CITATION: R. v. A.A., 2026 ONSC 4692
COURT FILE NO.: CR 23-92
DATE: 2026/08/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
A.A.
Defendant
Peter Chisholm, for the Crown
Jonatan Larochelle, for the Applicant
HEARD: February 3, 4, 2025
March 18, 2025
April 30, 2025
July 27, 2025
September 15, 16, 26, 2025
December 5, 9, 2025
February 9, 2026
March 25, 2026
April 10, 2026
June 5, 2026
August 13, 2026
reasons for judgment
Desormeau, J.
iNTRODUCTION
[1] The accused, A.A., is charged on an indictment arising from allegations involving E.R., D.R., and F.R.
[2] The counts before the Court are as follows:
Attempt to choke E.R., contrary to s. 246(a) of the Criminal Code;
Assault E.R., contrary to s. 266;
Assault D.R., contrary to s. 266;
Assault F.R., contrary to s. 266;
Mischief under $5,000 relating to damage to E.R.’s bedroom door, contrary to s. 430(4);
Criminal harassment by besetting or watching E.R.’s dwelling house, contrary to s. 264(2)(c).
[3] Count 2 was stayed by the Crown pursuant to s. 579(1) of the Criminal Code on the basis of issue estoppel. I therefore make no finding on Count 2. At the conclusion of the trial, based on the evidence presented, the Crown invited me to find the accused not guilty of count 6. For reasons set out in this decision, an acquittal was entered on count 6.
[4] For the reasons that follow, I find the accused guilty on Count 5, mischief under $5,000. I am not satisfied beyond a reasonable doubt on Counts 1, 3, 4, and 6. Those counts are dismissed.
Charter Application
[5] At the end of the trial, the accused brought an application for a stay of Counts 3 and 4 pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging a breach of s. 7 arising from lost or unpreserved evidence. Counts 3 and 4 are the two assault charges involving D.R. and F.R.
[6] The accused argued that D.R., who is the daughter of the accused, transitioned from being treated as a witness to being treated as an alleged victim over the course of a few days of police and witness interactions, without any clear explanation for that shift in the disclosure.
[7] The defence position was that the police failed to preserve or disclose evidence of interactions between investigators and witnesses, including E.R., J.R., D.R., and F.R. The defence acknowledged that the formal audio-video recorded statements were preserved and disclosed. The concern was with the unrecorded or undocumented interactions that led to D.R. becoming an alleged victim rather than simply a witness to the alleged assault on F.R.
[8] The accused relied on R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, and R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754, for the proposition that the Crown has disclosure obligations and that the accused has a right to disclosure necessary to make full answer and defence.
[9] The Crown opposed the application. The Crown argued that all formal witness statements were audio-video recorded and disclosed, that there was no evidence of deliberate destruction, suppression, or bad faith failure to preserve evidence, and that the defence improperly elevated investigative imperfections into a constitutional breach.
[10] The Crown relied on R. v. La and R. v. Regan, 2002 SCC 12, for the proposition that a duty to preserve evidence is engaged where evidence existed and its relevance was reasonably apparent. The Crown submitted that the accused had not established those conditions and had not demonstrated prejudice to his right to make full answer and defence.
[11] I hereby dismiss the Charter application.
[12] I am not persuaded that the police were under a constitutional obligation to document every contact with a witness, including administrative or scheduling communications with E.R. or J.R. regarding police interviews. The record established that the formal statements were preserved. The remaining concern was with informal or undocumented interactions, rather than clearly established lost evidence.
[13] If I am wrong about the scope of the preservation obligation, I am not satisfied that the accused suffered prejudice to his right to make full answer and defence. This trial was repeatedly adjourned to ensure that relevant disclosure was provided. The defence had access to the formal witness statements and conducted lengthy and detailed cross-examinations of E.R., F.R., and D.R. The defence theory of collusion, tainting, evolution of the allegations, and reliability concerns was fully put to the witnesses.
[14] A stay of proceedings is reserved for the clearest of cases. I am not persuaded that the facts established an abuse of process or a breach of s. 7 warranting a stay of Counts 3 and 4. Accordingly, the application for a stay is dismissed.
[15] That said, the defence arguments underlying the Charter application remain relevant to my assessment of credibility and reliability. The evidence about the evolution of D.R. from witness to alleged victim, the possible tainting or contamination of witness evidence, and the inconsistencies between the witnesses were fully canvassed in cross-examination. I address those issues in the reliability analysis that follows.
Legal Principles
[16] The accused is presumed innocent. The burden rests on the Crown throughout the trial to prove each essential element of each offence beyond a reasonable doubt. The burden never shifts to the accused.
[17] Proof beyond a reasonable doubt is not proof to an absolute certainty, nor proof beyond any doubt. A reasonable doubt is not an imaginary or frivolous doubt and must not be based on sympathy or prejudice. It is a doubt based on reason and common sense arising from the evidence or from the absence of evidence. If, after considering all of the evidence, I am left with a reasonable doubt, I must acquit. The standard is higher than proof that the accused is probably or likely guilty. These principles are consistent with the Supreme Court of Canada’s direction in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
[18] I have also instructed myself in accordance with R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. A criminal trial is not a credibility contest. The issue is not whether I prefer the Crown evidence over defence evidence, or whether I prefer one witness over another. The issue is whether the Crown has proven guilt beyond a reasonable doubt.
[19] The W. (D.) principles are as follows:
First, if I believe the evidence of the accused, I must acquit.
Second, if I do not believe the evidence of the accused, but it leaves me with a reasonable doubt, I must acquit.
Third, even if the evidence of the accused does not leave me with a reasonable doubt, I must still ask whether, on the basis of the evidence I do accept, if I am satisfied beyond a reasonable doubt of the accused’s guilt.
[20] It is open to me to accept some, none, or all of the evidence of any witness. A witness may be credible on one point and unreliable or mistaken on another. I must consider each witness’s evidence in the context of the evidence as a whole.
[21] If, after considering all of the evidence, I am unable to decide whom to believe on a material issue, the accused is entitled to an acquittal on that issue because the Crown will not have met its burden.
[22] In making findings of fact and credibility determinations, I apply the standard of proof beyond a reasonable doubt. Evidence that contradicts a witness is highly relevant to credibility and reliability, but inconsistencies must be assessed in context, including whether they relate to central or peripheral issues.
[23] Credibility and reliability are related but distinct. Credibility concerns whether a witness is attempting to tell the truth. Reliability concerns whether the evidence is accurate, complete, independent, and sufficiently trustworthy to support findings beyond a reasonable doubt. A witness may be sincere but mistaken. A witness may be honest but unreliable because of memory problems, reconstruction, confusion, influence from others, or contamination through discussion.
[24] In this case, reliability is central. I have therefore considered not only whether the witnesses appeared sincere, but whether their evidence was stable, internally consistent, externally consistent with other evidence, based on personal observation, and supported or contradicted by independent evidence.
Overview of the Evidence
[25] The Crown’s case rested primarily on the evidence of E.R., F.R., D.R., and the investigating officer, Cst. Youri Tremblay-Falardeau.
[26] Cst. Tremblay-Falardeau’s evidence established the police chronology, the taking of photographs of the damaged bedroom door, and the subsequent police process. His cross-examination also revealed important investigative gaps, including the absence of phone records, surveillance footage and vehicle linkage, in particular regarding the allegation of criminal harassment.
[27] E.R. was the central adult civilian witness. She gave evidence about the prior alleged choking incident, the February 2023 bedroom-door incident, the children’s alleged disclosures, later unwanted contact, and her broader fear that the accused or his family might remove their mutual children from her care, particularly their son.
[28] F.R. and D.R. gave evidence about the alleged February 2023 incident in the living room. Both described contact by the accused to F.R.’s neck, but their evidence diverged in material respects, including whether F.R. was lifted by the throat.
Incident-by-Incident Analysis
Alleged choking / assault of E.R. — Count 1
[29] E.R. testified that, during an earlier incident, the accused alleged that she was cheating on him, became angry, got on top of her, placed his hands around her neck, and choked her. She described feeling as though she was losing consciousness. She also described being punched in the head several times.
[30] There are significant reliability concerns with this allegation, as detailed below.
[31] The timing of the incident was uncertain. At different points, the incident was connected to 2017 and 2018. The evidence also raised concern about possible overlap with a prior proceeding. That uncertainty was significant enough that the trial was interrupted to address disclosure and issue-estoppel concerns.
[32] Additionally, E.R. was uncertain about what she told police at the time. She acknowledged that she did not want the accused arrested and did not want to go to hospital. This, in my view, affects the ability to rely on contemporaneous disclosure as confirmatory evidence.
[33] Further, while E.R.’s evidence contained detail, it was not supported by clear independent evidence before me sufficient to overcome the reliability concerns.
[34] I do not find that E.R. was necessarily fabricating this allegation. However, given the uncertainty about timing, possible overlap with prior proceedings, and uncertainty about contemporaneous reporting, I am not satisfied beyond a reasonable doubt on Count 1.
[35] This is not a finding that the event did not occur. It is a finding that, on the evidence I accept as credible and reliable, and applying the burden of proof beyond a reasonable doubt, the Crown has not proven this count.
[36] The accused is therefore found not guilty on Count 1.
Count 2 — Assault of E.R.
[37] Count 2 was stayed by the Crown pursuant to s. 579(1) of the Criminal Code on the basis of issue estoppel.
[38] No verdict is entered on Count 2.
February 2023 bedroom-door incident — Count 5, Mischief
[39] The bedroom-door incident stands on a different footing from the other allegations.
[40] E.R. testified that, around Valentine’s Day 2023, she returned from a walk and went to her bedroom to change. She said the accused would not leave the bedroom despite several requests. She closed or slammed the bedroom door, and the accused kicked it, causing a hole or split.
[41] Cst. Tremblay-Falardeau attended the residence on May 16, 2023 and photographed the damaged bedroom door. Those photographs were marked as exhibits. The photographs provide independent corroboration that the door was damaged.
[42] F.R. also testified that she saw the accused kick E.R.’s bedroom door.
[43] There are inconsistencies in the evidence relating to this incident. D.R. testified at trial that she saw the accused kick or break the door. However, when her police statement was played, she acknowledged that she had told police she did not see the accused kick the door and had learned about it from E.R.
[44] I therefore do not rely on D.R.’s evidence to prove the door incident.
[45] There is also some uncertainty about exactly when the door was damaged in relation to the alleged living-room incident related in counts 3 and 4. However, the precise date is not the central issue on this count, and the date uncertainty does not raise a reasonable doubt about whether the accused caused the damage.
[46] While I have concerns about aspects of E.R.’s evidence generally, her evidence about the damaged door is supported by independent physical evidence: the photographs taken by Cst. Tremblay-Falardeau. It is also supported by F.R.’s evidence that she saw the accused kick the door. Even excluding D.R.’s evidence, I am satisfied beyond a reasonable doubt that the accused intentionally damaged the bedroom door without lawful justification or excuse.
[47] I therefore find the accused guilty on Count 5, mischief under $5,000.
Alleged assault on F.R. — Count 4
[48] F.R. testified that in February 2023, she was sitting on the couch in E.R.’s living room eating chips. D.R. was also present. The accused was at the kitchen table. According to F.R., the accused asked D.R. to get him water, F.R. asked “why,” and the accused came over and put his hand around her neck and choked her.
[49] D.R. also testified that the accused placed his hand on F.R.’s throat. That evidence provides some consistency at a general level.
[50] However, there is a material contradiction about what happened. F.R. ultimately adopted her earlier police-statement version that she was not lifted from the couch. Her evidence was that the accused put one hand on her neck and pushed or held her toward or against the couch.
[51] D.R.’s evidence was significantly different. She testified that the accused picked F.R. up by the throat, held her in the air, and dropped her to her feet. D.R. maintained that F.R. was mistaken if she said she was not lifted.
[52] That is not a minor inconsistency. It goes directly to the mechanics and seriousness of the alleged assault.
[53] There was also no physical injury evidence. F.R. said she had no visible injuries, did not lose consciousness, did not vomit, and did not require medical attention. E.R. did not observe injuries and did not inspect the children.
[54] There are further concerns about contamination. The evidence established that the children discussed events with E.R. and with each other. D.R. acknowledged that E.R. helped her remember things and that there was an expectation that the stories would “jive.” Although that does not prove dishonesty, it requires caution in treating the children’s evidence as independent corroboration of one another.
[55] These concerns were also raised in the Charter application. Although I declined to stay Count 4, the same evidentiary concerns are relevant to whether the Crown has proven the count beyond a reasonable doubt. In particular, the contradiction between F.R.’s evidence and D.R.’s evidence on whether F.R. was lifted by the throat remains a central reliability problem.
[56] I accept that F.R.’s evidence may contain a core allegation of hand-to-neck contact. However, when I consider the material contradiction between F.R. and D.R., the absence of injury evidence, the delayed reporting, the contamination concerns, and for reasons set out below, I am not satisfied beyond a reasonable doubt on Count 4.
[57] This is not a finding that the event did not occur. It is a finding that, on the evidence I accept as credible and reliable, and applying the burden of proof beyond a reasonable doubt, the Crown has not proven this count.
[58] The accused is therefore found not guilty on Count 4.
Alleged assault on D.R. — Count 3
[59] D.R. testified that the accused slapped her after she refused to get him water. F.R. also testified that the accused slapped D.R. after D.R. told him to stop choking F.R.
[60] There is therefore some evidence supporting this allegation.
[61] However, D.R.’s account changed in important ways. What began as evidence of a hard slap became, under cross-examination, contact by fingertips to the cheek. D.R. was uncertain about which hand was used, which side of her face was struck, and the precise mechanics of the contact.
[62] There was no photograph of any mark or redness. No medical evidence was called. E.R. did not observe marks, redness, swelling, or bruising on D.R. and did not inspect her.
[63] Another significant issue is the evolution of D.R. as a complainant. The early May 2023 police communications appear to have focused on F.R. as the child victim. E.R. accepted that the May 13 call did not mention D.R. as a victim, and that the May 16 station interaction focused on F.R. D.R. could not clearly explain when or how it was decided that she would report being slapped.
[64] This same issue formed part of the accused’s Charter application. I did not find that the evolution of D.R.’s status from witness to alleged victim justified a stay of proceedings. However, the issue remains relevant to reliability. The absence of a clear explanation in the record for when and how D.R. became an alleged victim is one of the factors that leaves me with a reasonable doubt on Count 3.
[65] More troubling, however, was that D.R. acknowledged discussing details with E.R. and receiving assistance from E.R. in remembering what was important. Again, this does not mean the evidence was fabricated, but it affects reliability.
[66] Considering the changed description of the slap, the absence of objective injury evidence, the delay in D.R. emerging as a complainant, the contamination concerns, and for reasons set out below, I am not satisfied beyond a reasonable doubt on Count 3.
[67] This is not a finding that the event did not occur. It is a finding that, on the evidence I accept as credible and reliable, and applying the burden of proof beyond a reasonable doubt, the Crown has not proven this count.
[68] The accused is therefore found not guilty on Count 3.
Timing of disclosure by the children
[69] The timing of disclosure is important to my assessment of the child-assault counts.
[70] E.R. testified that the children told her about the alleged incident the next morning before school. D.R.’s evidence was broadly consistent with that; she said she and F.R. told E.R. on the way to school the next morning.
[71] F.R., however, testified that the disclosure happened the same night. She said she and D.R. looked for E.R., waited, then told her, and E.R. reacted by telling the accused to leave.
[72] This inconsistency matters. If F.R. is correct, E.R. knew that night and acted immediately. If E.R. and D.R. are correct, E.R. did not learn of it until the next morning. The inconsistency affects the sequence of the evening, when the accused left, and the opportunity for discussion before the matter was reported to police.
[73] This inconsistency is one of the reasons I am not prepared to rely on the child-assault evidence beyond a reasonable doubt.
May 2023 reporting sequence
[74] The May 2023 reporting sequence also raises reliability concerns.
[75] E.R.’s police contact began with concerns about private-number calls, harassment, and the accused not leaving her alone. The evidence then developed to include damage to the door and allegations involving F.R.
[76] The later allegation involving D.R. appears to have emerged after the initial police contacts. E.R. accepted that D.R. was not mentioned as a victim in the May 13 call and that the May 16 station discussion focused on F.R.
[77] The reporting delay from February to May is not determinative. There may be many reasons why a complainant delays reporting. However, in this case the delay is significant because it coincides with evidence of family discussions, possible involvement of E.R.’s parents, and later evolution of the allegations.
Alleged criminal harassment / besetting — Count 6
[78] E.R. testified that the accused repeatedly contacted her, called her from private or unknown numbers, attended or appeared near her residence, and caused her to fear for her safety.
[79] There are, in my view, significant problems with this count.
[80] E.R. could not confirm that the accused was driving the white vehicle or SUV. She did not have a licence plate. The investigating officer’s notes did not link the vehicle to the accused. At most, the vehicle evidence related to the accused’s father.
[81] Also, the phone evidence was not independently established. Police did not seize E.R.’s phone, obtain a production order, or obtain phone records confirming the number, source, or volume of calls.
[82] Further, surveillance footage was not obtained. E.R.’s evidence about cameras was inconsistent or unclear. At different points, cameras were said to exist, not be connected, have password issues, or be working later. No useful footage was produced.
[83] E.R.’s understanding of legal restrictions on the accused was uncertain. She believed he was not allowed around her or the children, but the known probation order expired in December 2020 and appears to have named E.R., not D.R. E.R. may genuinely have believed restrictions remained in effect, but the evidence did not establish a clear legal basis for that belief in 2023.
[84] Finally, the later evidence about vehicles and fear of abduction was tied in part to information from E.R.’s mother and concerns about the accused’s family, religion, possible travel to Pakistan, and the family restaurant. E.R. accepted she did not know whether the restaurant had actually been sold.
[85] While E.R. may have been fearful. However, fear alone does not prove the offence. On the totality of the evidence, I was not satisfied beyond a reasonable doubt that the accused committed criminal harassment by besetting or watching E.R.’s dwelling house, and therefore I found the accused not guilty on count 6 at the conclusion of trial.
Contamination and Family Discussion
[86] The evidence also raised concerns about contamination.
[87] D.R. acknowledged discussing the events with E.R. and F.R. She acknowledged that E.R. helped her remember important facts and that there was an expectation that the stories would “jive.”
[88] F.R. agreed that going to police was presented by E.R. as part of a solution to have the accused taken away from the family.
[89] E.R. denied telling the children what to say and said she told them only to tell the truth. I accept that this may have been her intention. However, the concern is not limited to deliberate coaching. The concern is whether, by the time the children gave statements and later testified, their memories were independent, stable, and unaffected by family discussion and a shared objective.
[90] These contamination concerns do not prove fabrication. They do, however, reduce my confidence in the independence and reliability of the children’s evidence, particularly where their accounts changed over time or conflicted on central facts.
Conclusion and Verdicts
[91] Having considered the totality of the evidence, I find that the Crown has proven Count 5, mischief under $5,000, beyond a reasonable doubt. That count is supported by E.R.’s evidence, F.R.’s evidence, and independent physical corroboration in the form of the door photographs.
[92] I am not satisfied beyond a reasonable doubt on the remaining live counts.
[93] The verdicts are therefore:
Count 1 — Attempt to choke E.R.: Not guilty
Count 2 — Assault E.R.: Stayed by the Crown
Count 3 — Assault D.R.: Not guilty
Count 4 — Assault F.R.: Not guilty
Count 5 — Mischief under $5,000: Guilty
Count 6 — Criminal harassment / besetting or watching: Not guilty
[94] The accused is convicted only on Count 5, mischief under $5,000.
The Honourable Justice Hélène Desormeau
Released: August 13, 2026
CITATION: R. v. A.A., 2026 ONSC 4692
COURT FILE NO.: CR 23-92
DATE: 2026/08/13
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
A.A.
REASONS FOR JUDGMENT
The Honourable Justice Hélène Desormeau
Released: August 13, 2026