Ontario Court of Justice

Date: 2024-07-18

Between:

His Majesty the King

— and —

Maxim Dorofeev

Judgment at Trial

Counsel: D. Moskovitz, for the Crown A. Welman, for the Defendant

Before: Felix J.

I. Introduction

[1] The complainant and the defendant resided together at the defendant’s residence in Toronto. They had been dating for a few months. On November 7th, 2022, the police attended the defendant’s residence in response to a 911 call originating outside of the defendant’s residence. The complainant provided a video statement to the police. The defendant was charged with ss. 267 (c), 266, and 279(2) of the Criminal Code based on allegations she made concerning November 7th, 2022. The defendant was also charged with a separate allegation of assault contrary to s.266 of the Criminal Code pertaining to a separate date -- August 25th, 2022.

[2] The matter proceeded to trial in 2024. On June 27, 2024, the Defence brought an application to re-open the defence case. I granted the application. The case was adjourned to July 18th, 2024, for this evidence to be presented. After the conclusion of this defence evidence neither side had any further submission to make on the trial proper.

[3] For the reasons that follow, the defendant is found guilty of assault and choking contrary to s.267 (c.) of the Criminal Code. I order a conditional stay of the single count of assault from November 7, 2022. The defendant is found not guilty of unlawful confinement on November 7, 2022. The defendant is found not guilty of assault on August 25th, 2022.

II. Organization of this Judgment

[4] As is the case with most allegations of intimate partner criminality, the central witnesses at trial were the complainant and the defendant. In addition, the Crown adduced evidence from two neighbours and two attending police officers.

[5] As is generally the case with criminal allegations involving intimate partners, there were two central witnesses at trial – the complainant and defendant. During submissions, counsel appropriately focused on credibility issues. These reasons do not address every submission or every issue at trial. The goal of these reasons is to analyze the material issues relevant to my credibility findings.

[6] The purpose of this written decision is to explain to the parties the reasoning behind the findings at trial. First, I will briefly summarize the evidence from each witness. Then I will set out the relevant criminal law principles as a framework for the analysis of the evidence at trial. Finally, I will address the material issues at trial and explain how these issues impacted credibility and reliability.

III. The Evidence

A. The Complainant’s Version of the Events – November 7th

[7] The complainant testified that the defendant was upset with her on November 6th and 7th because she went out to a bar and socialized with friends. The two engaged in an argument by text. The defendant telephoned her while she was at the bar and told her that he was going to sleep with other women.

[8] The complainant testified that she arrived home in the early morning hours and positioned herself in the bedroom. She was resting on the bed and posting silly videos to social media when the defendant entered the bedroom and demanded her phone. She did not consent. A physical struggle over the phone ensued. During this struggle the defendant pulled her to the ground and grabbed her hair pulling out her hair extensions. He then straddled her. She tried to use hip thrusts to dislodge him. She struggled to escape.

[9] The complainant described wrestling herself free and trying to call 911 but the defendant slapped the phone out of her hand. She dived over the bed to retrieve the phone and went running out of the bedroom into the hallway.

[10] In the hallway, the defendant “body-checked” her into the wall and knocked her to the ground. He once again sat on top of her, straddling her body, and grabbed her throat. He also covered her mouth trying to stop her from screaming. At one point he had her in a headlock from the rear while she was prone on the ground. She was screaming for help as loud as she could, hoping to alert someone to come and help her.

[11] At some point “it went dark” and she passed out. She awoke at some point later. She was coughing and throwing up.

[12] The complainant determined that she had to get out of the condo fearing for her life. She crawled down the hallway to the front door in an effort to leave. She began kicking the door and screaming for someone to help her. She was unable to get the door open as the lock and handle were not working.

[13] At this time the defendant had possession of her phone and was making it seem like he was calling her mother. He asked her to stop screaming and promised that they could work this out. Then the police broke into the condominium, and the incident was at an end.

[14] The complainant attributed several injuries to the assault. Her toenail was ripped off. She had bruises all over her body including her neck, face, mouth, chin and lips. One fingernail was ripped off. She thought she had a fractured foot because of the pain. There was blood in her hair. Her hair extensions were torn out.

B. The Defendant’s Version of the Events – November 7th

[15] The defendant testified that he and the complainant entered into a relationship in June 2022 after meeting on a dating app. He explained that they lived together almost immediately, and at the beginning the relationship was good. But soon it became clear to him that the complainant was having issues with the abuse of alcohol. This became a constant issue. He discussed it with the complainant several times. The complainant committed to working on the problem.

[16] As it concerns the allegations of November 7th, the defendant testified that he and the complainant were at his residence. During the day the complainant was ignoring him, and he was doing his best to mend the relationship. Later on in the evening she got ready to go out. She left without advising where she was going.

[17] The defendant testified that a neighbour invited him to go out. They left at around midnight and went to a local bar. After approximately one and ½ hours at the bar the complainant telephoned him and started yelling, insulting him, and calling him a whore. He gathered from the circumstances a third party had observed him at the bar and had advised her of his attendance at this bar. The complainant alleged he was consorting with other women. These circumstances irritated him and frustrated him.

[18] At around 2:30 AM he left the bar, bought some food, and went home. He ate the food and then changed to get ready for bed. He did not anticipate the complainant attending his address because when she had telephoned him, she was extremely intoxicated, and told him the relationship was over.

[19] To his surprise, the complainant arrived home just as he was getting ready for bed. He encountered her in the hallway of the apartment. She was talking loudly on her cellphone. She began conveying insults to him. He asked her to calm down and go to bed. She continued to carry on talking loudly on the phone.

[20] At some point they were both in the bedroom and defendant described the complainant assaulting him. The defendant testified that the complainant suddenly jumped onto the bed with both legs, and kicked him with her heel in his stomach area. She then started hitting him on his head with her fist. In one of her hands, she was holding her cell phone while hitting him in the head area. During this assault she struck him in the mouth, his lip was cut, and he started bleeding.

[21] The defendant testified that in the face of this unprovoked assault, he protected himself by holding the complainant’s wrists in an effort to restrain her and prevent the assault. He described being off the bed, kneeling on the ground facing the bed. He described the complainant kneeling on the bed. While he was holding her wrist, she bit him on his forearm and wrist area breaking the skin.

[22] The defendant testified that while he was restraining her in this fashion the complainant was able to physically manoeuvre out of the hold. In so doing, one of her clipped hair extensions came off. He never pulled any of her hair extensions off. The complainant’s other hair extensions were located in the bedroom on top of the furniture. The complainant then pushed away from the bed with both feet causing both of them to fall on the ground between the nightstand and the bed. The complaint jumped up and ran toward the entrance door. She yelled “I’m going to get you in jail!”

[23] The defendant testified that when the complainant reached the entrance door to the apartment, she turned the door handle to the right with such force that she broke the door handle. He asked her to calm down and pointed out that she had broken the door. The complainant was hysterically crying. He began to hug her in an effort to calm her down. He brought her some water in a pink bottle. She drank some water, but then began to spit and vomit on the floor.

[24] He went to the bathroom to nurse his cut lip. At this time, he noticed a pain in his rib area. He began concerned that one of his ribs was broken by her kick to his stomach area.

[25] The defendant testified that during the conflict in the hallway area the complainant was grabbing at him and tearing his clothes. During this interaction one of her fake nails fell off. She also broke a jewellery chain around his neck.

[26] The complainant then went to the entrance door and began banging on the door crying for help. He told her to calm down in a loud voice. She responded by throwing around a shoe stand and some shelving. It was while she was pulling down the shelves on the cabinet that he believes that she injured her toenail.

[27] The defendant testified that the complainant’s assault caused several injuries. He attended the hospital for treatment. He received an x-ray for the suspected broken rib. He received a tetanus shot because of the complainant biting him. At trial he filed several photographs of his injuries and a medical report.

C. Two Independent Witnesses

[28] The Crown adduced evidence from a cohabitating engaged couple who were neighbours of the defendant.

[29] The first witness testified that she was awoken by screaming, shouting, and banging just before 4:00 AM on November 7th. This witness recalled a woman desperately shouting and banging. She could hear this woman say “Can someone call the police” in a tone of desperation and distress. This witness also heard a male voice shouting, but not as frequently as the female voice. She described the male voice as loud and aggressive given the tone being used. She could not hear the words used by the male voice. The entire event went on for approximately fifteen minutes. She called the police after approximately five minutes of listening.

[30] The second witness was the fiancé of the first witness. He testified that he awoke to hearing screaming and banging against the wall or a door. The banging was such that he could actually feel the vibration on the walls shaking as he was standing next to the door. He heard a female voice continuously screaming “Help! Help! Help me… let me out!” The second witness also heard a man’s voice speaking aggressively but not as loud as the female voice. He could not make out the words expressed by the male voice.

D. Police Witnesses

[31] The first police witness attended the defendant’s residence, with building security, in response to a call for service received at 3:57 AM. There was loud screaming coming from the end of the hallway proximate to the defendant’s unit. He and his partner announced police and directed the occupants to open the door. No one opened the door. They were unable to open the door from the outside even with the master key. Fearing for the safety of the occupants the police kicked in the door.

[32] At the door this witness heard a female voice calling “Help me.” Upon entering the apartment, he observed a female next to the door crying. She was sitting on the floor with her legs in front of her and her back to the left wall next to the door. She was bleeding from her foot. When asked to describe the demeanour of the complainant this witness said she was crying, appeared sad, and panicked. The defendant was arrested for domestic assault. He had a one-inch scratch on his right lower leg and a mark on his lip.

[33] The second police witness heard scratching at the apartment door and a female saying: “Help me!” The complainant was crying, hysterical, and was bleeding from one of her feet. She presented as afraid. This second witness concluded that the complainant clearly wanted to get out of the apartment. Once the complainant came out of the apartment, she was sitting on the ground crying and wanted her mother. This officer noted her left foot toenail was ripped off, she had bruising on her left knee, and there was redness around her neck. This officer noted vomit in the washroom near the door. He also noted that the defendant had a bloody lip.

E. Defence Application – The Neighbour

[34] The Defence applied to re-open the Defence case and adduce evidence from the defendant’s neighbour who attended a local bar with the defendant. This witness testified that the defendant received a call from the complainant while at the bar. The defendant did not make any outgoing calls while at the bar.

IV. Analysis – November 7th

A. The Criminal Law Framework

[35] Criminal trials are informed by a number of well-known legal principles. I will briefly set out the framework for the proper approach to the analysis of the evidence.

1. The Presumption of Innocence

[36] The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial.

[37] It is not enough to believe that the defendant is likely guilty or probably guilty. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

2. The Guidance of W.(D.)

[38] In assessing the criminal standard of proof beyond a reasonable doubt, trial judges have a responsibility to consider the entire record at trial and to resolve material issues relevant to the credibility analysis. The decision in R. v. W.(D.), [1991] 1 S.C.R. 742 [W.(D.)] sets out the three-step process for analyzing credibility in the face of conflicting evidence. The guidance is as follows:

1. If you believe the evidence of the accused, obviously you must acquit;
2. Even if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit; and,
3. Even if you are not left in doubt by the evidence of the accused, you must ask whether, on the basis of the accepted evidence, has the prosecution established guilt beyond a reasonable doubt.

[39] I am in favour of an additional instruction. I acknowledge that it would be an error to analyze a criminal trial as if it were a competition between the version of events provided by the complainant and the version of events provided by the defendant. But, if after considering the totality of the evidence, I am unable to decide whom to believe, this state of mind translates into a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, at para. 12; R. v. Austin, [2006] O.J. No 4660 (C.A.), at para. 20.

3. Reasonable Doubt

[40] Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence”: R. v. Villaroman, 2016 SCC 33, at paras 28, 36 [Villaroman].

[41] The reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, [1998] 2 S.C.R. 109; R. v. Morin, [1988] 2 S.C.R. 345.

[42] It is important to note that the Defence bears no burden to prove foundational facts in support of an inference of innocence: Villaroman, at para. 35 [Villaroman]; R. v. Khela, 2009 SCC 4. Nor is the defendant required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. A defendant is free to point to anything in support of reasonable doubt including the presence or absence of evidence.

4. Credibility and Reliability

[43] “Credibility” has a particular connotation in criminal law best explained by Watt J.A. in R. v. C.(H.), 2009 ONCA 56, at paragraph 41:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).

[44] Recently, the Supreme Court of Canada provided further guidance in R. v. G.F., 2021 SCC 20, at paragraph 82:

Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness' ability to observe, recall, and recount events accurately, and referring to credibility as the witness' sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words "credibility" and "reliability" but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge's determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: Vuradin, at para. 16. Often, the term "credibility" is used in this broader sense to mean the believability of the evidence and it necessarily includes both truthfulness and accuracy: McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 3, at pp. 30-1 and 30-2. For example, Black's Law Dictionary (11th ed. 2019), at p. 463, defines credibility as "[t]he quality that makes something (as a witness or some evidence) worthy of belief" and model jury instructions include both truthfulness and accuracy within "credibility" assessments: G. A. Ferguson and M. R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose-leaf)). Provided trial judges turn their mind to these considerations, there is no requirement that they utter the word "reliable".

[45] In assessing the testimony provided by the witnesses at trial (including the complainant), I am entitled to believe all of the testimony, none of the testimony, or portions of the testimony: R. v. C.P., 2021 SCC 19, at para. 35; R. v. Le, 2019 SCC 34, at para. 266; R. v. W.H., 2013 SCC 22, at para. 32 [W.H.]; R. v. Francois, [1994] 2 S.C.R. 827, at para. 14 [Francois]. As the trial judge, I am also free to decide what weight to assign to specific areas of the evidence: W.H., at para. 32; R. v. B.H., 2015 ONCA 642, at para. 22; R. v. Howe, [2005] O.J. No. 39 (C.A.), at para. 44.

5. Bias and Motive to Fabricate

[46] The Defence position is that the complainant fabricated the allegations of assault. The defendant testified that it was the complainant who was the aggressor. It was the complainant who initiated an assault (kick to the stomach or ribs).

[47] The Crown Attorney submits that the complainant is a credible and reliable witness. As such, the prosecution position implies that there is no evidence of a motive to fabricate, bias, or animus on the part of the complainant: R. v. G.A., [2000] S.C.J. No 18, at para. 3; R. v. Batte, [2000] O.J. No 2184 (C.A.), at para. 120 [Batte].

[48] Implicit in the Defence position that the complainant has fabricated the allegations is the suggestion that the complainant is biased, and possesses a motive to fabricate the allegations. The defendant has no onus to establish that the complainant had a motive to fabricate: R. v. L.L., 2009 ONCA 413, at para. 53 [L.L.]; R. v. T.M., 2014 ONCA 854, at paras. 38-43; R. v. Lebrocq, 2011 ONCA 405, at paras. 18-21; R. v. M.J., 2011 ONCA 278, at para. 8.

[49] As a matter of common sense and life experience, a motive to fabricate is an important credibility factor: Batte, at para. 120; R. v. K.C., 2021 ONCA 401, at para. 129. Where a motive to fabricate is established, or is proven not to exist, this credibility factor may be considered in the credibility analysis: R. v. S.S.S., 2021 ONCA 552, at paras. 25-31.

[50] I find that the Crown has not proven the absence of a motive to fabricate. I further accept the Defence submission that there are reasons to be cautious with the evidence of the complainant. First, the complainant held the belief that the defendant was not faithful during their brief relationship. Second, it is clear that the complainant held the belief that the defendant was suffering from a transmittable sexually transmitted disease. Third, the complainant testified that relevant to the November 7th incident, the defendant called her on the phone and told her he was going to sleep with other women. Finally, the complainant’s demeanour during the trial (at times) demonstrated a visceral bias against the defendant.

[51] I have taken these matters into consideration and exerted caution in evaluating the complainant’s testimony.

B. Issues at Trial

1. Attending the Defendant’s Condo

[52] Defence counsel cross-examined the complainant about why she attended the defendant’s address the night of the incident given she had concluded that the relationship was at an end. The complainant testified that she had property at the defendant’s residence. One piece of property was a dog. She also explained that she advised the defendant that she would be seeking additional support from her employment on Monday (the following day) in furtherance of her intention to move out. This was not an important issue in the final analysis.

2. Omissions – Text Messages and Phone Call

[53] During the complainant’s statement to the police, they asked whether there had been any text messages or phone calls with the defendant prior to the assault. While the complainant apparently [1] mentioned a single text message communication, she did not fully describe the extent of the contact or the content of the messages.

[54] The Defence position is that these omissions support a credibility concern. First, the Defence submits that these omissions are relevant to an assessment of the reliability of the complainant’s memory in that she did not disclose such significant information to the police. Second, the Defence submits that the omissions are relevant to credibility because the complainant omitted these references in an attempt to present herself to the police in a more positive light and make her version of events seem more believable. Finally, the defendant testified that he did not initiate a call to the complainant that night. It was the complainant who called him and confronted him while he was at the bar.

[55] The Crown position is that these omissions must be considered in the context of the focus of the investigation, the circumstances surrounding the complainant’s police statement, and any explanation provided by the complainant.

[56] I find that the omissions to support a reliability concern rather than a credibility concern. There are several reasons for this finding.

[57] First, I accept the complainant’s explanation for the omissions. She attended the police station to provide her statement shortly after having attended the hospital for treatment. She described being in shock – shock from the experience of having been assaulted, strangled, and hurt. The record at trial also makes it clear that the complainant had been awake for a significant period of time.

[58] Second, the complainant also explained that during the police statement the police appeared to be focused on the specific details of the physical assault rather than peripheral detail. During her testimony a trial, the complainant emphasized this point on more than one occasion in a convincing fashion.

[59] Third, while it is true that the complainant did not come forward with these omissions after her initial police statement or upon meeting with the Crown to prepare for trial, it is my experience that most witnesses who are unfamiliar with criminal court do not initiate contact with the police to correct errors or omissions in their statements. In any event, the complainant testified that she did not review her video statement after November 7th, until January 8th, 2024 – the day before trial. While I suspect that the complainant was asked if her police statement was accurate after her review, [2] and I suspect that the complainant did not clarify or provide any additional detail, I also recognize that this occurred in the turmoil, stress, and anxiety associated with preparing for trial. Having had the opportunity to observe the complainant’s demeanour during the trial on several days, she presented as significantly anxious, stressed, and affected by the trial itself.

[60] Fourth, notwithstanding the emphasis and prominence placed on these omissions at trial, neither the text messages nor phone call contained significant relevant information. The text communications literally “speak for themselves”. They capture an argument preceding the assault. But the content of the messages is unremarkable. The complainant was upset about the defendant’s behaviour. The defendant was upset about her behaviour. They both communicated hurtful things. Having regard to the narrow snapshot these messages provide, the messages were neutral in the credibility analysis. Nothing in the messages assisted the complainant or hurt the credibility of the defendant. The evidence shows that both witnesses were potentially biased against one another. This is an everyday theme in intimate partner violence cases.

[61] Fifth, it is also important that I perceive the complainant’s explanation as truthful. Put another way, I do not believe that the complainant deliberately omitted the information because of a perception that it would assist her.

[62] Finally, I have not received the complainant’s video police statement in evidence at trial. As such, I lack the full context of that event. I do not know the level of detail employed by the police interviewers. I do not have an appreciation for the presentation of the complainant during the statement.

[63] There were a couple of occasions during the trial where the complainant testified that if her statement was played in open court, her level of shock would be apparent. She also explained that she apprehended that the police officer interviewing her could see the symptoms of shock. Neither the Crown nor Defence adduced the statement. Thus, I am left with the examination of the complainant on this issue as the record at trial.

3. Phone call

[64] In addition to the text message issue outlined above, the complainant also did not tell the police about a phone call she received from the defendant prior to the assault, wherein she claimed that he stated he was going to sleep with other women. The defendant testified that while he was at the bar, it was the complainant who telephone him and commenced yelling and insulting him. I accept the defendant’s version of the events, particularly as the fact that he received a phone call was corroborated by the second defence witness – his neighbour. More important than the issue of “who called who” is the fact that this is further support for the caution I have outlined above under heading Bias and Motive to Fabricate.

4. Therapy

[65] During re-examination, the complainant disclosed that she had received therapy after the events. She explained that the therapy helped her to clarify what had occurred and what had happened to her. She was able to understand what happened to her. She was able to process the event clearly. She was no longer in shock – the shock she experienced in the immediate aftermath of the incident and during her police statement.

[66] It is totally acceptable and understandable that complainants in criminal matters receive therapy and assistance with trauma. But this evidence, received during re-examination, provoked an understandable adjournment and delay in the trial. Ultimately, the records associated with therapy were not pursued. [3]

[67] The Court ordered the complainant to return on a subsequent date. The Defence was granted the opportunity to re-open cross-examination. During renewed cross-examination, the complainant testified that the therapy did not assist her with recalling the actual events. The therapy only assisted her with processing the events and processing the emotions associated with those events in order to have clear thoughts about what occurred.

[68] In the final analysis, while the therapy was still a reliability factor I considered because the complainant offered this evidence during re-examination while explaining a difference in her evidence, I am satisfied that the therapy did not produce a memory or “recovered memory” or impact the complainant’s actual testimonial recall about the events.

5. The Complainant’s Level of Intoxication

[69] Defence counsel submits that the complainant was heavily intoxicated on the night in question and her attempts to minimize this fact at trial is a credibility concern.

[70] The complainant testified that she had indeed consumed alcohol prior to the assault incident but she was not heavily intoxicated. The defendant testified that the complainant was loudly talking on her phone and insulting him when she arrived home. He testified that based on experience; he knew that she was “super drunk”. He testified that this was an ongoing concern in their relationship.

[71] I am unable to conclusively determine the complainant’s level of intoxication at the time of her contact with the defendant on November 7th. While I am aware that she attended the hospital for treatment, it does not appear that the concentration of drugs or alcohol in her system was examined. That being said, I find that the complainant’s consumption of alcohol was a relevant factor in the event for several reasons.

[72] First, I accept the cross-examination premise that the complainant appeared to acknowledge that the defendant was mad at her because she came home drunk at the end of the night. [4] Second, while the complainant testified that she was nowhere near “black out” drunk, she admitted to consuming alcohol that night. Third, neither police witness was examined on the issue of the complainant’s level of intoxication, but police officers are generally alert to such issues and make notes of indicia of intoxication. I infer that neither police officer subjectively apprehended that the complainant was “super drunk”. Finally, to a degree, I credit the defendant’s evidence on this issue. I found his testimony about this being a source of conflict in the relationship and the involvement of the complainant’s mother to be convincing evidence.

[73] In the final analysis this issue to provokes relevant credibility issues. First, a credibility issue with the complainant because I agree with Defence counsel that she minimized her alcohol consumption until confronted with her police statement. Second, a reliability issue with the complainant’s evidence because alcohol consumption impairs memory in some persons.

6. How the Complainant Returned Home

[74] During cross-examination it was suggested that the complainant provided inconsistent versions about how she returned to the apartment. She told the police that she was “pretty sure” that she took an Uber back with a friend named Jessie. This area of purported inconsistency turned out to be unimportant. The apparent inconsistency was explained by the fact that the complainant had two friends named Jessica.

7. Trying to Get Phone Away

[75] Defence counsel put to the complainant that she did not testify in court that the defendant was trying to take her phone from her in the initial stages of the assault. The complainant took the position that she had mentioned this on January 9th, 2024, during her testimony. She was correct. [5]

8. How the Disagreement Started

[76] During direct examination the complainant testified the disagreement and assault commenced in the bedroom. She was lying on her bed and positing silly videos on social media, when the defendant entered the bedroom wanting to examine her phone. This led to the disagreement and ultimately the assault.

[77] During cross-examination, the complainant readily acknowledged that during her police statement she did not provide this evidence and was unable to recount how the disagreement began. The complainant attributed the omission to the shock she was experiencing in the aftermath of the assault. Defence counsel attributed this omission to her level of intoxication that night.

[78] Earlier in this judgment I explained why the complainant’s omissions concerning text messages and a phone call were not significant in the analysis. I take the view that this omission is more significant in that it concerns the genesis of the assault incident.

[79] As outlined earlier I accept the complainant’s testimony that she was experiencing shock during her police interview. I also accept her testimony that focus was on the assaultive acts. Nevertheless, I found this to be a reliability concern associated with her testimony given the different in her testimony.

[80] I did not find this to be a significant credibility concern. Put another way, the testimony about videos and the defendant wanting to see her phone did not enhance her credibility or her version of events. I could discern no advantage associated with the complainant deliberately leaving out this evidence in her police statement.

9. Choking, Strangling, [6] and the State of Being Unconscious

[81] The Defence submits that the complainant’s testimony about being choked and loosing consciousness is incredible and unreliable.

[82] The complainant testified that during the assault by the defendant, he covered her mouth such that she was not able to scream for help. She also testified that the defendant choked her, and she passed out. Defence counsel submits that this testimony was materially inconsistent with her police statement.

[83] At trial, the complainant testified as follows:

A. At that point, he was on top of me straddling me again and he was grabbing at my throat and trying to cover my mouth so that I couldn’t scream. And I managed to flip over and he got under my arm and kind of had me in a headlock, so my right arm was up and his arm wrapped around me and he was on me like a backpack almost. I was reaching for the doorframe to try to stand up so I could keep running, and this is where he readjusted his grip and I literally watched like binoculars like it went dark and I passed out. I woke up to me coughing and throwing up and I thought if I don’t keep trying to get out of this condo, I’m going to die.

Q. I’m going to pause you for one minute, okay, [complainant]? Do you have any idea how long you might have blacked out for?

A. I have no idea.

Q. And before you blacked out, you said you started screaming? [7]

[84] As indicated earlier in this judgment the complainant’s video statement was not adduced into evidence. Based on my apprehension of the complainant’s adoption of her police statement, I am satisfied that when she was asked if she lost consciousness, she answered that she was not sure. It also does not appear that she specifically used the phrase “blacked out”. But she did say to the police that she was gasping, she remembered looking at the ceiling, and that she “woke up” and threw up.

10. Choking with the defendant’s arm or hands

[85] The Defence position is that the complaint told the court she was choked with the defendant’s arm, but that she told the police that she was choked with his hands. In aid of this suggestion a screenshot from body worn camera footage was put to the witness.

[86] The complainant maintained her position that the defendant used the arm. She did not accept the suggestion that she told the police that the defendant literally choked her with the use of his hands. The complainant explained that the screenshot was her simply demonstrating the area of her neck as she explained to the police that she was choked in the neck area.

[87] The actual body worn camera footage was not played in court, so I am unable to evaluate this explanation against the objective record. I infer that her explanation was consistent with any statement she made on the body worn footage as it was not played to demonstrate an inconsistency.

11. Attempting to Leave the Apartment

[88] When the police arrived in response to a 911 call from a neighbour, they could not gain entry to the condominium unit – even with the master key provided by the security guard responsible for the property.

[89] The defendant testified that the complainant attempted to leave the apartment and in so doing broke the door handle. He described restraining the complainant after he says she assaulted him. The complainant calmed down. All of a sudden, she jumped up and ran for the exit door. When she was at the exit door, he was right behind her. He described how the complainant turned the door handle to the right bottom and it broke off. Then she was trying to open the door lock, but it was not working because the handle was broken. He asked her to calm down and told her now that she had broken the door handle, they would not be able to get out of the apartment. The defendant also specifically testified that the complainant was banging on the entrance door and crying out for help.

[90] The complainant testified that she was desperately trying to leave the apartment because of the defendant’s assault. She was unable to leave as the door was malfunctioning. The complainant’s testimony about her desperate attempt to leave the apartment is substantially corroborated by other evidence.

[91] First, the defendant himself corroborates the complainant insofar he too observed her banging on the door and calling for help.

[92] Second, the defendant’s testimony about the complainant breaking the door handle was specific, clear, and logical. He was not significantly confronted on this issue during cross-examination. I tend to believe this part of his evidence. That belief means that the defendant never intentionally forcibly confined the complainant. The confinement was as a result of the broken door. It was not caused or intended by the defendant.

[93] Third, the notion that the complainant was so desperate to leave that she broke the door handle in her effort to leave, is objective support for her earnest wish to leave the apartment.

[94] Fourth, the independent witnesses, a neighbouring couple, are generally corroborative of the complainant’s position. They each heard a significant disturbance. The first witness heard a woman desperately shouting and banging. She heard this woman request someone to call the police in a tone of desperation and distress. This witness heard a male voice described as loud and aggressive shouting. The second witness heard (and felt) banging against the wall or door and a female voice continuously screaming for help and “Let me out!” hysterically.

[95] Finally, the police witnesses heard the complainant saying, “Help me!” as they arrived.

[96] This record at trial, and particularly the objective record unconnected with the credibility of the complainant, provides some degree of support for the credibility of the complainant insofar as it concerns the reason why she wanted to leave so desperately – the assaultive conduct perpetuated by the defendant.

[97] The fact that the complainant expended significant effort to leave the apartment is comingled with the demeanour evidence in the aftermath of the incident as observed by the attending police officers.

12. Employment

[98] The employment circumstances of the complainant (e.g., working in a place the police raided) and the employment circumstances of the defendant (e.g., dog breeding) were not important considerations in the credibility analysis.

13. Injuries, Photographs, and Observations

[99] The complainant described various physical injuries she received as a result of the assault on November 7th. The defendant described various injuries he received as a result of the incident as well. The complainant adduced photographs of the injuries and a medical report. The defendant adduced photographs of his injuries and a medical report.

[100] In terms of the analysis, these pieces of objective evidence do not establish causation as far as it concerns any of the injuries described by either witness.

[101] Nevertheless, I am satisfied based on the evidence of both witnesses that a physical conflict occurred. The defendant generally testified that the complainant was the initiator and the aggressor in that she started the physical conflict by kicking him and hitting him. He used force only to restrain her. The complainant generally testified that the accused significantly assaulted her including choking her. He put her in a headlock while she was prone on the ground. She struggled mightily when he straddled her and choked her.

[102] I accept that the complainant caused an injury to the defendant’s lip despite the fact that I am unclear about the precise mechanism. I do not accept the defendant’s evidence that the complainant initiated an assault on his face or head using her cellphone. I tend to the view that there was a struggle over the cellphone as described by the complainant and during that struggle physical contact occurred. In any event, even though the precise cause is unclear, I am satisfied that he received a bloody lip.

[103] I do not know precisely how the complainant received the bruising injuries, the ripped fingernail extension, or the toenail injury. But I am satisfied that these injures were as a result of the defendant’s assault, her efforts to resist the assault, and her efforts to leave the apartment. The exact mechanism of injury is not important.

[104] As for the allegation of choking, I am satisfied that in addition to the complainant’s detailed evidence in this regard, there is objective support for her allegation. First, it is important that the second police witness noted redness to the complainant’s neck area immediately upon his attendance at the scene. Second, I also clearly see a red mark on the complainant’s neck on photos 23 and 24 of the police SOCO photos in Exhibit 1.

[105] Finally, notwithstanding the cross-examination theme that the complainant was fair-skinned and easily bruised, I accept her testimony as it concerns the force utilized by the defendant during the assault and the physical impact on her person. Whether or not she bruises easily, the bruising was present.

14. The Defendant’s Version of Events

[106] In a criminal trial, the accused is not required to testify or mount a defence. But having provided testimony, I am required to analyze the defendant’s evidence and explain my findings utilizing the W.(D.) framework.

[107] At the outset, there are several aspects of the defendant’s testimony that I accept. I accept his evidence that the complainant was intoxicated. [8] The acceptance of the defendant’s testimony (to a degree) was foundational to my finding that the complainant minimized her alcohol consumption when she testified at trial.

[108] I also accept the defendant’s evidence that he did not forcibly confine the complainant. It was the complainant who damaged the door. He did nothing to restrain her from leaving the apartment. Having regard to stage one of W.(D.), this is instrumental in my finding that the prosecution has not proven the forcible confinement count beyond a reasonable doubt.

[109] Finally, I accept the defendant’s evidence that during a physical conflict with the complainant she bit him on his wrist.

[110] My finding that the prosecution has proven s.267 (c.) of the Criminal Code has to do with my critical examination and reasoned acceptance of the complainant’s evidence and the objective evidence outlined above in this judgment so far.

[111] In light of my obligation to explain findings to the parties (including the defendant), I must demonstrate that I have evaluated the defendant’s version of events pursuant to the guidance in W.(D.). In this vein, I would be remise if I left unaddressed two significant features of the defendant’s testimony: (1) the defendant’s testimony that the complainant kicked him in the stomach; and (2) the complainant’s reference to putting the defendant in jail.

a) Assault – Kick to Stomach

[112] The defendant testified that when the complainant entered the bedroom, she was haranguing him and insulting him. She was very intoxicated. Suddenly she leapt upon the bed with both feet, launched a kick with one foot, and struck him with her heel in his stomach area. This is a significant part of the defendant’s evidence because it conveys that the complainant was the aggressor and initiated a criminal assault upon his person at the outset of the physical conflict.

[113] I find the defendant’s testimony on this specific sequence of events implausible. I find that throughout the defendant’s testimony, when any opportunity presented itself, he emphasized the complainant’s troubling difficulties with alcohol abuse. He was clear that the complainant was “super drunk” when she returned from the bar. I have already explained that I accept the defendant’s evidence to a degree in that I am satisfied that the complainant was under the influence of alcohol. I have already explained that I found that she minimized her consumption during her testimony at trial -- a clear credibility issue. But I do not accept the defendant’s testimony that the complainant was significantly intoxication, yet sufficiently coordinated to jump on a bed with both feet, balance, and successfully kick the defendant.

[114] In so finding, I must stipulate that I am not relying on the rule in Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.) [Browne v. Dunn]. While this sequence of events was not put to the complainant, the Crown did not raise this as a Browne v. Dunn concern during submissions. Neither counsel had the opportunity to provide submissions on this issue. This is not a Browne v. Dunn - related finding against the defendant because of a “failure” to confront the complainant with this testimony.

[115] I am required to explain to the defendant that I reject this evidence simply because it is implausible, and I don’t believe him. The implausibility of this event has nothing to do with a “failure” to confront the complainant on this significant feature of the defendant’s version of events.

b) “I am going to get you in jail”

[116] The defendant testified that after the complainant assaulted him, he restrained her hands. When the complainant had calmed down, he released the hold. Then the complainant jumped up and ran toward the exit door. As she ran, she yelled “I am going to get you in jail”.

[117] Once again, the complainant was not confronted with this statement. Once again, the Crown has not complained about the apparent breach of the rule in Browne v. Dunn. Ultimately, I can not determine if the complainant made this statement. Part of reason for that is because it was not put to her at trial. These circumstances do not mandate that a court draw an adverse inference. I decline to draw any such inference against the defendant.

[118] In any event, even if I assumed for the moment that this statement was made, it would provide support for a foundational caution that the complainant is biased and potentially motivated to fabricate evidence. As explained earlier in this judgment, I already endorse this caution.

C. Conclusion

[119] A criminal trial is not concerned with resolving every factual issue or every disagreement in the differing narrative provided by opposing witnesses. A criminal trial is not concerned with resolving whether the witnesses were kind to each other. A criminal trial can not resolve if infidelity occurred. It is not my role to decide who was right or wrong in a relationship. A criminal trial is focused on the ultimate issue – has the prosecution proven the essential elements of the offence beyond a reasonable doubt.

[120] For the reasons set out above, as it concerns the allegation that the defendant assaulted and choked the complainant on November 7th, the prosecution has established this count beyond a reasonable doubt.

[121] I accept the evidence of the complainant that she was assaulted and choked. Despite some credibility and reliability concerns, the complainant’s testimony about the circumstances was corroborated by external sources. The neighbours heard her screaming for help and trying to get out of the apartment. The attending police officers also heard her screaming for help. She was trying to get away from the defendant so badly that she broke the inside handle of the apartment door. Along with the photos of injuries I find that the photograph exhibit documents redness to her neck area. An attending police officer noted her neck was exhibiting redness.

[122] I do not believe the defendant’s testimony that the complainant leapt upon the bed and kicked him, or that she was the initiator and the aggressor in a physical conflict. I do not believe the defendant’s denial that he assaulted and choked the complainant. Nothing in the record at trial, including his testimony, causes me to be in a state of reasonable doubt. The defendant is found guilty of committing the offence contrary to s.267 (c.)) of the Criminal Code [Count 1].

[123] Count two alleges a simple assault on November 7th. No alternative Crown theory concerning an assault simpliciter was argued at trial. Having regard to the Defence case to meet, I infer that this was an alternative count in case bodily harm was not proven in count 1. As such, given my findings on count 1, a conditional stay is ordered with respect to count 2: R. v. Kienapple, [1975] 1 S.C.R. 729.

[124] As for the allegation of unlawful confinement, as I indicated earlier in this judgment, I accept the evidence of the defendant that he did not forcibly confine the complainant to the apartment. I also accept his clear and detailed testimony that it was the complainant who broke the inside door handle on the apartment door thereby locking both of them inside the unit. Given the application of stages 1 and 2 of W.(D.) the prosecution has not proven forcible confinement beyond a reasonable doubt. The defendant is found not guilty of this count.

V. Analysis – August 25th

A. The Evidence

1. Complainant’s Version of Events – August 25th

[125] The complainant testified that upon waking up in the defendant’s condo one day the defendant was whipping her face with a white bikini with metal on it and screaming at her. She testified that the defendant was mad at her for having gone out the night before. The assault ended when she got out of bed and went to walk her dog. She had marks on her forehead caused by the metal on the bikini.

2. Defendants Version of Events – August 25th

[126] As it concerns the allegations on August 25th, the defendant testified to a course of events beginning in the evening. The complainant told him she was going to work in a bar. Later on in the evening she contacted him in a heavily intoxicated state. He testified that the complainant was unable to provide her location to him because of her state of intoxication. He used a geolocation tool on WhatsApp to find her location.

[127] When he arrived at her location she was crying hysterically, her pants were unbuttoned, and she was intoxicated. He brought her home. But prior to that he took a video of her for the purposes of confronting her the next day about her abuse of alcohol. The defendant testified that no assault occurred. In fact, later on, as evidenced by a text message put into evidence, they attended the CNE together.

B. Conclusion

[128] As there was no application to admit discreditable conduct evidence across the counts, the evidence as it concerns the allegations on August 25th must be analyzed only having regard to the evidence directly admissible on the single count of assault (count 4).

[129] There is no objective independent evidence concerning this allegation except for the text message about the CNE. There were no photographs of the injuries. There were no other witnesses.

[130] I find no basis to reject the evidence of the complainant about the assault. I am well aware that a domestic partner could be assaulted and attend the CNE thereafter. But the defendant’s testimony was more detailed and clear than the testimony of the complainant. Unlike his testimony about the November 7th assault, his evidence was logical and made sense. Applying stage one of W.(D.) I generally accept the defendant’s testimony. Having regard to the criminal standard of proof this mandates an acquittal. The defendant is found not guilty.

Released: July 18, 2024 Signed: “Justice M.S.V. Felix”

[1] I infer from the evidence. The complainant’s statement was not evidence at trial. [2] An almost routine practice of experienced Crown Attorneys. [3] And were arguably not pursuable given the evidence on the issue. [4] The complainant adopted this area at 7:44 of her statement (page 11 of transcript). [5] Transcript of Proceedings, January 9th, 2024, page 38. [6] The complainant used the word “strangulating”. [7] Transcript of Proceedings, January 9th, 2024, page 42. [8] Subject to the caveat set out earlier in the judgment.