Court File and Parties

Court File No.: Cornwall 24-39101606 Date: October 20, 2025 Ontario Court of Justice

Between: His Majesty the King — and — Marcel Sabourin

Before: Justice J.R. Lalande

Heard: September 10-11, 2025

Reasons for Judgment released: October 20, 2025

Counsel:

• B. Underwood, counsel for the Crown
• I. Paul, counsel for the accused Mr. Sabourin

Overview

[1] Mr. Sabourin is charged with one count of assault, contrary to section 266 of the Criminal Code. The allegation stems from an incident in the complainant's home on June 9, 2023. The matter proceeded to trial on September 10 and 11, 2025. The central issues are credibility and whether the Crown has proven an intentional application of force.

[2] The complainant, Ms. Linda Lappan, was the sole witness for the prosecution. Photos of the injury to Ms. Lappan's left breast were filed under seal. The Crown also filed an audio recording taken by the complainant a short while after the alleged assault, which captures her arguing with the accused about the events in question.

[3] Mr. Sabourin testified in his own defence and submitted a photo of his television remotes and cellular phone as an exhibit.

[4] On October 1st, 2025, I requested additional submissions from counsel. The submissions were filed in writing and addressed two issues: (1) Whether the "intentional application of force" as defined in section 265(1)(a) could be established on the basis of recklessness; and (2) Mr. Sabourin's apparent statement on the recording where he says, "I'm drunk" or "I'm a drunk". This statement had not been addressed by either party in evidence or submissions. At trial, the complainant testified that the accused was drinking at the time of the confrontation. Mr. Sabourin denied drinking. The parties agree that the statement as to the accused being drunk ought not to be considered or given "much weight" as it was not referred to or put to the accused.

Facts

[5] The complainant and accused were involved in a relationship for some years. The accused moved in with her in the fall of 2019. By the spring of 2023, the relationship had deteriorated. Mr. Sabourin was expected to move out of the residence but taking longer than planned. As he explained in evidence, he had been to a funeral out of the country days before the incident in question and was working to establish temporary accommodations while he shopped for a house.

[6] According to the complainant, a dispute occurred between the parties on June 9, 2023. Ms. Lappan had arrived home from work around 7pm. She had an argument with the accused and described him to be name-calling and verbally abusive. At around 930pm, Mr. Sabourin was in bed in an upper-level bedroom and the parties were arguing with one another from a distance. Ms. Lappan entered the bedroom. She testified that she intended to grab the television remote to turn the volume down so that she could tell Mr. Sabourin to leave the residence. During the dispute, the accused is alleged to have lunged at the complainant while attempting to retrieve the device in her hand. In doing so, he allegedly grabbed and twisted her left breast, causing bruising. He is also alleged to have pushed her into a nearby wall.

[7] Mr. Sabourin claims that the complainant barged into the room and seized his phone while he was in bed. He maintains that any physical contact between them was incidental to his efforts at retrieving his phone which the complainant had clutched to her chest. While Mr. Sabourin acknowledges that he was involved in the altercation, he denies any intention to apply force to Ms. Lappan's person. Instead, he testified that he was simply grabbing at the object in her hand. Mr. Sabourin explained that his hand got caught in her top while he was grabbing at his phone. He agreed in cross-examination that this may have caused the bruising on her chest. He adamantly denied pushing her into the wall.

Legal Principles

Generally

[8] An accused person is presumed to be innocent. The onus is on the Crown to prove the charges against the accused beyond a reasonable doubt. That onus never shifts. An accused person is not required to testify or to call any evidence, nor is he obligated to explain anything.

[9] To succeed in gaining a conviction, the Crown must prove the specific charges beyond a reasonable doubt. This is a heavy standard, designed to prevent the conviction of innocent persons.

[10] A reasonable doubt has been defined as one that is not based on sympathy or prejudice but logically connected to the evidence or absence of evidence. It has also been described as not being an imaginary or frivolous doubt.

[11] It is not enough to convict, for a trial judge to conclude that accused persons are probably guilty. Nor is it necessary that their guilt be proved to an absolute certainty: R v Lifchus (1997), 9 CR (5th) 1 (SCC). The standard beyond a reasonable doubt is much closer to a certainty, however, than it is to the balance of probabilities measure: R v Starr 2000 SCC 40, [2000] 2 SCR 144.

Evaluation of Evidence

[12] A Court may accept all, some or none of a witness' evidence. In determining which, if any portions, to accept, a trial judge must evaluate the credibility and reliability of a witness' evidence. Of course, the same level of scrutiny is to be applied to all accounts from evidence of defence and Crown witnesses.

Credibility

[13] Credibility relates to the honesty of a witness. There is no specific formula to be applied when evaluating credibility. Instead, Courts are to take a commonsense approach to the evidence. Some examples of the factors considered can include the plausibility of a witness' account, or whether the evidence is internally consistent or externally consistent with other reliable accounts.

[14] Some inconsistencies can be significant while others may relate to peripheral details. Often, witnesses provide explanations for inconsistencies which are evaluated in determining the credibility of their account. Factors such as bias or an interest in the outcome of a matter may also be important.

[15] Given that this case requires me to make determinations on the credibility on the evidence of the accused, I must also consider the analysis set out by the Supreme Court of Canada in R v WD, 1991 1 SCR No 742. The WD framework is used by triers of fact in assessing the impact of defence evidence on the ultimate question as to whether the Crown has proven the case against the accused beyond a reasonable doubt. The test is generally articulated as follows:

(1) If I believe the exculpatory evidence of the accused, he must be acquitted;

(2) If I do not accept the evidence of the accused but am left with a reasonable doubt by it, he must be acquitted; and,

(3) Even if I reject the accused's evidence and am not left with a reasonable doubt by it, I must still go on to determine whether the Crown has proven the accused's guilt beyond a reasonable doubt based on the evidence that I do accept.

[16] I note that when evaluating the two accounts of the events, I am not doing so in a contest of credibility where I must choose one version over the other as truth (Graham 2023 ONSC 4300). If I am unable to decide which account to believe, the accused must be acquitted (JHS 2008 SCC 30, 2008 2 SCR 152).

Reliability

[17] Reliability refers to the accuracy of a witness' account, including their ability to observe, recall and recount events. A witness' reliability is distinct from credibility. Even a credible witness can give unreliable evidence. Of course, a witness who is not credible cannot provide reliable evidence on the same point.

[18] In evaluating the reliability of a witness' ability to observe, some important factors for a Court to consider may include the strength of a witness' faculties, including hearing or vision. Another example is witness' condition at the time of observation, including whether they are relaxed or excited, sober or intoxicated. The general conditions surrounding the event, including timing or lighting or weather may also be important.

[19] Other factors are important to a witness' ability to recall and to recount events at the time of their testimony. Examples include whether the event in question was routine or exceptional, such that it may stand out more in the person's memory, or, whether the witness has issues with their memory.

Assault

[20] The nature of the assault in this case involves an application of force, corresponding to section 265(1)(a) of the Criminal Code. That section defines an assault in the following way:

265(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

[21] I will go into some detail as to the legal interpretation of this definition later in the judgment.

[22] The law also recognizes that, to prove an assault, the accused must be aware or reckless to the fact that the complainant does not consent to it. Consent is defined in section 265(3).

Issue #1: Credibility, Reliability & Findings of Fact

[23] I accept most of the evidence provided by the complainant and accused. The narrative of events which they described in their testimony was generally consistent with one another, except for some details of events which occurred before and during the confrontation at issue.

Complainant - Credibility and Reliability

[24] I have considered the evidence of Ms. Lappan in this case. While I agree with some of the concerns raised by defence, overall, I find Ms. Lappan to be a credible and reliable witness.

[25] Defence claim that Ms. Lappan's allegations may have been motivated by some ongoing financial disputes at the time that she reported the offences, many months after they occurred. I accept Ms. Lappan's evidence on this point. She explained that she needed some time before she was ready to pursue the matter. I am also mindful in drawing that conclusion that there is an emotionally charged audio recording of the discussion that occurred between the parties moments after the alleged assault. The conversation captured on the recording reflects essentially the same positions taken by the parties at trial. This recording, combined with the photographs of Ms. Lappan's injury, satisfy me that, while there may have been financial disputes ongoing at the time of her delayed reporting, the events were not fabricated or exaggerated.

[26] I did have some concern with respect to the inconsistency that emerged in cross-examination as to what the complainant grabbed when she entered the bedroom. Initially, in chief, she testified that she retrieved the remote for the television. In cross-examination, she acknowledged that she may have grabbed the accused's cell phone. During the near-contemporaneous audio recording, the complainant describes the accused's assertion that she grabbed his phone as "baloney". However, during her interview with police, she described the item as a cell phone, which she dropped after grabbing. The complainant explained during her evidence that this information was essentially drawn from her conversation with the accused on the recording. Regardless of which item she grabbed, Ms. Lappan maintained that she entered the bedroom to retrieve the remote and not a phone. I accept her explanation on that point.

[27] I have reviewed and considered the photograph filed by defence which shows that the remote and phone have different dimensions and are distinct in shape. Essentially, the remotes are longer and narrower compared to the phone. On this issue, I accept the complainant's evidence that, in the heat of the moment, she may have been honestly mistaken and grabbed the wrong item.

[28] I also accept that she wished to retrieve the remote and do not accept the suggestion in the accused's evidence that the complainant may have wanted to take his phone and inspect it as he had taken several calls. At the time, the complainant wished to terminate their relationship and have the accused leave her home. I simply do not find it plausible that she would barge into his bedroom to forcefully seize and inspect his phone.

[29] Finally, I accept that Ms. Lappan suffered a bruise to her left breast during the confrontation, as depicted in the sealed exhibit. Given that Ms. Lappan was taking medication at the time that caused her blood to thin, this may have also caused her to bruise more easily. Therefore, while I recognize that the bruise appears quite large and dark in the initial photograph, I do not place great weight on the severity of the bruise when assessing the degree of force applied. I do accept however that the complainant was caused significant pain and some bruising.

Accused – Credibility and Reliability

[30] Save for some specific points outlined below, I generally accept the evidence of the accused. Mr. Sabourin's evidence was straightforward. There were few glaring internal or external inconsistencies. Generally, it also coincided with the complainant's account and other evidence at trial such as the photos or audio recording.

[31] In particular, I accept that the accused had mixed feelings about the end of his relationship with the complainant and that he was making efforts at obtaining temporary accommodation as he described.

[32] I am skeptical, however, that Mr. Sabourin was not angry whatsoever over the situation. I am equally skeptical of his claim that he was not angry despite his view that the complainant owed him tens of thousands of dollars.

[33] Based on what is heard on the recording, I also have significant concerns that the accused was dishonest in his evidence about his consumption of alcohol on the night in question. However, I refrain from using this fact against him in determining his credibility, given the submissions of both counsel.

[34] Most importantly, I do not accept the accused's evidence that he was asleep when the complainant entered the room, and that he could recall no conversation or argument that occurred between them prior to the confrontation. The accused's own evidence was that there was tension in the home due to delays in his departure. Moreover, he was, according to his evidence, awake and taking calls in the evening when the complainant returned home from work near or after 7pm. His evidence was quite detailed on these points. This, coupled with the complainant's account of the argument preceding the confrontation, renders his evidence on those points implausible in my view. Lastly, as I pointed out earlier, the idea that Ms. Lappan would arrive home, hear the accused's phone and, in the absence of any confrontation or argument, barge in to confiscate it seems far-fetched and unrealistic.

[35] Despite these issues, the accused's account of the confrontation left me in doubt with respect to whether he intentionally applied force to the complainant while attempting to grab the item he thought to be his phone, including the grabbing or pushing as described. I draw this conclusion based on his evidence alone and in consideration of the overall body of evidence in accordance with stages 1 and 2 of WD. However, as I will go on to explain, this does not end the matter.

Findings of Fact

[36] Before considering whether the Crown as discharged its onus on the basis of the evidence which I do accept, I find the following events as fact:

• Ms. Lappan returned home from work on the night in question at or shortly after 7pm. An argument occurred between her and the accused at some point after her return home.

• As the argument was ongoing, Ms. Lappan entered the accused's room intending to pick up and use the remote to turn down the volume on the television. Ms. Lappan reached over the accused and, in her haste, picked up his phone by mistake.

• The accused immediately lunged at the complainant, reaching towards her chest where she held the item. His hand became entangled in her shirt. In the seconds that followed, the accused caused the bruise to the complainant's chest while trying to grab the item she had picked up. The force which he applied caused her significant pain and resulted in the bruise shown in the photographs.

• The complainant dropped the item and left the room. It was moments after her exit of the room that the recording began.

Issue #2: Recklessness

[37] While I have determined that the accused applied force and caused injury to the complainant, as I concluded earlier, I am left in doubt as to whether he did so intentionally. I will go on to determine whether he was reckless in his application of force, such that he is guilty of the assault.

Recklessness & Section 265(1)(a)

[38] For the following reasons, my interpretation of the law is that recklessness can establish the intention required to constitute an "intentional" application of force.

[39] Assault as defined in section 265(1) has three distinct modes of commission. This case concerns the first mode, described in paragraph (a): A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.

[40] Assault is a general intent offence. The 'intentional' element of applying force described in section 265(1)(a) has been defined by the Supreme Court as "not done by accident or through honest mistake" (R v George at 890 (SCC), Dawydiuk, 2010 BCCA 162 at para 29, DJW, 2011 BCCA 522 at para 70).

[41] The legal concept of recklessness is defined as being found "in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk." (Sansregret at para 16). Recklessness is not the same as negligence. It is not concerned with whether the accused ought to have seen the risk in question, but whether he subjectively saw the risk and continued to act with disregard of the risk. The extent of the risk, as well as the nature of harm, the social value in the risk, and the ease with which the risk could be avoided, are all relevant considerations. Although the trial judge will assess whether a risk is unjustified based on the above considerations, because recklessness is a subjective standard, the focus must be on whether the accused was aware of the substantial risk he took and any of the factors that contribute to the risk being unjustified. (Zora, 2020 SCC 14 at paras 117-8).

[42] There is no dispute that recklessness can apply to the issue of consent as an element of the offence of assault. However, I acknowledge that there appears to be some uncertainty in recent caselaw as to whether or not recklessness can establish an 'intentional' application of force within the meaning of section 265(1)(a).

[43] In Tyrell, 2021 ONCA 15, convictions for attempt murder and assaulting a peace officer with intent to resist arrest were overturned. At trial, the accused was found to have shot a man outside of a nightclub and charged at an officer while attempting to escape. On appeal, the conviction for attempt murder was overturned as the trial judge was held to have erroneously inferred a specific intent to kill (Tyrell, at paras 22-25). With respect to the charge of assaulting a peace officer with the intent to resist arrest, it appears that both parties to the appeal accepted that the law required nothing short of a specific intent to apply force for the assaultive element of the charge to be made out (Tyrell, at paras 34-7). As a result, these legal parameters were applied and the conviction based on recklessness overturned:

…the trial judge accepted the appellant's testimony that he tried to avoid contact with the officer. He convicted the appellant on the basis of his "reckless disregard" as to whether he would make contact with the officer. The trial judge's express finding that the appellant did not have the specific intent to assault is a finding of fact. Given this finding of fact, the conviction on this charge cannot stand and must be set aside. As the trial judge's finding is determinative of this charge on its merits, an acquittal must be entered. (Tyrell, para 38)

[44] Several decisions have subsequently relied on Tyrell for the general proposition that recklessness cannot suffice to establish the intentional application of force required for the offences of assault or assaulting a peace officer (Morell, 2022 ONCJ 371 at para 51, McKinley, 2022 ONCJ 323 at para 112, Guillaume, 2022 ONCJ at para 8).

[45] However, there exists a wealth of caselaw from Canadian appellate courts – including in Ontario - which explicitly and implicitly supports the notion that recklessness can suffice to establish intention with respect to an application of force. See for example: R v Park 2024 MBCA 93 at paras 45 & 76, Nagle v R, 2023 NBCA 35 at para 21, R v Purcell, 2007 ONCA 101 at para 7, R v A.E. at paras 22-23, R v W(DJ) 2011 BCCA 522 at para 70 (affirmed 2012 SCC 63), R v Zaworski, 2022 BCCA 144, R c S.H, [1987] JQ no 412 (QCCA) and Williams, 2003 SCC 41 at para 22. Trial courts have followed suit, including for example R v Cunneen, 2024 ONSC 4541 at para 41, R c Korchal, 2025 QCCQ 298 at para 82 or R v Lucchetto, 2017 ONCJ 30 at para 75.

[46] With great respect, I do not read Tyrell to modify what I consider to be a long-established principle that recklessness can suffice to establish an 'intentional' application of force. Rather, it appears that the Court of Appeal in that case simply determined an issue based on the legal parameters as agreed upon by the parties and very specific factual findings. If the Court intended to modify, clarify or otherwise resolve the law on this point, it would have explicitly done so with a full consideration of the authorities.

[47] Moreover, the concept of recklessness serves to fill a necessary gap in the legal landscape with respect to assaultive behaviour. It captures criminal conduct that does not result from intentional actions, but from dangerous and risky behaviour that rises above the level of mere negligence, where these actions are not excused by defences such as accident or mistake. This is consistent with the instructions from the Supreme Court in George some 65 years ago, when it clarified that the word "intentional" in section 265(1)(a) simply means not by accident or mistake.

[48] I also see it as consistent with the threshold in section 265(1)(a) as it has developed. The law is now clear that an application of force does not necessarily connote some minimum level of violence. It simply requires interference with a person's bodily integrity (ZA at paras 6-8, R v RA, 2024 BCCA 283 at para 14 (affirmed at 2025 SCC 7)).

[49] Finally, I recognize that assault is a general intent offence. In the absence of any explicit language stating otherwise, recklessness can generally establish the mens rea for this category of offence (Purcell, at paras 13-20). Given the prevailing caselaw and the Supreme Court's interpretation of section 265(1)(a) in George, I am of the view that the word 'intentional' in that section is not explicit language that precludes the application of the doctrine of recklessness.

Application

[50] In this case, I find that Mr. Sabourin's actions show that he was clearly aware of and proceeded in the face of a risk within the meaning of recklessness.

[51] When the complainant mistakenly picked up his phone, Mr. Sabourin immediately engaged in physical confrontation. There was no discussion or rational attempt to resolve the issue. It is obvious that by engaging in the way he did, lunging at the complainant during an argument and reaching, with force, at her chest, there was a clear risk that he would apply significant force to her person. There was no social value to the risk, it was easily avoidable and it involved the potential for harm to the complainant. I conclude that Mr. Sabourin disregarded that risk and assaulted the complainant through his reckless behaviour while trying to achieve his purpose of wrestling the phone from Ms. Lappan.

[52] In this context, I also emphasize my earlier finding that while I accept that Ms. Lappan may bruise more easily than the average person given her medication, I accept that the force applied caused her pain and that the force was not insignificant.

[53] Finally, to be sure, this is not a case where the accused has a valid claim of defence of property. While it was pointed out in submissions that the phone was Mr. Sabourin's property, no serious argument was made in support of a claim of defence of property – and rightfully so. The accused's behaviour on that date, to immediately engage in a physical confrontation to retrieve the phone with significant force, fell far short of being "reasonable in the circumstances". This is a statutory requirement in section 35(1) of the Criminal Code. As a result, it is clear that there is no air of reality to any claim of defence of property.

Conclusion

[54] I find that the Crown has proven that Mr. Sabourin applied forced to Ms. Lappan within the meaning of section 265(1)(a) and that she did not consent to that force. Once again, I cannot conclude beyond a reasonable doubt that the accused was intentional in the application of that force in the literal sense of that word. However, I conclude that his conduct was reckless, such that the "intentional" requirement of the offence is made out. Finally, Mr. Sabourin's actions were not justified by defence of property.

[55] As a result, Mr. Sabourin will be found guilty of assault.

Released: October 20, 2025

Signed: Justice J.R. Lalande