COURT FILE NO.: CR-20-40000138
DATE: 20210429
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.A.
T. Brun, for the Crown
A. Enenajor, for A.A.
HEARD: April 19-22, 2021.
REASONS FOR JUDGMENT
SCHRECK J.:
[1] This is a case involving allegations of sexual violence and threatening in a domestic context. Like many such cases, it turns entirely on an assessment of the credibility of the witnesses.
[2] A.A. and M.F. were married in 2009 and have three children together. The relationship was tumultuous from the beginning and in 2011, A.A. left the matrimonial home and moved to Alberta to find work. He returned in 2014 because M.F. had been hospitalized and the Children’s Aid Society (“CAS”) had placed the children into the care of his sister. Although A.A. moved back into the home, his relationship with M.F. did not improve.
[3] In October 2019, M.F. went to the police and told them that at some time in 2015, A.A. had assaulted her by damaging her clitoris with his fingernail, causing significant bleeding for which she received treatment at a hospital. She also alleged that he had recently threatened to do something to her that she would regret. As a result of these allegations, A.A. was charged with sexual assault and threatening bodily harm.
[4] A.A. has elected to be tried in this court without a jury. He and M.F. were the only witnesses to testify at the trial. M.F. testified that A.A. committed the offences. A.A. testified that he had not. Neither witness’s evidence was corroborated by independent evidence. As a result, the case turned entirely on my ability to determine which witness was telling the truth.
[5] At the conclusion of the trial, I advised the parties that A.A. was found not guilty on both counts with reasons to follow. These are those reasons.
I. EVIDENCE
A. Facts Not in Dispute
(i) The Beginning of the Relationship
[6] M.F. and A.A.’s testimony was largely consistent with respect to the history of their relationship, but diametrically opposed with respect to whether the events giving rise to the charges occurred.
[7] A.A. and M.F. met in 2009 when they were neighbours living in the same apartment building. They were married soon after and had three children. Two of the children were born in 2010 and the third was born in 2012. Their oldest child is autistic. She attends a special education program and requires support in the community.
[8] The marriage was marked by significant discord and in 2012, A.A. moved out. He moved to Alberta, having been unable to find work in Toronto. The children continued to live with M.F. A.A. sent money to M.F. for the support of the children, but they disagreed in their evidence with respect to the amount and frequency of the payments.
(ii) The CAS’s Involvement
[9] At some time around May 2014, M.F. was hospitalized in relation to a mental health issue. At that time, the CAS determined that the children were in need of protection and they were removed from the home and went to live with A.A.’s sister.[^1]
[10] When A.A. learned of the CAS’s involvement, he returned to Toronto. He moved back in with the children and M.F. once she was discharged from the hospital. However, he slept in the basement while M.F. slept in the master bedroom.
(iii) The Relationship After A.A.’s Return
[11] The relationship between A.A. and M.F. continued to be acrimonious after his return. They argued frequently and called each other names. M.F. called A.A. a “loser” and a “couch potato” because he did not have a job. A.A. agreed that he called M.F. a “bitch,” although he denied in cross-examination that he had ever called her a “slut” or a “whore.” M.F. also testified that A.A. frequently accused of her marital infidelity. A.A. agreed that he made such accusations.
[12] M.F. testified that she viewed the relationship as “emotionally and verbally abusive.” She made inquiries about the possibility of somehow compelling A.A. to move out, but learned from the landlord, Toronto Community Housing, that this was not possible as his name was on the lease.
(iv) Discussions About Taking the Children to Somalia
[13] At some point just before M.F. first spoke to the police, A.A. told her that he was thinking of moving to Somalia with the children. M.F. testified that this conversation took place on October 6, 2019 and that A.A. told her that he wanted to move to Somalia with all three children. According to A.A., he and M.F.’s mother had discussed the possibility of him moving to Somalia with the two youngest children, with the oldest child remaining in Canada where supports for her autism were available.
(v) M.F.’s Statement to the Police
[14] On October 8, 2019, M.F., in the company of her aunt, went to the police station and made allegations against A.A. which resulted in his arrest and departure from the home. A.A. had no contact with M.F. after that, although there were family court proceedings which are still ongoing.
[15] It is with respect to the allegations that M.F. made to the police that her account and A.A.’s diverge.
B. M.F.’s Account
(i) The Sexual Assault Allegation
(a) The Assault
[16] M.F. testified that on a day in 2015, she was upstairs in her home when A.A. came up, accused her of marital infidelity and called her a “hooker.” He told her that she had given him a sexually transmitted disease, which he had learned about from his doctor. M.F. asked him to show her papers that his doctor had given him or to allow her to speak to the doctor. She offered to undergo a blood test to prove that she did not have a disease.
[17] A.A. then told M.F. to go into her bedroom because he wanted to do something to her. M.F. told him that she was going to go downstairs because she did not want to have sex with him. She then remembered that A.A. had hidden knives downstairs, which frightened her, so she agreed to go into the bedroom.[^2]
[18] M.F. testified that once they were in the bedroom, she and A.A. had sexual intercourse, although she did not want to. Afterwards, while she was still naked, he put his hand near her vagina. She asked him what he was doing and he replied that he was going to make her feel good. He then put his entire hand into her vagina. She told him to stop. He then removed his hand and pinched her clitoris and tore it with his thumbnail, which caused her to bleed. M.F. testified that A.A. had very sharp nails which left an injury on her clitoris which she described as a “hole.”
(b) M.F.’s Attendance at the Hospital
[19] M.F. got dressed, but the bleeding continued. She described it as “gushing.” She took a shower and tried using pads, but the bleeding did not stop. She began to panic and feel dizzy. She asked A.A. to get her a glass of orange juice, which he did. At some point, M.F. fainted. A.A. then gave her an orange or a tangerine, which helped her. However, she decided to go to the hospital and asked A.A. to drive her there.
[20] According to M.F., at her request A.A. dropped her off when they were halfway to the hospital and she walked the rest of the way. She testified that she did this to protect him and her children. She fainted once while walking to the hospital and again when she arrived there.
[21] M.F. testified that when she arrived at the hospital, she was examined by a doctor. She told him that that she had cut herself while washing because she did not want A.A. to get into trouble. When the hospital staff took blood from her, she asked them to check her blood for a sexually transmitted disease. According to M.F., the woman who took the blood confirmed that she did not have a disease. She was provided with painkillers but received no other treatment as the bleeding had stopped by then. A.A. came to pick her up and she went home.
(c) The Hospital Records
[22] According to M.F., she did not report the assault to the police at the time because she did not want A.A. to get into trouble and did not want her family or her community to know what had happened. At that point, she still wanted to make their marriage work.
[23] When M.F. did report the assault to the police in 2019, she consented to the police obtaining her medical records from her hospital visit. According to an agreed statement of fact filed at trial, the records indicate that M.F. attended the hospital on April 25, 2015 where she presented with vaginal bleeding and mild lower abdominal pain. There was blood staining of parts of her slacks. She was seen by a doctor and received a diagnosis of dysfunctional uterine bleed. The hospital records make no mention of an injury to her clitoris and do not indicate that there were blood tests for any sexually transmitted diseases.
(ii) The Threatening Allegation
[24] M.F. testified that on October 5, 2019, A.A. accused her of cheating on him. He claimed that he had a video proving this which he would show to her mother and her aunt. M.F. asked to see the video and when A.A. refused to show it to her, she accused him of lying about it. A.A. then said something like, “If you keep doing this, I will do something to you that you will regret.” M.F. believed that he was alluding to a knife hidden in the basement and was threatening to use it to harm her. She believed that he might act on the threat.
C. A.A.’s Account
(i) The Sexual Assault Allegation
[25] A.A. denied ever injuring M.F.’s clitoris or assaulting her in any way. While he agreed that he had accused of her infidelity, he never accused her of having a sexually transmitted disease or giving one to him.
[26] During his examination-in-chief, A.A. was asked whether he had ever driven M.F. to the hospital in the summer of 2015. He replied that he drove her to the hospital every time she had an appointment with her psychiatrist and sometimes attended the appointments with her. In cross-examination, it was suggested to A.A. that he had taken M.F. to the hospital on April 25, 2015. He replied that he did not remember the exact date, but he did take her to the hospital at her request because she told him that she was bleeding. He dropped her off in the emergency department, parked the car, and then went into the hospital to wait for her. After M.F. saw a doctor, she told him everything was okay and he took her home. A.A. testified that he did not see any blood on M.F. but did see blood in the bathtub after returning from the hospital.
(ii) The Threatening Allegation
[27] A.A. acknowledged having accused M.F. of infidelity but denied ever having threatened her.
II. ANALYSIS
A. The Burden of Proof
[28] The determination of this case turns entirely on an assessment of the credibility of the witnesses. Neither witness’s testimony was confirmed by any independent evidence. The correct approach to take in cases like this has been expressed in various ways. One well-known articulation is that set out in R. v. W.(D.)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 28. The trier of fact should first determine whether he or she believes the accused’s version of events when considered in the context of the evidence as a whole. If so, the accused is entitled to an acquittal. If not, the trier of fact should consider whether the accused's version of events, although not believed, raises a reasonable doubt. If so, he is again entitled to an acquittal. If not, the trier of fact must consider whether the remaining evidence proves the accused’s guilt beyond a reasonable doubt. Then, and only then, can there be a conviction.
[29] The W.(D.) approach has been the subject of some criticism: R. v. Ryon, 2019 ABCA 36, 84 Alta. L.R. (6th) 1, at paras. 20-54; R. v. Achuil, 2019 ABCA 299, 92 Alta L.R. (6th) 270, at paras. 17-18. Clearly, the approach in W.(D.) is not intended to be a “magic incantation” that must be followed word-for-word: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. Nor must the steps set out in W.(D.) necessarily be performed in any specific order: R. v. J.M., 2018 ONSC 344, at paras. 4-20. Whatever approach is taken, the important point to keep in mind is that the burden of proof is always on the Crown and a trier of fact has three options with respect to exculpatory evidence: he or she can reject it, accept it, or be unsure whether the evidence is true or false: R. v. L.K, 2020 ONCA 262, at paras.18-19.
B. Assessment of M.F.’s Evidence
(i) M.F.’s Medical Condition
[30] There was some dispute in the evidence with respect to the nature of M.F.’s mental health issues. She testified that she had depression. A.A. testified that it was his understanding that she suffered from schizophrenia and that he had learned this directly from her psychiatrist. When M.F. was asked whether she had schizophrenia, she responded that she could not remember.
[31] In my view, nothing turns on whether M.F. had schizophrenia. Counsel for A.A. requested and was granted leave to cross-examine her on this issue for the narrow purpose of eliciting evidence to support A.A.’s testimony, which she anticipated would be that he kept away from M.F. because he did not have a proper understanding of the nature of her illness and feared her. Ultimately, A.A. did not give such evidence.
[32] The fact that M.F. suffered from some sort of mental illness is part of the narrative in this case as it is the context in which the CAS became involved, which is relevant to later family law proceedings and the defence’s submission that M.F. had a motive to fabricate her allegations. That is the only issue to which her mental health is relevant. It is of no relevance to her credibility, nor did counsel suggest that it was.
(ii) Observations About M.F.’s Testimony
[33] During her testimony, M.F. described herself as a “slow learner” and advised the court that she had difficulty reading and writing. It was apparent to me that she had difficulty understanding many of the questions asked of her by counsel. She seemed to have particular difficulty in distinguishing between questions about what had happened from questions about what she had told the police had happened. I have taken this into account in assessing her evidence. My overall impression was that she was doing her best to understand and answer the questions she was asked.
(iii) Alleged Motives to Fabricate
[34] Counsel for A.A. submits that M.F. had two significant motives to fabricate allegations against A.A.: (1) she wanted him out of the house; and (2) she did not want him to take the children to Somalia or get custody of them.
[35] With respect to the first alleged motive, M.F. agreed that it was her understanding that because A.A. was on the lease, she could not make him leave the house, but acknowledged that her aunt had told her that showing the landlord a police report would allow her to have him evicted. There is no issue that the relationship between A.A. and M.F. was acrimonious and she admits that she wanted him out of the house. While this could be seen as a motive to fabricate, relying on the police report to have A.A. evicted is also consistent with A.A.’s account. If he did what she alleges, it is hardly surprising that she would want him to leave and take steps to ensure that he did.
[36] With respect to the second alleged motive, there was evidence that after A.A. was charged, M.F. took steps to prevent him from having contact with the children. She told the staff at the children’s school to call the police if A.A. tried to pick them up, notwithstanding that there was never any allegation that A.A. had threatened or harmed the children. However, A.A. acknowledged that he had contemplated moving to Somalia with two of the children. I have no doubt that the prospect of this was greatly upsetting to A.A. and explains why she may have taken steps to prevent this from occurring.
[37] While M.F. arguably had a motive to fabricate, her actions are equally consistent with her having been the victim of the offences she alleged took place. In all the circumstances of this case, I am of the view that this is not a factor that has any bearing on M.F.’s credibility.
(iv) Alleged Inconsistencies
[38] Counsel for A.A. submits that there are significant inconsistencies in M.F.’s evidence. Many of the inconsistencies that counsel points out are, in my view, not significant. For example, M.F. testified that she fainted on the way to hospital but did not say this in her statement to the police, although she did say that she fainted at the hospital. In my view, the fact that she could not recall with precision the number of times she fainted or where she did so is of no consequence.
(v) The Family Court Document
[39] After A.A.’s arrest, M.F. filed a Form 8 application in the Ontario Court of Justice family court seeking support for the children, custody of them and a restraining order. The application was prepared by M.F.’s lawyer, although M.F. testified that she reviewed it with the assistance of her aunt and that her signature on it signified that she believed the contents of the form to be accurate.
[40] Paragraph 11 of the Form 8 states that A.A. was abusive and aggressive and that “… he would break things in the home when he was angry, at time in the presence of the children.” M.F. testified that apart from sometimes yelling at the children, he was never aggressive or violent when they were present.
[41] Paragraph 18 of the Form 8 states, “I have not had any contact with the Respondent since he was charged on or around October 8, 2019.” However, Paragraph 20 states:
I am scared of the Respondent’s reaction as a result of the criminal charges and to this application. The Respondent continued with his violent and abusive behaviour despite being criminally charged with assault, which has now resulted in additional charges. [Emphasis added].
M.F. confirmed in her testimony that she did not have any contact with A.A. after he was first charged, that he did not continue with his violent and abusive behaviour, and that she was not aware of him facing any additional charges. Crown counsel confirmed that there were no additional charges.
[42] When M.F. was confronted with these inconsistencies, she maintained that her trial testimony was true and that everything in the Form 8 was also true. Inconsistencies such as this are obviously of some concern and can in some cases be fatal to a witness’s credibility. However, as noted earlier, it was clear that M.F. faced certain challenges and had difficulty understanding some of the questions. It was my impression that she did not appreciate that there was a significant inconsistency between her testimony and the Form 8. Given her inability to read, she relied on her aunt to review the contents of the Form 8 and I am not satisfied that she understood all of the details of it.
[43] The Form 8 was drafted by M.F.’s lawyer, whom M.F. acknowledges relied on her for the information in it. However, there would have been little advantage in lying about A.A. facing additional charges as the assertion was demonstrably false. In the unusual circumstances of this case, I am not prepared to find that the inconsistencies between M.F.’s testimony and the Form 8 were the result of any attempt by her to mislead this court or the family court.[^3]
(vi) The Hospital Records
[44] While M.F. testified that she was bleeding as a result of an injury to her clitoris which she described as a “hole,” the medical records make no mention of any injury and state that the doctor who examined her had concluded that the bleeding had emanated from the uterus. As a matter of common sense, one would expect that an injury to the clitoris or bleeding in that area would have been noted. I am less troubled by the lack of mention of any testing for sexually transmitted diseases, as this may simply be the result of a misunderstanding by M.F.
[45] Unfortunately, M.F. was never confronted with the hospital records or given an opportunity to explain the inconsistency as neither party tendered the records while calling their respective cases. As a result, at the time counsel made their submissions I had no evidence of what was in the records. During her closing arguments, counsel for A.A. submitted that I should draw an adverse inference from the Crown’s failure to tender the records as there had been no explanation for why they had not been introduced into evidence.
[46] Counsel was correct that in some circumstances, an adverse inference can be drawn from a party’s failure to call certain evidence if there is no explanation for the failure: R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at paras. 25-28. However, the party in question should be given an opportunity to explain the failure and “[t]here should be no limitation on this right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for nonproduction”: Jolivet, at para. 26. Based on this, I offered Crown counsel an opportunity to explain the failure to call this evidence, but she declined to do so.
[47] The situation in this case put me, as the trier of fact, in a difficult position. Both counsel had seen the records. The defence was asking me to draw an inference that the hospital records would not confirm M.F.’s evidence while the Crown was asking that I not do so. Both counsel knew what the truth was with respect to the contents of the records, but wanted me to figure this out without access to the evidence. I expressed these concerns to counsel during closing arguments. After considering their positions, they formulated an agreed statement of fact with respect to the contents of the hospital records and agreed to re-open the trial so that it could be put into evidence.
[48] To be clear, I am not faulting either counsel. Crown counsel likely did not tender the records because they did not support the Crown’s theory, but had properly disclosed them to the defence. Defence counsel did not confront M.F. with the records and ask her to explain the inconsistency, likely because of the adage that a cross-examiner should never ask a question to which he or she does not know the answer. The result of all this, however, is the M.F. did not have an opportunity to explain the inconsistency.
(vii) Conclusion Respecting M.F.’s Evidence
[49] My overall impression of M.F. is that she was a credible witness who was doing her best to tell the truth, although I must keep in mind that demeanour is an unreliable indicator of credibility: R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66. I remain concerned about the inconsistency between M.F.’s evidence and the hospital records. However, given my conclusions with respect to A.A.’s credibility, which are discussed below, it is not necessary for me to come to any firm conclusion with respect to M.F.’s evidence.
C. Assessment of A.A.’s Evidence
(i) Overview
[50] A.A. testified and denied committing either offence charged in the indictment. He testified in a straightforward manner and was responsive to the questions asked of him. He was willing to admit facts that did not put him in a good light, such as the fact that he called M.F. names and accused her of infidelity. As with A.A., there is nothing in his demeanour to suggest that he was not being truthful, although as noted this is not a reliable indicator of truthfulness.
[51] The Crown submits that I should reject A.A.’s evidence and that it ought not to leave with me with a reasonable doubt based on what counsel submits are significant flaws in his testimony. I will consider each of these in turn.
(ii) A.A.’s Reasons for Moving Back Into the Home
(a) The Evidence
[52] The Crown submits that there is an inconsistency between A.A.’s evidence in-chief that he moved back into the home after returning from Alberta only to make sure that the children were taken care of and his evidence in cross-examination that he and M.F. had sexual relations during this period and that he was upset because of his belief that she had been unfaithful. There are two reasons why I do not accept this submission.
[53] First, the Crown’s characterization of A.A.’s evidence in-chief is not completely accurate. While he testified that he moved back into the home primarily to make sure that the children were cared for, he also said that he had spoken to his mother, who had told him to forgive A.A. because she was sick and needed his help. He accepted this advice and decided that he would try to “make it work” with M.F. so that his children could grow up with a mother and a father. When he moved back in, he slept in the basement because he believed that both he and M.F. “needed space.” I see nothing inconsistent between this evidence and the evidence he gave in cross-examination.
(b) Section 276(1) of the Criminal Code
[54] The second reason I do not accept the Crown’s submission is that in my view, the evidence respecting sexual activity between A.A. and M.F. should not have been adduced absent a voir dire to determine its admissibility. I base this conclusion on what the Supreme Court of Canada said in R. v. Barton, 2019 SCC 33, at para. 80:
… [Section] s. 276(1), which confirms the irrelevance of the “twin myths”, is categorical in nature and applies irrespective of which party has led the prior sexual activity evidence. …. [W]hile it is true that this provision applies only in respect of “evidence ... adduced by or on behalf of the accused”, the common law principles articulated in Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577] speak to the general admissibility of prior sexual activity evidence. Given that the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence, trial judges should follow this Court’s guidance in Seaboyer to determine the admissibility of Crown-led prior sexual activity evidence in a voir dire (see pp. 633-36).
See also R. v. Goldfinch, 2019 SCC 28, at paras. 75, 142.
[55] There was no voir dire in this case. The issue arose in cross-examination in the following way:
Q. In your mind, I guess your romantic involvement was at an end, it that correct?
A. No, like, what do you mean, like romantic ended? Sorry, can you specify that for me?
Q. Sure. So, what I’m suggesting to you is that when you moved back into the house with M.F. … and you moved into the basement …
A. Okay.
Q. … that you were no longer going to have sexual relations with her.
A.A. responded that he and M.F. did have sexual relations after he moved back in and described some details of how sexual activity between them was initiated and by whom. Crown counsel then began to question A.A. with respect to those details, which prompted him to provide further details. At this point, I interjected and raised the issue of whether such evidence was permitted by Barton, whereupon Crown counsel moved to another area.
[56] I am not suggesting that Crown counsel intended to do anything improper. She may have anticipated that A.A. would agree with her suggestion that there were no sexual relations between him and M.F. However, once he responded in the way that he did, no further questions should have been asked absent a voir dire: R. v. Boyle, 2019 ONCJ 634, at para. 41.
[57] Nor am I suggesting that the evidence prejudiced A.A. in any way. My concern here is not with his fair trial rights but, rather, M.F.’s “dignity, equality and privacy rights”: Barton, at para. 68.
(iii) Attendance at the Hospital
[58] The Crown also submits that there is an inconsistency in A.A.’s evidence with respect to whether he ever brought M.F. to the hospital because she was bleeding. A.A. was asked in-chief whether he had damaged M.F’s clitoris with his thumbnail, which he denied. He was then asked whether anything “even close” ever happened, which he also denied. Later during his examination-in-chief, A.A. was asked whether he had ever driven M.F. to the hospital in the summer of 2015. He replied that he had taken her there more than once for her psychiatrist appointments.
[59] In cross-examination, it was suggested to A.A. that he had put his hand into M.F.’s vagina to see if she had a disease and that he had injured her clitoris. He replied that this was not true. It was then suggested to him that on the same day, he drove her to the hospital. He replied that he did drive her to the hospital when she told him that she was bleeding and he was concerned that she had had a miscarriage. The Crown suggested to A.A. that this had occurred on April 25, 2015, but he could not recall if this was the date.
[60] Crown counsel submits that A.A.’s failure to mention the hospital visit during his examination-in-chief is a significant inconsistency. She submits that he should have mentioned this when he was asked whether anything “even close” to M.F.’s allegation of him injuring her had occurred. I do not agree. A.A. may well have taken anything “even close” to be a reference to the assaultive behaviour alleged by M.F. and not her being taken to the hospital.
[61] It is true that when A.A. was asked in-chief whether he took M.F. to the hospital, he responded that he used to drive her to her psychiatrist appointments and did not mention the incident where she attended the hospital because of bleeding. However, A.A. was specifically asked in-chief whether he had ever driven M.F. to the hospital in the summer of 2015, M.F. attended the hospital because of bleeding in April 2015.
[62] In my view, A.A.’s evidence respecting the hospital visit did not have any inconsistencies that would warrant rejecting his evidence, let alone warrant a conclusion that it does not raise a reasonable doubt.
(iv) Name Calling
[63] The third reason the Crown submits that A.A.’s evidence should be rejected relates to A.A.’s evidence about calling M.F. names. A.A. admitted that he had called M.F. a “bitch” but denied ever calling her a “slut” or a “whore.” The Crown submits that given A.A.’s suspicions that M.F. was being unfaithful, he must have called her by these names and his denials in this regard are not credible. I am not persuaded by this submission. While using those particular epithets would have been consistent with A.A.’s suspicions of marital infidelity, this does not mean that he must have used them.
(v) Conclusion Respecting A.A.’s Evidence
[64] Having reviewed A.A.’s evidence carefully, I find that I have no reason to reject it, much less conclude that it is incapable of leaving me with a reasonable doubt.
D. Counts in the Indictment
(i) Count 1 – Sexual Assault
[65] As noted earlier, M.F.’s evidence, if believed, clearly makes out a sexual assault while A.A.’s evidence, if believed, establishes that he is not guilty of that offence. I am unable to determine which version of events is true. The Crown has therefore failed to prove A.A.’s guilt on this charge beyond a reasonable doubt and he must therefore be found not guilty.
(ii) Count 2 – Threatening Bodily Harm
[66] As with Count 1, I am unable to determine who is telling the truth with respect to this count.
[67] Even if I were to accept M.F.’s evidence on this issue, in my view no threat to cause bodily harm has been made out. As noted in R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at para. 13, “the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed.” In this case, A.A. allegedly told M.F. that if she continued to be unfaithful, he would “do something to you that you will regret.” In my view, this statement is too vague to constitute a threat. While it could be a reference to causing bodily harm of some sort, it could also have been a reference to taking the children to Somalia, which M.F. testified A.A. was threatening to do at around this time.
[68] As I am not satisfied beyond a reasonable doubt that A.A. uttered the words that are said to constitute a threat, nor am I satisfied that those words, if uttered, were a threat, A.A. is entitled to an acquittal on this count.
III. DISPOSITION
[69] A.A. is found not guilty on Count 1 and Count 2.
Justice P.A. Schreck
Released: April 29, 2021
COURT FILE NO.: CR-20-40000138
DATE: 20210429
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A.A.
REASONS FOR JUDGMENT
P.A. Schreck J.
Released: April 29, 2021
[^1]: The CAS records were the subject of a pre-trial application made pursuant to s. 278.3 of the Criminal Code. The application was heard by Copeland J., who ordered some but not all of the records to be produced to the defence: R. v. A.A., 2021 ONSC 2369. The parties came to an agreement with respect to which portions of the records were admissible pursuant to s. 278.92(2)(b).
[^2]: A.A. agreed that he had hidden the knives in the house but maintained that he had done so out of a concern that M.F. may harm herself.
[^3]: Regardless of the reason for it, it is obviously troubling that the Form 8, a court document, contains assertions that are false. Counsel have undertaken to contact counsel involved in the family proceedings to bring this to their attention.