Ontario Superior Court of Justice

Court File No.: CR-25-10000006-0000AP
Date: 2025-07-10

BETWEEN:
His Majesty the King
– and –
Fouad Barkouk

N. Golwalla, for the Crown
M. Halfyard, for Mr. Barkouk

Heard: 24 June, 2025

S.A.Q. Akhtar

Overview

[1] On appeal from the conviction entered on 11 October 2024, by Justice Richard Libman of the Ontario Court of Justice and the sentence imposed on 10 January 2025.

Factual Background and Overview

Background Facts

[2] The appellant was the complainant’s driving instructor. On 15 October 2021, the complainant was taking a lesson with the appellant. She sat in the driver’s seat with the appellant seated next to her in the front passenger seat. The complainant testified that the appellant addressed her using terms such as “habiti” or “habibi”. These words, in English, are the equivalent of "love" or "dear".

[3] During the course of the ride, the complainant testified that the appellant placed his hands on her shoulder and squeezed her leg. She said that he reached round her back to touch her left shoulder without saying anything. During the rest of the drive he was very talkative. The complainant said that the appellant continuously touched her right thigh, using a "slapping motion or on another occasion squeezing it”. She testified that the appellant’s contact with her thigh was close to her genital area. After the lesson ended, the complainant testified that the appellant offered to give her a hug but she declined.

[4] The complainant testified that she informed her family about what had happened but did not immediately contact the police. The appellant called her a few days later asking if she wanted additional lessons, but she sent him a text message that she would not be using his services again. The complainant finally reported the incident to the police seven months later, in June 2022.

[5] The appellant testified that there had only been one lesson with the complainant, and they both conversed in Arabic. He used the words “habibi” or “habiti” in the same way as someone using English would use the word "dear". He denied using the term to impart a romantic connotation. The appellant said that he wore a mask, medical gloves, and a face shield because of the Covid-19 health restrictions.

[6] The appellant also denied touching the complainant in the manner that she had testified. When cross-examined on whether he had touched her thigh, the appellant said that he was not sure and could not remember. He did leave open the possibility that "he could have done". The appellant testified that he would touch a student if they were driving too fast and would only tap a part of the student’s body if they did not respond to his commands, for example, to brake. The appellant said it would be very unusual to tap someone 20 times in a single lesson, or to do so continuously, and he had not done so in this case. He also made it clear that he did not lean over to touch the complainant’s left shoulder whilst she was driving because it would have been dangerous to do so.

[7] The appellant asserted that, at one point, the complainant made a left turn but failed to notice oncoming traffic. Consequently, the appellant felt compelled to grasp the steering wheel and apply the brake. The appellant testified that he had touched the complainant with his hand while performing this action. However, he could not recall any other instances of contact during the lesson.

[8] The defence also called two character witnesses, both former students of the appellant. One witness testified that, during the course of their lessons, the appellant might make physical contact with them. However, these forms of contact were limited to brief taps on the hand and knee, accompanied by instructions. The other witness stated that there was minimal physical contact, such as tapping her hand to convey an instruction or reminding her that she might be driving too fast. Both witnesses described the appellant’s reputation for honesty and integrity within the community.

[9] At the conclusion of the trial, the trial judge accepted the complainant’s version of events and rejected the appellant’s testimony. He found that the Crown had proven the charges beyond a reasonable doubt and found the appellant guilty.

[10] When sentencing, the judge rejected the defence position that a conditional discharge would be appropriate and, instead, imposed a suspended sentence with probation.

The Grounds of Appeal

[11] The appellant raises three grounds of appeal against conviction:

(1) The trial judge erred in his application of the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742;

(2) The trial judge misapplied the test set out in R. v. Chase, [1987] 2 S.C.R. 293; and

(3) The trial judge erred in his treatment of the character evidence called by the defence.

[12] Finally, the appellant also submits that the judge erred by imposing a suspended sentence instead of a conditional discharge.

Analysis

Did the Trial Judge Misapply W.D.?

[13] The W.D. test is well known and directs a trier of fact to acquit an accused if they believe them, if their evidence raises a reasonable doubt, and, even if neither of these things occur, to determine, on the balance of the evidence that they do accept, whether the Crown has proven guilt beyond a reasonable doubt.

[14] In his review of this case, the judge did not err in applying the test as set out by the Supreme Court of Canada. He examined the evidence in accordance with the principles set out in W.D. and convicted accordingly. On this ground, the appellant attempts to re-litigate the case by asking this court to pronounce on the credibility and factual findings of the trial judge by questioning the reliability of the complainant’s evidence.

[15] Contrary to the appellant’s assertions, the trial judge did not fail to consider whether his evidence could raise a reasonable doubt on its own. He was entitled to use the complainant’s evidence, and his belief in that evidence, to reject the appellant’s evidence: see R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.), para. 53.

[16] However, the trial judge did make a factual error that proves fatal to the conviction in this case.

[17] When reviewing the appellant’s evidence, and whether it raised a reasonable doubt, the trial judge noted the following:

None of this is to say, however, that the conduct alleged of Mr. Barkouk in tapping and making contact with the complainant did not occur. Indeed, he himself acknowledges that he would have made contact at least with her leg and her hand on some occasions. I accept the concession by the Crown that his putting his hand on the steering wheel and coming in contact with the complainant would not amount to any form of assault that should be criminalized.

I find as a fact, however, that during the driving lesson, indeed, as Mr. Barkouk acknowledged, that he made physical contact with the complainant. I consider in the evidence given by Mr. Barkouk that he downplayed, however, the number of times that he made contact with the complainant, and that he made contact with her in the shoulder area and above the knee. I am satisfied in my review of the testimony that Mr. Barkouk did make physical contact in a tapping motion with the complainant. Indeed, I note that his making contact in a tapping motion is something that he himself would do and has acknowledged. Accordingly, I do not find that in the evidence of Mr. Barkouk, both that I believe and that I have indicated I feel he has downplayed leads me to have any doubt that the offence occurred, and particularly, that he made contact with the complainant in the manner that she has alleged. [Emphasis added].

[18] The problem is that the appellant did not acknowledge making contact with the complainant’s leg.

[19] During the course of his testimony, the appellant agreed that he had tapped other students on the leg when giving instructions. In cross-examination by the Crown, he said that he was not sure whether he had done so with the complainant. His evidence was as follows: “I don’t remember, of course, so I’m not sure. But in case there was a scenario, in the scenarios we have discussed, I could have done.”

[20] This is an important point because the judge accepted, as a fact, that the appellant had admitted to touching the complainant’s leg “on some occasions” and was “downplaying” his evidence of contact. The passage reproduced above shows that the misapprehension may well have played a significant role in his conclusion that the appellant had committed the offence.

[21] Although the appellant did not specifically argue a ground of appeal of misapprehension of evidence, the issue did arise during oral submissions and I asked both parties to comment upon it.

[22] A misapprehension of evidence involves an error about the substance of evidence, a failure to take into account evidence relevant to a material issue, or failure to give the appropriate effect to an item of evidence: see R. v. Morrissey, 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 219; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, para. 46.

[23] Not every misapprehension of evidence is fatal to a verdict. The misapprehension must be material and play an essential role in the reasoning of the trial judge, not just in the narrative of the judgment: see R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, paras. 2–6; R. v. Sinclair, 2011 SCC 40, 3 S.C.R. 3, para. 5; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, para. 19.

[24] I find that, in this case, the misapprehension was material and appeared to play a significant role in the judge’s W.D. evaluation.

[25] For these reasons, I find that the judge’s otherwise impeccable W.D. analysis was flawed, and the appeal must be allowed.

Did the Trial Judge Misapply Chase?

[26] In R. v. Chase, [1987] 2 S.C.R. 293, the court explained, at para. 11, how an assault would constitute sexual assault:

Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich"A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

[27] Here, the trial judge cited Chase and R. v. Edgar, 2016 ONCA 120, 344 O.A.C. 399, and found the following:

In this case, unlike Edgar, the defendant did apply force to the complainant. I am satisfied that the force that he applied falls within the definition of sexual assault as that term has been defined and interpreted by our courts. The complainant I find objectively and reasonably viewed that her sexual integrity and autonomy was violated by Mr. Barkouk’s repeated making physical contact with her during the hour-long driving lesson, accompanied by the words which I accept were not uttered for a romantic nature but, again, contributed to all of the circumstances that occurred. Viewed by a reasonable observer, I am satisfied beyond a reasonable doubt that the sexual integrity and autonomy of Ms. Nasri was violated. [Emphasis added].

[28] The appellant argues that the trial judge misapplied Chase because he found that the complainant’s sexual integrity was violated only because the complainant subjectively felt that the appellant’s touching, use of words, and repeated contact was of a sexual nature. The appellant submits that the judge did not consider whether the touching was instructive from an objective point of view.

[29] I disagree. Whilst the judge did refer to the complainant’s state of mind as demonstrating that her sexual integrity had been violated, he also explicitly turned his mind to what a “reasonable observer” might take from the appellant’s actions when determining whether the touching was sexual. There was no error.

Misuse of the Character Evidence

[30] As described, the defence called “character” witnesses – two other driving school instructees – who testified that the appellant had touched them during the lessons for instructional or corrective purposes. The judge found that their evidence was not of much moment. I agree with this characterisation. The judge found that, according to the witnesses, the appellant was professional and possessed good reputation in the community. He also noted that some of the lessons did involve touching.

[31] However, it was open to the judge to find their evidence to be “inapplicable” when considering the complainant’s evidence.

[32] In R. v. J.B., 2015 ONSC 7901, paras. 10, 23–24, Coroza J. (as he then was) commented on this type of character evidence in the following way:

When an accused calls character witnesses, these witnesses are restricted to providing the trier of fact with evidence of general reputation, and they are not permitted to testify in-chief as to specific acts or conduct of the accused.

The Court of Appeal has held that there is virtually no probative value in the testimony of witnesses called by the defence to give evidence that the accused did not engage in sexual relations with other young females: see: R. v. F.W.T., 151 C.C.C. (3d) 50, paras. 44-51. The Court put it this way: The fact that the appellant did not engage in sexual relations with six, or even thousands, of students during his career is of virtually no probative value. It is, as the Crown put it in its factum"akin to a bank robber adducing evidence of all the banks he went into in his life from which he didn't steal money". Thus, even if the appellant's label of circumstantial evidence of innocent association is correct, it does not help the appellant. Even the most dedicated criminal has many moments of innocent association.

[33] This is an analogous situation. The fact that the appellant did not inappropriately touch other students is of no probative value in determining whether he sexually assaulted the complainant in this case.

[34] This ground of appeal has no merit.

Sentence Appeal

[35] Given my conclusion that the appeal must be allowed on the judge’s error in assessing the evidence under W.D., it is unnecessary to address the sentence appeal.

Conclusion

[36] For the foregoing reasons, the appeal is allowed and the matter is remanded to appear at courtroom #203 at the Toronto Courthouse, 10 Armoury Street, on Wednesday, 30 July 2025, at 2 pm.

S.A.Q. Akhtar

Released: 10 July, 2025