Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 09 29 COURT FILE No.: Central West Region: 998 20 8616

BETWEEN:

HIS MAJESTY THE KING

— AND —

Nosa Aisien

Before: Justice J. De Filippis

Heard on: January 23 & August 9, 2023 Reasons for Judgment released on: September 29, 2023

Counsel: Mr. J. Horic, counsel for the Crown Mr. R. Empel, for the defendant

De Filippis, J.:

Introduction

[1] The defendant was charged with assault causing bodily harm, forcible confinement, and mischief. The charges relate to an incident September 18, 2020, in the city of Brampton at an apartment the defendant resided at with his spouse, Ms. Zooma Aisuku Yusuf.

[2] I begin by explaining the delay in the trial of this matter. It began on January 23, 2023. The defendant was self-represented with Mr. Empel appointed, pursuant to s. 486 of the Criminal Code, to cross-examine the complainant. After the latter had testified and the Crown closed its case, I summarized the evidence for the defendant, told him about the burden of proof faced by the Crown, and explained his options, including the right to testify, or not. The Court stood down for lunch. The defendant failed to return to Court after lunch. I issued a warrant for his arrest. The trial was set to continue May 26. However, the defendant, now in custody, was taken to the wrong courthouse. The case was adjourned to August 9 to continue. On this date, the defendant, now out of custody, was represented by Mr. Empel, no longer restricted by his role as appointed counsel. The defendant testified and I heard submissions.

[3] These reasons explain why I find the defendant guilty of assault causing bodily harm and mischief and not guilty of forcible confinement.

[4] The defendant is 39 years old. The complainant is 37 years old. The parties met in 2016 in Canada and, thereafter, lived in what was formerly the complainant’s apartment. The parties have a four-year-old daughter. The complainant has a 10-year-old son from a previous relationship. As a result of the events in question, the parties are now separated. The defendant and complainant worked as personal support workers. The complainant works from 8 AM until 2 or 3 PM. The defendant works from 2 PM until 10 PM. In this way they could share childcare responsibilities.

[5] The following facts about the allegations in question are not in dispute: The defendant did not return home after his shift on September 17, 2020. He arrived at the apartment the following morning. The complainant was angry with him and locked the door to their bedroom as she prepared herself for work. The bedroom door was forced open by the defendant. When the complainant tried to leave the apartment, she was prevented from doing so. She picked up a kitchen knife. In the confrontation that followed, the defendant bit the complainant, and her hand was cut. This wound was closed with stitches.

Evidence

[6] According to the complainant, after the defendant arrived and found the bedroom door locked, he demanded to be let in. When she refused the door burst open. She assumes the defendant kicked it. The door, lock and frame were damaged. The defendant assaulted her and prevented her from leaving the apartment. The complainant testified that:

And then he started dragging and he started hitting me, beating me, and I went - I tried to run outside the apartment to ask for help from my neighbour to help me. And when he sees me trying to run out, he dragged me back. And, eventually, I try - I actually came out from the apartment, trying to meet on my next-door neighbour, but he dragged me in, and my hand was on the door frame. Almost - the door almost cut off my hand. So he was dragging me inside. And even my phones, he makes sure he takes my phones from me…..He's slapping me.

[7] The complainant added that the defendant bit her. A photograph, taken by the complainant, shows a large round bite mark on her shoulder. As the parties struggled, they ended up in the kitchen. The complainant grabbed a “cooking knife” for “self-defence”. The defendant maintained his hold on her. Somehow, she fell to the floor. The defendant “dragged” her on the floor while she held the knife in hand.

[8] The complainant described how she was cut and fled to a neighbour:

So on the floor, I was calling my son to please call 911, but my son was scared. And he was, like, mommy, I don't want to do it. And he [the defendant] was telling my son not to call 911. But because my son was scared to call 911. So he started dragging the knife with me, and eventually, forcefully take the knife and the knife cut, cut my hand, and I was bleeding so bad….so I rushed outside to the apartment, and my neighbour, I knocked on the door, so they came out and she came to wrap the hand with the - with a cloth. And she – because she said we have to go the hospital. Then she rushed me to the Civic Hospital in Brampton.

[9] On her return home from the hospital, the complainant told the defendant she had had enough his behaviour. He picked up his laptop, phone and keys and pushed her out of the way as he left. The complainant called the police.

[10] The complainant agreed that she locked the bedroom door and started the argument with the defendant because she was angry that he had been out all night at an unknown place. She insisted that she grabbed the knife after the defendant hit her and prevented her from leaving the apartment and that he took her cell phone after she threatened to call the police. She rejected the suggestion he pushed her to the floor and disarmed her of the knife because she refused to comply with his demand to drop it. The complainant repeated that the defendant bit her before she grabbed the knife, but when pressed on the matter conceded that it might have been after.

[11] The defendant testified that on the evening before the events in question, he and the complainant argued over the telephone. He believes the dispute was over money. He decided to spend the night at a friend’s home to avoid further unpleasantness. He returned in the morning when the complainant was getting ready for work. It was his intention, as usual, to bring his daughter to daycare and stepson to school and then go to work for his afternoon shift.

[12] The defendant found the door to the main bedroom locked. The complainant was upset with him and would not let him in. He wanted to go inside to obtain his toiletries and take a shower. He “pushed the door open and it was broken”. He specified that the “doorknob lock broke” and that it had not been his intention to do so. On entering the room, the complainant was “screaming”. He described the scene as follows: “She is hyper and goes into the kitchen and grabs the knife”. She was yelling at him for breaking the door and that she wanted to end the marriage because she ‘can’t take a man who sleeps elsewhere at night’”. The defendant pleaded with her to drop the knife, but she refused. The complainant said she would call the police. The defendant told her not to do so. He grabbed the complainant’s hand that held the knife and they struggled for a few minutes. He bit her shoulder to disarm her. This caused her hand to open, and he took the knife away.

[13] The defendant said the entire confrontation lasted two to three hours and that the children were always present. When asked to provide details of this timeline, he said the following: The parties argued for 10 minutes when he first arrived home. After the complainant left the bedroom, they continued to argue for 15 minutes in the hallway. He added that he grabbed her arm at this time and “she came back” [from attempting to leave the apartment]. The complainant went to the kitchen and took up the knife and held it for 25 to 30 minutes as he pleaded with her to drop it. The parties struggled and he bit her on the shoulder. About 20 minutes later, the complainant declined his offer to take her to the hospital and went there with a neighbour.

[14] The defendant conceded that he grabbed the complainant when she attempted to leave the apartment and could not explain why he did so. He added that he could not recall if the complainant responded by taking hold of the doorframe to prevent being pulled back into the apartment. He denied taking her cell phone.

[15] The defendant agreed that he was standing by the door to the apartment when the complainant went to the kitchen to take up the knife. He ignored her demand to leave the apartment and struggled to disarm her. He explained that he was confused and did not know what to do. Although the complainant has never hurt the children, he was concerned by her anger and noted that “anything could happen”. In the struggle over the knife, both parties were injured.

[16] The defendant said he did not use his entire jaw to bite the complainant; just his “front teeth to scare her”. He could not explain why the photograph of the shoulder injury depicts a large round bite. When he grabbed the knife, the blade cut him and the complainant.

Submissions

[17] Crown and Defence counsel began their submissions with reference to the non-disputed facts set out in the introduction to these reasons. Defence counsel conceded that the complainant’s testimony is free from inconsistencies and noted that the defendant’s evidence should be accepted. He argued that the only independent evidence of what happened beyond the agreed facts is the photograph of the bite mark on the complainant’s shoulder. He noted that while “it is not insignificant, it did not pierce the skin”. Apart from this, there is too much doubt about what happened. It has not been proven that the defendant intentionally damaged the door. Counsel acknowledged that the defendant admitted pulling the complainant into the apartment when she tried to leave but submits that he did not force the issue. Moreover, there is no reason to reject the defendant’s assertion that this is the only time he touched the complainant before she picked up the knife. Counsel added that the evidence supports the conclusion that afterward the defendant was acting in lawful self-defence in disarming the complainant.

[18] Crown counsel argued that against the background of the agreed facts, the only version of other events that makes sense is that given by the complainant. In this regard, counsel emphasized that the defendant conceded the complainant was screaming after he broke the door open and that he prevented her from leaving the apartment before she picked up the knife. This supports the complainant’s assertion that he also hit and slapped her at this time and justifies arming herself with a knife in self-defence. Counsel added that the defendant’s version of events makes no sense; namely, that he did not touch the complainant before pulling her back when she attempted to leave the apartment and that she “voluntarily stayed” only to run to the kitchen are grab a knife. The Crown submitted that that the complainant presented as an honest witness who provided consistent and testimony that was not successfully challenged. On the other hand, the defendant minimized his aggression, an example of which is the assertion that he merely bit the complainant with his front teeth.

Analysis

[19] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W.(D.), [1991] 1 S.C.R. 742).

[20] Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.

[26] One of the issues in this case is whether the defendant was acting in self-defence. The law sometimes permits a person to do something that would otherwise be an offence. This can arise when a person acts in defence of oneself or another person. The criminal law standard of proof means the accused does not have to prove this. It is for the Crown to establish, beyond a reasonable doubt, that the accused was not acting in lawful defence.

[27] Section 34 of the Criminal Code provides a defence based upon reasonable belief, defensive purpose, and reasonable response. Thus, three questions arise:

1. Did the defendant believe, on reasonable grounds, that force was being used against him?
2. Did the defendant struggle with the complainant and disarm her for the purpose of defending himself?
3. Was the defendant’s conduct reasonable in the circumstances?

[21] The defendant concedes that after he broke the door and before the complainant grabbed the knife, he grabbed her to prevent her from leaving the apartment. Moreover, I accept the defendant’s assertion that he bit the complainant in his struggle to disarm her of the knife. Apart from this, I agree with the Crown that his evidence makes no sense and must be rejected.

[22] Throughout his testimony, the defendant minimized his actions. Some examples: He was not unduly angry at being locked out of the bedroom. He pushed the door open and did not intend to damage it. He merely bit the complainant with his front teeth. The damage to the door and the photograph of the large round bite mark show that the defendant was aggressive. The defendant initially testified that her immediate reaction to his unwanted entry into bedroom was to run to the kitchen and grab a knife. He later added that she only did so after he pulled her back into the apartment when she tried to leave. He suggested she came back without the need for much force. When pressed on this point, he said he could not recall if the complainant [unsuccessfully] grabbed the doorframe to prevent herself from being pulled back. Given the agreed facts, it cannot be believed that the complainant came back voluntarily or meekly acquiesced to the defendant’s actions. Assuming she had done so, it makes no sense that the complainant would arm herself with a knife. In any event, having done so, the defendant’s explanation for why he struggled with her over the knife fails. He said he was confused and feared she would harm the children. Again, this cannot be believed. There is nothing in the evidence to suggest she (or he) would harm the children. The reason the defendant stayed and struggled with the complainant is that he did not want her to call the police. There is no confusion here.

[23] The complainant’s evidence was simple, consistent, and clear. It followed logically from the agreed facts. Her testimony was not seriously or successfully challenged. It was not otherwise undermined.

[24] The complainant conceded she started the argument with the defendant because she was angry that he had not come home the previous night. I accept she grabbed the knife after the defendant prevented her from leaving and after he slapped and hit her in anger for being locked out of bedroom – the same anger that caused him to damage that door.

[25] The complainant described significant damage to the bedroom door. The defendant admitted damaging only the door lock. He said it was not intentional. I do not accept this. The door was locked. He wanted into the room. Like the complainant, he was angry. He forced it open. On his version of events, the damage to the door lock is the natural and foreseeable result of his action. Although he is a co-tenant of the apartment, he damaged property that is also owned and used by the other co-tenant, the complainant. I find him guilty of mischief.

[26] I accept that the complainant was violently pulled back from the door to the apartment by the defendant. That said, I do not find this constitutes the offence of forcible confinement. In R. v. Palmer-Coke, 2019 ONCA 106, 373 C.C.C. (3d) 218, the Court of Appeal for Ontario held that the offence requires confinement to have occurred for a significant period of time and where the accused prevented the complainant from leaving a room by grabbing her hair, a conviction could not be supported. However, I find that the defendant’s action, like the hitting and slapping that preceded it, constitutes the offence of assault.

[27] I find that in the struggle over the knife the defendant was not acting in lawful self-defence. The complainant had been assaulted and prevented from leaving the apartment. She ran to the kitchen and picked up a knife. She told him to leave. He did not. Her actions in taking up the knife and holding it were reasonable in the circumstances. The complainant did not use force against the defendant. His decision to disarm her of the knife was not in self-defence. It was an assault. In so doing, he deliberately bit her on the shoulder. During the struggle, the complainant was cut in the hand, requiring stitches to heal the wound.

[28] Bodily harm is defined in section 2 of the Criminal Code as any hurt or injury that interferes with the health or comfort of a person that is more than merely transient or trifling in nature. There can be no doubt that the cut to the hand meets the definition of bodily harm. So does the bite to the shoulder; the photograph of the bite mark shows that the injury is neither transient nor trifling.

[29] The defendant admits he deliberately bit the complainant to disarm her of the knife. Since I have found that he was not acting in self-defence in confronting her, he is guilty of assault causing bodily harm. The defendant testified that he did not intend that the complainant be cut in the hand. I accept this testimony, but it does not absolve the defendant of guilt for this additional act of bodily harm.

[30] The actus reus of the offence is the intentional application of force on another person without their consent resulting in bodily harm. The mens rea adds the requirement that the risk of bodily harm was either intended or was an objectively foreseeable consequence of the accused's conduct: R. v. Nurse, [1993] O.J. No. 336 (C.A.). In this case, the objectively foreseeable consequence of struggling to disarm the complainant of the knife is that one or both parties would be cut.

[31] The Crown has discharged its burden of proof with respect to the offences of assault causing bodily harm and mischief. The charge of forcible confinement is dismissed.

Released: September 29, 2023 Signed: Justice J. De Filippis