ONTARIO COURT OF JUSTICE DATE: 2024·06·24
BETWEEN:
His Majesty the King
— and —
Mohammed Bani-Ahmad
Judgment
O. Delgado ............................................................................................. Counsel for the Crown R. Stern ............................................................................................ Counsel for the Defendant
Table of Contents: R. v. Mohammed Bani-Ahmad
I. Introduction 2 II. The Evidence 2 A. The Complainant – May 9 th 2021 2 B. The Neighbour 4 C. The Doctor and Medical Evidence 4 III. The Criminal Law Framework 4 A. The Presumption of Innocence 4 B. The Guidance of W.(D.) 5 C. Reasonable Doubt 5 D. Credibility 5 IV. Issues at Trial 6 A. Delayed Disclosure 6 B. The Complainant Lied to the Police 7 C. Delayed Investigation 7 D. Bias and Motive to Fabricate 8 E. The Nose 9 F. The Children’s Demeanour 10 G. The Neighbour and the Audio Recording 11 V. Conclusion 12
I. Introduction
1The defendant is charged with several criminal allegations arising out of his relationship with his former spouse. At the commencement of trial, the defendant pled guilty to failing to comply with a release order [1] on one Information and a second fail to comply with release order count on a second Information. [2] The facts were adduced by way of written agreed statement.
2The defendant then entered a not guilty plea to three counts: (1) assault cause bodily harm, (2) fail to comply with a release order (May 9 th , 2021), and (3) obstruct justice. [3]
3The central issue at trial was the credibility and reliability of the complainant. Trial judges have a responsibility to clearly explain the reasoning behind credibility and reliability assessments or risk reversible error: R. v. Vuradin, 2013 SCC 38, at para. 11; R. v. Dinardo, 2008 SCC 24, at para. 26.
4The purpose of this written judgment is to explain why, having regard to the criminal standard of proof, I am in a state of reasonable doubt. The defendant is found not guilty.
II. The Evidence
A. The Complainant – May 9 th 2021
5The complainant testified that on the date of the incident the defendant was within the family residence despite her awareness of court ordered conditions prohibiting his presence. She and the defendant became involved in an argument over money and the issue of travelling back to their country of origin. [4]
6The complainant explained the background to the argument. In March 2021 she had attempted to go back to visit friends and family in their home country. She reserved tickets with the defendant’s his credit card. The defendant cancelled the tickets. He advised her that he had cancelled the tickets because he wished to travel with his spouse and the children together.
7On May 9 th , 2021, the subject came up again. The complainant explained that she did not want to travel with the defendant because of the court order prohibiting contact. The defendant’s position was he would travel with them whether or not she agreed.
8The complainant testified that this conversation occurred on the third floor of the residence near the children’s bedrooms. At first the conversation was “normal” but when the complainant told the defendant she did not wish to travel with him he began to yell. Then the defendant shoved her in the chest area with a significant amount of force several times. As a result of the shoves, she had pain on her chest and could not breathe. At the time there was a large height and weight differential between the two.
9The complainant testified that she retaliated by pushing the defendant on his chest and telling him to leave. In addition, the children started yelling at the defendant to stop in a high tone of voice.
10The complainant went to leave the room. The defendant grabbed her by her hair, and bodily pulled her by her hair some fifteen to seventeen metres down the hallway from the door of the children’s room to the marital bedroom. The children were yelling and screaming in the English language. The eldest child pushed his father and told him to stop. The children were screaming stop in English. The complainant was saying “leave me”, “don’t pull”, and “stop” in their mutual mother tongue.
11At the beginning of the stairs near the bedroom door she pushed him on his chest. As a result, he released his grip on her hair. They were about a foot away from the beginning of the stairs when the defendant kicked her with his foot striking her in her stomach. This action caused her to fall down the stairs approximately six or seven steps. As she fell, she hit her nose on the railing and edge of the stairs.
12In the aftermath of the injury to her nose the complainant washed her face in the bathroom and calmed down. During this time the defendant asked her about the location of the family passports. He went to search for those passports. Then the defendant left. Approximately ten to twelve minutes after the assault, the police arrived at the door.
13The complainant testified that she suffered significant injury as a result of this incident on May 9 th , 2021. Prior to May 9 th her nose was straight. As a result of the defendant’s actions the bone on the bridge of her nose was displaced. Essentially her nose appeared crooked as a result of the contact with the railing and stairs. She also suffered long lasting consequences including pain in her nose, pain in her head, and impairment of her breathing.
14The complainant testified that she took a photograph of her face the same day of the incident. She testified that she took the photograph because she felt the pain in her nose, and she wanted to maintain the photograph. She also took the photograph because she intended to show it to a doctor.
B. The Neighbour
15The Crown called the neighbour as a witness at trial. This neighbour testified as to the sounds emanating from the second floor of the complainant’s residence and her perceptions in advance of calling 911. This witness also took an audio recording of the sounds she heard that day.
C. The Doctor and Medical Evidence
16The prosecution adduced evidence from a medical doctor – a specialist in otolaryngology head and neck surgery. The Crown did not seek to have this witness provide expert opinion evidence. The Crown simply sought evidence as to the observations the doctor made of the complainant’s nose on January 5 th , 2023.
17This witness confirmed the complainant’s testimony that her nose was deviated or “crooked” and described the orientation of this feature. This witness was unable to describe any observations of the breathing problems outlined by the complainant. This witness could not opine on causation of injury or the length of time the nose had been in this condition.
18While the complainant testified that she had visited other medical persons in another country regarding her injuries, those records were not admitted at trial. And there is no evidence that this witness reviewed those records.
III. The Criminal Law Framework
19Criminal trials are informed by a number of well-known legal principles. I will briefly set out the framework for the proper approach to the analysis of the evidence.
A. The Presumption of Innocence
20The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.
B. The Guidance of W.(D.)
21The decision in R. v. W.(D.), [1991] 1 S.C.R. 742 [W.(D.)] sets out the often cited three-step process for analyzing credibility in the face of conflicting evidence between prosecution and defence witnesses. While the guidance is perhaps most often applied in trials where there is conflicting testimony between prosecution and defence witnesses, it is important to recognize that the application of the principles in W.(D.) is not triggered by the defendant’s testifying or the Defence presenting evidence. The test applies to the entire evidentiary record at trial whether the evidence was adduced by the Crown or Defence and does not depend on the defendant testifying: R. v. Marki, 2021 ONCA 83, at paras. 23, 25; R. v. Smith, 2020 ONCA 782, at paras. 12, 26, 30, 32; R. v. Debassige, 2021 ONCA 484, at paras. 127-130.
22In this way, W.(D.) presents a valuable framework for the proper analysis of the evidentiary record in a criminal trial, even where the defendant has elected to present no evidence. The principles in W.(D.) remind a trial court to remain focused on the criminal burden of proof.
C. Reasonable Doubt
23I find that the prosecution has not established the guilt of the defendant beyond a reasonable doubt. Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence”.: R v. Villaroman, 2016 SCC 33, at paras. 28, 36 [Villaroman].
24The reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, [1998] 2 S.C.R. 109; R. v. Morin, [1988] 2 S.C.R. 345.
25The Defence bears no burden to prove foundational facts in support of an inference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4. Nor is the Defence required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. The Defence is free to point to anything in support of reasonable doubt including the presence or absence of evidence.
D. Credibility
26The notion of “credibility” and “reliability” have particular connotations in criminal law best explained by Watt J.A. in R. v. C.(H.), 2009 ONCA 56, at paragraph 41:
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).
27I also employ the guidance of the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, at paragraph 82.
28In assessing the testimony provided by the witnesses at trial (including the complainant), I am entitled to believe all of the testimony, none of the testimony, or portions of the testimony: R. v. C.P., 2021 SCC 19, at para. 35; R. v. Le, 2019 SCC 34, at para. 266; R. v. W.H., 2013 SCC 22, at para. 32 [W.H.]; R. v. Francois, [1994] 2 S.C.R. 827, at para. 14. As the trial judge, I am also free to decide what weight to assign to specific areas of the evidence: W.H., at para. 32; R. v. B.H., 2015 ONCA 642, at para. 22; R. v. Howe, [2005] O.J. No. 39 (C.A.), at para. 44.
IV. Issues at Trial
A. Delayed Disclosure
29The complainant did not report the assault of May 9 th , 2021, to the attending police officers who arrived approximately ten to fifteen minutes after the incident. On May 26 th , 2021, the complainant returned to her home country with the children. The complainant reported the assault six months later on November 1 st , 2021. The complainant testified that she did not report the assault on May 9 th , 2021, because she was afraid of her husband as he had been physically abusive in the past.
30No presumptive adverse inference arises from the complainant’s post-offence behaviour standing alone, including a delay in disclosure: R. v. D.D., 2000 SCC 43, at para. 65; R. v. A.R.J.D., 2018 SCC 6, at para. 2; R. v. W.O., 2020 ONCA 392. Further, no special self-instruction based on delayed disclosure is required: (See the reasons of Laskin J. in R. v. H.P.S., 2012 ONCA 117, at para. 71 and R. v. Sanichar, 2013 SCC 4 endorsing Laskin J.’s dissenting judgment).
31Experienced criminal court participants are aware that delayed disclosure is a common feature in intimate partner assault cases. There are many reasons why a complainant might delay disclosure. As a trial judge for the past ten years, I have heard of many circumstances where a complainant delayed reporting an incident to the police. A court should not subscribe to presumptive rules about the timeliness of a complaint. What is required is a contextual consideration of the circumstances devoid of stereotypical reasoning cloaked with that which purports to be sourced in common sense, but is in fact, based on myths about how “real” complainants should act: R. v. Steele, 2021 ONCA 186; R. v. J.C., 2021 ONCA 131.
32Notwithstanding this self-instruction, there are reasons why the delayed disclosure in this case contributes to reasonable doubt.
33First, the timeline of the disclosure is associated with civil proceedings in the home country and Canada. In September 2021, the defendant went to court in the home country and obtained a court order governing visitation with the children. The court also ordered a “travel ban” – the children could not be removed from the home country. The court order was dated October 27th, 2021. The complainant reported the assault to the police five days later -- on November 1 st , 2021. In 2022 the defendant and the complainant were divorced in the home country. In March 2022, the complainant signed an affidavit for the purpose of family court proceedings in the Superior Court of Justice – Ontario.
34The complainant delayed disclosing the incident for approximately six months. The disclosure about criminal acts arose immediately after a court in her home country issued an order preventing her from returning to Canada with the children. The objective timeline supports an obvious concern about the timing of the complainant’s disclosure.
B. The Complainant Lied to the Police
35At trial, the complainant testified that on May 9th, 2021, the defendant assaulted her in a significant fashion as outlined above. The children involved and screaming at the defendant. One child tried to stop him.
36Approximately fifteen minutes after this significant assault, the police arrived. The body-worn-camera footage of the attending officers shows the complainant’s statements and demeanour. The complainant was advised of the general nature of the reason for the police attending. She denied that anything occurred.
37While I acknowledge the law relevant to delayed disclosure set out above, this is an unavoidable serious credibility issue for several reasons.
38First, it is quite apparent that the complainant was surprised by the attendance of the police. She did not call the police. The neighbour did. Nevertheless, according to her testimony, her immediate reaction was to lie to the police about the assault and the presence of the defendant.
39Second, according to the testimony of the complainant, in the fleeting seconds before she opened the door for the police, she instructed her children not to say anything to the police. Once again, according to the complainant, her immediate reaction was to direct children to lie about the criminal offences witnessed by the children.
C. Delayed Investigation
40The complainant’s delayed disclosure of the assault inevitably caused a delayed investigation of the assault. While the exact sequence of events was not explained by the complainant, she provided a statement to the police on November 1 st , 2021. She also provided photographs she claimed to have taken on May 9 th , 2021. This sequence of events impacted the strength of the prosecution case in several ways.
41First, I recognize that generally, as it concerns most witnesses, the passage of time has some impact on a witness’s ability to recall detail and the chronology of events. The complainant did not provide the details of the assault on May 9 th , 2021, until November 1 st , 2021. There is no evidence that she made notes of the event. There is no evidence that she recorded a statement closer in time to maintain a reliable memory. The delay in capturing the events can provoke reliability concerns. For example, Defence counsel cross-examined the complainant about a manifest material inconsistency between her Superior Court affidavit and her testimony in court. At trial the complainant explained that the incident began because of a dispute about money needed for travel to the home country. In the Superior Court affidavit, the complainant says that the incident began when a child called the defendant a rat and the defendant responded by hitting him with a wooden spoon. This provoked the intervention of the complainant. That the complainant provided one version of the events to the police in November 2021 and a very different version to the Superior Court only four months later is at minimum, a reliability concern.
42Second, the police did not investigate the electronic legitimacy of the photographs provided by the complainant that she claimed were taken on May 9 th , 2021. In these circumstances, I would expect investigators specializing in intimate partner violence to be live to the concern that the complainant provided two contradictory statements about May 9 th , 2021. The complainant took the photos with a cellphone. The corroborative impact of establishing that the photograph metadata demonstrates that the complainant did in fact take the photographs on May 9 th , 2021, would have been obvious to the police. Yet, the complainant testified that she never gave her phone to the police. I infer that the electronic investigation of such a significant and obvious issue was impacted by the delayed police investigation. The absence of this potentially corroborative evidence also contributes to reasonable doubt.
D. Bias and Motive to Fabricate
43The Defence position is that the complainant told the truth to the attending police officers on May 9, 2021 – nothing happened. The Defence theory is that the complainant’s allegation was inspired by the family-related legal proceedings instituted by the defendant. The court in the home country ordered that the children could not leave the country. This was not in keeping with the complainant’s desire to return to Canada. Thus, in November 2021 she fabricated a criminal allegation.
44The Crown Attorney submits that the complainant presented as a credible witness. Implicit in this submission is the suggestion that the is no evidence of a motive to fabricate, bias, or animus on the part of the complainant and that this supports her credibility: R. v. G.A., 2000 SCC 17 , [2000] S.C.J. No 18, at para. 3; R. v. Batte, [2000] O.J. No 2184, (C.A.) at para. 120 [Batte].
45As a matter of common sense and life experience, a motive to fabricate is an important credibility factor: Batte, at para. 120; R. v. K.C., 2021 ONCA 401, at para. 129. Where a motive to fabricate is established, or is proven not to exist, this credibility factor may be considered in the credibility analysis: R. v. S.S.S., 2021 ONCA 552, at paras. 25-31.
46The defendant has no onus to establish that the complainant had a motive to fabricate: R. v. L.L., 2009 ONCA 413, at para. 53; R. v. T.M., 2014 ONCA 854, at paras. 38-43; R. v. Lebrocq, 2011 ONCA 405, at paras. 18-21; R. v. M.J., 2011 ONCA 278, at para. 8.
47The timeline of the family court proceedings in the home country and in Canada along with the delayed disclosure reasonably supports a basis to be cautious with the evidence of the complainant.
E. The Nose
48I have examined the photographic evidence once again in my chambers. While I see a red mark on the bridge of the complainant’s nose in exhibits 7 and 8, the mark does not assist me with determining whether the Crown has proven that the defendant caused the deformity alleged (the crooked – nose).
49Frankly, my evaluation of this evidence was also impacted by the complainant’s testimony concerning two photographs produced by the Defence. I found the complainant to be uncooperative with Defence counsel’s efforts to establish the timeline of the two photographs. I did not believe her testimony that she had little or no memory of the photographs and that she was unable to place them in time. As it concerned exhibit 13 specifically the complainant refused to acknowledge when the photo was taken or who took the photo. The complainant could not recall the photograph in exhibit 14 even when advised that it was taken during the festival marking the end of Ramadan – Eid. The complainant’s testimony was disingenuous on this issue.
50More concerning is the fact that both photos show a prominent bump on the complainant’s nose. I am satisfied on the record adduced that despite the complainant’s inability to assist Defence counsel, the photos were taken prior to May 2021. I find that the photos clearly show that the complainant’s nose was not straight as she claimed, but crooked, long before May 2021.
51The photographic evidence, and the obstructive approach taken by the complainant when examined on these photos, impaired her credibility.
F. The Children’s Demeanour
52The attending police officers were aware that the incident involved a significant disturbance and that children were involved. The record at trial included the police body-worn-camera footage of the attending police officers checking on the welfare of the children given the details of the 911 call. Any reasonable objective person evaluating this record would examine the demeanour of the children and conclude that they were “normal” children playing inside their residence.
53Neither side asked the complainant if she had any explanation for the demeanour of the children minutes after an assault incident where she testified the children were screaming. The Court asked this question. The complainant testified that prior to opening the door to the police she counselled the children not to speak to the attending police officers.
54Defence counsel submits that the calm demeanour of the children mere minutes after an alleged assault is consistent with the Defence theory and the statement of the complainant on May 9 th , 2021 – nothing happened. The notion that the children would be so composed minutes after a vicious assault on their mother is implausible.
55The Crown Attorney submits that the Court should not speculate about the demeanour of children in general of the demeanour of these children in particular. There is no general or standard manner for children to act in these circumstances. The children could be impacted by something the defendant said or past circumstances of familial violence.
56I find that there are two important conclusions concerning this record.
57First, it is the contention of the complainant and the neighbour that a significant disturbance occurred and that the children were vocally involved in that disturbance. [5] It is not completely and utterly irrelevant that the objective body-worn-camera footage showed nothing but children playing and smiling. If it was the case that the children were crying or otherwise upset surely this would be part of the prosecution case and relevant to the circumstances.
58Second, as outlined above, the complainant testified that she told the children to say nothing to the police. Recall that the complainant was not aware that the police were attending in response to the neighbour’s 911 call. In the few moments she had upon the police knock on the door, she had the immediate presence of mind to instruct her children to not speak to the police.
59The Defence position is the complainant is fabricating this evidence in support of her false allegation. The Defence position is that it is implausible that she had the present of mind to lie to the police and counsel her children to lie in the brief intervening moment between apprehending the arrival of the police and opening the front door. The truth is that the assault described by the complainant did not occur.
60I need not resolve the mysterious presentation of the children. I need not find that their presentation is consistent with the defendant’s innocence. I find that there remains a central credibility issue with the complainant’s testimony about counselling her children not to cooperate with the police. Assuming for the moment that I believed that evidence, the notion that she would endeavour to take that approach in the brief moment she had, is a credibility issue on its own.
61If the Defence position was correct, and the complainant’s recount about counselling the children in this manner never occurred because no assault had occurred, it would obviously not assist the prosecution case. In the final analysis, this area of evidence simply contributes to reasonable doubt.
G. The Neighbour and the Audio Recording
62I have listened the audio tape during the trial and a second time in my chambers on a large speaker. I have also received a guided tour of the layout of the complainant’s residence courtesy of counsel and the body-worn-camera evidence. This evidence provokes several conclusions.
63First, it is quite clear that the neighbour testified about a disturbance directly adjacent to the shared wall where her desk was located. I am satisfied that given all of the evidence at trial, the neighbour’s desk was proximate to the location of the TV on the second floor of the complainant’s residence. The neighbour’s testimony was specific and precise about five sets of physical banging and she was very clear that it was right next to her on the common wall.
64The complainant’s position is that the assault happened on the third floor. The complainant did not testify to any sequence of events involving multiple (or five sets) of banging.
65This means that what the neighbour heard was not connected to an assault alleged to have occurred on the third floor near a child’s bedroom and then on the stairs. The neighbour heard no commotion from the third floor. She was very specific about hearing and feeling five bangs on the shared wall. She described wall shaking whenever there was a bang so much so that she took picture frames down for fear that they would fall.
66I can not explain this discrepancy in the evidence. More importantly, the Defence is not obligated to resolve this discrepancy in a criminal trial. I do not know if there was a second assault on the second floor that the complainant has not articulated, and this is what the neighbour heard. I do not know if the neighbour was honestly mistaken in her recall, and in fact she was describing the events occurring on the third floor. I need not speculate further. The evidence is unclear and confusing. This obviously contributes to reasonable doubt.
67As for the neighbour’s testimony about audible things a note of caution is in order as it concerns the reliability of that evidence. The neighbour testified that she suffers from hyper-acusis and tinnitus. She uses special hearing aids that are not always effective especially when words are not spoken clearly or directly in front of her so that she can read lips. Special accommodation was sought and granted for this witness to assist with her testimony in court. On May 9, 2021, she had not yet been equipped with her special hearing aids. This record provokes obvious reliability concerns with respect to her testimony about having heard specific words. It is also a concern when one considers the similarity between the word “Dad” and the name of the complainant’s youngest child.
68In any event, as the trier-of-fact, I am also in a position to evaluate the admitted audio record played in court a second time in my chambers. Even at a very high volume, I am unable to discern anything more probative than some sort of disturbance. There is no accepted translation of the non-English language contained on the audio. I can not hear anything meaningful in English.
69I believe that the neighbour was a credible witness. She was obviously legitimately concerned with the events next door and she did her very best to assist on the date in question. But it is also inescapable that her testimony in court was coloured by her speculative concern that the complainant was being abused. This suspicion infused her testimonial evaluation of the record she produced.
V. Conclusion
70Having regard to the formidable prosecution, and the able presentation by the Crown Attorney, I am gravely concerned that some sort of violent incident occurred within the family residence on May 9 th , 2021. But the Crown Attorney can assist a witness only so much. The complainant was not truthful with the attending officers. She counselled her children to obstruct the police investigation. And she made a complaint six months later, mere days after a court order adverse to her interests was promulgated.
71Of course, there is a nagging concern about the credible evidence of the neighbour and the audio recording. But the allegations are so clouded by the issues I have outlined in this judgment that I am left in a state of reasonable doubt. The prosecution must prove the offence alleged. The standard of proof is the criminal standard – proof beyond a reasonable doubt. Any doubt must be resolved in favour of an accused person.
72As a result, I am required to acquit the defendant of the remaining counts before the court. I am not satisfied beyond a reasonable doubt that he assaulted the complainant. I am not satisfied beyond a reasonable doubt that he was present within the residence on May 9 th , 2021.
Released: June 24 th , 2024 Signed: “Justice M.S.V. Felix”
[1] Information #4742. [2] Information #3729, count 3 with facts admitted on count 4. [3] The Court permitted the Crown to withdraw this count after an Application for a Directed Verdict. [4] Religious beliefs, culture, and the country of origin is irrelevant. [5] The complainant’s Superior Court affidavit suggests a greater involvement as it concerns one child.