R. v. Al-Khulaifi, 2026 ONSC 3203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Applicant
– and –
OMAR ABDULAZIZ TALEB AL-KHULAIFI
Respondent
Ari Linds, for the Applicant
Andrew Vaughan, for the Respondent
HEARD: May 12, 13, 14, 15, 20, June 6, 12, 13, 20, 27, August 8, and November 18, 2025
pinto j.
NON-PUBLICATION ORDER UNDER S. 486.4
AN ORDER IS IN PLACE DIRECTING THAT ANY INFORMATION THAT COULD IDENTIFY THE complainant SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY
CORRECTED reasons for rulings on crown applications
Overview
1At this judge-alone sexual assault trial, the Crown brought applications seeking:
(a) The admission of the complainant’s statement to police provided on December 11, 2022, and the complainant’s evidence given at the preliminary inquiry on January 29 and 30, 2024.
(b) The admission of the complainant’s purported res gestae statements made to Toronto Community Housing Corporation (“TCHC”) special constables Miguel and Nicoll soon after the alleged assaults.
(c) The admission of Mr. Al-Khulaifi’s utterances to the complainant, captured on the body-worn camera (“BWC”) of Toronto Police Service (“TPS”) officers Tannous and Windebank after Mr. Al-Khulaifi was arrested, and as he was being led to an ambulance in the early morning hours of December 7, 2022.
2The Crown applications required a voir dire that involved the viva voce evidence of officers Ferguson and Gibson who facilitated the complainant’s police statement, TCHC special constables Miguel and Nicoll, who encountered the complainant immediately after the alleged assaults, and TPS officers Windebank and Tannous, who escorted Mr. Al-Khulaifi to an ambulance.
3The applications were brought primarily because the complainant provided her evidence-in-chief at trial, but failed to complete her cross-examination, purportedly due to a mental health crisis. The Crown confirmed that the complainant would not be returning to court. Subsequently, the complainant attempted suicide. Following this development, I heard the Crown applications. The Defence opposed the Crown applications pertaining to the complainant’s out-of-court statements and Mr. Al-Khulaifi’s utterances, but did not oppose the admission of the complainant’s res gestae statements.
4On November 18, 2025, I granted the Crown applications with written reasons to follow. These are those reasons.
Background
5The complainant is a young woman of Indigenous background from a First Nations community in northern Ontario.1 She was 20 years old at the time of the alleged assaults on December 7, 2022 and had recently moved into a single-occupancy apartment in the East York area of Toronto. The building was managed by TCHC. The complainant was raised in foster care and group home settings. Despite being an adult, she was still supported by First Nations Children’s Aid Societies (“CAS”). She was diagnosed with a number of alcohol dependence and mental health issues and had engaged in self-harming behaviour.
6The complainant provided an audio statement to police while she was in hospital on December 7, 2022, following the alleged assaults. Her audio statement was not entered into evidence at trial. She then provided a video statement to police on December 11, 2022. She also testified on the first two days of a preliminary inquiry that was held on January 29, 30, and 31, 2024.
7The trial commenced on May 12, 2025. The Crown brought a testimonial aids application for the complainant to testify via CCTV with specific mental health and cultural supports (smudging, swearing/affirming on an Eagle Feather). I granted this application on consent.
8The complainant commenced her testimony via CCTV late in the afternoon on May 13, 2025. In her examination-in-chief, she described how another young Indigenous woman, S, had come over to her apartment on the evening of December 6, 2022. Later that night, Mr. Al-Khulaifi came over. The three of them watched TV shows on the complainant’s computer and drank alcoholic beverages.
9The complainant testified that S and Mr. Al-Khulaifi got into a verbal dispute. S got upset, pushed the complainant into a closet, and walked out of the apartment. The complainant tried to follow S but Mr. Al-Khulaifi repeatedly prevented her from doing so. He physically beat and kicked her and then sexually assaulted her vaginally and orally in the apartment, pulling off her shorts and underwear in the process. She managed to escape and ran out of the apartment wearing only a shirt and sweater on top. She ran into two TCHC officers who called for medical and police assistance.
10When Crown counsel asked the complainant if any of the injuries that she experienced were still a factor in her daily life, her answers turned sarcastic:
Q. Okay, that’s fine. Ms. [complainant] we know that you had a number of different injuries. Are any of the injuries that you experienced, are they still a factor in your day-to-day life? Do you know what I mean by that? Do you still feel the effects of any injuries today? Do you understand my question?
A. No, I’m fine. I’m fine. Everything’s fine. You know what – this is all just for nothing. Nothing happened, nothing happens. I’m a complete liar. I didn’t get beaten and raped. Omar’s completely innocent. I just beat myself up that day. I just raped myself. I just fucked myself over that day.
11Crown asked a few more questions seeking to clarify the complainant’s response. The complainant continued to state, “Yeah. I fucked myself over. I raped myself. I beat myself up” and, “I punched myself in the face. I fucking snapped. I did it all to myself. He never laid a finger on me. That’s what you guys want to hear.”
12As the presiding judge, I advised the complainant that I wanted to hear the truth. The complainant, who was still testifying via CCTV, responded, “They told me you’re not the judge. You’re just the guy fucking signing me in.” I reiterated that I was the presiding judge and expressed interest in what the complainant had to say.
13In the balance of the first day of her testimony, the complainant testified that she had told her story “a thousand fucking times”, and she said, “You guys have the evidence” and, “Why do I need to fucking defend myself for?” By this point, it was 4:30 p.m. I explained that the court needed to conclude proceedings for the day but would come back the following day to complete the complainant’s evidence. The complainant stated that she had been waiting the whole previous day to testify and said, “You guys are the one wasting fucking time.” She also stated, “I already said I lied. It's already out the window.” I advised the complainant that I would think about her evidence, to which the complainant replied, “I don’t really care. He can go beat women and go rape women all he wants … I don’t want to be put through this anymore.”
14The complainant returned to court the next day, May 14, 2025. The complainant asked to testify in person, and I permitted her to do so with the same testimonial aids provided previously. She testified that, the previous day, she was upset and overwhelmed. Her medical records were entered on consent.
15For a while, the complainant continued answering the Crown’s questions. She again testified about being physically beaten and sexually assaulted by Mr. Al-Khulaifi before running out of the apartment partially clothed. At certain points, the complainant was excluded from the courtroom while I dealt with objections. I also made a number of oral rulings concerning the admissibility of evidence.
16Following the lunch break, Crown counsel asked the complainant if she remembered speaking to police when she was asked about any injuries to her neck. The complainant responded that she did not. The Crown attempted to refresh the complainant’s memory, which led to the following exchange:
Q. All right. Do you remember if when you spoke to police you were asked about any injuries to your neck?
A. Yeah, I don't remember.
Q. Okay. We know that you provided a statement, you provided one on December 7th and one on December 11th. Would you like to see your statement to refresh your memory?
A. No.
Q. Sorry?
A. No.
Q. You – you don't want to see your statement?
A. No.
Q. Why?
A. I don't want to.
Q. Is there a reason you’d like to give us for that?
A. I don't want to.
Q. Okay.
A. LINDS: Well, there’s my answer, Your Honour.
THE COURT: Okay.
17The Crown concluded its examination of the complainant.
18Counsel for Mr. Al-Khulaifi commenced his cross-examination of the complainant. He got a few questions in before the complainant started answering every question with, “I don’t know.” I interrupted the cross-examination and reminded the complainant that she swore to tell the truth and was affirmed holding an Eagle Feather. Defence counsel re-commenced his cross-examination focusing on the issue of whether and when the complainant stabbed or cut herself with a knife.
19This led to an exchange between myself and the complainant in which the complainant stated, “Well, can’t just everyone just realize we’re not getting anywhere right now?” I advised the complainant that she was the person who was in control of what I was hearing. The complainant responded that, since she had control of the situation, she was ending it now. This culminated in the following exchange:
THE WITNESS: Yeah. So, maybe you guys should wait until I’m not fucking upset, and maybe you guys should fucking listen, and do the dates and times you guys fucking agree on, ‘cause was I not fucking here Monday? I was. Was I not fucking here Tuesday? I fucking was.
THE COURT: Right.
THE WITNESS: So, fuck you. Like, fuck off. I don’t want to fucking deal with this. I don’t fucking have to. Like, fuck all you guys.
THE COURT: Okay.
A. VAUGHAN: At some point, Your Honour, there’s a contempt issue – there’s a contempt issue here, Your Honour.
THE COURT: Miss – right. Ms. [complainant], here’s my question for you, if we take a ten minute break –
THE WITNESS: A break isn’t going to solve anything. Do you think I'm going to go out there, ten minutes, I’m going to come back and feel completely normal? Like, no.
THE COURT: Well, I don’t expect you to feel completely normal, but I expect –
THE WITNESS: It’s –
THE COURT: – you to respect the court, first of all.
THE WITNESS: That’s not going to happen.
THE COURT: And I – and I expect you to respect what you want –
THE WITNESS: You guys don’t respect me; I don't respect you guys.
THE COURT: Well –
THE WITNESS: You guys didn’t respect my time, so I don’t respect your time. Easy as that. You give what you put out, right?
THE COURT: Okay. I’m going to – I'm going to hear – I’m going to actually ask you to leave, and we’re going to take a break, because I need to hear from the lawyers as to what I do next. Let me just say from my part, I do want to hear from you –
THE WITNESS: No, you’re done.
THE COURT: – and I want to hear –
THE WITNESS: You’re sick of me.
THE COURT: – the truth.
THE WITNESS: You don’t want to see me anymore.
THE COURT: Okay, I’m telling you the opposite.
THE WITNESS: I’m going to make that happen. I’m going to make you not want to see anymore, so that’s what’s going to happen. I'm going to piss you the fuck off, where you’re going to say I don't want to deal with anymore, I’m done with it, I’m leaving. That’s what’s going to fucking happen.
THE COURT: Well, I'm just putting on the record that I – that is the very opposite that I want. I actually want to hear from you.
THE WITNESS: No, you don’t.
THE COURT: Well, why do you keep on saying that?
THE WITNESS: You don’t fucking care, so don’t fucking sit there and act like you fucking care. Like, fuck off.
THE COURT: Okay. Well, Ms. [complainant], I do think I have to get to hear from the lawyers. So, I am going to respectfully ask you to step outside, and I’m going to bring you back as soon as I can.
THE WITNESS: I’m not coming back.
20I excluded the complainant and heard submissions from counsel. Defence counsel advised that, in light of the complainant’s conduct, he may have to bring a mistrial application.
21I readmitted the complainant to the proceeding and advised her that, due to her comments, and it being late in the afternoon, her cross-examination would not be continuing that day. The complainant apologized for swearing at the court, but advised that she was not coming back the next day. I advised her, notwithstanding her comments, that I was directing her to re-attend the following day to continue her cross-examination. She left the courtroom.
Voir Dire
Evidence of OIC Kathryn Ferguson
22The following day, May 15, 2025, the Officer-in-Charge (“OIC”) DC Kathryn Ferguson testified and notified the court that the complainant would not be returning to court. The OIC had received a text from the complainant stating that the complainant and her foster mother had left Toronto in the morning and were back in their hometown. The complainant was residing with her foster mother.
23DC Ferguson testified that she had known the complainant for 29 months and maintained a line of communication with her. She took over from Detective Gibson as OIC in October 2024. There would be some periods during which there was no communication for a few months and some points during which the communication would be several times a week.
24DC Ferguson liaised with the complainant’s support workers from the Indigenous CAS. Normally, the complainant would have aged out of their care. The complainant was an orphan. Another woman was identified as the complainant’s foster mother.
25DC Ferguson testified that the complainant was diagnosed with Fetal Alcohol Spectrum Syndrome, based on what she was told by the complainant’s CAS support workers as well as the complainant’s foster mother. The complainant also had a second diagnosis of PTSD, which she was diagnosed with in 2022, as determined from the complainant’s Form 1 for mental health apprehensions.
26According to DC Ferguson, the complainant was also diagnosed with:
Severe anxiety and severe depression.
Suicidal ideation and self-harming tendencies.
Alcoholism – the complainant had been receiving treatment for a long time but may have been recently sober.
27DC Ferguson testified that it was her belief that the complainant experienced a mental health crisis in court and when she left the courtroom. The officer had come to understand that some of the complainant’s mental health apprehensions required medical and psychiatric intervention. The officer acknowledged that she was not a trained mental health professional.
28DC Ferguson testified that when the complainant exited the courtroom, she was in distress, crying and repeating that “she was broken”, her “brain had snapped”, and that she could not continue with her testimony. The officer offered her more resources, but that did not change the complainant’s position. DC Ferguson testified that she made further efforts to secure the attendance of the complainant on the morning of May 15 but was advised that she was no longer in the city and had returned home, which was many hours away from Toronto.
29DC Ferguson’s belief was that it would be almost impossible to bring the complainant back and that it would be detrimental to her health. The officer conceded that she was not aware of what medical care the complainant was receiving during the trial proceedings. She was not aware if the complainant had sought or received any medical interventions or assistance. The complainant was aware that she was under subpoena to attend court and was being offered all the supports that had been provided to date.
30The Crown advised that it was not seeking a material witness warrant in respect of the complainant.
31On May 20, 2025, DC Ferguson testified and updated the court on the complainant’s status. She advised that the complainant had moved out of her apartment at 5 Wakanda Place in Toronto. The complainant was under the care of an addictions and mental health counsellor and a psychiatric nurse practitioner. I indicated that I was not satisfied with relying on OIC Ferguson’s description of the complainant’s mental health condition without a professional mental health practitioner signing off on her diagnosis and status.
32On June 6, 2025, the Crown advised the court that the complainant had attempted suicide, was hospitalized, and was back home, but not in very good shape. The Crown confirmed that the complainant would not be re-attending court and that it was going to proceed with its applications.
33On June 12, 2025, DC Ferguson testified again. She explained that on May 20, the complainant’s mother advised that the complainant was still not doing well. She learned that the complainant attempted suicide on May 30 via intentional overdose of prescription medications. This came on the heels of an alcohol relapse after the complainant had been sober for several months, which was a significant amount of time for her. She was admitted to Kingston Health Sciences Centre and was placed on a Form 1 (Application by Physician for Psychiatric Assessment) under the Mental Health Act, R.S.O. 1990, c. M.7. She was held overnight and monitored.
34DC Ferguson presented a medical discharge note from Kingston Health Sciences Centre dated June 1, 2025 in respect of the complainant. The note was from Dr. Marie Leung, an attending physician. The medical note stated that the complainant was a 23-year-old woman with prior history of major depressive disorder and concomitant mental health disorders (alcohol use disorder, ADHD, PTSD, generalized anxiety disorder) who presented after intentional overdose of psychiatric medications. The complainant also co-ingested alcohol. The note referenced “multiple social stressors in the preceding month related to prior PTSD”. The medical discharge note was copied to the complainant’s general physician, Dr. Scott Styles, and to Alicia Scerio, a psychiatric nurse practitioner.
35DC Ferguson stated that she continued to believe that even asking the complainant to testify further would be deleterious to the complainant’s mental health.
36DC Ferguson testified that the complainant had not attended any appointments with Dr. Styles for several years. However, DC Ferguson had been in contact with Tavis Knox, the complainant’s mental health and addictions counsellor, and Ms. Scerio, who were both willing to testify in court and shed light on the complainant’s health condition.
Evidence of Tavis Knox
37Tavis Knox testified that he works with the complainant as her addiction and mental health support worker. His CV was entered into evidence on the voir dire. Mr. Knox works at Addictions and Mental Health Services of Kingston Frontenac Lennox and Addington.
38Mr. Knox has worked in the field of addictions and mental health for roughly six years. He has around four years of experience in the field of addictions counselling. He currently supports youth, but he has worked with adults as well. He meets with individuals that are looking for support around their substance use goals. He works with other professionals and is part of a multidisciplinary team – an addictions doctor and other co-workers. The team is affiliated with the out-patient psychiatry unit through Kingston Health Sciences Centre.
39Mr. Knox had been seeing the complainant since February 2025. He was made aware of the complainant’s admission to hospital, treatment, and discharge. At his meeting with the complainant on May 20, 2025, he learned that the complainant had relapsed on May 3. Between February and May 3, 2025, she had abstained from alcohol. He subsequently met with the complainant on June 12.
40He wrote a letter around June 5, 2025 to “whom it may concern”. The letter was drafted to communicate that the complainant expressed that taking the stand as a victim/witness had been traumatic to her. She had struggled to control her emotions due to being so overwhelmed with the process. She had struggled to cope in the days after, and her symptoms of anxiety and depression worsened. It was his professional opinion that her taking the stand at trial was detrimental to her overall mental health and substance use goals/recovery.
41Mr. Knox testified that the complainant had expressed to him just how traumatizing it was for her to take the stand. She acknowledged her inability to control her emotions and using inappropriate language toward a judge.
42He had limited information about the complainant’s self-harming, but he was aware that she had some mental health supports in place.
43In cross-examination, Mr. Knox acknowledged that the complainant expressed anxiety before coming to court to testify. He acknowledged that the relapse in her alcohol use occurred on May 3, 2025, which was prior to her attendance in court from May 12 to 14. She was having difficulty with alcohol, and her alcohol use definitely affected her emotional regulation.
Evidence of Alicia Scerio, Psychiatric Nurse Practitioner
44Alicia Scerio is a nurse practitioner with the Psychiatry Clinic, Community Mental Health Services, Northumberland Hill Hospital, in Cobourg, Ontario. She received a consent from the complainant to discuss the complainant’s health issues. She started meeting with the complainant in April 2025 and had had four meetings to date. She explained that, due to a lack of psychiatrists in Ontario, psychiatric nurse practitioners are employed. There were similarities in the services that psychiatric nurse practitioners and psychiatrists provided, but only psychiatrists could certify individuals under the Mental Health Act, R.S.O. 1990, c. M.7.
45Ms. Scerio provided a letter dated June 23, 2025 that summarized her experience dealing with the complainant. In the letter she stated that, in her opinion, having the complainant return to trial would be significantly detrimental to the complainant’s mental health. She arrived at that conclusion because the complainant had expressed extreme distress following her attendance at court and subsequently relapsed in her alcohol use, and a severe suicide attempt fearing that it may reoccur. She noted that the complainant also had a history of self-harm and cutting.
46In cross-examination, Ms. Scerio acknowledged that the complainant had other stressors such as domestic violence within an intimate relationship, and the loss of her cat. However, Ms. Scerio still believed that the main stressor leading the complainant to attempt suicide was her participation in the criminal trial. Ms. Scerio testified that the complainant’s intemperate behaviour in court was a result of becoming emotionally dysregulated, experiencing a mental health crisis, and being unable to continue. In re-examination, Ms. Scerio testified that, prior to the start of trial, the complainant never expressed that she did not want to testify.
Evidence of DC Nathan Gibson
47DC Gibson was the first OIC involved in the complainant’s case. He has been with the TPS for 18 years. When he was transferred to the homicide squad in September 2024, DC Ferguson eventually took over as OIC.
48DC Gibson testified that he believed that the complainant was sober when she provided her witness statement on December 11, 2022. To the best of his knowledge, the complainant had cooperated with giving a Sexual Assault Evidence Kit (“SAEK”) in hospital.
Crown’s Application to Admit Complainant’s Out-of-Court Evidence
49The Crown sought to admit:
(a) The complainant’s testimony from her attendance at the preliminary inquiry on January 29 and 30, 2024; and
(b) The complainant’s police statement provided on December 11, 2022, which was four days after the alleged physical and sexual assaults.
50The Crown sought two routes to admissibility in respect of these out-of-court statements: s. 715 of the Criminal Code, R.S.C., 1985, c. C-46, and the principled exception to hearsay based on the necessity and reliability of the statements as articulated in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
51The Crown argued that a witness’ refusal to answer questions in cross-examination is not fatal to a fair trial: R. v. T.H., 2017 ONCA 485, 352 C.C.C. (3d) 47, at para. 42.
52Courts have considered the issue of an appropriate remedy where a witness’ evidence was not completed at trial, including in cases of adult and child sexual assault:
For cases concerning adult witnesses, see R. v. Cameron, 2006 CanLII 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.), leave to appeal discontinued, [2006] SCCA 224; R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515; R. v. M.W., 2019 ONSC 5951, R. v. Normore 2018 SCC 42, [2018] 3 S.C.R. 5; and R. v. Brazier, 2022 ONSC 5722.
For cases concerning children, see: R. v. Hart, 1999 NSCA 45, 174 N.S.R. (2d) 165, leave to appeal refused, [2000] SCCA No. 109; R. v. W.P., 2019 ONSC 1240; R. v. T.H.; and R. v R.K., 2024 ONCA 340, leave to appeal refused, [2024] S.C.C.A. No. 263.
53The Defence opposed the Crown’s application arguing that the application failed on all the preconditions of the statutory factors in s. 715(1): the complainant was alive, she was sane, she was not so ill that she was unable to travel or testify, and she was present in Canada.
54The Defence submitted that the complainant testified fulsomely in chief on behalf of the Crown but simply refused to continue her cross-examination. The source of information about the complainant’s reasons for not testifying did not come from a psychiatrist or her family physician. Rather, non-expert opinions about the complainant’s mental health were provided by OIC Ferguson, an addictions counsellor, and a nurse practitioner.
55The Defence submitted that the complainant expressed in an extremely disrespectful, profane, and defiant manner that she refused to return to court to be cross-examined, which had the effect of impairing the truth-seeking function of the court. The Defence was unable to cross-examine the complainant at trial about certain key questions: What happened to the evidence from the SAEK? Whose blood was found in various areas of the apartment, the complainant’s or the accused’s? Why did the complainant, according to her medical records, refuse to allow a full examination of her face and head at the hospital after the alleged assaults? What were the circumstances in which the complainant allegedly bit the accused’s penis? If sexual activities occurred on the night in question, did the complainant consent? The Defence urged the court to use its residual discretion under s. 715 to refuse to admit the complainant’s evidence from the preliminary inquiry.
56The Defence’s concern over admissibility of the complainant’s out-of-court statements was particularly acute with respect to the complainant’s police statement. The court had the full benefit of the complainant’s evidence-in-chief at trial. Necessity was not established as there was no suggestion that that the complainant’s ability to recall and recount events was impaired at trial by the passage of time.
57The Defence also submitted that the reliability of the complainant was cast into doubt by the misalignment between various aspects of the evidence. For instance, the complainant cooperated with a SAEK, but no evidence from the kit was presented at trial. The complainant testified that she bit Mr. Al-Khulaifi’s penis, but no such evidence was presented by the Crown at trial. The Defence submitted that the Crown’s applications to admit the complainant’s out-of-court statements should be dismissed.
Discussion
58In cases where witnesses have appeared incapable or unwilling to provide evidence at trial, judges have adopted different approaches depending on the circumstances of the case. Some cases have involved a Crown request to admit only the witness’ evidence from the preliminary inquiry, while others, as in the case at bar, have involved a request to admit both the witness’ evidence from the preliminary inquiry and a police statement. Some witnesses have commenced their testimony at trial but have been unable to continue due to illness or mental stress, while others have been unable to testify at all. Some cases have involved child complainants, often in cases of sexual abuse, whereas others have involved adult witnesses testifying in sexual assault or other criminal cases.
59In M.W., the accused in a judge-alone trial was charged with sexual assault. The complainant was almost 19 when she appeared in court. She did not complete her cross-examination at trial. She had been cross-examined for a relatively short period of time on the first day of trial, when it was determined that it would be best to break early and complete her evidence the following day. The next morning, she testified for nearly an hour and a half before indicating, “I’m done”, and then left the courtroom. On a voir dire she testified, “If I stay here any longer, I’m going to end up in the hospital.” The trial judge admitted the victim’s police statement and preliminary inquiry evidence, but acquitted the accused. There was no Defence request for a mistrial or a stay.
60In W.P., the complainant, who was nine years old at the time of trial, testified via closed-circuit television from outside the courtroom with the assistance of a support person. He nevertheless found testifying very difficult and on the second day of his evidence, before defence counsel had completed his cross-examination, he left the video room and would not return. Dawe J. (as he was then) concluded that the resulting impairment of the defendant’s right to make full answer and defence did not rise to the level where it was necessary to grant a mistrial or enter a stay of proceedings. However, with the Crown’s agreement, Dawe J. allowed the defence to adduce the transcript of the complainant’s preliminary inquiry testimony to establish certain further inconsistencies on which the complainant had not yet been cross-examined.
61In T.H., the 11-year-old complainant in a sexual assault trial was the daughter of the appellant’s sometime partner. As the examination-in-chief proceeded at trial, the complainant became progressively unresponsive. She refused to be cross-examined. Defence counsel brought a stay application under the Charter on the basis of its inability to cross-examine the complainant. The trial judge refused to grant a stay finding that the issue of the absence of cross-examination could be addressed appropriately by his jury instruction. The accused was ultimately convicted. The Court of Appeal upheld the conviction, finding that the trial judge struck the appropriate balance by accepting the Defence request that the complainant’s testimony at the preliminary inquiry be admitted as evidence pursuant to s. 715 of the Criminal Code. The trial judge had appropriately cautioned the jury about the absence of cross-examination of the complainant.
62In R. v. S.M., 2024 ONSC 1126, 2024 ONSC1126, the accused was charged with a single count of sexual interference and was tried before a judge and jury. The complainant was the accused’s daughter and 12 years old at the time of trial. It was the accused’s second trial as a previous trial ended in a mistrial after the complainant had finished her evidence. During the second trial while the complainant was in examination-in-chief, she said that she felt unwell and asked to take a break early for the day. She then ultimately refused to return to court to complete her testimony. The Defence moved for a mistrial, while the Crown sought the admission of the complainant’s testimony from the first trial under either s. 715(1) or the principled exception to the hearsay rule. Dineen J. dismissed the application for a mistrial and admitted portions of the audio recordings of the complainant’s direct and re-examination, and her entire cross-examination, from the first trial.
63In Brazier, the accused was charged with manslaughter and drug trafficking. An important witness, Ms. McTamney, had been present with the victim just before his death from a drug overdose. Ms. McTamney had testified at the preliminary inquiry, but was potentially too ill to testify at trial. The Crown, relying on s. 715(1) and common law grounds, sought to adduce Ms. McTamney’s evidence given at the preliminary inquiry as her substantive evidence at trial. Brazier did not involve a Crown application to have any police statement admitted into evidence. Boswell J. concluded that Ms. McTamney was too ill to testify but that her evidence at the preliminary inquiry was admissible pursuant to s. 715(1), as well as in accordance with the principled exception to the hearsay rule.
64These cases show that it is not necessarily fatal to the continuation of a trial if a complainant or another witness is unable to complete their testimony or submit to cross-examination. In the circumstances of each case, the court must consider what steps could be taken to remedy such irregularities. These may include the admission of evidence from a preliminary inquiry or other out-of-court statements pursuant to the Criminal Code and exceptions to the rule against hearsay.
65I will commence with the legal framework for dealing with an incomplete cross-examination and then move on to the admissibility of the complainant’s police statement and evidence from the preliminary inquiry under s. 715 of the Criminal Code.
Legal Framework for Dealing with an Incomplete Cross-Examination
66In M.W. (2019), W.P. (2019), and S.M. (2024), the trial judges relied on the legal framework for dealing with an incomplete cross-examination described in T.H., at paras. 36-38:
[A]gainst the backdrop of the court’s statement in Lyttle, at para. 45, that “the right of cross-examination itself is not absolute”, there is a well-established test for determining whether a cross-examination of a witness impeded by unresponsiveness has such a serious impact on the accused’s ability to make a full answer and defence as to render the trial unfair.
The leading case is R. v. Hart, (1999), 1999 NSCA 45, 135 C.C.C (3d) 377 (N.S.C.A.), leave to appeal refused, [2000] S.C.C.A. No. 109, a sexual assault case involving a 12 year old complainant who was unresponsive during cross-examination. Based on the complainant’s unresponsiveness, the defence sought a judicial stay or a directed verdict of acquittal. The trial judge declined to grant this relief and this decision was upheld by the Court of Appeal.
After a careful review of relevant common law and Charter principles and Canadian, English and American authorities, Cromwell J.A. identified three factors that should be taken into account in determining whether the unresponsiveness of a child witness during cross examination denies an accused the right to make a full answer and defence and renders the trial unfair: (1) the reason for the unresponsiveness; (2) the impact of the unresponsiveness; and (3) possibilities of ameliorative action: Hart, at pp. 410-414; see also R. v. Cameron (2006), 2006 CanLII 16078 (ON CA), 208 C.C.C (3d) 481 (Ont. C.A.); and R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515.
The Reason for the Unresponsiveness
67I find that the Crown has established, on a balance of probabilities, that the reason why the complainant did not continue to attend court after May 14, 2025, was due to a mental health crisis. Her attendance in court was a critical contributor to her suicide attempt on May 30, 2025. It was not safe or advisable to continue to request or demand that the complainant continue her cross-examination after she left court on May 14.
68The complainant could not be more vulnerable. She was 23 at the time of trial, a young Indigenous woman from a small community in northern Ontario. She was an orphan, raised in foster care, still being supported by a First Nations CAS. Her medical discharge note from Kingston Health Sciences Centre dated June 1, 2025, which I accept as admissible, referred to her prior history of major depressive disorder and concomitant mental health disorders (alcohol use disorder, ADHD, PTSD, generalized anxiety disorder). I also accept that the complainant was diagnosed with Fetal Alcohol Spectrum Syndrome. Finally, the complainant exhibited self-harming behaviour including cutting herself.
69I find that the complainant was told to be ready to testify at the commencement of trial on May 12, 2025, but did not actually start her examination-in-chief until late in the afternoon on May 13. She commenced by way of CCTV as per a successful Crown application but became angry and impatient when there were technology-related delays and confusion around whether I was the judge or just the “guy signing her in”. On May 14, she returned to court and asked to testify in person. I do not find that her vulnerabilities as a young Indigenous complainant in a sexual assault trial changed because she was prepared to testify in person.
70I find that the complainant started to exhibit non-cooperative and antagonistic behaviour on the witness stand during her examination-in-chief, conducted by Crown counsel. Notwithstanding that the complainant was offered and used a number of testimonial aids this proved of limited assistance. She apologized, but again became unresponsive the next day, still during her examination-in-chief. I find this significant as it undermines the Defence argument that the complainant was only antagonistic to the Defence. Ultimately, after only a few questions on cross-examination, the complainant became uncooperative and surly, lashed out at the court and counsel, swearing profanely. She apologized again, but refused to reattend court.
71I have not based my finding that the complainant experienced a mental health crisis on the opinions of OIC Ferguson, the additions counsellor Mr. Knox, or the psychiatric nurse practitioner Ms. Scerio. None of these witnesses was qualified as an expert to provide opinion evidence on the complainant’s mental health. Rather, I relied on these witnesses’ factual observations of the complainant. For instance, I relied on DC Ferguson’s evidence that, after the complainant exited the courtroom, she appeared to be in distress, was crying, and repeating that she was broken and that her brain had snapped. I accept that, after May 14, the complainant was not doing well despite returning to the care of her foster mother. She attempted suicide on May 30. Mr. Knox spoke of the complainant expressing to him how she could not control her emotions and swore inappropriately at the court. I considered whether some stressors external to the court process may have played a significant role in the complainant’s mental health crisis, but the evidence did not support this assertion.
72Ultimately, I find that the complainant had an emotional breakdown in court that culminated shortly after she began her cross-examination on May 14. She stated that she had been waiting a long time to testify and that no one really cared about her, or what she had to say. She believed she had already told her story “a thousand times” and did not understand why counsel or the presiding judge did not already know her story. She did not seem to understand the reasons for the detailed questions that were asked by the Crown and then Defence counsel. I stop to observe that many lay witnesses have similar experiences in court. Even regular justice participants grow frustrated with the grinding nature of court proceedings, the “hurry up and wait” routine, often exacerbated by witnesses being repeatedly excluded while seemingly impenetrable discussions take place behind closed doors. However, for a witness with the complainant’s background and vulnerabilities, this became absolutely overwhelming.
73For the foregoing reasons, I disagree with the Defence submission that the complainant simply attempted to thwart cross-examination. Her frustration and outright refusal to answer was evident during examination-in-chief, although it boiled over during cross-examination. Participating in the trial process, as it wore on, became emotionally very difficult for the complainant. This resulted in a mental health crisis preventing her from continuing and completing her cross-examination in court.
74As was aptly said by the trial judge in Brazier, at para. 90, but applied to the complainant in this case, compelling her to attend trial – even with reasonable accommodations – “would be to roll the dice with her health, her future, and indeed her life”.
The Impact of the Unresponsiveness
75I find that the impact of the complainant’s failure to complete her cross-examination is significant. The complainant was the main Crown witness. At 23, she was a young adult witness, but not a child. Her allegations that she was brutally physically and sexually assaulted, and her credibility and reliability, cannot be tested via cross-examination. As in most sexual assault cases, the complainant and the accused appeared to be the only persons present when the activities giving rise to the criminal charges occurred. There is no obligation on the accused to testify. Even though there is circumstantial evidence available in terms of photographic evidence of the complainant’s apartment shortly after the alleged assaults, and other evidence from TCHC special constables and police officers, the Crown’s case may turn largely on the complainant’s credibility, which is difficult to gauge without cross-examination at trial. Still, this is a judge-alone trial. The testimony, including cross-examination evidence, of the complainant from the preliminary inquiry in 2024, and her videotaped police statement from December 2022, are available. On balance, I find that this factor favours the Defence.
Possibilities of Ameliorative Action
76As in the cases where a witness was unable to testify or refused to be crosse-examined, the admission of evidence from the preliminary inquiry, or the admission of the complainant’s police statement, were meaningful ameliorative actions. It is in this context that I must consider the Crown application to admit out-of-court evidence.
Admissibility of the Complainant’s Police Statement on December 11, 2022
77The Crown seeks to admit the complainant’s police statement given on December 11, 2022, just four days after the alleged assaults. The Crown argues that, where the accused has lost the ability to adequately cross-examine the main complainant in the case, the admission of such evidence may become necessary to demonstrate inconsistencies that might otherwise not be apparent to the trier of fact: M.W., at para. 94. The fact that this is a judge-alone trial mitigates the possibility that the trier of fact will not be careful in assessing the complainant’s evidence, given the lack of cross-examination evidence at trial.
78Crucially, I am satisfied that the complainant’s out-of-court statements are admissible under the principled approach to the hearsay rule.
79Hearsay, being any out of court statement tendered for the truth of its contents, is presumptively inadmissible. The principled approach considers whether the evidence is nevertheless admissible because the evidence is necessary and meets threshold reliability: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23, citing Khelawon, at para. 47).
80I find that necessity is made out for the same reasons that I have identified for why the complainant did not continue to attend court after May 14, 2025. The complainant experienced a mental health crisis during her testimony in court. Based on the evidence entered on the voir dire, she was unable to return to court, and it would have been inadvisable and unsafe to her mental health and physical wellbeing to request her to do so.
81Concerning reliability, the focus is on “circumstantial guarantee or probability of trustworthiness”. It is threshold reliability that that the court is considering, not ultimate reliability. The question is whether the hearsay statement evidences sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth: M.W. at para. 95.
82In M.W. at para. 97, the trial judge, Christie J., also commented that case law has provided some guidance as to indicia of trustworthiness which might suffice to permit reception of the evidence:
the presence of an oath or affirmation to tell the truth;
an audio or video recording of the statement, or in some other form, a verbatim account of what was said;
the fact that the statement was subjected to cross-examination;
the presence of an identified officer taking the statement;
the statement being taken in a relaxed, non-intimidating atmosphere;
the statement being given to a person in authority within a reasonable time of the alleged commission of the offence;
the inclusion of a discussion about the difference between the truth and a lie;
any corroboration for the statements made;
the absence of motive to fabricate.
See: R. v. B.(K.G.) (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.); R. v. SS, 2017 ONSC 5459; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 (S.C.C.)
83Here, both with respect to the complainant’s police statement and her testimony at the preliminary inquiry, the indicia of threshold reliability are strong.
84The complainant provided her police statement on December 11, 2022, in the presence of two police officers, DC Gibson and DC Ferguson. The complainant was advised by DC Gibson that the giving of her statement was entirely voluntary, but that the giving of a false statement to police during an investigation was a criminal offence. She was further advised that her statement was being videorecorded and that she could be a witness at a criminal trial. She stated that she understood and wished to proceed. She was given a further caution about it being a serious criminal offence to wrongly accuse someone of a crime, or to cause the police to enter into an investigation of another person knowing the information to be false. She was then sworn in on a bible by a commissioner of oaths who left the interview room for the balance of the statement.
85There was corroboration concerning what the complainant narrated in her police statement. She discussed the sequence of events on the evening of December 6 and early morning hours of December 7, 2022. She discussed who attended her apartment, the consumption of alcohol that occurred, the placement of her bed and other items in the unit, the physical altercation with Mr. Al-Khulaifi that ensued, her escape from the apartment partially clothed, and her meeting the two TCHC special constables. Each of these points was corroborated in the objective evidence entered at trial. TCHC special constables testified about being called to the ninth floor due to a disturbance and the complainant running out of her unit partially clothed. The special constables retrieved the complainant’s phone from Mr. Al-Khulaifi. The photographs of the unit show an apartment in complete disarray, with alcohol bottles, broken glass, a broken cat litter box, and blood smears all over, including the walls.
86At the preliminary inquiry on January 29 and 30, 2024, the complainant testified under Eagle Feather with a support person present before Rutherford J. of the OCJ. She was examined by the same Crown counsel, Mr. Linds, and cross-examined by the same defence counsel, Mr. Vaughan, as at trial. Indeed, counsel for the Defence does not contest threshold reliability with respect to the complainant’s evidence from the preliminary inquiry.
87Overall, I conclude that, even though the impact of the complainant’s failure to complete her cross-examination is significant, it is fair to both Mr. Al-Khulaifi and to society that the out-of-court statements of the complainant be admitted at trial. The complainant experienced a mental health crisis shortly after her cross-examination began, subsequently attempted to commit suicide, and could not return to court. The remedy of admitting her out-of-court statements is legally warranted under the principled approach to hearsay as the indicia of necessity and reliability are present. There are sufficient guarantees of trustworthiness to warrant the evidence being placed before me for consideration at trial. In the unusual circumstances of this case, it is not unfair to Mr. Al-Khulaifi to admit the complainant’s out-of-court evidence.
Admissibility of the Complainant’s Evidence from the Preliminary Inquiry under s. 715(1)
88Section 715(1) of the Criminal Code provides:
Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person
(a) is dead,
(b) has since become and is insane,
(c) is so ill that he is unable to travel or testify, or
(d) is absent from Canada,
and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.
89In R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 69, Watt J.A. commented on the requirements of s. 715(1):
A party who invokes s. 715(1) to introduce at trial evidence given by a witness at the preliminary inquiry into the charge must establish, on a balance of probabilities,
i. that the witness gave evidence at the preliminary inquiry;
ii. that the witness is unavailable to testify at trial for any reason described in the section; and
iii. that the preliminary inquiry evidence was given in the presence of the accused. (footnote omitted)
Where these conditions have been satisfied, s. 715(1) directs that the preliminary inquiry evidence be admitted at trial, unless the accused proves that she or he did not have full opportunity to cross-examine the witness at the preliminary inquiry.
90Watt J.A. also explained that s. 715(1) provides the trial judge with residual discretion to exclude evidence where its admission would be unfair to the accused: Saleh, at para. 73.
91In Brazier, at paras. 22-26, Boswell J. commented on s.715(1) being a compromise between recognizing the fundamental importance of cross-examination, and ensuring that important evidence is not lost:
Our adversarial model of adjudication is predicated on the notion that the truth of a matter is most likely to be arrived at by permitting self-interested litigants to zealously present their cases and to challenge their opponents’ cases with equal zeal. Cross-examination - the scrutinizing, testing and challenging of evidence before the trier of fact - is an essential part of the adversarial process and its truth-seeking aspiration. Indeed, Professor Wigmore famously characterized cross-examination as the “greatest legal engine ever invented for discerning the truth”. See for instance, Lilly v. Virginia, 527 U.S. 116 (1999).
The Supreme Court has consistently recognized cross-examination as being of fundamental importance in a criminal trial and has situated it within an accused person’s constitutional right to make full answer and defence. See, for instance, R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at paras. 157-160 and R. v. Lyttle, 2004 SCC 5 at paras 1-2.
Depriving a litigant – particularly one facing a loss of liberty – of a full opportunity to cross-examine a key opposition witness not only significantly handcuffs that litigant’s defence but tends to undermine the truth-seeking function of the trial.
At the same time, s. 715(1) aspires to ensure that important evidence is not lost to the trier of fact because a witness who has testified at a preliminary hearing is no longer willing or able to testify at trial. The loss of important evidence to the trier of fact also tends to undermine the truth-seeking function of the trial.
Section 715(1) offers something of a compromise. Permitting a transcript of the witness’s preliminary hearing evidence to stand in for her trial evidence ensures that important evidence is not lost. Insisting that the accused has had a full opportunity to cross-examine the witness at the preliminary inquiry ensures that the evidence does not go in untested and thereby supports trial fairness and the adversarial model of adjudication.
92Boswell J., at paras. 27-32, cited Saleh, and adopted the following test for admissibility under s. 715(1):
a) Is the witness too ill to testify (necessity)?
b) Did the defence have a full opportunity to cross-examine the witness at the preliminary inquiry?
c) Should the court exercise its residual discretion to exclude the evidence?
93This tripartite test was also adopted by Petersen J. in R. v. El Hajj Ahmad, 2024 ONSC 5795.
94Before I leave the discussion of s. 715(1), it is important to note what the Court of Appeal stated in Saleh, at paras. 76 and 79, about the relationship between s. 715(1) and the common law:
Section 715(1) is a statutory exception to the hearsay rule. It does not follow, however, that the principled approach to the hearsay rule has no place in the interpretation and application of the provision: R. v. Li, 2012 ONCA 291, 110 O.R. (3d) 321, at para. 50. That said, the principled approach may exert a greater influence on the issue of necessity than on that of reliability: Li, at paras. 56 and 60.
Section 715(1) is not an exhaustive code governing the admissibility of preliminary inquiry testimony at a subsequent trial: Hawkins, at para. 57. For example, where preliminary inquiry testimony fails to satisfy the requirements for admissibility under s. 715(1), it remains open to the trial judge to consider whether the testimony may be admissible under common law principles, for example, under the principled exception to the hearsay rule.
95I find the complainant’s testimony at the preliminary inquiry admissible at trial under s. 715(1). The complainant is too ill in terms of her compromised mental health and fragile state to testify. The Defence had a full opportunity to cross-examine the complainant at the preliminary inquiry. I see no reason to exercise my residual discretion to exclude the complainant’s evidence from the preliminary inquiry.
96I agree with the comments in Brazier, at para. 108:
The exercise of the residual discretion requires a careful weighing of the fair treatment of the accused and society’s interest in the admission of probative evidence to get at the truth of the allegations in issue. See R. v. Saleh, as above, at para. 74. The focus, ultimately, must be on the protection of the fairness of the trial process, keeping in mind that what the accused is entitled to is not a perfect trial, but one that is fundamentally fair.
97Here, the admission of the complainant’s evidence at the preliminary inquiry is fair.
Conclusion
98For all these reasons, I find that both the complainant’s police statement on December 11, 2022 and the complainant’s evidence from the preliminary inquiry in January 2024 are admissible at trial.
99The admission of this evidence is an ameliorative action capable of remedying, to a meaningful degree, the complainant’s inability to complete her cross-examination at trial. Balancing the reasons for the complainant’s unresponsiveness, the impact of her unresponsiveness, and the possibilities of ameliorative action, I find that the admission of the evidence preserves trial fairness.
Crown’s Application re: Res Gestae Statements of the Complainant
100The Crown brings an application seeking to tender the out-of-court utterances (cries for help) and res gestae statements of the complainant to TCHC special constables Miguel and Nicoll, who first arrived on scene in response to a noise disturbance complaint on the ninth floor of 5 Wakanda Place, the complainant’s apartment building. At the time, TCHC officers did not employ BWCs.
101The Defence does not oppose the Crown’s res gestae application in respect of the complainant’s utterance to the TCHC special constables. However, the Defence submits that the complainant was not honest and credible in terms of what transpired in her apartment. The Defence will make arguments about what weight the complainant’s utterances should be given in the context of the totality of the evidence.
102At the voir dire, both officers Miguel and Nicoll testified.
Evidence of Bernard Miguel
103TCHC Special Constable Miguel testified that at 2:14 a.m. on December 7, he received a report from dispatch indicating that someone on the eight floor of 5 Wakanda Place said there was a problem on the floor above. Officer Miguel was familiar with the building.
104He arrived at 2:32 a.m. with Officer Nicoll as back up. As soon as they stepped off the elevator on the ninth floor, they heard a female voice yelling that sounded like the person was in distress. They saw a female come out of an apartment naked from the waist down. She was screaming.
105There was blood on the front of the woman’s (i.e., complainant’s) beige sweater. The complainant’s left eye and face were severely bruised. She had swollen lips and blood on her nose. About 30 seconds to a minute after he arrived on the ninth floor, a male (i.e., Mr. Al-Khulaifi) came out of the complainant’s unit.
106The complainant told Officer Miguel, “He did this to me. He kicked me in the face and he attempted to rape me. That’s why I don’t have clothing from the waist down.” She also said the complainant took her phone from her to stop her from calling the police.
107Officer Miguel found a phone with a pink cover and a black wallet on Mr. Al-Khulaifi. When the complainant said that her phone had a pink cover, he handed her the phone.
108Officer Miguel placed Mr. Al-Khulaifi in handcuffs and had dispatch call 911. EMS arrived about seven to nine minutes after Officers Miguel and Nicoll arrived on the ninth floor.
109Mr. Al-Khulaifi was placed in custody at 2:47 a.m., and about six or seven minutes later, Toronto police took over the scene. Officer Miguel did not enter the complainant’s apartment.
Evidence of Craig Nicoll
110TCHC special constable Craig Nicoll was also familiar with 5 Wakanda Place. It has 11 floors, 20 units per floor. The majority of residents are on some form of social housing. A lot have special needs.
111He arrived at 5 Wakanda Place with special constable Miguel. He heard a female screaming, then saw a female (i.e., the complainant) who was naked from the waist down, running from an apartment on the ninth floor. She had a substantial amount of blood on her. When Constable Miguel was speaking to her, he could not hear what was being said. The male had blood on his face, hands, and shirt.
112He had an independent recollection and made a note in his memo book that the complainant said, “He beat me up and tried to rape me and took my cellphone so that I could not call for help.” He recalled that the complainant was scared. She was in a seated position on the floor because she was still naked from the waist down. He testified that the tone of the complainant’s voice suggested that she was running away from something.
113At 3:02 a.m., TPS officers PC Tannous and PC Windebank arrived on scene, and the accused was transferred into their custody and rearrested.
114In R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at paras. 83-86, the res gestae exception to the hearsay rule was described as follows:
Res gestaeis a long-established concept in the law of evidence. Despite its antiquity, its precise doctrinal significance at common law eludes clarity and precision. In translation for forensic purposes, it approximates “the events at issue in the litigation”. This adds little to our basic concepts of relevance and materiality. Its passing would not be mourned. All the more so when we have substituted principle for shibboleth.
Whether they are received as a true exception to the hearsay rule - thus as evidence of the truth of what was said - or as original evidence not reached by the hearsay rule, statements admitted under res gestae include:
i. spontaneous statements or excited utterances;
ii. statements accompanying and explaining an act which can be properly evaluated as evidence only if considered in conjunction with the statement; and
iii. statements relating to a physical sensation or mental state, such as intention or emotion.
See, Sheri, at paras. 107-10. See also, Criminal Justice Act 2003 (UK), s. 118(1), para. 4.
The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event. In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-1.
In connection with statements accompanying and explaining an act, the act must be relevant in the absence of the statement. The justification for admitting the statement is that it may explain the precise significance of the act by showing its nature or the state of mind that accompanied it. See, for example, R. v. Kearley, [1992] A.C. 228 (H.L.), at p. 246.
115I am prepared to admit into evidence at trial the complainant’s utterances (cries for help) and statements to TCHC special constables Miguel and Nicoll under the res gestae exception to hearsay.
116I accept that the complainant uttered the following words to one or both of the TCHC special constables:
“He did this to me.”
“He kicked me in the face and he attempted to rape me. That’s why I don’t have clothing from the waist down.”
“He beat me up and tried to rape me and took my cellphone so that I could not call for help.”
117I find that the complainant’s utterances were an instinctive and contemporaneous reaction to the events that had just taken place in the apartment from which she left. I am persuaded that the complainant’s mind was so dominated by the recent events that she did not have any real opportunity for reasoned reflection or concoction.
118Consistent with the spontaneous nature of the complainant’s statements is the fact that she appeared to be injured, she was covered in blood, and she had no pants or underwear on. The TCHC special officers saw her as she emerged out of her apartment, which ensures that there was virtually no delay between the complainant’s statements and the event which she was talking about.
119The Crown’s application is allowed.
Crown’s Application re: Accused’s Utterances to TPS Officers Windebank and Tannous
120The Crown brings an application seeking to admit utterances made by Mr. Al-Khulaifi captured on the BWC of PC Tannous at 3:11:42 a.m. on December 7, 2022 as Mr. Al-Khulaifi was being transported to an ambulance in front of 5 Wakunda Place. While the parties are in dispute whether the utterance was made to a police officer, or some other “person in authority”, there is no dispute that Mr. Al-Khulaifi made the following utterances:
“Hi sexy”
“See you soon”
“See you tomorrow actually”
121The context of Mr. Al-Khulaifi’s utterances are that, after being arrested by TCHC special constables, he was re-arrested at 3:04 a.m. by PC Tannous and charged with assault, assault with a weapon, and sexual assault. Mr. Al-Khulaifi was then taken by two TPS officers in the company of paramedics down to a waiting ambulance in the parking area of the apartment building. The complainant had been separately taken downstairs and placed into a different ambulance and was receiving treatment for her injuries.
122The Crown suggests that Mr. Al-Khulaifi turned in the direction of the complainant and made the out-of-court utterances that it seeks to admit.
123Mr. Al-Khulaifi is charged with uttering a death threat, contrary to s. 264.1(2)(a) of the Criminal Code.
124The Crown points out that Mr. Al-Khulaifi’s utterances at 3:11 a.m. to the complainant were made minutes after he had been arrested for a violent sexual and physical assault. Officers found her covered in blood, badly injured, and naked from the waist down.
125The Crown argues that, where an out of court statement by an accused to a person in authority constitutes the actus reus of the offence charged, the confession rule does not apply and no voir dire is required to determine the voluntariness of the statement or its admissibility: R. v. Stapleton (1982), 1982 CanLII 3331 (ON CA), 66 C.C.C. (2d) 231 (Ont. C.A.), at p. 233; R. v. Hanneson (1989), 1989 CanLII 7159 (ON CA), 49 C.C.C. (3d) 467, at pp. 471-472 (Ont. C.A.); R. v. Gough (1985), 1985 CanLII 3504 (NS CA), 23 CCC (3d) 279 (N.S.C.A.), at para. 12; R. v. J.(J.) (1988), 1988 CanLII 7099 (ON CA), 43 C.C.C. (3d) 257 (Ont. C.A.), at pp. 260-262.
126In the alternative, the Crown submits that the utterances are admissible as after the fact conduct of the accused or spontaneous utterances that were voluntary, and no special rules govern the admissibility of the 3:11 a.m. utterances.
127The Defence opposes the Crown’s application. The Defence submits that the Crown did not clarify the basis upon which admission of the utterances were being sought. The Defence understood that Mr. Al-Khulaifi was charged with uttering threats in relation to his comments inside the complainant’s apartment at the time of the alleged physical and sexual assaults. It was not until the argument of this application that the Crown’s position was clarified. The Defence asserts that Mr. Al-Khulaifi has been irreparably prejudiced by the change in the Crown’s position as it would have conducted the trial and pre-trial very differently. For instance, the Defence would have brough a s. 276 application seeking to admit the “Hi Sexy” comment and explore it in its proper context. The Defence requests that the Crown application be dismissed.
128I have approached this application on the basis that the Crown seeks to argue that the utterances made at 3:11 a.m. constitute the actus reus of the uttering threat charge. I disagree that the Defence has been prejudiced by the Crown’s recharacterization of when and where the threats were made. In any event, this trial began on May 12, 2025, and the within application was argued on August 8, 2025. There were multiple hearing dates and sufficient time if the Defence wished to seek directions from the court about this admissibility issue.
129I agree with the Crown that Mr. Al-Khulaifi’s utterances are admissible at trial on the basis that they constitute the actus reus of the uttering threat charge: Hanneson, at pp. 471-472, citing Stapleton, at p. 233.
130The Crown’s application is granted.
Pinto J.
Released: June 10, 2026
CITATION: R. v. Al-Khulaifi, 2026 ONSC 3203
COURT FILE NO.: CR-24-50000217-0000
DATE: 20260610
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
OMAR ABDULAZIZ TALEB AL-KHULAIFI
REASONS FOR RULINGS ON CROWN APPLICATIONS
Pinto J.