interacting with her. She had cuts on her feet and bruises on her face. She had been drinking. The residence was in disarray with multiple things being broken. There was glass on the ground. It led him to believe that she had stepped on the glass and cut her feet. He could not remember where the glass was. He didn't see a glass candlestick.

Constable Victor Silvestre

[29] Constable Silvestre has been a Peel Regional Police officer since August 2010. He was the arresting officer. He attended Trillium Hospital with Constable Lazar and arrived at 6:38 AM and was briefed by Constable Monroe. He met Ms. Mohamed there. He could see that the right side of her face was swollen and she was spitting out blood.

[30] By 11 AM her right eye had started to swell and was turning colour such that she was having trouble opening her eye.

[31] He took a videotaped statement from her at 1:53 PM on December 14, 2014. She vomited during the interview.

Christopher Tinglin

[32] Mr. Tinglin testified as part of the defence case.

[33] At the time of the events in question he was 30 years of age. He works in the construction industry.

[34] He indicated that he had been dating Ms. Mohammed since about October 2013. They moved in together in March 2014.

[35] He testified as to the incident which occurred around 3 AM on December 14, 2014. He said Ms. Mohamed was not initially at home. He heard her come in. He testified that she made a comment about him having a "bitch" in the house which he understood to be another woman. He did not have another woman in the house.

[36] He testified that they were "both throwing words back and forth". He said that he saw a glass candlestick holder get thrown past his face. He didn't see her throw it but he said she must have. He said she was drunk and slurring her words and acting irrationally. That is why he turned on his video camera which the Court understood to be on his phone.

[37] He said she didn't want the camera on her and he said she was attacking him trying to get his phone. He said this led him to start looking for his car keys. He ran to the kitchen and couldn't find them so he went upstairs to look for them but couldn't find them upstairs either. He heard a bottle breaking downstairs.

[38] When he came downstairs he said she was trying to slash him with the broken bottle. He said he was "worried for his life". He grabbed both of her hands and then shook the broken bottle free. This occurred in the living room. He said that he was sitting on top of her. He said she made a comment about "just kill me". He told her to go and kill herself by going to the top of a building and jumping off. He denied striking her. He said that he just held her down until she calmed down and then he got up. He said she grabbed his crotch area as he got off of her. He went back to the kitchen and saw his keys on the floor which he had not seen before. He said that there was glass all over. He said they were three bottles broken plus a broken vase.

[39] He said at that time his hair was almost down to his waist. She grabbed his hair from behind. She had him bent over facing the floor holding onto his hair such that he had to ask her to release him but she would not do so. He hit her leg three times but that didn't do anything. His said he flung his right arm up and backwards with a closed loose fist and that it must have hit her in the face. She let go. He ran straight out the door. He didn't look to see her injuries. He expressed surprise that one strike would do the injuries depicted in the photographs. He said in cross-examination that he did not think he hit her that hard.

[40] He said the whole interaction was maybe 10 minutes not 30 to 35 minutes which she had said in her testimony. He denied that he had dragged her by her hair or punched her (other than the one contact with her face as above when she would not let go of him and had him bent over and essentially unable to move).

[41] In cross-examination, he acknowledged that he was physically fit being muscular and athletic. He said he was 5 foot 7 inches and 170 pounds.

[42] He said she had pulled multiple strands of his hair out and he produced a photograph of some loose hairs and photographs of his scalp which may have shown some hair missing.

[43] He said when he ran out he "was in a panic". His level of panic as he left was the same as when she was brandishing the beer bottle.

The Law with Respect to Credibility

[44] The Supreme Court of Canada has determined the legal framework to be applied when determining credibility cases such as this one. In R v. W(D), [1991] 1 S.C.R. 742 at para. 28, the Supreme Court of Canada said that trial judges and juries should use a three-step process as follows:

(1) First, if you believe the accused, you must acquit;

(2) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and

(3) Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

[45] In applying the foregoing framework, it is important to recognize the following further points:

(1) It is clear to this Court that the criminal justice system stands on at least two critical pillars. The first is the presumption of innocence. The second is that the burden of proving all of the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to prove anything and the burden of proof never shifts to the accused: R v. S(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 9.

(2) In undertaking steps 1 and 2 of the WD framework, the Court must consider all of the evidence, not the accused's version of events in isolation: R v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) at para 15.

(3) Reasonable doubt may survive a finding that a complainant is credible: R v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 47 leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69. A similar point flows from the comments of the Ontario Court of Appeal in R v. Strong, 2001 O.J. No. 1362 (C.A.) at para 5 where the Court said:

"The question is not simply whether the complainant's evidence was reliable, but rather, when considered in the context of the totality of the evidence whether it established guilt beyond a reasonable doubt"

(4) The second step of the WD analysis needs to be carefully considered. As Justice Binnie for a unanimous Supreme Court has pointed out, a trier of fact may wonder if they believe none of the evidence of the accused how could such evidence raise a reasonable doubt. Justice Binnie for the Court explained this issue as follows: (i) even if an accused is disbelieved in part, parts of his or her testimony may be accepted and raise a reasonable doubt; or (ii) the trier of fact may simply conclude that they don't know whether to believe the accused's testimony or not. In this circumstance, the accused is entitled to an acquittal: R v. S(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 11.

(5) Even if the accused is entirely disbelieved and the trier of fact is not left in a reasonable doubt by the evidence of the accused (or other conflicting evidence), in order for there to be a finding of guilt the trier of fact must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty.

(6) The WD framework described above applies even where the accused does not testify. The WD analysis applies wherever there is conflicting evidence called by the defence or arising out of evidence favourable to the defence in the crown's case. This may include a statement of the accused adduced in the Crown's case. The conflicting evidence may be believed, or, even if not believed, may leave the Court in a state a reasonable doubt as to the accused's guilt and if so the Court must acquit (see Sopinka, Lederman, Bryant and Fuerst, The Law of Evidence in Canada (fourth edition) at para 5.99 citing R v. D(B.), 2011 ONCA 51, 266 C.C.C. (3rd) 197 (Ont. C.A.). See also David Watt, Watt's Manual of Criminal Jury Instructions (second edition) at page 271.

(7) The Court is not to treat the assessment of the evidence as a credibility contest by simply preferring the evidence of the Crown's witnesses over the defence's witnesses: R v. Hull, [2006] O.J. No. 3177 at para. 5. However, the Court is not prohibited from assessing the accused's testimony in light of the evidence as a whole including the complainant's testimony. Indeed, no witness is entitled to have their evidence considered in isolation. It must be recognized that in carrying out this exercise one possible outcome is that the Court will be left with a reasonable doubt concerning the accused's guilt: Hull at para. 5. In applying the W.D. framework, a Court can reject the evidence of an accused based on a considered and reasoned acceptance of a complainant's testimony. However, this can only be done where an accused's evidence is given a full and fair consideration and the evidence as a whole establishes guilt beyond a reasonable doubt: R v. J.J.R.D., 215 C.C.C. (3d) 252 at para. 53 and R v. Jaura, [2006] O.J. 4157 at para. 20.

(8) Inconsistencies on minor matters or matters of detail are to be expected. If there is an inconsistency on a material matter about which an honest witness is unlikely to be mistaken, it can demonstrate a carelessness with the truth: R v. M.G., [1994] O.J. No. 2086 (C.A.) at para. 27. The Court should consider the explanation for the inconsistency: R v. M(A.), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.) at para 26.

(9) The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B., 79 C.C.C. (3d) 257 (S.C.C.) at page 300; R v. M.W.M., [1998] O.J. No. 4847 (C.A.) at para 3. However, the defence does not have to prove a motive to lie by the complainant. A motive to lie is also relevant to the testimony of the accused as a witness. However, this is only one consideration in assessing the evidence of an accused and the Court must be particularly cautious not to ignore the presumption of innocence and to make an assumption that an accused has a motive to lie simply to secure an acquittal: R v. Murray, 115 C.C.C. (3d) 225 (Ont. C.A.) at para 11-14.

(10) The British Columbia Court of Appeal had this to say about the meaning of credibility: "[t]he opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he [or she] has seen and heard, as well as other factors, combine to produce what is called credibility." In that same case, the Court stated the demeanor of a witness may be considered when judging the credibility of a witness but that the "real test of the truth of the story of a witness… must be its harmony with the preponderance of probabilities which a practical and informed person would recognize as reasonable": Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at paras. 10-11. Notwithstanding the reference in the previous passage to the "preponderance of probabilities", I repeat the point made above that in a criminal case it is a fundamental requirement that all of the elements of an offence must be proved by the Crown beyond a reasonable doubt.

[46] The Supreme Court has said the following about the meaning of reasonable doubt:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high: R v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

[47] The Supreme Court of Canada has also stated that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R v. Layton, 2009 SCC 36, 244 C.C.C. (3d) 417 at para. 36 and R v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.

Discussion and Analysis

[48] I start the WD analysis with the first question being whether the Court believes the testimony of Mr. Tinglin. Taking into account all of the evidence, the Court does not believe the evidence of Mr. Tinglin. My reasons for this conclusion are set out below. I note that it is the cumulative effect of these reasons, and not any one of them, that leads me to conclude that Mr. Tinglin's evidence should be rejected.

[49] First, Mr. Tinglin's version of events runs contrary to the objective facts as to the physical stature of the complainant and Mr. Tinglin. At the time, Mr. Tinglin was a 30-year-old, 5 foot 7 inch man who appropriately described himself as "muscular and athletic". He was approximately 170 pounds at the time of the events. On the other hand, Ms. Mohamed was approximately 20 years of age and was 5 foot 4 inches or 5 foot 5 inches and weighed about 140 pounds. She was no physical match for Mr. Tinglin. Accordingly, based on their physical stature alone, the idea that Ms. Mohamed would be able to deal with Mr. Tinglin in such a manner that he would find himself "panicked" and running out of the apartment after their interaction does not make a lot of sense.

[50] Second, the photographic evidence is very telling. The photographs of Ms. Mohamed taken very shortly after the events show a woman with a seriously swollen face and an eye that can only open part way. Most of the swelling is on the right side of her face but there is some swelling on the left side as well. I accept as well that she was bleeding from the mouth. Mr. Tinglin, on the other hand, produced photographs of himself apparently taken at the time which show a small scratch above his left eye with some minor swelling and parts of his hair apparently pulled out. Ms. Mohamed acknowledged scratching him in the face in self-defence and she said she may have pulled one of his strands of his hair out. Accordingly, the scratching to his face is consistent with her story as is the loss of some of his hair. She said there were numerous other hairs of his that came out on their own prior to this incident and that they were just lying around the house and I accept her evidence in this regard. In any event, the key aspect of the photographs is the severity of the injuries suffered by Ms. Mohamed. Even Mr. Tinglin expressed surprise at the extent of Ms. Mohamed's injuries given his own story that he only hit her in the face once with the back of a loose fist. Moreover, there is no basis in Mr. Tinglin's version of events for the fact that Ms. Mohamed suffered swelling on both sides of her face. On his story, he only hit her once with a loose fist. Common sense would suggest that she would not have swelling on both sides of her face if she was only hit once. In summary on this point, the photographs, while not determinative, provide significant support for Ms. Mohamed's version of events and seriously undermine Mr. Tinglin's version of events.

[51] Third, Mr. Tinglin tells the story of Ms. Mohamed coming at him with a jagged broken beer bottle trying to slash him. He testified he was "worried for his life". On his version of events, he manages to hold her arms and shakes the broken beer bottle loose from her hand and then promptly gets up and goes to the kitchen looking for his keys and he leaves her with the jagged beer bottle. If what he says were true, she would have been able to come at him again with the jagged beer bottle which had him fearing for his life. The idea that he would leave her with the weapon that had made him fear for his life makes no sense.

[52] Fourth, on Mr. Tinglin's version of events the 20-year-old, 140 pound woman is able to hold the hair of Mr. Tinglin such that he is bent over facing the floor essentially unable to move. It is at this critical point that he alleges he acted in self-defence by banging her leg three times (which did nothing) and then swung his right arm back such that his closed right loose fist came into contact with her face just once. This interaction in and of itself makes little sense. Given the relative strength and size of each of them, I do not consider that Ms. Mohamed could possibly get Mr. Tinglin in that position or hold Mr. Tinglin down in that position such that it would be necessary for him to act as he said he did just to get away.

[53] Fifth, the fact that the police found her lying on the ground being attended to by the Fire Department is consistent with the beating Ms. Mohamed describes and inconsistent with a single blow to the face with the back of a closed loose fist. It is true that she was intoxicated and this may have affected her ability to stand but I do not think this is the reason she was lying on the ground. In the video prior to the incident, she is seen standing and walking around without difficulty.

[54] Sixth, the video clip is also very instructive. I note that Mr. Tinglin's comments include the following:

"if she touches me something is really going to happen"

"oh well you brought it on yourself. Don't touch a [expletive]. – [expletive] don't even fuck with me on the street. What is fucking wrong with you".

"if that is what it is yo. My mother raised no fool. I ain't supposed to hit no girl but no girl is supposed to hit me either and get away with that- that shit – fucking nuts. I am going to sit here and be a beaten stick-yo right" (emphasis added)

[55] Mr. Tinglin is clearly threatening on the video that if she touches him, he will assault her. On her evidence, she did touch him leading to the assault on her by him. The video evidence supports Ms. Mohamed's version of events and undermines Mr. Tinglin's version of events. It is apparent that he did what he threatened to do on the video if she touched him which she did.

[56] Let me summarize that on the first part of the WD analysis, for the foregoing reasons, I do not believe Mr. Tinglin's evidence. I do not believe that there was any broken beer bottle attack on him nor do I believe his story that he acted in self-defence. His story is a pure fabrication.

[57] The real issue in the case is whether there is any conflicting evidence which raises a reasonable doubt either under the second part of the WD test and, if not, whether based on the evidence that the Court does accept, the Court is convinced beyond a reasonable doubt of the guilt of the accused (the third part of the WD test).

[58] There were some inconsistencies in Ms. Mohamed's evidence. The defence submits that she was untruthful when she testified that she had not expected him to be there that night and the defence points to the text messages in which she told him to "forget it" in reference to her request to have him leave her alone for the night. I think that this is a very minor point. Before being confronted with the text messages, she stated in chief that "he never said yes or no" (as to whether he would leave her with the house to herself that night) which was true and consistent with the text messages. She explained that she hoped he would "take the hint" when she said she wanted to be left alone that night due to her grandmother's death. The bottom line is that this inconsistency was hardly any inconsistency at all in the Court's view.

[59] It was also submitted by the defence that she had acknowledged in chief that she was "tipsy" whereas she told the police that she was "drunk". In my view, she was candid with the Court as to the number of drinks she had consumed and the short period of time in which she had them. There was no inconsistency on this point of any significance.

[60] It was also suggested by the defence that she testified in chief to being dragged by her hair from the kitchen to the living room whereas she had stated to the police on her statement that she was dragged from the front door to the living room. She explained this alleged inconsistency by pointing out that the front door is very close to the kitchen. I accept this explanation as reasonable.

[61] In my view, the only real inconsistency in her evidence of any significance arises from the video. The video clip suggests two points. First, it suggests that she threw a candlestick or a glass at him which she denied. It also appears to me that she likely slapped him in trying to get his phone away which he was using to shine a light at her apparently as part of the video he was taking of the interaction. The inconsistency is twofold namely that during her evidence in Court she denied throwing anything at him and she said the first physical contact was in the kitchen after the video clip. In my view based on the video and related audio, she likely did throw something at him; probably a candlestick or a glass, and she likely did slap him in trying to get the phone away from him or to have him stop shining the light on her. I do not believe whatever she may have thrown at him actually hit him nor would it possibly justify an assault on her. The slapping to get the phone away is not a major inconsistency as I nevertheless believe her evidence that the real precipitating act leading to the assault did take place in the kitchen when she shoved him as he got too close to her. The fact that she did not acknowledge throwing something at him is of some concern to the Court but I do not consider that it seriously undermines the core of her story when considered in the context of the evidence as a whole.

[62] I believe that Ms. Mohamed's version of events was largely accurate and that she was largely a credible witness. She was fair and careful in her evidence. Notwithstanding some inconsistencies in her story, the core version of events she told remained the same throughout her testimony and was not contradicted in any material way. Further, her evidence made sense in the context of the evidence as a whole including the objective photographs of her injuries and the video. While no corroboration is needed as a matter of law, as a practical matter, the photographs of her injuries, the way in which the police found her lying on the floor being attended to by the Fire Department and the video clip corroborate her version of events that she was the victim of a severe beating by Mr. Tinglin. Any inconsistencies in her evidence are fully answered by the objective facts.

[63] For the reasons outlined above, there is no reasonable doubt raised by any of Mr. Tinglin's evidence or any conflicting evidence. Further, I am satisfied beyond a reasonable doubt that the Crown has proved that an assault causing bodily harm was inflicted by Mr. Tinglin on Ms. Mohamed. The injuries suffered by Ms. Mohamed, clearly apparent in the photographs taken of her shortly after the incident, well exceed the requirement for proof of bodily harm from the case law namely that the harm be more than "transient or trifling" (see R v. Moquin, 2010 MBCA 22, 253 C.C.C. (3d) 96 (Man. C.A.)).

Conclusion

[64] For the foregoing reasons, there will be a finding of guilt on the charge of assault causing bodily harm.

Released: March 10, 2016

Justice Paul F. Monahan