Court File and Parties
Court File No.: Newmarket File No. 12-01084 Date: 2013-04-29 Ontario Court of Justice
Between: Her Majesty the Queen
ā And ā
Armin Zangouei
Before: Justice P.N. Bourque
Judgment
Released on April 29, 2013
Counsel:
- Martin Dionne, for the Crown
- Mychajlo Figol, for the accused Armin Zangouei
BOURQUE J.:
1The complainant is a young woman who had obviously become estranged from her family because she had gone to live with a man that her family did not approve of. She believed that they had an arranged marriage for her. She returned home one evening and the next day she alleges that she was assaulted by her brother. He faces a charge of assault and two charges of threatening.
The Evidence of the Complainant
2Aileen Zangouei is 19 years old and had left her parent's home in November 2011, to go and live with her boyfriend. She became somewhat homesick and wanted to reconcile with her family. She called her father at about 2:00 a.m. of January 26, 2012 and said she wanted to come home. Her father and mother came to pick her up at her place in Burlington to take her to the family home in Markham.
3She states that while driving home, she became hysterical and did not want to go. Somehow the emergency services were called and she told them she did not want to go. Somehow she was then back in her parent's car and was taken home. It appears that for some of this time, she was crying and perhaps hysterical. She even describes herself as screaming.
4She got home that night and says that she felt uncomfortable so she slept in between her parents in their bed. She did not describe any actions by anyone in her home as specifically making her uncomfortable. She states that she went into her brother's room (it was 4:00 or 5:00 a.m.) and greeted him although she did not think he was all that glad to see her.
5She spoke to her boyfriend on the phone before she went to sleep. She awoke later in the morning the next day and she felt that she wanted to leave. Her mother was on the phone downstairs so she went to her brother's room and got his cell phone. She went back to the parent's bedroom and called her boyfriend and said she wanted to come home. While talking, her brother stormed into the room and started to call her names and was yelling at her. He was angry that she had taken his cell phone. He was making disparaging remarks about her boyfriend. She stated that at one point the defendant said that he was going to "kill him". Her mother came upstairs and the witness went into the bathroom with the phone and locked the door.
6The defendant ran after her and the mother said "she is sick, leave her alone". The witness called her boyfriend again (from the locked bathroom), and told him that he had been right. She was crying, and actually screaming, and asking her boyfriend to come and get her.
7The witness stated that the mother and brother somehow got a key to the bathroom. The door became unlocked and the mother and defendant came into the bathroom. The mother was protecting her and the defendant was reaching around and hitting her. The witness ran out to the staircase and the defendant pushed her down 6 steps, she fell, and ran the rest of the way down.
8The witness went out the door and her mother was chasing her. The witness went to a neighbour's and there the police were called and she went away with the police.
9The witness identified several pictures taken of her. They show some slight bruising and scratching on her arm and chest. She has a slight cut to her lower lip which appears to be from her own teeth.
10In cross-examination, it was established that she had mentioned nothing to the police about being pushed or falling down the stairs. She revealed this information for the first time in court today. Shown to the witness were photographs taken by her mother who had a huge bruise on her arm. The witness stated she thought that must have come from the defendant. She was also shown pictures of the defendant which showed a large scratch on his neck. She denied that it could have come from anything that she had done. The pictures of the mother and the defendant were taken by the police the next day.
11The defence also pointed out to the witness that her parents were not religious (they are nominally Muslims from Iran), and that her story of the arranged marriage was not true. She agreed that the family was not religious but insisted that they wanted her to marry a person in Iran. Other than her say so, there does not appear to be much evidence that there is any arranged marriage for her.
The Evidence of the Defendant
12The defendant testified. It was his evidence that in October, 2011, his sister had met a man on the internet and ran away from home to be with him. He testified that the night she ran away, he and his family went out looking for her, found her briefly, but she ran away again.
13He stated that he had no dislike for her boyfriend but he did want her to come home. He stated that he and his sister used to be close. He stated that the family was not devout and his parents had recently become Christians. He denied that his family was arranging a marriage for his sister but admitted that they once talked about her perhaps marrying a cousin when she was in high school.
14He stated that on January 26, 2012, his sister came into his room at around 3:00 a.m. and they hugged. He stated that he was glad to see her home. This is in contrast to her evidence that he was not terribly happy to see her.
15He stated that the next morning, he got up and heard her talking in his parent's bedroom. He thought she was talking to herself. He went in and saw her reaching under the pillow and pulling out his cell phone. He was angry with her for taking and using his cell phone and they argued. He admits that during the argument he called her a "bitch" and a "slut". He agreed with Crown counsel that he was angry that she was using his phone and was calling her boyfriend.
16He stated that his mother came upstairs and told him to go to his room and he did. About a minute later he heard loud banging in the hall and he came out of his room and saw his mother with her arms around his sister and his sister was flailing away with punches on his mother. He states that he went up and separated the two with his arms. He denies striking his sister or causing any injury to her in doing this.
17He stated that his sister ran down the stairs, his mother followed and his sister ran outside. He went to the door and yelled to his mother to come back in. He states that during the altercation with his mother, his sister was yelling very loudly. He states that he received some scratches from the altercation but does not remember exactly how it happened and cannot say for sure that it was his sister who did it. He denies hitting his sister in any way and denies threatening her or her boyfriend.
18The defendant was not seriously shaken in cross-examination. I am a little concerned that he would become angry with his sister just because she took his cell phone. He may have been angrier than he stated.
The Evidence of Zeinab Khormaeyour
19Zeinab Khormaeyour is the mother of the complainant and the defendant. She stated that the family has never been Muslim and she has recently been baptized a Christian. She stated that she never sought an arranged marriage for her daughter. She stated that she and her husband were not happy with her daughter's new boyfriend as they thought he may be using her to get citizenship in Canada. She was unhappy when she left in October 2011, but stated that she was in contact with her daughter and went to dinner with her on more than one occasion. She also tried to get the daughter (with her new boyfriend) to come and live with them. In her words, the parents had become reconciled to her being with this man and they could love the person that her daughter loved.
20She stated that in the early morning hours of January 26, 2012, the daughter called her on her cell phone and wanted them to pick her up. The daughter stated that she did not feel safe where she lived. She and her husband picked her up and the daughter became agitated and she called 911 as she thought her daughter was having a panic attack. They got home and the daughter slept in the bed with her. She stated that her husband slept in another room.
21The next morning she stated that she was downstairs and she heard her son and daughter arguing and she came upstairs. She told the defendant to go to his room and he did. She stated that her daughter then locked herself in her bathroom. The witness banged on the door and the daughter then opened the door quickly and rushed out of the bathroom and struck the witness on her head with her fist. The witness then tried to restrain the daughter, held onto her, and the daughter was flailing and striking the witness about the head and shoulders. They moved out into the hall and the witness called for the defendant, who came and put himself between them. The daughter then ran downstairs and was calling 911 on her cell phone and then ran outside.
22The witness states that she was only trying to hold the daughter to "calm her down" and that the defendant only separated them and did not strike anyone. Exhibit 3 and 4 are a series of photos taken by the police the next day showing a very severe bruise to the left arm of the witness and a slight bump on her forehead.
Analysis
23The crown bears the burden of proving these allegation beyond a reasonable doubt. As stated in R. v. Lifchus:
the burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
reasonable doubt is not a doubt based upon sympathy or prejudice;
rather, it is based upon reason and common sense;
it is logically connected to the evidence or absence of evidence;
it does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
more is required than proof that the accused is probably guilty - a judge or jury which concludes only that the accused is probably guilty must acquit.
24The defendant has presented an explanation for the events, which if believed would afford him a defence to the charges. As stated in R. v. W.D., if I believe the defendant, then I must acquit. Even if I do not believe him, I must still ask myself if I am left in reasonable doubt by his evidence, and even if not left in a reasonable doubt, I must assess the evidence I do accept and see if it convinces me beyond a reasonable doubt of the guilt of the defendant.
25The explanation by the defendant is supported by the evidence of his mother. Neither the defendant nor his mother were seriously challenged upon cross-examination. In addition, the photographic evidence shows the mother and the defendant with clearly the more serious injuries, which could support their assertion that the daughter was the aggressor in the circumstances of this case.
26The defendant clearly started an argument with his sister. He admits that. The question is, has the Crown proven beyond a reasonable doubt that this argument led to him assaulting his sister. I cannot say that I am without doubt. The discrepancies in the complainant's story are serious. Not mentioning to the police that you have been pushed down a flight of stairs is a serious omission. The allegations of an arranged marriage and her parents "throwing" her out of the house in October is not borne out by their subsequent actions to reconcile with her. The complainant's return to the home was tumultuous, from the call in the middle of the night, to the anxiety attack in the car, to the argument with her brother. Of all the persons in this story, the complainant's overall actions were the least rational.
27The defendant's story is not without blemish, but with the support of his mother, I must say that it leaves me with a reasonable doubt.
Conclusion
28Being unable to dismiss the explanation afforded by the defence and taking into account the discrepancies in the complainant's evidence, I must acquit the defendant of all charges.