Court File and Parties

Court File No.: CR-22-30000291-0000 Date: 2024-12-11 Ontario Superior Court of Justice

Between: His Majesty The King And: Vernon Holder, Defendant/Applicant

Counsel: R. Fried, for the Crown V. Holder, in person, unrepresented D. Goodman and Y. Harish, counsel appointed to cross-examine the complainant

Heard: September 10, 16, 17, 18, and 19, 2024

Reasons for Judgment

Molloy J.:

A. INTRODUCTION

[1] Vernon Holder is charged with attempted murder and seven other crimes of violence involving the same complainant (“KP”). Count 8 on the indictment alleges that Mr. Holder assaulted KP by hitting her with his motor vehicle on December 26, 2020. The other seven counts flow from a series of altercations between Mr. Holder and KP on the night of December 30, 2020 and continuing into the early morning hours of December 31, 2020. These incidents occurred in a sixth-floor apartment at 3111 Eglinton Avenue East, the home of a friend/acquaintance of both Mr. Holder and KP. Shortly after midnight, KP called 911 and reported she was being assaulted in the apartment by Mr. Holder. On the instructions of the 911 operator, KP locked herself in the bathroom and was still there when police officers arrived approximately 15-20 minutes later. KP alleged that Mr. Holder: attempted to throw her off the sixth-floor balcony (Count 1); threatened to kill her (Count 2); assaulted her (Count 3); assaulted her with a beer bottle (Count 4); assaulted her with a wine bottle (Count 5); assaulted her with a cellphone (Count 6); and assaulted her causing bodily harm (Count 7).

[2] After the completion of evidence and submissions, I made rulings on the charges with brief oral reasons and indicated that more detailed written reasons would follow. I entered the following verdicts:

Count 1: Not Guilty of attempted murder, but Guilty of aggravated assault (attempting to throw KP over the balcony)

Count 2: Not Guilty of threatening death

Count 3: Guilty of common assault [1]

Count 4: Guilty of assault with a weapon (beer bottle)

Count 5: Guilty of assault with a weapon (wine bottle)

Count 6: Guilty of assault with a weapon (cellphone)

Count 7: Guilty of assault causing bodily harm

Count 8: Not Guilty of assault with a weapon (motor vehicle)

[3] My detailed reasons are set out below.

[4] Earlier in the proceedings, a decision was made by another judge that Mr. Holder would be proceeding to trial with or without counsel. A motion by the Crown to have counsel appointed under s. 486.3(2) of the Criminal Code to cross-examine the complainant was also granted by another judge prior to the matter coming before me. On the appointed trial date, September 10, 2024, Mr. Holder advised me that he had not been able to open the Crown disclosure package because he did not have the required password. He had received the package by email a week before and said he tried to open it every day to no avail. However, he did not communicate that problem to the assigned Crown until the morning of trial. Although I was of the view that Mr. Holder was at least partially the author of his own misfortune, I adjourned the trial to commence on September 16, 2024.

[5] The Crown had filed two pre-trial motions: (1) an application to introduce into evidence the recording of KP’s 911 call; and (2) an application for KP to provide her evidence by CCTV or remotely. At the outset of trial, the Crown advised that the latter motion was abandoned. I heard argument on the motion with respect to the 911 recording and found the evidence to be admissible.

[6] In these reasons, I will start by providing some background factual evidence to provide a context for what follows. I will then set out my reasons for dismissing the charge relating to the alleged assault with the motor vehicle, which is separate in time from the other counts on the indictment. Next, I will deal with the incident on the balcony and the threatening death count, as they are connected. This will include my ruling with respect to the 911 call, which is connected to that incident. Finally, I will deal with the remaining assault charges, which are connected in time and place to the attempted murder charge, but different in nature.

B. BACKGROUND AND FACTUAL CONTEXT

[7] KP testified that she had known Mr. Holder prior to 2020 but had never socialized with him prior to July 2020. She had gone to a bar in Scarborough with a friend at some point in July 2020 and Mr. Holder approached her and chatted with her. She said that after that occasion she saw Mr. Holder “pretty much every day,” would “hangout” with him after he finished work, and would go to different bars with him. Through Mr. Holder, she had also met Vijay Sukhdeo and Noel Cave, a cousin of Mr. Holder’s. KP testified that when the COVID lockdown resulted in bars being closed, a group of people began hanging out in the evenings and drinking at Mr. Sukhdeo’s apartment. Not everyone would be there every night, but the regulars included Mr. Sukhdeo, Mr. Cave, Mr. Holder, and KP. Other people would be there from time to time. At this time, KP was 40 years old and Mr. Holder was approximately 65 years old. Both KP and Mr. Holder denied that there was any romantic relationship between them.

[8] Mr. Sukhdeo agreed people would come to his apartment to play dominoes and drink, but said it was not every night. Also, he said Mr. Holder (who is a contractor) was there to help him out by doing some painting in his apartment. He testified that KP would come with Mr. Holder and that Noel Cave would also be there sometimes.

[9] Mr. Holder testified that his purpose in going to Mr. Sukhdeo’s apartment was to help him out by doing some painting for him. He said when he finished work, he would sometimes sit and have a drink, and then would leave. He said he was “not sure” about playing dominoes.

[10] For present purposes, I take from the evidence that Mr. Holder was a frequent visitor at Mr. Sukhdeo’s apartment in the evenings during the late fall of 2020, and that he brought KP with him. There are discrepancies about how often, and for what purpose, Mr. Holder would go there, but nothing turns on that. I also note that KP’s only connection with this group was through Mr. Holder, whose cousin, Noel Cave, was a friend of Mr. Sukhdeo.

C. ASSAULT WITH A MOTOR VEHICLE

The Gathering and Gift-Giving

[11] KP testified that on Christmas night 2020 she was at home with her kids. She said Mr. Holder called her and they made plans to go to Mr. Sukhdeo’s apartment. Mr. Holder said he would pick her up, which was their usual practice. She had purchased Christmas gifts for the three regular guys (Mr. Sukhdeo, Mr. Cave, and Mr. Holder) and distributed them upon arrival, which she said was about 9:30 or 10:00 p.m. She said the gifts were different, but the same type of thing (toiletry or cologne gift sets from Shoppers Drug Mart). In addition, she said she gave Mr. Holder a bottle of red wine, because he was a closer friend than the other two men.

[12] KP described Mr. Cave as being very touched that she gave him a gift, and said that he hugged her and kissed her on the cheek. He then gave her a $100 bill as a gift.

[13] KP said that she did not have anything to drink. She believed Mr. Sukhdeo was drinking beer and that Mr. Holder and Mr. Cave were drinking Absolut vodka, which Mr. Cave mixed with pop and Mr. Holder mixed with milk. She said that after she handed out the gifts, Mr. Holder was upset that she had given him his gifts along with everyone else. She said the others were telling him to “chill” and were joking with him. KP said that she and Mr. Holder left at about 3:30 a.m. Although she said he had about five drinks, she was not concerned about his ability to drive.

[14] Mr. Cave’s version of this event is somewhat corroborative of the complainant. He recalled the occasion when KP gave out Christmas gifts to everyone. He was not sure if it was Christmas or Christmas Eve, but said all four of them were there. He said that in return he gave KP $100, because he knew she had kids. He recalled that she reacted to his gift to her by saying “Wow” and he said she was “carrying on about it.” Mr. Cave said he was not there long, and thought that he would have left sometime between 5:00 p.m. and 7:00 p.m. He did not recall Mr. Holder being upset about anything while he was there. Mr. Cave brought a bottle of vodka with him. He said Mr. Holder was painting baseboards and that afterwards he had some vodka, which he mixed with milk. He did not consider him to be intoxicated. However, he testified that he doubted Mr. Sukhdeo would remember anything as he was drunk, and indeed described him as being always drunk.

[15] Mr. Sukhdeo testified that on Christmas day 2020 people were coming and going all day and evening. He recalled KP bringing a gift like a box of deodorant and said she put it on the table but did not say who it was for. He had no recollection of anyone else bringing gifts. He described himself as being “a little tipsy” but not drunk. He knew KP and Mr. Holder were talking in another room, but he did not know what it was about. It seemed like normal conversation. Their voices were not raised. He said KP and Mr. Holder left sometime after midnight and he locked his front door behind them.

[16] Mr. Holder testified that he remembered KP giving gifts to everyone. He denied that KP gave him two gifts and said he never drinks wine. He also denied any knowledge of Mr. Cave giving KP a $100 bill and said that the first he heard of it was when she testified about it. He denied being angry about it.

The Incident in the Parking Lot

[17] KP testified that she left Mr. Sukhdeo’s apartment with Mr. Holder at about 3:30 a.m. and they drove in his truck to a pizza place about two blocks from her apartment. She said they went there regularly. This was during the COVID lockdown. Mr. Holder parked in the parking lot and KP went to the window of the restaurant and ordered their food and drinks. She then returned to the front passenger seat of the truck. She said Mr. Holder was angry with her for giving him a gift in front of everyone else and also very angry about the $100 Mr. Cave had given her. She said that she gave the $100 bill to Mr. Holder and told him if he was that angry about it, he could give it back to his cousin, Mr. Cave. She said that Mr. Holder then said that he did not need the $100, did not want it, and was not going to give it back to Mr. Cave. She said Mr. Holder threw the $100 out of his window. KP then told him she was calling it a night and that she was going to pick up the money, get the food, and walk home. She got out of the truck, and walked back and around the rear end of the truck. At that point, she heard the engine reversing and she moved quickly to get out of the way. However, the truck grazed against her lower stomach area. She said she did not sustain an injury. She acknowledged in cross-examination that she could not tell if Mr. Holder looked behind him before reversing. She testified that she yelled at him and thought that his car window was open such that he would have been able to hear her. However, at the preliminary hearing she testified that the windows in the truck were up. In any event, KP said Mr. Holder said nothing in response. He reversed out of the parking lot and drove away.

[18] KP said that Mr. Holder called her later and asked her if she wanted some tea from Tim Hortons. She asked him if he remembered what had happened and when he said “No,” she told him that he tried to hit her when reversing out of the parking lot. She said Mr. Holder told her that he did not remember that and said he was sorry. She did not report this incident and testified that she had forgiven him. Afterwards, she still saw him every day and their relationship continued the same as it had been, until the incident on December 30.

[19] Mr. Holder denied that this ever happened. He testified that he did not know anything about the $100 and said he did not hit KP with his truck. He also did not believe that he had gone to this restaurant plaza after the gift-giving evening.

[20] I do not believe Mr. Holder’s evidence about the $100 bill. It is clear Mr. Cave gave it to KP when Mr. Holder was there and Mr. Cave said that KP was making a big fuss about it. That rings true to me and is consistent with KP’s evidence.

[21] However, it is not necessary to resolve the other discrepancies between the evidence of KP and Mr. Holder, and the discrepancies between KP’s testimony at the preliminary hearing and what she said at trial. If I take KP’s evidence at its highest, I cannot be satisfied beyond a reasonable doubt that Mr. Holder saw her. If he did brush up against her with his truck while reversing, I have no evidence with respect to his intent. I cannot be satisfied beyond a reasonable doubt that she deliberately tried to hit her with his truck. That is a necessary ingredient of the assault with a weapon charge at Count 8 on the indictment.

[22] Accordingly, I find Mr. Holder not guilty on this charge.

D. ADMISSIBILITY OF THE 911 CALL

[23] KP alleges a series of assaults by Mr. Holder while she was in Mr. Sukhdeo’s apartment on December 30, 2020 just prior to midnight. This included attempting to throw her off the sixth-floor balcony, body-slamming her to the floor, stomping on her, and assaulting her in the area of her mouth with a beer bottle, a wine bottle, and a cellphone. There were only three people in the apartment at the time: Mr. Holder, KP, and Mr. Sukhdeo. However, Mr. Sukhdeo spent much of the time in the bathroom.

[24] In the immediate aftermath of these attacks, KP placed a call to 911. At that point, Mr. Holder was still in the apartment. At one point during the call, the 911 operator asked KP if she was able to get away by leaving the apartment and KP responded that Mr. Holder was stopping her from leaving. The operator then told her to go to the bathroom and lock herself in, which she did. She was still in the bathroom when officers arrived in response to this and another emergency call.

[25] Nearly four years have passed since the events that prompted KP to call 911. The Crown sought to introduce the 911 tape and transcript as part of the evidence at trial. The Crown submits that the evidence is admissible as part of the res gestae and also under the principled exception to the hearsay rule.

[26] When considering the admissibility of a statement made out of court (such as a 911 call), there are typically two issues that arise: (1) if the person who made the statement is not a witness in court, then the statement may be inadmissible hearsay; and (2) if the person who made the earlier statement is called as a witness, then the earlier statement may be inadmissible because it is a prior consistent statement. In determining whether the statement should be admitted into evidence, it is important to consider the reason it might otherwise be inadmissible.

[27] The Crown relies on five Ontario Superior Court of Justice decisions in which statements made by a complainant in a 911 call were found to be admissible at trial. [2] In all of these cases, the 911 call was found to fall within the res gestae exception and to be admissible as a spontaneous utterance. I agree with the result in all five cases, although not necessarily with the reasoning. The 911 call in this case was made in circumstances which bring it squarely within the spontaneous utterance exception. Mr. Holder was still in the apartment at the time KP placed the 911 call, and was at one point preventing her from leaving. Upon hearing that KP could not get out of the apartment, the operator told her to lock herself in the bathroom and wait there for the police to arrive, which she did. Although the complainant’s statements to the 911 operator were not uttered in the midst of being assaulted, she was still under the control of Mr. Holder at the time of the call. This is sufficiently contemporaneous to meet the requirements of res gestae. It was also an utterance made while still subject to the shock of the event in question and without sufficient time to concoct or fabricate a story. I would admit the statement on that basis.

[28] All five cases cited by the Crown also relied on the principled exception to the hearsay rule to admit the evidence. With the greatest of respect for my colleagues in those cases, in my view, the only one of those cases to correctly apply that principle is the decision of Fairburn J. (as she then was) in R. v. Brown. In that case, the victim of an armed robbery had called 911 immediately after he was robbed and provided a description of the man who robbed him and the license plate number of the get-away car. He also gave a statement to the police not long afterwards. However, by the time of trial, the police were unable to locate him and he therefore was not a witness at trial. Fairburn J. held that the 911 call was admissible under the principled approach as an exception to the hearsay rule. It was necessary (because the witness could not be located) and it was reliable (because of the circumstances in which it was made). Fairburn J. held that the 911 call was made so close in time to the event that the witness would not have had time to fabricate and noted that she could tell from listening to his voice on the call that he was clearly still suffering from the shock of what had just happened. [3] This is the classic application of the principled exception to the hearsay rule – a situation in which the statement of a witness is introduced because the witness cannot testify himself.

[29] The other four cases cited also relied on the principled exception to hearsay as a basis for admitting the 911 call, but, in my opinion, did so incorrectly because the witness not only was available to testify, but did testify at trial. The evidentiary problem with the introduction of a 911 call in that situation is not the rule against hearsay, but rather the inadmissibility of a prior consistent statement. Generally speaking, a prior consistent statement made by a witness out of court is not admissible. The rationale for the rule against prior consistent statements is the logical fallacy that a story is more likely to be true if it is repeated. As stated by Twaddle J.A., “Consistency is a quality just as agreeable to lies as to the truth.” [4] There is an exception to the prior consistent statement rule if the other party alleges that the witness’ evidence is a recent fabrication, in which case the prior consistent statement has probative value to demonstrate that it was made prior to the event said to have given rise to the recent fabrication. That exception did not arise in any of those cases, and does not arise in the case before me.

[30] There are two prongs to the principled exception to hearsay: necessity and reliability. [5] Demonstrating that the statement meets the reliability requirements of the principled exception to hearsay does nothing to address the problem of prior consistent statements being inadmissible. It does not even fully address the requirements for admission as an exception to the hearsay rule as there is no necessity to admit the out of court statement. If the witness is testifying in person, her out of court statement is not necessary at trial, and it is not permissible to buttress her testimony with evidence that she made the same or a similar statement on a prior occasion.

[31] In some of the cases relied on by the Crown, the trial judge did not refer to the necessity requirement when dealing with the principled exception. One of the judges who did confront the necessity issue was Richetti J. in R. v. Dessouza. He found that necessity was met because the incident had happened 16 years prior and the 911 call was the “best and only complete evidence of what was said at the time” and also “the best evidence of [the complainant’s] heightened emotional distress at the time which could never be repeated or demonstrated to the jury.” [6] I note that the primary reason given by Richetti J. in that case was that the 911 call was admissible as res gestae. Therefore, his ruling with respect to the principled exception was obiter. The passage of time and its effect on the witness’ memory is not normally a basis for admitting hearsay evidence unless the witness has no present recollection at all of the event. If the witness has some memory of it, a prior statement is typically used to refresh her memory, rather than the whole statement itself being admissible for its truth. The reference to the “best evidence” because the emotional state of the complainant is apparent from the recording is an interesting and recurring theme throughout these decisions (a point to which I will return later in these reasons).

[32] In Byrnes, R.D. Gordon J. also relied primarily on the res gestae rule for admitting evidence of a 911 call made immediately after the complainant had been stabbed and while her assailant was still in the house. In dealing with the necessity requirement for the application of the principled exception to hearsay, Gordon J. gave a similar “best evidence” type of analysis as that applied by Richetti J. in Dessouza, stating (without citing any authority):

Necessity is not restricted to the unavailability of the declarant. It can be made out when evidence of equivalent value to that proposed is not available from the declarant or other sources. In this instance, the 911 audio recording reflects not just what Mrs. Byrnes and Jason Byrnes will be able to testify about at trial, it reflects their immediate emotional reaction to the events and provides a more complete picture of what happened on April 30, 2010 than could be related by either of them simply offering their testimony before a jury. In this sense, the evidence is necessary in order to give the jury the best evidence possible. [7]

[33] Byrnes is the only decision of the five that deals directly with the rule against the admissibility of prior consistent statements. Gordon J. held:

Although the recording could be termed a prior consistent statement of the complainant, the rationale for excluding the recording on this basis, namely that the evidence may have been manufactured by the witness to bolster her evidence through repetition, is overcome by the spontaneity of the statement and the very low possibility of deliberate distortion or concoction that results. [8]

[34] Again, no authority is cited for this proposition. Basically, it is simply a restatement of the basis for the res gestae exception, or of the reliability branch in the principled exception analysis. It is another illustration of trial judges recognizing the inherent value of this kind of evidence, without being able to pigeon-hole it within the recognized exceptions for the admissibility of such evidence. I note as well that in Brown (which is a true principled exception to the hearsay rule), the nature of the evidence itself (the stress and shock that can be detected in the victim’s voice) is cited as an additional earmark of its reliability, supporting its admission into evidence.

[35] Finally, in Bryan, Pinto J. found that a complainant’s 911 call, and statements made to her aunt at around the same time, were admissible at trial (even though the complainant testified) for three reasons: (1) res gestae or excited utterances as an exception to hearsay; (2) the principled approach exception to hearsay; and (3) narrative as circumstantial evidence as an exception to the rule against prior consistent statements. In that case, the complainant alleged that the accused had kidnapped her, taken her to Niagara Falls, and forced her to provide sexual services for hire. He then brought her back to her aunt’s home in Toronto so that she could pick up her belongings and instructed her to immediately return to the car. He waited outside in his car. Upon entering the house, the complainant broke down crying and told her aunt and cousin what happened. Her cousin called 911 and the complainant spoke to the operator, telling her what happened. In finding these statements admissible, Pinto J. relied primarily on the res gestae exception and the principled exception to the hearsay rule. However, while acknowledging this was not essential to his decision, he also referred to the admissibility of the 911 call on the basis of narrative as circumstantial evidence, relying on R. v. Khan. [9]

[36] R. v. Khan is a 2017 decision of a five-member panel of the Ontario Court of Appeal. In that case, a male police officer was charged with sexual assault. The female complainant had been arrested by that officer and charged with possession of cocaine. She alleged that while she was a prisoner in the police car, the officer searched her, in an excessively thorough manner, three times. When she got to the police station, she was told that a female officer would search her, at which point the complainant said, “I’ve already been searched three times, why are they searching me again?” The Crown sought to have this statement admitted as evidence at trial, even though the complainant testified. The trial judge found it to be admissible as a spontaneous utterance and also under the principled approach to the hearsay rule.

[37] The Court of Appeal unanimously found that the statement was admissible. The majority reasons of the Court of Appeal were authored by Hourigan J.A., with LaForme, Pepall and Miller JJ.A. concurring. Doherty J.A. dissented, not in the result, but with respect to the general approach that should be taken when considering the admissibility of this kind of evidence. Hourigan J.A. (for the majority) held that the statement was not admissible under the principled exception to the hearsay rule. The reliability requirement could be met by the spontaneity of the statement. However, since the complainant testified at trial and had a memory of the events, the necessity requirement was not met. He then went on to consider the admissibility of the statement as part of the narrative. Clearly, it was admissible merely as part of the narrative to show the unfolding of events in a coherent manner, but if only admitted for that purpose, it would not be admissible for its truth. Hourigan J.A. held that the statement was also admissible as relevant to the credibility and reliability of the complainant’s evidence at trial because it provided the surrounding circumstances and context by which the trier of fact could evaluate the credibility of the statement. This was not the same as finding that consistency in repeating the same statement over and over was admissible for its truth. Rather, the narrative of how the statement was made provided circumstantial evidence of its reliability given the sequence and timing of the events, the spontaneous nature of the statement, and the emotional state of the complainant when she made it.

[38] Doherty J.A. agreed with the disposition of the appeal, but wrote that it was time to revamp the current approach to the rules governing prior consistent statements. He noted that the existing common law approach to the admissibility of prior consistent statements was to treat them as presumptively inadmissible, subject to a series of discrete exceptions. He also noted that this approach had largely been abandoned with respect to hearsay evidence in favour of the principled approach to admissibility (if the evidence is necessary and reliable). Finally, he advocated a similar approach to prior consistent statements, focusing on “broader considerations rather than the technicalities of established exceptions.” [10] Under this suggested approach, the court would first consider the purpose for which the prior consistent statement is tendered and then evaluate whether the statement had probative value for that purpose. Applying that approach, Doherty J.A. held:

The complainant was vigorously cross-examined. In that cross-examination, the defence alleged that the complainant had fabricated the allegations, and that the respondent had not searched her at all in the vehicle. During cross-examination, counsel suggested to the complainant various reasons she might have to fabricate the allegations.

The complainant's evidence that she did not complain about the respondent's conduct at the police station, and that it was the police who initiated the sexual assault investigation in response to her comment that she had been searched three times, was consistent with and therefore tended to confirm her trial evidence to the effect that she was a disinterested, reluctant complainant with no real interest in the outcome of the trial. If the trial judge accepted that the complainant did not initiate the allegation and was disinterested in pursuing it, that finding could reasonably make her evidence describing the events in the police car more credible. Also, if the trial judge accepted that the complainant had not been the one to make the sexual allegation and had not pursued that allegation, the defence suggestion that she had fabricated the allegation would have no force.

In my view, the evidence of the complainant's interaction with the police at the station, including what she said to Constable Flint, was relevant to a proper assessment of her credibility. It was therefore admissible even if it was a prior consistent statement. [11]

[39] Similar issues to these arose in a relatively recent jury trial over which I presided. The accused, Umar Zameer, was charged with first degree murder after he drove over and killed a police officer in an underground parking garage. His wife and young child were with him in the car. His defence was that this was an accident and that he did not know the individuals who approached his car were police officers. He made statements to that effect when he was pulled from his car at the scene and placed under arrest. I found those statements to be admissible under the so-called Edgar exception. [12] In Edgar, the Ontario Court of Appeal created a limited exception to the rule against prior consistent statements to admit statements of an accused upon first being told of the accusation against him. The Court in that case required that the statements would only be admissible upon the accused testifying at his trial and held that it was not extending the exception beyond that. [13] In Zameer, I was required to rule on the admissibility of statements made by Mr. Zameer’s wife, which were made in precisely the same circumstances and before she and her husband could have had a chance to confer. I ruled in that situation that since the Edgar exception did not apply and Mr. Zameer’s wife was a witness at trial, her earlier consistent statement was not admissible. I also noted that this result seemed illogical to me but that this was not an appropriate occasion to “veer off the well-worn path.” [14] I expressed the hope that further guidance on this issue from an appellate court would be forthcoming.

[40] With respect to the case before me now, I again would welcome more clarity on this issue and agree with the approach suggested by Doherty J.A. in Khan. However, again, this case, with an unrepresented accused, is not an appropriate one in which to veer off the traditional path.

[41] I find that the statements made by KP are admissible into evidence as spontaneous utterances and part of the res gestae. They are also admissible as part of the narrative, including circumstantial evidence of the reliability and credibility of her evidence at trial. The 911 statements were made in the presence of Mr. Holder and Mr. Sukhdeo. They were made under great stress and fear, and in the immediate aftermath of serious injuries she had sustained. The details she provided of the various assaults were made spontaneously and before she would have had any opportunity to concoct a story. They have probative value beyond being merely consistent with her evidence at trial.

E. THE EVIDENCE AT TRIAL ABOUT THE DECEMBER 30, 2020 EVENTS

The Precipitating Argument

[42] It is clear there was a precipitating argument on December 30, 2020 prior to the physical altercations that gave rise to these charges. There were three people present (Mr. Sukhdeo, Mr. Holder, and KP), all of whom gave conflicting accounts.

[43] KP testified that on the night of December 30, 2020, she got a call from Mr. Sukhdeo asking her if she would like to come over to his place with Mr. Holder. She responded that she would if Mr. Holder could come and pick her up. About ten minutes later, Mr. Sukhdeo called her back and said Mr. Holder was coming to get her. She said Mr. Holder picked her up outside her apartment at approximately 9:30 p.m. or 10:00 p.m. She had not had anything to drink all day. She said that Mr. Holder told her he “had a few drinks” but she was not concerned about his ability to drive. When they got to Mr. Sukhdeo’s apartment building, they had a discussion in the car before going inside. Mr. Holder told her that there was talk going around that she had sex with Noel Cave. She told him it was not true, but Mr. Holder did not believe her. She said she told Mr. Holder she wanted to confront the rest of the group about how this story got started, but he was opposed to having such a confrontation.

[44] KP testified that she did confront Mr. Sukhdeo about the rumoured affair as soon as they were inside the apartment. She said Mr. Holder was upset that she did this and that Mr. Sukhdeo was “egging on” Mr. Holder, laughing and joking about her having slept with his cousin (Mr. Cave). She said she told Mr. Sukhdeo to stop saying that, because it was not true and also because it was not funny. She told him it was making Mr. Holder very angry. Mr. Holder kept asking her why she was denying it, and she told him she was denying it because it was not true. He was angry that she would not admit it. She said Mr. Sukhdeo still kept joking about it and she said she was going to leave if they did not stop. At this point, she said Mr. Holder stated in an angry voice, “If it wasn’t for one thing, I would throw you off the balcony.” Mr. Sukhdeo said, “What did you say?” and KP told him again that he needed to stop “jeering at” Mr. Holder because he was obviously upset. She still maintained that she wanted to go home and Mr. Holder said he would take her as soon as he finished his beer, but not before. Mr. Sukhdeo agreed to stop and told them both they should calm down. However, the argument between Mr. Holder and KP continued. She testified that Mr. Sukhdeo was intoxicated at this time, and had been drinking before they even got there. In cross-examination, KP said she did not remember Mr. Sukhdeo asking her why she had invited Mr. Cave to her apartment at 2:00 a.m. and did not remember any discussion about her getting his number from Mr. Holder’s phone. However, she agreed that sometimes Mr. Holder would let her use his phone while he was painting the apartment.

[45] Mr. Sukhdeo had only a hazy recollection of the events of that night. He recalled that the three of them were drinking at his apartment and that he had four or five shots of Absolut vodka. He denied hearing anything about KP having an affair with Mr. Cave. He said he went to the bathroom and could hear an argument from the living room that had something to do with money. He denied that he was himself involved in the argument and said he did not know what caused the argument. However, under cross-examination by Mr. Holder, Mr. Sukhdeo was asked how KP got Mr. Cave’s number, and he responded, “I don’t know. Maybe she went through your phone.” Nevertheless, he denied having an argument with KP or Mr. Holder about how KP got Mr. Cave’s phone number, and said he had no memory of Mr. Cave calling him and asking him where KP got that number. He claimed to have heard no part of the argument and to have been in the bathroom the whole time, only emerging when he heard KP screaming and banging on the wall, at which point he found KP lying on the sofa, with Mr. Holder over her, hitting her in the face.

[46] Mr. Cave was not present on the night of December 30. However, he testified at trial that he had heard a rumour that he was having an affair with KP and that he did have a discussion with Mr. Holder about it. He also said that between December 26 and December 30, he received a phone call from KP at 2:00 a.m. and that she said she wanted to have a conversation with him. He told her it was 2:00 in the morning and he was not going to have a discussion with her then. The next day, he asked Mr. Sukhdeo how KP had obtained his phone number. He said that “apparently” KP went through Mr. Holder’s phone and got his number, but it was not clear why he thought that.

[47] Mr. Holder testified that on December 30, 2020, he went to Mr. Sukhdeo’s apartment to finish up some work he was doing for him. After he arrived, Mr. Sukhdeo asked him if he could go pick up KP if she wanted to come over. Mr. Holder agreed to do that. He said he picked her up outside her apartment at about 8:00 p.m. and went directly back to Mr. Sukhdeo’s apartment. According to Mr. Holder, as soon as KP walked into the apartment she started arguing with Mr. Sukhdeo. He testified that at first he paid no attention and asked himself, “Why are they arguing?” He then added that this was typical of them and that they were always arguing. He said that he told Mr. Sukhdeo that if he knew they were going to be quarrelling, he would not have gone to pick her up. He then said he knew they were arguing about his cellphone and about whether KP had called Mr. Cave at 2:00 a.m. He said that when he was painting the apartment, KP would often borrow his cellphone. At some point during this quarrel, Mr. Holder said he criticized KP for taking his cellphone and also for calling Mr. Cave at that hour of the night. He said that when he did that, KP came up from behind him and attacked him with a bottle.

[48] It is difficult to determine precisely what this argument was about in light of the completely contradictory testimony at trial. What is clear, however, is that the argument had something to do with KP and Mr. Cave. Whether it was about an alleged affair, as opposed to a call placed by KP to Mr. Cave at 2:00 a.m., or perhaps both, is difficult to determine with any certainty. However, Mr. Cave confirmed that he heard the rumour, so I am inclined to believe that at least some of the argument was about that. For present purposes, it does not matter who said what to whom. It is sufficient that there was an argument. I am fully satisfied that Mr. Sukhdeo was there for at least some of that argument, whether he remembers it or not. I am also fully satisfied that the nature of KP’s relationship with Mr. Cave was at the heart of the argument.

The Testimony of Two Neighbours about the Balcony Struggle

[49] Duodat Singh and Bibi Ayube have been married for 28 years and live in the apartment building next door to Mr. Sukhdeo’s building. A grassy area and parking lot lie between the two buildings. The Singh Ayube apartment is on the fifth floor and its balcony faces directly into the balcony of Mr. Sukhdeo’s apartment. They were familiar with the layout of Mr. Sukhdeo’s apartment having previously lived in an apartment on the same floor of his building, which had the same layout as Mr. Sukhdeo’s apartment. They were also familiar with Mr. Sukhdeo, referring to him as “Hand” (which is also a nickname other witnesses used for him, a reference to the fact that he was an amputee who only had one hand).

[50] Mr. Singh is a contractor and had also done work on the next door building a number of years ago. He testified that there is a distance of about 40 to 50 feet between the two buildings.

[51] Mr. Singh testified that on the night of December 30, 2020, he was on the balcony of his apartment having a cigarette. His wife, his brother, and his mother-in-law were inside his apartment unit. While on his balcony, he heard a commotion from the balcony of Mr. Sukhdeo’s apartment. He saw a man come out onto the balcony with a woman. He was pushing and shoving her onto the balcony, and she was screaming at him to stop. He described both individuals as being dark skinned and said that he had never seen either of them before. She said the man had a beer bottle in his hand and that he saw him hit the woman with it in the area of her face or head. At one point, the woman fell to the floor of the balcony and he could hear the sound of bottles rolling around. The man then bent down and grabbed her in a kind of bear hug. Mr. Singh could not see the woman’s feet as the balcony has solid panels. He believed that the man was trying to throw the woman off the balcony. He said she was screaming and holding on to the railing of the balcony. He could see clearly because the lights in the apartment were on and there was a lot of light from the double windows looking directly onto the balcony. Mr. Singh yelled for his wife and brother to come out to see this. He also yelled at the man on the balcony, telling him to stop. He said other neighbours were doing the same, but the man paid no attention. He told the man that the police were on their way. Mr. Singh then saw Mr. Sukhdeo come to the balcony door. He said Mr. Sukhdeo pulled the man and woman into the apartment. Inside the apartment he could still see the man punching the woman. He and his wife then went downstairs and headed next door, seeking to have the superintendent go into Mr. Sukhdeo’s apartment.

[52] Ms. Ayube testified that she was inside her apartment folding laundry when her husband shouted for her to come outside. She, her brother-in-law, and her mother-in-law went out to the balcony. She said she could see well because there was light coming from the living room of the apartment and she was wearing her glasses. When she came out on her balcony, she could see a struggle between a man and woman on the balcony of a person she knew lived there and who had only one arm. He was not the man on the balcony. She said that she did not know the man or the woman. Ms. Ayube testified that her husband was yelling at the man to stop. The man on the balcony was standing over the woman while holding a beer bottle. She described the woman as screaming for her life. She believed the man was trying to kill the woman by throwing her off the balcony. He was behind her and holding onto her, while trying to shove her over. She said that the woman had one foot over the balcony and was holding on to the balcony while trying to get back in. Ms. Ayube called 911. For part of that call, she had to go inside her own apartment because there was so much noise outside that she could not hear properly. Ms. Ayube saw someone come out and bring the man and woman back into the apartment. She did not know who did that. However, she could still hear a commotion from inside the apartment. She and her husband then went to the building next door and met the police there.

The Testimony of Mr. Holder about the Altercation with KP

[53] Mr. Holder testified that the physical altercation with KP started when KP came up behind him in the living room and hit him in the neck with a bottle. He said she then punched him in the face with the bottle, leaving a cut on his right nostril. He said he grabbed at her and she went onto the balcony. He went onto the balcony and struggled with her until he got the bottle away from her. Then he left the balcony, closed the door, and put the bottle on the kitchen counter. He testified that KP then came back in from the balcony with another bottle and hit him in the face again, this time cutting his face in the area of the left nostril. He fell to the ground, and she came on top of him and tried to hit him again. They struggled in a small area on the floor between the couch and a table until he was able to get that second bottle away from her, which he then placed next to the first bottle in the kitchen. He said Mr. Sukhdeo was standing there during this altercation. He denied ever trying to throw KP off the balcony. He said his only interaction with KP on the balcony was to take the bottle away from her and that he then left her alone there.

[54] Mr. Holder testified that after getting control of that bottle, he saw KP yelling on the phone. He said he thought the phone was his and he snatched it from her. When he realized it was not his phone, he threw it at her.

[55] Mr. Holder maintained throughout cross-examination that he was the victim in this incident and that he did not cause any of the injuries to KP. He denied ever hitting her in any way. He suggested she might have received her injuries when she jumped on him or when they were struggling on the floor between the couch and the table.

[56] Mr. Holder testified that he did not know Mr. Singh or Ms. Ayube. He maintained that they lied about witnessing a struggle on the balcony because they wanted to get Mr. Sukhdeo in trouble. He said they had called security about Mr. Sukhdeo on many occasions because of noise from his apartment, and said that they were also aggrieved that he was only paying $900 a month whereas their rent was $2500. He said he gathered this information by asking around about them.

The Testimony of Vijay Sukhdeo about the Altercations

Mr. Sukhdeo denied having seen any part of the balcony incident. He testified that he was in the bathroom for all of this time. He heard KP screaming and banging on the wall and came out to find her lying on the couch with Mr. Holder over her. He testified that Mr. Holder had his fist in front of her face and that she was trying to protect herself. He saw Mr. Holder hit her in the face “maybe two times.” He told Mr. Holder to stop and he did so within a “minute or two seconds.” He said that afterwards he did not see any injuries on either KP or Mr. Holder.

The Testimony of KP about the Altercations with Mr. Holder

[57] KP testified that in the course of the argument about the nature of her relationship with Mr. Cave, Mr. Holder referred at least twice to throwing her off the balcony. She was not sure about the exact words, but they were something like, “If it wasn’t for one thing, I would throw you off the balcony” and “I would open this balcony door and push you over.” She said they were both upset and that she was crying. However, she did not in that moment believe that he actually intended to throw her off the balcony. She also said she would never have believed he would do something like that because he had never been violent in the past. She said she wanted to go home and Mr. Holder said he was going to finish his beer first and then he would take her.

[58] She did not have a clear recollection of how she wound up with Mr. Holder on the balcony. She denied the suggestion in cross-examination that she had started a physical fight with Mr. Holder and in the course of a scuffle, they moved to the balcony. At trial, she said that after saying these words about pushing her off the balcony, Mr. Holder opened the balcony door and shoved her. In cross-examination, it was put to KP that at the preliminary hearing she had testified that Mr. Holder invited her to come out on the balcony and that she went out there. KP agreed that she said that at the preliminary and that looking back on it, it could be that he invited her onto the balcony. She said that one moment they were facing each other arguing and she was crying, and the next moment they were on the balcony. She acknowledged that she could not remember the exact words that were said by either of them. However, up to that point, she did not believe Mr. Holder was serious about throwing her off the balcony. That belief changed after they were on the balcony.

[59] KP testified that once they were on the balcony, Mr. Holder lifted her a bit off the ground. She grabbed the railing, with her hand all the way around the rail and her other hand grabbing onto his shirt in the chest area. He then threw her to the ground, and again tried to lift her up, reaching down with his arms under her legs. Again, she grabbed on to the railing. In the course of this struggle, KP said that she bit Mr. Holder hard on one arm close to his shoulder. She also scratched his face twice. He dropped her to the ground again. At this point, she said Mr. Holder went to the door and she believed he was going to lock her outside. She grabbed him and they both wound up inside.

[60] She said that at the beginning of this altercation on the balcony, she could see Mr. Sukhdeo through the window, standing in his living room and watching. However, at some point, he ran into the bathroom. She said she was screaming for him to come and help her and for someone to call the police. By this point, she feared for her life and believed that Mr. Holder was trying to throw her off the balcony.

[61] KP testified that once they got inside, she told Mr. Holder she was going to call the police. He then threw her onto the couch, with her back on the couch, and sat on top of her. He asked her why she would not sleep with him, but was messing around with his cousin. She said he then grabbed a beer bottle from the table beside the couch and tried to shove it into her mouth, holding his other hand on her throat while doing so. He then saw a wine bottle, which was bigger than the beer bottle, and tried to shove that in her mouth, making contact with her lips. He kept saying, “Why won’t you sleep with me?”

[62] She said she was struggling and trying to kick him off, all while yelling for Mr. Sukhdeo to call the police. Mr. Holder then said, “You’re going to call the police? I’ll give you something to call the police for.” He then picked her up and body slammed her to the floor and stomped on her with one foot at least four times in the area of her chest.

[63] She tried to reach out and grab her phone, which was nearby. He grabbed the phone and shoved it into her mouth, breaking off four teeth, two on the top and two on the bottom. Then he dropped the phone and she called 911.

[64] As KP was calling 911, she saw that Mr. Sukhdeo had come out from the back area where the bathroom was located. She believed he had not come out prior to that. The 911 operator instructed KP to lock herself in the bathroom until police arrived, which she did. The police arrived very quickly, as they were already on their way in response to the call made by Ms. Ayube before KP had placed her call.

The 911 Call

[65] KP was in a panic, crying, and nearly incoherent throughout the 911 call. In answer to the first question about the nature of her emergency, she said she wanted the police. The next question asked for her address. It took her eight attempts before she could correctly state the address 3111 Eglinton Avenue East. In the middle of those attempts, she said “He broke my teeth.” This was not in response to any question, but rather blurted out while a calm operator was attempting to get a valid address. After the correct address was confirmed, the operator told her that they already had a call on this and help was on its way. The operator asked her if she needed an ambulance and she said that she did. She then said, “He’s trying to leave. He tried to throw me off a balcony.” She also said some other things, which are largely incomprehensible. The operator asked about weapons and KP told her that Mr. Holder bashed her with a beer bottle and a wine bottle. She provided an accurate description of his clothing, height, weight, and age. The operator asked her if she was able to leave the apartment, and KP replied that she was “trying to” but “[inaudible] stopping me.” The operator told her to lock herself in the bathroom, which she did. The operator then kept KP on the line until the police arrived and found her in the bathroom.

Evidence of Injuries

[66] The injuries to Mr. Holder were photographed at the police station. He had a small cut or scratch on his right nostril and another small cut or scratch near his left nostril. He also had a full round bite mark on his left arm just below his shoulder. Although Mr. Holder did not address how he got the bite mark in his testimony, in his oral submissions he argued that the bite mark was evidence of how KP broke her teeth, because she had bitten through the jacket, his shirt, and his skin.

[67] KP was photographed by police in the lobby of the apartment building before going to the hospital and also at the hospital. She and/or her daughter also took photographs of some of her injuries over the next couple of weeks after the incident. Four teeth were broken off. Her lips were swollen, cut, and bloody. Her right eye was swollen shut and bruised. Her neck was bruised in a manner consistent with strangulation. She had two areas of bruising on the right side of her face, as well as areas of bruising and swelling on her left shoulder, left thigh, and left knee. She testified that her left shoulder was fractured from being slammed to the ground and that she has two pinched nerves in her neck as well as a back injury. She also testified that being slammed on the ground aggravated a previous ankle injury and previous knee injury. She also has a herniated disc in her lower back, which she did not have before, although she did have a prior back injury. She said she continues to suffer from sciatica, migraines, and insomnia. Although there is no medical evidence confirming these internal complaints or linking them to the assault, there can be no doubt about the origin of the multiple cuts and bruises to her face, neck, and other parts of her body.

F. ANALYSIS

The Application of R. v. W.(D.)

[68] In R. v. W.(D.) the Supreme Court of Canada provided a helpful three-step formula to apply in considering the evidence to ensure that the presumption of innocence stays with the accused and the burden of proving the case beyond a reasonable doubt remains on the Crown throughout. The Court summarized that three-step process as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [15]

[69] Mr. Holder testified in his own defence. He provided a version of the events that cast him as the victim and KP as the aggressor. He denied attempting to throw her off the balcony and denied hitting her in any way. If I accept his evidence, he is not guilty of all charges against him. I do not accept Mr. Holder’s evidence. His evidence is completely inconsistent with the physical evidence, the evidence of two completely independent eye witnesses, some aspects of the evidence of his own cousin, and the evidence of his friend Mr. Vijay Sukhdeo on a crucial point. I find that Mr. Holder deliberately lied to the court to avoid responsibility for these charges.

[70] There is nothing about Mr. Holder’s evidence that gives me a reasonable doubt about any of the charges. His evidence is a tissue of lies. As I will deal with in more detail below, I do have a reasonable doubt with respect to whether he had the requisite intent for attempted murder, but that arises from the evidence as a whole, and not from the evidence of Mr. Holder.

[71] I therefore turn to the third step, which is an assessment of the whole of the evidence, including the defence evidence, and a determination as to whether the Crown has proven the charges beyond a reasonable doubt. I will deal first with the charges relating to the incident on the balcony and then the various specific assault charges.

Attempted Murder and Threatening Death

[72] KP testified that she did not take Mr. Holder seriously when he referred to throwing her off the balcony. The specific language of the alleged threat is not completely clear, but it appears to have been a contingent one. For example, “I would throw you off” and “If it wasn’t for one thing, I would throw you off.” At that point, she had no expectation that this was a serious threat to kill her. Up to that point in time, he was upset and angry but had exhibited no physical aggression towards her. She acknowledged being unsure of exactly how she got onto the balcony and that it could have been that he asked her to come out there and she went. That was because she did not fear him, nor expect that he actually would throw her off the balcony.

[73] As I noted above, KP testified that when they were on the balcony, Mr. Holder lifted her up and tried to push her over the rail. She said she was able to grab on to the rail with her hand completely around the railing. This happened three times, in the course of which she scratched Mr. Holder twice on the face and bit his shoulder.

[74] I find KP’s evidence on this point to be credible. I note that one of the first things she said to the 911 operator was that Mr. Holder tried to throw her off the balcony. The precise sequence of events may not be fully reliable, but I accept that Mr. Holder lifted KP off her feet and was pushing her towards the edge of the balcony while she held onto the railing. I accept that she was struggling to escape what she reasonably believed to be her death if he was successful in throwing her off the balcony. I also accept, as corroborated by the physical evidence, that she scratched and bit Mr. Holder during this altercation. Finally, I accept that KP honestly believed that Mr. Holder was trying to kill her. It was only then that she believed his earlier threat to throw her off the balcony was real.

[75] I am fully satisfied that the two witnesses from the neighbouring building saw what they believed to be a man attempting to throw a woman off the balcony of Apartment 604. It is also clear that these two individuals were Mr. Holder and KP. These witnesses were deeply concerned about the woman’s safety. Although not every detail of their recollection of the event is the same, the core nature of Mr. Holder’s actions is clear in their minds. They not only called 911, they went over to the apartment building to see if they could help. I find that their evidence substantially corroborates KP’s version of what happened on the balcony and is at odds with Mr. Holder’s version.

[76] Mr. Holder testified that his only interaction with KP on the balcony was to take a bottle away from her and that he then left her on the balcony and went inside. That is completely inconsistent with the interaction described by the two neighbours across the way. Mr. Holder’s explanation is that the two neighbours are lying out of animus towards Mr. Sukhdeo, who he asserted they resent because he has a cheaper rent and because he has loud parties. That makes no sense. The neighbours specifically said the man attempting to throw the woman off the balcony was not Mr. Sukhdeo. One of them saw Mr. Sukhdeo inside the apartment during the altercation, which is consistent with KP’s testimony about him being visible through the window. Quite simply, Mr. Holder lied about what happened on the balcony. I also reject the evidence of Mr. Sukhdeo on this point. It is not clear if he is lying about not being there to see this incident on the balcony because it reflects him in such a poor light, or if he was so inebriated that he does not remember.

[77] Although I accept the evidence of KP and the two independent witnesses as to what was happening on the balcony, that is not enough to be satisfied that Mr. Holder is guilty of attempted murder. In order to convict Mr. Holder of attempted murder, I would also need to be satisfied that he had the requisite intent to constitute this offence. Attempted murder is a specific intent offence. I must be satisfied on the evidence that the actions taken by Mr. Holder were carried out with the specific intention of killing KP. [16] This distinguishes the offence of attempted murder from that of planned and deliberate first degree murder. For the latter offence, the mens rea element is satisfied if the accused intended to kill the deceased or if he knew what he did was likely to kill the victim and was reckless about whether or not death ensued. This reckless element is not part of the crime of attempted murder. If KP had gone off that balcony she would almost certainly have been killed, and a murder conviction would likely follow (although perhaps not first degree murder given the absence of planning and deliberation). However, where the charge is attempted murder, the mental element is stringent. There must be an actual intention to kill.

[78] It is difficult to know what was in Mr. Holder’s mind at the time. He lied about his conduct at trial. However, that is not sufficient for me to infer that he had the specific intent to kill. Such an act would have been very out of character. Even KP did not believe his threat to throw her off the balcony was serious until he actually picked her up and moved her towards the edge of the balcony. Mr. Holder’s subsequent conduct inside the apartment, although violent, was not consistent with an intent to kill. He did not appear to be following through with murdering KP if in fact that had been his intention on the balcony.

[79] It is at least possible that he was enraged by her failure to take him seriously and was pretending to throw her off the balcony to scare her. I cannot be sure that he intended to actually do it. If KP had lost her grip on the railing, would he have tossed her off the balcony to her death? Perhaps. But I am not sure. I am left with a reasonable doubt based on the whole of the evidence. I therefore find Mr. Holder not guilty of attempted murder.

[80] However, Mr. Holder’s actions towards KP on the balcony were definitely an assault. Further, his actions clearly endangered the life of KP. In the struggle she could easily have gone over the edge of the balcony and would surely have been killed. This constitutes aggravated assault. While aggravated assault is not always an included offence of attempted murder, it can be if the indictment is sufficiently particularized. [17] In this case, Count 1 is particularized to allege that Mr. Holder “did attempt to murder [KP] by attempting to throw her over a balcony.” For this reason, I find that aggravated assault is a lesser included offence within the attempted count murder. I am satisfied beyond a reasonable doubt as to the requisite elements for the offence of aggravated assault, including an assault, significant endangerment to life, and objective foresight of the risk of bodily harm. [18] Therefore, and I find Mr. Holder not guilty of attempted murder but guilty of aggravated assault.

[81] With respect to the charge of threatening death, I accept KP’s evidence as to what Mr. Holder said. Even on her evidence, this was a qualified threat, not an actual threat to kill. Further, at the time, KP did not believe it to be a genuine threat to cause her harm or kill her. In these circumstances, I am not satisfied beyond a reasonable doubt that Mr. Holder intended to intimidate KP or that he intended his threat to be taken seriously. [19] Accordingly, I find Mr. Holder not guilty of threatening to kill KP.

Other Assaults

[82] KP testified that after leaving the deck and returning to the living room, Mr. Holder continued to assault her violently. She described being on her back on the couch with Mr. Holder on top of her. Mr. Holder denies this. However, Mr. Sukhdeo acknowledged seeing this and said Mr. Holder was the aggressor and had his fist in KP’s face. As I have already said, Mr. Sukhdeo is not the most reliable witness. However, his evidence with respect to other matters was more about not remembering things or claiming not to have seen things. I do not believe he would have invented a story about his friend assaulting KP in this manner unless he had actually seen it. I find his evidence corroborates KP’s version of the events and contradicts the testimony of Mr. Holder.

[83] When the 911 operator asked KP if Mr. Holder had any weapons, KP told her that he had hit her with a wine bottle and a beer bottle. Those are very specific memories and were blurted out to the 911 operator, not as part of a narrative but in response to a question about weapons. In my view, having listened to the tape, KP was terrified, in pain, and still trying her best to answer questions put by the operator. She was in no state to be deliberately fabricating a story about Mr. Holder hitting her with a wine bottle and a beer bottle. She said that he shoved these bottles into her mouth. Her lips and face near her mouth have injuries consistent with that version of events and completely inconsistent with Mr. Holder’s testimony that she must have sustained those injuries when they fell beside the couch. I believe these incidents happened as described by KP.

[84] KP also testified that Mr. Holder shoved a cellphone into her mouth, breaking four of her teeth. Again, this is a very specific recollection and wholly consistent with the physical injuries to KP, which included four broken teeth. KP also had bruising and swelling in the area of her throat where she said Mr. Holder was choking her. Again, the photographs of KP immediately after the incident are fully consistent with her being choked in the manner she described. Mr. Holder’s explanation that she broke four teeth in the course of biting his arm is ludicrous. I note that it was not part of his testimony given under oath, but rather offered in the course of submissions. However, I will make allowances for the fact that he was not represented by counsel. The injury to Mr. Holder’s arm is consistent with him being bitten, which indeed KP said she did on the balcony. However, any lay person can see that the extent of those bite marks, given it was through a shirt, a sweater, and a jacket, is not sufficient to have broken off four teeth.

[85] I found KP to be a truthful witness. She may have some sequencing wrong and be mistaken about details about how she got from one point in the apartment to another or where specific things happened. However, I am satisfied as to the honesty of her testimony about the central core of her story. I also found her to be very fair in conceding points she could not remember, including conceding things that ultimately led me to acquitting Mr. Holder on some of the charges against him. I am satisfied beyond a reasonable doubt that Mr. Holder held her down on the couch and assaulted her, grabbed her with force against her throat, assaulted her again when she was on the floor, stomped on her, and assaulted her with a beer bottle, a wine bottle, and a cellphone. She sustained multiple injuries as a result of these assaults, which were far more than trivial or fleeting in nature.

[86] I find that Mr. Holder committed the offences alleged in Count 3 (assault), Count 4 (assault with a beer bottle), Count 5 (assault with a wine bottle), Count 6 (assault with a cellphone), and Count 7 (assault causing bodily harm). Counts 4, 5, and 6 were separate assaults with three different weapons. I find Mr. Holder guilty on those counts. I also find him guilty of Count 7, which is assault causing bodily harm. However, all these assaults were a continuous series of acts. In my oral reasons, I found that Count 3 (common assault) related to the “various stomping and punching and the incident on the couch,” and I found Mr. Holder guilty on that count. On further reflection, I believe this count is subsumed within the more serious offence of assault causing bodily harm. I am therefore staying Count 3, pursuant to the principles in Kienapple v. R. [20]

G. CONCLUSIONS

[87] For the reasons stated, I have reached the following verdicts:

Count 1: Not Guilty of attempted murder, but Guilty of aggravated assault (attempting to throw KP over the balcony)

Count 2: Not Guilty of threatening death

Count 3: Stayed pursuant to the principles in Kienapple

Count 4: Guilty of assault with a weapon (beer bottle)

Count 5: Guilty of assault with a weapon (wine bottle)

Count 6: Guilty of assault with a weapon (cellphone)

Count 7: Guilty of assault causing bodily harm

Count 8: Not Guilty of assault with a weapon (motor vehicle)

Molloy J. Released: December 11, 2024

Footnotes

[1] However, see paragraph 86 below. Instead of a conviction on this count, I am staying it as duplicative.

[2] R. v. Rahmanzadeh, [2005] O.J. No. 925 (S.C.); R. v. Dessouza, 2012 ONSC 210, 2012 CarswellOnt 980 (“Dessouza”); R. v. Byrnes, 2012 ONSC 2090, 2012 CarswellOnt 4003 (“Byrnes”); R. v. Brown, 2015 ONSC 4121, [2015] O.J. No. 4125 (“Brown”); R. v. Bryan, 2024 ONSC 3497, [2024] O.J. No. 2955 (“Bryan”).

[3] Brown, at para. 39.

[4] R. v. L.(D.O.), (1991), 73 Man. R. (2d) 238, at pp. 185-186 (C.A.).

[5] R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 42.

[6] Dessouza, at para 35.

[7] Byrnes, at para. 28.

[8] Ibid, at para. 32.

[9] R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520 (“Khan”).

[10] Ibid, at para. 59.

[11] Ibid, at paras. 69-71.

[12] R. v. Zameer #3, 2024 ONSC 91, 2024 CarswellOnt 5661.

[13] R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161 (“Edgar”).

[14] R. v. Zameer #4, 2024 ONSC 2483, [2024] O.J. No. 2027, at para. 43.

[15] R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758.

[16] R. v. Ancio, [1984] 1 S.C.R. 225, at p. 249; R. v. B.F., 2024 ONCA 511, 439 C.C.C. (3d) 421, at para. 36.

[17] R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279; R. v. Longson (1976), 130 C.C.C. (2d) 141, [1976] 6 W.W.R. 534 (B.C.C.A).

[18] R. v. Godin, [1994] 2 S.C.R. 484, 89 C.C.C. (3d) 573, [1994] 97.

[19] R. v. Clemente, [1994] 2 S.C.R. 758; R. v. O'Brien, 2013 SCC 2, [2013] 1 S.C.R. 7; R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931.

[20] Kienapple v. R., [1975] 1 S.C.R. 729.