Ontario Court of Justice

Date: August 23, 2023 Court File No.: Toronto 20-5004967

Between:

HER MAJESTY THE QUEEN

— AND —

NOAH HART

Before: Justice Hafeez S. Amarshi

Written Reasons for Judgment released on August 23, 2023

Counsel: M. Walia, counsel for the Crown K. Kaczmara, counsel for Noah Hart

H.S. Amarshi J.:

A. Introduction

[1] Noah Hart is charged with the following offences: assault, utter death threat and two counts of fail to comply undertaking. Specifically, it is alleged that between September 24 and 25, 2020 he assaulted his girlfriend at the time, Holly Barclay, by lunging at her while she was in the shower. She fell to the ground, struck her head and was momentarily unconscious. She suffered a concussion.

[2] After Ms. Barclay testified the Crown conceded the evidence could not support a conviction in relation to the threatening count and invited this Court to dismiss that charge.

[3] The defence conceded that the defendant breached his undertaking on two occasions – once on the date of the incident when he was bound by an undertaking to not be within 50 metres of the complainant and on October 15, 2020, when Mr. Hart sent a text message to Ms. Barclay.

[4] Both the Crown and defence made reasonable concessions in this regard.

B. Relevant Evidence

[5] Holly Barclay is 22 years old. She lived in an apartment building on Wellesley Street in Toronto. Her former boyfriend is Noah Hart. They have had a difficult relationship. He was previously charged with assaulting the complainant when they lived together. Despite being bound by a no-contact order he returned to her home the night of August 24, 2020. He stayed with Ms. Barclay until October 8, 2020. On November 6, 2020, the defendant was arrested on the charges before this Court.

[6] Ms. Barclay testified that either on September 24 or 25, 2020 she got into a verbal argument with the defendant. She went to the bathroom and locked the door, so she could get some space from Mr. Hart. She took a shower. She says she felt unsafe and wanted to give the defendant some time to calm down.

[7] According to Ms. Barclay, the defendant entered the bathroom. She believed he used a tool, possibly a butter knife to open the locked door. She told him to get out of the bathroom multiple times. He refused.

[8] The complainant recalls spraying him with water very quickly, perhaps one second. Specifically, she stepped out of the shower tub to spray him and then stepped back into the tub. She says the defendant lunged at her, that he pushed his hands through the curtain – she fell, hitting the back of her head on the bathroom tile. She says the force he used to push her was hard.

[9] She conceded in cross-examination that she may have been confused after her head hit the bathroom tile. She believes she lost unconsciousness for a moment during the incident.

[10] She asked Mr. Hart to leave her apartment on October 8, 2020. He had been staying with her continuously since late August. After the defendant left, Ms. Barclay says he texted her often. She identified two text messages he sent her on October 13 and 15. The pair stopped communicating with each other a short time later.

Defence evidence

[11] In the fall of 2020, Noah Hart was 20 years old. He was attending OCAD University as an Industrial Design student.

[12] On the date of the incident the defendant testified that he went to the bathroom to urinate. The bathroom door was unlocked. He knew Ms. Barclay was showering. She was behind a white opaque curtain.

[13] While standing in front of the toilet he had a conversation with the complainant – he does not recall the topic. Ms. Barclay quickly became upset. That she sprayed him with the shower head for what he believes was between 15-30 seconds. He does not recall the temperature of the water. He was wearing jeans and a shirt.

[14] Mr. Hart testified that he told the complainant to stop three times. She persisted. He proceeded to swat the showerhead with his right arm. The complainant’s body was behind the shower curtain. He heard her fall.

[15] The defendant says he went to her aid. That she was crying. He helped her get up and dry off.

[16] He denied that she was unconscious or that she had suffered a concussion.

[17] When explaining his reaction, Mr. Hart testified that he was concerned about getting wet and the bathroom being a mess. He was also concerned about water damage. Earlier in their relationships he says Ms. Barclay out of anger put a showerhead through a bathroom wall at their shared apartment on Dupont St. The defendant had to repair the damage. The defence tendered a photo of patchwork to a bathroom wall.

[18] In cross-examination, he agreed that the couple had an argument earlier in the day. He conceded that the complainant’s actions made him angry, that he was frustrated. He agreed he raised his voice.

C. Relevant Principles

[19] 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. Hart 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.

[20] This Court can accept some, none or all of any witness’ testimony. [1] 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. [2]

[21] 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. [3]

[22] 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. Hart 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.

D. Analysis & Conclusion

[23] This case turns on credibility. The underlying determination is whether the Crown has proven beyond a reasonable doubt that Mr. Hart assaulted the complainant in the bathroom of their apartment.

[24] I found Ms. Barclay to be a credible witness, albeit with some reservations. She testified in a thoughtful and considered manner. Her relationship with the defendant was clearly difficult and unhealthy.

[25] Her evidence was compelling, that she retreated to the bathroom because she sought some space from Mr. Hart. They had been having an argument. The defendant unlocked the bathroom door, she was showering. Quite reasonably she told him to get out on multiple occasions, he ignored her. She sprayed him with water and the defendant lunged at her through the shower curtain. She fell to the bathroom floor hitting her head, briefly unconscious.

[26] Mr. Kaczmara argued Ms. Barclay’s version of events is not to be believed, that the complainant’s various social media posts after the incident suggested she had some specific animus towards the defendant which tainted her evidence. The defence tendered a number of exhibits. These included an Instagram message Ms. Barclay sent to a woman she believed was the defendant’s new girlfriend. In that message she described Mr. Hart as a “convicted domestic abuser” who pled “guilty to 3 counts of assault, uddering (sic) death threats etc” The message cautions the woman to “be safe.”

[27] Also tendered was a tik tok video where Ms. Barclay lip-syncs to the following audio clip: “Good night, Bestie. Hold onto your hat, I gotta tell you something.” The caption under the video reads:

“When you reach out to your abusive ex-bf’s new gf, new girlfriend, you need to tell her about the abuse and that he pleaded guilty two weeks ago to multiple counts of assault and death threats”

[28] Mr. Kaczmara pointed out to the complainant in cross-examination that both the direct message and TikTok caption were untrue. The defendant had not pled guilty. Ms. Barclay explained she thought this was true at the time. She later spoke with a police officer who clarified that this was not the case.

[29] Although on the face of it an odd explanation, and it was never clear how the complainant came to her conclusions, I accepted her explanation. Ms. Barclay was a 20-year-old biology student at the time of the incident. Although clearly bright, she demonstrated a limited understanding of the criminal justice system. Her confusion did not seem particularly unreasonable in the circumstances. Further, she came across as genuine in her concern for Mr. Hart’s new girlfriend. She acknowledged she was mistaken. I did not conclude she purposely intended to mislead others.

[30] There were two other videos that the complainant posted on social media. One of them disparaging the defendant about his employment prospects. Although the post demonstrated poor judgment, I did not conclude that Ms. Barclay was so aggrieved or dishonest that she exaggerated or fabricated an assault. In essence she said bad things about an ex-boyfriend albeit amplified by social media.

[31] I did conclude, however, that she tried to minimize some aspects of her evidence. When asked if she was angry when Mr. Hart unlocked the door to the bathroom, she instead said she was upset, telling the defendant to “get out” in a loud voice. Clearly, she was angry. On another occasion she gave confusing responses about the temperature of the water. A straightforward inquiry.

[32] I did not believe her evidence when she said she spayed the defendant for one second. I concluded she was downplaying that portion of her evidence. It was likely closer to the period identified by Mr. Hart – 15 - 30 seconds. She was upset, she wanted to be alone. Mr. Hart was likely aware of her desire for privacy and to be left alone, they had just been in an argument. She spayed him to get him to leave the bathroom. It was unlikely a very brief burst of water as she seemingly described it.

[33] I also had some concerns about the reliability of Ms. Barclay’s evidence. She acknowledged the events had occurred some time ago. She could not remember what the couple had been arguing about earlier in the day or the time of day of the incident. Of significance, despite falling and hitting her head on the bathroom tile, and in her evidence, briefly rendered unconscious, she did not know if she suffered any bruises. She never checked, which seemed unlikely.

[34] There were troubling aspects about Mr. Hart’s evidence. I found the defendant also downplayed aspects of his evidence. For example, he described hitting the shower head with a light swat. This did not ring true. The defendant conceded he was angry and frustrated. At one point he described being drenched. It was not believable that he used a meagre amount of force.

[35] Further, I did not believe his evidence that the bathroom door was unlocked. The complainant was entirely believable on this point. They had been in an argument. I found Mr. Hart tried to normalize his unreasonable conduct. The couple may have shared a bathroom on occasions in the past, but in this context, when Ms. Barclay clearly sought out privacy and space after an argument, the defendant unlocked the bathroom door to urinate. He stayed in the bathroom despite her repeated requests to leave. I did not find the complainant’s reaction to be particularly unreasonable, although in Mr. Hart’s telling, he was the aggrieved party.

[36] Although I had concerns about certain aspects of Mr. Hart’s evidence there were portions of his testimony I could not discount, especially as they relate to the assault allegation. The defendant testified that he had no intention of hurting Ms. Barclay. That he swatted at the shower head with his right hand, while his left hand was occupied. His pants unbuttoned and open. He was positioned awkwardly. He maintained his version of events despite a thorough cross-examination. His evidence was internally consistent on the material facts in this case. For the most part his testimony was detailed. He conceded there were gaps in his recollection.

[37] In this context, Mr. Hart’s testimony supports the reasonable possibility that the fall suffered by the complainant was an accident. I cannot conclude with certainty that the defendant struck the complainant with the required requisite intention. I could find no valid reason to reject the defendant’s explanation on this point, that his intention was to deflect the shower head and not have direct physical contact with Ms. Barclay.

[38] Even though I accepted the complainant’s evidence as being believable, and Mr. Hart may have lunged at the complainant as she described, there is no concrete basis to reject the defendant’s evidence or find his denials of an assault to be untrue. To do so would mean applying a more stringent level of scrutiny to his testimony than that of the complainant. When I consider the Crown’s evidence against Mr. Hart, I simply cannot be sure what happened in the bathroom.

[39] I cannot conclude beyond a reasonable doubt that the defendant assaulted complainant and consequently the one count of assault is dismissed. Convictions are to be entered on counts 1 and 4 – failure to comply with an undertaking. Count 3 – utter death threat was previously dismissed.

Application of self-defence

[40] Both the Crown and defence made submissions in this case based on the principles of self-defence.

[41] The assessment of criminal liability in this case does not necessarily require resorting to those principles. For the sake of completeness, I will briefly touch on those principles.

[42] There is an air of reality to Mr. Hart’s claim of self-defence, the onus is on the Crown to prove beyond a reasonable doubt that the defence of person as outlined in s. 34 of the Criminal Code is not available to the defendant.

[43] Section 34 incorporates both a subjective and objective test. The accused person’s belief lies at the core of the defence but the belief in the need to resort to force must be based on reasonable grounds and the justifiable amount of force must be reasonable.

[44] I am required to assess whether the defendant believed, and whether he had reasonable grounds to believe, that Ms. Barclay was using force or threatening to use force against him. In this case, although hardly consequential, the spaying of water is a use of force.

[45] Accepting the defendant’s version of event that he meant to deflect the shower head Mr. Hart deployed a reasonable amount of force.

[46] The second element of self-defence considers the accused personal purpose in committing the act that constitutes the offences before this Court. Although angry and frustrated, I accept Mr. Hart was engaged in a defensive purpose. I am left with a reasonable doubt that the defendant’s actions were motivated by personal animus or a desire to hurt or physically retaliate against the complainant.

[47] The last factor relates to whether the accused’s conduct was reasonable in the circumstances. The response was proportional, likely spontaneous.

[48] I am not able to conclude with certainty that the defendant purposely lunged at Ms. Barclay, nor can I exclude the possibility that the complainant suffered a fall as result of unintended consequences. There was no anti-slip mat in the shower, the complainant was behind an opaque shower curtain and could not clearly see the defendant. Water had been sprayed in the bathroom and conditions slippery.

[49] I want to thank both counsel for the professional and courteous manner in which this litigation was conducted.

H.S. Amarshi J.

[1] R. v. D.R., [1996] 2 S.C.R. 291. [2] R. v. J.H.S., 2008 SCC 30, [2008] 2 SCR 152, at para. 11. [3] As Justice Horkins succinctly wrote in R. v. Ghomeshi, 2016 ONCJ 155, in explanation of the standard of proof in a criminal trial.