Ontario Court of Justice
Date: May 31, 2022 Court File No.: Brampton 19-040441
Between: Her Majesty the Queen
— And —
Husani Alexander
Before: Justice Hafeez S. Amarshi
Counsel: J. Wilson, for the Crown C. Rosemond, for the Defendant
H.S. Amarshi J.:
A. Introduction
Husani Alexander is charged with the following criminal offences in relation to his former partner: (i) Assaulting Tashina Yorke, causing her bodily harm on December 22, 2019; (ii) Asssaulting Tashina Yorke, causing her bodily harm on March 10, 2016; (iii) Assaulting Tashina Yorke on August 24, 2016.
The Crown elected to proceed summarily.
The central issue in this case is credibility. The defendant denies all of the allegations.
B. Relevant evidence
Tashina Yorke is 28 years old. She shares a young child with the defendant. She has been in a relationship with Mr. Alexander since 2013.
By December 2019 the parties were no longer together but there were arrangements in place so that the defendant could see his child either at Ms. Yorke’s place or at his home.
On December 22, 2019, the defendant came to the complainant’s home to visit his child. The planned visit was to be a short one since Ms. Yorke was going to take the child for a photoshoot at a nearby Walmart. When Mr. Alexander arrived there was a dispute as to who would dress the child and the defendant left the residence. He proceeded to send, what the complainant described as, “disrespectful” text messages. While out of the home a short time later she decided to go to defendant’s home.
When Ms. Yorke arrived, the defendant let her in, and they proceeded to a bedroom to speak. The conversation went poorly. According to the complainant, Mr. Alexander told her to leave, specifically he said, “get the fuck out of my house.” He then proceeded to lift her off a chair and physically removed her from his bedroom. He further carried her down a flight of stairs.
Ms. Yorke testified that as she was leaving the home, she told the defendant that she was going to serve him with “papers,” which meant she was going to seek child support - a topic the couple had discussed before. According to the complainant, when she was already out of the residence and at the midpoint of the driveway, she felt Mr. Alexander pulling at the hood of her jacket, attempting to pull her back inside the home. She resisted and said the defendant headbutted her striking her nose. After she was struck, Mr. Alexander proceeded to slowly back away and go back inside his residence.
The complainant returned to her car and wanted to seek medical care - her eyes were watery and her face stung. She started to cry. She called 911 and an ambulance arrived shortly thereafter. She was transported to Etobicoke General Hospital.
Ms. Yorke took a photo of her injury. It was tendered as an exhibit by the Crown. The photograph clearly shows swelling to the complainant’s face. The complainant’s medical records from her emergency room visit on December 22, 2019, were also made an exhibit in this trial. According to those records, an attending physician observed a “deformity” on Ms. Yorke’s nose and swelling. This accords with the photographic evidence.
Although not noted on the medical record from the hospital, the complainant testified she suffered a hairline fracture to the bridge of her nose. She was prescribed Tylenol 3 for the pain, and she was told it would take two to three weeks to heal. I accept this diagnosis reflects the injury she suffered and accept her evidence on this point.
According to Ms. Yorke this was not the first time she had been assaulted by Mr. Alexander. She described an incident on March 20, 2016, when she was visiting the defendant at his family’s home in Brampton. The parties were in a relationship at the time. It was prior to the birth of their child.
While in Mr. Alexander’s bedroom, she said an argument started after the defendant accused her of infidelity. According to Ms. Yorke the defendant pushed her while she was facing him. She fell sideways and struck a bench press in the room. A photo from that incident was made an exhibit in this trial. It shows bruising in an area directly below the complainant’s eye. The photograph was taken three days after the incident,
Ms. Yorke further testified about a third incident which she says occurred on August 24, 2016, in Scarborough. At the time Mr. Alexander was living at his aunt’s home. She was in the defendant’s bedroom when an argument started. The complainant says she questioned Mr. Alexander about continuing to speak to a woman he had previously had an “affair” with. That relationship overlapped with the time the defendant was dating Ms. Yorke.
The complainant admits she used her hand or a slipper to strike Mr. Alexander’s PS4 – a video gaming system.
She testified that the defendant responded by pushing her into a closet and further into a TV. She described Mr. Alexander as “rough handling me.”
Ms. Yorke recalls fleeing the bedroom into the hallway. She says she attempted to go up a flight of stairs when the defendant grabbed her by her shirt and she hit a barrel in the hallway. Mr. Alexander’s aunt who was home at the time separated the parties. She recalls her shirt being ripped.
Ms. Yorke never reported the assault in 2016 to police. I drew no negative inference from this lack of reporting nor did the defence argue it was a relevant consideration. [^1]
In cross-examination, Ms. Yorke testified that she believed the defendant wasn't a good parental figure because he had to be forced to spend time with his daughter. She conceded she was frustrated by his lack of effort but says she was not angry. The complainant agreed that she did not like her daughter spending the night at the defendant’s home. This concern she says was related to the fact that the child was born prematurely, and she felt the defendant may not be able to adequately address any health issues that arise. The complainant confirmed there are ongoing family court proceedings between the parties and that Mr. Alexander is seeking more access to his daughter.
Ms. Yorke fairly agreed that she was hurt when she learned the defendant had made another woman pregnant. She denied, however, that this fact and Mr. Alexander’s general lack of attentiveness to their daughter were motives to falsely report these allegations to police.
The complainant added additional details about the March 10, 2016, incident in cross-examination. She testified that she viewed a video message from another woman. She was able to do this by going though Mr. Alexander’s phone while he was sleeping. She confronted the defendant, who she says became angry when she decided to leave. Things turned physical. She denied jumping on the defendant’s back.
Defence evidence
The defendant testified. Mr. Alexander works in the housekeeping department at Credit Valley Hospital and as a custodian at the Peel District School Board. He has no criminal record.
At the outset of his testimony the defendant denied hitting Ms. Yorke with an open hand on August 24, 2016. He also denied pushing the complainant onto gym equipment in his bedroom on March 10, 2016. He further denied headbutting Ms. Yorke outside of his residence on December 22, 2019.
In relation to the most recent allegation, he explained on December 22, 2019, he was texting back and forth with the complainant in the morning and eventually went to Ms. Yorke’s residence to pick up his child. At the home he got into an argument with the complainant, and he says Ms. Yorke denied him access to the child. He left and returned to his home.
According to Mr. Alexander a short time later he heard banging on his door. It was the complainant. He let her into the home. He did not want her to stay and told her he says, “to get the fuck out my house.” The complainant threw her jacket down and proceed to enter his bedroom. She sat down on his gaming chair and told Mr. Alexander that they needed to talk. The defendant responded by telling her to leave, telling her again, “to get the fuck out of my house.” He quickly concluded that she was not going to leave his home and while still seated, he attempts to wheel her out of his room on his gaming chair. She resists. Once she stands up, he swoops his hands under her legs and picks her up. He continues to tell her to leave.
According to Mr. Alexander, the complainant agreed, but as she is leaving said, “Well, I’m going to bring you to court. I’m going to serve you with papers so I can ruin your life.” This comment sparks the defendant to follow her. He wanted to talk. He testified that he was confused and puzzled as to why she was going to take him to court. The defendant proceeded to follow Ms. Yorke and once both parties are out on the driveway, he reached out to grab her shoulder, specifically, he says, he holds onto the hood of her jacket. The hood however pops off. He then described the complainant as swinging around, but he is still moving forward and headbutts Ms. Yorke. In cross-examination he elaborated, that as the complainant turned around, he slipped into her. The conditions on the driveway were slippery and that he hadn’t shoveled his driveway.
Mr. Alexander explained the headbutt was an accident and denied intentionally striking Ms. Yorke, stating that if he did purposely hit her, he knew the complainant would take him to court.
When asked about the incident on March 10, 2016, he stated the complainant was already upset when she came to his house. That earlier she had learned he had sex with a woman named Shivon. That information came from a friend of the complainant.
Ms. Yorke and the defendant went to speak in his room. According to Mr. Alexander when he closed the door, the complainant attacked him. That she jumped on his nightstand and then on to his back, trying to choke him. Which he later clarified as Ms. Yorke having her arms crossed around his neck as opposed to her hands around his neck. In response, he begins to spin her in an attempt to dislodge her, causing her to fall on bench press equipment in the room.
He testified that he had no intention for her to fall - he just wanted her to stop chocking him.
Mr. Alexander said when he realized she had been injured, he immediately became concerned and went to get her an ice pack, that he attempted to comfort her.
In relation to the August 24, 2016, incident the defendant described being in his room at his aunt’s home playing video games. Ms. Yorke was beside him when he received an Instagram message from Shivon. The complainant became upset. Mr. Alexander says he opened his phone to show her the message and then went to his photo gallery because he says had nothing to hide. In the gallery was an explicit video that Shivon had earlier sent to the defendant. He conceded he wasn’t thinking when he went into his photo gallery and had forgotten about the video. He described Ms. Yorke as snapping. She hit him with a sweater and punched him to the side of his head.
According to Mr. Alexander, the complainant then kicked his PlayStation and ran out of the room. He followed her to attempt to try and to calm her. The couple’s argument attracted the attention of the defendant’s aunt, who offered to drive the complainant home. She declined the offer and left the residence.
C. Relevant Principles
Credibility and reliability are the central issues in this case. The framework in R. v. W.(D.), [1991] 1 S.C.R. 742, applies in this case and requires me to find Mr. Alexander not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with his guilt. In other words, I need not believe the defendant to find him not guilty. Further, even if this court rejects such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty.
This Court can accept some, none or all of any witness’ testimony. [^2] For example, if some parts of the testimony of the defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt. [^3]
The onus is on the Crown to prove beyond a reasonable doubt that the defendant committed the criminal offences before this court. To secure a conviction, the Crown must establish each essential element of the charge against an accused to a point of "proof beyond a reasonable doubt," this standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probability. It is not a standard of absolute or scientific certainty, but it a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charges. [^4]
To emphasize, this Court cannot make a finding of guilt because it prefers the complainant's evidence to that of the defendant. In other words, criminal trials are not credibility contests, and it would be an error to arrive at a conclusion on culpability based on which witnesses' evidence I preferred. There is no burden on Mr. Alexander to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of the offence or offences as charged.
Credibility findings
I found Ms. Yorke to be a credible witness, although with some reservations. Of note, she had a strong recollection of events despite some of these allegations dating back to 2016, even on unremarkable details. For example, when it was suggested that she was wearing a grey tracksuit during the August incident, she was able to recall that in fact she was wearing a white shirt. She described the three incidents which compose the charges before the court with a significant level of detail and on occasion providing additional background and context to ensure her evidence was complete.
Although I found the complainant to be a believable witness in large part, there were some troubling aspects of her evidence and I concluded that she actively attempted to recast her actions and motivations in a more favourable light. In other words, there were times when I determined that she was being less than frank and forthcoming with this Court. For example, when testifying about the March 2016 allegations she stated she went through the defendant’s phone and came across a video sent to Mr. Alexander by another woman. When asked why she went through the defendant’s phone, specifically viewing his Instagram account, she responded it was for “leisure” but couldn’t reasonably explain why she couldn’t access her own Instagram account for that same purpose.
Her explanation was far-fetched, and it detracted from her credibility, especially given the context that Mr. Alexander was sleeping at the time she was viewing his social media. Clearly her actions and motivations were far more intrusive as she conceded she viewed the defendant’s direct messages. It is hard to reconcile her explanation of casual scrolling through the defendant’s phone to view his “feed,” while also accessing his private messages.
I appreciate her motivations for looking through the defendant’s phone are not particularly material to her allegations in this case, but it demonstrated Ms. Yorke’s tendency to minimize seemingly negative aspects of her behavior and it undermined her evidence in other areas.
By way of another example, she denied being angry when she learned about Mr. Alexander’s infidelity, yet her actions suggested otherwise, because she proceeded to slap a PS4 controller out of the defendant’s hands or in the defendant’s version kicked the unit. Clearly, she was angry and lashed out at the defendant. In that context, Ms. Yorke’s reaction is not particularly unusual and even understandable, yet her inability to concede the obvious was a concerning observation made by this Court.
I did, however, reject the defence argument that Ms. Yorke’s frustration with the defendant’s lack of attentiveness with their daughter and infidelity was a motivation for making false allegations to police. There is no evidence to support such a conclusion. I did not detect any specific animus by the complainant. She was disappointed with how her relationship with Mr. Alexander unfolded and hurt but she recounted her evidence in a measured manner and I did not conclude that she either exaggerated the extent of her injuries or violence in this case or sought to portray the defendant in an unnecessarily negative light. By way of an example, she readily agreed that upon being pushed onto the bench press by the defendant that Mr. Alexander tended to her and attempted to help her. It was also clear from her testimony that she still cares about the defendant.
I also found Mr. Alexander to be a credible witness. He was subject to a lengthy and at times vigorous cross-examination. [^5] He maintained his version of events on materials aspects of his evidence throughout this trial – that he never intentionally assaulted Ms. Yorke on any of the occasions described. He was frank in his admissions of infidelity and conceded his actions had negatively impacted his relationship with the complainant. That he was responsible for a break in trust between the couple.
Similar to the complainant, he also had a particularly strong recollection of events and was able to provide in his evidence a good level of detail. For example, when recounting what occurred in the moments leading up to the August 24, 2016, alleged assault, he disagreed with the prosecutors’ suggestion that he was sitting beside the complainant while playing his PS4 and was able to recall that they were lying in bed together. This is a relatively minor point in the trial, but it reflected a strong grasp of details about a dated incident. I also found Mr. Alexander testified in a careful and considered manner, making sure his evidence was understood. He was clear about the areas he could not remember.
December 22, 2019, incident
I found both the defendant and complainant had a strong recollection of events dating back to the December incident. Their respective version of events overlaps considerably – that there was an argument earlier in the day at Ms. Yorke’s home, when the defendant visited his child. The situation remained tense between the parties even after Mr. Alexander left. The complainant later attended at his home late and events escalated quickly.
They both agree the defendant wanted Ms. Yorke to leave. That Mr. Alexander picked up her up in his room. Ms. Yorke further saying that he carried her down the stairs. [^6]
They both recounted similar comments made by Ms. Yorke as she was leaving the residence – that she would serve “papers” on the defendant, that is, seek a court order for child support. I accept these comments triggered Mr. Alexander to follow the complainant onto his driveway.
I did not find the defendant’s testimony particularly persuasive that when he followed Ms. Yorke outside the home he was confused and puzzled by her comments. Mr. Alexander was clearly angry - he just physically removed the complainant from his home. There had been a build-up of hostility between the couple since the morning. The complainant was also angry and upset over what she says were disrespectful text messages the defendant had earlier sent to her. She confronted him at his home.
The parties differ as to what occurs next on the driveway. Mr. Alexander testified that he pulled on the complainant’s hoodie to stop her, that she turned around suddenly and in doing so he accidently headbutted her. Ms. York maintains the headbutt was intentional but does agree that she turned around suddenly. I accepted the defendant’s evidence that he had not shoveled the driveway and that it was slippery.
In this context Mr. Alexander’s testimony supports the reasonable possibility that the headbutt was an accident, that he did not intentionally strike the complainant. I could find no valid reason to reject the defendant’s explanation on this point. As a result, count 1 of the information is dismissed.
March and August 2016 allegations
Even though I accept Ms. Yorke’s evidence as being believable in relation to the incidents that occurred in March and August 2016, I cannot reject the defendant’s evidence or find it to be untrue. To do so would mean applying a more stringent level of scrutiny to his testimony than that of the complainant. Mr. Alexander’s denials of deliberate violence are as believable as the complainant’s allegations of assault.
I did consider the photographic evidence as tendered by the Crown. A photo taken by the complainant a few days after the March 10 incident shows bruising to her face below her eye. According to Ms. Yorke, that injury was the result of being pushed by the defendant and falling into a bench press in Mr. Alexander’s room. However, that injury is also consistent with the defendant’s version of events, that Ms. Yorke jumped on his back, choking him with her arm pressed into his neck – his reaction was to spin Ms. Yorke to dislodge her – the result is that she fell into the bench press.
I furthered considered the height and weight discrepancies between the two in an assessment of the evidence – the defendant is taller and significantly larger. Although there is a discrepancy in physical stature, the defendant’s version of events is at least reasonably plausible. That the complainant used a nightstand in order to mount his back and given the positioning of her arms, Mr. Alexander felt vulnerable such that he flung her with some force.
In relation to the August 24, 2016, allegations, I am left in the same position. There was clearly an argument between the couple about the defendant’s infidelity. It became heated, with the complainant either slapping or kicking Mr. Alexander’s PS4 and the defendant responding, according to Ms. Yorke, by “rough handling” her and pushing her into a TV and then a closet.
When I consider the Crown’s evidence against Mr. Alexander, I simply cannot be sure what happened between the couple on March 10 and August 24. Specifically, I cannot after assessing the totality of the evidence in this trial make any definite findings of culpability in this case. Accordingly, I cannot conclude beyond a reasonable doubt that the defendant assaulted the complainant on either date in 2016 and counts 2 and 3 are dismissed.
I want to thank both Mr. Rosemond and Mr. Wilson for the professional and thoughtful manner in which they conducted this trial.
Released: May 31, 2022 H.S. Amarshi J.
Footnotes
[^1]: I would have attached limited weight to this argument in the circumstances. The Supreme Court in R. v. D.D., 2000 SCC 43, has stated that the timing of a complaint is a factor to consider, but standing alone, is insufficient to draw a negative inference against a complainant. [^2]: R. v. D.R., [1996] 2 S.C.R. 291 [^3]: R. v. J.H.S., 2008 SCC 30, [2008] 2 SCR 152, at para. 11 [^4]: As Justice Horkins succinctly wrote in R. v. Ghomeshi, 2016 ONCJ 155, in explanation of the standard of proof in a criminal trial. [^5]: Unusual in this case was that three different prosecutors had carriage of this matter, two of which cross-examined the defendant. Part of the challenge was a loss of trial time because of a bomb threat called into the Brampton courthouse necessitating an adjournment of the trial mid-hearing. [^6]: Mr. Wilson very fairly conceded that if this Court found that Mr. Alexander physically removed the complainant from his bedroom, which is uncontested, that a conviction not be entered for that act. Further, the grabbing of Ms. Yorke’s hood by the defendant should not be the basis for entering a conviction.