Court File and Parties

Court File No.: CR-6/21 Date: 2022-03-29 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – N.G.

Counsel: Mr. Harutyun Apel, for the Crown Mr. Alan D. Gold and Ms. Ellen C. Williams, for N.G.

Heard: February 28, March 1, 2, 3, 7 and 8, 2022

Reasons for Judgment

Conlan J.

I. The Charges

[1] N.G. is charged with two serious criminal offences – aggravated assault (section 268 of the Criminal Code) and forcible confinement (subsection 279(2) of the Criminal Code).

[2] It is alleged that, at his house, in the early morning hours on New Year’s Day 2020, N.G. intentionally bit off the nose of his female partner, A.D., resulting in a gruesome injury to her face, and that he blocked her exit from the residence as she tried to flee for help.

II. The Trial

[3] N.G. was tried by this Court, without a jury, via Zoom, over six days in March 2022. Identity, date, and jurisdiction were all admitted by the defence. Further, the injury to A.D. and that it constitutes a wound, maiming, and/or disfigurement, within the meaning of section 268 of the Criminal Code, were not contested by the defence.

III. The Issues

[4] There are only two issues to be decided by this Court:

a) did the accused intentionally bite off his partner’s nose; and

b) did the accused actually confine A.D.?

[5] In other words, mens rea is the focus on the aggravated assault charge, and the actus reus itself is the dispute on the forcible confinement allegation.

IV. Our Criminal Justice System in Canada

[6] In Canada, we do not decide criminal trials by comparing versions of events and picking one. We also do not decide criminal trials on the basis of what is more likely to be true.

[7] Accused persons, including N.G., are presumed to be innocent of what they are charged with. They have no burden to prove or to establish or to adduce evidence in support of anything. The burden of proof rests exclusively on the shoulders of the prosecution.

[8] What is that burden? It is to meet a standard significantly higher than proof of likely or probable guilt. It is to prove the guilt of the accused beyond a reasonable doubt. Not to a degree of absolute certainty, but to a degree of sureness. The trier of fact must be sure of the guilt of the accused before finding so.

[9] What if, as here, the accused testifies and provides exculpatory evidence? If that evidence is accepted, then the accused shall be acquitted. If that evidence is not really believed but still results in the decision-maker being left with a reasonable doubt, then the accused shall equally be acquitted. If that evidence is rejected to a degree that it, whether alone or in conjunction with other evidence at trial, does not leave the trier of fact with a reasonable doubt, then a finding of guilt is still not the inevitable result. The accused must then still be acquitted unless, on the basis of the evidence at trial that is accepted, the decision-maker is convinced beyond a reasonable doubt of the guilt of the accused.

[10] I say most respectfully, lawyers and decision-makers sometimes recite this “formula” in a robotic way, losing sight of its true purpose. The point is that a criminal trial is not over even if the accused is found to be a lying miscreant, to adopt strong language. It could be that, despite a finding that the accused’s evidence is completely incredible and/or unreliable, the rest of the evidence at trial does not rise to the level of proof beyond a reasonable doubt; in that instance an acquittal is mandatory.

V. What Happened on New Year’s Day?

[11] According to the alleged victim, what happened was a vicious assault of her in the bathroom, by an angry N.G., after they attended at a bar in downtown Toronto. They were arguing in the bathroom. She threatened to go home. He put his hands down her throat to stop her from breathing and from screaming. She bit down on his hand(s). He looked at her. He then bit off her nose. She was gushing blood and afraid for her life. She ran to escape the house, but he blocked her at the front door. She eventually pushed past him and got out.

[12] Officer Garcia-Yepes, who responded to the scene, encountered N.G. in the backyard. He was trying to pull himself up on the wooden fence. He eventually complied with police direction to exit the house from the front.

[13] Officer Froom, who also responded to the scene, observed a bloody injury to the area of the base of the accused’s thumb. N.G. told Froom that A.D. had pulled a knife, and she had stabbed him on the hand, and he then bit her on the nose and tried to get the knife away.

[14] According to the accused, there was indeed an argument and violence at the house, after the bar. It culminated in the two of them being in the bathroom. A.D. tried to strike him, again. He yelled something out. That startled her, and she crouched down in the corner of the bathroom. He squatted down next to her. He was telling her it’s okay and rubbing her back. He went to kiss her face. His eyes were closed, and he tried to suck on her upper lip, as that was something that he had done before. He tasted make-up, a “chemically” taste. She turned over her left shoulder and struck him to his lower jaw with her right fist, upper-cut style. There was a lot of blood. He was in shock. He was “zoned-out”. He was just staring at her. Her nose had been bitten off. He went to the kitchen to fetch something that could help like ice from the freezer, but she ran out of the house. He did not try to block her exit in any way.

[15] N.G.’s evidence was exculpatory on both counts. He denied any criminal intent in that the biting of the nose, according to him, was accidental/inadvertent/unintentional. He further denied any blocking of A.D. at the front doorway.

VI. This Court’s Assessment of the Evidence

[16] I do not believe the evidence of the accused. I have concluded that his evidence is not trustworthy.

[17] First, he did not tell the truth to Froom, and that concerns the Court. We know that A.D. never pulled a knife on him or stabbed him. In fact, he cut his own hand with a knife from the kitchen, and he did that to deceive the police. That concerns the Court as well.

[18] Second, his reluctance, refusal actually, to admit to the Crown in cross-examination that he was angry when they got back home, and that is why he threw the car keys onto the grass, is silly. At one point he even intimated that he threw the keys to get them closer to the front door, before entry, as if he planned to transport the car keys from the car to inside the home in stages. That is, frankly, unbelievable evidence.

[19] Finally, his evidence that he did not edit the recording of A.D.’s telephone call to him is not worthy of belief. That he inadvertently and coincidentally happened to pause the recording, or that something malfunctioned and the recording paused itself, at moments in the recording where there are things said that do not portray N.G. in a positive light is something that this Court just plainly does not accept.

[20] I think that what N.G. describes as having occurred in the bathroom is plausible, and on that point I respectfully disagree with the Crown’s submission in closing that it “defies all logic and common sense”, however, I do not accept that evidence from the accused, and I am not left in a reasonable doubt by it, because I do not consider N.G. to be a credible witness.

[21] I also have serious reservations about the evidence of A.D. Her evidence is equally untrustworthy. It suffers from both credibility and reliability flaws, and significant ones.

[22] First, she agreed with Mr. Gold in cross-examination at trial that she was inconsistent in her two statements to the police on the issue of her alcohol consumption prior to the incident having occurred in the bathroom. She agreed further that, because she was aware of that contradiction, she told the Crown in direct examination at trial that she could not remember how much she drank. Why she would not have been more honest and direct with the police in simply admitting that, right away, makes me uncomfortable.

[23] Second, she was, prior to the trial, and closer to the time of the incident, much more uncertain about what happened in the bathroom. That makes me wonder why she is so much clearer about it now, long afterwards. She told the police, who asked a very simple question, “do you know what happened to your nose”, “I genuinely didn’t know what happened”; “I was drunk at that point”, she said (trial Exhibit 10). Those were her own words. She was drunk, and she did not know what happened.

[24] Third, it is very clear from trial Exhibit 12, the video clip from the parking garage of the accused and A.D. just after they had left the bar in downtown Toronto, that she was extremely drunk. Without him steadying her, she could barely walk or stand straight. That gross level of intoxication makes me question the reliability of her memory of what happened in the bathroom not long afterwards.

[25] Fourth, there is no question that A.D. lied at the preliminary inquiry. She lied when she told Mr. Gold in cross-examination that she was sure that she did not text or contact the accused in any way after the incident. In fact, at the preliminary inquiry, during the lunch break that occurred in the course of cross-examination, A.D. asked the Crown what she should do if she “lied” about something in her evidence. Of course, a deliberate lie under oath or affirmation is a very serious matter. And there is no question that A.D. knows the difference between a lie and a mistake, and that what happened at the preliminary inquiry was a lie, because she told Mr. Gold in cross-examination at trial that she understands that a lie is an intentional falsehood.

[26] Remarkably, despite what happened at the preliminary inquiry, at trial, in direct examination by the Crown, the complainant again failed or refused to state the whole truth. She admitted only that she had texted the accused after the incident. In fact, she also telephoned him and spoke for a very, very long time, even though he did not talk back to her. The full recorded call was played in Court – trial Exhibit 13A, with all of its lengthy and incessant ramblings on the part of A.D. She was highly embarrassed by the call, and that was clear to me as I watched her on the screen as the recording was played.

[27] How A.D. could not remember that very lengthy telephone call when she gave her evidence in direct examination at trial, I do not know, especially given what happened at the preliminary inquiry. I am left with the inescapable conclusion that she deliberately omitted any mention of the call when she was asked by the Crown in direct examination at trial about any contact that she had with the accused post-incident. That is concerning to this Court.

[28] A.D. also admitted in cross-examination at trial that, when she made that telephone call, she knew that the accused was on bail with a condition that he not speak with her. A person who does that, in my opinion, is not showing proper respect for the administration of justice. Again, I am concerned by that.

[29] Finally, A.D. has more at stake here than the average alleged victim. She has an outstanding lawsuit against the accused and his father, for a massive amount of money, and it goes without saying that she has an interest in providing evidence to this Court that does not impair the chances of success of that civil action.

[30] In summary, this Court cannot trust the evidence of A.D. about what happened in the bathroom. She is not a credible or reliable witness.

[31] The other evidence at trial that I do accept, such as that of the two police officers, Froom and Garcia-Yepes, makes me quite suspicious of N.G. He lied bald-faced to Froom about the alleged stabbing with the knife. He appeared to be trying to escape out of the backyard when Garcia-Yepes saw him on the fence.

[32] But the totality of the evidence that I do accept does not rise to the level of proof beyond a reasonable doubt. I am definitely not sure that N.G. intentionally bit the nose or face of his partner. I am definitely not sure that he attempted in any way to block her exit from the house.

[33] One of the headings herein, above, asked “what happened on New Year’s Day”. Apart from this lady having sustained a very serious injury to her face, the straight answer is that I do not know.

[34] This Court feels terrible about what happened. I know that A.D. will be hurt by some of my comments about her evidence, and I take no pleasure in that. A.D. suffered an awful injury to her face. Whatever happened that morning, she did nothing to deserve that. This is not an exercise in sympathy, however. It is a criminal trial, with a relatively high standard of proof that is commensurate with the presumption of innocence.

[35] The presumption of innocence is not eroded simply because a judge or jury feels badly for a terribly injured person. It is not eroded simply because the accused’s evidence is rejected. It remains throughout the trial, and throughout the decision-making process, and in this case throughout all three stages of the “W.(D.) test”.

[36] The Crown has not proven the case beyond a reasonable doubt.

VII. Conclusion

[37] N.G. must be acquitted of both charges, and thus the verdict is not guilty on each of the two counts on the Indictment.

[38] I would like to thank Mr. Apel, Mr. Gold, and Ms. Williams for their professionalism and for all of their assistance throughout the trial.

C.J. Conlan Electronic signature of Conlan J. Released: March 29, 2022