COURT OF APPEAL FOR ONTARIO
WEILER, SIMMONS and CRONK JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
MOHAMAD OWJEE
Appellant
Austin M. Cooper Q.C. and Ngai On Young for the appellant
Frank Au for the respondent
Heard: January 10 and 11, 2008
On appeal from the convictions entered by Justice Janet Wilson of the Superior Court of Justice on January 29, 2007.
1Following a trial before Wilson J., the appellant was acquitted of sexual assault but convicted of assault and uttering a threat. The complainant in each of the charges was the appellant’s wife. The charges were laid in November 2004, shortly after the parties separated, and arose from events that allegedly occurred prior to their separation.
2The appellant raises three issues on his appeal against the convictions. In his first ground of appeal, the appellant submits that the trial judge erred by relying on a letter dated November 7, 2005 from the complainant’s lawyer in matrimonial proceedings to the appellant’s lawyer in the matrimonial proceedings as confirming a history of violence in the marriage. For reasons that I will explain, I would allow the appeal on this ground. It is therefore unnecessary that I deal with the remaining grounds of appeal.
Background
3The appellant came to Canada from Iran at the age of fifteen and eventually established himself as a real estate agent. In 2000, he visited Iran and married the complainant, who moved with him to Canada. According to the complainant, the appellant was a domineering and abusive spouse. Amongst other concerns, the complainant said she was unable to go out without the appellant’s permission, was not allowed to have friends, and had no independent access to money.
4The complainant also alleged that the appellant abused her physically. She claimed that during one incident, he ripped off a dress she was wearing, threw her to the ground, grabbed her by the hair, punched her and hit her with his slippers. In relation to another incident, the complainant said the appellant punched, kicked, slapped, and choked her, and warned her, “Don’t do something that tonight will be the last night of your life.” The complainant also alleged that the appellant forced her to have anal intercourse against her will.
5In November 2005, the complainant, the appellant, and their lawyers attended a four-way meeting in an effort to settle an outstanding spousal support application commenced by the complainant in January 2005. Following that meeting, the complainant’s lawyer sent the November 7, 2005 letter to the appellant’s lawyer. The letter stated that the complainant was “willing to make one very last chance at marital reconciliation.” However, the letter also said, “in light of the acrimonious and violent past between her and her husband, she is not prepared to even consider this possibility, without certain safeguards.”
6Two of the terms proposed in the November 7, 2005 letter were that the appellant purchase a condominium and a car for the complainant, to be registered in the complainant’s name. The letter also indicated that as part of the proposal, the parties would engage in mediation and that the complainant would “abandon or withdraw her claim for spousal support, and all legal actions she is currently maintaining against [the appellant] in court.”
7The thrust of the defence position at trial was that the complainant’s evidence was not worthy of belief because of the lack of any physical evidence to support her allegations and because of lies and inconsistencies in her evidence. Defence counsel at trial submitted that the complainant lied when she claimed that a third party present at the four-way meeting suggested that the appellant might buy her a house and a car if she went back and lived with the appellant, and when she said she had not actually seen the November 7, 2005 letter prior to trial. Defence counsel claimed that the letter was an attempt at extortion, and that the complainant lied to distance herself from it.
The Trial Judge’s Reasons
8The trial judge accepted the complainant’s evidence and rejected the appellant’s evidence. However, as she had a reasonable doubt concerning whether the requisite mens rea for sexual assault had been proven, the trial judge acquitted the appellant of that charge.
Positions of the Parties on Appeal
9In making findings concerning the complainant’s credibility, the trial judge referred to the November 7, 2005 letter on three occasions. The appellant submits that the November 7, 2005 letter was a self-serving, prior consistent statement and that the trial judge committed a reversible legal error by relying on it to confirm the complainant’s allegations of violence and ultimately the complainant’s credibility.
10The Crown does not agree that the trial judge used the November 7, 2005 letter impermissibly. The letter was introduced into evidence at trial by the defence and relied on as demonstrating the complainant’s motive for complaining to the police. Considered in this context, the trial judge’s reasons reflect nothing more than an effort to resolve an issue raised by the defence: whether the November 7, 2005 letter was an attempt at extortion or a reasonable proposal to protect the complainant’s interests while exploring the possibility of reconciliation.
Analysis
11As the complainant did not write the November 7, 2005 letter, I would not characterize it as a prior consistent statement. Rather, the statements in the letter referring to abuse during the marriage were hearsay and I conclude that the trial judge used the letter impermissibly for the truth of its contents and to bolster the complainant’s credibility, and thereby committed reversible error.
12The first occasion on which the trial judge referred to the November 7, 2005 letter was under the heading “Credibility.” After rejecting defence counsel’s submission that the complainant’s evidence at trial was inconsistent with her evidence at the preliminary inquiry, the trial judge concluded that the complainant’s evidence with respect to the history of the marriage “was entirely consistent, made sense and was reliable.” The trial judge stated, “In short, I believe her.”
13The trial judge then said she would address later in her reasons alleged inconsistencies in the complainant’s evidence concerning what happened at the four-way meeting and the November 7, 2005 letter. However, before turning to the appellant’s credibility, the trial judge set out the following conclusions concerning the four-way meeting and the November 7, 2005 letter:
Although I am left in doubt, as I will outline, with respect to what happened in a private discussion at that four-way meeting and who initiated the discussions, I do not conclude that [the complainant] lied and therefore should not be believed with respect to the events that transpired during the marriage.
In fact a review of the tone and purpose of the November 7th, 2005, letter which explores possible reconciliation written over a year after the parties separated, confirms a history during the marriage of violence. The proposed terms in the letter attempt to rectify the problems of dominance and control by [the appellant] by establishing [the complainant] with independence both psychologically, physically and financially. [Emphasis added.]
14The second and third occasions on which the trial judge referred to the November 7, 2005 letter were under the heading “The Four-Way Meeting and the November 7, 2005 Letter.” The trial judge found that the complainant was mistaken in her trial evidence when she testified that she had not seen the November 7, 2005 letter prior to trial. The trial judge then stated her conclusion that “the extortion theory does not hold water” and noted the proposal in the November 7, 2005 letter that the appellant would buy the complainant a one-bedroom condominium and a car prior to attempting reconciliation. With respect to this letter, the trial judge said:
The November 7th, 2005 letter obviously speaks for itself, but in my view it confirms the history of violence in the marriage. [Emphasis added.]
15After setting out certain excerpts from the November 7, 2005 letter dealing with the history of violence, the trial judge reviewed the evidence concerning what happened at the four-way meeting and who instigated the discussion about obtaining a condominium and a car. The trial judge concluded:
What happened in the private meeting between [the third party] and [the complainant] based upon their conflicting evidence is unclear to me. However, this is a collateral matter to the matters before the court. On either person’s version of the events of what transpired during that private meeting I do not conclude that the November 7th, 2005 letter is an extortion letter seeking to obtain financial advantage in exchange for withdrawing the family and criminal proceedings. The criminal proceedings once initiated are in the hands of the Crown.
The November 7th, 2005 letter confirms the history of violence in the marriage and provides a reasonable mechanism to allow [the complainant] and [the appellant] to explore reconciliation while providing [the complainant] with physical, emotional and financial independence. [Emphasis added.]
16Although it may have been open to the trial judge to consider the allegations of violence in the November 7, 2005 letter for the purpose of assessing whether it was an attempt at extortion, in my view, the trial judge went beyond this limited use of the letter. In my opinion, the only reasonable interpretation of the trial judge’s reasons is that she used the November 7, 2005 letter impermissibly as proof of the truth of its contents and to bolster the complainant’s credibility.
17The trial judge repeatedly referred to the November 7, 2005 letter as “confirming” a history of violence in the marriage. Had the trial judge merely been considering the effect of the allegations of violence on the proper interpretation of the November 7, 2005 letter, it would have been unnecessary for the trial judge to have referred to the letter as “confirming” anything. Nowhere in her reasons did the trial judge refer to any limited purpose for which she was using the letter. Moreover, the letter was written about a year after the criminal charges were laid and about ten months after the support application was launched. Accordingly, the statements in the letter about violence were not capable of rebutting an alleged motive to fabricate the allegations.
18As I have said, the statements in the November 7, 2005 letter referring to a history of violence were hearsay and were not admissible for the truth of their contents. In my view, the trial judge’s findings indicate that she used the letter impermissibly for the truth of its contents to confirm the complainant’s allegations.
19As the trial judge’s references to the November 7, 2005 letter formed an integral part of her assessment of the complainant’s credibility, I see no option but to find that they amount to a reversible error.
Disposition
20Based on the foregoing reasons, I would allow the appeal, set aside the appellant’s convictions, and order a new trial.
RELEASED: May 26, 2008 “KMW”
“Janet Simmons J.A.”
“I agree K.M. Weiler J.A.”
“I agree E.A. Cronk J.A.”
