Her Majesty The Queen v. David Hercules, 2022 ONCJ 112

ONTARIO COURT OF JUSTICE

Date: March 16, 2022 Court File No.: Toronto, College Park 20-75002149

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DAVID HERCULES

Before: Justice B. Jones Heard on: March 14 and 15, 2022 Reasons for Judgment released on: March 16, 2022

Counsel: J. Spare, for the Crown M. Stellato, for D. Hercules

Jones J.:

Introduction

[1] David Hercules is charged with assault (Criminal Code s. 265) and assault with a weapon (Criminal Code s. 267(a)) as a result of events that occurred on or about November 25, 2018. He is further charged with assault with a weapon and assault causing bodily harm (Criminal Code s. 267(a) and (b)) as a result of events that occurred on or about June 19, 2019. The complainant, Ms. Malengo Mulesha, was at all material times the intimate partner of Mr. Hercules.

[2] The Crown proceeded by indictment. Mr. Hercules elected to be tried before me and his trial was conducted on March 14 and 15, 2022. He pleaded not guilty to all charges.

Crown Evidence

Testimony of Malengo Mulesha

[3] Ms. Malengo Mulesha met Mr. Hercules at a party in the spring of 2017. They were together for approximately three years and have one child together, a son, who was born on February 9, 2018.

[4] In 2018 and 2019 they shared an apartment in downtown Toronto. Both had resided in Alberta previously and Mr. Hercules travelled to and worked occasionally in Edmonton. Their relationship was not always pleasant and there were regular arguments. They were at times struggling financially but both had sources of income. She purchased a plane ticket for him to attend in Toronto between June 14 and 21, 2019 and he came as scheduled. [^1]

[5] On June 19, 2019, they had an argument over his use of their car. Ms. Mulesha kept the keys from him and she testified he became violent. He hit her and she hit him back. He then choked her against a wall in the apartment and punched her in her face. He twisted her left leg. Finally, he struck her while holding a cellphone in his hand. He struck her in this manner on the top of her leg, on her left foot, on her back and on her face, including her eye and cheek. He told her he wanted to kill her. This assault occurred in their living room, hallway and bedroom. Her injuries caused her to bleed.

[6] During the altercation he also assaulted her with a metal broom they owned which broke. It caused a cut to her finger when she pulled it away from him. She attended at Michael Garron hospital for her injuries later that day.

[7] She described an earlier incident of violence in 2018 in Toronto. They had an argument while lying on their bed in the apartment. She got up and he pushed her with his foot. She fell to the floor and the argument continued. She pushed him in response and then he pushed her on her stomach and started hitting her with a cellphone that he held in his hand. This caused a significant gash to her head just above her right eyebrow which resulted in significant bleeding.

[8] She attended at St. Joseph’s hospital for her injuries and medical records confirmed the date of her attendance was November 25, 2018. She required 6-7 stitches above her eyebrow where she had been struck with the phone. Mr. Hercules told her what to tell the hospital staff if they asked her what happened to cause her injuries. She was instructed to tell them she had an accident and fell. She complied with his demand. She explained she was in fear and concerned about what would happen to her as a single mother if she reported the abuse. He warned her he would be arrested and their son would be taken away. As a result, she would have no one to rely upon for support.

[9] Crown counsel played a video for Ms. Mulesha that she had filmed on a mobile device less than 24 hours after the birth of their son on February 9, 2018. They were in Edmonton at the time in an apartment and had an argument over the fact he had taken their baby and turned the lights on which bothered her. She stated that he hit her. The audio of the video captures their dialogue and emotional states. She is distraught and asks him if this is the first time he’s put her hands on her. Mr. Hercules can be heard responding “It won’t be the last” and “If you do not want that, then leave.” While she is crying, he can be heard stating a second time that “It will not be the last, I promise you” and instructs her to leave.

[10] In cross-examination Ms. Mulesha testified she knew Mr. Hercules had another child from a different woman, who was later identified as Ms. Shauna Johnson. She stated that Mr. Hercules stayed in Alberta following the birth of their child but he expressed a desire to be significantly involved in the child’s life and they planned for him to return to Toronto. Unfortunately, after he arrived, the disagreements began again. She accepted that there were arguments about him possibly reuniting with Ms. Johnson but denied that they were regular occurrences or that she was jealous. While she had flown to Edmonton to live with Mr. Hercules she had also lived in Alberta herself in the past and at some point hoped to return there. She denied any suggestion he was “trying to get away from her” and she would not let him go.

[11] With respect to the November 25, 2018 incident, Mr. Stellato suggested to her that she had bitten Mr. Hercules on his arm and grinded her teeth during the incident which resulted in him having to strike her with the phone to have her stop. She adamantly denied this happened. She also denied any suggestion she had struck Mr. Hercules multiple times with respect to the second incident on June 19, 2019 and caused him injuries. The blood in the apartment was hers, not his.

[12] Mr. Stellato showed her photographs of a bite mark on Mr. Hercules’ arm. She testified it was a result of an injury he sustained at work one day but not from her biting him. He also showed her a photograph of an injury to Mr. Hercules’ hand including a gash. She explained the gash was caused by him striking her with the metal broom that broke which then cut his hand when she pulled it away from him. She admitted a fourth picture detailing scratches to his face were caused by her.

[13] She was questioned about her statements to the Michael Garron hospital staff on June 19, 2019. At the time she stated that she had been assaulted by her partner but it was the first time she had been physically abused. This was not true, according to her testimony in court. She explained she did not want to tell the hospital staff there had been multiple instances of abuse nor that her child was present during the last incident out of concern that her child might be taken away.

[14] She admitted she had lied to the police on previous occasions as well, when their neighbours called the police out of concern for what they had heard happening in her apartment. The date of this interaction or interactions with the police was not clarified. When the police arrived, she told them she had been abused by a man she met on a dating site. She told the police this because Mr. Hercules told her to and due to fear of what would happen to her if she told the truth. She repeated that Mr. Hercules had threatened to kill her.

[15] Ms. Mulesha was also confronted with a text message from October 16, 2018, that she admitted she wrote to Mr. Hercules. In the message she stated that whatever she did was wrong and she was sorry, and wanted to come up with a plan or solution for them. She explained this was in relation to their arguments over the use of the car and how to care for their son. They were living together at the time and she wanted to work on their relationship. This message pre-dated any of the allegations that constitute the basis for the criminal charges.

Medical Records – St. Joseph’s Hospital and Michael Garron Hospital

[16] Medical records from St. Joseph’s hospital and Michael Garron hospital were introduced on consent. They confirm Ms. Mulesha attended at St. Joseph’s hospital on November 25, 2018 and the attending staff noted she had a head injury consisting of a 1cm laceration sustained above her right eyebrow which was actively bleeding and required sutures.

[17] The records from Michael Garron hospital confirm she attended there on June 19, 2019. The attending staff noted multiple injuries including a tender contusion to her forehead, a small laceration over her right eye, an abrasion to her upper lip, an abrasion to her right arm, tenderness to her left arm and shoulder, an abrasion to her middle finger on her right hand, and a superficial bite mark on her right hand. An examination of her left foot noted swelling and a likely contusion.

Photographs of Apartment and Injuries

[18] The Crown also submitted into evidence photographs taken by the Toronto Police Service of Ms. Mulesha and the state of her apartment on June 19, 2019. There is blood visible inside the apartment on a wall in the hallway leading to the bedrooms. There are drops of blood on a wall in their shared bedroom and dried blood stains which she testified were due to the earlier incident of abuse. The photographs of Ms. Mulesha depict dried blood on the right side of her forehead near her hairline, swelling near her right eye, swelling to her right arm, a cut to the middle finger on her right hand, swelling and a mark on her left foot, and a small cut to her fourth toe.

[19] A scar over her right eyebrow is also depicted in these photographs, which Ms. Mulesha confirmed was the result of the November 25, 2018 assault.

Defence Evidence

Testimony of David Hercules

[20] Mr. Hercules was 37 years old at the time of the trial. He has two children – an older son, 17, with Ms. S. Johnson, and a four year old son with Ms. Mulesha. He was employed in construction.

[21] He did not dispute the non-controversial aspects of Ms. Mulesha’s testimony. They met in 2017 at a party and began a relationship. They were together in Edmonton when their child was born but she maintained a residence in Toronto. He admitted the video played to Ms. Mulesha captured the two of them shortly after the birth of their child. He explained that he was playing with their baby and she became upset and demanded the baby be returned to her. He offered the baby back to her and she suddenly lunged at him and dug her nails into his face and scratched him. This was the reason he was upset in the video. He said he did not bring her there for that kind of treatment and he told her to leave if that behaviour would continue. Approximately two weeks later she returned to Toronto and he remained in Edmonton.

[22] He drove back to Toronto with her later that year and resided with her in an apartment in downtown Toronto. While the first month of their relationship in Toronto was fine, it deteriorated shortly thereafter. She accused him of cheating. There were arguments about him going out. He claimed he left the house to get away from the constant back and forth with Ms. Mulesha. He described her as being “very aggressive” and felt the need to take a screenshot of the October 16, 2018 text message which he sent to his mother.

[23] He returned about a week later. He admitted he did strike her with a cellphone as she described on November 25, 2018 and caused the injury over her eye. They were on the bed together and the conversation became argumentative. He was messaging Ms. Johnson on his phone and Ms. Mulesha accused him of cheating. She bit him on his arm and grinded her teeth. He confirmed pictures taken of his right arm presented to him by defence counsel depicted the injury accurately and he showed his arm to the court which also demonstrated scarring in this area. He “freaked out” and hit her with the phone to make her stop. He did not intend to cause her any injury. He took her to the hospital but denied asking her to lie about what happened.

[24] Their relationship continued. At some point he left but could not remember exactly when. He had a work opportunity in Alberta. However, he did return to Toronto on June 14, 2019 after Ms. Mulesha purchased him an airline ticket.

[25] On June 19, 2019, they had another argument that she started. He told her he was leaving and the relationship was finished. While he was packing up the fight occurred. He denied her accusations of punching her, choking her, and striking her with his cellphone. In his words, she “went crazy” and began kicking and screaming. She pulled at his duffel bag and broke the strap. She threw his possessions on the balcony and emptied his suitcase.

[26] He identified from photographs a scratch mark next to his ear and a laceration to his hand which were caused by Ms. Mulesha during this altercation. He explained the laceration was the result of her wielding a steak knife which he took from her by force. During this process his hand was cut. He left the residence and attended at Ms. Johnson’s home elsewhere in Toronto. She took photographs of his injuries including the scar he had sustained from being bitten during the November 25, 2018 incident. He then booked a flight to leave on June 22 instead of the previously arranged departure date of June 21.

[27] In cross-examination he denied noticing Ms. Mulesha had any injuries on June 19, 2019. He could not explain the black eye, swollen lip, swollen arm, or cut to her forehead. He surmised that the cut to her finger may have come from the same knife she wielded against him, but could only say it “probably” happened in that manner and was not paying attention to her finger. He accepted there was a physical altercation. He is 6’1”, approximately 175 lbs and was in good health at the time of this incident. He did not accept he was any stronger than her, although he was taller.

[28] He did not seek any medical attention on either November 25, 2018 or June 19, 2019. He denied any concern that if she told the hospital staff on November 25, 2018 how she sustained the injury to her head this would potentially result in negative consequences for him. He did not know why she told the hospital staff her injury was the result of an accident and denied telling her to say that.

[29] When Crown counsel asked him about the video taken shortly after the birth of their son in Edmonton he initially denied remembering that he stated to Ms. Mulesha, “It won’t be the last time” after she said to him, “You put your hands on me.” When the Crown played the video for him, he admitted he did say that but insisted his words were meant to convey to her he would leave if she did not change her behaviour. That is, it won’t be the last time he would leave, not that it won’t be the last time he would harm her.

Testimony of Shauna Johnson

[30] Ms. Johnson is the mother of Mr. Hercules’ first child. She testified that she took the photographs of Mr. Hercules on June 19, 2019 after he arrived at her residence. He appeared disheveled. He had no shoes on and his shirt was torn. He did not explain what had caused his injuries initially.

Position of the Parties

[31] The Crown submits it has proven the charges beyond a reasonable doubt. I should accept the evidence of Ms. Mulesha as she was credible and reliable. Her evidence is corroborated by the medical records and photographs. She was a victim of intimate partner violence at all relevant times. The video of her and Mr. Hercules taken in Alberta provides some evidence of the narrative of their relationship, and demonstrates animus on his part towards her. On that limited basis, I may use this video evidence when coming to my decision.

[32] Mr. Hercules’ evidence should be rejected and I should not find it raises a reasonable doubt in my mind. On November 25, 2018, he admitted he struck Ms. Mulesha with a phone and it caused her a significant injury. I should not accept his version of events that he was bitten by her and responded out of fear for his own safety. But even if I did consider the possibility of self-defence, his actions were entirely disproportionate and do not meet the legal requirements contained in Criminal Code section 34(2).

[33] For the June 19, 2019, allegations the Crown asks that I accept Ms. Mulesha’s version of events and reject any suggestion Mr. Hercules was a victim instead. The independent evidence is consistent with her explanation of the assaultive behaviour she experienced on that date. The cut to Mr. Hercules’ hand does not appear to be caused by a knife, as he stated, and he had no explanation for how her injuries occurred. His testimony about the events on this date is simply not worthy of belief.

[34] Mr. Stellato submits that Mr. Hercules simply reacted to being bitten on November 25, 2018 and did not intend to assault Ms. Mulesha in the manner presented by the Crown. He does not dispute she was struck by Mr. Hercules when he held his phone but at most his actions constituted lawful self-defence. I should have reasonable doubt based on their conflicting versions of events and on that basis he should be acquitted.

[35] For the June 19, 2019 incident Mr. Stellato impresses upon me two contrasting witness accounts of what occurred. In the absence of any reason to reject Mr. Hercules’ version, I should not be satisfied the Crown has met its burden. Even if I were inclined to accept Ms. Mulesha’s evidence, Mr. Hercules testified and the defence evidence should raise a reasonable doubt. It is not in dispute he suffered an injury to his hand that was significant which bolsters his testimony that Ms. Mulesha was the aggressor, at least for part of whatever altercation occurred.

Presumption of Innocence

[36] Mr. Hercules is presumed innocent. The Crown bears the onus of proving him guilty beyond a reasonable doubt. That onus never shifts. It is not enough for me to believe that Mr. Hercules is “probably” or “likely” guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[37] In R. v. Lifchus at para 39, the Supreme Court of Canada held that “[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.”

Witness Testimony

[38] In R. v. W. D. (1991), 63 CCC (3d) 397 (S.C.C.) the Supreme Court of Canada outlined the framework that a judge ought to apply in assessing witnesses’ credibility in a trial:

1. First, if the judge accepts the defence evidence then the accused must be acquitted. In this case, if I accept as true what the defendant and his witnesses say happened, then he should be found not guilty;
2. Secondly, if I do not believe the defence testimony or that of his witnesses, I could still be left with a reasonable doubt, and again I must acquit the accused.
3. Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against the defendant.

[39] A court must consider all of the evidence when determining if the Crown has met its onus: R. v. Knezevic, 2016 ONCA 914 at paras. 30-31.

[40] The Ontario Court of Appeal in R. v. JC, 2021 ONCA 131 articulated a new framework of rules to protect against stereotypical reasoning. The Court explained there are two overlapping rules that must be considered:

(1) The rule against “ungrounded common sense assumptions” and (2) The rule against “stereotypical inferences”.

[41] Both rules, as explained by the Court, are directed at “impermissible reasoning relating to the plausibility of human behaviour”: see para. 57. The first rule demands that judges must avoid “speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: see para. 58. The second rule requires that “factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour”: see para. 63. I caution myself accordingly when I assess the evidence in this case to avoid both of these pitfalls. The Ontario Court of Appeal did explicitly state however that a trial judge may rely upon human experience to identify inferences “that arise from the evidence": paras. 59 and 65 (emphasis added.)

Credibility, Reliability and Demeanour

[42] Credibility refers to the witness’ sincerity or honesty. It is distinct from a witness’ reliability. Certain factors are typically considered by a court when assessing any witness’ credibility. These include the logic of the witness’s account as well as its plausibility and coherence: R. v. Goldfinch, 2021 SCC 38 at para. 123; R. v. D.D.S., 2006 NSCA 34 at para. 77. A court should also consider the nature of any inconsistencies contained within a witness’s testimony or between a witness’s testimony and any prior statements made by the same witness: R. v. Tash, 2013 ONCA 380 at paras. 40-41; R. v. Cooke, 2020 NSCA 66 at paras. 28-29.

[43] A court should review all other sources of reliable evidence and determine whether that evidence supports or contradicts the claims made by a witness: R. v. Roth, 2020 BCCA 240 at para. 111, R. v. Barton, 2019 SCC 33 at paras. 127-128.

[44] The reliability of a witness’ evidence is concerned with the witness’ ability to observe, recall, and recount events accurately: R. v. G.F., 2021 SCC 20 at para 81; R. v. H.C., 2009 ONCA 56 at para. 41. Neither the Crown nor the defence suggested either witness’ reliability was seriously at issue in this trial. Rather, the determinations I must make turn largely on my assessment of the witnesses’ credibility.

[45] When assessing the credibility of any witness, including the accused, testimonial demeanour is a relevant consideration: R. v. Chacon-Perez, 2022 ONCA 3 at para 119; R. v. M.(O.), 2014 ONCA 503 at para. 34. However, a court must be cautious about giving undue weight to demeanour evidence. It is fallible as a “predictor of the accuracy of a witness’ testimony” and should be approached with significant caution: see R. v. Hemsworth, 2016 ONCA 85, at para. 44.

Prohibition on Cross-Count Reasoning

[46] Mr. Hercules is charged with four charges. As previously stated, two of them relate to allegations stemming from November 25, 2018, and two relate to allegations stemming from June 19, 2019. The Crown did not apply under the similar fact evidence rule to permit cross-count reasoning. As a result, I am not to rely on the evidence relating to one incident when assessing the counts relating to the other incident, nor vice versa: R. v. M.(B.) at para. 42. The charges must be considered separately, even if such an application may have had merit: R. v. MRS, 2020 ONCA 667 at paras. 75-82.

Assault

[47] A person commits an assault when “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”: Criminal Code section 265. “Assault with a weapon” is proven where the Crown has established that the accused assaulted the victim and used a weapon. “Weapon” is defined in Criminal Code section 2 as “any thing used… in causing… injury to any person” or “for the purpose of threatening or intimidating any person.”

[48] “Bodily harm” is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” The mens rea required for assault causing bodily harm is that for assault plus an objective foresight of bodily harm. The Crown need not prove that the accused intend or desired the specific harm inflicted. This requires the Court to determine whether a reasonable person would appreciate the risk of some harm: R. v. Williams, 2003 SCC 43 at para. 22.

Self-Defence

[49] Section 34 of the Criminal Code provides the statutory framework for the defence of self-defence:

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.

[50] The Supreme Court of Canada reviewed this defence in R. v. Khill, 2021 SCC 37. The court explained that there are three components to any claim of self-defence:

(1) First, that the accused must reasonably believe that force or a threat of force is being used against them; (2) Second, that the subjective purpose for responding to the threat must be to protect oneself; and (3) Third, the accused’s act must be reasonable in the circumstances.

[51] The first two requirements address the belief and the subjective purpose of the accused. A belief that force is being against him must be a reasonable one, and the subjective purpose of the use of violence in response must be for protection: Khill, supra, at paras. 53 and 59. The third requirement, by contrast, is concerned with the reasonableness of the accused’s actions. It requires determining if the act was reasonable through the perspective of a reasonable person with some of the accused’s qualities and experiences: Khill, supra at para. 67.

Assessment of Ms. Mulesha’s Evidence

[52] A Court may accept, some, none or all of a witness’ evidence: R. v. C.P., 2021 SCC 19 at para. 35. A judge can give different weight to different parts of the evidence that are accepted. Where the case for the Crown rests largely on the testimony of the complainant, it is essential that the witness’ evidence be critically analyzed: R v. D.M., 2018 ONSC 476 at para. 31. Discrepancies and inconsistencies (both internal and external) must be addressed. Furthermore, the position of the defence at trial must be given careful consideration and the testimony must be reviewed with an eye any issues raised in support of that defence: R. v. C.(J.).

[53] Ms. Mulesha testified in a clear and straightforward manner. She answered questions directly and did not exaggerate or embellish her evidence. She provided a detailed description of both incidents and the injuries she sustained. When confronted with suggestions from Mr. Stellato that were contrary to her interests, she typically accepted them and did not seek to avoid responsibility for her own actions. I found her to be an honest witness attempting to answer questions in both chief and cross-examination fairly and accurately.

[54] For example, in cross-examination she accepted she struck back at Mr. Hercules during their fights. She admitted she lied to the hospital staff on both occasions about various details of the abuse she experienced and also that she had lied to the police on another occasion when their neighbours reported hearing a domestic disturbance. She further admitted there were disputes that involved Mr. Hercules’ relationship with Ms. Johnson and that she was partially to blame for some of the challenges in their relationship. She never gratuitously attempted to smear Mr. Hercules’ character, noting that he cared about having a significant role in his son’s life and worked regularly even if he was sometimes careless with money.

[55] Her evidence was internally consistent and logical. Despite a strong and unrelenting cross-examination, Mr. Stellato was unable to significantly challenge Ms. Mulesha’s detailed evidence on the nature of her relationship with Mr. Hercules, the incidents of abusive conduct on both dates, and her general narrative of their relationship. While she did clarify some minor details in cross-examination, the substance of her evidence did not change.

[56] When assessing Ms. Mulesha’s evidence it must be kept in mind she was a victim of intimate partner violence on multiple occasions. Women who experience repeated abuse at the hands of their partners may be placed in a state of learned helplessness which prevents them from taking effective action to protect themselves: see R. v. Naslund, 2022 ABCA 6 at paras. 103-106. In particular, a woman who suffers from an abusive relationship may not simply be able to leave that relationship due to her dependence on the abuser for financial support, a desire to make the relationship work, the presence of a dependent child and the fear of what may happen to her if she attempted to sever all ties: see Ahluwalia v Ahluwalia, 2022 ONSC 1303 at para. 64; R. v. Malott at para. 42.

[57] Viewed in the context of a contemporary understanding of family violence and its effects, Ms. Mulesha’s testimony that she did not leave the relationship and made repeated efforts to reconnect with Mr. Hercules does not detract from her credibility. There is no inviolable rule about a how victim of intimate partner violence will respond, and her explanation that she wanted to care for their child including by keeping Mr. Hercules involved as his father, and ensure that they had a plan to financially support themselves are entirely believable: see R. v. A.L., 2020 BCCA 18, at para. 139; R. v. J.H., 2020 ONCA 165 at para. 55.

[58] Furthermore as a victim of intimate partner violence, it is understandable that she might not be entirely consistent with respect to remembering minor details of the assaults she described: R. v. G.M.C., 2022 ONCA 2 at para. 38.

[59] Ms. Mulesha’s testimony was corroborated by the medical records related to both incidents and the pictures of her injuries and the state of her apartment on June 19, 2019. The medical records from St. Joseph’s hospital on November 25, 2018, establish that she was assessed with a 1cm laceration above her right eyebrow that was actively bleeding and required sutures.

[60] The medical records from Michael Garron hospital on June 19, 2019, establish that the treating physician noted the injuries she explained she sustained to her head, face, lip, arm, and left foot. Furthermore, the photographs taken by the Toronto Police Service depicted blood in the apartment in multiple locations consistent with her testimony that Mr. Hercules assaulted her in the hallway, choking her against the wall, striking her with his phone and continuing the assault in their bedroom. Her injuries are also depicted clearly in these photographs.

[61] In cross-examination, Ms. Mulesha admitted that she lied to the medical staff at St. Joseph’s hospital about the cause of her injuries on November 25, 2018. She testified she told the persons treating her that she had an accident in the shower and hit her head. She testified she did this because Mr. Hercules told her to lie, and she was fearful of the consequences if she did not do as he demanded.

[62] On June 19, 2019, she did tell the medical staff at Michael Garron hospital that she had been the victim of domestic abuse but had not made a decision about telling the police. As she had already been in contact with the police earlier that day, this was somewhat misleading. However, she also told the staff it was the first time she had experienced domestic abuse at the hands of her partner, which she admitted was a lie. She acknowledged this was not true but explained she was concerned if she provided too much information it could result in her losing custody of her son.

[63] I accept her explanation for these omissions and deceptions to the hospital staff on both occasions. She had been abused by her intimate partner and was struggling to come to terms with what had happened to her. Her injuries were significant from both incidents and her emotional internal conflict was entirely understandable. She did not shy away from admitting that she had lied to the medical staff due to the nature of her relationship with Mr. Hercules but explained that she was telling the truth in court about what had happened. I accept her explanation and draw no negative inferences against her. I do not find it affects her overall credibility when viewed through a proper understanding of the effects of repeated domestic abuse on women: Naslund, supra; Ahluwalia v Ahluwalia, supra.

[64] Ms. Mulesha’s evidence is also consistent with the events depicted in the video recording on February 9, 2018. Evidence of uncharged disreputable conduct may be admitted as part of the narrative of relevant events, to provide context for other evidence, to provide the trier of fact with a better understanding of the nature of the relationship between the parties, and to explain why a complainant in a case of intimate partner violence may not have left a relationship or reported abuse earlier: J.H., supra, at para. 55. It may also provide some evidence to demonstrate animus on behalf of the accused which may be considered when determining why the offences may have been committed. But it must never be used to infer guilt: MRS, supra at para. 59.

[65] In this video recording, Ms. Mulesha is distraught and asks Mr. Hercules if this is the first time he has laid his hands on her. He responds “…and it won’t be the last.” It is a contemporaneous recording of the abuse she suffered in her relationship on one occasion and vividly depicts how Mr. Hercules treated her when he was angry. It provides a window into the nature of the intimate partner violence she described and is consistent with her descriptions of that relationship and her explanation for why she did not feel she could easily leave him.

[66] I accept Ms. Mulesha’s evidence on all essential elements relating to the charges before the court.

Assessment of Defence Evidence

[67] A trial judge must examine exculpatory evidence and explain why it does, or does not, raise a reasonable doubt: R. v. C.G., 2021 ONCA 809 at paras. 59-61. The accused’s evidence should not be viewed in isolation however and the trier of fact must look at all the evidence when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt: R. v. Thomas, 2012 ONSC 6653 at para. 24.

[68] Mr. Hercules’ evidence was fraught with implausible elements and inconsistencies. Furthermore he displayed outright hostility to Ms. Mulesha, at times uttering derogatory remarks about her character that were unprompted by questioning from either counsel.

[69] With respect to the events occurring on June 19, 2019, Mr. Hercules accepted no responsibility for his actions. He blamed Ms. Mulesha for the argument and depicted himself as the victim of her “crazy” actions. He said she was upset that he was leaving but he admitted she had purchased his return flight ticket already and would have known he was leaving that same day. He attempted to clarify this apparent inconsistency by claiming her anger was the result of him saying the relationship was over.

[70] He offered no explanation at all for how she sustained her injuries which are corroborated by the medical records from Michael Garron hospital and depicted in the photographs taken by the Toronto Police Service. I appreciate he bears no burden to prove anything but the frailties in his evidence in this regard may be considered when assessing whether or not his evidence is capable of raising a reasonable doubt. He claimed she had a steak knife at some point during the altercation but did not explain where it came from or what she was doing with it. It appeared to be an afterthought to his initial explanation of the nature of their argument. When pressed by Crown counsel in cross-examination about how he disarmed her, he stated that he grabbed the knife by the blade. No knife was ever located and this version of events was not even put to Ms. Mulesha when she testified. The Crown submits his explanation is implausible as grabbing a knife by the blade would almost assuredly result in significant harm, and he could have simply grabbed her by the arms or hands instead. I agree. The depiction of the injury to his hand captured in the defence photographs could have been caused by a knife, but it could also have been caused by the broken metal broom Ms. Mulesha described.

[71] I do not accept his version of these events. It is simply inconsistent with the uncontradicted medical and photographic evidence and defies common sense when viewed in the context of the intimate partner violence which had been occurring in this relationship.

[72] With respect to the November 25, 2018 incident, he again portrayed himself as a victim of Ms. Mulesha’s unjustified aggression. He did not explain why he felt the need to strike her with a solid object (his phone) with such force to her head that it caused a significant gash requiring medical attention. He said he just “pushed” her with the phone, which is inconsistent with his own stated fear of the injury and pain she was causing him and the injury she sustained. He did not understand why she said she had an accident to the hospital staff, rather than the truth. On his version of events, she simply made that up of her own volition for no apparent reason. This is illogical and unworthy of belief – indeed, in his own words, it “made no sense” for her to say this at the time. I find it did make sense that she was threatened to provide this information to the staff, however.

[73] When asked by the Crown what was going through his mind at the time he struck her with his phone on this date, he said he asked her to calm down first, and then uttered without any prompting that “I’m not a monster.” He complained that everyone was just dismissing his own injury. He complained about how Ms. Mulesha had annoyed him and said they “just had a baby.” When the Crown noted to him that it had been approximately nine months since his son was born at the time of this incident, he responded by saying, “You’re trying to make me out to be a monster.” He then commented that Ms. Mulesha bought him his plane tickets but wondered where she was getting the money from to pay for them. He added that she “didn’t know how to raise a baby.” It was clear in his evidence he holds some deep animus towards her and views himself as the victim in their relationship.

[74] His explanation of the video evidence is also illogical. On his version of events Ms. Mulesha was the aggressor and he was the victim. Yet in the video she is clearly distraught, crying and pleading with him. She asks if this is the first time he has put his hands on her and he states “…and it won’t be the last.” There is no suggestion at all in his responses he is the victim of an assault and his tone and behaviour are consistent with Ms. Mulesha’s explanation of what was occurring. He was angry and domineering. His response was clearly about “putting his hands on her” and his answers in cross-examination that he was referring to leaving her are not consistent with what the recording captures. I do not accept his testimony about the video and the circumstances leading up to it, and nor does it raise any reasonable doubt in my mind.

[75] I appreciate Mr. Stellato’s submissions that there is limited use I may make of the video evidence as it forms uncharged discreditable conduct. However, as previously noted, it was ruled lawfully admissible [^2] and once admitted, such evidence may be used to assess the accused’s overall credibility: R. v. Calnen, 2019 SCC 6 at para. 64; G.M.C. supra at paras. 77-78. This evidence contradicts Mr. Hercules’ portrayal of himself as a victim in his relationship with Ms. Mulesha.

[76] Key aspects of Mr. Hercules’ version of the June 19, 2019 altercation were never put to Ms. Mulesha in cross-examination. In particular, she was never questioned about holding or wielding a steak knife, nor that she destroyed any of his personal property. These were significant aspects of Mr. Hercules’ version of events and Ms. Mulesha should have been given the opportunity to respond to them consistent with the rule in Browne v. Dunn: see R. v. Quansah, 2015 ONCA 237 at paras. 81-82. However, since the Crown did not seek to recall Ms. Mulesha I will not use the failure of defence counsel to put these details to Ms. Mulesha as a factor in weighing Mr. Hercules’ evidence.

[77] I note that he did suffer injuries on this date himself as depicted in the defence photographs. Ms. Mulesha did not deny causing the scratch marks to his face. The cut to his hand is equally consistent with both versions of the altercation and thus does not assist me in determining what occurred.

[78] Ms. Johnson’s evidence was not disputed by Crown counsel. She testified in a very straightforward manner and I accept her evidence entirely, although some of what she relayed was hearsay as it involved what Mr. Hercules had told her. That she observed Mr. Hercules attending at her address disheveled and apparently scared is consistent with him having just been in a violent dispute with Ms. Mulesha, but I do not find it can assist with determining whether or not he was the aggressor.

Findings and Determination

[79] On June 19, 2019, I find that Mr. Hercules assaulted Ms. Mulesha as she described. Mr. Hercules punched her in the face, choked her against the wall in her apartment, and twisted her leg. He then struck her with a cellphone on her leg, left foot, back and her face. He threatened to kill her. She was a credible and reliable witness, and I accept her explanations for any minor inconsistencies in her evidence and the prior inconsistent statements she provided to hospital staff about the abuse she experienced and the causes of her injuries.

[80] Her evidence is corroborated by the medical records and police photographs as previously described. The medical records from Michael Garron hospital documented injuries to her face, hands, arms and foot. They correspond to the exact the nature of the violence she described, as she was struck by Mr. Hercules while he held his phone on these parts of her body. Furthermore the pictures of her injuries show she was bleeding on her head and the swelling to her face, arm and foot are apparent. Dried blood can be seen in a photograph of her face and also on the walls of her apartment.

[81] The use of a phone in this manner meets the definition of a weapon contained in Criminal Code section 2 as it was used to cause injury to Ms. Mulesha.

[82] I do not find that the defence evidence presented in this case raises a reasonable doubt with respect to the events that occurred on this date. As previously explained, Mr. Hercules’ evidence is inconsistent with the independent evidence presented as part of the Crown’s case and the injury to his hand does not raise a reasonable doubt about the acts of violence Ms. Mulesha testified occurred. His testimony about this incident was illogical and inconsistent with the nature of their relationship. I find he had animus towards her and used his status in their relationship to exercise power and control over her. He was not the victim he portrayed himself to be; rather, he was the aggressor. His testimony was devoid of any reason to explain why Ms. Mulesha suffered the injuries she did on this date and that is another reason to reject it.

[83] I find Mr. Hercules guilty of count 1 (assault) and count 2 (assault with a weapon) accordingly.

[84] The parties agree that on November 25, 2018, Mr. Hercules struck Ms. Mulesha with his phone and caused the injury depicted in the police photographs. They differ as to why this happened and if his actions should attract criminal liability.

[85] I find I am left in a reasonable doubt about how this assault unfolded. Ms. Mulesha testified she was the victim of an essentially unjustified assault. Mr. Hercules testified that she bit him on his arm and grinded her teeth. The pain and fear he experienced caused him to react in the manner he did. While I have serious reservations about accepting Mr. Hercules’ testimony, his description of these events is corroborated by the photographs taken by Ms. Shauna Johnson. He also showed me his arm in court and I did notice scarring where he said he was bitten. I cannot rule out of the possibility he did suffer a bite that resulted in this injury. As such, I have a reasonable doubt that his version of events is true.

[86] Nevertheless, I must consider whether or not his actions constituted lawful self-defence. I do not accept the defence argument that he simply reacted in the sense he committed an involuntary action that would not constitute an assault. Mr. Hercules made the choice to strike Ms. Mulesha with his phone on her head.

[87] Considering the Supreme Court of Canada’s decision in Khill, supra, and R. v. Cinous, 2002 SCC 29, I must determine if the Crown has disproven self-defence beyond a reasonable doubt. The Crown does not dispute that if I determine Mr. Hercules acted as he described, that the first two elements of a claim of self-defence have been made out, or at least not disproven to the requisite standard. That is, the accused reasonably believed that force was being used against him, and that his subjective purpose for responding to the threat was to protect himself.

[88] The Crown submits that the third element of a lawful claim of self-defence – that the accused’s act must be reasonable in the circumstances – has not been established, and nor should I have any reasonable doubt on this element. I must consider this third element through the perspective of a reasonable person in the circumstances of the accused: Khill, supra at para. 67. This third factor may often be a deciding factor in a claim of self-defence: Khill, supra at para 45.

[89] A trial judge shall consider all factors set out in paragraphs (a) to (h) of Criminal Code s. 34(2) that are relevant in the circumstances of the case. I make the following findings based on these subsections:

(a) Mr. Hercules was being bitten on his arm with enough force to leave a significant mark; (b) There were other means available to Mr. Hercules other than striking Ms. Mulesha with his phone – he could have kicked at her, pushed her off, or used his hands in some other manner; (c) His role in the incident was one of co-aggressor as they were pushing each other before this occurred; (d) He used a weapon – his phone – to strike Ms. Mulesha; (e) He was a tall, fit, healthy male in his 30s although she was a fit, healthy woman of approximately the same age; (f) Their relationship was already characterized by at least one prior incident of domestic abuse and they were residing together at the time with their 8 month old son [^3]; and (g) His use of force was dramatically more violent and disproportionate to the bite mark as he struck her with his phone in her head with significant force.

[90] In Khill, supra, the Supreme Court explained that factor (c) – the person’s role in the incident – is meant to provide a broad temporal frame to allow the trier of fact to consider the full context of the accused’s actions. It is not confined to the specific act of violence alleged to be a crime. It may include conduct that could be classified as unlawful, provocative or morally blameworthy: see paras. 75-83.

[91] That Mr. Hercules and Ms. Mulesha were in an intimate partner relationship characterized by verbal and physical abuse must be considered when assessing the reasonableness of his actions. Ms. Mulesha was in the midst of an abusive relationship and was subject to Mr. Hercules’ power and control. Viewed through the prism of intimate partner violence, Mr. Hercules’ actions were not those of someone acting in lawful self-defence: Naslund, supra at para. 103.

[92] In addition, the use of a weapon in this context also detracts from any claim of self-defence. A cellphone is a hard, physical object. Striking Ms. Mulesha with this item with such force to have caused the injury that resulted was entirely disproportionate to the threat Mr. Hercules perceived. I do not accept his testimony that he just “pushed” her with the phone. He struck her hard with it. A reasonable person in his circumstances would have known that he was likely to cause her bodily harm as a result.

[93] When considering a claim of self-defence, I am mindful that a court should not expect an accused person to measure perfectly the amount of force required at the time: R. v. Bélanger at para. 15. Nevertheless, considering all of the factors in section 34(2), I find the Crown has disproven beyond a reasonable doubt that Mr. Hercules’ use of force on November 25, 2018 was reasonable in the circumstances.

[94] Since he caused bodily harm to her as a result of this incident, he will be found guilty of count 4 (assault with a weapon) and count 5 (assault causing bodily harm.)

Released: March 16, 2022 Signed: Justice Brock Jones

[^1]: This was a matter initially of some dispute in cross-examination, but ultimately Ms. Mulesha provided business documents confirming her purchase of the airline tickets. These documents were made Exhibits 6 and 7. [^2]: Mr. Stellato consented to the introduction of this video during the Crown’s case as he said he wished to make use of it himself as part of his defence strategy. [^3]: I have considered both factors 38(2)(f) and (f.1) here.