R. v. C.D., 2026 CanLII 3332

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. C.D., 2026 ONSC 411

COURT FILE NO.: CR-24-40000172

DATE: 20260121

BETWEEN:

HIS MAJESTY THE KING

– and –

C.D.

Cynthia Valarezo, for the Crown

David Oake, for the accused, C.D.

HEARD: November 24-26, 28, 2025

REASONS FOR JUDGMENT

(Subject to a publication ban that applies to any information that could identify the complainant or a witness, pursuant to section 486.4 of the Criminal Code)

VERMETTE J.

1The accused, C.D., is charged with four offences:¹

a. sexual assault on T.M. on or about January 18, 2019, in Brampton, contrary to section 271 of the Criminal Code;

b. mischief by wilfully damaging the cellular telephone of T.M., the value of which did not exceed $5,000.00, on or about January 18, 2019, in Brampton, contrary to subsection 430(4) of the Criminal Code;

c. attempted murder of T.M. by stabbing, on or about April 27, 2019, in Toronto, contrary to subsection 239(1) of the Criminal Code; and

d. assault on T.M. causing bodily harm to her, on or about April 27, 2019, in Toronto, contrary to subsection 267(b) of the Criminal Code.

2On the whole of the evidence, I am satisfied beyond a reasonable doubt that C.D. is guilty of sexual assault, mischief and assault causing bodily harm. However, I am not satisfied beyond a reasonable doubt that he is guilty of attempted murder.

I. FACTUAL BACKGROUND

3C.D. and the complainant, T.M., are former intimate partners. They were in a common-law relationship for approximately eleven years. Their relationship ended at some point in the first quarter of 2019. Their evidence differs as to when exactly it ended. They have two children together: a sixteen-year-old daughter and a nine-year-old son. At the relevant time, their daughter was ten years old and their son was three years old.

4The events that are alleged to have occurred in January 2019 took place in the apartment in Brampton where T.M. and C.D. were living at the time with their two children.

5At some point before April 2019, T.M. moved into her own apartment in Toronto with her two children. Her apartment was in the same building as her mother’s apartment. T.M.’s apartment was on the fifth floor, and her mother’s apartment was on the eighteenth floor.

6The events of April 27, 2019 involve family members of T.M., including: her mother, E.M.; her sister L.W.; and her sister S.M.

7The events of April 27, 2019 took place in T.M.’s apartment and in E.M.’s apartment. At that time, L.W., S.M. and S.M.’s son, G., were also living in E.M.’s apartment. L.W. and S.M. were sharing a bedroom. There were two beds in the bedroom. L.W.’s bed was the one closest to the window and S.M.’s bed was the one closest to the closet and bedroom door.

8On April 27, 2019, E.M. had crutches to help her walking. She had recently been in a car accident and had broken an ankle and a finger.

II. EVIDENCE AT TRIAL

9The Crown called four witnesses: T.M., E.M., L.W. and S.M. The defence called one witness, C.D. A number of pictures and one video were also marked as exhibits. In addition, the parties filed four agreed statements of facts.

10The following is a summary of the witnesses’ evidence with respect to the two events in issue.

1. Alleged sexual assault on January 18, 2019 and subsequent events

a. Evidence of T.M.

11T.M. is 44 years old.

12T.M. testified that C.D.’s abuse caused their relationship to end. She stated that C.D. was physically and verbally abusive, calling her names, hitting her and threatening her.

13On January 18, 2019, T.M. was preparing to go to a party with C.D. The party was hosted by one of C.D.’s family member. One of T.M.’s sister came to T.M.’s apartment to pick up her children and take them to E.M.’s apartment in North York.

14In the end, T.M. and C.D. did not go to the party. T.M.’s evidence is that in the afternoon, C.D. got drunk. He drank one beer in the morning and later drank six beer cans that her sister had bought for him. At some point, T.M. found C.D. sleeping on the floor with a beer in his hand. She took the beer from him and then went into her bedroom.

15During her cross-examination, T.M. said that the reason why she knew that C.D. was drunk was because C.D. was on the ground sleeping while their son was in the playpen crying and he did not hear him crying. However, her kids were only at home that day in the morning. T.M. also said that C.D. was slurring when they were having a conversation.

16Approximately 20 or 25 minutes after T.M. went into her bedroom, C.D. came into the bedroom. T.M. was lying on the bed. She was wearing a t-shirt and her underwear. They had a discussion about going to the party, but C.D. said that he was not going anywhere. C.D. then said that he needed sex. T.M. said: “No.”

17C.D. got mad. He grabbed T.M.’s leg and pulled it. T.M. kicked his hand with her other foot. C.D. then came onto the bed. He came on top of T.M. He started to pull off T.M.’s underwear with his right hand while trying to hold her down with his left hand on her chest and sitting on her leg. T.M. tried to fight him off. C.D. kept saying that he wanted sex and that he had to get it, and T.M. was begging him to stop.

18C.D. was able to take off T.M.’s underwear. He then tried to take his pants off. While he was doing so, T.M. was able to push him off of her. However, C.D. came back, put more force on T.M. and pushed his penis in her vagina. During that time, T.M. was screaming and asking C.D. to stop. C.D. did not stop. He said: “This is mine, I have to get it.” T.M. was crying.

19This lasted approximately five minutes. After T.M. started screaming and crying, C.D. told her to shut up. T.M. got mad and started to hit C.D., push him and call him names. C.D. then punched T.M. in the head. As he was coming back to punch her a second time, T.M. covered her head with her hand and C.D. punched her on her left shoulder. The following day, T.M. had a bruise on her left arm. Her sister L.W. took a picture of it, which was marked as an exhibit at trial.

20T.M. testified that C.D. threw two to three punches at her in total. She does not remember which part of her the third punch hit.

21Eventually, T.M. was able to push him off. She screamed that she was going to call the police and she grabbed her phone which was on the nightstand. C.D. took T.M.’s phone and smashed it on the floor. The screen was damaged and the phone was no longer functioning after that happened.

22T.M. then run. She grabbed the house phone in the living room, went into the washroom and locked the door. At that time, C.D. was just standing there.

23T.M. called C.D.’s sister and told her what had happened. She said that she called C.D.’s sister instead of the police because she did not want to get C.D. in trouble and she was hoping that his sister would talk to him and get him to leave.

24C.D.’s sister and brother came to the apartment approximately ten minutes after T.M. called C.D.’s sister. T.M. told them what C.D. had done to her, i.e., that he had hit her, forced her to have sex and broken her phone. C.D. told them that he had not done anything, that he had not touched T.M. and that she was just acting crazy.

25C.D.’s sister said that she was not getting involved in boyfriend-girlfriend issues. T.M. asked C.D.’s sister to tell him to leave before she called the police on him. C.D.’s sister told T.M. that she should leave because C.D. was not going anywhere. T.M. ended up leaving the apartment and staying with C.D.’s sister and brother.

26T.M. did not consume any drugs or alcohol on January 18, 2019.

27T.M.’s evidence is that her relationship with C.D. was finished after this incident. T.M. told C.D. that it was over between them, but that he could see the kids. C.D. did not say anything in response.

28The following day, C.D.’s brother took T.M. to the apartment. She grabbed some of her stuff and then left with C.D.’s brother who dropped her off at the GO train station. T.M. then went to her mother’s apartment in North York.

29T.M. and her children then started living with E.M. in North York. T.M. subsequently got her own apartment in the same building as E.M.’s apartment. After T.M. got her own apartment, she went back to the apartment in Brampton to get her belongings. At some point, C.D. went to live with his sister in Brampton. He did see his children. T.M. and C.D. had an arrangement pursuant to which C.D. picked up the children every two weeks and took them to his sister’s house. There was no formal custody arrangement at the time.

30After T.M. moved out of the apartment, C.D. told her that he was sorry, that he did not mean it to happen, that they needed to work it out and that they could maybe get back together. T.M. told him “no”. Between January and April 2019, C.D. talked to T.M. about getting back together almost every time that they were having telephone conversations about him picking up the children or when he came to pick up the children. T.M.’s response was always “no”, which made C.D. angry.

b. Evidence of C.D.

31C.D.’s evidence about the events of January 18, 2019 was confusing and unclear.

32During his examination-in-chief, he testified that he dropped off T.M. at her mother’s house on a Friday, and that he was supposed to pick her up on the Sunday. However, T.M. called him on the Sunday and told him that she was going to come on the Monday instead of the Sunday. On the Monday, at approximately 1 or 2 p.m., T.M., E.M., S.M. and L.W. showed up at the apartment in Brampton with the driver of a moving truck. They came into the apartment and started packing up and moving things. C.D. did not understand what was going on. He asked T.M. what was going on. She responded that she was moving. She did not mention a reason for moving out.

33C.D. sat down for a while. He was confused and did not understand what was going on. After about an hour, he went out and left them in the apartment. He went to his mother’s house. He stayed there until approximately 8 or 9 p.m. He then went back to the apartment. The apartment was almost empty. According to C.D., he did not have plans to go to a party with T.M. that evening.

34C.D. stated that he had been living with T.M. up until that point. He said that he had bought everything in the apartment. He was at home when the moving truck came because he had been laid off approximately two months before.

35In his examination-in-chief, C.D. said that T.M., her family members and the moving truck came on January 18, 2019. I note that January 18, 2019 was a Friday, not a Monday.

36C.D. denied punching T.M. or having sex with her without her consent. With respect to the breaking of T.M.’s phone, C.D. stated that it was his daughter who broke the phone. He said that one day before the day that T.M. moved out of the apartment in Brampton, he came back home from work and T.M. was beating their daughter. Their daughter was crying. C.D. testified that T.M. and their daughter argued a lot of times. C.D. did not know what the situation was, and he asked his daughter and T.M. what was going on. T.M. was yelling. He did not know if she was yelling at him or at their daughter. He took his daughter out of the bedroom. She then ran, grabbed T.M.’s phone and pelted it in the hallway close to the living room. C.D. stated that T.M. thought that he was the one who broke her phone because he took the blame to protect his daughter. He did not want T.M. to know that their daughter had broken her phone. He told T.M. that he would buy her another phone. However, he did not do so because a couple of days later, T.M. told C.D. that her mother would give her a phone. C.D. cannot recall if he had the number for T.M.’s new phone.

37C.D. also talked about one day when his sister showed up at his and T.M.’s apartment in Brampton. C.D. testified that this was way before T.M. and her family came to the apartment with the moving truck – maybe a month or a month and a half before – and way after the incident where his daughter broke T.M.’s phone. C.D. does not remember at what time his sister showed up on that day. He said that when his sister came, T.M. and their two children were at home with him. C.D. stated that when his sister arrived, he was sitting on the balcony, having a cigarette. His sister asked him what was going on, and he responded that he did not really know what was going on. He said that T.M. was just screaming and yelling like she was crazy. C.D. told his sister that he was not fighting, that he did not touch T.M. or do anything to her, and that T.M. was yelling and answering back because she could not calm herself down. C.D.’s sister then asked T.M. what was going on. The three of them had a conversation. At some point, C.D.’s sister said that one of them should come out of the house and one should stay. During his cross-examination, C.D. stated that he did not hear his sister say that. He said that he was on the balcony and when he came back in, he heard T.M. say to C.D.’s sister that she was going to come with her and she would let C.D. stay. Because of this, C.D. is assuming that his sister said that one of them had to go. However, C.D. later stated during his cross-examination that his sister had said that one of them had to leave. In the end, T.M. went with C.D.’s sister and the children stayed with C.D.

38C.D. did not hear his sister say anything to the effect that she was not getting involved in a boyfriend-girlfriend issue.

39During his cross-examination, C.D. agreed that the day that his sister came to his apartment because T.M. had been screaming and yelling was January 18, 2019. He also said that the move-out probably happened in March 2019. He later said that he could not recall exactly when the incident where his sister came to his apartment happened.

40At some point during his cross-examination, C.D. stated that T.M. was not screaming and yelling; rather, she was “talking loud”.

41C.D. thinks that the reason why T.M. was screaming and yelling on January 18, 2019 (or the day his sister came to the apartment) was because T.M. wanted their daughter to go to bed and their daughter refused to go to bed and was still watching television. C.D. said that with him, his daughter can stay up as late as she wants, especially if it is not a school day. T.M. and he were arguing about their daughter’s bedtime. C.D. does not know how his sister got involved. He did not call her. He said that T.M. left the house that day because of an argument about their daughter’s bedtime.

42C.D. testified that his relationship with T.M. did not end after that argument. He said that they continued to live together and they still talked, laughed and cooked with each other every day. He only knew that she was leaving when the moving truck came to his apartment a month or so later.

43During his cross-examination, C.D. said that there was a party on January 18, 2019, organized by one of his cousins. He was planning to go, but he had not planned to go to the party with T.M. T.M. wanted to go to the party, but he did not want her to go and be around his cousin and his friends because they were miserable and evil men. C.D. also stated that his children were with him at the apartment and that is why he did not want T.M. to go to the party because he would have had to take the children to his mother’s. The children were going to stay at home with T.M. C.D. testified that he had had a beer or two before the party.

44C.D. first said that he was not sure if the party was on the day that his sister came to his apartment because T.M. was screaming and yelling, but he said that it was possible that it was on the same day. He later said that it was not possible that it could be on the same day.

45C.D. stated that he mostly drinks alcohol on weekends. He said that he did not drink during the week, except Friday afternoon after work. He also said that the day that the moving truck came, T.M. did not find him passed out or asleep with a beer in his hand. He stated that he never fell asleep on the floor with a beer in his hand.

46After T.M. moved out of the apartment, C.D. used to go where T.M. lived to visit his children. He also said that he would pick them up. He started seeing his children one week after T.M. moved out. He said that he saw his children almost every weekend. He had conversations with T.M. to arrange to see the children. C.D. stated that during these conversations, he never mentioned getting back together with T.M.

2. Events of April 27, 2019

a. Evidence of T.M.

47On April 27, 2019, T.M. was in her apartment with her children.

48On that day, C.D. called T.M. He said that he was going to Scarborough and wanted to spend time with the children. T.M. said “okay”. C.D. was with his brother and his brother’s daughter. T.M. asked C.D. if they were driving and C.D. said “yes”. She then asked him if they could take her to go pick up their daughter’s bike at the store where she had purchased it. C.D. agreed.

49C.D. and his brother picked up T.M. and then drove to the store to get the bike. On the way back, they stopped at a Beer Store because C.D. wanted to get some beer. C.D. went into the Beer Store and purchased beer. They then went back to T.M.’s apartment. T.M. and C.D. got out of the vehicle with the bike, and C.D.’s brother and his daughter left.

50T.M. and C.D. went to T.M.’s apartment. Their son was in E.M.’s apartment and their daughter was at a friend’s home in the same apartment building. T.M. went to get her children and brought them back to her apartment. T.M. told her children to spend some time with their father and she then went to her mother’s apartment.

51Later, at E.M.’s suggestion, T.M. brought some food to C.D. C.D. was drinking a beer. T.M. asked him when he would be leaving. C.D. said that his brother would pick him up on his way back from Scarborough and that he would let her know. C.D. also told T.M. that he thought that they should get back together. T.M. responded that she had no intention of getting back together with him and she went into her bedroom. C.D. followed her. They argued. At some point, C.D. grabbed T.M.’s hand. Their daughter came into the bedroom at the same time and told C.D. to stop. C.D. stopped. T.M. spoke shortly with her daughter and then went back to E.M.’s apartment.

52At some point, T.M. went back to her apartment to check as she had not heard back from C.D. about him leaving. T.M. found C.D. sleeping in a chair with a beer in his hand. Her children were playing on the floor. T.M. took the beer from C.D.’s hand and woke him up. She asked him whether he was leaving. C.D.’s phone was ringing, but he refused to answer the phone. T.M. picked up C.D.’s phone and told him that his sister was calling. C.D. took his phone and went out on the balcony to talk on the phone. When he came back inside, he asked whether it was okay for him to sleep over. T.M. first said “no” and asked him what had happened and whether his family was going to pick him up. C.D. responded that they were already in Brampton.

53T.M. was mad. She called C.D.’s sister. After talking with her, T.M. decided that she was going to spend the night at her mother’s apartment with her son, and that her daughter and C.D. would stay in her apartment. C.D. was to sleep in their daughter’s bed and their daughter was to sleep in T.M.’s bed. T.M. did not want to stay in the apartment as she was a little bit afraid of C.D. These arrangements were made at approximately 9 p.m.

54T.M. went to E.M.’s apartment with her son. In addition to E.M., L.W. and T.M.’s nephew G. were also in the apartment. G. was nine years old at the time. S.M. was at work.

55T.M. left her son with her mother in her mother’s room. E.M. was watching basketball. T.M. then joined L.W. in her room. L.W. was on her bed, the one closest to the window, and T.M. went onto S.M.’s bed, the one closest to the door. The two beds were next to each other. T.M. and L.W. watched television.

56T.M. eventually fell asleep. She woke up because G. came into the bedroom and told her that C.D. was on the phone and he wanted to talk to her. C.D. did not have T.M.’s cell phone number and he had called G. on his cell phone. T.M. told G. to hang up. C.D. kept on calling. At some point, G. put the phone to T.M.’s ear and she asked C.D. what he wanted. He told her that he wanted to talk to her and he asked her to come downstairs. T.M. refused and hung up the phone. She told G. not to answer the phone if C.D. called again.

57Five or ten minutes later, C.D. came to E.M.’s apartment. The apartment’s door was never locked at that time so C.D. just came in. He first went to talk to E.M. in her room. T.M. could hear the conversation. C.D. was asking E.M. how she was feeling and if everything was okay. The conversation did not last very long.

58C.D. then went to the room where T.M. was. T.M. pretended to sleep so that he would leave. C.D. did not leave and said that they needed to talk. T.M. told him that she did not want to talk. C.D. kept repeating that they needed to talk about getting back together, and T.M. kept repeating “no”. They had a back-and-forth and, at some point, L.W. got up and left the room.

59T.M. was still lying on the bed closest to the door. She was on her side, facing the window. C.D. was at the foot of the bed. The back-and-forth lasted approximately ten minutes. C.D. was calm during that time and he did not raise his voice. T.M. kept telling him to leave.

60Eventually, C.D. left the room. At that time, S.M. came back from work. T.M. heard S.M. and C.D. talking about an upcoming party. Their conversation was not too long.

61T.M. then thought that C.D. had left. She turned to her other side, facing the closet on the wall where the door is, and she closed her eyes. She then turned on her stomach. As she was lying on her stomach, she felt like someone was sitting on the bed. T.M. turned and saw C.D. lying on the bed. During her cross-examination, she stated that C.D. was lying down on the other bed in the room. During her re-examination, she said that C.D. was between the two beds, but more on the bed that she was lying on and only a little bit on the other bed.

62T.M. asked C.D. what he was doing and he said that he wanted to talk to her. T.M. repeated that she did not want to talk to him and told him to get out of the room. C.D. rose up off the bed and T.M. turned to the side, facing the window. C.D. said that he loved her and that they needed to get back together. T.M. responded that she had no intention of getting back together with him. C.D. asked T.M. to go downstairs to her apartment and she said that she was not going downstairs. C.D. kept on talking. He was kneeling on the bed, in between the two beds, facing T.M. At some point, he said: “If I can’t get you, nobody can.” He sounded angry when he said this. T.M. “sucked her teeth”. She then heard the bed cracking and she felt a stab in her left breast. She opened her eyes and saw C.D. and the knife. She screamed “C. stabbed me, someone call the police”.

63T.M. then grabbed the knife as C.D.’s hand was going up because she did not want to be stabbed a second time. L.W. and E.M. came into the room. L.W. had a crutch and she put it around C.D.’s neck. E.M. grabbed the knife. There was a struggle between L.W., E.M. and C.D.

64T.M. ran to her mother’s room. She felt blood running down and when she looked, she saw blood. She took a towel and put pressure on the cut. It was very painful. When T.M. got to the room, S.M. was on the phone with the police and her son was on the bed, sleeping. At some point, T.M. heard C.D. say: “I’m gonna kill everybody.” Afterwards, E.M. came to the room and said that C.D. had run.

65T.M. recognized the knife used by C.D. as one of her mother’s knives. She had last seen the knife in the dish drainer.

66Pictures of the knife were marked as an exhibit at trial. The knife is approximately 23 centimetres long, and the blade is approximately 12 centimetres long. There is a bloodstain at the tip of the blade that covers approximately 3 centimetres of the blade.

67T.M. was taken to the hospital by ambulance. She suffered a flesh wound near her nipple which required three to five stitches. The stitches were removed two to three weeks later. T.M. had pain for two weeks and she was prescribed pain medication. The bra that T.M. was wearing that night was perforated by the knife and had blood stains on it. The cut in the bra was approximately 1.2 centimetres long. T.M. now has a scar on her left breast and she still feels a little tingle now and then.

68In addition to the injury on her left breast, T.M. also sustained two small cuts or scratches to two fingers from holding the knife.

69T.M. did not consume any drugs or alcohol on April 27, 2019.

70T.M. subsequently obtained full custody of her children.

b. Evidence of E.M.

71E.M. is 63 years old.

72E.M. had been in a motor vehicle accident shortly before April 27, 2019. She had one hand in a cast and one foot in a cast.

73Before April 27, 2019, E.M. never had any difficulties or problems with C.D.

74In the evening of April 27, 2019, E.M. was in her bed in her bedroom watching a Blue Jays game. L.W. was in the apartment, as well as G. S.M. was at work. At some point, T.M. came up to E.M.’s apartment with her son. She told E.M. that C.D. was in her apartment downstairs.

75T.M. went into L.W.’s room with her son, who was sleeping. G. was in the living room and L.W. was in her room with T.M.

76At some point, C.D. came to E.M.’s apartment and went to talk to her. He was standing at her bedroom’s door. They talked for approximately five minutes. C.D. sounded normal. When C.D. left her bedroom, E.M. continued watching television.

77Approximately five minutes after C.D. left her bedroom, E.M. heard a big scream in the other bedroom. She heard: “Oh God, oh God, C., you’re killing me.” or “Oh God, C., you kill me.” L.W. then ran into E.M.’s room. E.M. asked L.W. to give her her crutch and then E.M. ran and went into the other bedroom. She was the first one to enter into the bedroom. No one followed her. E.M. saw T.M. on the bed closest to the window, lying on her back. C.D. was over T.M., covering her body. He had a knife in his hand and T.M. was trying to hold his hand. T.M. was screaming. E.M. said that at that time, she did not know that T.M. had already been wounded. Later, E.M. said that when she entered the bedroom, C.D. had the knife down in T.M.’s chest area. She also said that she saw blood when she came in. During her cross-examination, E.M. stated that she did not see C.D. stab T.M.

78E.M. then wrestled with C.D. She put the crutch across C.D.’s chest and pushed him with it to get him off of T.M. She told T.M. to run. S.M. came in at about the same time and E.M. told S.M. and T.M. to run to her bedroom and lock themselves there. L.W. was not in the bedroom. The only people in the bedroom were E.M., C.D., and T.M.’s son who was sleeping on the other bed, the one closest to the door.

79At some point, C.D. dropped the knife on the ground. E.M. stated that it was one of her kitchen knives. E.M. pushed C.D. against the window with her crutch. However, he fought and pushed E.M. on the bed. He then ran and left. C.D. did not say anything during the struggle or when he left. E.M. stated that no one touched the knife after C.D. dropped it.

c. Evidence of L.W.

80L.W. is 32 years old.

81L.W. got along well with C.D. before the events of April 27, 2019.

82In the evening of April 27, 2019, T.M. came to E.M.’s apartment because she did not want to be in her apartment where C.D. and their daughter were. At that time, L.W., her nephew G. and E.M. were home. S.M. was at work. Earlier in the day, L.W. had seen C.D. in T.M.’s apartment when she went to drop things off. They had a brief conversation.

83At some point, T.M. went to lie down in L.W.’s room. At that time, L.W. was in the living room with her nephew G., and E.M. was in her bedroom with T.M.’s son.

84At some point, C.D. came up to E.M.’s apartment. L.W. believes that he knocked on the door and that she let him in. C.D. looked the same as usual. He was calm and relaxed.

85S.M. came back home at around 9:30 p.m. L.W. believes that C.D. came to their apartment at about the same time as S.M. came back from work. S.M. asked L.W. why C.D. was there.

86After he arrived, C.D. talked to everyone and then went to talk to T.M. in L.W.’s room. L.W. remembers that C.D. walked by her twice during the evening while she was in the living room. The first time, he went to the bedrooms and the second time, he went to the kitchen and then walked back to the bedrooms area.

87Later, L.W. heard her sister T.M. scream. She heard T.M. say: “Stop”. T.M. sounded like she was crying out in pain. L.W., S.M. and E.M. all ran to the bedroom where T.M. was. L.W. thinks that she probably got to the bedroom first, but it was either her or her mother who got there first. When L.W. got to the doorway of the bedroom, she saw C.D. over T.M. with a knife in his hand. T.M. was lying on her back on the bed closest to the window, and C.D. was kneeling on the bed. According to L.W., it looked like C.D. was trying to stab T.M. and T.M. was trying to push him off. T.M. was still screaming and saying “Stop”. L.W. does not remember C.D. saying anything.

88L.W. then climbed on the bed and physically tried to pull C.D. off of T.M. She grabbed his shirt and pulled as hard as she could. C.D. barely moved while she was pulling. E.M. grabbed her crutch and tried to get it in between C.D. and T.M. and then push him off. E.M. put the crutch on C.D.’s chest and was able to push him off. During that time, T.M. was cradling her chest and crying. L.W. does not remember what S.M. was doing. She said that G. went to the bedroom where T.M.’s son was.

89L.W., E.M. and C.D. wrestled for a couple of minutes only. At some point, C.D. told L.W. to let go while she was trying to pull him off. She remembers feeling the tip of the knife in the shoulder area of her back at that time. She did not require any medical attention as a result.

90L.W. believes that C.D. dropped the knife as he was leaving. She does not remember him saying anything when he was leaving.

91L.W. did not have any alcohol on that day or evening.

d. Evidence of S.M.

92S.M. is 42 years old.

93S.M. said that the relationship between T.M. and C.D. ended in January 2019. She got along fine with C.D. both before and after the end of the relationship.

94S.M. went to work on April 27, 2019. She came back home at around 11:30 p.m. When she got home, the door was slightly open. Her son, G., was in the living room on a pull-out couch. She saw L.W. coming out of her bedroom. She also saw C.D. coming out of the same bedroom. S.M. said “hi” to C.D. She then asked L.W. why C.D. was there. L.W. responded that she did not know.

95S.M. then went in the room, grabbed her clothes and went into the bathroom to change. When she went into the bathroom, C.D. was in the living room area. E.M. was in her bedroom.

96As she was coming out of the bathroom, S.M. heard T.M. scream: “He stabbed me”. T.M. sounded terrified. S.M. went to the door of the bedroom where T.M. was and saw C.D. kneeling over T.M. who was lying down on her back. C.D. had a knife in his hand, with his arm raised. T.M. was screaming and C.D. was not saying anything.

97When S.M. got to the doorway of the bedroom, the only people who were in the room at that time were C.D., T.M. and T.M.’s son. E.M. and L.W. arrived right behind her.

98S.M. did not go into the bedroom, but E.M. and L.W. did and went to fend C.D. off. S.M. does not remember who, between the two of them, went into the bedroom first. They were holding C.D. and trying to pull him off of T.M. S.M. went to her mother’s bedroom to grab her mother’s crutch and then went back to the other bedroom and threw the crutch to E.M. Her mother told her to go to her bedroom to call the police. S.M. then went back to her mother’s bedroom to call the police. The last thing that S.M. saw happening in the room was E.M. taking the crutch and trying to put it between C.D. and T.M. to pull him off.

99S.M. said that there was no one in her mother’s bedroom when she got there. She called 911. She did not see T.M. until after C.D. left. T.M. had a stab wound near her breast.

e. Evidence of C.D.

100On April 27, 2019, C.D. called T.M. as he wanted to go and pick up his children and drop off money to her for groceries. C.D., his sister, his brother and his brother’s daughter were going to C.D.’s aunt’s house in Scarborough, and C.D. wanted to pick up his children on their way to his aunt’s house. C.D. called T.M. when he was five or ten minutes away. He asked her whether she could bring the children downstairs and she said “fine”. C.D.’s brother was driving.

101When C.D. arrived at T.M.’s building, the children were not ready and he went to T.M.’s apartment. C.D. and T.M. then went and bought a bike at around 2 or 3 p.m. They went in the car with C.D.’s brother, his sister and his brother’s daughter. After picking up the bike, they made another stop and C.D. picked up a six-pack of beers. He said that he picked up a six-pack of beers because he was going to his aunt and he was going to drink the beer there. C.D. had not had anything to drink before arriving at T.M.’s apartment building.

102During his cross-examination, C.D. said that T.M. told him about the bike while he was on his way and that they stopped at T.M.’s apartment building to pick her up.

103When they were back at T.M.’s apartment building, C.D. and T.M. then went back to T.M.’s apartment with the bike and the six-pack of beers. C.D.’s brother stayed in the car to wait for C.D. and his children. Once in T.M.’s apartment, C.D. told his daughter to get her bag and her brother’s bag ready so that they could leave. T.M. left and went to her mother’s apartment.

104Later in his examination-in-chief, C.D. said that once in T.M.’s apartment, he took a beer and T.M. took a beer. He sat there with his son in his hand and his daughter was on her laptop. He put on the television and they just sat there. T.M. was going up and down with her family, and he stayed downstairs all the time. C.D. said that he had one more beer for the rest of the night, and the remaining beers were in T.M.’s apartment when he left.

105T.M. came back and asked C.D. whether he was going to go see her mother, who had had an accident. C.D. said that he would go see her before leaving. T.M. left and went back to her mother’s apartment. She spent a little time there and came back to her apartment with a beer in her hand. Her eyes were red. C.D. believes that she was smoking.

106C.D. then said that he was going to come up. He asked his daughter whether she wanted to go see her grandmother. His daughter said that she did not want to go. C.D. then said that he was going to go upstairs to say hi and that he would come back. He asked his daughter to keep an eye on her brother. After C.D. came back, he spent a little bit of time with his children. He then said that it was almost time for him to go. T.M. came to her apartment and told him that he could spend the night in their daughter’s room and leave early in the morning. This conversation occurred between 8 and 9 p.m.

107During his cross-examination, C.D. stated that T.M. suggested that he stay over for the night and leave early in the morning not long after they came back with the bike and C.D. asked his children to prepare their bags to go. T.M. had never invited C.D. to spend the night at her apartment before. After thinking about it, C.D. agreed. He then went downstairs to take the six-pack of beers out of his brother’s car and he told his brother that they could go as he was going to stay. C.D. went to get the six-pack of beers because he wanted to have something to drink since he was going to stay over for the night. C.D. stated that he did not have an alcohol problem at the time. C.D. then went back to T.M.’s apartment.

108Later in the evening, as C.D.’s brother was leaving their aunt’s house, he called C.D. to ask him if he was sure that he was going to sleep over at T.M.’s apartment or whether they should come and pick him up. C.D. told his brother that he did not need to come pick him up and that they could go back home.

109After his conversation with T.M. about spending the night at her apartment, C.D. went upstairs to go say hi to E.M. It was 8 or 9 p.m. when he left T.M.’s apartment to go to E.M.’s apartment. When he left, T.M. was already in E.M.’s apartment and his kids were awake and playing games. He left them in the apartment because he was only going up to see E.M. and spend ten minutes or so there, and he was going to run back downstairs.

110During his cross-examination, C.D. said that he went to E.M.’s apartment only once that day.

111C.D. knocked on the door of E.M.’s apartment, and L.W. opened the door. E.M., T.M., L.W. and G. were present at that time in E.M.’s apartment. E.M. was in her room, L.W. was watching television in the living room, G. was on his phone in the living room, and T.M. was on the couch having a beer. During his cross-examination, C.D. said that T.M. was in L.W.’s room when he arrived. When confronted with his prior answer, C.D. said that he had made a mistake during his examination-in-chief and that T.M. was in L.W.’s bedroom.

112During his examination-in-chief, C.D. testified that he told T.M. that their children were downstairs, that she could not leave them there by themselves for long, and that it was getting late.

113C.D. then went to talk to E.M. He spoke to her for about half an hour. He was standing at her bedroom door during their conversation. They talked about E.M.’s accident and injuries, among other things, and they looked at the television at the same time.

114In addition to speaking with E.M. for about half an hour, C.D. also had a short conversation with L.W. Then S.M. came back home and C.D. had a conversation with her. At some point, S.M. said that she had to go take a shower. At that time, L.W. and G. were in the living room and T.M. was in L.W.’s bedroom. C.D. went back to E.M.’s room. He watched sports on television with her and they talked. E.M. was watching either football or basketball. C.D. was in E.M.’s room for about the same time as the first conversation he had with her, or maybe a little bit longer or shorter.

115Afterwards, C.D. went to the living room² and he saw T.M. on the bed. He told her not to forget that their daughter and son were downstairs. He asked her whether she was going to go back downstairs, and she said that she was not ready. C.D. said “okay”. He then sat on the bed on which T.M. was, which was the bed closest to the door. He sat towards the middle of the bed. T.M. and C.D. chatted. C.D. said that he was not making any romantic advances.

116During his cross-examination, C.D. said that when S.M. came back home, he asked T.M. to go check on their children and see what they were doing. T.M. then went out of L.W.’s bedroom and went to her apartment while C.D. was chatting with S.M. and then with L.W. T.M. came back less than ten minutes later and said that the children were fine. C.D. said “okay”. T.M. went back to L.W.’s room. C.D. did not follow her. After he was done talking with S.M. and S.M. went to the washroom, C.D. talked with G. He then went back to E.M.’s room for their second conversation and went to L.W.’s room after.

117At some point, while C.D. was sitting at the end of the bed in L.W.’s room and chatting with T.M., he saw a small knife on a little dresser. He stretched his arm and picked up the knife. He asked T.M. what she was doing with a knife and what she was eating. T.M. said that L.W. or G. probably left the knife there. During his cross-examination, C.D. said that T.M. did not give him a response as to why the knife was there and she just laughed and smiled.

118C.D. testified that he then pushed the knife away. During his cross-examination, he said that he just put the knife down beside him instead of putting it back on the table because he was distracted by his conversation with T.M. He later said that he put the knife behind his back. A substantial amount of time was spent during C.D.’s cross-examination trying to understand and determine where he was sitting on the bed when he grabbed the knife and where he put the knife on the bed after asking T.M. about it. It was very difficult to obtain a clear answer from C.D. or an answer that made sense. In the end, marks were made on an exhibit. According to C.D., he put the knife down almost in the middle of the bed’s length, but very close to the other bed (i.e., the one closest to the window).

119After putting down the knife, C.D. lied down with T.M. C.D. and T.M. then started joking around, laughing around and playing around. T.M. asked C.D. how much money he had brought. C.D. told her that he had brought money for the kids, not for her. He later told her that he was going to give her an amount for her and an amount for the kids. Then they continued to laugh, chat, play around and have fun. They were holding and touching each other and spinning around. They were lying down on their side, facing each other. C.D.’s foot was on T.M.’s foot and he had his hand around T.M.’s waist. T.M. was rubbing his neck and his back, which, according to C.D., is a tricky thing that Guyanese women like to do when they need something from you. T.M. asked C.D. whether he was going to bring her money the following week. C.D. responded that she liked money too much. They started spinning around and rolling on the bed on top of each other, laughing. T.M. wanted an Easter gift. According to C.D., the rolling and playing around lasted over ten minutes. They remained on the bed closest to the door the whole time and did not go onto the other bed.

120At some point, T.M. said that she got cut. She did not yell it. T.M. came out of the bed and went directly to the washroom. C.D. kept lying down on the bed closest to the door. He thought that maybe T.M. got a scratch on her finger. He did not see any blood anywhere. He peeped at the hallway to see what happened to T.M. He could not see T.M. because she closed the door of the washroom.

121During his cross-examination, C.D. said that when T.M. got up to go to the washroom, the knife was right next to him, near his belly. According to C.D., the knife was then on the upper right half of the bed, a few feet from the closet.

122Less than a minute later, E.M., S.M. and L.W. came and jumped on C.D. E.M. had a walking stick which she pressed down around his neck. S.M. was jumping around and grabbed one of his hands. C.D. was fumbling and trying to get them off. He asked them what was going on, but nobody told him. They were just pressing him and forcing him down. At some point, C.D.’s hand ended up touching the knife. He took the knife and he said to L.W., who was on his right hand, to get off of him. After L.W. felt like a knife by her shoulder, she got off. C.D. managed to wriggle and get them off. He rested the knife on the counter or dresser where he had picked it up and he left. The struggle lasted for a couple of minutes. C.D. left E.M.’s apartment after 11 p.m.

123C.D. then left the building and went directly to take a bus to go back to Brampton. He did not go see his children before leaving because he was nervous that T.M.’s family would attack him and he thought that they wanted to kill him. C.D. said that he went home barefoot because he was a little nervous. Video footage that was marked as an exhibit at trial shows C.D. leaving T.M.’s apartment building on April 27, 2019 at approximately 11:23 p.m. On the video, C.D. is barefoot and holds a pair of shoes in his hands. Before exiting the building, he put the shoes in a garbage can. C.D. testified that he does not remember why he did that.

124C.D. testified that he never knew G.’s phone number.

125C.D. said that he never talked to T.M. about getting back together. He said that he was not upset or angry that night.

126C.D. testified that he did not fall asleep in a chair that night. He said that he never told T.M.: “If I can’t have you, nobody can.” He also said that he did not threaten to kill anyone, and he did not try to stab T.M. C.D. stated that he did not want to kill T.M. He admitted that he knew that a person’s heart is on the left side of their body.

127When he was shown pictures that were taken by the police a few hours after the incident, C.D. said that he did not remember an armoire and a small fridge being in the bedroom where the incident happened. He also said that the beds were smaller than the ones in the pictures, and not that close to each other. He stated that the gap between the two beds was a little bit less than 30 centimetres.

128Since the incident, C.D. does not see his children. His mother sees them. Before the incident, he got along well with T.M.’s family.

f. Agreed Statements of Facts

129Based on the Agreed Statements of Facts that were filed in this case, police attended at E.M.’s apartment at 11:32 p.m. in response to a 911 call about a stabbing. One officer observed a steak knife on the bedroom floor. The knife was seized by police. No fingerprints were located on the knife. However, there was a small quantity of blood on the tip of the blade. A Forensic Scientist in Biology at the Centre of Forensic Sciences concluded that T.M. could not be excluded as the source of female DNA profile from a bloodstain swab from the knife. The Forensic Scientist further opined that it was more than one trillion times more likely that the DNA profile from the bloodstain swab originated from T.M. than from an unknown person unrelated to her.

130An officer with the Forensic Identification Services of the Toronto Police Service attended at E.M.’s apartment building and apartment in the early hours of April 28, 2019. Among other things, he took pictures and took custody of the knife that was seized in E.M.’s apartment. While in E.M.’s apartment, he noticed a very minor scratch/cut to the upper right back area of L.W. It was approximately 1-2 millimetres in size.

III. POSITIONS OF THE PARTIES

1. Position of the Crown

131The Crown submits that the parts of C.D.’s evidence that could be believed are insufficient to raise a reasonable doubt. The Crown states that C.D.’s evidence was internally inconsistent on a number of points and, on other points, was contradicted by other reliable evidence (e.g., his evidence as to where he allegedly picked up the knife). The Crown argues that C.D.’s evidence is unreliable. The Crown points out that C.D. was confused about the dates and events relevant to the sexual assault allegations, and that he had a tendency to blame and vilify others, including T.M. and his daughter. According to the Crown, C.D. was making up his story as he went along and some of his evidence defied common sense and logic.

132The Crown states that the witnesses for the prosecution were credible and made an honest attempt to remember the events. The Crown argues that none of them had a motive to fabricate, and that T.M.’s family members did not have any issues with C.D. prior to April 27, 2019. The Crown notes the existence of corroborative evidence with respect to the events of April 27, 2019, including the pictures of the knife and T.M.’s bra, and the DNA results. The Crown submits that T.M. provided a logical reason for calling C.D.’s sister instead of the police on January 18, 2019, and did not use the sexual assault to gain an advantage in the family proceeding against C.D.

133The Crown describes C.D. as controlling and domineering with T.M. and refers to evidence in support of this description.

134The Crown points out that E.M., S.M. and L.W. all described seeing the same thing when they entered the bedroom on April 27, 2019. The Crown submits that while there were some differences in the witnesses’ accounts, this is understandable in the circumstances. According to the Crown, the crux of what was described was the same and the details that were described differently are not significant. The Crown also argues that T.M. was unshaken during her cross-examination.

135On the issue of intent for attempted murder, the Crown states that the knife that was used was capable of causing great harm and of killing. The Crown points out that the knife was pulled out after C.D. said that no one could have T.M. if he could not have her, and that C.D. was prevented from bringing the knife down again. The Crown notes that T.M.’s wound was on her left breast and argues that C.D. attempted to pierce her heart. According to the Crown, if the intent for attempted murder is not established, the Court can easily convict C.D. of assault causing bodily harm.

136The Crown submits that there is no evidentiary foundation for a defence of advanced intoxication in this case.

2. Position of the defence

a. Sexual assault and mischief

137The defence’s position is that T.M. fabricated her allegations of sexual assault. The defence submits that based on the different accounts of T.M. and C.D. and the fact that the physical evidence is limited to a bruise on T.M.’s arm, it would be difficult for the Court not to have a reasonable doubt. The defence states that there is no physical evidence of a sexual assault and that C.D. denies that the events described by T.M. happened.

138The defence argues that it is hard to believe that T.M. could have been overpowered by C.D. in the manner that she described, i.e., C.D. using only one hand to hold her down since he was using his other hand to remove her underwear. The defence points out that, in contrast, T.M. was able to fight back on April 27, 2019 when C.D. was allegedly armed with a knife.

139The defence notes that while there is a picture of a bruise on T.M.’s shoulder, there is no evidence of any injury to T.M.’s head as a result of the alleged punch to her head. The defence submits that this does not make a lot of sense.

140The defence points out that T.M. was apparently able to run from one room to the next and did not call 911. Instead, she decided to call C.D.’s sister, even though she stated that she first wanted to call the police. The defence submits that the chronology described by T.M. and the fact that she did not call the police is illogical, counterintuitive and hard to believe.

141The defence argues that T.M. decided that she was done dating C.D., and she made up the allegations of sexual assault on January 18, 2019 to get C.D. away from her. The defence notes that T.M. later obtained full custody of the children. The defence also points out that T.M.’s evidence was that her relationship with C.D. ended because of his abuse, and she did not initially mention a sexual assault.

b. Attempted murder and assault causing bodily harm

142The defence’s position is that the physical evidence, including the nature of the wound, is insufficient to establish the intent for attempted murder. The defence also argues that the Crown has failed to prove assault causing bodily harm beyond a reasonable doubt given the inconsistencies in the evidence.

143The defence points out that there were lots of discrepancies and inconsistencies between the testimonies of T.M., E.M., L.W. and S.M. about what was said and what happened in the room, and who did what.

144The defence emphasizes the fact that the wound on T.M.’s breast was a flesh wound. The defence states that there was only a small amount of blood, the knife did not go very deep and not a lot of force was used. The defence submits that based on the pictures of T.M.’s bra marked as exhibits, the cut was not the result of a glancing blow. Rather, it looks like a clean in-and-out hole. According to the defence, it is hard to presume an intent to kill T.M. given the nature of the wound and the cleanliness of the opening. The defence notes that while nothing was done to lessen the blow, the knife barely pierced T.M.’s breast. The defence also notes that C.D. testified that the cut occurred while he and T.M. were playing around. The defence argues that the wound would be far more significant than a flesh wound if T.M. had been stabbed by a man who was rejected and wanted to stab her to death.

145The defence submits that E.M.’s evidence does not add up and that she testified about things that she could not know.

146The defence argues that C.D.’s version of events was reasonable and acceptable. He sounded quite sincere and he answered questions directly. He was calm and measured, and he acknowledged his errors.

147The defence states that if T.M.’s evidence is accepted with respect to C.D.’s intoxication, this works to the benefit of the defence and raises a doubt regarding the mens rea.

IV. DISCUSSION

1. General legal principles

148C.D. is presumed to be innocent, unless and until Crown counsel has proven his guilt beyond a reasonable doubt. To prove C.D.’s guilt of the offences with which he was charged, Crown counsel must prove each and every essential element of the offences beyond a reasonable doubt. A reasonable doubt is a doubt based on reason and common sense, a doubt that logically arises from the evidence or the absence of evidence.

149Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. It would not be safe to convict a person of a criminal offence with only that degree of confidence. In order to find C.D. guilty of an offence, I have to be sure, based on all the evidence before the Court, that he committed the offence. See R. v. Nyznik, 2017 ONSC 4392 at paras. 6-7.

150In this case, the Court’s assessment of the evidence is to be guided by the following principles:

a. If the Court believes the evidence of C.D., the Court must acquit.

b. If the Court does not believe the evidence of C.D. but is left in reasonable doubt by it, the Court must acquit.

c. If the Court does not know who to believe, the Court must acquit.

d. Even if the Court is not left in doubt by the evidence of C.D., the Court must ask itself whether, on the basis of the evidence which the Court accepts, the Court is convinced beyond a reasonable doubt by that evidence of the guilt of C.D.

See R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at 758 (“W.(D.)”) and R. v. Kruk, 2024 SCC 7 at para. 62 (“Kruk”).

151The paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. A verdict of guilt must not be based on a choice between the defence evidence and the Crown’s evidence. See R. v. C.L.Y., 2008 SCC 2 at paras. 6, 8 and R. v. Vuradin, 2013 SCC 38 at para. 21 (“Vuradin”).

152Given the opposite versions of events of the witnesses in this case, the issues of credibility and reliability are critical. 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. See R. v. G.F., 2021 SCC 20 at para. 82 (“G.F.”) and R. v. H.C., 2009 ONCA 56 at para. 41.

153The issue of C.D.’s intoxication has been raised in this case. There are three legally relevant degrees of intoxication:

a. “Mild” intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea.

b. “Advanced” intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of their act sufficient to raise a reasonable doubt about the requisite mens rea. A defence based on this level of intoxication applies only to specific intent offences.

c. “Extreme” intoxication akin to automatism. This negates voluntariness and thus is a complete defence to criminal responsibility. Such a defence would be extremely rare, and by operation of section 33.1 of the Criminal Code, is limited to non-violent types of offence.

See R. v. Daley, 2007 SCC 53 at paras. 41-43 (“Daley”).

154For the defence of “advanced” intoxication to have an air of reality, a judge must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt. See Daley at para. 44.

2. Offences

a. Sexual assault

155The actus reus of sexual assault requires the Crown to establish three things: (a) touching; (b) of an objectively sexual nature; (c) to which the complainant did not consent. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal state of mind towards the touching. At the mens rea stage, the Crown must show that: (a) the accused intentionally touched the complainant; and (b) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent. See G.F. at para. 25.

b. Mischief

156The essential elements of mischief to property are:

a. the accused destroyed or damaged property;

b. the accused willfully damaged the property; and

c. the conduct of the accused was unlawful.

See R. v. Johnson, 2016 ONSC 7615 at para. 149.

157Conduct causing damage to property will be unlawful if the accused acted with no lawful justification or excuse or colour of right. See subsection 429(2) of the Criminal Code.

c. Attempted murder

158The crime of attempted murder requires proof beyond a reasonable doubt that the accused intended to kill, coupled with conduct by the accused done for the purpose of carrying out that intention. The conduct must amount to some act more than merely preparatory taken in furtherance of the attempt. See United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462 at para. 50 and R. v. Boone, at 2019 ONCA 652 para. 49 (“Boone”).

159The crime of attempted murder requires proof of the specific intent to kill. See R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225 at 249, 251. A person whose purpose is to kill another, either as an end in itself or as a means to achieving some further end, has the specific intention to kill. See Boone at para. 52. Further, a person who foresees that killing is virtually certain to result from an act which the person does in order to achieve some other purpose has the specific intention to kill. See Boone at paras. 52, 54.

160However, the intention to inflict harm, even significant harm, combined with recklessness as to the consequence of inflicting that harm, does not suffice to establish the mens rea for attempted murder. See Boone at para. 51. A person who appreciates that their acts may, or probably will, lead to the victim’s death is not guilty of attempted murder unless killing the victim was the person’s purpose. See Boone at para. 57.

161In considering whether there is sufficient evidence of a specific intent to kill on a charge of attempted murder involving a stabbing, a judge should consider the following factors, among others:

a. the nature of the weapon;

b. whether the stab wound is to a vital part of the anatomy (e.g., brain, neck, heart, abdomen);

c. the force with which the wound was inflicted;

d. the number of wounds;

e. the evidence or lack of evidence of premeditation or spontaneity; and

f. the presence or absence of defensive motivation.

See R. v. Payne, 2013 ONSC 4609 at para. 20 (“Payne”).

d. Assault causing bodily harm

162The 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.

163“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 just brief or fleeting, or minor in nature. See R. v. Brown, 2021 ONCA 678 at paras. 23-26. 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.

164Crown counsel does not have to prove that the accused meant to cause bodily harm of any kind to the complainant by the force that the accused intentionally applied. Rather, what has to be proven is that a reasonable person, in the circumstances, would realize that the force that the accused intentionally applied would put the complainant at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of bodily harm that the complainant actually suffered. See R. v. Powell, 2021 ONCA 271 at para. 51.

3. Assessment of the evidence

a. Evidence of C.D.

165The first step in the W.(D.) analysis is to ask whether I believe the evidence of the accused.

166I do not believe the evidence of C.D. On many points, his evidence did not make sense, was internally inconsistent, and/or appeared to be made up as C.D. went along.

167C.D.’s evidence regarding the events of January-March 2019 was problematic in many respects. Among other things:

a. As noted above, C.D.’s evidence about the events of January 18, 2019 was confusing and unclear. This is very odd since he has been aware of the allegations against him with respect to this day for more than six years. In my view, C.D. obfuscated when giving his evidence about these events.

b. It is not believable that C.D. had no idea why T.M. moved out of the apartment in Brampton and/or did not ask more questions about what was happening when T.M. and her family showed up with a moving truck and started packing things up. It is notable that, based on C.D.’s testimony, he does not appear to have made any inquiries about his children while the move was happening (e.g., he did not mention in his testimony that he inquired about what was going to happen to his children if T.M. moved out). Of course, if T.M. and her children had already been living with E.M. for some time on the day that the moving truck came, as T.M. testified, that would explain why C.D. would not have raised any issues about the children.

c. C.D.’s evidence about the breaking of T.M.’s phone does not make sense in many respects. Given that T.M. was present in the apartment and was in the middle of an argument with her daughter when her phone was allegedly broken, it appears very unlikely that T.M. would not have seen her ten-year old daughter break her phone or would not otherwise have known that her daughter broke her phone if that had happened. I also note that it was never put to T.M. during her cross-examination that her phone had been broken by her daughter instead of C.D. More importantly, the timing of this incident as described by C.D. does not make sense. According to C.D., T.M.’s phone was broken before his sister came to his and T.M.’s apartment while he and T.M. were arguing, and way before the day that a moving truck came to the apartment. Also according to C.D., T.M. got a new phone a few days after her phone was broken, and she continued to live with him and be in a relationship with him until the day the moving truck came. However, C.D. could not recall if he had the number for T.M.’s new phone. If T.M. had continued to be in a relationship with C.D. for several weeks after she got a new phone, there would be no reason why C.D. would not have had her new phone number.

d. C.D.’s evidence about the day his sister came to his apartment in January 2019 was very problematic. It does not make sense that C.D.’s sister would be called and would come over to the apartment of C.D. and T.M. only to deal with an argument regarding their daughter’s bedtime. It also does not make sense that C.D.’s sister would say that, because of an argument about their daughter’s bedtime, either C.D. or T.M. had to leave the apartment that night. Further, it would not make sense for C.D. to tell his sister that he had not touched T.M. if he truly did not know why T.M. was screaming and yelling or if the argument between them was about their daughter’s bedtime, I also note that at first, C.D.’s evidence was that he did not know why T.M. was screaming and yelling and why his sister showed up, which does not make sense. C.D. talked for the first time about an argument regarding his daughter’s bedtime during his cross-examination.

e. C.D. contradicted himself a few times as to whether or not he heard his sister say that one of them had to leave the apartment on January 18, 2019. Further, after repeating a number of times that T.M. was screaming and yelling on that day, he then changed his evidence and said that she was not in fact screaming and yelling. Rather, she was “talking loud”.

f. C.D. admitted during his cross-examination that there was a party organized by one of his cousins in January 2019. At first, he stated that the reason why he did not want T.M. to go to the party was because he did not want her to be around his cousin and his friends. It is only when the issue of his children came up in a question that C.D. said that the fact that his children were with him at the apartment was why he did not want T.M. to go to the party because she was to stay at home with the children. If T.M.’s sister had picked up the children earlier that day, as T.M. testified, that would explain why C.D. did not initially mention the issue of who would take care of the children had T.M. gone to the party with him.

g. C.D. gave inconsistent answers during his cross-examination as to whether the party organized by his cousin was the same day that his sister came to his apartment because T.M. was screaming and yelling.

168C.D.’s evidence regarding the events of April 27, 2019 was also problematic in many respects and evolved during the course of his testimony. Among other things:

a. C.D.’s evidence was full of internal inconsistencies and contradictions. The following are examples of points on which C.D. gave inconsistent and/or contradictory evidence: when T.M. asked him to go pick up a bike; when T.M. offered him to stay over for the night; when he brought the six-pack of beers to T.M.’s apartment; what he did when he first went up to T.M.’s apartment (telling her daughter to get the bags ready or drink a beer with T.M. and watch television); how many times he went to E.M.’s apartment; where T.M. was when he arrived at E.M.’s apartment (in L.W.’s bedroom or on the couch in the living room drinking a beer); when and how many times he asked T.M. to go check on the children; when he went back to E.M.’s bedroom a second time; where and how C.D. was sitting on the bed in L.W.’s bedroom and where he put the knife on the bed; what T.M. said or did after he asked her what she was doing with a knife; and where the knife was on the bed right after T.M. was cut and went to the washroom.

b. Some of the evidence given by C.D. about what he did when he first went to T.M.’s apartment does not make sense in light of the fact that, based on C.D.’s evidence, his brother would have been waiting for him and his children in a car downstairs. As stated above, C.D. gave different versions at different times as to what he did when he first went up to T.M.’s apartment.

c. C.D.’s evidence that he left his ten-year-old daughter in charge of looking after her three-year-old brother between 8 and 9 p.m. for more than one hour does not make sense. It also does not make sense that no one in E.M.’s apartment raised any issue about a three-year-old child being without adult supervision for more than one hour while C.D. was in E.M.’s apartment. This is especially the case in light of C.D.’s evidence that: (i) his children were not sleeping when he left T.M.’s apartment to go to E.M.’s apartment, and (ii) T.M. was stricter than him with respect to bedtime.

d. C.D.’s evidence about where he picked up a knife in L.W.’s bedroom does not make sense in light of the pictures of the bedroom that were taken a few hours after the events. Further, C.D.’s evidence that he would have put the knife where he put it (i.e., almost in the middle of the bed’s length) just before lying down on the bed is not believable.

e. The allegation that T.M. would have sustained the type of wound that she sustained because of a knife laying horizontally on the bed while rolling around with C.D. on top of each other does not make sense. It also does not make sense that C.D. and T.M. did not notice that a knife had been left in the middle of the bed while they were rolling and playing around for more than ten minutes, before T.M. was injured. The spot in which C.D. allegedly found the knife after T.M. was cut also does not make sense, i.e., the knife had somehow made its way to the other side of the bed without injuring anyone earlier in the process and without being noticed.

f. It does not make any sense that E.M., L.W. and S.M. would have come less than one minute after T.M. went to the washroom to physically attack C.D. for no apparent reason. According to C.D., T.M. did not scream after being cut and went directly to the washroom without talking to anyone (he said that he saw that she had closed the door of the washroom). Based on C.D.’s evidence, T.M.’s family members would not have known that T.M. was cut, and there would have been no reason for them to attack C.D. the way that they allegedly did after all of them had pleasant conversations with him in E.M.’s apartment earlier in the evening. This is another instance of C.D. testifying that he did not know why things were happening, which is not believable.

169In addition to not believing C.D.’s evidence, I am not left in reasonable doubt by his evidence, except with respect to the issue of whether he had the specific intent to kill, which I discuss further below.

170I now turn to the evidence of the other witnesses.

b. Evidence regarding the alleged sexual assault and mischief

171With one exception, I accept T.M.’s evidence with respect to the events of January 18, 2019 and the subsequent events regarding her relationship with C.D. Her evidence was clear, logical and consistent. She answered questions in a straightforward fashion. She had a good recollection of the events and of many details. Further, her evidence was corroborated, in part, by the picture of the bruise on her arm and by C.D.’s own evidence. While C.D.’s evidence was far from clear about what occurred in January 2019, he gave evidence about a party hosted by a family member, and about his sister coming to his and T.M.’s apartment in Brampton during an argument and telling them that one of them had to leave the apartment. The evidence given by C.D. as to why he did not want T.M. to go to the party organized by his cousin is also consistent with C.D. being controlling and possessive.

172However, I do not accept T.M.’s evidence given during her cross-examination that C.D. was drunk in the morning of January 18, 2019, because he was sleeping on the ground while their son was crying in the playpen. Unless C.D. was still drunk from the night before – and there is no evidence that he got drunk the previous day – T.M.’s statement that C.D. was drunk in the morning is inconsistent with her evidence that C.D. only drank one beer in the morning. While I accept T.M.’s evidence that C.D. was intoxicated to a certain degree later in the day, I do not accept her evidence that he was drunk in the morning. However, I do not believe that T.M. tried to mislead the Court with this evidence. She may have confused different days (which can be understandable if C.D. was drinking often) or C.D. may have fallen asleep on the ground that morning simply because he was tired. Ultimately, this detail is peripheral and unimportant because C.D.’s state of sobriety in the morning is not relevant to the issue of whether he sexually assaulted T.M. much later in the day.

173I do not accept the defence’s argument that T.M. had a motive to lie in order to have a more advantageous position in the family law proceeding against C.D. T.M. did not complain to the police about the sexual assault until the events of April 27, 2019. For the period of time between January 18 and April 27, 2019, during which T.M. and C.D. were not living together, C.D. had access to his children without any issue and, based on his evidence, he saw his children every week. In light of the evidence before me, the police had to be called on April 27, 2019 and T.M. required medical attention. Based on C.D.’s own evidence, the knife incident is not something that T.M. and her family members could have planned in advance, and there is no doubt that T.M. was injured by a knife on April 27, 2019. There is no basis for the suggestion that in addition to advising the police that C.D. had stabbed her with a knife, T.M. would have needed to add allegations of sexual assault in order to get an advantage in the family law proceedings.

174I also do not accept the defence’s argument that the fact that T.M. did not call the police on January 18, 2019 somehow impacts her credibility. As the Supreme Court of Canada stated in R. v. D.D., 2000 SCC 43 at para. 65, the timing of a complaint of sexual assault is simply one circumstance to consider in the factual mosaic of a particular case in assessing the credibility of a complainant. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. This is because there is no inviolable rule on how people who are the victims of a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.

175In this case, T.M. said that she was going to call the police while she was trying to escape from C.D. and her safety was at immediate risk. She was unable to do so because C.D. smashed her phone. After she was able to lock herself in the washroom with the house phone, she decided to call C.D.’s sister instead of the police. At that time, her safety was no longer immediately threatened. T.M. testified that she decided to call C.D.’s sister instead of the police because she did not want to get him in trouble and she was hoping that his sister would talk to him and get him to leave. This explanation makes sense in light of the fact that C.D. was the father of T.M.’s two children and they had been in a common-law relationship for more than ten years. The fact that, in the end, T.M. decided not to call the police on January 18, 2019 and not to report C.D. on that day does not undermine her credibility.

176In my view, the fact that there is no picture of any injury to T.M.’s head is neither here nor there, contrary to the defence’s submission. While T.M.’s evidence about being punched in the head was clear and consistent, she also testified that, aside from the bruise on her arm, she did not suffer any other physical injuries on January 18, 2019. Therefore, it is not surprising that there is no picture of other injuries. The punch to the head may not have been strong enough to cause an injury. I also note that any bruise would be difficult to see if it was located under T.M.’s hair. Further, and in any event, the belief that real victims of sexual assault should have visible physical injuries has been recognized as a myth and stereotype about sexual assault complainants. See Kruk at para. 36.

177Finally, I also do not accept the defence’s argument that T.M.’s evidence that she was overpowered by C.D. in the manner that she described was not credible. Again, it is important to keep in mind that the belief that a victim is required to resist physically in order to establish the absence of consent is a myth. See Kruk at para. 36. In this case, T.M. testified that she took steps to resist physically C.D.’s advances, but she was unsuccessful in doing so. In my view, there is no reason to doubt her evidence on this point. In addition to using one of his hands to hold her down, C.D. was on top of T.M., sitting on her leg, and using the weight of his body. T.M. testified that at some point before the penetration, she was able to push him off of her, but that C.D. then came back and put more force on her. There is no basis to believe that T.M. should have been able to escape from C.D. in the circumstances and that she is lying about this. T.M.’s evidence about being unable to move C.D. off of her is corroborated to a certain extent by the evidence regarding the struggle that took place with C.D. on April 27, 2019, including L.W.’s evidence that she was unable to make C.D. move while pulling as hard as she could.

178Thus, I accept T.M.’s evidence regarding the relevant events of January 18, 2019. On the whole of the evidence, I am convinced beyond a reasonable doubt that C.D. is guilty of sexual assault. C.D. penetrated T.M.’s vagina with his penis without her consent. Further, C.D. knew that T.M. was not consenting given her physical and verbal resistance. On the whole of the evidence, I am also convinced beyond a reasonable doubt that C.D. is guilty of mischief. C.D. wilfully damaged T.M.’s phone without any lawful justification or excuse or colour of right.

c. Evidence regarding the alleged attempted murder and assault causing bodily harm

179Subject to my comments below about the discrepancies between the testimonies of the Crown witnesses, I accept T.M.’s evidence with respect to the events of April 27, 2019. Again, her evidence was clear, logical and consistent. She had a good recollection of the events and of many details. She answered questions in a straightforward fashion. Further, her evidence was corroborated by the evidence of her mother and sisters, by evidence seized and pictures taken by the police (including pictures of the knife with a bloodstain, pictures of cuts on T.M.’s fingers, and pictures of T.M.’s perforated bra with a bloodstain), and by DNA evidence.

180The fact that T.M. may not remember – or not be clear about – the exact position of C.D. on the bed(s), the manner in which he got on the bed(s), and the direction in which she was facing at specific moments during the incident does not undermine her credibility. These are minor details that relate to peripheral matters. It is well accepted that peripheral details of a traumatic event can be difficult to recall and accurately describe at a later date. See R. v. A.A., 2023 ONCA 174 at para. 17.

181I found L.W. and S.M. to be very credible witnesses. They were careful in their respective testimonies and were candid when they did not remember or were not sure about something. They both testified that they had a good relationship with C.D. before April 27, 2019, and they both spoke to him that evening before T.M. was injured.

182E.M. also had a good relationship with C.D. before April 27, 2019, and spoke to him during the evening. However, E.M.’s evidence was less reliable than the evidence of L.W. and S.M. While I am satisfied that E.M. did not try to mislead the Court intentionally, she appeared not to always make the difference in her testimony between what she personally saw and what she may have learned later. Further, her evidence as to who was in the bedroom during the struggle with C.D. is different from everybody else’s evidence. Nevertheless, I accept her evidence when it is consistent with the evidence of the other Crown witnesses.

183As pointed out by the defence, there were a number of discrepancies between the evidence of T.M., E.M., L.W. and S.M. Among other things, their evidence was not always consistent as to where T.M.’s son was in E.M.’s apartment (in E.M.’s room or in L.W.’s room), where L.W. was in the apartment when C.D. first went into the bedroom to talk to T.M., the words screamed by T.M. when she was stabbed, who first came to the doorway of L.W.’s bedroom after T.M. screamed, who went into the bedroom after T.M. screamed, who gave the crutch to E.M., who used the crutch to push C.D. off of T.M., and whether C.D. said that he was going to kill everybody.

184In R. v. G.M.C., 2022 ONCA 2 at para. 38, the Court of Appeal set out the following propositions regarding memory, which are grounded in common experience:

a. observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;

b. a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’ overall reliability or credibility; and

c. it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’ testimony concerning events.

185In light of these common-sense propositions, it is my view that the discrepancies between the Crown witnesses’ testimonies regarding minor details and peripheral matters during a traumatic event do not detract from these witnesses’ overall reliability and credibility. Despite the discrepancies, the Crown witnesses’ evidence was consistent on the core points: T.M. screamed, T.M.’s mother and sisters rushed to the bedroom to see what was happening, T.M. was lying on her back and C.D. was holding a knife in his hand, and a struggle ensued with C.D. during which a crutch was used. Some of these points are supported by C.D.’s own evidence. L.W.’s evidence about feeling the tip of the knife in her shoulder area during the struggle with C.D. is also supported by the evidence of Detective Constable Phillip Boyd (introduced in an Agreed Statement of Facts) that he observed a minor scratch/cut to L.W.’s upper right back area.

186On the whole of the evidence, I am convinced beyond a reasonable doubt that C.D. is guilty of assault causing bodily harm. C.D. intentionally stabbed T.M. in her left breast with the knife that was seized by the police while she was lying down on a bed in L.W.’s bedroom. The force was applied to T.M. without her consent and C.D. knew that T.M. did not consent to being stabbed in the breast. As could easily be expected, the stabbing caused bodily harm to T.M. that was neither brief nor minor. T.M.’s wound required a number of stitches that had to be removed two or three weeks later. Further, T.M. had pain for two weeks and was prescribed pain medication.

187However, I am not convinced beyond a reasonable doubt that C.D. is guilty of attempted murder. I am not satisfied that C.D. had the specific intent to kill T.M.

188Considering the factors set out in Payne (see para. 161 above), I acknowledge that C.D. stabbed T.M. in her left breast – near her heart – with a knife with a 12-centimetre blade. It is also aggravating for C.D. that he went to the kitchen to get a knife and is alleged to have said to T.M. just before stabbing her: “If I can’t get you, nobody can”. However, the force with which the wound was inflicted was limited since T.M. only suffered a flesh wound, which is consistent with the fact that only the tip of the blade had a bloodstain on it. Given that T.M. was lying down on the bed and was not expecting to be stabbed, C.D.’s movements were unimpeded and he could have used significant force and have the entire blade penetrate T.M.’s body had he wanted to. This did not happen. I also note that only one wound was inflicted, and that C.D. would likely have had the time to inflict more than one wound had he wanted to, despite T.M.’s resistance and before her family came to her rescue.

189In this instance, the factor of the force with which the wound was inflicted plays a significant role and, in the circumstances of this case, it leaves me with a reasonable doubt with respect to C.D.’s intention at the time he stabbed T.M. I cannot conclude beyond a reasonable doubt that C.D. meant to kill T.M. at the time of the stabbing. Therefore, I find him not guilty of attempted murder.

190Because this was argued by the parties, I note briefly that the issue of intoxication did not have an impact on my conclusion regarding C.D.’s intent. I agree with the Crown that there is no evidentiary basis to support a defence of advanced intoxication. Both E.M. and L.W. testified about how C.D. was in E.M.’s apartment on April 27, 2019, and they said that he sounded normal and looked the same as usual. While T.M. testified that C.D. drank beer on April 27, 2019 and fell asleep in a chair with a beer in his hand, she did not state that he was drunk, let alone in an advanced state of intoxication.

V. CONCLUSION

191The accused, C.D., is found guilty of sexual assault (count 2), mischief (count 3) and assault causing bodily harm (count 5). He is found not guilty of attempted murder (count 4).

Vermette J.

Footnotes

1. 1Count 1 on the indictment (choking with intent to overcome resistance contrary to subsection 246(a) of the Criminal Code) was dismissed at the request of the Crown at the close of the Crown’s case and is not discussed in these reasons.
2. 2Although C.D. said in his testimony that he went to the living room, the rest of his evidence suggests that he was talking about the bedroom of L.W. and S.M.