ONTARIO COURT OF JUSTICE

DATE: 2026·02·11

COURT FILE No.: 4810 998 25 48109071

BETWEEN:

HIS MAJESTY THE KING

— AND — KHILILULLAH MOHAMMAD RAFIQ

Before Justice Peter Scrutton

Heard on February 3, 4 and 5, 2026

Reasons for Judgment released on February 11, 2026

L. Zamojc ................................................................................................................. for the Crown

M. Qiami ............................................................................................................. for the Defendant

Scrutton J.:

I. INTRODUCTION

[ 1 ] Khililullah Mohammad Rafiq is charged on an 8-count information that alleges he threatened and criminally harassed his ex-wife, Roya Ehsan, by besetting or watching her residence on May 27, 2025; that he threatened her on May 20, 2025; and that on those dates he committed multiple breaches of a probation order. I allowed the Crown’s application to adduce prior discreditable conduct relating to the defendant on the first day of trial and provided oral reasons for this decision on February 4, 2026.

[ 2 ] This ruling permitted the Crown to tender evidence that between August 13, 2021 and May 21, 2024, Mr. Mohammad Rafiq either pled guilty or was found guilty of a number of criminal offences committed in relation to Ms. Ehsan between 2019 and 2023, specifically, three counts of criminal harassment for besetting or watching her residence; two counts of fail to comply with a release order for attending her residence; four counts of fail to comply with a probation order by attending at her residence or communicating with her; and one count of uttering threats. I will discuss the purpose and extent to which I rely on this evidence later in these reasons.

[ 3 ] The Crown relies on Ms. Ehsan’s testimony, a cell phone video she took of Mr. Mohammad Rafiq on May 27, 2025, and surveillance footage from her apartment. The defendant did not testify or call any evidence.

II. EVIDENCE

[ 4 ] The defendant and complainant were married and had five children together before separating in 2017 and divorcing in 2019. On May 10, 2024, Mr. Mohammad Rafiq became subject to a two-year probation order that prohibited him from having any contact with the complainant and from attending within 500m of her residence. She lived in an apartment with their children, four of whom are adults, the youngest of whom is 14.

[ 5 ] Mr. Mohammad Rafiq did not formally admit that he attended the complainant’s apartment building on May 20, 2025 but did not challenge this aspect of her account. That day, Ms. Ehsan and her youngest child, Ali, drove into the underground parking lot after getting groceries. When she got out of her car, she heard Mr. Mohammad Rafiq, whose voice she recognized immediately. He was standing in the parking lot and called out to her. He spoke in Dari and said, “Don’t move.” She was scared and hurriedly left with Ali through the closest exit.

[ 6 ] As they walked to their apartment, Ali said that he would like to go back to speak to his father. He went downstairs and returned a few minutes later. He told Ms. Ehsan that she should go and speak to his father, who may be able to help their family. She did not but shortly after Ali handed her a phone – she was not sure who called whom – but he was speaking with the defendant.

[ 7 ] The defendant spoke to her in Dari. He told her that she should kick their children out of her apartment so that they would live with him. They argued. Eventually, he shouted that he would send people to her house to cut her throat or neck. Ms. Ehsan interpreted this as a threat to have her killed. This made her frightened and anxious. Mr. Mohammad Rafiq also told her, separately, that he would send people to her house to shave her head.

[ 8 ] One week later, Ms. Ehsan and her daughter went to run some errands. As they entered the underground parking garage, Ms. Ehsan saw a dark grey vehicle. She did not think anything of it until its lights turned on. She looked and saw Mr. Mohammad Rafiq sitting in the car, looking at her. She was about 10 feet away and could see him clearly through the windshield. Scared, she got into her car and drove out of the parking garage, stopping above ground outside of the building.

[ 9 ] Mr. Mohammad Rafiq pulled up beside her car and said, in Dari, “See, I can show myself to you, and I will not allow you to remain and walk alive like this.” She thought he was trying to convey how easily he could get to her. She took a short, 5-second video of the end of this interaction with her cell phone; it shows Mr. Mohammad Rafiq speaking in Dari with the passenger side window of his SUV rolled down before driving away. Ms. Ehsan called the police.

[ 10 ] The Crown tendered surveillance footage from different parts of the apartment complex on May 27 which shows a man driving what appears to be the same vehicle captured in the cell phone footage, a grey Toyota RAV4 SUV with the same plate number, dressed similarly to Mr. Mohammad Rafiq (both as Ms. Ehsan described him and in the limited view of him that is clear from her cell phone video). Different cameras from different parts of the apartment complex record him driving into the underground parking garage, standing outside of the RAV4, walking toward the apartment building, looking up toward where Ms. Ehsan testified her apartment was, and going up the side stairwell of her building.

Challenges to Ms. Ehsan’s Account

[ 11 ] Ms. Ehsan admitted that there had been problems and acrimony in their marriage before and after their separation, and that they had gone to family court. She disagreed that she had kept her children from seeing their father – to the contrary, she was content for them to see him if he treated them well. She denied that she put any restrictions on her children’s ability to see him. She acknowledged having told the police that sometimes she let them visit him for 10 minutes to an hour but testified that this had been a mistake, as most of their children were adults and able to make their own decisions. They would even spend the night with him.

[ 12 ] Defence counsel did not challenge Ms. Ehsan on the fact that Mr. Mohammad Rafiq attended her apartment building on May 20 th or that he spoke to her that day on the phone. Ms. Ehsan did not agree that the threat to cut her neck could equally mean “hit” her neck in Dari. She did agree that there was no independent corroboration of her account of these threats or that phone call.

[ 13 ] Ms. Ehsan did not know if her daughter heard the threat on May 27 th and did not discuss this with her because her daughter had anxiety and she did not want to upset her. Ms. Ehsan admitted that she wanted peace, to be free from her husband, and that she was aware that complaints to the police could help facilitate this.

The Parties’ Positions

[ 14 ] The Crown submits that Ms. Ehsan’s testimony should be accepted as proving these allegations. Her account of the May 27 th interaction is corroborated by surveillance footage and her own cell phone video. She was not challenged on the fact that she interacted with Mr. Mohammad Rafique on May 20 th . The fact that he was bound by a probation order not to communicate or attend near her residence supports the inference that he had an unlawful, not innocent purpose in interacting with her on those days. His prior conduct supports the same inference.

[ 15 ] Defence counsel submits that while the evidence may establish that Mr. Mohammad Rafiq attended at the apartment complex and spoke to Ms. Ehsan, no evidence confirms Ms. Ehsan’s account of what the defendant said to her on either occasion. Ms. Ehsan was aware that calling the police could have the effect of removing Mr. Mohammad Rafiq from her life and may have been motivated to embellish these allegations to keep him away from her. Her answers about not restricting her children’s access to Mr. Mohammad Rafiq are inconsistent with what she told the police. Any ambiguity about what Mr. Mohammad said to her ought to raise doubt as to whether he uttered threats to cause death.

III. LEGAL PRINCIPLES

i) The Presumption of Innocence

[ 16 ] Mr. Mohammad Rafiq is presumed innocent of these charges. The Crown must prove his guilt beyond a reasonable doubt, a burden which never shifts. He can only be found guilty of an offence if, after considering all of the evidence, the Crown has proved each element of an offence beyond a reasonable doubt. If I am not sure, based on all of the evidence, or the lack of evidence, that Mr. Mohammad committed an offence, I must find him not guilty of it. I must also consider whether the Crown has discharged its burden of proof beyond a reasonable doubt with respect to each count separately.

ii) The Elements of the Offences

[ 17 ] Mr. Mohammad is charged with two counts of uttering threats to cause death to Ms. Ehsan contrary to s. 264.1 (a) of the Criminal Code . Obviously, if I am not satisfied beyond a reasonable doubt that he directed a threat toward her, he must be found not guilty of this offence. Even if Ms. Ehsan’s evidence about him threatening her is accepted to the requisite standard, I must be still satisfied beyond a reasonable doubt that what the defendant said constituted a threat to cause death.

[ 18 ] To determine this, I must look at the words uttered objectively, in the context of all the circumstances, to determine whether they would convey a threat to cause death to a reasonable person. The fault element requires proof that the threatening words were meant to intimidate or to be taken seriously. It is not necessary to prove that the accused intended to carry out the threat. Circumstantial evidence can establish this intention. See R. v. McCrae , 2013 SCC 68 at paras. 10-19 .

[ 19 ] Mr. Mohammad Rafiq is also charged with criminal harassment contrary to s. 264(2) (c) of the Criminal Code . The Crown must prove that he beset or watched Ms. Ehsan’s residence, that in doing so he harassed her, that he knew or was reckless to the fact that his conduct harassed her, that this caused her to fear for her safety, and that her fear was reasonable in the circumstances: R. v. Kosikar , [1999] O.J. No. 3569 at paras. 15-26 . To “beset” a place means to approach it or be present at it or near it in a troubling way. To “watch” a place means to observe it with continuous attention: R. v. Eltom , 2010 ONSC 4001 at para. 14 ; R. v. Humberto Dapena-Huerta , 2017 ONSC 7531 at paras. 31-33 .

i) Prior Discreditable Conduct

[ 20 ] Evidence of a defendant’s prior discreditable conduct toward a complainant can be relevant and admissible to prove animus : R. v. Sandhu , 2009 ONCA 102 at paras. 12-17 ; R. v. F. (D.S.) (1999) , 43 O.R. (3d) 609 (C.A.); R. v. Krugel (2000) , 143 C.C.C. (3d) 367 (Ont. C.A.); R. v. Batte (2000) , 49 O.R. (3d) 321 at paras. 102-114 (C.A.). Courts have also admitted evidence of discreditable conduct in domestic violence prosecutions to assist the trier of fact in understanding the relationship between the complainant and defendant and the context in which the alleged offences occurred: R. v. Nolan , 2019 ONCA 969 at paras. 42-44 ; R. v. J.H., 2020 ONCA 165 at para. 55 . The risk of moral or reasoning prejudice associated with the admission of this evidence is significantly attenuated in a judge-alone trial because the proper and improper uses of this evidence can be articulated.

[ 21 ] In admitting the evidence in question, I was satisfied on a balance of probabilities that the probative value of Mohammad Rafiq’s previous convictions for criminal harassment for besetting or watching Ms. Eshan’s residence, for threatening her, and for attending at her residence despite probation or release conditions which prohibited him from doing so exceeded its prejudicial effect. There is little risk that I will be confused or distracted by this evidence, misunderstand its limitations, or rely on it to punish Mr. Mohammad Rafiq for past misconduct or because it suggests he is of bad character.

IV. FACTUAL FINDINGS

i) Breaches of Probation

[ 22 ] There is no issue that at the time of the allegations, Mr. Mohammad Rafiq was bound by a probation order that prohibited him from having contact or communicating with Roya Ehsan except through counsel, and from attending within 500m of her residence. Counsel acknowledged in closing submissions that the evidence tendered by the Crown at trial could establish that Mr. Mohammad Rafiq attended at the complainant’s apartment building on May 20 th and 27 th and communicated with her in breach of his probation order. I have no doubt that it proves these facts.

[ 23 ] I accept Ms. Ehsan’s unchallenged evidence that she saw the defendant in the underground parking garage of her apartment building on May 20 th and that she spoke with him on the phone that day. I also accept her evidence that she recognized the defendant and took a cell phone video of him outside of her apartment building on May 27 th . I observe that the man who is visible on that video strongly resembles the defendant as he appeared in court. The defendant is wearing a white cap in the cell phone video and driving a grey Toyota RAV4 SUV. I am certain that the man visible in surveillance footage from the apartment complex wearing a white cap and driving a grey Toyota RAV4 SUV with the same license plate number is the defendant. I am satisfied beyond a reasonable doubt that Mr. Mohammad Rafiq breached the communication and attendance prohibitions of his probation order on May 20 th and 27 th and that he did so knowingly. I find him guilty of counts 1, 2, 5, 6, and 8. [^1] In making these findings, I do not rely on evidence of his prior discreditable conduct in any way.

ii) Uttering Threats

[ 24 ] Ms. Ehsan was a thoughtful and articulate witness. She admitted that she could not remember the entirety of her conversation with Mr. Mohammad Rafiq on May 20 th . She did not try to speculate or fill in gaps. I accept her testimony that she did not restrict her children’s access to their father and that she had mistakenly conveyed this to the police when she disclosed these allegations. This portion of her videotaped statement was played during her cross examination and it is clear to me that the comment was said as a brief aside. Further, Ms. Ehsan did not take any steps to prevent her son Ali from going to speak to his father on May 20 th , something Ali told her he was about to do, even though Mr. Mohammad Rafiq was at their apartment complex unlawfully. I accept her testimony that her adult children were free to make their own decisions about seeing their father, and that she did not (and could not) impede their access to him.

[ 25 ] Ms. Ehsan did not testify with any real hostility toward Mr. Mohammad Rafiq, even though some level of hostility would be understandable given their history. I would characterize her attitude toward him as closer to fatigued than hostile; she seemed resigned to, and exhausted by, the defendant’s almost incorrigible pattern of threatening behaviour toward her. [^2] Many aspects of her account of the May 27 th interaction are confirmed by independent evidence. I find that Ms. Ehsan did not exaggerate her evidence and that she answered questions fairly. I reject the submission that she fabricated her testimony in the hope that doing so would remove her husband from her life. Mr. Mohammad Rafiq committed multiple breaches of a probation order designed to protect Ms. Ehsan on the dates in question – nothing about the fact that she complained about this to the police detracts from her credibility.

[ 26 ] I accept both the sincerity and reliability of Ms. Ehsan’s account of her May 20 th conversation with Mr. Mohammad Rafiq. I find that he threatened to send people to her house to cut her neck or throat. I find that he did so after she refused to accede to his request that she evict their children so that they would have to live with him. Ms. Ehsan interpreted this as a threat to cause death. I am satisfied beyond a reasonable doubt that a reasonable person would interpret this the same way, that Mr. Mohammad yelled this threat in anger or frustration about the situation with his children, and that he did so with the intent to intimidate Ms. Ehsan. I find him guilty of count 3. In making these findings, I do not rely on evidence of his prior discreditable conduct in any way.

[ 27 ] I make the same findings about the May 27 th interaction, the last part of which Ms. Ehsan recorded. I accept her testimony that Mr. Mohammad Rafiq said, in Dari, “See, I can show myself to you, and I will not allow you to remain and walk alive like this.” This is clearly a threat to cause death. The defendant said this as he was following the complainant after lying in wait for her. I am satisfied beyond a reasonable doubt that a reasonable person would interpret this as a threat to cause death and that Mr. Mohammad Rafiq made this threat with the intent to intimidate Ms. Ehsan. I find him guilty of count 7.

iii) Criminal Harassment

[ 28 ] I am satisfied beyond a reasonable doubt that Mr. Mohammad Rafiq beset and watched Ms. Ehsan’s residence on May 27 th , 2025. I accept her testimony about his actions that day, which is corroborated by her cell phone video. Surveillance footage from the apartment complex shows some of the extent to which he beset and watched the building. I accept that Ms. Ehsan was frightened by his presence and felt harassed by it, that she feared for her safety, and that her fear was reasonable in the circumstances.

[ 29 ] Mr. Mohammad Rafiq did more than beset or watch Ms. Ehsan’s residence. He drew her attention to his presence there and then threatened her. I have no doubt that he knew or was reckless to the fact that Ms. Ehsan was harassed by his besetting and watching her residence. Additionally, I find the fact that Mr. Mohammad Rafiq has three previous convictions for criminal harassment in relation to Ms. Ehsan for the same conduct, and was legally prohibited from attending at her apartment building, to be probative of his animus , knowledge, and intention on May 27 th . I rely on the evidence of his prior discreditable conduct only in this limited respect. I find him guilty of count 4.

Dated: February 11, 2026

Justice Peter Scrutton

[^1]: This count alleges that on May 27, 2025, the defendant breached the term of his probation that required him to keep the peace and be of good behaviour.

[^2]: I say this to illustrate my perception of Ms. Ehsan’s attitude toward this prosecution, and am not relying on her view of the defendant with respect to whether the actus reus of any offence has been committed.