COURT FILE NO.: CR-18-70000455-0000

DATE: 20191105

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Maeve Mungovan for the Crown

• and -

A.A.

Siavosh Pashang and Marco Sciarra for A.A.

HEARD: September 9, 10, 11, 13, 16, 17, 19, 20, 23, 27, 2019.

REASONS FOR JUDGMENT

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

CORRICK J.

Overview

[1] A.A. and Y.L. lived together for 10 years, between 2006 and 2016. It was a tumultuous relationship punctuated by periods of separation, usually brief. The couple stayed in contact after 2016 because they had four children. The relationship was particularly turbulent between October 2016 and November 2017 as Y.L. tried to end it. Each step she took to do so was met with spiteful behaviour from A.A.

[2] In March 2017, Y.L. and the children moved into an apartment in Toronto. Throughout 2017, A.A. stayed at the apartment for periods of time, until September when, after a fight during which A.A. broke a laptop and cell phone, Y.L. told him that she did not want to live with him any longer. A.A. left when the police arrived. Y.L. changed the locks on the apartment door.

[3] It is alleged that on the morning of November 1, 2017, sometime after 8:00 a.m., A.A. arrived unannounced at Y.L.’s apartment. The children were at school and daycare. A.A. followed Y.L. into the apartment. He sprinkled a liquid that smelled like gasoline on Y.L.’s hair and held a lit torch. Fearing that she would be burned, Y.L. fled the apartment and took refuge in an apartment down the hall. She called the police.

[4] The police arrived and escorted Y.L. out of the building. From the street, Y.L. saw smoke and fire coming from her apartment.

[5] A.A. was arrested at 8:30 that morning, a short distance away from Y.L.’s apartment.

Trial Process

[6] A.A. was tried by me without a jury on the following charges, all contrary to the Criminal Code of Canada:

1. Count 1 attempted murder of Y.L., contrary to s. 239(1)

2. Count 18 aggravated assault on Y.L., contrary to s. 268(2)

3. Count 3 arson, contrary to s. 433(a)

4. Count 4 arson, contrary to s. 434

5. Count 6 mischief to property, contrary to s. 430(4)

6. Count 7 mischief to property, contrary to s. 430(4)

7. Count 8 utter death threat, contrary to s. 264.1(1)(a)

8. Count 14 voyeurism, contrary to s. 162(1)(a)

The Evidence

[7] The Crown presented evidence from Y.L., M.A., Y.L.’s neighbour, several police officers, Stuart Sagara, a forensic scientist from the Chemistry Section of the Centre of Forensic Sciences, and Michael Ross from the Office of the Fire Marshal. In addition, two Agreed Statements of Fact were filed.

[8] At the outset of the trial, I conducted a voir dire to determine the admissibility of a statement A.A. made following his arrest. Counsel agreed that the evidence adduced on the voir dire would be evidence on the trial.

[9] A.A. called no evidence.

[10] I have considered all the evidence in coming to my decision, although I intend to review only some of it in any detail.

Events Leading up to November 1, 2017

Y.L.

[11] Y.L. testified in detail about the nature of her relationship with A.A., as well as the events in question.

[12] Y.L. arrived in Canada from South Korea in June 2006. Her husband and daughter, O., planned to join her in Canada after she was settled. Y.L. met A.A. soon after arriving in Canada. He assisted her with immigration matters, and the two soon became a couple. When Y.L.’s husband arrived in Canada with O., Y.L. informed him that their marriage was over. He returned to South Korea and left O. with Y.L. A.A. treated O. as his own child.

[13] Y.L. and A.A. bought a condominium together in November 2006. Although they lived together, A.A. continued to maintain his own apartment. According to Y.L., their relationship was good until the birth of their first child in January 2009. After that, A.A. became very controlling, continuously calling Y.L. when she was out of the house asking her when she was returning, demanding to know who was calling her and to whom she was speaking on the telephone. They argued often. Sometimes, A.A. would leave the condominium and stay at his own apartment. The couple, however, stayed together and had two more children.

[14] The family was under financial pressure. A.A. was unable to find steady employment. In February 2016, they sold their condominium, and the entire family moved into A.A.’s apartment on O. Avenue.

[15] In July 2016, the family went to South Korea where Y.L. and A.A. planned to open a restaurant. They opened a joint bank account in South Korea to pay for the restaurant’s expenses. The family returned to Canada before the restaurant was completed. A.A. returned to South Korea on September 23, 2016 to complete and open it.

[16] Y.L. became concerned that A.A. was gambling money that was set aside for the restaurant when he was in South Korea. As a result, on October 2, Y.L. returned to South Korea. While there, she became aware that A.A. was taking money from the cash register at the restaurant. When she confronted him with this, he became enraged, accusing her of putting him down. He kicked her, threw her on the bed, choked her and spat on her. This was the first time A.A. had assaulted her.

[17] Y.L. returned to Canada at the end of October without A.A. She informed A.A. on the telephone that she was leaving him. He became angry, said that he was leaving her, and ordered her to get out of his apartment on O. Avenue. Soon thereafter, the Children’s Aid Society called Y.L. to arrange a meeting because A.A. had called them from South Korea to report that Y.L. was abusing the children. The police also called Y.L. around this time to talk to her about an allegation that A.A. had made that she had stolen his money.

[18] When A.A. arrived in Canada between November 8 and 10, Y.L. told him that the police wanted to speak to him. After he spoke to the police, A.A. was angry. He called Y.L. and said, “Today, be ready.” Y.L. was afraid for her safety. On November 18, 2016, she packed a bag and moved into a shelter with three of her children. Her fourth child was in the hospital with pneumonia at the time and joined her mother when she was released.

[19] While at the shelter, Y.L. contacted a lawyer to commence child custody proceedings. She changed her mind however when A.A. contacted her and asked for another chance to rebuild their relationship. A.A. continued to see the children outside of the shelter.

[20] On New Year’s Day 2017, Y.L. and the children visited A.A. at his apartment on O. Avenue. While there, Y.L. took a bath. She remembered being in the bath looking at her cell phone. Months later, A.A. sent her a photograph of her in the bath looking at a cell phone. She had not been aware that A.A. was taking a photograph of her.

[21] Y.L. and the children remained at the shelter until March 2017 when they moved into their apartment. A.A. began spending time at this apartment, helping Y.L. with childcare and spending time with the children. Y.L. testified that her relationship with A.A. was okay at that time.

[22] The relationship turned sour again on September 18, 2017 when A.A. had an argument with their eldest daughter, who was 13 years old, accusing her of being with a man. Y.L. testified that she realized that A.A. had begun behaving with their daughter the way he had behaved with her. She told A.A. that she no longer wanted to be with him.

[23] A.A. became angry. He smashed an Apple laptop computer that Y.L. was using for school against a table and smashed the cell phone that they had purchased in Korea. When Y.L. went into a bedroom to call the police, A.A. left the apartment with the broken laptop. A.A. returned to the apartment, the police came, and Y.L. told them that she wanted A.A. to leave. A.A. left. Y.L. did not tell the police at that time about the damaged cell phone and laptop. Y.L. changed the lock on the apartment door.

[24] The next day, September 19, A.A. returned to the apartment. He found that the lock had been changed. Y.L. would not open the door. She called the police.

[25] The following day, September 20, Y.L. saw A.A. on the street. As A.A. walked past Y.L., he approached her, and calmly said, “I promise I kill you,” and kept on walking. Y.L. was frightened. She believed that A.A. meant what he had said. When she returned home, Y.L. called A.A. and asked him what he had said. He replied, “Who’s this. I don’t know you,” and hung up.

[26] She did not call the police following the threat because she did not want A.A. to be arrested as he had started a new job and she did not want to destroy the life he was building for himself.

[27] Between September 20 and October 10, 2017, A.A. again helped Y.L. with childcare. Y.L. was a full-time student at Ryerson and needed help with the children at the beginning and end of the school day. A.A. stayed with the two middle children from 3:00 until 3:20 when O., the eldest, arrived home from school. He also waited with their son in the morning for the school taxi when Y.L. had to take another child to speech therapy. Y.L. gave A.A. a key to her apartment to lock the door after their son went to school. A.A. was supposed to give the key to O. at the end of the school day.

[28] Y.L. forgot about the key until October 10 when A.A. used it to unlock the door and enter her apartment early that morning to return O.’s TTC pass. Y.L. demanded that he return the key. He denied that he had it, saying that the door had been unlocked. They argued. Y.L. ordered him to leave, which he did.

[29] Later that day, Y.L. received a phone call from the Children’s Aid Society saying that A.A. reported receiving an email from her threatening to harm the children.

[30] Y.L. changed the lock on her apartment door for a second time and changed her telephone number.

[31] Later that same night, Y.L. received an email from A.A. attaching a nude photograph of her in the bathtub at the apartment on O. Avenue. The email read, “If you wanna more call me.”

[32] The next day, Y.L. went to the police station and reported receiving the nude photograph from A.A. A.A. was charged and released on an undertaking on October 12. Two conditions of that undertaking prohibited A.A. from communicating with Y.L. and from being within 100 metres of her residence.

[33] That weekend, Y.L. saw emails in her Gmail outbox addressed to A.A.’s email address that she had not written or sent. Two had been sent on October 14 at 5:47 pm and 6:45 p.m., and two had been sent on October 15 at 7:32 a.m., and 7:53 a.m. The emails were admissions by Y.L. that she had lied to police about A.A.’s conduct.

[34] Y.L. closed her Gmail account. A.A. began emailing their daughter. To prevent this, Y.L. gave A.A. her Ryerson email address. Between October 16 and 30, A.A. sent Y.L. numerous email messages. When Y.L. did not respond, the tone of A.A.’s emails became increasingly angry.

[35] On October 22 or 23, the officer in charge of the case against A.A. informed Y.L. that a justice of the peace had issued an order that she be assessed by a doctor. The police officer who escorted her to St. Michael’s Hospital to see a doctor showed Y.L. a letter that A.A. had written to the justice of the peace.

The Events of November 1, 2017

Y.L.

[36] Y.L. testified that she returned home from dropping her youngest child at daycare at approximately 8:20 a.m. She unlocked her apartment door and was followed in by A.A. She was frightened and pushed him against the wall, where she held him by pushing his shoulders.

[37] She asked him why he was there and said that they could talk. She noticed that he was holding a torch in his right hand. He activated it, and she saw a blue flame. A.A. lifted his left hand and she felt some drops of liquid on the right side of her head. The liquid smelled like gasoline, but not as strong. Afraid that she was going to be burned, she pushed A.A. into the living room. He fell on his backside on the floor, and she ran out of the apartment, screaming for help. She heard fast footsteps behind her. As she ran past a man working in the hallway, she yelled, “Stop him, stop him.”

[38] Y.L. saw the door to another apartment open. She ran through it and entered M.A.’s apartment. Once inside, the two women had to push very hard to close the door because someone was pushing against it. Y.L. called 911. It was an agreed fact that the 911 call was made at 8:18:50 a.m. The police arrived soon thereafter and led Y.L. down the stairwell to the exterior of the building. Police and firefighters were entering the building when Y.L. arrived outside, and she saw fire and smoke coming from her apartment.

M.A.

[39] M.A. lived in apartment 503 at S. Street. She testified that she was getting ready for work in the morning of November 7, when she heard a commotion outside of her apartment. She heard arguing and raised voices. When she heard a male voice say, “Leave her alone,” she opened her apartment door to see what was going on. As soon as she opened the door, Y.L. flew into her apartment and tried to close the door. She assisted Y.L. to close the door because there was resistance from the other side.

[40] Before closing the door, M.A. saw A.A. holding what she described as a red propane tank the size of a portable fire extinguisher in his right hand. In his left hand, he was holding a hose that was attached to the propane tank.

[41] Once the door was closed, M.A. consoled Y.L. When she hugged her, M.A. was overwhelmed with the smell of gasoline. She believed that Y.L.’s hair was wet and that her jacket reeked of gasoline.

[42] Y.L. called 911 from M.A.’s apartment.

[43] At some point, the fire alarm in the building went off. Despite this, the two women did not leave until a police officer knocked on the apartment door and told them to evacuate.

Office of the Fire Marshal

[44] Michael Ross, a fire investigator for the Ontario Office of the Fire Marshal, was qualified to provide an opinion on the origin, cause and circumstances of the fire in Y.L.’s apartment. His qualifications to do so were not contested.

[45] He did not attend the scene of the fire but reviewed the report that had been prepared by Debbie Harris, another fire investigator, since retired, who did attend the scene. Ms. Harris’ report had also been technically reviewed by two other fire investigators.

[46] Mr. Ross testified that the fire in M.L.’s apartment had been intentionally set. He based this conclusion on the fact that four independent fires had started in different areas of the apartment - in one of the bedrooms, in the hall near a closet, in the living room near the couch, and inside a toy box in the living room near the kitchen. He also testified that there was no ignition source near any of the areas of origin of the fires. Each of the four fires was started by the deliberate application of an open flame to combustible material. None of the individual fires caused the other fires.

[47] Mr. Ross examined a cylinder that was seized from the fire scene by Officer Tauro, who attended the scene at 1:45 p.m. on November 1, 2017 to take photographs. Officer Tauro photographed the cylinder, which he found lying on the floor near the burnt-out couch. There was a single wire leading from the canister to the torch head. It was empty when he seized it. Mr. Ross testified that if it contained fuel, such as propane or MAPP gas, it would produce a blue flame out of the torch head once ignited.

[48] Mr. Ross described the cylinder as a hand-held torch. He testified that the deformity in the metal of the cylinder and the loss of the paint finish on the metal indicated that the cylinder had been exposed to heat. The torch was damaged. The valve was no longer sitting atop the cylinder, and there was no housing around the valve. There was a single wire leading from the canister to the torch head. Mr. Ross was unable to say whether the torch had a trigger that would allow a person to ignite it with one hand, which requires two wires. The presence of a single wire was some indication to him that at one time the torch had such a trigger.

Forensic Evidence

[49] Stuart Sagara, a scientist in the Chemistry Section of the Centre of Forensic Sciences, analyzed five items to identify the presence and nature of volatile ignitable liquids. He analyzed three items taken from the fire scene – clothing and a piece of countertop taken from one of the bedrooms where one of the fires burned, a piece of carpet taken from under a toy box in which a fire burned and a piece of flooring from under a couch, which was partially consumed by fire. In addition, he analyzed hair and swabs taken from Y.L.’s hair by the police shortly before 1:05 p.m. on November 1, 2017 and swabs taken from A.A.’s hands on November 1, 2017.

[50] Mr. Sagara’s qualifications to provide opinion evidence on the analysis and identification of unknown materials, the analysis of fire debris, and the properties of ignitable liquids were not contested.

[51] His findings were as follows.

▪ Clothing and countertop sample – a medium petroleum distillate was identified. Medium petroleum distillates are volatile ignitable liquids, and include mineral spirits, varsol, barbeque lighter fluid and paint thinners.

▪ Carpet sample – No volatile ignitable liquid was identified. Mr. Sagara testified that such a liquid may never have been present, it may have evaporated, or it may have been consumed by the fire.

▪ Floor sample – Gasoline and a medium petroleum distillate were identified.

▪ Y.L.’s hair – A medium petroleum distillate and a medium isoparaffinic product were identified. Medium isoparaffinic products are volatile ignitable liquids that can be found in hairspray, antiperspirants, charcoal lighter fluids and paint thinners.

▪ Swab from A.A.’s hands - No volatile ignitable liquid was identified.

[52] Mr. Sagara was unable to quantify the amount of volatile ignitable liquid present in either the clothing and countertop sample or the floor sample, other than to say that both samples contained more than trace amounts.

[53] A much smaller amount of volatile ignitable liquid was identified in Y.L.’s hair, but it was above the detection limit of 1/500th of a drop.

Positions of the Parties

[54] Crown counsel submitted that Y.L. was a credible and reliable witness upon whom the court can rely to find that all the charges on the indictment have been proven beyond a reasonable doubt. Her evidence was internally consistent and was consistent with the evidence of M.A., an independent witness. The forensic evidence and evidence from the fire marshal confirmed Y.L.’s evidence.

[55] Defence counsel submitted that the circumstantial evidence is insufficient to prove beyond a reasonable doubt that A.A. set the fires in Y.L.’s apartment or that he surreptitiously took a photograph of Y.L. in the bathtub. He also submitted that Y.L. was not a credible witness and it would be unsafe for the court to find A.A. guilty of any offence based on her evidence.

Applicable Legal Principles

[56] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

[57] The first is the presumption of innocence. This presumption has been with A.A. throughout the trial and remains with him unless and until Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged. It also means that A.A. does not have to prove that he is innocent of these crimes.

[58] The second is that the Crown bears the burden of proving A.A.’s guilt beyond a reasonable doubt. This standard is a very high one. It is not enough for me to believe that A.A. is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt. On the other hand, it does not require the Crown to establish his guilt with absolute certainty. Nevertheless, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.

[59] In addition, in a case such as this where the Crown relies on circumstantial evidence to prove guilt, I must be satisfied that the only reasonable inference to be drawn from all the evidence is that A.A. is guilty. Inferences consistent with innocence do not have to arise from proven facts. They can arise from an absence of evidence. If there are reasonable inferences other than guilt, the Crown will not have established his guilt beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33, at paras. 35 – 36.

[60] I am required to make my decision based on the whole of the evidence. The standard of reasonable doubt does not apply to individual pieces of circumstantial evidence. I must determine whether the Crown has met its onus of proof of guilt beyond a reasonable doubt after considering the cumulative effect of all the evidence: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 361; R. v. Smith, 2016 ONCA 25, at paras. 81 - 82.

[61] This case depends in large part on my assessment of the reliability and credibility of Y.L. I can accept some, none or all of the evidence of any witness, including Y.L.

Analysis

Assessment of Y.L.’s Evidence

[62] Defence counsel pointed to the following evidence in support of his submission that Y.L. was not a credible witness.

▪ Y.L. continued to involve A.A. in her and their children’s lives when it suited her despite his threats and controlling behaviour and her stated fear of him.

▪ She reported A.A.’s threatening or aggressive behaviour only after she became aware that the Children’s Aid Society was investigating her as a result of complaints made by A.A. because she feared losing custody of her children.

▪ Y.L. misled her first husband to ensure that she obtained custody of their daughter.

▪ Y.L. told Officer Peterson that liquid drops were poured on the left side of her head but testified that they were poured on the right side of her head.

▪ Y.L. testified that A.A. hacked into her email account to send himself emails that appeared as if they were sent by her. Defence counsel argued that Y.L. fabricated the emails and sent them to the police in support of her accusation that A.A. was violating the terms of his judicial interim release.

▪ Y.L. lied to the 911 operator and Officer Bergeron on November 1, 2017 when she said that A.A. had followed her into her apartment that morning and choked her.

[63] The fact that Y.L. continued to allow A.A. to be involved in her life and her failure to report A.A.’s threatening and other behaviour every time it occurred does not cause me to doubt her credibility. Y.L. described her relationship with A.A. as one from which she wanted to escape. They argued constantly. He was controlling. He constantly checked up on her, calling her when she was out of the house, asking when she would be home. He accused her of hiding something if she left the computer when he entered the room. He accused her of having an affair with one of the police officers investigating him. He would not permit O. to sleep at a friend’s house because the friend’s father might sexually assault her. He would not allow O. to go to London on a school outing because London was a prostitution place. She said that he choked her in Korea. He destroyed things in anger. He threatened her. Why would she allow him to be around her or her children?

[64] Y.L. told the court why. She wanted the relationship to work. A.A. did everything for her when she arrived in Canada and was defrauded by an immigration agency. She knew that his wife and son had died and that she and their children were his second family. When it became obvious that the relationship was not going to work, she considered that he was the father of their four children. She was a full-time student. She needed help to hold everything together.

[65] It is well recognized in our jurisprudence that victims of trauma, including victims of abuse in intimate relationships, may respond differently to the trauma because of the relationship than they would in other circumstances: R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.) at para. 64. It is equally well recognized that a complainant’s delay in reporting a crime committed against her by an intimate partner, standing alone, does not give rise to an adverse inference against her credibility: R. v. D. (D), 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Neff 2012 ONSC 6587 at paras. 6 and 7.

[66] I accept Y.L.’s explanation for failing to tell the authorities in South Korea that A.A. had choked her. She was embarrassed and did not want her family to know. I also accept her explanation for failing to report A.A.’s destruction of the cell phone and laptop and his death threat on the street until after he sent her a naked photo of herself. By then, she had had enough.

[67] I do not accept the submission that Y.L. reported A.A. because he had reported her to the Children’s Aid Society, and she feared losing her children. Y.L. testified that she never thought that the Children’s Aid Society would take her children.

[68] Y.L. admitted that she had decided to end her marriage to her first husband six months before telling him. She testified that she did so because he was in Korea with their two-year-old daughter and she feared that he would not bring her to Canada if Y.L. ended the marriage. She feared that she would never see her daughter again. She also admitted that she became involved in a relationship with A.A. while she was still married, and her husband was in Korea.

[69] In the circumstances described by Y.L., where her husband threatened to drag her by the hair back to Korea after learning that the immigration agency had defrauded her of $30,000, her deception does not negatively affect my assessment of her credibility.

[70] Officer Peterson testified that he ran a swab through the left side of Y.L.’s hair where she had told him the drops of liquid had been poured. He also cut some of Y.L.’s hair from the same spot. Y.L. testified that the liquid was poured on the right side of her head. A medium petroleum distillate was identified in the swab.

[71] Officer Peterson did not have a good recollection of taking the swab. He could not remember if Y.L.’s hair was wet or dry, if it was up in a ponytail or down, how long it was, or whether he cut the lock from the end or near the root. I have no doubt that Officer Peterson was a truthful witness. I am however concerned about the reliability of his evidence. Y.L.’s credibility is not affected by his contradictory testimony.

[72] Defence counsel cross-examined Y.L. at length about four emails that appeared to have been sent to A.A. from Y.L.; two on October 14 within an hour of each other and two on October 15 within twenty minutes of each other. Y.L. testified that she did not send the emails. She surmised that A.A. hacked her email account and sent the emails to himself. This was based on her discovery that A.A.’s cell phone number was listed on her account as the password recovery number. Y.L. believed that A.A. had changed the password on her account surreptitiously and was thus able to send messages to himself from it.

[73] It is the defence theory that Y.L. fabricated the four emails and sent them to the officer in charge to implicate A.A. in a breach of the conditions of his judicial interim release. Based on the evidence before me, I am unable to reach that conclusion.

[74] It makes no sense that Y.L. would admit that she had falsely accused A.A. in emails that she had fabricated to send to the police. Although Y.L. tried to explain how she thought A.A. had hacked her email, the fact remains that she did not know. She was surmising based on what she saw, but she did not observe A.A. doing it. What she knew was that she did not write or send those emails to herself.

[75] These emails do not affect my assessment of Y.L.’s credibility.

[76] I have, however, considered that she told the 911 operator and Officer Bergeron that A.A. choked her in her apartment on November 1 when I assess her evidence. She testified that A.A. did not choke her when he came into her apartment that morning. When she was asked why she told the 911 operator that he had, she testified that she was trying to explain that he had choked her in the past and was now trying to burn her. This explanation is not consistent with the recording of the 911 call. Y.L. said to the 911 operator that, “as soon as I go in, he just followed me in and then choked my neck and torch was in front of me with the fire...” Y.L. was clearly recounting what had happened to her that morning not sometime in the past.

[77] Officer Bergeron made notes of the conversation she had with Y.L. at 8:31 a.m. in the lobby of Y.L’s apartment building. She noted that Y.L. told her that A.A. had put her up against the wall, and that Y.L. used a hand motion as if she was being choked. Y.L. did not recall saying this to Officer Bergeron.

[78] It is understandable that in the moments following these events, Y.L. would have been highly stressed. She testified that she was trembling and in shock. M.A. testified that Y.L. was so overwrought that she had to speak to the 911 operator while Y.L. calmed herself. Nevertheless, this version of events is inconsistent with Y.L.’s evidence that A.A. held a torch in one hand and had something else in his other hand. Because of this, and Y.L.’s explanation for telling the 911 operator that she had been choked, which I do not accept, I have carefully scrutinized her evidence.

[79] Y.L. provided detailed answers to the questions she was asked. She recounted the details of her relationship with A.A. and the events surrounding the offences before the court without acrimony or vengeance towards A.A. As I have already indicated, her explanations for failing to report offences to the police and maintaining her relationship with A.A. despite his conduct made sense in the circumstances in which she found herself.

[80] The defence theory was that A.A. arrived at the apartment that morning to pick up his tools to take to the renovation job he had nearby. Y.L. testified that he kept some tools on the balcony. While at the apartment, he and Y.L. argued, and Y.L. pushed him on the floor. This accounts for the time that elapsed between the time Y.L. entered the apartment lobby and the time that the 911 call was placed. If Y.L.’s account of events is accurate, it would not have taken only seven minutes.

[81] I reject this theory for several reasons. If A.A. went to the apartment to pick up his tools, why did he have to conceal his face when he entered the building? Why did he have to enter and leave the building by the stairwell adjacent to Y.L.’s apartment three times before finally entering the apartment? Why did he not enter through the apartment lobby? Why did he not knock on Y.L.’s door to retrieve his tools rather than surprise her from behind?

[82] This theory also assumes that the timing of the apartment building’s video surveillance system was synchronized with the 911 emergency call system. This is not a reasonable assumption, particularly given the agreed fact that the time stamps on the video surveillance footage were thirteen minutes ahead of the real time. It also does not account for the time it took Y.L. to get in to her unit from the lobby, to flee to M.A.’s apartment, to work with M.A. to close her door against A.A., or the time that M.A. spent consoling Y.L. before 911 was called.

[83] Defence counsel also submitted that Y.L.’s account of how she pushed A.A. away to make good her escape is fanciful, and casts doubt on Y.L.’s evidence generally. Y.L. testified that she could not explain how she found the strength to push A.A., a much larger person, away from the wall causing him to fall.

[84] I do not agree with defence counsel’s submission. A.A. had mobility issues. He was arrested walking quickly up the street with a walker. Both of his hands were full and occupied. It is not fanciful to consider that he may have been thrown off balance when Y.L. pushed him. It is not reasonable to expect anyone in Y.L.’s situation to be able to recount in minute detail the step-by-step process used to escape an attacker.

[85] Y.L.’s evidence was consistent with the evidence of an independent witness, M.A., and the other evidence in this case.

[86] Her evidence that A.A. appeared behind her as she opened her apartment door is consistent with the video surveillance showing A.A. ascending the stairs in the stairwell located adjacent to Y.L.’s apartment at 7:58:40 a.m.

[87] Other than the colour, Y.L.’s description of the cylindrical torch that A.A. held in his right hand was consistent with M.A.’s description of the torch she saw A.A. holding in his right hand after Y.L. ran into her apartment. It is also consistent with the damaged torch recovered from Y.L.’s apartment after the fire.

[88] Y.L. testified that the drops A.A. poured on her hair smelled like gasoline but not as strong. M.A. testified that Y.L. smelled of gasoline and that her hair was wet. Mr. Sagara identified the presence of a small amount of medium petroleum distillates, which are volatile ignitable fluids, such as varsol and mineral spirits, in Y.L.’s hair.

[89] Y.L. testified that the flame emitted by the torch A.A. was holding was blue. Mr. Ross testified that if the torch had contained fuel it would emit a blue flame.

[90] The torch was activated by A.A. closing and releasing his hand around it twice, making a clicking sound each time, according to Y.L. Mr. Ross testified that some hand-held torches are equipped with a spark igniter in the torch head, which allows the user to ignite the flame with one hand. If the valve of the torch is open, and fuel is flowing, pulling the trigger on the torch, which could make a clicking sound, would ignite the flame. Mr. Ross could not determine whether the torch found at the fire scene had a spark ignition because it had been damaged by the fire. However, Mr. Ross testified that the presence of a single wire connecting the nozzle of the torch to the cylinder suggested that the torch at one time had a spark ignition.

[91] I accept Y.L.’s evidence generally, and specifically her evidence about what happened in her apartment the morning of November 1, 2017.

[92] As a result, I make the following findings.

[93] On September 19, 2017, during an argument with Y.L., A.A. damaged an Apple laptop computer and cellphone that she had been using.

[94] On September 20, 2017, A.A. passed Y.L. on the street and said to her, “I promise I kill you.”

[95] On October 10, 2017, A.A. sent an email to Y.L. attaching a naked photograph of her.

[96] On November 1, 2017, A.A. concealed himself in the stairwell adjacent to Y.L.’s apartment and entered her apartment behind her, catching her by surprise. She pushed him against the wall. He held a torch in his right hand, which he ignited. He splashed a small amount of a flammable liquid on Y.L.’s hair. Y.L. pushed him causing him to fall. She fled down the hall to M.A.’s apartment. A.A. followed her and attempted to enter M.A.’s apartment after her.

[97] Having made those findings of fact, I turn to the counts in the indictment.

Attempted Murder and Aggravated Assault

[98] The core issue with respect to these two counts is whether the Crown has proved beyond a reasonable doubt that A.A. is guilty of attempted murder, and if he is not, whether he is guilty of aggravated assault.

[99] To prove the attempted murder charge, the Crown must prove beyond a reasonable doubt that A.A. had the specific intent to kill Y.L. on November 1, 2017: R. v. Ancio, 1984 69 (SCC), [1984] 1 SCR 225. As there is no direct evidence of A.A.’s intent to kill Y.L., I am required to determine his intent from circumstantial evidence.

[100] I am not satisfied beyond a reasonable doubt based on the circumstantial evidence that A.A. had the specific intent to kill Y.L. that morning. It is one reasonable inference that can be drawn from the evidence, but it is not the only one.

[101] As I will explain shortly, I have no doubt that A.A. went to the apartment that morning to torch it. However, there is no evidence that A.A. knew that Y.L. would be present at that hour of the morning. He was very familiar with Y.L.’s regular morning routine because he had assisted her with the children in the morning for many weeks in September and October. Typically, once the three older children left for school, Y.L. took the youngest child to daycare and then went to school herself. On November 1, however, Y.L. returned home after dropping her son at daycare because she had been given time off from class to finish an assignment.

[102] I have also considered how easily A.A. could have burned Y.L. if that had been his intention. He had the accelerant and torch handy as soon as he stepped behind Y.L. to follow her in to the apartment.

[103] A.A.’s threat to kill Y.L. in September is not determinative of his intention on November 1, particularly in light of the turbulent nature of their ongoing relationship. He had threatened her before, in November 2016, causing her to move herself and the children to a shelter.

[104] Other rational inferences available from the circumstantial evidence are that A.A. intended to frighten and intimidate Y.L. or that he intended to cause her bodily harm and was reckless about whether it would cause her death.

[105] The Crown has not established beyond a reasonable doubt that A.A. had the specific intent to kill Y.L. and I therefore find him not guilty of count 1.

[106] My finding on this count makes it unnecessary to consider counsel’s argument about amending the count.

[107] Given the findings of fact that I have made, I am satisfied beyond a reasonable doubt that A.A. is guilty of aggravated assault. Y.L. did not consent to having flammable liquid poured on her. Wounding, maiming or disfiguring Y.L. was an objectively foreseeable consequence of pouring a flammable liquid on Y.L.’s hair while holding a lit torch an arm’s length away from her: R v. Godin, 1994 97 (SCC), [1994] 2 SCR 484. A.A. is guilty of count 18.

Arson

[108] The only rational inference that can be drawn from all the circumstantial evidence is that A.A. intentionally set four fires in Y.L.’s apartment. The evidence supporting this conclusion is the following.

[109] Video surveillance shows A.A. entering the apartment building through an exterior door, other than the main door, four different times during the morning of November 1 – at 7:18, 7:39, 7:43 and 7:58 a.m. Each time, he ascended the stairs in the stairwell adjacent to Y.L.’s apartment. There is no video surveillance of him descending the stairs after 7:58 a.m. At 7:18 a.m., A.A. entered the building with what appeared to be a kitchen towel over his head, concealing his face. Each subsequent time he entered, his face was partially covered with something.

[110] The second time he entered he was carrying a blue drawstring bag over his shoulder, which appeared to contain several items. This can most clearly be seen from camera 11 at time stamp 7:53:21 a.m. When he descended the same stairs a moment later, he was carrying the blue bag, which was now not as full.

[111] There was no fire in the apartment when Y.L. fled to M.A.’s apartment.

[112] M.A. saw A.A. holding an unlit torch when he chased Y.L. to her apartment.

[113] A torch, matching the descriptions given by Y.L. and M.A., was found amongst the fire debris in the apartment.

[114] A.A. was found in possession of a lighter when he was arrested 200 metres away from Y.L.’s apartment building, twelve minutes after Y.L. had placed a call to 911.

[115] Over the month and one-half preceding the fire, A.A. had demonstrated increasing animus toward Y.L.

[116] I am satisfied beyond a reasonable doubt on the basis of this evidence that A.A. is guilty of arson and I find him guilty of counts 3 and 4.

Mischief to Private Property

[117] I found that A.A. damaged a laptop computer and cell phone during an argument with Y.L. on September 18, 2017. Defence counsel argued that A.A. had a proprietary interest in both items and thus had a colour of right defence to the two charges of mischief.

[118] However, Y.L. testified that A.A. bought the laptop for O. a few years earlier. When she returned to school, Y.L. used it with O.’s permission. There is no evidence that A.A. had any proprietary interest in the laptop or that he thought he had a proprietary interest in it. The colour of right defence does not arise with respect to the laptop. I therefore find A.A. guilty of count 6.

[119] The cellphone is different. Y.L. testified that the cellphone was purchased in South Korea for the purpose of conducting Y.L.’s and A.A.’s joint business venture. Y.L. agreed that the assets of the business, including the cellphone, were owned jointly by her and A.A. A.A. used the cellphone when he was in South Korea without Y.L. In September 2017, Y.L. considered the phone to be hers. She was buying a pay-as-you-go card each month to use the phone.

[120] To put the defence of colour of right into play, A.A. must show that there is an “air of reality” to it. If he meets that hurdle, the burden falls on the Crown to disprove the defence beyond a reasonable doubt: R. v. Simpson 2015 SCC 40, at para. 32.

[121] I am satisfied based on Y.L.’s evidence that there is an air of reality to A.A.’s defence of colour of right with respect to the cellphone and the Crown has not disproved that defence beyond a reasonable doubt. I therefore find A.A. not guilty of count 7.

Utter Death Threat

[122] I have accepted Y.L.’s evidence that A.A. said to her, “I promise I kill you,” as he passed her on the street on September 20, 2017. Y.L. testified that she was frightened when she heard it. Once she got home and called him, she was satisfied that A.A. was not going to act on the threat and she was no longer frightened.

[123] The actus reus of the offence of uttering a death threat is proven, “if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death”: R. c. McRae, 2013 SCC 68, at para. 16.

[124] The Crown has proven the mens rea of the offence if it has shown that the threatening words uttered were intended to intimidate or to be taken seriously: McRae, at para. 17.

[125] When viewed in the context of A.A.’s and Y.L.’s turbulent relationship, particularly in September 2017, I am satisfied beyond a reasonable doubt that a reasonable person would have perceived A.A.’s words as a threat of death. I am also satisfied beyond a reasonable doubt that he said those words to her to intimidate her. I therefore find A.A. guilty of count 8.

Voyeurism

[126] At the core of the voyeurism offence in s. 162 (1)(a) of the Criminal Code is the secret nature of the picture-taking. There is no direct evidence that A.A. took a photograph of Y.L. in the bathtub. I have considered the following circumstantial evidence.

[127] Y.L. was not aware that A.A. had taken a photograph of her while she was in the bathtub at his apartment in January 2017.

[128] Y.L. had never seen the photograph before A.A. sent it to her in October 2017.

[129] Y.L. did not consent to A.A. taking a photograph of her in the bathtub. She testified that she was not okay with him having taken the photograph.

[130] On October 10, 2017, A.A. sent Y.L. an email attaching a photograph of her in the bathtub at his apartment in January 2017. The email read, “wanna more call me.”

[131] Y.L. received the photograph and email after she and A.A. had argued about his failure to return the apartment key to O., and after Y.L. had changed the locks on her door and changed her telephone number.

[132] Y.L. testified that A.A. used his cellphone to take photographs of their children.

[133] For the reasons I have already explained, I accept the evidence of Y.L. The only reasonable inference to be drawn from the circumstantial evidence is that A.A. surreptitiously took a photograph of Y.L. while she was in the bathtub at his apartment. I therefore find A.A. guilty of count 14.

Conclusion

[134] In summary, A.A. is guilty of counts 3, 4, 6, 8, 14 and 18. He is not guilty of counts 1 and 7.

Corrick J.

Released: November 13, 2019

COURT FILE NO.: CR-18-70000455-0000

DATE: 20191113

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

A.A.

REASONS FOR JUDGMENT

Corrick J.

Released: November 13, 2019