Court File and Parties

Court File No.: CR-24-10000021-00AP

Date: 2026-02-23

Ontario Superior Court of Justice

Between: His Majesty the King – and – Hacar Khesro-Mohamad-Rasheed, Appellant

Counsel: Jason Balgopal for the Crown Ahmad Karzai for the Appellant

Heard: January 14, 2026

Ruling on Summary Conviction Appeal

C. Boswell J.

[1] The appellant, Mr. Rasheed, and the complainant, Mohamad Sulyman, were friends. They came from the same Kurdish community in Sulaymaniyah, Iraq. On November 9, 2019, they were together at the complainant's apartment in Toronto, along with a woman named Kelly Farkas, whom the appellant had met at a bar hours earlier. The erstwhile friends began to argue. The complainant slapped the appellant. In response, the appellant punched the complainant in the face multiple times, knocking him unconscious and causing significant facial injuries.

[2] The appellant was charged with assault causing bodily harm. His trial proceeded over seven days between the summer of 2021 and the fall of 2022. He was convicted by the trial judge for reasons delivered February 23, 2023.

[3] In September 2023, the appellant moved to re-open the case and to call Ms. Farkas as a witness. She had not testified at the original trial. At that time, neither the appellant nor the complainant could remember her name. The trial judge granted the appellant's motion. The guilty verdict was set aside. Ms. Farkas testified on November 2, 2023. In the end, her testimony made no difference to the outcome of the case. The trial judge convicted the appellant for a second time on January 22, 2024. He was subsequently sentenced to a four-month conditional sentence and 18 months probation.

[4] The appellant appeals the conviction. He asserts that the trial judge made three errors. First, she applied an uneven level of scrutiny to the testimony of the complainant, on the one hand, and Mr. Rasheed and Ms. Farkas, on the other hand. Second, she misapprehended certain evidence – in particular, evidence that the complainant repeatedly punched the appellant in the back of the head. Finally, she failed to properly apply the rule in R. v. W.(D.), [1991] 1 S.C.R. 742 ("W.D.").

[5] For the reasons that follow, the appeal is dismissed.

The Evidence at the Original Trial

[6] The original trial featured evidence from four witnesses: two police officers (one who took photographs of the complainant's injuries and one who interviewed the appellant), the complainant, and the appellant.

[7] Much of the evidentiary record was uncontentious. The appellant and complainant were friends who bonded over their shared Kurdish backgrounds. Estimates of how long they had been friends varied from about two months to four months, but nothing turns on the difference.

[8] The complainant and appellant both attended a fundraiser for the Kurdish community in Syria during the evening of November 8, 2019. They left separately. The appellant went downtown, while the complainant went home.

[9] The appellant met Ms. Farkas at a bar downtown. He brought her back to the complainant's home in the early morning hours of November 9, 2019. The three of them drank tequila shots and the appellant and Ms. Farkas smoked some marijuana. The complainant testified that they each drank two to three shots. The appellant testified that he had only one shot, while the complainant and Ms. Farkas had two shots each.

[10] At some point, Ms. Farkas ended up lying on the bed in the complainant's bedroom. How she got there was a matter of some disagreement. The complainant said she fell asleep on his shoulder on the couch and so he carried her into his room and placed her on the bed. The appellant said Ms. Farkas made her own way, unaccompanied, to the complainant's bedroom.

[11] Accounts diverged in terms of how things unfolded after Ms. Farkas went to the bedroom.

[12] According to the complainant, the appellant went into the bedroom after the complainant had left Ms. Farkas there. The complainant said he went to check on them and found the appellant lying on the bed beside Ms. Farkas, stroking her thighs and stomach. Ms. Farkas was passed out. That concerned the complainant, who said he told the appellant to leave her alone. He said the appellant responded, "Go, and leave us alone." They began to argue about it and their arguing woke Ms. Farkas, who started shouting, "Oh my God, I can't do this". All three of them then made their way to the living room.

[13] According to the appellant, the complainant began to stroke Ms. Farkas' thigh as they all sat on the couch together. That led to an argument between the complainant and appellant. While they were arguing, Ms. Farkas went and laid down on the complainant's bed. A while later, the complainant went into the bedroom. The appellant said he followed shortly after and found the complainant standing by the bed talking to Ms. Farkas. The appellant said he left the room, but texted the complainant to say "leave it alone". Shortly thereafter both the complainant and Ms. Farkas came out of the bedroom. The complainant appeared angry.

[14] The evidence of the complainant and appellant was consistent that they argued in the living room after they and Ms. Farkas had exited the complainant's bedroom. They were also consistent about the fact that during the argument, the complainant slapped the appellant on the side of the face. The complainant is roughly 20 years older than the appellant. He explained that in the Kurdish culture, it is not uncommon for an older brother to slap a disrespectful, younger brother. He likened his slap of the appellant to one between such brothers.

[15] What happened after the slap was the most contentious part of the evidentiary record.

[16] According to the complainant, he told the appellant to leave. The appellant then grabbed him by the shirt and pushed him to the ground. The appellant sat on his chest and began to punch him in the face. He estimated that the appellant punched him maybe ten times. The complainant said he was fearful for his life and punched the appellant back a few times in the back of the head. The appellant then got off him and left.

[17] According to the appellant, he and the complainant exchanged insults. The appellant said the complainant told him he was not a loyal friend. In response, he told the complainant that he was "worth nothing". The complainant then attacked him and hit him. He grabbed the appellant by the throat and put him in a choke hold (a headlock) and punched him in the back of the head. The complainant also tried to poke out his eye. The appellant said he managed to break free. When the complainant moved to attack him again, he punched him in the face, once or twice. The complainant fell and the appellant left.

[18] The complainant testified that he called 911. An ambulance conveyed him to Sunnybrook Hospital where he stayed overnight. He said he suffered a fractured nose, a fractured bone by his eye, and a fractured bone in his throat. He suffered other cuts and bruises on his face.

[19] A photograph taken by the police at the hospital and entered into evidence, demonstrates that the complainant had what appears to be a broken nose, with swelling, slight disfigurement, and a laceration. He had a swollen left cheek, and his left eye was swollen shut. It appears he may have had an abrasion on his forehead. And he had dried blood all over his face.

The Original Trial Judgment

[20] In her original judgment, the trial judge laid out the history of the matter and the parties' different versions of events. She recognized that there was no dispute that the appellant struck the complainant in the face and thereby caused him bodily harm. The essential elements of the charged offence were prima facie made out. The disputed issue for determination was whether the appellant had acted in lawful self-defence.

[21] The trial judge correctly observed that the onus was at all times on the Crown to disprove, beyond a reasonable doubt, that the appellant had acted in self-defence. She also correctly identified the essential elements of the defence of self-defence. Citing the leading decision of R. v. Khill, 2021 SCC 37, she observed that the defence operates to exculpate an accused person where he raises a reasonable doubt grounded in the three conditions set out in s. 34(1) of the Criminal Code: (i) the accused must reasonably believe that force is being used against them or another person (the "catalyst"); (ii) the subjective purpose of responding to the threat must be to protect oneself or another (the "motive"); and (iii) the response must be reasonable in the circumstances (the "response").

[22] The outcome of the case turned on the trial judge's assessment of the reasonableness of the appellant's response to being slapped. She rejected the appellant's evidence that the complainant had placed him in a "choke hold", had tried to poke his eye out, and had punched him some ten times in the back of his head. She accepted the evidence of a police officer who observed no injuries on the appellant's face, neck, or the back of his head. And she accepted the evidence of a second police officer who testified as to a "noticeable" absence of any bruising or more serious cuts or injuries to the complainant's hands. The catalyst, she concluded, was the slap, and nothing more.

[23] Though not explicit in the trial judge's reasons, it is implicit that she concluded that the appellant acted to defend himself against the slap. She went on to focus on the reasonableness of the response.

[24] It was necessary for the trial judge to make a finding about what the appellant's response to the slap consisted of.

[25] The appellant testified that in response to the complainant's attack, he struck him once or twice. The trial judge rejected that evidence. She identified several significant problems with the appellant's evidence. I have already noted that she rejected his evidence about being placed in a headlock and struck repeatedly in the back of the head. In addition, the trial judge found the appellant's testimony that he had not seen a lot of blood where the two men had been fighting to be incredible, given that there was a pool of blood large enough to result in coagulation documented at the scene. She also found the appellant's testimony that he had only struck the complainant once or twice to be "astonishing" in light of the objective evidence provided by the documented injuries to the complainant's face.

[26] The trial judge accepted the complainant's evidence regarding the way in which the fight played out. She found that the hospital photographs of the complainant's face corroborated the fact that he had been struck multiple times. The injuries he suffered were not contested.

[27] The trial judge ultimately concluded that the appellant's response to being slapped was unreasonable and she provided detailed reasons for that conclusion. She was satisfied beyond a reasonable doubt that the appellant did not act in self-defence and, in the result, convicted him of assault causing bodily harm.

The Evidence at the Re-Opened Trial

[28] The sole witness to testify at the re-opened trial was Kelly Farkas.

[29] Ms. Farkas testified that she met the appellant at a bar called Drums and Flats on the night in issue. She had been at the bar for quite a while before the appellant arrived and she had consumed "at least three drinks." She told the appellant her name was "Ashley". According to her, she had roughly two further drinks with the appellant at the bar. When the waitress announced last call, the appellant suggested they go over to his friend's place. She agreed. The friend was the complainant.

[30] Ms. Farkas further testified that she had a couple more drinks at the complainant's residence and smoked some marijuana. She said she was feeling lightheaded, and the appellant suggested she go lay down, which she did. Some time later, she heard arguing and came out of the bedroom. She said the complainant was being aggressive and he struck the appellant in the face. She said the appellant did not react. The two men exchanged some words, then the complainant grabbed the appellant by the throat. A struggle ensued, the appellant broke free then punched the complaint two, three, or maybe four times. The complainant fell to the floor, unconscious.

[31] Ms. Farkas said that the appellant then left the residence. She said she did not know what to do, so she left as well. She did not contact emergency responders. She said she saw them arrive as she was outside the complainant's building waiting for her friend to come and pick her up. Police and ambulance arrived. She said nothing to them.

[32] Under cross-examination, Crown counsel put to Ms. Farkas that she had filed an affidavit in support of the defence motion to re-open the trial. In the affidavit she said the complainant insulted her when she came out of the bedroom. She agreed that she did not understand the language he was speaking. She explained that she was an expert in clinical psychology and that his demeanour and his gestures were insulting to her.

[33] Ms. Farkas also claimed to be an expert in two martial arts disciplines and opined that anyone with martial arts training knows that the injuries to the complainant's face could have been caused by a couple of quick strikes.

The Second Trial Judgment

[34] In her second reasons for judgment, the trial judge reiterated her previous findings with respect to the testimony offered by the complainant and the appellant at the original trial. She then assessed the evidence of Ms. Farkas, in the context of all of the other evidence that had previously been adduced.

[35] She found that Ms. Farkas was an unreliable historian. She had consumed at least seven drinks and had smoked marijuana. She was so inebriated that she had to go lay down in the bedroom of a stranger, for a period of time she was unclear about.

[36] Despite the fact that the altercation had taken place four years previously, between two men she had just met, who spoke a language she did not understand, and despite the fact that her observations were made at a time when she was significantly inebriated, she professed to be an expert in human behaviour and could confidently opine that the appellant was "stunned" and "mentally regulating himself".

[37] The trial judge concluded that Ms. Farkas was too intoxicated to be reliable and that her overstated confidence was implausible. She was, in the trial judge's view, neither credible nor reliable.

[38] In the result, Ms. Farkas' evidence was inconsequential to the outcome of the case. A conviction was registered for the second time.

The Arguments on Appeal

[39] As I noted, the appellant advances three grounds of appeal. First, the trial judge applied uneven scrutiny as between defence-led evidence and Crown-led evidence. Second, that she misapprehended evidence regarding the number of times the complainant struck the appellant. Third, that she failed to properly apply the principles of R. v. W.D., as above.

[40] I will address each in turn.

(i) The trial judge did not apply uneven scrutiny to the evidence

[41] A complaint about uneven scrutiny is a complaint about the manner in which the trial judge conducted her assessment of the credibility or reliability of one or more witnesses.

[42] The appellant argues that the trial judge was far more forgiving of inconstancies in the testimony of the complainant than she was when assessing the credibility of the appellant and his witness, Ms. Farkas.

[43] The trial judge, the appellant submits, dismissed as "peripheral", material inconsistencies in the complainant's testimony, including:

• contradictory statements about when he arrived at the fundraiser on the night in question;
• inconsistencies about whether the complainant exchanged text messages with the appellant before the incident in issue;
• differing accounts of how the appellant entered the complainant's apartment; and
• most significantly, offering different accounts of how many times he was struck, ranging from 10 times, to "tens of times", to "1,000 times".

[44] On the other hand, the trial judge scrutinized defence-led evidence "far more aggressively". For instance,

• She rejected the appellant's evidence that he had struck the complainant only twice, which was partially corroborated by Ms. Farkas, based on the extent of the complainant's injuries;
• She attached little, if any, significance to evidence of a text message sent by the appellant to the complainant that read, "Wazi le bena" (translated as "leave it alone"), when that evidence provided corroboration of the appellant's account of how the physical altercation developed; and,
• Most significantly, she rejected Ms. Farkas' evidence as unreliable due to intoxication when Ms. Farkas was not directly asked about her level of intoxication and its impact on her memory.

[45] The appellant further argues that the trial judge credited the complainant for admitting facts that arguably reflected poorly on him, including that he was drinking at the fundraiser, that he slapped the appellant, and that he tried to hit the appellant in the back of the head while the appellant was punching him. On the other hand, she failed to similarly credit the appellant for admitting facts that might otherwise put him in a poor light, such as taking women back to the complainant's home for sex, drinking, and smoking marijuana.

[46] Finally, the appellant argues that the trial judge found Ms. Farkas' testimony to be unreliable based on her consumption of alcohol but appeared unconcerned about the effect of alcohol consumption on the complainant's memory. Moreover, she overlooked problems with the complainant's memory including the fact that he forgot that he had reviewed his police statement before testifying and that he had spoken to his landlady when he arrived home from the fundraiser.

[47] It is well-settled that credibility assessments are the province of the trial judge. They attract significant deference on appeal. See, for instance, R. v. G.F., 2021 SCC 20 at para. 99. Indeed, even if an appellate court has a different opinion of the evidence than the trial judge, the trial judge's assessment of the credibility of a witness will not be disturbed unless it can be demonstrated that she committed a palpable and overriding error. See R. v. Gagnon, 2006 SCC 17, at para. 10.

[48] The deference afforded to trial judges' credibility findings is grounded in the fact that the trial judge has the "overwhelming advantage of seeing and hearing the witness – an advantage that a written transcript cannot replicate." See R. v. N.S., 2012 SCC 72, at para. 25.

[49] Appellate courts have repeatedly recognized that a complaint about a trial judge's credibility findings based on an assertion of uneven scrutiny is a "notoriously difficult ground of appeal to succeed on." See G.F., at para. 99 and R. v. Kiss, 2018 ONCA 184 at para. 83. The Court of Appeal recently re-affirmed the high threshold for establishing uneven scrutiny in R. v. S.K., 2023 ONCA 733 where they held, at para. 46, citing R. v. Chanmany, 2016 ONCA 576, at paras. 26-28:

We begin with an observation repeatedly made in the jurisprudence of this court. This "uneven scrutiny" argument is one that is difficult to make successfully. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial.

An appellant who advances an "uneven scrutiny" argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment.

Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge's reasons, or elsewhere on the record, that demonstrates that the trial judge had applied different standards in assessing the competing versions. [Citations omitted.]

[50] In my view, there is no basis to interfere with the trial judge's credibility findings. The record reflects no palpable or overriding error. As the Supreme Court made clear in G.F., at para. 100, trial judges do not have to apply "parallel or symmetrical analysis" to every witness.

[51] The trial judge was alive to the inconsistencies in the complainant's evidence. She understood that he could be a difficult witness and dramatic at times. But she concluded that the core of his evidence was consistent and credible. It was open to her to reach that conclusion. There really was no serious dispute that the complainant slapped the appellant and that the appellant responded by punching the complainant in the face multiple times. The complainant's version of events was, the trial judge found, consistent with his physical injuries. It was open to her to reach that conclusion and she made no error in doing so.

[52] The focus of the trial was on the reasonableness of the appellant's response to being slapped. On that issue, the appellant's evidence was rejected. It was rejected because it was simply not consistent with the physical damage done to the complainant's face.

[53] The appellant testified that when he freed himself from the complainant's grip, "chances are that once or twice I might have hit him. Might have hit him in the face. Might."

[54] Candidly, I agree with the trial judge that this aspect of the appellant's evidence is astonishing, considering the documented injuries to the complainant's face. His account was not believable or reliable on this central point.

[55] The trial judge rejected Ms. Farkas' evidence for different reasons, some of which went to her credibility and others to her reliability. The evidentiary record provides ample support for her findings. She made no palpable or overriding error in her assessment of Ms. Farkas' evidence.

[56] This ground of appeal fails.

(ii) The trial judge did not misapprehend the evidence

[57] Like arguments based on assertions of uneven scrutiny, appeals based on claims of misapprehension of evidence are similarly subject to a stringent standard. Chief Justice Tulloch recently described the standard in R. v. Yizhak, 2026 ONCA 100, at para. 6, as follows:

The error must be "readily obvious", "real rather than speculative", and plain in the reasons. It must concern material evidence and play an essential role in the reasoning process: R. v. B.B., 2025 ONCA 318, at para. 4 (citation omitted), aff'd 2026 SCC 1.

[58] The appellant identified two aspects of evidence he says the trial judge misapprehended.

[59] First, the trial judge found that the complainant had a chipped tooth. The appellant says the complainant never said he had a chipped tooth. This assertion may be quickly dealt with. Scenes of Crime Officer Justice Lee documented the complainant's injuries. He noted a chip to the upper right front tooth. The documented injuries were not disputed at trial. The trial judge made no mistake about the chipped tooth.

[60] Second, the appellant submits that the trial judge failed to address the fact that the complainant was punching the appellant in the back of the head in her assessment of the self-defence argument. The trial judge suggested that a "one punch response" should have been sufficient, but it may not have been sufficient if the complainant was continuing to punch the appellant in the back of the head.

[61] In my view, the appellant's submissions do not establish a misapprehension of evidence. The trial judge did not ignore the evidence about the complainant punching the appellant in the back of the head. But those strikes were a weak attempt by the complainant to defend himself against what the trial judge accepted was a savage beating by the appellant. Those strikes left no discernable marks on the appellant. The trial judge made no "obvious error."

[62] This ground of appeal fails.

(iii) The trial judge was faithful to the principles in W.D.

[63] The Supreme Court's decision in W.D. reminds trial judges, where credibility is an important issue in a criminal case, to apply the reasonable doubt standard to any exculpatory evidence tendered by the accused, including, but not limited to, the accused's own testimony. Where an accused person testifies, the trial judge must turn her mind to the question of whether, considered in the context of the evidence as a whole, the accused's evidence raises a reasonable doubt as to guilt.

[64] W.D. offers a well-known formula that hedges against the error of approaching conflicting evidence, where an accused testifies, as a credibility contest. It reminds triers of fact that even where the evidence of an accused person is rejected, it may yet raise a reasonable doubt. And even if it does not raise a reasonable doubt, the Crown still has the onus of establishing each essential element of a charged offence beyond a reasonable doubt, before a finding of guilt may be registered.

[65] Trial judges are not required to explicitly cite the principles of W.D. and rigidly adhere to the formula in the way it is set out in the W.D. decision. What matters is that the substance of the W.D. instruction be respected. See R. v. Dinardo, 2008 SCC 24, at para. 23. Whether the substance has been respected in any particular case requires a reading of the trial judge's decisions as a whole.

[66] The trial judge expressly adverted to the principles of W.D. in the first judgment at paras. 16-17 and second judgment at paras. 6-8. While it is possible, of course, for a trial judge to correctly refer to the principles of W.D. and then fail to properly apply them, I do not find that to have been the case here.

[67] The trial judge explained why she rejected the appellant's evidence and why it did not raise a reasonable doubt. She further explained why the evidence that she did accept – notably the complainant's account of the events in issue, supported by his documented injuries – satisfied her beyond a reasonable doubt that the essential elements of the offence had been proven by the Crown.

[68] Recall that there really was no issue here that the appellant assaulted the complainant and caused him bodily harm. The real issue was whether the appellant acted in self-defence. The trial judge found that he did not, based on her finding that his response was not reasonable. Her findings are entitled to deference.

[69] In the second judgment, the trial judge explained why she rejected Ms. Farkas' evidence as neither credible nor reliable. In the end, it made no difference to the analysis previously conducted. To be clear, rejected evidence may yet raise a reasonable doubt about guilt. And I recognize that the trial judge did not expressly state that Ms. Farkas' evidence, when considered in the context of all of the other evidence, including the appellant's testimony, did not raise a reasonable doubt. But that conclusion is, in my view, implicit in the trial judge's reasons for judgment.

[70] Again, the outcome of the case boiled down to the trial judge's assessment of the appellant's response to being slapped. She concluded:

There is no dispute Sulyman slapped Rasheed first. The photos of Sulyman in the hospital depict numerous injuries to his face and head sustained in that altercation. I find those injuries were not caused by one or two punches as Rasheed testified. After having been slapped, Rasheed could have left the apartment, or pushed Sulyman away, or even punched him. However, I find that Rasheed, the younger, stronger, heavier, more sober of the two, punched Sulyman numerous times about the face and head knocking Sulyman unconscious. His response to a slap in the face was an unreasonable one, and his beating of his friend was not self-defence.

[71] The record amply supports the trial judge's findings.

[72] There was no W.D. error.

[73] This ground of appeal fails.

[74] In the result, the appeal is dismissed.

C. Boswell J.

Released: February 23, 2026