Reasons for Judgment
Date: February 19, 2025
Information No.: 4810-998-23-48122571
Court: Ontario Court of Justice
Parties: His Majesty the King v. Omar Ashraf Elkhodary
Before: Justice B. Brown
Location: Toronto, Ontario
Appearances:
- C. Coughlan, Counsel for the Crown
- J. Ortega, Counsel for Omar Elkhodary
Justice Brown (Orally):
Mr. Omar Elkhodary is charged with assaulting Vicky Moscoe on November 2, 2025, contrary to Section 266 of the Criminal Code. The Crown proceeded summarily. The trial commenced on January 20, 2025. The court made an order excluding witnesses.
The Crown called the complainant, Ms. Vicky Moscoe, and put in evidence two video clips, one recorded from the complainant's cellphone at the time of the allegations. The defence called two witnesses: Mr. Omar Elkhodary and his girlfriend, Ms. Jo Marie Ortega. The allegation is that Mr. Elkhodary pushed Ms. Moscoe. The defence argued that Mr. Elkhodary was acting in self-defence.
Uncontradicted Evidence
The allegations relate to the evening of November 2, 2025, around 7:20 p.m. There is no issue as to the date. This was a few weeks after the October 7, 2024 attack by Hamas terrorists, during which numerous hostages were taken from Israel. Ms. Moscoe had posters of child hostages she was placing on poles in the area to raise awareness. One poster depicted a little girl, “Aviv,” with her mother and little sister; another was of a separate little girl.
Ms. Moscoe was on the east side of Yonge Street just south of Empress in Toronto, placing posters on poles. Mr. Elkhodary approached and began tearing down the posters. As he raised his hands to remove them, Ms. Moscoe put her hand on a poster to stop him. This was recorded on video. The video also recorded statements by both parties. The allegation concerns events following these acts.
After the exchange, two other women approached. They were unknown to the complainant and appeared to intervene to stop Mr. Elkhodary. The second video clip relates to their involvement, which is not charged in this trial.
Analysis
The defendant is presumed innocent. The Crown must prove guilt beyond a reasonable doubt. The defendant has no burden to prove or explain anything. Reasonable doubt applies to credibility assessment. Credibility is not about choosing the more believable version but whether the evidence raises reasonable doubt.
If defence evidence is believed and affords a defence, the accused must be acquitted. Even if not believed as true, if it raises reasonable doubt, acquittal follows. Even if rejected, the Crown must prove guilt beyond a reasonable doubt on all evidence.
There is no legal requirement that complainant evidence be corroborated. Guilt must not turn into a mere credibility contest. This would erode the presumption of innocence and the Crown's burden.
In R. v. W.(D.), 1991 SCC 93, the Supreme Court suggested jury instructions for evidence consideration, summarized as:
- If you believe the accused's evidence and it affords a defence, you must acquit.
- If you do not believe the accused but are left in reasonable doubt, you must acquit.
- Even if not left in doubt by the accused's evidence, you must ask if, on all evidence, guilt is proven beyond a reasonable doubt.
Self-Defence
The court considers self-defence under Section 34 of the Criminal Code:
34 (1) A person is not guilty if:
(a) they believe on reasonable grounds that force is being used or threatened against them or another;
(b) the act constituting the offence is committed to defend or protect themselves or another; and
(c) the act is reasonable in the circumstances.
Section 34(2) lists factors for reasonableness, including nature of force, imminence, roles, weapons, physical capabilities, relationship history, proportionality, and lawfulness of the force.
Section 34(3) is not relevant here.
The Supreme Court considered this in R. v. Khill, 2021 SCC 37. The court here applies that judgment.
The defence must show:
- A reasonable belief of force or threat;
- Purpose of defending self or another;
- Reasonableness of actions.
The Crown bears the onus to disprove at least one element beyond a reasonable doubt.
The 2013 amendments simplified self-defence law, expanded its scope, and introduced a multifactorial reasonableness assessment. The accused's role in bringing about conflict is key.
Khill noted the scope broadens and narrows self-defence depending on circumstances, and that mistaken but reasonable beliefs are considered.
Consideration of Evidence
Video Clip of Allegations (Exhibit 1)
This 1 minute 29 second video, filmed by Ms. Moscoe on her smartphone, shows Mr. Elkhodary narrating events while tearing down posters. He accuses the complainant of assault though he is several feet away. He returns to the complainant near the pole and continues removing posters despite her attempts to stop him.
Profanities are used, including "None of your fucking business" when asked his name, and "I don't give a fuck" regarding the posters. He directs profanities at a woman nearby.
The video shows the complainant saying, "No, I want these two," referring to the posters, at which point the video shakes, consistent with her testimony that he pushed her.
Mr. Elkhodary's girlfriend is present. After he pushed the complainant, another woman approaches him. No assault on Mr. Elkhodary by others is captured on video.
Posters Removed (Exhibit 3)
Photographs show two posters:
- "Raz, 4 years old, Israeli, kidnapped by Hamas"
- "Aviv, 2 years old, Israeli, kidnapped by Hamas"
Both describe the October 7 abduction of nearly 200 civilians and atrocities by Hamas. The poster is torn, obscuring the final message.
Second Video Clip (Exhibit 2)
This 5 minute 40 second video, also filmed by Ms. Moscoe, shows events after the first video. It depicts Mr. Elkhodary holding and pushing a shorter female backwards on the sidewalk. His girlfriend joins him, outnumbering the female. A second female arrives and slaps him briefly. Both females then leave.
Mr. Elkhodary follows the second female; a verbal confrontation ensues. The accused exchanges words with the complainant. He leaves with his girlfriend, then returns to retrieve his glasses. The crumpled poster is returned to the complainant.
Viva Voce Testimony
Omar Ashraf Elkhodary
Born in Scarborough to Lebanese and Egyptian parents. His mother remarried a Palestinian. He disagreed with the posters, calling them hateful propaganda and misinformation.
He testified that the complainant argued with him and tried to knock him away from the poster. He told her not to touch him and claimed he was swarmed and hit by three women. He pushed them away in self-defence and did not want a physical altercation.
He refused to admit he was taller than the complainant but admitted the other two women were shorter. He admitted pushing the complainant but claimed self-defence.
He said he felt trapped and swarmed, unable to leave. The court found this not believable, especially as the swarming occurred after he pushed the complainant.
The court found his motivation for pushing was to remove the complainant to continue tearing down posters, not fear of her.
Jo Marie Ortega
Mr. Elkhodary's girlfriend. She testified she was with him and saw the posters. She described the women pulling and swarming Mr. Elkhodary after the initial exchange.
Her evidence conflicted with the video and was found lacking in reliability and credibility. She did not mention the pushing of the smaller female backwards shown in the second video.
She admitted the complainant held a phone and used one hand to grab Mr. Elkhodary's arm to stop him removing the posters.
Vicky Moscoe (Complainant)
Testified she was pushed and felt pain on her forehead before the other two women arrived. She denied intentionally touching Mr. Elkhodary, admitting only incidental contact while protecting the posters.
She maintained Mr. Elkhodary was not swarmed at the time he pushed her. Her evidence was consistent, forthright, and accepted by the court.
Findings of Fact
Ms. Moscoe placed posters of child hostages on a public pole. Mr. Elkhodary approached confrontationally and began tearing them down, swearing at her. He pushed her to get her out of the way to continue removing the posters.
Ms. Moscoe did not threaten or assault him. The push was not in self-defence but to intimidate and remove her hands from the posters.
After the push, two other women approached. The push was not related to self-defence but to further his goal of removing the posters.
Consideration of Self-Defence
The court considered Section 34(1) of the Criminal Code. The Crown proved beyond a reasonable doubt that:
The accused did not act for the purpose of defending or protecting himself or another (s. 34(1)(b)). His purpose was to remove the posters, not self-defence.
The accused did not have a reasonable belief that force was being used or threatened by Ms. Moscoe (s. 34(1)(a)). There was no evidence of threat or assault by her.
The court rejected the defence of self-defence.
Conclusion
The Crown proved beyond a reasonable doubt that Mr. Elkhodary assaulted Ms. Moscoe by pushing her. He is found guilty of the charge.