WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: September 18, 2025

Court File No.: 4810-998-24-48128697

Ontario Court of Justice

Between:

His Majesty the King

— and —

A.R.

Before: Justice David Porter

Heard on: February 12 and 13, 2025 and June 23, 24 and 25, 2025

Reasons for Judgment Released: September 18, 2025

Counsel:

S. Scully — for the Crown

F. Bernhardt — counsel for the accused

Reasons for Judgment

Porter J:

The Charges

[1] The Accused A.R. ("Mr. R.") is charged in a 9 count information with 4 counts of assault, choking in the commission of an assault, sexual assault, assault with a weapon and 2 counts of failing to comply with a release order.

[2] The complainant in relation to the 4 assault charges, choking in the committal of an assault, assault with a weapon and the alleged sexual assault, is Mr. R.'s wife A.Y. ("Ms. Y.").

[3] The alleged offences in relation to Ms. Y. spanned a period from June 1, 2023 to February 24, 2024.

[4] The Crown elected to proceed by indictment, and Mr. R. elected trial in the Ontario Court of Justice. Ms. Y. was the only Crown witness.

The Crown's Case

[5] Ms. Y. testified that she is 23 years old and is currently employed as an electrician. She has been working as an electrician for approximately two years. She previously completed a college education in science and technology.

[6] She testified that she married Mr. R. in December 2023, and had been in a domestic relationship with him for about one year before they were married.

[7] In cross-examination, it was suggested to Ms. Y. that during the relationship she drank heavily, often arriving home with a bottle of liquor. She denied this and asserted that she did not drink alcohol during the week, and would only "have a drink or two on Fridays or Saturdays".

[8] Ms. Y. testified that in the summer of 2023 arguments between her and Mr. R. became frequent. Occasionally, the arguments involved physical assaults by Mr. R. At this time, Mr. R. lived in an apartment at […] Ave. in Toronto.

June 2023 Alleged Assault

[9] The first specific incident she recalled of an assault (after being permitted to refresh her memory from her police statement) was in June 2023 in which she and Mr. R. got into a screaming match. She was sobbing and tried to de-escalate the fight. Mr. R. grabbed her by the throat with his right hand and told her that she needed to leave. He used his other hand to stop Ms. Y. from fighting back. He said in the course of the fight "hey you need to listen to me" while grabbing her neck.

[10] She described the grip on her neck as not lasting very long. She told him that he was hurting her and to let go. The assault made her cry.

[11] She acknowledged that she could breathe while he had his hand on her neck.

[12] She could not recall any pressure on her windpipe on this occasion. She did feel a soreness in her neck after the incident when she was in the lobby of their apartment building. Specifically, she could feel tenderness where his thumb was pressed into her neck. While in the lobby, shortly after the assault, she felt that pain in her neck. However, after she went to sleep and woke up the next day, the soreness was gone. She did not seek medical attention for the assault.

[13] She testified that the assault ended when she grabbed her purse and left Mr. R.'s apartment. She went to the lobby, and was going to get an Uber, but Mr. R. came to the lobby and apologized to her and said he was sorry, and that he did not know what had come over him and urged her to try to see that that is not who he was. He urged her to come back and discuss their differences and she returned to the apartment. She stated in cross-examination that she did not mention the assault to anyone as Mr. R. had said to her that day "what happens in the bedroom stays in the bedroom."

[14] She acknowledged that in her police statement she said Mr. R.'s act of grabbing her neck occurred after she returned upstairs from the lobby, not before. She explained this discrepancy by the fact that she was feeling traumatized the day she gave her police statement and was focused on the events of that day.

[15] When they started dating, Ms. Y. was working and she saw Mr. R. on weekends and in her free time. Initially, their relationship was a positive one. The relationship began to change in September 2023 when his family arrived in Canada from the United Kingdom, and Mr. R. moved from his apartment and asked Ms. Y. to live with him and his family. They lived together at an address she recalled as […] Crescent in Toronto.

[16] She described the residence as a townhouse in the downstairs of a complex. Mr. R. lived there with his family which consisted of his mother, twin sisters younger brother and another relative Sh.

The Play-Fighting Incident in the Fall of 2023

[17] Ms. Y. testified that the next incident occurred in the fall of 2023. Ms. Y. needed to refresh her memory by reviewing her police statement to recall the details of this incident.

[18] The incident began with play-fighting with Mr. R. on the bed, which developed into an argument, and they ended up falling on the floor. She testified that Mr. R. had his hand around her head and was pinning her using his arm and leg to restrain her. She said to him in the course of the fight that he was hurting her and demanded that he let her go. Ms. Y. was on top of Mr. R. while they were on the ground but he had a wrestling hold pinning her with one leg over one of her legs, and his arm was reaching across her collarbone area preventing her from getting up.

[19] She testified that the fight lasted about 10 minutes. As she tried to get free from his hold, Mr. R. said in response to her demand that he let her go, "Where do you think you are going". She testified that Mr. R. grabbed onto her left arm and held on so tight that she was gashed in her left arm by his nails. She described the gash as more than a scratch, and that "he took a chunk out of my arm." It happened as she was trying to get away, when his hand gripping her arm dragged across her arm, causing it to bleed. She went into the washroom to wash off her arm. She did not seek medical attention for the gash to her arm.

[20] In cross-examination, Ms. Y. acknowledged that "play-fighting" was something she and Mr. R. commonly engaged in. She agreed that they had "play-fights" more than 10 times in their relationship. Sometimes, she initiated them, and sometimes Mr. R. initiated them. She acknowledged that in play-fighting "grabs and holds" were common, as they are in wrestling. She acknowledged that, as she was trying to escape his hold on the floor, Mr. R. may have said "That hurts." She testified in cross-examination that after her arm was injured in the fight she said to Mr. R. "Why didn't you let me go" and "You hurt me". Mr. R. also said to her "You hurt me". Ms. Y. acknowledged that he said "that his ribs really hurt."

[21] Ms. Y. denied being intoxicated during the play-fight. She stated that both she and Mr. R. had only had "a few shots" to drink that day.

The Broken Glass Incident

[22] The third incident related by Ms. Y. involved an incident in which her thumb was cut on her glass. She testified that this occurred towards the end of 2023 in the context of an argument with Mr. R. in which he was drinking an alcoholic drink including whiskey.

[23] She was standing in their bedroom facing the bed. In the course of the argument, Mr. R. threw the contents of his glass into her face, which shocked her. She testified that she "popped" the glass in her hand, as a result of the alcohol hitting her face, and her thumb began to bleed profusely. She clarified that "popped" referred to her instinctive squeezing of the glass when the alcohol hit her face and eyes. The squeezing caused the glass to shatter, cutting her hand.

[24] She testified that this shocked Mr. R. who became concerned and said to her "Hold on – let me help you." He took her to Sh., his relative who lived with them, who put ice on her thumb, but she continued to bleed. Mr. R. took her to the hospital where it was treated with four or five stitches.

[25] Exhibits of screenshots that she took of the thumb after it was stitched at the hospital were filed in evidence.

The Alleged Sexual Assault

[26] Ms. Y. testified that Mr. R. sexually assaulted her in January 2024 after they had been married in December 2023. She testified that they were engaged in consensual vaginal intercourse in Mr. R.'s room. She got up to perform oral sex on Mr. R. in which he sat at the end of the bed and she knelt on the floor in front of him.

[27] She testified that in the course of performing oral sex Mr. R. became frustrated or upset because she had got too close to his anus while performing oral sex. He picked her up and threw her on the bed. He said "Lie down if you want to play games". She lay on the bed face down. He then began to have sexual intercourse from behind, and put his thumb in her anus while he did so. She repeatedly said "Stop, wait, and get off me" and began to cry.

[28] Ms. Y. testified that she did not want that to happen. She was fighting trying to get him off her. He did not ask her if she agreed to have his thumb in her anus.

[29] She testified in cross-examination that she had previously told Mr. R. that she had no interest in anal sex.

[30] The sexual intercourse with his thumb in her anus lasted one or two minutes. She repeatedly told him to "stop" and he was responding "shut up" and calling her a bitch. He eventually ejaculated in her and that was the conclusion of the intercourse. She testified that she was saying "No stop it" referring to all of the sex which was occurring at that time, not just having his thumb placed in her anus.

[31] She confirmed in her evidence-in-chief that this occurred after they were married on December 31, 2023 or January 1, 2024. She testified that she wondered at the time if he was doing this to her because they were married, and she therefore had to tolerate it.

[32] She stated in cross-examination that the day after the incident she made it clear to Mr. R. that she did not like what he had done and told him to never do that again.

[33] In cross-examination, Ms. Y. acknowledged that in her statement to the police she repeatedly said that the sexual assault happened in September 2023.

[34] She agreed that her January date had been a mistake, and that she meant to say that she wondered at the time if this was something she had to tolerate from someone she loved.

The Alleged Slap on February 14, 2024

[35] Ms. Y. testified that in February 2024, on Valentine's Day February 14, Mr. R. slapped her. She testified that at this time she had become isolated by Mr. R. from her family and friends. After visiting her mother to drop off flowers for Valentine's Day, while she was driving, he started to call her a bitch and with his open palm slapped her in the face while she was driving the car. She said she was shocked and it really hurt. She started to cry and could not see to drive.

[36] She testified that there were police cruisers at the side of the road for some unknown reason and Mr. R. accused her of trying to get him in trouble by stopping near the police cruisers. She pulled the car into a side street after he slapped her. Her eye was red for about 2 days.

[37] She testified in cross-examination that after that occasion when Alex slapped her, she told his mother and that his mother told her that "You guys need to be separated".

[38] Ms. Y. testified that this conversation occurred either the next day after the slap or shortly thereafter. She testified that Mr. R.'s sister Z. was present when she told his mother that Mr. R. had assaulted her. Ms. Y. testified that she went to Mr. R.'s mother because she otherwise did not know what to do about the abuse she was experiencing.

[39] She testified that she had visible bruises and scars and Mr. R.'s mother asked her what was going on. She testified that she told his mother "He hit me".

[40] Ms. Y. testified that she had visible bruising "all the time" and that her co-workers saw her bruises and joked about it.

The Man-Handling Incident on Valentine's Day 2024

[41] Ms. Y. testified that around the same time as she was slapped by Mr. R. on February 14, she got in an argument with Mr. R. which resulted in him forcibly removing her from the house, in the course of which he hit her three or four times with the exterior door as he pushed her out of the door.

[42] She testified that the argument involved Mr. R. cursing at her and saying that she had to get out. His relative, Sh., was present for the incident.

[43] Ms. Y. testified that she sat on the floor urging Mr. R. to talk to her. He then picked her up and, as she described it, manhandled her out of the house through the front door. She testified that Sh. and his two sisters were trying to get him to stop this, and in the course of being pushed out the door he slammed the exterior door of the townhouse striking her three or four times on her shoulders and the side of her body. In the course of this assault, she testified that she grabbed Mr. R.'s hair. She had no phone, no keys, and no wallet and was not wearing shoes, and it was cold and snowy outside.

[44] She testified that as a result of the assaults she had some bruises and soreness as she always did from his assaults.

[45] She testified in cross-examination that Sh. was present when Mr. R. picked her up in the hallway and began to push her towards the door. She testified that Sh. was trying to get him to stop manhandling her. She heard Sh. call out to Mr. R. to stop. She testified that when Mr. R. hit her with the door four times, Sh. was standing there. She was uncertain whether the sisters were still there as they were afraid of Mr. R.

The Final Incident on February 24, 2024

[46] Ms. Y. testified that the final incident occurred on a Friday night or early Saturday in the morning after the previous incident in which Mr. R. had tried to force her out of the house. Mr. R. was saying that she needed to leave and Ms. Y. said that if she left, then they would be getting divorced. She found his position confusing because while he was asking her to leave at one point, then he would continue to act normally as if they were continuing in a relationship.

[47] She testified that Mr. R. woke up in the middle of the night and told her to take her stuff and get out. He grabbed her hair at the back of her head. At one point in the altercation, he stated "If you want to act like a man, I will treat you like a man" and slapped her in the face. She testified that her nose began to bleed and she said to him that he may have broken her nose. She testified there was blood everywhere and she asked Mr. R. for ice.

[48] Ms. Y. contacted the police and attended 12 Division where she gave her detailed statement on the day of the last incident which was February 24, 2024.

[49] A book of 21 photographs taken at the police station were filed in evidence. Ms. Y. maintains that the photographs show her nose to be swollen, but that is not evident in the photographs.

[50] In my opinion, the photographs do not confirm the assault she alleges occurred on the prior evening which she described as violent, resulting in extensive bleeding from her nose and what she felt may have been a broken nose. In my opinion, the photographs taken are inconsistent with her description of the assault she says she experienced earlier on February 24, 2024.

[51] Photograph number six shows slight bruising on her left arm which she relates to the previous incident in 2023 which, in the course of play fighting, Mr. R. had grabbed her arm and gouged her skin. Ms. Y. referred to a dark portion of her skin on the inside of her arm near her left elbow as evidence of that injury.

The Defence Evidence

[52] Mr. R. testified that he is 25 years old and is in Canada on a workers' permit. He came to Canada from Antigua and has been in Canada for about four years. He has no criminal record.

[53] He was married to Ms. Y. on December 31, 2023, and they are still married.

[54] He denied completely the allegations of wrongdoing in relation to Ms. Y. He denied ever assaulting her, punching her, kicking her using physical force against her, or ever sexually assaulting her.

The June 2023 Incident When Living at […] Ave., Toronto

[55] Mr. R. testified that he and Ms. Y. had an argument, and he probably told her to leave. She went downstairs to the apartment lobby and called him crying. In cross-examination, he indicated that he told her she could come back if she wanted to. She came back up to the apartment, they spoke for a while, while she continued to cry, and then Ms. Y. fell asleep. He testified that he did not at any time put his hand on her throat or assault her in any way whatsoever.

Living at […] Crescent, Toronto

[56] After he lived at […] Ave., he lived with Ms. Y. in a townhouse at […] Crescent with his mother, his twin sisters and his younger brother and his cousin Sh.

[57] He testified that he and Ms. Y. lived in one bedroom, which was the first room on the right as you enter the apartment.

[58] He testified that her evidence that she only drank on Friday and Saturday was inaccurate. He testified that she routinely had a bottle of liquor open when he returned home from work at 5:00 p.m. and by the time he got home from work, she was usually drunk. He testified that she was likely drunk about four times per week. He testified that they both drank a lot.

[59] They also routinely consumed cannabis and mushrooms frequently.

The Play-Fighting Incident

[60] He testified that he and Ms. Y. engaged in play-fighting throughout the time that she lived with him at […] Crescent. Between when they moved in in September, and when she moved out in March, they engaged in play-fighting about five times. I infer from his evidence that the play-fights were consensual.

[61] He recalled the incident described by Ms. Y. in her evidence. He testified that Ms. Y. grabbed his arm and twisted it, and he put her in a loose headlock grabbing her around the neck.

[62] The play-fighting began on the bed in their bedroom, and it continued after they rolled onto the floor. Ms. Y. sank her fingers into his ribcage which was painful. In response, he grabbed her on her forearm. He told her she was hurting him. As soon as she stopped digging her fingers into his ribs, he released her arm. He acknowledged that he left a visible scratch on her arm which was not intended.

[63] He acknowledged that both of them were likely drinking during the play-fighting incident that evening.

The Broken Glass Incident

[64] Mr. R. testified that Ms. Y. was sitting on the bed and he was standing next to her. They were drinking wine from wine glasses that had a stem and goblet.

[65] He testified that in his construction work, he has broken fingers and his thumb, with the result that his hand is fragile and it shakes a lot. He was holding the wine glass in that hand and it trembled and accidentally spilled some wine on the top of her hair. Ms. Y. was angry, grabbed the goblet part of the wine glass out of his hand and in doing so, it shattered and cut her thumb.

[66] He testified that he did not throw alcohol in her face as she alleged. He testified that the alcohol spilled on her head accidentally.

[67] When he realized her hand was cut, Mr. R. took Ms. Y. to see his cousin Sh. who said the cut looked very deep so they went to the hospital, where Ms. Y. received stitches in her thumb.

The February 2024 Driving Incident

[68] Mr. R. recalled the incident Ms. Y. described shortly before Valentine's Day. He recalled that they were arguing while she drove the car because she wanted him to take her somewhere on Valentine's Day which he was refusing to do as he had been become upset with her as a result of some previous conduct.

[69] He acknowledged that they argued, but testified that he did not assault her, slap her, or hit her in any way whatsoever.

The Alleged Man-Handling Incident February 14, 2024

[70] Mr. R. testified that in the incident in which Ms. Y. said she was man-handled out of the apartment, he did not man-handle her or strike her or assault her in any way.

[71] He testified that they had both been drinking and they were in his bedroom and were arguing. She made comments that were disrespectful towards him and his mother. She commented that his mother had several children with different people, and he found this disrespectful, so he told her she he should leave. Her mother lived about 15 minutes away, and her grandmother lived about five minutes away, so he told her that she should leave for the night.

[72] He testified that Ms. Y. was screaming and yelling, saying that he was a momma's boy, not acting like a man, and being disrespectful, and that he let his family do too much for him, and he did not have a father figure in his life.

[73] He testified that his cousin Sh. and his sisters got involved. Mr. R. reiterated to Ms. Y. that she should just leave.

[74] He testified in cross-examination that he believes his cousin Sh. and his mother got involved and told Ms. Y. that she should not be saying disrespectful things, and it might be best if she left for a while.

[75] Mr. R. told Ms. Y. that if she has an issue with the way he lives that she should probably go to her mother's house.

[76] Ms. Y. was making a scene, so he went into the bathroom adjoining their bedroom and locked the door. Ms. Y. stood banging on the door of the bathroom to get in. He stayed in the bathroom for about four minutes.

[77] He testified in cross-examination that she entered the bathroom and closed the door so he could not go anywhere. He told her to leave, but she refused.

[78] He testified that he did not force her out of the apartment, strike her in any way and did not touch her. He testified that there was no physical struggle. He denied hitting her several times with the door as she left as she alleged.

The Alleged Sexual Assault

[79] Mr. R. denied that any incident like the one described by Ms. Y. ever happened. He denied ever placing his thumb or anything else in her anus. He denied having any interest in anal sex. He testified that he never sexually assaulted his wife, and that any sexual intercourse was consensual. In essence, he denied that any incident like the one she described in which she alleged that he placed his thumb in her anus, over her objection, ever happened.

The Alleged Breach of Recognizance on March 16, 2024

[80] Mr. R. testified that on March 16, 2024, Ms. Y. came to his apartment. He did not ask her to come. She did not telephone him in advance to tell him that she was coming. She was not invited, and he did not want her to be there. He testified that he or his mother had told her that she should not be coming by, and then on that particular day, he told her that she should not be there.

[81] He understood that when she arrived his mother called the police. He testified that he asked Ms. Y. to leave but she did not. He testified that she was there for about 15 minutes and he spoke to her in that time. He did not want her to stay.

[82] In cross-examination, he acknowledged that when Ms. Y. arrived, one of his sisters looked through the peephole and saw that she was there and did not open the door. He testified that Ms. Y. then entered herself as the door was not locked.

[83] He testified that Ms. Y. wanted to speak so they spoke for about 10-15 minutes.

[84] He testified that he was still unwell as a result of the concussion he had received in a serious motor vehicle accident on February 21, 2024.

[85] He testified that he had a concussion and was unwell from the accident until May 2024 when he went to the hospital and was admitted for 3 weeks.

[86] He acknowledged that when Ms. Y. arrived, he did not try to leave the apartment and he did not call the police.

[87] The incident ended when, in response to the telephone call to the police by his mother, the police arrested Mr. R. on March 16, 2024.

The Evidence of N. G-B ("Sh.")

[88] N. G-B is Mr. R.'s cousin who lived with Mr. R., his mother J., his twin sisters and younger brother in the townhouse at […] Crescent. She was known by her nickname Sh. and I will refer to her by that name in these reasons.

[89] Sh. is 39 years of age and is employed at the […] Centre as a custodian.

[90] She testified that she lived with Mr. R. and his family from October, 2023 to March, 2024.

[91] I was very impressed with Sh.'s evidence. She answered the questions clearly, and acknowledged candidly when she did not know something, or had not been present for certain events, and I find that she was a credible and reliable witness.

[92] Her truthfulness was evident in her candour in acknowledging certain facts unfavourable to Mr. R. For example, she volunteered that soon after Mr. R.'s arrest, when he was subject to a "no contact" provision in his release order in relation to Ms. Y., Ms. Y. immediately began to come to their house. She testified that J.C., Mr. R.'s mother, told Ms. Y. not to come, and J.C. changed the locks to try to prevent her from coming, but she kept coming anyway. Mr. R. did not let her in.

[93] Sh. was present for the alleged "man-handling" incident on Valentine's Day when Ms. Y. alleged that Mr. R. struck her with the door. Sh.'s evidence contradicts the evidence of Ms. Y. on this incident, and is generally supportive of Mr. R.'s evidence about the incident.

[94] She testified that it was Valentine's Day, which she recalled because she received a gift that day.

[95] She exited her bedroom and heard Ms. Y. screaming, and she heard Mr. R. say to her why don't you go to your mother's house. She heard Ms. Y. cursing and saying to Mr. R. that he was no good, and worthless.

[96] She testified that Mr. R.'s twin sisters were present, and when Sh. came out of her bedroom, she saw Mr. R. and Ms. Y. in the living room.

[97] Sh. hugged Mr. R. and said that he was not worthless. She did that because Ms. Y. was talking down to him and making him feel inferior. She also heard Ms. Y. say that Mr. R.'s mother, J.C. was worthless, and saying a lot of things about J.C. that she did not want to hear.

[98] She described Ms. Y. as smelling like alcohol and being very boisterous. Sh. was very concerned about the incident and called J.C. at work to tell her to come home.

[99] Ms. Y. continued to scream and try to speak to Mr. R. but he said he did not want to speak to her. He told her to just leave. Ms. Y. continued to shout at Mr. R. and he went into the main bathroom used by Sh. and the rest of the family and closed the door. Sh. testified that she stood at the door and stopped Ms. Y. from entering until J.C. got home.

[100] Sh. went into the living room when J.C. got there and spoke to a neighbour who had come down to see what was happening because of the loud shouting by Ms. Y.

[101] Sh. testified that she saw no physical contact between Mr. R. and Ms. Y. that evening. She testified that Mr. R. never tried to pick up Ms. Y. and throw her out of the apartment as Ms. Y. alleged. He never slammed the door on Ms. Y. or slammed the storm door as she alleged.

[102] I found Sh. to be a credible and reliable witness in her description of the Valentine's Day argument between Mr. R. and Ms. Y. in which she acknowledged that she had no recollection of seeing Ms. Y. actually enter the bathroom, where Mr. R. was hiding from her.

[103] I accept as accurate her description of this incident which fundamentally contradicts Ms. Y.'s version of the incident, including Ms. Y.'s claim that Sh. intervened and told Mr. R. to stop man-handling her and physically trying to push her out of the apartment.

[104] Her evidence contradicts Ms. Y.'s evidence as Ms. Y. claimed Sh. was present when Mr. R. hit her with the door, and Sh. says this never happened.

[105] I also accept Sh.'s evidence, which contradicts the evidence of Ms. Y., that Ms. Y. drank considerable amounts of alcohol almost every day. She testified that Ms. Y. would generally arrive home with a bottle of rum or other liquor and that she also smoked drugs. She estimated that Ms. Y. drank heavily almost every day and 4 to 5 times a week she observed her to be drunk. She testified that Ms. Y. generally started drinking before Mr. R. got home from work. This is confirmatory of Mr. R.'s evidence and contradicts Ms. Y.'s evidence.

[106] She testified that she often heard arguments between Mr. R. and Ms. Y., that the two of them would drink together, and Ms. Y. was very loud in these arguments. She observed Mr. R. to laugh and say to Ms. Y. what is wrong with you and "All the time you say you're going to leave why don't you just leave?"

[107] In the time that she lived in Mr. R.'s home with Ms. Y., she never saw a physical fight, she never saw Ms. Y. with bruises or a black eye or bloody nose. This contradicts Ms. Y.'s evidence that she had visible bruising all the time she lived there.

[108] She was present on the day that Mr. R. was arrested when Ms. Y. alleges she had been assaulted and given a bloody nose by him. She never saw Mr. R. get aggressive with Ms. Y.

[109] She testified that she did not see any injury on Ms. Y. that day or see a fight or anything like that or see a black eye. In all of the time that that she was at the house, she never saw Ms. Y. with a black eye or anything like that which she believed would be visible for her to see.

[110] Sh. candidly acknowledged that after Mr. R.'s arrest, Ms. Y. kept coming to their house. She testified that she went with J., Mr. R.'s mother, to the police station to try to stop Ms. Y. from coming to their house, but this request was unsuccessful.

[111] Sh. also testified that on March 16, 2024, when Mr. R. was arrested for being in the presence of Ms. Y., in breach of his release order, he continued to be suffering from the effects of his serious motor vehicle accident on February 21, 2024, often slurring his words when he spoke and at times what he said was making little sense.

The Evidence of Z.P.

[112] Z.P. is Mr. R.'s 20-year old sister. She testified that she was present for the argument between Mr. R. and Ms. Y. on Valentine's Day. Her evidence is confirmatory of that of Mr. R. and his cousin Sh. She heard Ms. Y. say to Mr. R. that he was not a man, and that his mother was a whore.

[113] She heard Mr. R. say that she should leave, and she was saying that she is not leaving. She heard Mr. R. say that if he was such a bad person and his mom was a whore then she should leave and go to her mom's house, which Ms. Y. refused to do. Z.P. testified that she saw the entire interaction between Ms. Y. and Mr. R., and Mr. R. never did anything physical to Ms. Y.

[114] She testified that she thought that Ms. Y. was drunk because she was very loud and boisterous. She confirmed that Ms. Y. drinks a lot every day and would generally come home with a bottle of liquor in her hand.

[115] She testified that Mr. R. was crying in the argument and in response her cousin Sh. gave him a hug.

[116] She said that Mr. R. was trying to get into his room but Ms. Y. blocked it, so he went into the main bathroom and locked the door.

[117] She testified that he never pushed her out of the house or anything like that, he just told her to leave.

[118] She recalled that her mother came home and was speaking to Mr. R. who took his suitcase and said if she is not leaving, then I am. She heard her mother tell him that it was his house and he should not leave, and he returned to his room and went into his bathroom and closed the door.

[119] She understood that Ms. Y. stayed there that night because she recalled that the next morning Mr. R. stayed home, and she went to work.

[120] In the entire time that Ms. Y. stayed at their home, she never saw any physical fights between Mr. R. and Ms. Y., and never saw her with any bruises or a bloody nose.

[121] She recalled the incident in which Ms. Y.'s thumb was cut. She recalled that her cousin Sh. was attending to Ms. Y. after her finger was cut.

[122] She recalled a conversation between her mother and Ms. Y. after Valentine's Day in the living room when her mother said to Ms. Y. that she since she and Mr. R. were always having disagreements her mother suggested that Ms. Y. should go back to her mother's house. Ms. Y. said she was not leaving.

[123] Ms. Y. never made any complaint in that conversation, or at any other time, to Z.P., that she had been beaten or injured in any way by Mr. R. She said that Ms. Y. did not say in that conversation, or at any other time that she heard, that Mr. R. had assaulted her or hit her.

[124] She confirmed that after the car accident in February 2024 Mr. R. was very quiet, was quite shut down, stayed mostly in his room and did not speak much with his family. He would spend most of the day in his room only coming out occasionally for tea, until eventually he was hospitalized and received treatment. Her recollection was it took him seven or eight months to recover and that, by the time of the trial, he was much better than he had been before.

[125] She testified that she never saw Mr. R. assault Ms. Y. in any way and never saw bruises on Ms. Y., or any evidence that he had physically assaulted her.

[126] She was present at home on February 24, 2024 when Mr. R. was arrested and she testified that she saw no incident leading up to that.

The Evidence of J.C.

[127] J.C. is Mr. R.'s mother. She testified that on Valentine's Day in 2024 Sh. called her at work to have her come home as a result of an argument Mr. R. was having with Ms. Y. When she got home, Mr. R. was in the bathroom on the floor and Sh. was there trying to prevent Ms. Y. from getting in. J.C. persuaded Mr. R. to come out of the bathroom where he was sitting on the floor and he told her that he was going to leave the house if Ms. Y. did not leave.

[128] Mr. R. put himself in the bathroom adjoining his bedroom and Ms. Y. got into that bathroom. J.C. saw him on the floor crying. This was the first time he had cried as an adult.

[129] Eventually, Ms. Y. stayed and she and Mr. R. went to bed.

[130] The next morning J.C. spoke with Ms. Y. in the presence of her 2 daughters. J.C. asked Ms. Y. why she did not just go, and she said that she was not leaving. Ms. Y. made no complaint of any physical assault by Mr. R. Ms. Y. never at any point told J.C. that Mr. R. had hit her or assaulted her in any way. J.C.'s evidence on this point is supported by the evidence of her daughter, Z.P. who was also present for the conversation.

[131] J.C.'s evidence on this point contradicts Ms. Y.'s evidence that she told Mr. R.'s mother about being slapped by Mr. R. in the car in February 2024.

[132] J.C. testified she had never seen Ms. Y. with a swollen eye or bruise or anything like that.

[133] J.C. confirms that after the car accident on February 21, 2024 Mr. R. was not fully functioning. He mostly stayed in his room and slept a lot. He was in significant pain. All of this lasted until she had him admitted to hospital for 3 weeks in May. She confirmed that on March 16, 2024 he was not fully functioning, he slept a lot, and when the police came and arrested him, he was in considerable pain.

[134] After Mr. R.'s initial arrest, Ms. Y. frequently came to the apartment. J.C. attended at the police station to try to get the police to assist in keeping her away, but she was told that if she did not have an order against her, there was nothing they could do.

The Law on Credibility and Reliability

[135] In R. v. Morrissey, Doherty J.A. stated:

"Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable."

[136] The law governing the assessment of the credibility and reliability of witnesses is summarized by Watt J.A. in R. v. H.C., 2009 ONCA 56, at para. 41:

"[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.)."

[137] In R. v. W.(D.), [1991] 1 S.C.R. 742 at pp. 757-758, the Supreme Court of Canada has instructed that the following principles apply in a criminal case in which there is conflicting evidence on the elements of the offence charged:

"It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused."

[138] In his seminal extra-judicial article "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment" 22 Can. Crim. L. Rev 31, David Paciocco summarizes the principles underlying the W.(D.) reasoning as follows at p. 34:

"(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt."

[139] As David Paciocco notes, in applying the W.(D.) framework, evidence favourable to the accused is not to be assessed in isolation from the conflicting evidence offered by the Crown. Evidence in a criminal trial must be considered as a whole: Doubt about Doubt, supra, at p. 47; See also R. v. Hull, [2006] O.J. No. 3177, at paras. 5-6 (Ont. C.A.)

Analysis

[140] I have considered the evidence of Mr. R., pursuant to the principles established in R. v. W.(D.), supra, in the context of the totality of the evidence including the evidence of Ms. Y., and the evidence of his cousin Sh., sister Z.P. and his mother J.C.

[141] Important aspects of his evidence are confirmed by the evidence of his cousin Sh. in particular, who greatly impressed me as a witness. His evidence was also generally confirmed by the evidence of his sister, Z.P. and his mother J.C., both of whom I found to be credible and reliable witnesses.

[142] The evidence of the defence witnesses also contradicts important aspects of Ms. Y.'s evidence which undermined the reliability of her evidence as a whole.

[143] Considered in the context of the totality of the evidence, I accept the evidence of Mr. R. as generally accurate in his description of his various interactions with Ms. Y.

[144] I accept his denial of ever assaulting Ms. Y. in any way on the various occasions in which she alleges he assaulted her. I accept that he did not grab her by the throat or assault her in the June 2023 incident, strike her in any way in the car ride on or about February 14, 2024, that he did not assault her on February 24, 2024 when she made her complaint to the police. I accept his evidence that the alleged sexual assault incident she described never happened, and, as confirmed by the evidence of the defence witnesses, whose evidence I accept, that during the Valentine's Day incident he did not strike her as she alleged, force her out of the apartment or hit her with the door as she alleged.

[145] I find that the play-fighting incident was consensual and that his grabbing of Ms. Y.'s arm did not result in bodily harm and therefore is excused by the consent nature of the play-fighting.

[146] With respect to the glass incident, I accept Mr. R.'s evidence that he accidentally spilled wine on Ms. Y.'s head and that she accidentally cut her hand after grabbing his wine glass in anger.

[147] It was important in my consideration of the evidence that important aspects of Mr. R.'s evidence was confirmed by the defence witnesses who I found to be credible and reliable. In particular, the defence witnesses supported Mr. R.'s assertion that Ms. Y. drank heavily most days of the week and routinely arrived home, before him, with a bottle of liquor which she consumed heavily on a virtually daily basis. This evidence was confirmed by the evidence of Sh., and contradicted Ms. Y. who claimed she only drank on the weekends.

[148] It was also important in my consideration of the evidence that, in relation to the one incident Ms. Y. describes in which other persons were present, the evidence of Sh. and Mr. R.'s sister Z.P. fundamentally contradicts Ms. Y.'s version of the Valentines Day encounter, and supports Mr. R.'s evidence that he never forced Ms. Y. out of the apartment or struck her with the door as she alleged.

[149] The evidence of Z.P. and J.C. also contradicts Ms. Y.'s claim that, in the morning after the Valentine's Day incident, she complained to Mr. R.'s mother, J.C., of his assaultive behaviour. J.C. denied that this ever occurred in her evidence. This was consistent with the evidence of Z.P. who was present for the conversation between Ms. Y. and J.C. on the morning after Valentine's Day and who also never heard any complaints of assault from Ms. Y.

[150] Z.P., Sh. and J.C. all testified that they never saw any bruising or other evidence of physical assaults on Ms. Y. in the time that she lived with them. This contradicts Ms. Y.'s claim that she had evident bruising that would have been visible all the time that she lived with Mr. R.'s family.

[151] I find that the credibility of Ms. Y. is significantly undermined by the fact that evidence which I accept from the defence witnesses contradicts important portions of her evidence.

[152] I find that Ms. Y. was not a credible or reliable witness. I do not believe her evidence describing the various offences she alleges were committed by Mr. R.

The Alleged Breach of the Release Order

[153] Counts 8 and 9 in the information charge Mr. R. with failing to comply with 2 conditions of his release order, on March 16, 2024, by breaching a condition stating "do not contact or communicate in any way either directly, by physical electronic or other means with the following: A. Y." and "do not be within 100 m of any place where you know A. Y. to live, work go to school, frequent or anyplace you know A.Y. to be" contrary to section 145 (5) (a) of the Criminal Code of Canada.

[154] Section 145 (5) (a) makes it an offence if the Crown proves beyond a reasonable doubt that the accused "is at large on a release order and … fails, without lawful excuse, to comply with that order."

[155] Considering the totality of the evidence, it is clear that on March 16, 2024, after Mr. R.'s mother called 911, the police attended at Mr. R.'s residence and found him in the presence of Ms. Y.

[156] The release order dated January 28, 2024 was filed as Exhibit 6 and had the following conditions:

"2. Do not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following: A.Y."

"3. Do not be within 100 metres of any place where you know A.Y. to live, work, go to school, frequent or anyplace you know A.Y. to be."

[157] I accept the evidence of Mr. R.'s mother, J.C., confirmed by Sh. and Z.P., that shortly after Mr. R. was arrested on February 24, 2024, Ms. Y. routinely attended at their home without invitation. I accept J.C.'s evidence that she attended at the police station on several occasions seeking police assistance to stop Ms. Y. from attending at their home in breach of the release order. I accept her evidence that the police indicated that, unless she had an order preventing Ms. Y. from coming to their house, there was nothing they could do to stop Ms. Y. from attending at J.C.'s home.

[158] I accept Mr. R.'s evidence, confirmed by the evidence of his family members who testified, that the concussion and related effects of his motor vehicle accident on February 21, 2024 significantly impaired his functioning. I accept the defence witnesses' evidence that through this time he remained in his room most of the time, communicating only rarely with his family, suffering from the mental health and physical effects of a concussion, and painful physical effects from the accident, which significantly impaired his functioning. I find that he was resistant to getting the necessary medical care to address both the physical and psychological effects of the accident, until May 2024, when he was admitted to hospital for several weeks.

[159] I find that his family took significant steps to try to prevent Ms. Y. from attending their house including telling her to stay away, and at some point, changing the locks. I find that throughout this period, including on March 16, 2024, Ms. Y. initiated contact with Mr. R. ignoring completely the terms of the release order intended to protect her.

[160] I find that on March 16, 2024, she intentionally attended at Mr. R.'s home, where he was entitled to live, where he was recuperating from a significant concussion and physical injuries resulting from the motor vehicle accident less than one month previously. I find that he did not ask her to attend on that occasion. I accept his evidence that he did not want her to attend on that occasion. I also find that, once she was there, as he acknowledged, he spoke to her, after she entered his home without permission or invitation.

[161] In The Law of Bail in Canada, Third Edition, (Justice of the Peace Edition 2024) the Honourable Justice Gary Trotter writes extra-judicially at pp. 643-645:

"A common feature of each of the offences found in s.145 is that they permit the accused person to offer a "lawful excuse". The provision for a "lawful excuse" or a "reasonable excuse" is a familiar feature of the Criminal Code, being found in approximately 20 offence-creating provisions.

A lawful excuse is something extraneous to the essential elements of the offence. It is not to be confused with the mens rea of the offence. Moreover, this type of excuse does not refer to the defences that are available to any person charged with a criminal offence (such as duress or necessity). It is fact and offence specific. As Morden, J.A. (as he then was) said in R. v. Royka (1980), 52 C.C.C. (2d) 368 at p.374]:

"The use of the expression "without lawful excuse" in an offence-creating provision has long been a common one. No standard or comprehensive meaning can be ascribed to it. In the absence of a special definition being given to it, its meaning has to be determined from the object of the legislation in which it appears and the subject-matter of its immediate context."

The "lawful excuse" aspects of s. 145 have not been discussed in any detail by the courts. The courts have merely held that "lawful excuse" operates independently of fault and the onus rests on the accused person on balance of probabilities. …

No context-specific definition of "lawful excuse" has emerged from the case law dealing with section 145. However, the definition of "reasonable excuse" provided by Doherty, J.A. in R. v. Moser provides a helpful template for considering claims under s.145:

"A plea of "reasonable excuse" is an admission that the essential elements of the crime have been established, combined with an assertion that some additional fact or set of facts precludes the imposition of criminal liability. In this respect, the "reasonable excuse" defence is comparable to the "lawful excuse" defence …"

The courts have sometimes recognized that exigent personal circumstances of the accused person ought to preclude a conviction under s. 145, despite the fact that all of the elements of the offence have been established….

… There are an infinite number of idiosyncratic fact situations that might provide a foundation for a "lawful excuse" of this type. The few examples provided above demonstrate that the courts take a hard look at excuses for failing to abide by bail orders and that compliance must be virtually impossible."

[162] I find that the object of a condition in a release order prohibiting contact or communication from an accused to a complainant, and establishing a radius around the complainant which must not be breached by an accused, is to protect the complainant from criminal acts, or harassment, including an interference with the administration of justice, by an accused prior to the completion of the trial in relation to which the release order was made.

[163] I find on the evidence in this case, that Ms. Y. rendered strict compliance with the conditions of the release order virtually impossible for Mr. R. in the specific fact situation in which he found himself. Mr. R. did not leave his home to meet with Ms. Y. on March 16, 2024. On March 16, 2024, he continued to be suffering from the effects of a serious motor vehicle accident less than one month previously, and was essentially confined to his home spending most of his time sleeping and rarely leaving his room.

[164] The concussion and related effects from the motor vehicle accident were sufficiently serious that eventually he was hospitalized for several weeks in May 2024 to deal with his ongoing physical and mental health effects, including the ongoing effects of a concussion.

[165] I find that in these circumstances his ability to confront the fact that Ms. Y., by her actions, placed him in in breach of the release order, was substantially diminished by his compromised level of functioning.

[166] Significantly, her attendance at his home created an impossible Catch-22 for Mr. R. Speaking with her to tell her to leave placed him in breach his "do not communicate condition."

[167] Furthermore, by attending at his home, at […] Crescent, which was his named address in the release order, Ms. Y. was deliberately placing him in breach of his radius condition which required him to not be within 100 metres of any place he knew Ms. Y. to be.

[168] Given her deliberate conduct in attending at his home, where he was recuperating from a serious accident, Ms. Y. chose to put Mr. R. in breach of a condition intended to protect her. It is not reasonable, on the facts of this case, to require that Mr. R., in his compromised medical state, leave his own home to place himself outside the radius condition Ms. Y.'s own conduct caused him to breach.

[169] I am also mindful of the fact that his mother had attended at the police station to attempt to obtain police assistance in preventing Ms. Y. from attending at their home in breach of her son's release order and received no assistance in preventing the recurrence of this problem.

[170] In my opinion, in the particular circumstances of this case, having regard to Mr. R.'s compromised medical condition, the prior effort of his mother to stop Ms. Y. causing the release order to be breached, the fact that Ms. Y. deliberately attended at Mr. R.'s home, where his release order required him to live, made it practically impossible for him to comply with the requirements of this release order. If he spoke to her to tell her to leave, he was in breach of one condition, and by continuing to stay in the home where he was entitled to live, upon her arrival, he was in breach of the radius condition.

[171] In the circumstances of this case, I am satisfied on a balance of probabilities that on March 16, 2024 there was a lawful excuse for the breaches of the release order alleged in counts eight and nine of the information and he will be acquitted of those charges.

Conclusion

[172] In summary, having accepted the evidence of Mr. R., considered in the context of the totality of the evidence, in which he denies each of the offences alleged in the information, for the reasons noted above, the Crown has not proved any of the offences in the information beyond a reasonable doubt. I find him not guilty of each of the offences in the information and an acquittal will be entered on each count in the information.

Date: September 18, 2025

Justice David Porter