Court File and Parties

ONTARIO COURT OF JUSTICE DATE: March 25 2024 COURT FILE No.: Brampton 3111 998 22 2322

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.A.

Before Justice G.P. Renwick

Heard on 29 February 01 and 21 March 2024 Reasons for Judgment released on 24 March and Re-Released on 25 March 2024

Counsel: M. Lisus, counsel for the Crown A. Kenawy, counsel for the Defendant M.A.

Reasons for Judgment Following a Trial

RENWICK J.:

Introduction

[1] The Defendant is charged on a single-count Information with assaulting his wife on 25 February 2022. The prosecutor proceeded by summary conviction procedure. This was a brief trial. The evidence was heard over two days and lengthy submissions were heard on the final day of the trial.

[2] The complainant and a police officer testified for the prosecution. The Defendant testified on his behalf. He introduced five photographs (exhibits #1A – 1E) of injuries he claimed to have suffered from the interaction he had with the complainant on the alleged offence date. The Defendant did not claim self defence. Rather, he admitted to a non-consensual application of force upon his wife: he put his hand on her mouth to calm her down. He admitted that this may have left blood on her mouth as seen by police.

[3] Given the frailties in the complainant’s testimony, the Defendant submitted that the complainant was not a reliable witness and the assault alleged was not proven beyond a reasonable doubt.

[4] At issue is whether the prosecution has proven the allegation beyond a reasonable doubt. This will entail a consideration of witness credibility and reliability, the probative value of the evidence and whether the prosecution’s high burden has been met.

Governing Legal Principles

[5] The Supreme Court of Canada has recently reiterated the legal principles that govern the fact-finding process engaged during a trial. [1]

[6] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed an assault, he will be acquitted of the charge.

[7] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [2] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.

[8] This case involves credibility and reliability assessments. In assessing credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate their recollections. It is also important to determine whether the witness was trying to tell the truth and whether the witness was sincere, candid, biased, reticent, or evasive. A court may accept some, none, or all of what a witness says while testifying.

[9] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said throughout their testimony. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[10] Given the Defendant’s evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31.

[11] Justice Paciocco breaks down the W.(D.) principles into five propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict him;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[12] Also, I have reminded myself to treat the evidence of both witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of a witness’ role or status, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings. [3]

[13] Admissibility and the weight attached to evidence are two distinct considerations. In addition to the testimony received, there are photographs to consider. The probative value of evidence is not presumed. In all cases, a trier of fact must determine the appropriate weight to give each piece of evidence and what, if anything, is established or proven and to what degree.

The Evidence and Findings of Fact

[14] In this part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, motive, and the witness’ ability to recall and communicate.

[15] I will not recapitulate all of the evidence received during this trial. Suffice it to note that I have used several opportunities during the trial and subsequent to the completion of the submissions to review my notes and to listen to parts of the digital audio recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, despite any verbal exchanges during the evidentiary phase of the trial or submissions, I came to no conclusions about any of the evidence received until all of the closing submissions were made and my review of the evidence, submissions, and the law was complete.

The Testimony of the Complainant

[16] The complainant testified remotely from another country, on consent. She testified in chief for approximately 90 minutes and in cross-examination for almost three hours.

[17] She appeared to be polite and modest. She is 38 years old and studies on-line at a college in Ontario. The complainant married the Defendant by arrangements made by her family when she was 17 and he was 23 years old. They share four children.

[18] At times while testifying, the complainant appeared to wipe her eyes as if she were crying. However, I could not tell if she shed any tears while watching her testify by video.

[19] The complainant described the catalyst of the alleged assault: an argument with the Defendant about laundry detergent that had been spilled on the floor. At one point during the argument, the Defendant grabbed her and slapped her in the face. She retreated to their bedroom. The complainant tried to close their bedroom door to keep space between them. The Defendant forced his way into their bedroom and continued the assault. He held her on the bed, he sat on her, and he beat her about the face and head with open hand hits.

[20] Two weeks prior to this alleged assault, the complainant had undergone surgery to remove cysts from her uterus. When she was pinned on the bed, it was very painful for her. During the assault, the Defendant claimed that he would give her face scars to make her ugly so that no one would look at her anymore. She began to scream in pain for someone to come, to end her pain.

[21] During the assault, the Defendant grabbed the complainant by the neck, which caused her difficulty breathing. She may have lost consciousness. The complainant testified that the altercation ended when she realized that he was in the bathroom and she telephoned the police to come. The Defendant came out of the bathroom and asked if she had called the police. Then he departed, before the police arrived.

[22] When the police arrived, the complainant could not move because of her abdominal pain. She could barely speak because of the soreness to her throat. The police did not speak her language. She testified that when the police came, her face was bloody. The police offered to have the complainant go to the hospital many times and she refused. The complainant was worried that her children would return from school and she did not want them to be afraid if they learned that she was at the hospital.

[23] Cross-examination suggested that the argument also involved the complainant’s failure to remove her shoes when she came home. There appeared to be an inconsistency in the testimony because the complainant agreed that she had not been hit in the face before retreating to the bedroom. Her explanation for answering “casually” was that all of her “focus was on the savage way I was being beaten.” After initially giving some answers, the complainant then claimed that she was unable to be precise about which hand the Defendant had used to hit her face. When it was suggested that she was lying, she testified, “Well a person can only lie about the big things, not which hand or which side of the face.”

[24] The complainant could not recall if she had fallen on the bedroom floor, how she made it onto the bed, or exactly where her head was on the bed. All that she could recall was that the Defendant was on top of her “belly.” He slapped her face and head with alternating hands and the pain was “echoing in [her] heart.” She testified that she might have lost consciousness from the hits to the head and face and when she woke up the Defendant was in the washroom and she could hear the water running.

[25] During cross-examination it was suggested that the complainant had not said anything about being choked when describing the assault in the bedroom. The complainant said that this had happened when the Defendant told her that he would ruin her face. She could not say if he had used one hand or two to hold her neck. She did not know if this had caused her to lose consciousness, but she said it was difficult to breath.

[26] When counsel showed the first photograph to the complainant, she could not say whether the arm in the photograph was the Defendant’s. She had not seen any scratches on him. She testified that if she had caused the scratches, it was done while she defended herself and it was unintentional. The complainant testified:

No I don’t remember. All I remember is I was pushing his hands from my neck and for sure it would be…nothing, nothing.

[27] Later in cross-examination the complainant testified:

When you are being assaulted, being beaten, and suffocated, you don’t, you do what it takes to push him away.

[28] The complainant re-iterated that she had not been aware that she had scratched the Defendant. She accepted that exhibit #1C showed the back of the Defendant’s neck. When asked about her lack of memory respecting whether she had caused the scratches on the Defendant’s neck, the complainant testified:

Did you watch how was I going to die when he was suffocating me? Did you see that? If a person under this circumstance is being attacked as such, how would you realize or fathom that reaction?

[29] When the Defendant’s theory was advanced during cross-examination, the complainant testified, “of course not,” several times.

[30] The complainant also testified that she began divorce proceedings and the two of them had discussions about the division of property and the criminal charges. She testified as follows:

Q: And you told him if he did that [put the house in her name] that you would withdraw these charges?

A: No. He was asking me to go back to him, as his wife. He contacted me. He contacted my mother, he contacted my father, he contacted my brother. He was asking that I go back to him as his wife. And he told me, “Oh, you’re going to stand against me in the court, if you do so, I will finish you off, I will finish your children off, I will finish your family off, your mother off.”

Q: So you’re telling me that you never told him you would drop these charges?

A: I’m not going to lie. He was already filing a case against me. So, I told him, if you drop the case against me, I will drop the case against you. And I did, actually, contact the officer in charge, and I told her I would like to drop the charges.

[31] Initially, the complainant was reluctant to disclose that the Defendant had apparently filed a complaint against her with the “CRA” for her receipt of $27,000 of the Child Tax benefit she had received while she had been living abroad. The complainant clarified that she had informed the CRA that she was outside Canada and even sent them an airline ticket.

[32] The complainant also revealed that in the days leading up to the trial, she had asked the police if she could give up having the Defendant punished, because she cared about the Defendant and the years they had spent together.

[33] The complainant was cross-examined about any physical injuries or marks from the alleged incident. She testified there were bruises on her head, shoulders, and face. She did not give a lot of attention to the bruises because she said it was not the first time this had happened. She had photographs from other incidents on her phone but did not provide them to the police. The complainant refused to attend the hospital so as not to frighten her children when they returned from school.

[34] The complainant also alleged that the Defendant had followed her or put a tracking device on her car and spied on her. She did not want to have the Defendant charged or to suffer because of her children. She had left Canada over the past five months to protect herself and to avoid causing the Defendant any further harm. Her hope was that the Defendant would become a better person.

The Testimony of the Police Officer

[35] Marcus Matheson testified that he attended at the residence in response to the call to the police. The officer was permitted to use his notes to refresh his memory while testifying. Constable Matheson testified that he located the complainant in her bedroom. She had dried blood on her mouth. Her lips were swollen and she appeared to be in an “obvious” state of pain. She also had a hard time speaking. He did not notice any marks on her neck or face. She held her stomach and head while speaking to police.

[36] Cross-examination revealed that the officer had a poor recollection apart from his notes. He could not say where the blood appeared on the complainant’s mouth. Moreover, the officer had no notation of any swelling to the complainant’s lips, although he claimed to remember seeing this. According to the officer, when he spoke with the complainant she did not have red cheeks.

The Testimony of the Defendant

[37] The Defendant testified for approximately one hour in chief and twice as long in cross-examination.

[38] He agreed that on that day there had been some liquid laundry detergent spilled and he was worried about damage to the floors. He had cleaned the mess. Then he found rotten food in the fridge. He was perturbed, but resting when the complainant arrived home. She arrived and did not remove her shoes. This started the argument that day. She said some mean things and when he stood up from the couch, she hit him with her purse so hard that the metal chain-link purse strap broke.

[39] The Defendant testified that he then stuck out his hand to push or keep his wife away from him. At this point, she was scratching him, like a “cat.” She grabbed his outstretched arm and scratched both of his arms, his chest, and around his neck. She then ran to their bedroom.

[40] After giving his four year old a phone to look at to distract the boy, the Defendant followed the complainant into the bedroom. The door was slightly ajar. The complainant was sitting on the bed. She suddenly jumped onto the bed and began banging and screaming on the wall adjoining their neighbours’ home.

[41] The Defendant described holding the complainant by both of her upper arms or shoulders, moving her away from the wall, and pleading with her to calm down and he would leave. This did not end her screaming. He felt that he had to put his hand on her mouth to get her to stop yelling. She continued to move her arms in a manner that was crazy and he then moved away to the washroom, to put cold water on his face.

[42] His wife then told him that she had called police, she would destroy him, put him in jail for a long time, and ruin his life.

[43] The Defendant laughed and denied it when his lawyer asked him if he had threatened to ruin his wife’s face.

[44] When asked if he could have caused the complainant’s mouth to bleed by putting his hand on her mouth, he admitted that it “could be” because he put “pressure” there.

[45] He answered “yes, I asked her that” when his lawyer asked if he had told his wife to drop the criminal charges against him. The Defendant explained that his wife was trying to extort him to sign over his half interest in the family home and keep the mortgage in order for her to drop the charges.

[46] Before cross-examination, the Defendant was asked if he had struck the complainant:

Q: At any point, other than pushing her away, did you strike her with your hand?

A: Striking her with a hand, I do not remember striking her. Maybe in the bedroom, maybe in the bedroom, I cannot recall because of that hysterical condition she was going through.

[47] In cross-examination, the Defendant admitted that within a few weeks of being released with an undertaking that included a no contact term he was using his son to contact the complainant. Eventually, they communicated directly. He would call her or she would call him.

[48] Cross-examination also revealed that when the Defendant put his hands on the complainant in the bedroom to move her away from the wall, he placed her onto the bed. He took exception that he had made the complainant lie down while putting his hand on her mouth. He described it this way:

Q: So you pulled her down, while you are standing still on the ground?

A: Yes.

Q: And you’re saying then once she’s down on the bed you cover her mouth with your hand?

A: No. I was asking her to stop yelling, because of the neighbours, but she kept on screaming and she was shaking and moving her hands in an unpredictable way. I placed my hand on her mouth and I said, “calm down I am leaving the house.” And at that time, she was busy insulting me. I just placed my hand for 2, 3 seconds, so she continued insulting me. So, I went back and I placed my hand again for the second time on her mouth. About 3, 4 seconds. Then, I left her in her hysterical state and I left.

[49] The Defendant initially estimated that this incident last for approximately an hour from the time the complainant came home until he left the residence. This evidence changed slightly when tested.

[50] Contrary to what he had said while testifying in chief, after the lunch recess, the Defendant had the following exchange with the prosecutor:

Q: And then she scratched you?

A: Yes. After she hit me with the purse, I put my hand on her and she scratched me at that time.

Q: And she grabbed your arm?

A: She did not grab my arm.

Q: She touched your arm.

A: Yes, scratched it.

[51] Despite his efforts to keep her away from him, he ended up with scratches to both arms, his chest, and his neck at the front and toward the back of the neck.

[52] The Defendant eventually agreed with the prosecutor that the marks on his right arm (exhibit #1A) were possibly the result of the complainant’s nails digging into his skin rather than scratch marks dragging across his skin. He also agreed that these marks differed from the apparent scratch marks in the other photographs.

[53] There were slight variations in the description of the complainant when the Defendant entered the bedroom. In both his evidence in chief and under cross-examination he switched between describing her sitting on the bed or standing on the bed as he entered.

[54] The Defendant acknowledged that he knew that the complainant was not consenting to him putting his hand on her mouth. He admitted that he was trying to keep her quiet.

[55] Two months prior to trial, the Defendant made a complaint to the CRA about the complainant receiving the Child Tax benefit.

Analysis of the Evidence

Credibility and Reliability Generally

[56] Triers of fact must consider both credibility and reliability in determining whether the allegations are proven beyond a reasonable doubt. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which we evaluate the accuracy of evidence. Trial judges must be careful not to conflate credibility with reliability otherwise the fact-finding net might entangle even the least reliable piece of evidence.

[57] It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns govern the analysis because credibility does not guarantee accuracy.

[58] While credibility is not a proxy for reliability, [4] where the evidence is highly credible, consistent, plausible, not inconsistent with other evidence, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, truth and accuracy are likely established.

[59] Assessments of credibility and reliability can be the most important and challenging judicial determinations in a criminal trial. Our highest court has reminded us:

Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’.” With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’ testimony. [5]

[60] Judicial fact-finding is often based on inductive reasoning and evaluations of “probable interpretations of the evidence.” [6] It necessarily depends on common-sense inference-drawing. [7] To again quote the Supreme Court:

Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment. [8]

Self-Instruction Respecting Discreditable Conduct Beyond the Allegation at Trial

[61] In this analysis, I have specifically cautioned myself not to use or consider the testimony of prior assaults, threats to disfigure, the use of a tracking device, the allegation of spying, contact between the parties contrary to an undertaking, or the discussions about dropping the charges against the Defendant.

[62] These are all unproven allegations or possible examples of discreditable conduct for which no application was brought. I am satisfied that I cannot use any of this or similar evidence to bolster the credibility of the complainant, to discredit the Defendant, or to reason that he is guilty of the offence charged. This is impermissible, and contrary to the presumption of innocence. The untested allegations are completely irrelevant in the fact-finding exercise before me.

[63] When I consider all of the evidence, I am somewhat dissatisfied with the testimony of the complainant. She was quick to minimize inconsistencies in her evidence or the possibility that someone could lie about small details while testifying.

[64] The prosecutor submits that the effects of trauma upon memory are well recognized in our courts. Even so, in the absence of evidence respecting this complainant, her level of trauma, and any evidence about her memory or the effects of trauma upon it, I am reluctant to draw any conclusions in this particular case.

[65] I find that the complainant was doing her best to testify and to answer truthfully. Like all witnesses, she was an imperfect historian.

[66] The complainant admitted that there were conversations about dropping the charge and she had specifically asked one of the police officers involved if that could happen leading up to the trial. This admission that painted her in an unflattering light added to her reliability.

[67] Overall, the complainant was mostly credible. Her narrative was compelling. Her demeanor while testifying did not add to nor detract from my assessment of her credibility.

[68] Similarly, the Defendant was quick to admit that he assaulted the complainant. He twice covered her mouth to get her to stop screaming. He admitted that this may have caused the blood that was observed on the complainant’s mouth by the police. This admission against interest bolstered his reliability as a witness.

[69] It was unusual that the Defendant laughed when asked if he had threatened to disfigure his wife’s face. However, he was very polite and remained calm throughout most of his cross-examination.

[70] As between the two versions of events, there is some overlap. The parties agree that there was a disagreement in the living room when the complainant arrived home. At some point, it became physical. The complainant fled to the bedroom. The Defendant followed her inside the bedroom. He made her lie down. He interfered with her breathing. This caused the complainant’s mouth to bleed.

[71] I specifically reject the Defendant’s evidence that he was scratched in four places as he simply stood with his arm out to prevent the complainant from hitting him. It defies credulity that he did not defend himself with his other arm while the complainant dug her nails into his right arm and she scratched his left arm and the right side of his chest and the right side of his neck at the front and around to the back.

Circumstantial Evidence

[72] This case involves some circumstantial evidence.

[73] The Defendant is alleged to have put a hand or hands on the complainant’s neck while sitting on top of her on the bed. This apparently interfered with her breathing and caused the complainant soreness and difficulty speaking, afterwards. The photograph exhibits are circumstantial pieces of evidence which are sought to be used to support the complainant’s testimony, although she did not specifically have any memory of having scratched the Defendant at any point during the physical altercation.

[74] In order to be satisfied that the circumstantial evidence corroborates the complainant’s testimony, I must be satisfied that the only reasonable inference available in respect of the circumstantial evidence is that the Defendant held the complainant down, he interfered with her ability to breath, and she scratched him to end this assault.

[75] The photographs are clear and show multiple injuries to the Defendant. He testified about their origins. The photographs were taken the next day. The complainant was unable to identify the marks or the images, except exhibit #1C, which she agreed was a photograph that showed part of the Defendant’s face.

[76] I accept the Defendant’s testimony about the content of the photographs and their timing. As indicated, I completely reject the Defendant’s testimony that the scratch marks were caused in a brief encounter as he stood with an arm out to keep the complainant away from him.

[77] All of the photographs, except exhibit #1A, appear to show elongated scratches on the Defendant. Almost all of the scratches have multiple parallel scratches. I agree with the Defendant that exhibit #1A is different. The four darker marks appear to be static gouges into the Defendant’s right forearm.

[78] The only conclusion that I can draw upon all of the evidence is that the Defendant had one or both of his arms on the complainant’s neck as she struggled to breath and she used both of her hands and her fingernails to dig, scratch, and claw at the Defendant’s arms, chest, and two areas of his neck while she was suffocating.

[79] Having considered and rejected the Defendant’s explanation for the scratch marks in the five photographs, there is simply no other explanation, reasonable or otherwise, which could account for these injuries during the alleged assault.

[80] The complainant testified that she did not see these injuries on the Defendant before he left. This evidence does not seem unlikely in the circumstances. She believes she had passed out. The Defendant was putting water on his face and she called the police. He left and she has not seen him since. I am satisfied beyond a reasonable doubt that the complainant scratched the Defendant to end the assault and especially his attempt to choke her or cover her mouth. She was literally fighting for her life and exhibits #1A through 1E exclusively prove this.

[81] I have also considered the fact that the complainant may have had a motive to fabricate her allegations: she wanted sole custody of the children, sole possession of the family home, and to put the Defendant in jail. I have rejected this theory for the following reasons:

i. There is no evidence that the complainant had any plans to separate from the Defendant before these allegations were made;

ii. The complainant did not file for divorce until after these allegations were made;

iii. The Defendant admitted that he followed the complainant into the bedroom and assaulted her by putting his hand on her mouth with sufficient force to have possibly caused her mouth to bleed;

iv. The complainant told the police that the Defendant had put his hand or hands on her neck during the assault;

v. The complainant was unaware of the existence of the circumstantial evidence (the photographs) before testifying;

vi. The complainant did not tell police about other allegations subsequent to the alleged assault; and

vii. The complainant contemplated discontinuing the prosecution.

[82] The plaintiff called the police because she had almost been choked to the point of losing consciousness. Her discomfort and inability to vocalize after the alleged assault are corroborated by the police testimony.

[83] I have considered all of the evidence in this case. It does not raise a reasonable doubt. I have no reasonable doubt about what took place between the complainant and the Defendant in their bedroom on 25 February 2022.

[84] To the contrary, I am satisfied that it is proven beyond a reasonable doubt that the Defendant violently attacked the complainant. He threw her onto the bed. He sat on top of her. He held her down. He slapped her on her head and face. He tried to interfere with her breathing by putting a hand on her neck. He tried to stop her from screaming by blocking her mouth with his other hand. He continued this assault despite her significant efforts to break free or to repel his attack. Once the complainant had almost passed out, the attack ended.

Conclusion

[85] The assault allegation against the Defendant has been proven beyond a reasonable doubt. I find M.A. guilty of assaulting the complainant.

Re-released : 25 March 2024 Justice G. Paul Renwick

Citations

[1] R. v. Kruk, 2024 SCC 7 at paras. 59-62. [2] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [3] Within 8 hours of releasing this judgment and before either counsel acknowledged having received it, I realized an entire section was missing. I re-released these reasons with the underlined paragraphs. [4] R. v. H.C., 2009 ONCA 56 at para. 41. [5] Kruk, supra, at para. 81. [6] Kruk, supra, at paras. 71 and 75. [7] Ibid. [8] Kruk, supra, at para. 72.