COURT FILE NO.: CR-23-70000379 DATE: 20240726
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King Applicant – and – Tristan Ted Cain Respondents
Counsel: Vivian Gallegos, for the Applicant Mitchell Huberman, for the Defendant
HEARD: June 11-13, 2024
REASONS FOR JUDGMENT
NISHIKAWA J.
Overview and Factual Background
[1] The defendant, Tristain Ted Cain, is charged with having committed the following offences against the complainant, Rafia Rasul, with whom he was in an intimate relationship:
- Two counts of assault with a weapon, contrary to s. 267 (a) of the Criminal Code;
- One count of assault causing bodily harm, contrary to s. 267 (b);
- Three counts of assault, contrary to s. 266 of the Criminal Code;
- Pointing a firearm, contrary to s. 87(1) of the Criminal Code; and
- Uttering a threat to cause death, contrary to s. 264.1(1)(a).
[2] Mr. Cain and Ms. Rasul met online and began a relationship in early 2020. They moved in together approximately four months after they met. The Crown alleges that the relationship soon became abusive and that for two years, Ms. Rasul endured physical and emotional abuse without reporting it to the police. The charges arise from six incidents that are alleged to have taken place between September 2020 and March 2022. The Complainant reported the assaults to the police on March 19, 2022, the day after their relationship ended.
[3] At the time of the alleged incidents, the Defendant was bound by two probation orders, both from April 18, 2019 to April 17, 2022. The first probation order required him to keep the peace and be of good behaviour and to abstain from owning, possessing or carrying any weapon. The second probation order required him to keep the peace and be of good behaviour and to not possess any weapon as defined by the Criminal Code. The remaining counts on the indictment are for breaches of those conditions.
Issues
[4] This case raises the following issues:
(a) Should the similar fact evidence be admitted? (b) Has the Crown proven beyond a reasonable doubt that the Defendant committed the alleged offences?
Analysis
Preliminary Matters
Prior Discreditable Conduct Application
[5] At the outset of the trial, for reasons given orally, I granted the Crown’s application to adduce evidence of the Defendant’s prior discreditable conduct on the basis that the probative value of the evidence outweighed its prejudicial effect. Specifically, the Crown was permitted to adduce evidence of the abusive nature of the parties’ relationship, as it related to the context in which the alleged assaults took place and the alleged delay in reporting the abuse. The Crown was not, however, permitted to adduce evidence that the Defendant abused the Complainant every other week, on the basis that such evidence would be unduly prejudicial.
Should the Similar Fact Evidence Be Admitted?
The Applicable Principles
[6] At trial, the Crown brought an application for the admission of similar fact evidence across the counts on the indictment.
[7] The framework for analyzing whether similar fact evidence should be admitted was set out by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. Similar fact evidence, or evidence of general propensity or disposition, is presumptively inadmissible because evidence of discreditable conduct of the defendant which relates to an event other than the particular count at issue carries the potential for prejudice, distraction and consumption of time: Handy, at para. 37.
[8] Similar fact evidence may be admitted, however, if the prosecution demonstrates on a balance of probabilities that in the context of the case, the evidence is relevant and material, and its probative value in relation to a particular issue outweighs its potential prejudicial effect: Handy, at para. 55.
[9] In R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at paras. 38-44, the Court of Appeal elaborated on the assessment of probative value of the evidence, as involving four inquiries, as follows:
(a) Does the evidence relate to a specific issue, other than that the accused is a person of bad character? (b) Is the evidence tainted by collusion, which undermines the improbability of coincidence? (c) What are the similarities and differences between the evidence that forms the basis of the charge and the proposed similar fact evidence? (d) How strong is the evidence that the similar acts occurred?
[10] The probative value of similar fact evidence is assessed by considering the following factors, set out in Handy, at para. 82, that relate to the connectedness between the similar fact evidence and the circumstances of the charge:
(i) The extent to which the other acts are similar in detail to the offence charged; (ii) The proximity in time of the similar acts and the offence charged; (iii) The number of occurrences of the similar acts; (iv) The circumstances surrounding or the context in which the similar acts occurred; (v) Any distinctive feature or features unifying the incidents or intervening acts; and (vi) Any other factor which would support or rebut the underlying unity of the similar acts.
[11] The prejudice to be weighed includes: (i) moral prejudice, that the accused is more likely to have committed the act in issue because they have committed morally repugnant acts in the past; and (ii) reasoning prejudice, or the distraction of the trier of fact from the offence charged: Handy, at para. 139. Many of the concerns about prejudice are attenuated in a judge-alone trial, and where the application to admit similar fact evidence relates to the cross-count use of evidence already elicited at trial: R. v. Tsigirlash, 2019 ONCA 650, at para. 38.
Application to the Facts
[12] The Crown’s position is that the similar fact evidence is probative of the actus reus and mens rea of the offences and to the Complainant’s credibility, particularly in view of the defence’s position that she had a motive to fabricate the allegations. The Crown submits that any potential moral or reasoning prejudice is limited because the evidence is already admissible on other counts at trial.
[13] The defence submits that the probative value of the similar fact evidence is limited because of the lack of similarity between the various incidents and that, in any event, any probative value is outweighed by the risk of reasoning prejudice, that if the Defendant committed one of the assaults, then he is more likely to have committed the others.
[14] In this case, the charges arise from six separate incidents occurring between the summer of 2020 and March 2022. The incidents are alleged to have taken place in the context of the parties’ relationship. Most are alleged to have occurred during an argument, in the apartment or residence where they lived at the time.
[15] In my view, aside from the relationship context, there is little similarity between the various incidents. As detailed further in these reasons, the assaults are factually distinct. They are not alleged to have been committed in a similar manner. In one incident, the Defendant is alleged to have pointed a firearm at the Complainant while they were at his mother’s house. In another, he is alleged to have suddenly thrown an object at her because she was laughing in the washroom. No argument precipitated that incident. The other allegations involve pushing or slapping. The incidents occurred during the course of the parties’ two-year relationship but are otherwise not proximate in time. Other than the parties’ relationship, there is no distinctive feature or factor unifying the incidents.
[16] While the prejudice to the Defendant of admitting similar fact evidence across counts in the indictment in a judge alone trial is low, the differences between the similar acts are so numerous that I find them of very limited probative value.
[17] Accordingly, the Crown’s application for the admission of similar fact evidence is dismissed.
Assessing the Evidence
The Applicable Principles
[18] Before proceeding with an examination of the evidence, it is useful to set out the principles that are applied by the court in weighing the evidence.
[19] The Defendant is presumed innocent. The Crown bears the burden of proving the elements of the charges beyond a reasonable doubt. The reasonable doubt standard is a high standard. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.
[20] In this case, the Defendant did not testify on the trial of the merits. He was under no obligation to testify, and I take nothing from the fact that he did not. The fact that Mr. Cain did not testify does not change the burden of proof or in any way relieve the Crown of its burden of proof.
[21] The Complainant, Ms. Rasul, was the only witness at trial. In weighing the evidence, I must assess the credibility and reliability of her evidence. This involves a consideration of many factors, in particular, the internal consistency of her testimony and its consistency or rational coherence in the context of the evidence as a whole.
The Credibility and Reliability of the Complainant’s Evidence
[22] In terms of reliability, the Complainant’s testimony was often vague, incomplete and lacking in specifics. When asked for specific details about the incidents, Ms. Rasul frequently answered that she did not remember. On cross-examination, Ms. Rasul admitted that in preparation for trial, she had advised Crown counsel and the officer-in-charge that she did not remember very much about the alleged incidents.
[23] With respect to credibility, Ms. Rasul was forthright in admitting certain negative facts, including that she had been intoxicated or drinking when a couple of the incidents occurred. However, as further detailed in these reasons, she was occasionally defensive and sought to justify her actions, even when it was not particularly consequential.
Did the Complainant Have a Motive to Fabricate?
[24] The defence’s position is that the Complainant had a motive to fabricate the allegations because she was upset that the Defendant cheated on and broke up with her, one day before she reported the alleged assaults to the police. When the relationship ended, the Complainant was left with over $60,000 in debt. The defence alleges that the Complainant fabricated the allegations to get back at the Defendant because she was upset that he broke up with her and left her in financial difficulty.
[25] The defence does not allege that the Complainant’s credibility is negatively impacted by her delay in reporting the alleged assaults. I agree that there may be many reasons why a complainant might delay in reporting abuse in the context of an intimate partner relationship and draw no negative inferences in respect of the Complainant’s credibility on that basis.
[26] I note that the defence bears no onus to demonstrate that the Complainant had a motive to fabricate. Relatedly, there is also no burden on the defence to disprove that the Complainant had no motive to fabricate. The presence or absence of a motive to fabricate is only one factor to be considered in assessing credibility”: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 121. The burden remains on the Crown to prove the essential elements of the charges beyond a reasonable doubt.
[27] The Complainant testified that two days before she went to the police, Mr. Cain was out all night and did not come home. When he returned home the next day, he told Ms. Rasul that he had cheated on her and that their relationship was over. Ms. Rasul testified that she was confused and did not know if it was real because it was so “impactful.” She admitted that she felt crushed and heartbroken. She sent Mr. Cain text messages asking him to meet her because she was confused and wanted to understand what happened, however, he refused.
[28] After the Defendant refused to see Ms. Rasul, on the evening of March 18, 2022, the Complainant sent him the following text messages:
“You’re gonna pay for what you have done. I promise you.” [Complainant] “?” [Defendant] “You’re almost done probation right? That’s funny.” [Complainant]
[29] When asked on cross-examination whether she wanted to make Mr. Cain pay, Ms. Rasul admitted that she felt that way “at the moment” but that “it went away really fast.” The Complainant testified that her desire for revenge went away within a few hours. She acknowledged that her text to the Defendant about making him pay was a threat to mess with his probation but explained that she had no intention of going to the police. She testified that she only said what she did “for the sake of saying it”, but did not mean it. Ms. Rasul explained that if she had intended to get Mr. Cain into legal trouble, she would have gone to the police right away. She testified that she only went to the police nine hours later because she had “support” and that others around her told her that what was happening to her was not right. Ms. Rasul testified that “people around [her]” convinced her to go the police sooner rather than later, and that is why she went to the police station at approximately 3 a.m. the next morning.
[30] I am not convinced by the Complainant’s statement that her desire for revenge went away within a few hours. Ms. Rasul did not explain why or how that desire went away and there is no basis in the evidence to find that it did. Despite Ms. Rasul sending Mr. Cain text messages that she felt “sick” and needed to see him or their dog, he refused and said that she should be with her family. She did not gain the clarity or understanding that she sought. Based on Ms. Rasul’s testimony, the people around her told her that what happened to her was not right and that she should tell the police. It is difficult to see how this would lessen the desire for revenge that she admitted to feeling hours earlier.
[31] The chain of text messages reflects that Ms. Rasul was extremely upset that the Defendant cheated on her and that he ended their relationship, leaving her in emotional turmoil and financial difficulty. She admitted that Mr. Cain was her first serious partner and that she was keeping her life “on hold” for him. Ms. Rasul testified that they had planned to marry and had even purchased rings. She further testified that they charged everything to her credit cards, leading to over $60,000 in debt, and that Mr. Cain hid her credit cards from her. This was a significant amount to Ms. Rasul, who was a student and worked part-time at Chipotle. She testified that they had also left previous apartments without paying rental arrears and that she thought she might have to declare bankruptcy.
[32] Given the significant impact that the Defendant’s disclosure of his infidelity and breaking-off the relationship had on Ms. Rasul, and the lack of explanation for her change of heart, it is not credible that within a few hours, she no longer wanted revenge.
[33] In addition, Ms. Rasul had previously reacted strongly when she thought Mr. Cain might be cheating on her. On February 1, 2022, the Complainant sent the Defendant over 15 text messages forwarding the photograph of another woman with comments of the following nature:
“Go link up with your girl friend I [don’t] want you no more.” “Go see your white ass friend whore” “Go lick some nasty ass Pusey”
[34] When asked about the messages in cross-examination, Ms. Rasul admitted to becoming upset that Mr. Cain had followed another woman on Instagram but sought to add “context” for her reaction. Ms. Rasul explained that she did not become upset simply when Mr. Cain followed another woman on Instagram but would become upset if the woman was someone with whom he had previously been involved. On cross-examination, Ms. Rasul refused to admit that she was jealous. She would admit only that she felt “deceived” because she believed the Defendant was being disloyal to her.
[35] The February text messages are relevant to the Complainant’s credibility in two respects. First, on the issue of whether she had a motive to fabricate, the intensity of Ms. Rasul’s reaction when she merely believed that Mr. Cain was cheating on her undermines her testimony that despite having found out that he had in fact been unfaithful, her desire for revenge disappeared within hours. Second, Ms. Rasul’s refusal to admit that she was jealous when confronted with the February 2022 text messages raises questions about her credibility because she was unable to be forthright even when it was not particularly consequential to the alleged assaults.
[36] Ms. Rasul denied that when she went to police, she was making good on her threat. She testified that she had told the Defendant in the past that she would go to the police but did not. While Ms. Rasul claims that despite threatening to make Mr. Cain pay, she had no intention of going to the police, the fact is that nine hours after sending those text messages, she in fact did exactly as she had threatened. I do not accept Ms. Rasul’s explanation that had she wanted to get Mr. Cain in trouble with the law, she would have gone to police right away. There is no material difference between going to the police right after threatening to do so by text and going nine hours later. While the unidentified people around her might have encouraged or supported her decision to go to the police, the text messages demonstrate that she had thought of going to police herself. Moreover, the decision to go to the police was ultimately hers.
[37] I further note that Ms. Rasul testified that she had stopped going to her family’s home because Mr. Cain would become suspicious that she was cheating and that, as a result, she had become isolated. Ms. Rasul testified that when Mr. Cain broke up with her, she had nowhere to go. Nonetheless, she attributed her decision to go to the police to “people around her” whom she did not identify. I find her testimony that she was completely isolated inconsistent with the evidence that hours later, she was surrounded by people who encouraged her to report the abuse to the police.
[38] The Crown submits that if the Complainant’s text messages are interpreted as a threat to go to the police, the threat was to disclose the truth about the Defendant’s abuse, and not a threat to fabricate a story of abuse.
[39] While I recognize this as a possibility, the Complainant’s significant animus toward the Defendant, as demonstrated by her threat to interfere with his probation, and the proximity in time between those messages and her reporting of the incidents to the police constitute evidence of a motive to fabricate that impacts my assessment of her credibility. As stated earlier, it is not the Defendant’s burden to prove that the Complainant had a motive to fabricate, rather, the burden is on the Crown to satisfy the court that this is not what happened.
Has the Crown Proven the Alleged Offences Beyond a Reasonable Doubt?
The Applicable Principles
[40] To prove the offence of assault, the Crown must prove beyond a reasonable doubt that the Defendant intentionally applied force to the Complainant, that she did not consent to the force applied, and that he knew that she did not consent.
[41] Assault causing bodily harm is proven by establishing beyond a reasonable doubt the elements of the offence of assault and that the assault caused bodily harm to the Complainant. Bodily harm is defined as any hurt or injury that interferes with a person’s health or comfort and that is more than merely transient or trifling in nature: Criminal Code, s. 2, “bodily harm”.
[42] Assault with a weapon is proven by establishing beyond a reasonable doubt that the Defendant intentionally applied force to the Complainant, that she did not consent, that the Defendant knew that the Complainant did not consent, and that the Defendant carried, used, or threatened to use a weapon.
[43] The offence of threatening death or bodily harm is proven by establishing beyond a reasonable doubt that the Defendant made a threat to cause death or bodily harm to the Complainant and that the Defendant made the threat knowingly. A person makes a threat knowingly when they mean to intimidate or be taken seriously by someone. The Crown does not have to prove, however, that the Defendant meant to carry out the threat.
[44] The offence of pointing a firearm is proven by establishing that the Defendant pointed a firearm at the Complainant and that he had no lawful excuse for pointing the firearm.
Application to the Facts
The September 2020 Incident
[45] The charges for threatening death or bodily harm, assault with a weapon, and pointing a firearm arise from an alleged incident in September 2020.
[46] The Complainant testified that at some point in September 2020, she was upset about something, and that Mr. Cain told her that if she was very upset about things, she should follow him. They walked from their apartment to his mother’s house, which was approximately 10 minutes away from where they were residing at the time. Ms. Rasul testified that at the Defendant’s mother’s house, they went into his former bedroom. Within five minutes of entering the bedroom, Mr. Cain was holding a gun at her head. Ms. Rasul testified that Mr. Cain told her that if she wanted to die, he would pull the trigger.
[47] Ms. Rasul testified that the gun was touching her head but that she did not remember how it felt. She described the firearm as a black long gun, resembling a rifle, approximately 60 centimetres in length. She testified that Mr. Cain had his hand on the trigger and was looking through something on the gun but she could not remember or describe it.
[48] Ms. Rasul testified that Mr. Cain seemed “a little upset” and that when he threatened to pull the trigger, he spoke in an “assertive” tone. She was crying and kept telling him to stop. The Defendant did not stop at first but eventually put the gun down. The Complainant could not recall what the Defendant did with the gun after he put it down.
[49] The Complainant testified that she assumed that the gun was loaded because the Defendant was ready to shoot it at her. On cross-examination, she further testified that Mr. Cain was “doing something before” that led her to believe the gun was loaded, but she could not remember what.
[50] After the incident, the Complainant and the Defendant returned to their apartment. Ms. Rasul could not recall how long they remained at the mother’s house but testified that they did not stay there and did not see the Defendant’s mother that day. Ms. Rasul testified that she and the Defendant did not speak of the incident until approximately a year and a half later, when he apologized, told her that the gun was not loaded and that he would never have shot her.
[51] The Crown agues that the Complainant’s evidence describing the firearm, her clear belief that it was a firearm, the Defendant’s conduct in relation to it, and his threat to shoot while holding it is sufficient foundation to support a finding that the item was a firearm: R. v. Charbonneau, [2004] O.J. No. 1503 (C.A.), at para. 3; R. v. Richards, at para. 4.
[52] In my view, there is insufficient evidence that Mr. Cain pointed a firearm at Ms. Rasul. First, there is insufficient evidence to find that the item was an actual firearm. Ms. Rasul described the alleged firearm and Mr. Cain’s use of it in only the most general terms, such as its size and colour, and that he was looking through something but she did not recall what. On cross-examination, Ms. Rasul admitted that she had no way of knowing if the gun was real or fake because she had no experience with firearms other than what she had seen in movies or on television. I further note that in Richards, there was evidence that the defendant had ready access to firearms. There is no such evidence here.
[53] Second, the Complainant’s account leaves large, unexplained gaps that make it difficult to see how the Defendant came to be pointing a gun at the Complainant’s head. Ms. Rasul testified that they went into the bedroom and that she was facing the opposite wall with her back to the door. Despite being able to see Mr. Cain, Ms. Rasul did not testify to seeing him retrieve the firearm from the closet or from any other location. Ms. Rasul testified that she did not know where the gun came from, although she had seen it in the past. She did not recall either of them saying anything during this time. It was only on cross-examination that Ms. Rasul recalled seeing Mr. Cain do “something” that led her to believe that the gun was loaded. However, she could not recall specifically what he did. It is also somewhat surprising that Ms. Rasul recalled the gun touching her head but did not recall how that felt.
[54] I find Ms. Rasul’s description of the entire incident, including her explanation about why they went to the mother’s house and how they left together shortly after he held a gun to her head, difficult to make sense of and lacking rational coherence.
[55] When she went to the police on March 19, 2022, Ms. Rasul was interviewed twice. There are video recordings of both interviews. On cross-examination, Ms. Rasul was confronted with her initial interview in which she told an officer that she saw firearm in a closet at Mr. Cain’s mother’s home. She did not tell that officer that the Defendant had pointed the gun at her. It was only in her second interview that Ms. Rasul told a different officer that the Defendant had pointed the gun at her. On cross-examination, defence counsel put to Ms. Rasul that she fabricated the allegation about the Defendant pointing a gun at her because the officer who conducted the first interview did not react strongly to her allegation of a gun in the closet. Ms. Rasul denied fabricating the incident and explained that she did not tell the first officer that Mr. Cain had pointed a gun at her because, at that time, she was trying to protect him. Ms. Rasul added that at some point during the second interview, she asked whether Mr. Cain would view the recording and asked if she could take the statement back.
[56] In my view, the Complainant’s explanation that during the first interview, she was still protecting the Defendant is not credible. Ms. Rasul had gone to the police for the specific purpose of reporting the Defendant’s alleged abuse of her. In the first statement, she detailed four incidents of abuse and the existence of a firearm, which increased the seriousness of her allegations. She specifically mentioned that Mr. Cain was on probation. Had she been protecting the Defendant, it is unlikely that she would have mentioned the firearm, which was at his mother’s house.
[57] Ms. Rasul further explained that she did not provide complete details during the first interview because she did not understand that it was being recorded and had been told that she would be speaking to another officer. On the video recording of the first interview, Ms. Rasul advised the officer of a further detail. The officer then advised Ms. Rasul that he was writing a report and that she would have a further detailed interview on video regarding the four allegations that she had made. I accept that Ms. Rasul understood that she would have a lengthier interview after the initial interview. I draw no negative inference solely from the fact that Ms. Rasul gave a less detailed statement during the first interview. However, by the time the officer told her that she would have a further interview, approximately 20 minutes after the interview had begun, she had already made allegations regarding four incidents. Nothing precluded her from disclosing at the first interview that Mr. Cain had pointed a gun at her. She had ample opportunity to do so.
[58] Nonetheless, the fact that the Complainant failed to tell the first officer that the Defendant had pointed a gun at her does not necessarily mean, on its own, that she fabricated the gun-pointing incident during the second interview. There could be other reasons why she did not mention it during the first interview, including fear of the Defendant. The fact that Ms. Rasul asked whether she could take the statement back reflects that she had mixed feelings about reporting to the police. In the circumstances, I am not prepared to find that Ms. Rasul fabricated the incident to garner a stronger response from the police. In any event, based on my findings in respect of that allegation, I need not make such a finding.
[59] When Ms. Rasul was cross-examined about her first statement to the police, she pointed out that she said only that that was the last time she saw the firearm and not the only time she had seen it. It was then put to Ms. Rasul that she had testified in chief that the last time she saw the firearm was when Mr. Cain pointed it at her head and that he told her afterwards he put it in the closet. Despite the obvious inconsistency about when she last saw the firearm between her testimony in chief and her first interview with police, Ms. Rasul resisted the suggestion that there was an inconsistency. In re-examination, Ms. Rasul corrected her evidence in chief and affirmed that the last time she saw the firearm was in the closet.
[60] It is understandable that Ms. Rasul might not remember when she last saw the firearm or that she might have been mistaken in her testimony in chief about when she last saw it. What raises some concern is Ms. Rasul’s unwillingness to admit on cross-examination that there was an inconsistency between her testimony in chief and the first statement she made to the police. As argued by the defence, Ms. Rasul was reluctant to admit the inconsistency because she understood that this could support the defence’s theory that she fabricated the gun-pointing incident during the second interview.
[61] In the circumstances, I am left with a reasonable doubt as to whether the Defendant pointed a firearm at the Complainant and threatened to pull the trigger. Accordingly, the Crown has failed to prove beyond a reasonable doubt the offences of threatening bodily harm, assault with a weapon and pointing a firearm.
The Spring 2021 Incident
[62] The Complainant testified that sometime between April and June 2021, she and Mr. Cain were having a verbal argument in their apartment, which escalated. Ms. Rasul testified that the Defendant pushed her hard, resulting in her falling on and injuring her left knee.
[63] The Complainant testified that she was standing facing the Defendant and that he pushed her with both hands with significant force, but she could not recall what part of her body his hands came into contact with. She testified that she lost her balance and fell hard on her knee and felt intense pain. Her body then went forward and her hands were on the ground. She did not feel pain anywhere else.
[64] Ms. Rasul testified that after she fell, she could not move very much. She dragged herself into the washroom, telling the Defendant that she could not move. Ms. Rasul testified that she was sitting on the floor of the bathroom when Mr. Cain pulled her out of the washroom by her shirt, while screaming at her, and ripped her shirt off.
[65] Ms. Rasul testified that Mr. Cain left the apartment and that she limped to the bedroom and laid down. Mr. Cain was texting her to apologize, but she did not respond because she was upset. When Mr. Cain returned to the apartment, he tried to apologize but she ignored him.
[66] Ms. Rasul testified that a day or two later, she contacted a walk-in clinic because she could not walk properly. The clinic provided a requisition for an ultrasound and X-ray. A few days later, Ms. Rasul also went to see her family doctor, who noted that her knee was swollen. Ms. Rasul testified that the family doctor advised that she would need physiotherapy and to have the fluid taken out of her knee, but that she did not do that. The Complainant testified that she was in constant pain for months after the incident and that she continues to have pain on and off.
[67] The medical documents adduced in evidence show that the Complainant called a walk-in clinic on May 12, 2021, four days after the injury. The X-ray and ultrasound reports dated May 17, 2021 showed an 8 mm parameniscal cyst on her knee but no fracture or injury to the bone. A follow-up report dated May 20, 2021 states that the Complainant “ambulates well, slight swelling at knee but no ecchymosis[.]” The report further states: “Mild SP, prepatellar bursitis, lateral parameniscal cyst, preexisting[.]” The report recommends ice, rest, considering physiotherapy, and states that the Complainant declined “NSAID”.
[68] Ms. Rasul was cross-examined about her failure to report this alleged assault in the first interview with police. She denied having fabricated the incident after the fact. In my view, the fact that Ms. Rasul neglected to mention this incident to police during the first interview does not necessarily lead to an inference that she fabricated it during the second interview to increase the seriousness of the allegations against Mr. Cain.
[69] Nonetheless, I have difficulty accepting the Complainant’s evidence of the incident. Ms. Rasul testified that she was facing the Defendant when he pushed her from the front with both hands. It is unusual that she then fell forward onto her left knee. If the push caused her to lose her balance, it would be more likely that she would fall backward, as opposed to forward. When this was put to Ms. Rasul on cross-examination, she testified that her body could have twisted, causing her to fall forward. She did not, however, have a clear recollection as to how she came to fall forward onto her left knee.
[70] Ms. Rasul testified that Mr. Cain sent text messages apologizing for the assault, however, those messages were not in evidence.
[71] While the medical documents support that Ms. Rasul sought medical assistance for an injury to her knee, I cannot conclude beyond a reasonable doubt that the injury resulted from Mr. Cain pushing her. In addition, the medical evidence adduced at trial does not demonstrate that the Complainant suffered an injury that was more than merely transient or trifling in nature. While the medical reports were adduced in evidence on consent, there was no evidence to explain whether the cyst was caused by the fall onto her knee. The mention of “pre-existing” on the May 20, 2021 medical report raises some doubt as to whether that was the case. Moreover, despite the Complainant’s description of her pain and inability to walk, the report describes the swelling as “slight” and states that that she “ambulates well[.]”
[72] Based on the foregoing, and my findings in respect of the Complainant’s credibility, I find that the Crown has failed to prove beyond a reasonable doubt the offence of assault causing bodily harm.
The Summer 2021 Incident
[73] The Complainant testified that sometime between June 2021 and August 2021, Mr. Cain assaulted her by throwing a small glass pipe at her, causing a laceration in her forehead that required stitches.
[74] Ms. Rasul testified that she was in the washroom of their apartment looking at her phone and laughing. The washroom had no door because it had been removed. The Defendant was in the living room directly outside the washroom, playing video games. The Complainant testified that Mr. Cain became upset. He picked up a glass pipe that was shaped like an elephant, measuring approximately two inches in length and width, from the coffee table. He then “whipped” it at her head. Ms. Rasul testified that the pipe hit her on the left side of her forehead and shattered her glasses.
[75] The Complainant testified that she was bleeding profusely, and that she tried to wash the blood off in the shower and to get the bleeding to stop with band-aids and paper towels. Ms. Rasul testified that the bleeding would not stop for hours. In the meantime, Mr. Cain had left the apartment. Ms. Rasul testified that she did not go to the hospital that day because she was afraid that Mr. Cain would return and be upset with her.
[76] Ms. Rasul testified that after Mr. Cain left, she kept messaging him to come back home and that she promised him that she would not tell police what happened. She was worried that he would do something to harm himself. When asked why she thought the Defendant would harm himself, Ms. Rasul stated that Mr. Cain had texted her that he would not be coming back and that he had asked a friend to look after her. It is not clear to me why this would lead Ms. Rasul to believe that Mr. Cain would harm himself, as opposed to simply not returning. The text messages were not in evidence.
[77] Ms. Rasul testified that Mr. Cain later told her he was upset because he believed she had been laughing at him. On cross-examination, she testified that she was in fact laughing ironically at herself and how her life had come to that point, with all the abuse.
[78] The Complainant testified that she went to the hospital the next day. She received three stitches across her forehead and the vertical skin was “glued” together. Ms. Rasul testified that the wound was measured at the hospital and that it was 3 centimetres across and 2.5 centimetres down. She pointed to the area between her nose and left eyebrow to note that there is no hair growing from that part of her eyebrow because of the scar.
[79] Ms. Rasul testified that she told the nurse or person treating her a “made-up story” that Mr. Cain told her to tell them. She testified that she told hospital staff that she did not seek assistance sooner because she did not think the injury was that bad, which is what the Defendant had told her to say. Beyond explaining why she did not seek treatment sooner, Ms. Rasul did not testify as to the specifics of the “made-up story.”
[80] Ms. Rasul testified that Mr. Cain did not accompany her to the hospital because he was afraid that he would get into trouble. She texted the Defendant when she was done at the hospital. She felt relieved when the Defendant returned home later that day. She testified that he said he was sorry and that he was not trying to give her a wound.
[81] On cross-examination, the Complainant was asked why there were no records regarding her treatment at the hospital. Ms. Rasul testified that when she left after she and Mr. Cain broke up, the apartment was a mess and she did not try to find them because she just wanted to leave. She maintained that she got stitches at the hospital and received papers regarding the injury. However, she could not recall at which hospital she was treated, although she testified that it was downtown.
[82] I am troubled by the absence of medical records that would support the Complainant’s account of the incident. Even if the Complainant no longer had the documents, records could have been obtained from the hospital. The text messages between Ms. Rasul and Mr. Cain, which were also not in evidence, could have assisted in determining the date on which Ms. Rasul was treated at the hospital.
[83] In the circumstances, given my concerns about the Complainant’s credibility and the absence of evidence to support her account, I am left with a reasonable doubt as to whether the alleged assault took place. Accordingly, the Crown has failed to prove beyond a reasonable doubt the offence of assault with a weapon.
The November 2021 Incident
[84] The Complainant testified that on November 12, 2021, she and the Defendant were at their residence when Mr. Cain slapped her hard on the left side of her face a few times. Ms. Rasul testified that the left side of her face was red and that her eye was bruised and swollen.
[85] When asked what led to the incident, Ms. Rasul testified that they were having an argument, but she could not remember about what. Ms. Rasul could not recall where they were in the apartment or how close the Defendant was to her. Although she believes Mr. Cain struck her more than once, she did not recall whether he struck her more than twice. She did not recall whether the Defendant said anything. The Defendant then left the residence.
[86] Ms. Rasul testified that she was in shock. She was scared that he would come back and that it would happen again. She was also scared because she had a bruise on her face and that people might see it and go to the police. The Complainant testified that she did not want Mr. Cain to get in trouble with the police because he had told her at one point that he would rather take his own life than go to jail. At the same time, she did not know what to do or “what to make of the situation.”
[87] Ms. Rasul testified that the Defendant returned the next day and apologized. She forgave him and told him he could not do that again. She could not recall how long the bruise lasted but she did not seek any medical assistance.
[88] Ms. Rasul testified that she took a photograph of the bruise because she could not see it well herself. During the interview with police, the Complainant advised the officer that she had a photo of her face. Ms. Rasul testified that she sent the photograph to the police, however, no photograph was disclosed to the defence or adduced in evidence.
[89] The Complainant’s evidence of this incident is vague and there is a complete lack of detail as to the alleged assault. It is surprising that the photograph was not provided, as this could have assisted in corroborating the Complainant’s testimony. In the circumstances, I find that the Crown has failed to prove assault beyond a reasonable doubt.
The January 2022 Incident
[90] The Complainant testified that on January 12, 2022, she and the Defendant were arguing when he “head-butted” her in the nose. In other words, he hit her hard on the nose with his head. Ms. Rasul could not recall what the argument was about.
[91] Ms. Rasul testified that she was bleeding all over the floor and that she went to the bathroom crying. She testified that Mr. Cain cleaned up the blood with a mop and left the apartment.
[92] Ms. Rasul testified that on that day, she called 911 but hung up without saying anything because she was scared that the Defendant would find out or that he would go to jail. Ms. Rasul could not recall whether she looked at her face at any point after the injury and before the police arrived.
[93] According to an agreed statement of facts (ASF), at approximately 6:39 p.m., police received a 911 call from a female, sobbing. The caller made three phone calls and hung up each time without saying anything. The phone subscriber was Ms. Rasul. Multiple unsuccessful attempts were made to call back the number. Ms. Rasul eventually called back and told the call-taker that she had just looked at her phone and noticed all the missed calls. She advised that everything was OK and that she was watching a sad movie.
[94] The ASF further states as follows. Police advised the Complainant that they would need to attend her home to verify her safety. Officers arrived at the apartment later that evening. The Complainant came out to meet the officers, who advised that they would need to enter the apartment to ensure there were no safety concerns inside. The Complainant was wearing purple pullover and black tights. She did not appear to have any injuries to her face or hands. During the inspection of the apartment, officers noted blood on the floor in the kitchen, just east of the fridge, with what appeared to be dog hair stuck to it. Ms. Rasul advised that she had an accident, and it was menstrual blood from when she was taking out the garbage. Ms. Rasul reiterated that she called 911 inadvertently and called back to advise that everything was OK. She advised that she had been drinking wine. Officers observed a large bottle of wine in the kitchen.
[95] Ms. Rasul testified that the Defendant returned later that evening. Ms. Rasul told him that she had called the police but that she did not tell them anything. Ms. Rasul testified that Mr. Cain was upset that she called the police, but she reassured him that she did not tell the police that he had hit her.
[96] On the officer’s body-worn camera recording, Ms. Rasul is seen calmly explaining things and apologizing repeatedly for accidentally calling 911. She has no visible swelling or redness on or around her nose.
[97] On cross-examination, Ms. Rasul explained that her demeanour on the body-worn camera recording was calm because she was acting or putting on a show. The defence submits that if Ms. Rasul was in fact acting in the recording, her performance was so convincing that this also raises questions about the credibility of her testimony before the court.
[98] The fact that Ms. Rasul called 911 while sobbing supports that something took place between her and the Defendant. Having called 911, however, Ms. Rasul then told the officers that everything was fine. On cross-examination, Ms. Rasul testified that her own explanation to the officers for the blood made no sense because there would not be menstrual blood on the kitchen floor.
[99] I am nonetheless left with a reasonable doubt as to whether the alleged assault took place. Based on my review of the recording, the Complainant’s appearance on the recording is inconsistent with her account of the injury to her nose caused by the Defendant. It is also unusual in the circumstances that she did not recall looking at her face after the alleged assault, given that the Defendant had “head-but” her with force and her nose was bleeding.
[100] Based on the foregoing, the Crown has failed to prove assault beyond a reasonable doubt.
The March 2022 Incident
[101] The Complainant testified that in March 2022, she and Mr. Cain had an argument in their apartment and that the Defendant became very upset. He yelled at her and looked like he was going to hit her, so she went on the mattress and curled up into a ball, covering her head. Ms. Rasul testified that Mr. Cain kicked and punched her while she yelled at him to stop. Ms. Rasul testified that she could feel his shoes kicking her. Ms. Rasul could not recall what kind of shoes he was wearing but said that they sometimes wore running shoes or slides in the apartment.
[102] Ms. Rasul testified that she could not recall what the Defendant was saying or what they were arguing about. Eventually, Mr. Cain stopped and left. He returned a few hours later and told Ms. Rasul to get in the car, which she did. Ms. Rasul testified that she told him that she could not sit back because her back hurt too much, to which Mr. Cain responded that she was just trying to make him feel bad.
[103] She did not seek medical attention or take photographs of her bruises. When asked on cross-examination about whether she had taken any photographs, Ms. Rasul became defensive and stated that she had only taken a photograph of her face after the November 2021 incident because she wanted to see the bruise. She stated that she was not intending to use the photograph as evidence and that was her intent, she would have been gathering evidence from the start.
[104] In respect of this incident as well, based on the complete lack of detail and my concerns about the Complainant’s credibility, I am left with a reasonable doubt.
Summary
[105] In the circumstances of this case, given the evidence of a motive to fabricate, I have significant concerns about the credibility of the Complainant’s evidence. Moreover, her testimony was frequently vague and there are large gaps in the evidence, giving rise to reliability concerns.
[106] While those concerns could have been addressed by supporting evidence, none of the items that could have corroborated the Complainant’s allegations, such as a photograph of her face after the January 2022 incident, text messages from the Defendant apologizing for his actions, or hospital records after the summer 2021 incident, was adduced. My findings should not be taken as suggesting that corroboration is required to support allegations of assault by an intimate partner, which is not the law. In the circumstances of this case, however, where there are significant concerns regarding the credibility and reliability of the Complainant’s evidence, such evidence would have assisted the court’s fact-finding process.
Conclusion
[107] For all the foregoing reasons, the Crown has failed to prove beyond a reasonable doubt the offences of assault, assault with a weapon, assault causing bodily harm, pointing a firearm, and threatening death or bodily harm. As a result, the charges for breaches of the conditions of the two probation orders also fail. The Crown has withdrawn counts 12 and 13 on the indictment as not relating to the substantive charges.
[108] Accordingly, the Defendant, Tristan Cain, is acquitted of all counts.
Nishikawa J. Released: July 26, 2024