minicounsel

COURT FILE NO.: CR-24-50000217-0000

DATE: 20260610

BETWEEN:

HIS MAJESTY THE KING

– and –

OMAR ABDULAZIZ TALEB AL-KHULAIFI

Ari Linds, for the Crown

Andrew Vaughan, for the Accused

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

CORRECTED reasons for judgment

1This judge-alone trial concerned the question of whether the accused, Omar Al-Khulaifi, physically and sexually assaulted the complainant in the early morning hours of December 7, 2022.

2The 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 and had recently moved into a single-occupancy apartment in the East York area of Toronto. The building was managed by Toronto Community Housing Corporation (“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.

3The complainant and Mr. Al-Khulaifi were acquaintances who had only met a few months earlier. In the evening of December 6, 2022, Mr. Al-Khulaifi texted the complainant and came over to her apartment. Another young woman, S, an acquaintance of the complainant, was already over.² All three watched TV, drank, and became intoxicated to varying degrees.

4The complainant alleged that an argument broke out between S and Mr. Al-Khulaifi. The complainant tried to calm things down, but S pushed the complainant into a closet door and left the apartment. The complainant wanted to follow S, but Mr. Al-Khulaifi prevented her from leaving. He physically assaulted her by elbowing her in the face. He then became physically and verbally abusive, telling her that he liked her, while beating and kicking her as she lay curled up in a ball on the kitchen floor. When she tried to leave the apartment, he pulled her back by her hair. He moved her over to a mattress and sexually assaulted her by removing her shorts and underwear and forcibly inserting his penis inside her vagina. He told her to perform oral sex on him, but she refused. She threatened to bite his penis, and then did so. This resulted in further beatings from him. She ran out of the apartment and sought help. She had no clothing on below the waist. She encountered two TCHC special constables who called for medical and police assistance. They detained Mr. Al-Khulaifi.

5It is not disputed that in the early morning hours of December 7, 2022, two police officers from the Toronto Police Service (“TPS”) attended on scene and arrested Mr. Al-Khulaifi. After he was arrested, he continued to call out to the complainant. He and the complainant were taken in separate ambulances to hospital.

6Mr. Al-Khulaifi is charged with the following offences contrary to the Criminal Code, R.S.C., 1985, c. C-46:

Aggravated sexual assault contrary to s. 273(2)(b).
Sexual assault via choking, suffocating, or strangling, contrary to s. 272(2)(b).
Sexual assault, contrary to s. 271(a).
Forcible confinement, contrary to s. 279(2)(a).
Utter a death threat, contrary to s. 264.1(2)(a).

7At trial, the complainant provided her evidence-in-chief but failed to complete her cross-examination, purportedly due to a mental health crisis. The Crown confirmed that she would not be returning to court. Subsequently, on May 30, 2025, the complainant attempted suicide. Following this development, I heard Crown applications seeking, inter alia, to admit the complainant’s police statement and the transcript of her evidence provided at the preliminary inquiry. On November 18, 2025, I granted these applications and subsequently provided my reasons: R. v. Al-Khulaifi, 2026 ONSC 3203. I found that the reason why the complainant did not attend court after May 14, 2025 was due to a mental health crisis.

8I admitted into evidence at trial the complainant’s police statement provided on December 11, 2022, and the complainant’s testimony from the preliminary inquiry on January 29 and 30, 2024.

9I also admitted into evidence the complainant’s utterances made to one or both of the TCHC special constables who she encountered upon leaving her apartment after the alleged assaults. The complainant told the officers:

“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.”

10I additionally admitted into evidence several utterances made by Mr. Al-Khulaifi that he made at 3:11:42 a.m. on December 7, 2022 as he was being transported to an ambulance in front the complainant’s apartment building. These utterances were captured on the body-worn camera (“BWC”) of PC Tannous. Mr. Al-Khulaifi said:

“Hi sexy”
“See you soon”
“See you tomorrow actually”

11The Crown completed its case by presenting the evidence of the TCHC officers on scene and the arresting TPS officers. Mr. Al-Khulaifi did not testify at trial. The parties proceeded to closing argument in November 2025.

12For the reasons that follow, I find Mr. Al-Khulaifi guilty of sexual assault, assault causing bodily harm, and forcible confinement. I do not find him guilty of aggravated sexual assault, sexual assault via choking, or uttering a death threat.

Trial Witnesses

13On the trial proper, the Crown called six witnesses:

(a) The complainant;

(b) Bernard Miguel, a TCHC special constable;

(d) Police Constable (PC) Simon Windebank, a TPS arresting officer;

(e) PC Antonio Tannous, another TPS officer and Officer Simon Windebank’s police partner; and

(f) PC Kathryn Ferguson.

Evidence of the Complainant

14As a result of my granting the Crown applications, the complainant’s evidence for my consideration comes from her police statement, the preliminary inquiry, and her testimony at trial.

The Complainant’s Police Statement

15The complainant provided a police statement that was videotaped on December 11, 2022 at 55 Division. The bulk of the questions were asked by DC Nathan Gibson. DC Ferguson was also present during the questioning.

16On the evening of December 6, 2022, she had a friend, S, over. She did not know exactly when S arrived. They had exchanged messages over Snapchat. She ordered McDonald’s shortly after S came over. They started drinking, either vodka or whiskey. They were also smoking from a weed pen that contained marijuana (THC). At the time, she smoked weed every day.

17At some point – she could not remember when – a male, “Omi” or “Omar”, came over. She could not remember whether he brought any alcohol. All three of them drank alcohol. She and S also continued to vape from the weed pen, but not Omar.

18The complainant’s apartment was a studio apartment that consisted of one big room with a separate washroom. S and Omar were sitting on chairs and she was sitting on a mattress on the floor. All three were watching a TV show on her computer laptop. She could not remember the exact shows they were watching, but it was likely the shows she always watches, either Brooklyn 99 or The Office.

19Omar and S ended up in an argument. They were “both pretty fucking drunk.” Initially, they were bickering but then it got more intense. She told S to stop but S kept on getting louder and screaming. The complainant got pissed off because she had just moved into the building and felt that the loud argument was going to get her kicked out.

20She told Omar to go into the bathroom while she calmed S down, but he kept coming out of the bathroom. S got mad at her, started crying and said, “just go hang out with him then” and walked out of the apartment.

21The complainant felt that she had to chase after S because S was too drunk to be by herself. S lived in downtown Toronto by the CN Tower and had left her bag with all her stuff behind in the complainant’s apartment.

22The complainant tried to get Omar to leave. She kind of shoved him and pushed him a little bit to leave and told him to “grab his shit” and “like get the fuck out now.” But Omar refused to leave. He told her he didn’t want to leave because he liked her. She pushed him harder. That’s when things turned intense and Omar kind of turned around and hit her across the face. He started beating and kicking her and prevented her from leaving the apartment. Every time she tried to leave, he would drag her back and throw her back on the floor and continue to beat her. He threatened her that he was going to kill her. He put his hands over her mouth and was suffocating her.

23Omar eventually ended up dragging her to the bed and taking her pants off. She was trying to push him off.

24Given the importance of the complainant’s next few answers, instead of summarizing, I have reproduced an excerpt from her police statement:

GIBSON: Yeah. So he dragged you to the bed and he removed your, uh, your shorts?

COMPLAINANT: Yeah. And then my und-, and then he just…

GIBSON: Do you remember if you were on your, your back or your stomach?

COMPLAINANT: I was on my back.

GIBSON: You were on your back. And did, did he get on top of you?

COMPLAINANT: Yeah. Like he just-, ‘cause by that time I was pretty weak from him. Like so I wouldn't-, so it was hard to like-, ‘cause I remember I kept pu-, like pushing his thighs just to try to stop, but it wasn't really do anything. And then after he whatever, like he just-, he tried putting it in my mouth, but I told him, I was just like, if you do that I swear to God, I'm gonna fucking bite your dick so fucking hard. And I did, but then that made everything a lot worse afterwards, obviously. Like…

GIBSON: So he, he took his own clothes off?

COMPLAINANT: Yeah.

GIBSON: And he inserted his penis in your vagina?

COMPLAINANT: Yeah.

GIBSON: And did he have protection?

COMPLAINANT: No.

GIBSON: No. And how long, how long was he sexually assaulting you for?

COMPLAINANT: I don't, I don't really know exactly.

GIBSON: Okay. Um, but did he, did he assault you to completion or did…

COMPLAINANT: I don’t…

GIBSON: …did he…

COMPLAINANT: …I don’t know.

GIBSON: …he said, he said I’m gonna…

COMPLAINANT: I don’t think so.

GIBSON: …put it in your mouth.

COMPLAINANT: Yeah.

GIBSON: And he put your mouth, his penis?

COMPLAINANT: Yeah. And that's how I bit it.

GIBSON: And you cau-, you told him, you put your penis in my mouth…

COMPLAINANT: Like I’m gonna…

GIBSON: …I'm going to, I'm gonna bite it.

COMPLAINANT: Yeah. So I don't know why he thought I was bluffing or I wasn't gonna like…

GIBSON: Um, was he bleeding from his penis?

COMPLAINANT: I don't know. I don't think so.

GIBSON: No? What, what ha-, and what happened after you bit his penis?

COMPLAINANT: It just ca-, and that's where he just started getting k-, kicked in the head a lot more. Like…

25I pause to observe that DC Gibson asked the complainant a number of leading questions at a crucial point in her narrative. He asked, “did he get on top of you?”, “so he, took his own clothes off?”, and “he inserted his penis in your vagina?”

26Continuing on with my summary of the complainant’s police statement, she testified that she tried going to the door at least 6 or 7 times and the last time she successfully got out. She had no pants or underwear on. She went into the hallway and encountered some “cops” who, it is agreed upon, were TCHC officers. She told them that Omar was still in the apartment. She told them that her cats were in there and she did not want him to hurt her cats just to get her to go back in there. The TCHC officers covered her up with a blanket.

27The officers went in and arrested Omar.

28She described Omar as approximately 22 or 23 years old. She believed he was a bit taller than her, around 5 ft 8 or 5 ft 9 inches, of Indian origin “or something like that” with a foreign accent. She had known Omar for about 5 months. She had first met him behind a plaza somewhere in Scarborough. She had been dating an acquaintance of Omar’s. She did not know where Omar lived.

29During the complainant’s police statement, the police accessed her phone and retrieved an email / text. The text was accompanied by a picture of Absolut Vodka with a blue label. The time was 9:01 p.m. on December 6, 2022 and stated “I’m downstairs, my love. Hello. Yo. Yo. Hello.” There were some other messages.

30She stated that, prior to the night of December 6, 2022, she did not have the injuries that she had when she was giving the police statement. Detective Gibson stated for the record various injuries that he observed on the complainant’s face and she agreed with his observations and that she received treatment for these injuries at Michael Garron Hospital. She stated that she thought she was going to have to go back to hospital because the hearing in one of her ears was not normal anymore.

31She answered that she did not have injuries about her body, but had a cut on her arm that had been stitched up, but which had opened up when Omar leaned on her arm while he was holding her down. She stated that the hospital could not restitch the stitches as “it was too long.”

32In responding to whether Omar had ripped off any of her clothes, she stated that, “no, he just pulled them off of me”, meaning just her pants and underwear.

33She found out later that her phone was found on Omar’s person.

34In the balance of her police statement, she stated that she did not think that Omar ejaculated. She also did not know if he put his clothes back on after she bit his penis, but his track pants were at her place. She stated that Omar was throwing her around her entire apartment including into the cat litter box.

35Towards the end of her police statement, Officer Gibson asked her again about the sexual assault:

GIBSON: Thank you. And, um, besides, uh, placing his penis in your vagina and sexually assaulting, uh, you and placing his penis in your mouth, I apologize for asking this, did he, did he touch you anywhere on your body, anywhere other than with his penis when he was sexually assaulting you?

COMPLAINANT: I don't think so. Like he was like trying to like kiss me and stuff, but I just kept turning my face away.

GIBSON: And, and was he threatening you during that incident? I know he threatened you before.

COMPLAINANT: No. He wasn't like threatening to hurt me. He was just saying that he was gonna fuck me over and over.

36She denied that Omar had ever sexually assaulted her or threatened her prior to the night in question.

37She acknowledged that Omar had been at her apartment the day before, but was not asked more questions about that day.

38She stated that she had met Omar four times and remembered it because the first two times it caused a huge fight with the guy that she was with before. She first met Omar at a beach and then met him behind a plaza. The last two times were at her place.

39She stated that the amount of marijuana and alcohol that she consumed on December 6 evening was actually a light day for her. She acknowledged that she was under the influence of alcohol but was the most sober in comparison to Omar and S. She stated that she drinks a lot.

40She stated that she repeatedly told Omar to stop even when he was beating her. She stated when he was hitting her, it was more of a slapping motion. When she was on the bed and on the floor, it wasn’t like straight punches, but he kicked her on the side of her head “like a soccer ball.” It was like a stomping motion all over her face. He had socks but did not have shoes on. He did not hit her with any items, it was “just mostly kicking and hitting.”

Evidence of Complainant at Preliminary Inquiry

41The complainant testified on January 29 and 30, 2024 at the preliminary inquiry before Rutherford J. of the Ontario Court of Justice. She swore to tell the truth using an Eagle Feather and had a support person present.

42She testified that she had a studio apartment with no balcony. She just had a twin mattress, a dresser, and two or three chairs in the unit. She had moved in towards the end of November 2022.

43Earlier on December 6, a friend “Crystal” had dropped off a cat litter box. She and S had McDonald’s sometime after 5 p.m. She and S were watching TV shows on her Chromebook. They were drinking and had 4 to 5 shots of vodka. She remembered feeling the effect of the alcohol but the alcohol did not cause her to have any loss of memory.

44Then a male came over to the apartment. Throughout most of her testimony at the preliminary inquiry, the complainant called the male “Ali” explaining that she didn’t know his name because “they all said different names every time”, but it was “that guy sitting there in that courtroom” (i.e. Mr. Al-Khulaifi) who she was talking about.

45Everything was normal until S and the male started bickering. She remembered telling him, “can you please go into the bathroom” but he kept on refusing, or went in the bathroom but kept on coming out. S became upset and said, “you’re picking him over me” and left. The complainant told the male to leave but he refused. She got him to the door and said, “okay, get out” and gave him one push but he “backhanded” her and then started beating her. She tried getting outside of her apartment at least five different times and every single time he would just grab her by the hair and yank her back inside the apartment.

46Once again, due to the importance of the complainant’s testimony in this area, I reproduce an excerpt:

Q. So, Ms. [complainant], I’d like to ask you about what happened next, and I hope to do it in the same fashion. Is that something you can do for us?

A. Yeah.

Q. Okay.

A. Yes.

Q. Do you -- do you want to just tell us, or do you want me to ask you further questions?

A. Yeah, so it was just -- he just started like hitting me in my face, throwing me around, like, and whatever. I was on the actual ground and he would be kicking me in my head really hard and he wouldn’t start, like -- and I kept trying to get out of the apartment, and he just kept --just grabbed me by hair and just throwing me back inside and not letting me get out. Like I tried getting outside my apartment at least five different times, and every single time he would just grab me by my hair and just yank me back inside the apartment. And then -- so then I don’t know how long specifically it all went on for, but it actually felt like hours and hours and hours. Because you imagine getting kicked in the head multiple times, it’s like full force, like they’re not just little kicks. Like he was full on like in the movies. Like no, it was -- no, it was not fun.

And then he proceeded to -- he was like, “You know what, you know what, I’m going to fuck you, I’m going to fuck you after feeding me for a bit”, and then yeah, pulled my pants off and decided to, yeah. And I remember pushing on his thighs trying -- but like after being kicked in the head and being beaten, it’s kind of tiring, right, so it was kind of hard for me to actually push him off of me. And then he decides to be all like, “Okay, like you’re going to suck it”, and I remember telling him, “I will bite it. If you put that in my mouth, I will fucking bite it.” Like I don’t know why he thought oh, she’s just saying that. Oh, don’t -- but like so he proceeded to put it in my mouth, and I bit it, and then he just started punching me in my head because obviously I just bit his fucking -- sorry. Yeah. So yeah. Yeah. Yeah. Yeah. Yeah. Yeah. Yeah. Sorry. Yeah. Sorry.

Q. Thank you, Ms. [complainant].

47In the above excerpt, the complainant’s reference to vaginal intercourse is somewhat unclear. She references Mr. Al-Khulaifi signalling his intent to have sex with her, pulling her pants off and that he “decided to, yeah.” Her reference to “kind of hard for me to actually push him off of me” may refer to vaginal intercourse, or it may simply refer to him being on top of her without vaginal intercourse. In any event, she clearly references Mr. Al-Khulaifi forcing oral sex on her and her biting his penis.

48Crown counsel continued to examine the complainant. She indicated that she would try getting away from the male but he would kind of get on top of her and be screaming in her face with her screaming back. She would be trying to get him off her, poke him in the eye, or pull his hair so that he would get off her and he would just put his hands on her mouth and “slap and just hold it, and he would also have his knee on [her] arm like legit pinning [her] on the ground.”

49She was not able to breathe for maybe like 30 seconds and it happened “a bunch of times.” They would be wrestling and he would let go, it was constant fighting.

50She testified that, because the male was putting his knee on her arm with “all the pressure”, he ripped off the stitches on her left arm and “there was blood coming out from everywhere” as a result. She testified that she was also bleeding out of her nose and mouth. She testified that the male would just either get up or she would kind of crawl away a little bit, but he was back and forth between hitting and kicking her.

51She was not able to describe how many times the male hit her with his hand because it was too many times. She testified that it stopped because she managed to get to the door and run outside down the hallway with no pants or underwear on. She vividly remembered that the male was laughing really, really loud “like it was so hilarious, oh, she’s getting away.”

52She testified that she told the “cops” (i.e. TCHC officers) that the male was in her apartment. They brought him out and then gave her phone to her which was on the male’s person.

53She did not remember going to the hospital, but remembered being at the hospital.

54She testified that the reason why she could not remember some stuff was not because of her alcohol consumption, but because she had been kicked in the head so many times.

55She remembered Officer Ferguson coming to the hospital and taking some photographs of her injuries. She confirmed that a sexual assault kit was performed and meeting with a nurse. She remembered feeling very sick from the trauma of “being kicked in the head, thinking about being raped.” She did not think it had anything to do with the alcohol that she consumed.

56Towards the end of her examination in chief at the preliminary inquiry, the complainant was asked when she was sexually assaulted in relation to the course of events that she described. She responded that it was maybe after the second or third attempt of her trying to get out. The male ended up putting her on the mattress that was on the floor. He pulled off her grey shorts and underwear. She testified that she told the male to stop and after his penis was inside her, he tried to put his penis in her mouth. He was not wearing a condom. She does not know if he ejaculated. She was not sure if biting the male on his penis caused him injury. She did not remember tasting “blood or anything” but she’s not 100% sure. She only remembers injuring the male by possibly biting on his penis and trying to poke his eye. She did not pick up a knife to defend herself but remembers possibly scratching the male on his face near his eye. She did not think she made contact elsewhere on his body.

57She testified that she was consuming marijuana via a weed pen which is like a vape that has THC (the active ingredient in marijuana) instead of CBD. She testified that her feelings from the effects of the vape were more for like anxiety and keeping a “chill vibe” rather than being high. She testified that her mind was fully there and the consumption did not affect her memory.

58She testified that she was pretty sure that the male brought another bottle of vodka to her place. The male was drinking and may have had a buzz but he was still speaking clearly and was still there. It did get progressively worse especially after the fighting happened as alcohol takes a little bit to kick in.

59She did not consider the male and her to be in a boyfriend – girlfriend relationship at any point.

60Crown counsel provided the complainant with an opportunity to re-read her police statement. After doing so, she stated that the male’s name was Omar. She did not know his last name. She had his iCloud email address.

Cross-examination of Complainant at Preliminary Hearing

61She recalled that Omar might have been at her place the day before December 6, or a couple of days before. She denied that she has a problem with her memory or blackouts after drinking a lot.

62She acknowledged that on December 5th, she was in the Emergency Department of Michael Garron Hospital because she had cut her arm. She had a history of cutting herself arising from mental health issues. She cut herself while extremely intoxicated and acknowledged that she did so in the presence of Omar. She did not remember Omar tying to help her in terms of going to the hospital or holding her arm and making sure that she did not bleed to death. She did not remember how long she was in hospital for or when she got home.

63She denied that she suffers from polysubstance use disorder but acknowledged that she was diagnosed with complex PTSD, anxiety, and depression. When it was suggested that her medical report stated that she is diagnosed with anxiety, depression, complex PTSD, and polysubstance use disorder, she testified that this was the first time that she was hearing about it.

64She also agreed that she consumed cannabis daily.

65She went over the sequence of events with the dispute between S and Omar, S leaving, and her wanting to go after S, but Omar preventing her from doing so.

66She went to push Omar out and he started hitting her (she gestured with her right elbow back behind her, about shoulder height, to indicate how she was assaulted). Then he was throwing her around, hitting her in the face, and eventually she ended up falling to the ground from being slapped and hit. It was hard to get up because she was getting kicked in the face.

67Defence counsel then asked her the following set of questions:

Q. Okay. So how did it end, the beating?

A. I finally -- sorry.

THE COURT: Take your time.

THE WITNESS:

A. It stopped because I finally got out of the apartment after a few attempts.

A. VAUGHAN: Q. Okay. And what did you do when you got out of the apartment?

A. I ran down the hallway and I was screaming and knocking on doors trying to get somebody to help me.

Q. Did anybody answer the doors?

A. Nobody answered their doors. But when I turned around, there was already a cop at the end of the hallway dealing with somebody else, like trying to get into somebody elseʼs like apartment.

Q. Okay. So youʼve described the fight with S, you described the -- trying to get my client out because you wanted -- as soon as S left, you wanted -- you wanted to go after S, right? And youʼve described how you -- you -- you try to push him out of your apartment, fair enough. And then my client was violent in terms of resisting that, you trying to get him out of the apartment, right?

A. Yeah.

Q. And then you -- youʼve described eventually going into a ball and receiving kicks and slaps to the head?

A. Yeah.

Q. Okay. And then you -- but you finally, after what, five, ten minutes of this, you finally get -- get out of the apartment. Is that fair?

A. Like, I donʼt know. Thatʼs why I don’t know the exact specific times ‘cause -- ‘cause I made attempts to the door like at least five times.

Q. Okay.

A. Like I would end up getting up, trying to get to the door, go to unlock it and opening it, and I would just get pulled back by my hair, and just -- yeah, it just....

Q. And then eventually you get out and you knock on some doors?

A. Yes.

Q. And finally you see the police coming down the hallway...

A. Yes.

Q. ...right?

A. And then they were just like get her a blanket or something ‘cause I was out there with no underwear, no pants, bleeding bloody from my face.

Q. So when did the sex occur?

A. It was when he was beating me, like he was like -- and thatʼs what -- like he -- he rode it.

THE COURT: Just take your time.

THE WITNESS: A. Who does that? Anyways, yeah -- but no, he was beating me and everything. And then I donʼt know how specifically, but then heʼs just like, “You know what, you know what, Iʼm going to fuck you, Iʼm going to fuck you.” Like, why? I was....

THE COURT: Take your time.

THE WITNESS: A. Yeah, so it would have been like, I donʼt know, like into beating me, ‘cause I was already bleeding and everything. So it wasnʼt like he started with rape. Like he was beating me and beating me, and then I guess my face was swollen up enough, so he was like, “Oh, yeah, I’m going to” -- like, no, but he just started saying, “You know what? I’m going to fuck you”...

Q. Okay.

A. ...and then proceeds to take off my pants and put his penis inside of me.

Q. You -- you -- you took off his pants and put -- put his penis inside of you?

A. No, he took off my pants and put his penis inside of me.

Q. Okay. Now, were you fighting this?

A. Yes. I remember because -- so obviously my legs would have been up, right, so I’m pushing, trying to push his thighs back...

Q. What....

A. ...but I couldn’t.

68The complainant testified that Omar pulled her shorts and underwear off at the same time. She assumed he just tossed them like just to the side. She ran out the door.

69Defence counsel also asked about her purportedly biting Omar’s penis:

Q. Okay. When you said you bit him really hard on his penis, when did that happen?

A. It was after he was inside me, raping me, and then he pulled it out and was like, “You know what, like, you know, you can put it in your mouth.” And I was just saying, “No like I will fucking bite it. Like, I will bite it.” So before he put it in my mouth, when heʼs saying heʼs going to put it in my mouth, I was warning him, telling him, “I will bite it.” And then he proceeded to put it, try to stuff it in my mouth anyways, and I bit it. And then I remember it was just straight punching to my head again. And then the beating was obviously a lot more ‘cause he was angry that I just fucking bit his dick.

70At a later point in the complainant’s cross-examination, the following exchange arose:

Q. Did he try -- did he try -- did he rape you vaginally before he put....

A. Yes, he raped me ‘cause he -- I said he raped me and then he said, “I’m going to put my dick in your mouth,” and I said, “Don’t.”

Q. Okay. And then he -- he -- so you warned him that you would bite it, and then he did anyway, right? So he put his penis in your mouth?

A. Yes. And then I bit his dick.

Q. Okay. What did he do at that point?

A. He started punching me in the head and started hitting me and punching me more.

Q. Was his penis out of your mouth then, or was it still in your mouth when he was....

A. Yes.

Q. It’s out of your mouth?

A. Yes. Obviously when he punched me the first time I let go ‘cause I just got fucking hit, like, I just got punched in the head.

71The complainant denied picking up a knife, stabbing or slashing Omar at any point with it. She did not lose any teeth but her mouth and nose were bleeding.

72She did not have any memory of Omar bleeding or having any slash or stab wounds. She acknowledged throwing her Chromebook at Omar, and trying to poke him in his eyes, and grabbing a big clump of his hair.

73She ballparked that she had six shots and “maybe like two or three chasers” that night.

74Defence counsel asked the complainant if she had any explanation for the cuts including one deep cut that Omar had on his hands. She responded by saying that she was protecting herself. She acknowledged pushing him, hitting him, grabbing his hair, and throwing her Chromebook at him, and doing everything to fight back.

75She denied having consensual sexual relations with Omar.

76She remembered drinking either whiskey or vodka. She ultimately conceded it could have been both.

77She agreed that her nose was not broken, she had no facial facture, didn’t lose teeth or have dental issues as a result.

78She acknowledged calling Omar a lot of names including “a fucking bitch”, “faggot”, “bitch”, and “cunt”.

Evidence of Complainant at Trial

79As I have already summarized the evidence that the complainant provided in her police statement in December 2022, and at the preliminary inquiry in January 2024, I shall only describe the evidence that was notable in her testimony at trial.

80The complainant testified she met her friend S at a shelter about two months earlier. December 6, 2022 was the first time that S came over. She did not know a lot of details about S.

81By the time Omar came over, she and S had already eaten. She was tipsy but not drunk. She testified that she had no gaps in her memory before Omar came over.

82She testified that S got too drunk and started getting “all emotional and stuff” and then S and Omar started bickering at each other. She was trying to get them to calm down and de-escalate the situation. She tried getting Omar to go to the washroom, take his stuff away, and “get the fuck out” of the situation. S ended up getting mad at her because she was defending Omar. Then Omar got mad at her because she was defending S. S ended up pushing the complainant into the closet. S got mad and walked out.

83She testified that S, Omar, and her were in the apartment for about one hour together. She was concerned because S was drunk and did not know the area, and had left the apartment upset and crying without her coat.

84In her examination-in-chief, the complainant was asked:

Q. All right. So Ms. [complainant], you've told us what happened.

A. He was been beating me and then he decides, so I'm going to fucking rape you. And that's what he did. Ripped my pants off and stuck his dick inside me. And I was fighting it. And then he stops and tries to get me to put it in my mouth. I full on tell him I will fucking bite it. He says whatever, thinks I'm fucking not serious, decides to shove it in my face. Anyways, I bit it. And then he starts punching me in the head and then kicking me, and it's just all beating. And I keep trying to get out of the apartment, and he's not letting me go. I tried leaving the apartment like at least four or five times, and he just kept grabbing me by my hair and just throwing me back down onto the ground...

85When 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.

86At some point in her testimony, she said, “I already said I lied. It’s already out the window.”

87On the first day of her testimony, the complainant testified by way of CCTV. When she returned to court the next day, she requested to testify in person from the courtroom, which I permitted. She stated that she was upset and overwhelmed the previous day and “lost it”. Even though she testified the previous day that certain things did not happen, in fact, they did.

88The complainant testified that, after S left, she put on her shoes and winter coat (black hooded jacket), phone and keys. Omar was not putting his shoes on. He just kept on refusing. Omar kept on saying that he liked her and that S was fine, she was an adult. She started to get more irritated and she said that she needed to get S, can he just go.

89Omar was near the front door, backing up against her, while she was behind him trying to get him out. He turned to his right and raised his right elbow back, which hit her face. She was pretty sure that her “lip was busted” because of what Omar did.

90S pushing her did not cause any injuries.

91Then Omar started kicking her while she was curled up in a ball in the kitchen area. She tried to leave but he kept on grabbing her hair and pulling her back. She fell backwards into the cat’s litter which caused it to spill everywhere.

92She tried to leave 4 or 5 times.

93When Omar was beating her, he was calling her a bitch and a slut and saying, “Oh, I liked you, you stupid bitch. I fucking liked you.”

94The kicks and punches landed straight on her face and head over and over again. She thought her nose was broken, her lips and face were swelling.

Q. What happened from there, please?

A. If any -- like it just made it worse, ‘cause he just kept, like, just kept hitting me and beating on me, and I just kept saying you -- “Like just stop, I like you, I like you,” and then he’s just like, “You know what I’m going to fuck you then,” and then decides to fucking pull my fucking pants off and do that. And then he also tries to make me suck it and I told him I’m going to fucking bite it if he put it, and he does anyway, and I bit it, and then he started punching me directly in the head again and then all the beating started again. And then eventually, that’s what I mean, it was just me getting kicked and beaten on and hit until I was able to escape and get out of the apartment.

95The complainant had on a pair of shorts. She did not remove them herself, Omar did. By this time, Omar had dragged her over to the bed. She remembered trying to kick him off and push on his thighs. She does not remember what he was wearing. He put his penis in her. He did not wear a condom and she does not know if he ejaculated. He then said that he wanted her to suck his penis. She said, “no, I’m going to bite it.” And she did. And then he started punching her in the head.

96She ran out of the apartment just wearing a shirt, a sweater that she had on, she had no pants, no underwear, and was in the hallway banging on doors screaming for someone to help her. She saw “cops” who covered her up with a blanket and told them that Omar was in her place. She remembered that, as soon as she ran out, Omar stared laughing. She thought that he was going to kill her cat, that’s what she was telling the cops.

97She remembered that she threw up in hospital. She denied that she was drunk and testified that she was “beaten sober.”

98Crown counsel asked: Do you still have any lasting injuries?” to which the complainant answered, “No, there’s no physical injuries, it’s just a lot of trauma.” Crown counsel followed up with, “Is there something that, on a day-to-day-basis causes you difficulty because of what happened in 2022?”, and the complainant answered no.

99Crown counsel asked, “Was there any injury below your face, like your neck and beyond?” The complainant answered, “Not really, just a couple scratches or bruising around my collarbone, and my arms and stuff.” In an attempt to refresh the complainant’s memory, the Crown asked, “Was there a point where you tried to state something but couldn’t?” to which the complainant answered, “Like, no, I don’t think so. Just when I was getting hit and stuff - and he would cover me and stuff.”

100The complainant’s examination-in-chief ended and her medical records were entered into evidence.

101Counsel for Mr. Al-Khulaifi commenced his cross-examination of the complainant. She conceded that Mr. Al-Khulaifi was also at her apartment the night of December 5, 2022, and that on that night she pulled out a knife and started cutting herself on her left arm in Mr. Al-Khulaifi’s presence. She testified that she stabbed herself three times that day. Defence counsel got a few more 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.

102This led to an exchange between myself the complainant where the complainant stated, “well, can’t just everyone just realize we’re not getting anywhere right now?” I reminded the complainant that she was the person who had the most control over what I was hearing. The complainant responded that, since she had control of the situation, she was ending it now.

103This 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.

104I 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.

105I 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 and ultimately never returned to complete her testimony. This led to the Crown applications being brought which I granted.

Bernard Miguel

106At 2:14 a.m. on December 7, TCHC special constable Bernard Miguel received a report from dispatch indicating that someone on the 8th floor of 5 Wakanda Place said there was a problem on the floor above. Special constable Miguel was familiar with the building.

107He arrived at 2:32 a.m. with special constable Nicoll as back up. As soon as they stepped off the elevator on the 9th 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.

108There 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 9th floor, a male (i.e. Mr. Al-Khulaifi) came out of the complainant’s unit.

109The complainant told Officer Miguel, “this is what he did to me. He kicked me in the face and 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.

110Special constable 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.

111Special constable Miguel placed Mr. Al-Khulaifi in handcuffs and had dispatch call 911. EMS arrived about 7 to 9 minutes after Officers Miguel and Nicoll arrived on the 9th floor.

112Mr. Al-Khulaifi was placed in custody at 2:47 a.m. and about 6 or 7 minutes later, Toronto police took over the scene. Special constable Miguel did not enter the complainant’s apartment.

Craig Nicoll

113TCH special constable Craig Nicoll was also familiar with 5 Wakanda Place. It has 11 floors, 20 units per floor. The majority of residents were on some form of social housing. A lot have special needs.

114He 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 9th floor. She had a substantial amount of blood on her. When special constable Miguel was speaking to her, he could not hear what was being said. The male had blood on his face, hands, and shirt.

115The complainant told the special constables that the male had beat her up and tried to rape her. She also said that the male had taken her cell phone so she could not call for help.

116At 3:02 a.m., TPS officers PC Tannous and PC Windebank arrived on scene and the accused was transferred into their custody and rearrested.

117Officer Nicoll went into the apartment because he did not know if there was anybody else that needed assistance The apartment was in complete disarray. There was broken glass and debris all around the apartment. There were a lot of things scattered around the apartment, it looked like there had been some sort of confrontation. He did not touch or move anything.

118There was a large kitchen knife in the living space area on the south side of the apartment by the windows. It was a black 12-inch kitchen knife so he could not tell if there was actually blood on it. He got a key so that he could lock the door. He stayed on scene so that the continuity of the scene was secure.

119At 3:55 a.m., he was relieved by a number of TPS officers.

PC Kathryn Ferguson

120On the morning of December 7, 2022, PC Ferguson met the complainant for the first time in a private room in the Emergency Department of Michael Garron Hospital. The complainant was in the process of receiving medical attention. PC Ferguson had received information from another constable who was the lead officer concerning the incident at 5 Wakunda Place. The complainant was not in custody, but Mr. Al-Khulaifi had been arrested earlier that morning.

121PC Ferguson testified that the complainant gave an oral statement to night shift investigators from the Criminal Investigation Bureau (CIB) of the TPS. PC Ferguson spent about 30 minutes with the complainant.

122PC Ferguson headed back to 5 Wakunda Place to take photos and process the scene. There were multiple officers on site. She then returned to the station to process the property that she seized. Later the same day, she was detailed to take photographs of Mr. Al-Khulaifi and any injuries that he suffered. She spent 10 or 15 minutes with him.

123PC Ferguson testified that 5 Wakunda Place is a TCHC building where all the adults lived in single-occupancy independent-living units. Occupants have one or more substance abuse, addiction, or mental health issues.

124PC Ferguson seized a number of items from the complainant’s apartment (Olive Green Moose Knuckles winter jacket; Navy Blue Zip Up Sweater; Cellphone – Blue Motorola; Cell Phone – Teal Smartphone; Gray Shorts; and White Fitted bedsheet).

125The complainant’s CAS caseworker, Thasitha Moorthy, attended 55 Division on December 8 and provided three items found in the unit that did not belong to the complainant (a blue iPhone, a black pair of pants, and a silver chain necklace).

126On December 11, 2022, PC Ferguson transported the complainant from her apartment to the police station where the complainant gave her formal statement.

127PC Ferguson presented and described 169 photographs taken by her that were entered into evidence at trial. The photos can be categorized as:

(a) 3 photos of the complainant sitting on a hospital bed;

(b) 23 photos of the complainant’s face, head, and hands including close ups of her face showing swelling, bruising, and scratches;

(d) 56 photographs of the complainant’s apartment at 5 Wakunda Place;

(e) 12 photos of various mobile phones;

(f) 13 photos of the exterior and interior of a men’s Moose Knuckles parka;

(g) 2 photos of a gray pair of women’s underwear;

(h) 6 photos of a blue “S.H. Lang” size XXL jacket;

(i) 13 photos of a men’s size 10.5 pair of running shoes that belonged to Mr. Al-Khulaifi;

(j) 10 photos of Mr. Al-Khulaifi – PC Ferguson took these photos at 55 Division on December 7 at 12:10 p.m.; and

(k) 12 photos of the complainant back in her apartment.

128PC Ferguson testified that the photos of the complainant’s face showed significant bruising, particularly around her lips which were swollen, the orbit of her left eye, top of her nose, and left ear. In addition to bruising, there were scratch marks on her face and on her neck, a bruise about 5 inches long from the centre of her neck along the left side towards her neck.

129The photographs of the complainant’s unit showed what appeared to be a very unkempt apartment strewn with items including empty vodka bottles, two large bottles of Wiser’s whiskey on a nightstand, broken glass on the floor, a necklace on the floor, a litter box on its side with its contents spilled out on to the floor, and an unconsumed McDonald’s food in a wrapper.

130Other photographs showed:

(a) a pair of gray trackpants on the left side of the toilet in the bathroom

(b) a pair of women’s shorts of the side of toilet

131With respect to the photos of Mr. Al-Khulaifi, PC Ferguson testified that the photos were taken with his consent. They showed:

(a) The top view of Mr. Al-Khulaifi’s hands showing what appears to be dried blood around his fingernails; and

(b) A horizonal scratch mark 15 or 16 centimeters long on Mr. Al-Khulaifi’s torso above his belly button, and another scratch, below his belly button, two to three centimeters long.

132PC Ferguson testified that she was aware that the complainant had some injuries that pre-existed whatever injuries she may have received in the early morning hours of December 7. The complainant was treated for self-inflicted injuries prior to December 7.

133PC Ferguson testified that the most notable injuries were on the complainant’s head, face, and hands. She did not take invasive photographs of the complainant under her clothing as these photographs were to be taken in connection with the complainant’s completion of a Sexual Assault Evidence Kit (SAEK).

134PC Ferguson testified that the complainant did not appear to have received any knife wounds.

135She also testified that the scratch marks on the complainant’s neck appeared to have come from being strangled.

136The silver chain (photo 90) was a male chain that had its clasp broken.

137PC Ferguson testified that, in terms of alcohol, there were two bottles of vodka on the counter, two vodka bottles on a table with white legs, and two whiskey bottles. There were also two empty cans of White Claw vodka soda. The alcohol bottles and cans were empty or close to empty.

138With respect to the photos of Mr. Al-Khulaifi, PC Ferguson described him as having some injuries around his left eye, redness in his cheek and left eye, a cut right by his mouth, and another cut on his check and on his neck as well, and scratches. In re-examination, PC Ferguson testified that she did not think that the scratch on Mr. Al-Khulaifi’s stomach came from a knife based on her experience as a first responder. It seemed like something caused by a fingernail. It was very superficial.

PC Simon Windebank

139PC Simon Windebank has been a TPS officer for 7 years. He first attended the complainant’s unit at 11:56 p.m. on December 5, 2022. The complainant and Mr. Al-Khulaifi were present. He took the complainant to hospital.

140His next shift started at 7 p.m. on December 6. His police partner was PC Antonio Tannous. In the early morning hours of December 7, he and PC Tannous were dispatched to the complainant’s apartment and arrived at 2:47 a.m. When they arrived, Mr. Al-Khulaifi was already in handcuffs sitting on the floor outside the door to the complainant’s apartment. TCHC special constables were already on scene. A female (i.e. the complainant) was present and naked from the waist down. She was bleeding from her face. The complainant’s face was incredibly swollen and was covered in blood. She looked like she had received a lot of punches or had experienced some sort of assault to her face. He did not have enough information about her state of sobriety. She seemed to understand what was going on when she was receiving information from the paramedics on scene. PC Windebank explained the SAEK to the complainant.

141PC Windebank obtained information from TCHC special constable Miguel. PC Windebank was only in the complainant’s apartment for a couple of minutes. After he left the apartment, he took Mr. Al-Khulaifi down to the ambulance. The TCHC special constables were instructed to stay on scene. Mr. Al-Khulaifi needed some medical treatment as well. He had an injury to his left hand. Nothing stood out concerning the black sweater and black pants that Mr. Al-Khulaifi was wearing.

142PC Windebank testified that the complainant and Mr. Al-Khulaifi were far more intoxicated the first time he met them on the evening of December 5, than in the early morning hours of December 7. On December 5, he was not getting clear answers as to what happened. On December 7, he did not feel that there was a high degree of alcohol involved.

143The footage from PC Windebank’s BWC was played in court. It commenced at 3:01:14 a.m. and ended at 3:12:49 a.m. on December 7. PC Windebank testified that he did not seize anything out of the apartment. He cautioned Mr. Al-Khulaifi. In his view, Mr. Al-Khulaifi had an operating mind in the early morning hours of December 7. He handed over control of Mr. Al-Khulaifi to another officer at 6:43 a.m. on December 7.

144In cross-examination, PC Windebank acknowledged that, following the police attendance to the complainant’s apartment on December 5th, Mr. Al-Khulaifi was not charged with anything. Mr. Al-Khulaifi was driven home by TCHC special constables.

145On December 5, the complainant had a series of self-harm cuts to her stomach and a big cut on her left elbow. The complainant was discharged from hospital at 6:30 a.m. on December 6, and PC Windebank drove her home.

146When PC Windebank saw Mr. Al-Khulaifi again in the early morning hours of December 7, it was after the TCHC special constables had called police. PC Windebank read Mr. Al-Khulaifi his rights to counsel. He was intoxicated. He had a minor cut to his face, and a bandage on his left middle finger. As he escorted Mr. Al-Khulaifi to a waiting ambulance, Mr. Al-Khulaifi attempted to communicate with the complainant who was in a separate ambulance.

Position of the Parties

The Crown’s Position

147The Crown submits that, while the complainant did not complete her cross-examination, the available evidence, which includes her testimony at trial, her police statement, her testimony at the preliminary inquiry, and the evidence of the TCHC special constables and TPS police witnesses, strongly supports her allegations. It amounts to proof beyond a reasonable doubt that the complainant was physically and sexually assaulted in her unit in the early morning hours of December 7, 2022. Mr. Al-Khulaifi should be convicted on all five charges on the indictment.

The Defence Position

148The Defence submits that the complainant is a completely incredible and unreliable witness who refused to cooperate with the cardinal rule of trial fairness, the necessity to withstand cross-examination. Even with the incorporation of the complainant’s out-of-trial testimony, there are so many unknowns about what happened in the early morning hours on December 7, 2022 that the Crown cannot come close to meeting the high standard of proof beyond a reasonable doubt. Mr. Al-Khulaifi should be acquitted on all the charges. In the alternative, if the court finds that some sort of physical altercation took place between Mr. Al-Khulaifi and the complainant, the Defence submits that, in defending himself, Mr. Al-Khulaifi may have overreacted, in which case he is guilty, at most, of common assault.

Relevant Legal Principles

149I have instructed myself about a number of important legal principles.

Presumption of Innocence and Requirement of Proof Beyond Reasonable Doubt

150Mr. Al-Khulaifi is presumed to be innocent, unless and until the Crown has proven the offences against him beyond a reasonable doubt. It is not enough for me to believe that he is possibly, or even probably, guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, as a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

Credibility and Proper Approach to Inconsistencies in Evidence

151The credibility and reliability of the complainant is central to this case. Credibility and reliability are different. Credibility has to do with a witness’ veracity, truthfulness, sincerity, and honesty. Reliability has to do with the accuracy of the witness’ testimony, i.e., the witness’ ability to observe, recall, and recount events accurately. While a witness who is not credible on an issue cannot give reliable evidence on the same point, a credible witness may give unreliable evidence: R. v. Nyznik, 2017 ONSC 4392, 350 C.C.C. (3d) 335, at para. 15. Also see R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82, and R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41.

152Credibility may be assessed by looking at inconsistencies in a witness’ evidence. In R. v. Jampies, 2026 ONSC 2051, at paras. 42-43, the court commented:

The Ontario Court of Appeal in R. v. Williams, 2018 ONCA 138, adopted the following statement from R. v. M.(A), 2014 ONCA 769, about inconsistencies, at para. 33:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354.

153The fact that the complainant repeated certain allegations in her police statement, preliminary inquiry, and at trial, does not increase her credibility. This is because prior consistent statements are presumptively inadmissible, subject to certain exceptions, and that they pose an “overwhelming danger” to the search for truth by improperly bolstering credibility: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at paras. 34-38, leave to appeal refused, [2020] S.C.C.A. No. 87; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.

Sexual Assault and Trauma

154There is no hard and fast rule as to how people who are the victims of trauma like sexual assault will behave. It is an error of law to make assumptions about how a victim of sexual assault should or will react to the assault: R. v. A.R.D., 2017 ABCA 237, 55 Alta. L.R. (6th) 213, at para. 50, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5.

155The Supreme Court of Canada has repeatedly recognized the prevalence of myths and stereotypes about sexual assault complainants: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 36. Such myths include that genuine sexual assaults are perpetrated by strangers to the victim, and that false allegations of sexual assault based on ulterior motives are more common than false allegations of other offences.

Elements of Sexual Assault: s. 271

156Sexual assault is not defined in the Criminal Code but involves any form of assault under s. 265(1) committed in a sexual context that violates a person’s sexual integrity: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 24.

157To distinguish sexual assault under s. 271 from assault under s. 265(1), the Supreme Court of Canada has adopted an objective test for this purpose. Assault is sexual assault when the sexual context of the assault would be visible to a reasonable observer. A court must consider the totality of the circumstances, including “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”, as well as the “intent or purpose of the person committing the act” such as “sexual gratification”: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 11.

158The presence of a motive for sexual gratification will strongly support the characterization of assault as sexual assault. However, the absence of such a motive does not prevent an assault from being characterized as sexual if it otherwise passes the objective test. “Sexual assault, an act of power, aggression and control, does not require sexual gratification”: R. v. V. (K.B.) (1992), 1992 CanLII 7503 (ON CA), 71 C.C.C. (3d) 65 (Ont. C.A.), at p. 71, aff’d 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857.

159Sexual assault does not require intercourse, digital or penile penetration, or touching of a particular region of the body to be made out. A punch in the face for refusing sexual gratification can be sexual assault: R. v. Higginbottom, 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.), at para. 10. Likewise, pulling down a person’s pants while threatening them can constitute sexual assault: R. v. Shah, 2016 ONSC 903, at paras. 44-45, 51-52, aff’d 2018 ONCA 236. The defining line between assault and sexual assault is whether the non-consensual force would be seen as “sexual in nature” to a reasonable observer. An assault may be sexual assault if the surrounding context supports the conclusion that the complainant’s sexual integrity has been violated in the course of an assault.

160To summarize, the Crown must establish the following elements to prove sexual assault: The actus reus of sexual assault consists of unwanted sexual touching. It is established by proof of three elements: 1) touching, 2) a sexual nature of the contact, and 3) the absence of consent. The first two elements are objective. The absence of consent is subjective and is determined by the complainant's subjective internal state of mind towards the touching when it occurred: Ewanchuk, at paras. 25-26.

161The mens rea of sexual assault consists of two elements: 1) an intention to touch the complainant, and 2) knowledge, recklessness, or wilful blindness to a lack of consent on the part of the complainant: Ewanchuk, at paras 41-42.

Sexual Assault via Choking, Suffocating, or Strangling

162Under s. 272(1)(c.1), every person commits an offence who, in committing a sexual assault, chokes, suffocates or strangles the complainant.

163“Choking, suffocating, or strangling” are not defined in the Criminal Code. Some cases suggest that the offence requires an act “designed to block or constrict a person’s airway, such as by squeezing the neck or throat, or covering the nose and mouth”, but it is not necessary to prove that there was a loss of consciousness or bodily harm. Any act “which applies pressure to the respiratory system of the complainant such that her ability to breathe is interfered with in meaningful way” is sufficient to make out the offence: R. v. C.M., 2022 ONCJ 505, at paras. 96, 99, citing R. v. Bear-Knight, 2021 SKQB 308, at para. 77.

164However, courts in other cases have questioned whether the requirement to prove that a person’s airway was constricted places the bar too high: R. v. Anwer, 2025 ONCJ 581, at paras. 88-90, citing R. v. A.K., [2023] O.J. No. 5854, at paras. 97-104.

Aggravated Sexual Assault: s. 273

165In R. v. Degale, 2024 ONCA 720, 442 C.C.C. (3d) 261, at para. 23, the Court of Appeal described the elements of aggravated sexual assault under s. 273 of the Criminal Code:

[T]he offence of aggravated sexual assault under s. 273(1) of the Criminal Code is made out when, in committing a sexual assault, the accused “wounds, maims, disfigures or endangers the life of the complainant”. The mens rea for aggravated sexual assault requires only the intent for sexual assault plus objective foresight of the risk of bodily harm: see R. v. S.(F.) (2006), 2006 CanLII 7667 (ON CA), 262 C.C.C. (3d) 472 (Ont. C.A.), at para. 28; R. v. Godin, 1994 CanLII 97 (SCC), [1994] 2 S.C.R. 484, at p. 485; and R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 22, 44 and 45.

No Requirement for Corroboration Before Conviction

166There is no legal requirement that a complainant’s evidence be corroborated before a conviction for sexual assault (s. 271), sexual assault with a weapon, threats to a third party or causing bodily harm (s. 272), or aggravated sexual assault (s. 273) can follow: s. 274 of the Criminal Code. However, where there are concerns about the reliability of a complainant’s testimony, “corroboration can provide a basis for resolving those concerns and concluding that guilt has been proven beyond a reasonable doubt”: R. v. A.S., 2021 ONSC 8549, at para. 63.

Forcible Confinement

167To make out the offence of forcible confinement, the Crown must prove 1) that the accused intentionally confined the complainant, and 2) that the confinement was without lawful authority.

168In R. v. Saleh, 2022 ONCA 735 at para. 25, the Court of Appeal explained the nature of forcible confinement:

A complainant is unlawfully confined if, for any significant period, she is coercively restrained or directed contrary to her wishes so that she cannot move about according to her own inclination and desire. In R. v. Ally, 2022 ONCA 558, this Court expressed skepticism that a “significant period” is a distinct essential element under s. 279(2) of the Criminal Code. Rather, it is “one aspect of a description often used to explain the confinement element of the actus reus of unlawful confinement”: at para. 96. Although unlawful confinement is a continuing offence, the offence is complete when the complainant is restrained against his or her will: R. v. Sundman, 2022 SCC 31, 471 DLR (4th) 191, at para. 21; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

Cases involving Circumstantial Evidence and the Villaroman Instruction

169Where one or more elements of an offence rely largely or exclusively on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30.

170In R. v. Charley, 2024 ONSC 5064, at para. 17, Schreck J. suggested asking the following question in cases that turn on circumstantial evidence:

Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhury, 2021 ONCA 560, at para. 19.

171In R. v. Abshir, 2023 ONSC 4297, at para. 13, Nakatsuru J. commented on the requirement that the evidence be looked at in a cumulative fashion:

Importantly, proof beyond a reasonable doubt does not apply to each piece of circumstantial evidence: “facts are not to be examined separately and in isolation with reference to the criminal standard”: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 362. Instead, there is a duty on the trier of fact to assess the evidence in a cumulative fashion: “it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof”: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81. See also Morin, at p. 361; R. v. Khalid, 2022 ONCA 501, at para. 23; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 37. As noted in Smith, at para. 82:

Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt… [Citations omitted.]

Findings with respect to December 5, 6, and 7, 2022

172In December 2022, the complainant was 20 years old. In late November 2022, she moved into a single-occupancy studio apartment at 5 Wakanda Place, an apartment building managed by TCHC.

173On December 5, 2022, Mr. Al-Khulaifi visited the complainant in her apartment. I accept the complainant’s evidence that she and Mr. Al-Khulaifi were acquaintances who had only seen each other twice previously. PC Windebank attended the unit at 11:56 p.m. on December 5. He testified that the complainant and Mr. Al-Khulaifi were intoxicated. He could not get clear answers from them as to what happened that evening. The complainant had a series of self-harm cuts to her stomach and a big cut on her left elbow. The complainant was taken to Michael Garron Hospital where she received medical assistance. I find that she received stitches and bandages for the self-inflicted cuts to her left elbow. She was discharged from hospital at 6:30 a.m. on December 6, and PC Windebank drove her home.

174During the day on December 6, the complainant’s friend Crystal dropped off a cat litter box. In the evening, S, another young woman and acquaintance of the complainant, dropped by. In the complainant’s police statement, she could not remember when S came over, but at the preliminary inquiry, she testified that she and S ate McDonald’s food sometime after 5:00 p.m. They watched TV shows on the complainant’s Chromebook and drank alcohol. The complainant testified that they had four to five shots of vodka. The complainant could feel the effects of the alcohol, but did not believe that this caused her to lose her memory. They likely drank whiskey as well.

175I find, based on the texts that police retrieved from the complainant’s phone, that Mr. Al-Khulaifi came over to the complainant’s apartment at 9:01 p.m. He texted, “I’m downstairs, my love. Hello. Yo. Yo. Hello.” He brought a bottle of Absolut vodka to the apartment.

176There is an inconsistency in the complainant’s evidence. At trial, she testified that she, S, and Mr. Al-Khulaifi were together in the apartment for about one hour before the argument between S and Mr. Al-Khulaifi. Yet, TCHC special constable Miguel testified that it was at 2:14 a.m. that someone called TCHC to report a disturbance on the ninth floor. The complainant testified that it was the argument between S and Mr. Al-Khulaifi that prompted S to leave, which led directly to the altercation with Mr. Al-Khulaifi. S was apparently upset that the complainant was picking Mr. Al-Khulaifi over her. The complainant testified that after S left the unit, she tried to follow her, but Mr. Al-Khulaifi elbowed her in the face and then physically and sexually assaulted her.

177There is no independent evidence of when S arrived at, and left, the complainant’s apartment. The Crown did not present any surveillance video from 5 Wakanda Place. If there was evidence that S left considerably before 2:15 a.m. in the morning on December 7, it would undermine the complainant’s narrative of what led to the purported assaults because there would be a longer period of time when the complainant and Mr. Al-Khulaifi were alone in the unit.

178I find that S unintentionally dropped her social insurance number (SIN) card in the complainant’s apartment, because the complainant testified that S had a long Indigenous name, and a SIN card with a long Indigenous name was found on the floor of the unit. S did not testify at trial. Assuming that police knew her identity from piecing together her name, it is not clear why she did not testify at trial. The absence of evidence can create a reasonable doubt. S’s testimony could have shed considerable light on the events of December 6 and 7.

179TCHC special constables Miguel and Nicoll arrived at 2:32 a.m. on December 7 at the complainant’s apartment building. A neighbour on the eighth floor had complained to the TCHC authorities about a disturbance on the floor above. The TCHC dispatch sent a report to special constable Miguel at 2:14 a.m. This suggests that any disturbance in the complainant’s unit had been going on for at least 18 minutes. The disturbance reported by neighbours and relayed to TCHC authorities is consistent with the complainant’s narrative of getting thrown around the unit by Mr. Al-Khulaifi, but it is also consistent with other noisy activities such as one or both occupants throwing items around, moving boxes, smashing bottles, or jumping in the unit.

180As soon as the TCHC special constables stepped off the elevator, they heard a female voice yelling in distress. That the complainant could be heard down the hallway with her apartment door closed, suggests that she was yelling quite loudly. Notably, the special constables did not hear Mr. Al-Khulaifi yelling. The special constables saw the complainant come out of her apartment naked from the waist down. This is a bit different than what the complainant said at the preliminary inquiry where she testified that she was knocking on doors, but I don’t find that much turns on this. Special constable Miguel testified that the complainant’s eyes and face were bruised. He reported that the complainant had swollen lips and blood on her nose and clothing. She told the special constables that Mr. Al-Khulaifi “did this” to her, that he kicked her in the face and attempted to rape her, and that was why she didn’t have any clothing on from the waist down.

181The complainant’s allegation that Mr. Al-Khulaifi took her phone away was corroborated by the fact that, when Mr. Al-Khulaifi was arrested, the TCHC special constables found a pink phone on him. I assume that the complainant’s phone was important and valuable to her. She would not have willingly left her phone behind when leaving her apartment at 2:30 in the morning. This evidence suggests that the complainant left the apartment in a hurry, and possibly in a state of panic.

182Special constable Miguel testified that the complainant’s left eye and face were severely bruised. This is consistent with the complainant’s evidence that she was elbowed and kicked in the face. The photos of the complainant taken by PC Ferguson show swelling, bruising, and scratches on the complainant’s face, head, and hands. The orbit of the complainant’s left eye, top of her nose, and left ear look bruised.

183The photographs of the complainant’s unit are consistent with an altercation or fight having taken place around the time of the TCHC officers’ arrival. At the time, the only other person in the unit was Mr. Al-Khulaifi. That a fight or altercation had recently taken place is also evident from the testimony of special constable Nicoll, who entered the unit, and the photographs taken by PC Ferguson.

184It is unlikely that the broken glass strewn all over the complainant’s unit was present before the disturbance that occurred in the early morning hours of December 7. PC Windebank had attended at the complainant’s unit in the evening of December 5, when the complainant had cut herself. In PC Windebank’s testimony about December 5, he said nothing about broken glass all over the apartment. Moreover, accepting the complainant’s evidence that S dropped by on December 6 evening, it would be unlikely that S and the complainant ate McDonald’s food and watched TV shows in a unit with shattered glass all over.

185The photos of the broken cat litter box taken by PC Ferguson are consistent with the complainant’s evidence that Mr. Al-Khulaifi threw her into the litter box. Of course, the litter box could have broken and been flipped over by some other means. Accepting, as I do, the complainant’s evidence that her friend Crystal dropped off the litter box earlier in the day on December 6, I find it highly unlikely that the litter box was broken earlier than December 7. Given what appears to be the complainant’s affection and care of the two cats in her apartment – she stated in her police statement that as soon as she fled the apartment, she told the TCHC special constables that she did not want Mr. Al-Khulaifi to hurt her cats – I cannot imagine that, had the litter box been damaged earlier than December 7, the complainant would have not placed it right side up and cleaned up the dirty contents that had spilled onto the floor. Accordingly, I conclude that the cat litter box was overturned and broken because of the altercation in the early morning hours of December 7.

186I find that the complainant did not have any notable injuries on her body below her neck. This is consistent with the complainant’s evidence at trial. The Crown asked, “Was there any injury below your face, like your neck and beyond?” The complainant answered, “Not really, just a couple scratches or bruising around my collarbone, and my arms and stuff.” I find that the complainant’s injuries on her left arm were originally from the December 5 self-inflicted cuts. I accept the complainant’s evidence that the bandaging on these cuts ripped open due to some sort of fight or altercation on December 7. I do not believe that the complainant would pull out the hospital stitches on her left arm voluntarily.

187PC Ferguson testified that she did not take any invasive photographs of the complainant below her clothing because she assumed these would be covered in the SAEK process. While there was evidence that the complainant completed a SAEK, no photographs, results, or other evidence from the SAEK were introduced. I assume therefore that the complainant did not have any injuries of any significance in her genital area. Of course, the lack of SAEK evidence should not be taken as conclusive proof that the complainant was not sexually assaulted vaginally or otherwise. I am only making the inference about the complainant’s lack of lower body or vaginal injuries based on the evidence, or lack of evidence, presented at trial.

Mr. Al-Khulaifi assaulted the complainant

188I am convinced beyond a reasonable doubt that there was a fight between Mr. Al-Khulaifi and the complainant in the early morning hours of December 7, 2022 around 2:15 a.m. when Mr. Al-Khulaifi assaulted the complainant.

189I find, most obviously, that the injuries on the complainant’s face and head were not self-inflicted. The two TCHC special constables saw the complainant emerge out of her apartment screaming, with injuries to her face and head, particularly her lips, top of her nose, and left eye.

190The Defence suggests that there was an air of reality to Mr. Al-Khulaifi having defended himself from an attack by the complainant since he had defensive cuts on his hands and scratches or knife wounds on his torso. Also consistent with self-defence is PC Ferguson’s testimony that there was a necklace with a broken clasp on the floor that looked like it would be worn by a male. This could have very well belonged to Mr. Al-Khulaifi. There was also a large 12-inch black kitchen knife on the south side of the apartment by the windows, but special constable Nicoll could not tell if there was any blood on it. I disagree that a knife was involved in the altercation between Mr. Al-Khulaifi and the complainant. I find that their injuries would have been far more serious had a knife been involved. PC Ferguson testified that the complainant did not appear to have received any knife wounds. The theory that Mr. Al-Khulaifi was defending himself from an attack by the complainant is undermined by the fact that the TCHC special constables heard only the complainant yelling. Even if I accept that Mr. Al-Khulaifi was defending himself, I would have found that he assaulted the complainant because the force that he used was excessive, disproportionate, and unreasonable.

191The Crown made much of all the blood and blood smears in the apartment. I do not know whether the blood came from the complainant, Mr. Al-Khulaifi, or both of them. The Crown presented no evidence, expert or otherwise, about the source or age of the blood. I accept, based on the TCHC and police officers’ evidence, that the complainant was bleeding, but I cannot say whether all, some, or none of the blood evident in the photographs of the apartment came from the complainant. Given that the complainant was cutting herself due to her mental health issues, I cannot say whether the blood in the apartment came from the complainant’s December 7 injuries. It was difficult to tell from the photographs taken by PC Ferguson whether the blood was fresh or dry. In her cross-examination at the preliminary inquiry, the complainant agreed that her nose was not broken, she had no facial fracture, did not loose teeth, or have dental issues as a result of the altercation on December 7

Mr. Al-Khulaifi sexually assaulted the complainant by removing her under clothes

192I am convinced beyond a reasonable doubt that Mr. Al-Khulaifi sexually assaulted the complainant by removing her underclothes without her consent, and in a way that violated her sexual integrity. But I am left in reasonable doubt as to whether Mr. Al-Khulaifi vaginally and orally assaulted her.

193There are several reasons why I am left in reasonable doubt about whether Mr. Al-Khulaifi vaginally and orally assaulted the complainant.

194First, I don’t know whether the complainant was actually vaginally and sexually assaulted or whether, once this was suggested to her during her police interview, she merely went along with it. DC Gibson, the police officer interviewing the complainant, asked several leading questions at a crucial point in her statement. He asked, “Did he get on top of you?”, “So he, took his own clothes off?”, and, “He inserted his penis in your vagina?” The complainant agreed with these suggestions. The interviewing officer should have been particularly careful not to lead the complainant in this sensitive area. Also, the complainant would have seen the video, or read the transcript, of her police statement, before her attendance at the preliminary inquiry and trial. During those proceedings, she may have decided to remain consistent with the answers she provided in her police statement, even if they were not accurate. In my view, the leading questions during the December 11 police interview seriously undermined the integrity of the complainant’s subsequent evidence.

195Second, in the complainant’s evidence provided at the preliminary inquiry, her reference to vaginal intercourse was somewhat unclear. She referred to Mr. Al-Khulaifi signaling his intent to have sex with her, pulling her pants off, and that he “decided to, yeah.” It may have simply been the complainant’s way of stating that Mr. Al-Khulaifi penetrated her vaginally, but her turn of phrase left a doubt in my mind about what really happened.

196Third, during the complainant’s cross-examination at the preliminary inquiry, the complainant initially described the altercation with Mr. Al-Khulaifi without referring to being vaginally or orally assaulted. This led Defence counsel to ask, “So when did the sex occur?” I, too, found it curious that the complainant seemed to initially describe what happened without reference to being sexually assaulted vaginally or orally. Does this mean that the vaginal and oral assaults did not happen, or does it mean that the complainant simply did not prioritize them in her description of events that night? I am not sure.

197Relatedly, the complainant’s answer to “So when did sex occur?”, reproduced earlier in these reasons, was lacking in detail. The complainant went from being badly beaten by Mr. Al-Khulaifi, to him putting his penis inside her. At trial, in her examination-in-chief, the complainant was similarly terse with her description of the sexual assault. She testified, “He was been [sic] beating me and then he decides, so I’m going to fucking rape you. And that’s what he did. Ripped my pants off and stuck his dick inside me.” I appreciate the many reasons why a victim of sexual assault may not want to dwell on the details of her assault. But in the absence of cross-examination, the complainant’s terse description of the alleged sexual assault contributed to my doubt concerning the exact type of sexual assault that occured.

198Fourth, I was left in doubt by the complainant’s description of how Mr. Al-Khulaifi was beating and kicking her about the head – which would require him to be in a standing position – while also assaulting her vaginally and then orally. The mechanics of that happening simultaneously do not work. I accept that, if one happened after the other, it is possible, but the challenging mechanics of what the complainant described left me in some doubt. The complainant also testified that she could not remember some things because of the blows to her head as opposed to her alcohol consumption. I found her less reliable in describing the vaginal and oral assault.

199Fifth, the complainant’s utterances made to one or both of the TCHC special constables contributed to my doubt as well. The complainant told the special constables that, “he attempted (or tried) to rape me”, rather than, “He raped me.” The Crown cautioned that I should not unduly scrutinize the complainant’s choice of words given the fraught circumstances. Given that the complainant was not cross-examined on this point, I was left wondering about the complainant’s particular choice of words. Cumulatively, with the other concerns I have identified, I wonder whether what really happened was that Mr. Al-Khulaifi beat the complainant, pulled off her clothing – which she perceived as attempting to rape her – and then she escaped. Per Villaroman, I cannot find that Mr. Al-Khulaifi sexual assaulted the complainant orally or by vaginal penetration, where there is another reasonable inference that I can draw in the circumstances.

200In her examination-in-chief at the preliminary inquiry, the complainant answered that she was vaginally assaulted maybe after the second or third attempt of her trying to get out. In her police statement, the complainant stated that she tried getting out of her apartment six or seven times before finally succeeding, but at trial, her answer changed to four or five times. Given what I accept was the complainant’s panicked state and involvement in a fight, I don’t place much weight on this discrepancy. The complainant stated that Mr. Al-Khulaifi ended up putting her on the mattress that was on the floor, pulled off her grey shorts and underwear, and then vaginally and orally assaulted her. The complainant made it clear that she was fighting with Mr. Al-Khulaifi, trying to get him off her, poking him in the eye, or pulling his hair. She referred to it as “constant fighting.” Yet, the complainant testified that she did not really have any injuries below her neck. She just had “a couple of scratches or bruises around [her] collarbone, and [her] arms and stuff.” There was no evidence at trial about injuries to the complainant’s torso, lower body, or genital area. There was no evidence from the SAEK. I would have expected that if Mr. Al-Khulaifi was forcing himself on top of the complainant on a mattress when she was constantly fighting, she might have had some bruising or injuries to her lower body. This too contributed to my doubt about whether the complainant was vaginally assaulted.

201Turning to whether Mr. Al-Khulaifi sexually assaulted the complainant orally, the complainant stated this happened after she was assaulted vaginally. I reiterate my above-stated reasons for doubting that this happened in the manner that the complainant described. The complainant stated in her police statement that she threatened to bite Mr. Al-Khulaifi’s penis “so fucking hard” and that she did. When asked if he was bleeding from his penis, she stated, “I don’t know. I don’t think so.” She then stated that she “started getting kicked in the head a lot more.” The complainant remembered that Mr. Al-Khulaifi was laughing very loud as she fled the apartment. It seems unlikely that Mr. Al-Khulaifi would have been laughing loudly if his penis had just been bitten hard. The Crown did not present any evidence of Mr. Al-Khulaifi’s penis being bruised or injured. There was no evidence from the special constables or police officers about Mr. Al-Khulaifi being in pain from an injury to his penis.

202Despite the frailties in the evidence about whether Mr. Al-Khulaifi sexually assaulted the complainant orally or by vaginal penetration, I have no difficulty finding that he sexually assaulted the accused by pulling down the complainant’s pants.

203It is indisputable that the complainant ran out screaming from her apartment at about 2:30 a.m. wearing nothing on the lower half of her body. I find that the complainant did not choose to leave her apartment in this partially undressed state. I accept the testimony of the two TCHC special constables and find that the complainant left her apartment partially clothed in an injured and panicked state, following some kind of fight or altercation with Mr. Al-Khulaifi. I accept the complainant’s evidence that the reason why her underclothes came off is because Mr. Al-Khulaifi removed them. In other words, the complainant did not remove her shorts and underwear herself. A pair of women’s gray shorts was found and photographed in the complainant’s apartment.

204I cannot tell whether the complainant’s clothes came off because Mr. Al-Khulaifi sought to gratify himself sexually, or whether, in attempting to prevent the complainant from leaving the apartment, he removed her underclothes because this would force her to remain in the apartment. Either way, I find that this violated the complainant’s sexual integrity.

Aggravated Sexual Assault, s. 273

205 Section 273(1) of the Criminal Code states that, “[E]very one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.”

206I am not convinced beyond a reasonable doubt that, in committing a sexual assault, Mr. Al-Khulaifi wounded, maimed, disfigured or endangered the life of the complainant. I found Mr. Al-Khulaifi guilty of sexual assault when he removed the complainant’s underclothes without her consent in the midst of a fight in the complainant’s apartment. Mr. Al-Khulaifi punched the complainant in her face and on her head, and he kicked her in the same area with his socked feet. The complainant did not have any notable injuries on her body below her neck. I accept that, in assaulting the complainant, he caused the stitches that she received the previous day to open up.

207The Crown attempted to demonstrate that the complainant experienced hearing loss. She had some hearing loss, temporarily, when PC Ferguson visited the complainant in hospital on December 7, 2022. On December 11, 2022, the complainant stated that she thought she was going to have to go back to the hospital because the hearing in her ears was not normal anymore. However, the Crown presented no evidence that the complainant followed up with this concern, or that the complainant’s hearing was damaged.

208There was no evidence that any of the complainant’s five senses or bodily functions were impaired by the injuries she received on December 7. The complainant’s nose was not broken, she had no facial fracture, did not lose teeth, or have dental issues as a result of the altercation on December 7. The complainant testified that she did not have any lasting injuries, just a lot of trauma.

Aggravated Assault, Assault Causing Bodily Harm, and Assault

209The parties provided me with limited submissions on alternative or lesser and included offences. For instance, I did not hear submissions on whether, if I did not find Mr. Al-Khulaifi guilty of aggravated sexual assault, I should consider whether he is guilty of sexual assault causing bodily harm, or sexual assault. I also did not hear submissions on whether, in the alternative, I should find him guilty of aggravated assault, assault causing bodily harm, or simple assault.

210In R. v. Theriault, 2020 ONSC 5725, at para. 20, aff’d 2021 ONCA 517, leave to appeal refused, [2021] S.C.C.A. No. 362, Di Luca J. commented on the hierarchy of these offences:

[T]he Criminal Code creates a hierarchy of assault-based offences that build on each other, starting with assault, progressing to assault causing bodily harm and then to aggravated assault. The same hierarchy of offences is found in relation to the offences of sexual assault, sexual assault cause bodily harm and aggravated sexual assault.

211I found that Mr. Al-Khulaifi sexually assaulted the complainant by removing her underclothes without her consent, and in a way that violated her sexual integrity, but I did not find that he vaginally and orally assaulted her. I did not find the requisite “linkage between the wound, maiming, disfiguring or endangering life and the sexual assault committed, as opposed to any other assault that may have occurred”: Theriault, at footnote 1. Accordingly, I do not find Mr. Al-Khulaifi guilty of sexual assault causing bodily harm either.

212I will move on to the categories of assault.

213 Section 268 of the Criminal Code states that, “[E]very one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.”

214It is well-established that aggravated assault includes the lesser and included offences of assault causing bodily harm, and common assault: R. v. Tenthorey, 2021 ONCA 324, 404 C.C.C. (3d) 457, at para. 49.

215In Theriault, at para. 23, Di Luca J. explained that:

The offences harmoniously build on each other. An assault does not require any infliction of harm, merely the intentional non-consensual application of force. An assault causing bodily harm is an assault that results in a requisite degree of bodily harm. An aggravated assault is an assault that results in more serious forms of bodily harm. The mens rea component for each offence level requires an intentional application of non-consensual force. Where the charge is assault cause bodily harm or aggravated assault, the intent remains the same for the assault and the Crown need only prove that the resultant injury was an objectively foreseeable consequence.

216I do not find Mr. Al-Khulaifi guilty of aggravated assault. I do not find the requisite evidence of more serious forms of bodily harm involving wounding, maiming, disfiguring, or endangering the life of the complainant.

217Instead, I find Mr. Al-Khulaifi guilty of assault causing bodily harm.

218In R. v. Francis, 2026 ONSC 2888, at paras. 57-58, Vermette J. described the elements of this offence:

The essential elements of the offence of assault causing bodily harm are the following:

a. the accused intentionally applied force to the complainant;

b. the complainant did not consent to the force that the accused applied;

c. the accused knew that the complainant did not consent to the force that the accused applied; and

d. the force that the accused applied caused the complainant bodily harm.

“Bodily harm” is any hurt or injury that interferes with the complainant’s health or comfort. It has to be more than something that is merely transient or trifling in nature. See section 2 of the Criminal Code. Further, it must result from the force that the accused intentionally applied to the complainant. In other words, the accused’s intentional application of force to the complainant must contribute significantly to the bodily harm that the complainant suffered. See R. v. Williams, 2017 ONSC 634 at para. 124.

219I found that complainant had swelling, bruising, and scratches on her face, head, and hands. The orbit of the complainant’s left eye, top of her nose, and left ear were bruised. She did not have any notable lower body injuries. I find that the complainant’s injuries fit into the intermediate category of assault causing bodily harm.

Sexual Assault via Choking, Suffocating, or Strangling, s. 272(1)(c.1)

220I am not convinced beyond a reasonable doubt that Mr. Al-Khulaifi sexually assaulted the complainant via choking, suffocating, or strangling her. Based on photos taken of the complainant on December 7, there were scratch marks on the complainant’s face and on her neck, and a bruise about five inches long from the centre of her neck along the left side towards her neck. I am not convinced that these bruises came about from choking as opposed to the grappling and fighting between the complainant and Mr. Al-Khulaifi. In her evidence at the preliminary inquiry, the complainant made a reference to Mr. Al-Khulaifi putting his hands on her mouth several times making her unable to breathe. When asked how long it was that she was unable to breathe, the complainant’s answer was vague, “So maybe 30 seconds, sometimes ten, not even two.” She indicated that it was just constant fighting. Given the complainant’s evidence, I find Mr. Al-Khulaifi not guilty of this charge.

Forcible Confinement

221I am convinced beyond a reasonable doubt that Mr. Al-Khulaifi forcibly confined the complainant. The evidence suggests that Mr. Al-Khulaifi held back the complainant from leaving her apartment from around 2:15 a.m. until she exited roughly around 2:32 a.m., as witnessed by the TCHC special constables. While I am not sure whether, as the complainant claims, she was trying to follow S out the door and was held back by Mr. Al-Khulaifi, or whether she was trying to leave the apartment for some other reason, the evidence suggests that there was a struggle which included the complainant’s attempts to leave her unit. I accept the complainant’s evidence that, in the struggle with Mr. Al-Khulaifi to leave, she fell backwards onto a box of cat litter, which broke. I also accept that the complainant’s stitches came undone by the pressure that was caused when Mr. Al-Khulaifi was holding her down. I find this evidence of his restricting the complainant’s movements. That the complainant’s cell phone was found by the TCHC special constables in Mr. Al-Khulaifi’s possession also convinces me that he took the complainant’s cell phone away from her in an effort to prevent her from leaving. This is what she told the TCHC special constables, and they reported her being frightened. While I cannot be certain that the complainant was confined for all of the time that the fight with Mr. Al-Khulaifi transpired, I am convinced that her confinement lasted for several minutes and that she made multiple attempts to escape the unit, but was thwarted from doing so by Mr. Al-Khulaifi.

Uttering a Threat, s.264.1(1)(a)

222I am not convinced beyond a reasonable doubt that Mr. Al-Khulaifi uttered a threat to cause death or bodily harm to the complainant.

223In closing submissions, it appeared that the Crown largely relied on what Mr. Al-Khulaifi said as he was being transported to an ambulance in the early morning hours of December 7 as constituting the death threat. His utterances were captured on PC Tannous’ BWC. Mr. Al-Khulaifi said, “Hi sexy, see you soon, see you tomorrow actually.” The Defence objected to the admission of these statements as, inter alia, the Crown had not brought a voluntariness application. However, I ruled that Mr. Al-Khulaifi’s utterances could be admitted on the basis of them being the actus reus of the threat charge.

224Having admitted the utterances, I do not agree that Mr. Al-Khulaifi’s utterances amount to a threat to cause the complainant serious bodily harm or death. In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, at p. 83, the Supreme Court stated that:

The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?

225I do not find that the words used constitute a threat because I cannot see how the words used, viewed objectively, can convey a threat to cause harm. Calling the complainant sexy and suggesting that they would see each other the next day might have been offensive. But in the circumstances in which each of the complainant and Mr. Al-Khulaifi were being transported in separate ambulances surrounded by police officers, an ordinary person would not understand this as a threat. Words that display a callous, dispassionate, or ambivalent attitude are not necessarily threatening: Jampies, at para. 70.

226In the alternative, if I am mistaken, and the Crown is relying on the words spoken by Mr. Al-Khulaifi inside the complainant’s apartment, I would still not convict him of this charge. In her police statement, the complainant stated that, as Mr. Al-Khulaifi dragged her back, threw her on the floor, and beat her, he threatened that he was going to kill her. Yet, in her cross-examination during the preliminary inquiry, the complainant made no mention of being threatened with bodily harm or death. At trial, she testified that she remembered that, as soon as she ran out of the apartment, Mr. Al-Khulaifi started laughing. She thought that he was going to kill her cat, and advised the TCHC special constables of that. There is insufficient evidence of a threat to convict Mr. Al-Khulaifi on the criminal standard.

Defence Stay Application Under s. 24(1) of the Charter

227In his trial closing, Defence counsel submitted that, even if I found Mr. Al-Khulaifi guilty of certain offences, the matter should be stayed pursuant to s. 24(1) of the Charter due to the unfairness caused by the complainant’s failure to complete her cross-examination.

228I dismiss the Defence stay application for the same reasons that I allowed the Crown applications as explained in my reasons for ruling.

229I would add that a stay of proceeding is the most drastic remedy that should only be granted in the clearest of cases: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 31-32. The circumstances of this case far fall short of warranting a stay. The alternative of proceeding with the admission of the complainant’s out-of-court statements was a viable and fair alternative.

Outstanding Defence Mistrial Application

230Counsel for Mr. Al-Khulaifi did not bring a written mistrial application, but suggested that the Defence mistrial application was still open. For the sake of clarity and completeness, I confirm that if a ruling is required, I would have dismissed the defence mistrial application. Once again, the circumstances of this case do not warrant a mistrial, particularly as the alternative of proceeding with the admission of the complainant’s out-of-court statements was available.

Conclusion

231In conclusion, I find Mr. Al-Khulaifi:

a) On count 1, not guilty of aggravated sexual assault, contrary to s. 273(2)(b), but guilty of assault causing bodily harm, contrary to s. 267;

b) On count 2, not guilty of choking, suffocating, or strangling, contrary to s. 272(2)(b);

c) On count 3, guilty of sexual assault, contrary to s. 271(a);

d) On count 4, guilty of forcible confinement, contrary to s. 279(2)(a); and

e) On count 5, not guilty of uttering a death threat, contrary to s. 264.1(2)(a).

Pinto J.

Released: June 10, 2026

CITATION: R. v. Al-Khulaifi, 2026 ONSC 3257

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 JUDGMENT

Pinto J.

Footnotes

I am not providing details as to the complainant’s First Nation’s origin to protect her identity.
I have also anonymized this person’s name as it may end up disclosing the complainant’s identity.

Footnotes

I am not providing details as to the complainant’s First Nation’s origin to protect her identity.
I have also anonymized this person’s name as it may end up disclosing the complainant’s identity.