ONTARIO COURT OF JUSTICE
COURT FILE# 26-481010513
BETWEEN:
HIS MAJESTY THE KING
— AND —
MD RASHED MIAH
Judgment
Before Justice Brock Jones
Heard on June 15, 16 and 23, 2026
Written Reasons for Judgment released on June 30, 2026
A. McPhedran...................................................................................... counsel for the Crown
S. Chowdhury......................................................................................... counsel for Mr. Miah
Jones J.:
Introduction
1Mr. Miah is charged with multiple counts of intimate partner violence. These include two counts of assault, one count of assault by strangulation, one count of uttering a death threat, and one count of criminal harassment. The events underlying the charges occurred on several dates between November 1, 2024, and October 10, 2025. The complainant is his wife, Ms. Sherin Akter.
2Mr. Miah pleaded not guilty to all these substantive offences. He pleaded guilty to two counts of failing to comply with a release order, for contacting his wife and being within 100m of anywhere he knew she would be on October 10, 2025. However, Ms. Chowdhury disputed the factual circumstances underlying the failure-to-comply charges that were alleged by the Crown. Mr. Miah’s trial lasted three days and concluded on June 23, 2026. He elected not to testify in his defence or present any other evidence.
Testimony of Ms. S. Akter
3Ms. Akter was born in Bangladesh and arrived in Canada in 2024. She has claimed refugee status. She married Mr. Miah in 2010. They have two children: an eight-year-old daughter and a two-year-old son.
4They lived in a shared house in Scarborough with other residents. Unfortunately, their marriage began to deteriorate. Mr. Miah became angry for reasons Ms. Akter did not understand. She wondered whether he was under financial pressure. He often displayed hostility towards both her and the children.
5One day in late 2024 or early 2025, he demanded that she clean up some tea he had spilled. As they argued, he slapped her in the face.
6On September 15, 2025, they had another argument. She had previously told him she intended to leave the relationship, and he demanded money from her in return. Their marriage was severely troubled. She no longer trusted him.
7When he was not watching, she reviewed the contents of his phone, knowing his password. On the phone, she discovered videos of an intimate nature that concerned her. She described them as “things beyond my imagination.” She accused him of infidelity, and he accused her of the same in response.
8While they were in their bedroom, he slapped her. He then went to the kitchen to get an object to strike her with. She pushed him away. He came forward, grabbed her by the neck, and began to apply force. She was holding her two-year-old son at the time. Mr. Miah made physical contact with him as well while he lashed out at her, striking her repeatedly. Her son screamed.
9He eventually relented and called his sister, Ira. She tried to persuade Ms. Akter to stay with her husband and work on their problems.
10Ms. Akter called the police. Officers attended and arrested Mr. Miah. The next day, she was informed that he had been released from custody. She was aware of the conditions of his release, which prohibited him from having contact with her. She spoke to Ira again, who repeated her request that Ms. Akter consider resolving her problems with her husband. Ira went so far as to tell Ms. Akter that she should withdraw the case and reconcile. Ira said that Mr. Miah had asked her to pass that message along.1
11On October 10, 2025, Ms. Akter attended the Danforth Village Pharmacy. She saw her husband there by chance. Both she and her husband used this pharmacy to obtain their medications. She did not believe he knew she would be there and was not concerned at first. She described the meeting as a “coincidence.”
12However, her youngest child saw his father and called out to him. Mr. Miah approached her and asked why she was not withdrawing the case. He told her that she had to “take the case away.” He did not physically threaten her but repeated this demand. He warned her that she would not be able to support herself and the children without him.
13Ms. Akter was worried because she was alone in Canada and could not rely on anyone else for financial support. She received social assistance from the Ontario government, which was her only source of income.
14Ms. McPhedran asked whether her husband had mentioned her immigration proceedings at this time. Ms. Akter said no, he had not, except to suggest that an ongoing criminal case might pose “problems” for them. She did not remember him saying anything else to her in this regard.
15Ms. McPhedran played Ms. Akter’s prior police statement to her to refresh her memory. After reviewing the statement, Ms. Akter testified that her husband had threatened her, saying that if she did not drop the charges, he would make sure she was removed from Canada. He stated, “I won’t let you stay in Canada or if you stay, I will kill you.”
16Ms. Akter became very afraid. Her husband knew many people in Canada, but she did not know any.
17On another date later in October 2025, Mr. Miah confronted her near Danforth and Victoria Park Avenue. She was about to board a bus when she saw him. He asked her, “What are you going to do regarding this case?” He then told her, “You will not be able to live here; you had better withdraw the case.”
18She became increasingly fearful. Prior to this encounter, she noticed unfamiliar people following her in the community. She was receiving calls from unknown numbers that, upon answering them, turned out to be her husband.
19During cross-examination, she acknowledged having provided a statement to the police about the incident outside the pharmacy on September 15, 2025. She did not inform the police that her husband had demanded that she withdraw the charges or that he had threatened her immigration status in Canada. She did tell the police about a threat to her life.
20Ms. Chowdhury then asked Ms. Akter whether she had called her husband directly after his arrest and when she knew he was subject to a release order prohibiting that contact. Initially, Ms. Akter denied this suggestion. She knew the terms of his release order prohibited contact between them. She agreed that his sister, Ira, often called her to discuss problems Ms. Akter had with her husband. She maintained that Ira relayed messages from her husband to her, but denied she initiated contact with her husband herself. As questioning continued, Ms. Akter ultimately admitted that she often called her husband directly. However, she denied reaching out to Ira for her own purposes.
21Ms. Chowdhury presented Ms. Akter with screenshots of a series of WhatsApp communications. I inferred from her answers that she agreed she used WhatsApp, that it kept a record of messages sent and received, and that it had a call log. The messages were from an account named “Sharmin Luna”, and the account holder’s picture was one of Ms. Akter.
22Ms. Chowdhury suggested that the WhatsApp conversation was between her and Ira and that Ms. Akter sent Ira bank account details for accounts in Bangladesh so that money could be deposited into them. At first, Ms. Akter denied authorship of any of these messages. One bank account was in the name of Jamer Hossain, which she pointed out was not her name.
23Another entry in the WhatsApp communication history was a 28-second voicemail. Ms. Chowdhury played the recording in court. Ms. Akter stated that “maybe” it was her voice, but asked Ms. Chowdhury, “What guarantee is there” that this message “came from me?”
24Ms. Akter reviewed the remainder of the messages, many of which were in Bengali, and agreed that they concerned the transfer of money.2 She denied knowing Jamer Hossain or visiting him on the Danforth in Toronto to obtain money. When asked whether video surveillance existed of her at Mr. Hossain’s address, Ms. Akter said she “maybe” might have been there for another purpose. Later, she agreed she would “probably” be on surveillance footage there, though not to obtain money. She emphasized there was no “proof” that she went to Jamer’s residence, but someone “might have called” her about attending there.
25Ms. Chowdhury suggested to Ms. Akter that she had offered to withdraw the charges in exchange for money, and that her WhatsApp conversations with Ira were about this topic. Ms. Akter answered, “I don’t need to know who he gave money to or received money from.” That statement was not directly responsive to Ms. Chowdhury’s unambiguous suggestion. Ms. Akter then asked Ms. Chowdhury whether she knew that Ira was, in fact, keeping her father hostage in Bangladesh. As cross-examination continued, Ms. Akter eventually said she was “not bound to tell [Ms. Chowdhury] that Ira gave [the money] to me.”
26A specific address in Toronto was put to Ms. Akter.3 She was asked whether she had attended at this address in the last six months. Ms. Akter would not answer this question and said Ms. Chowdhury’s questions were “causing her pain.” After I permitted the questioning to continue, Ms. Akter surmised that she might have walked past the address in question, as it was in her neighbourhood. She would only have done so to collect her mail from her former home.
27As she grew frustrated by Ms. Chowdhury’s questions, Ms. Akter eventually said that she had “done financial dealings with a lot of people.” When asked to explain that statement, she refused.
28After reviewing additional text messages from the WhatsApp conversation, Ms. Akter admitted that she had sent them to Ira. She abandoned her blanket denial that she had not authored all the messages and agreed that some pages in the message history were accurate. Ms. Chowdhury continued her line of questioning and drew Ms. Akter’s attention to a picture of a bank deposit slip on page 10 of the printout. When asked whether she remembered receiving this document, Ms. Akter stated, “I will not answer that.”
29Without being prompted, Ms. Akter told me that while some of the messages were hers, others may have been fabricated. She said that being in a “bad financial condition” did not mean she would take money from her husband’s sister. She did not know why Ms. Chowdhury was allowed to “put pressure on her” to make it seem like “all the fault is mine.”
30Ms. Akter maintained that Mr. Miah was calling her after his arrest, in violation of his bail conditions. Ms. Chowdhury presented her with a portion of her prior police statement in which an officer reviewed her phone history on camera and said there was no evidence that Mr. Miah had called her, but rather that the phone records established she had called him. Ms. Akter agreed that she showed the officer her phone and its call history. She did “not remember” this particular discussion with the officer, but later agreed that the officer’s assessment of her phone records was in fact correct.
31Upon further questioning, Ms. Akter admitted that she called her husband at least five times after his arrest. She said she could not “remember everything” about how the two of them contacted each other because she had two children to care for. Eventually, she agreed that she had not answered questions in court honestly earlier in her testimony. She “chose to lie.”4
Position of the Parties
I. Crown
32Ms. McPhedran submits that Ms. Akter was a credible and reliable witness and that her testimony should be accepted. Ms. Akter was the victim of repeated acts of intimate partner violence. The offences have been proven beyond a reasonable doubt. Regarding the count of criminal harassment, Ms. McPhedran asked me to consider the “history and circumstances of the relationship” with her husband when assessing the reasonableness of her fear arising from his repeated communications and threats to her safety and ability to remain in Canada: see R. v. McKinley, 2022 ONCJ 323, at para. 28; R. v. Sidhu, 2021 ABCA 56, at para. 26.
33Ms. McPhedran does not dispute that there were some inconsistencies with Ms. Akter’s testimony. However, her testimony should be considered in light of her vulnerable status in Canada and the difficulties she has faced and continues to face. She explained many of the inconsistencies in her testimony. If I accept those explanations, the inconsistencies “lost their power to raise a reasonable doubt”: see R. v. Francois, 1994 CanLII 52 (S.C.C.), 2 SCR 827, at para. 21. Importantly, Ms. Akter was unshaken on the core elements of her allegations.
34Ms. McPhedran agreed that Ms. Akter was combative and difficult at times during cross-examination. But Ms. McPhedran asked me to consider the “nature and tone” of Ms. Chowdhury’s cross-examination. She was quite aggressive, and it is not surprising that Ms. Akter may have shut down at times or become confrontational. That does not mean she was not being honest. By way of one reported decision that employed similar reasoning, Ms. McPhedran brought my attention to R. v. Tynes-Dempsey, 2025 ONCJ 602. In that case, Justice Downes held that a witness’s “hostile or rude” answers had to be appreciated within the context of how defence counsel in that case conducted his cross-examination: see para. 25. It was described as “prolix and halting in the extreme”: see para. 26. Similarly, Ms. McPhedran submits that Ms. Chowdhury must bear the consequences of how she chose to approach questioning Ms. Akter.
II. Defence
35Ms. Chowdhury submits that Ms. Akter is an admitted liar and should not be believed at all. During cross-examination, she was caught with one hand in the proverbial cookie jar, as she had to admit, when confronted with irrefutable evidence of her dishonesty, that she had given misleading answers. There were multiple important inconsistencies in her evidence on both the core aspects of her allegations and significant contextual matters. I will review some of the examples highlighted by Ms. Chowdhury in the rest of this judgment.
36Moreover, Ms. Akter would regularly assert that she was a victim when she felt uncomfortable during cross-examination and believed she should not have to answer questions that challenged her version of events. That is not a hallmark of an honest and trustworthy witness, but rather of someone who simply wishes to push an agenda and becomes frustrated when confronted with an alternative version of events. Several times, Ms. Akter argued with Ms. Chowdhury and tried to question her rather than answer what she was asked. The Court had to admonish her repeatedly to cease such behaviour. At other times, she appeared to anticipate future questions and would answer with what she wanted to say to protect herself rather than respond to what was actually asked.
37Ms. Chowdhury further submits that the WhatsApp text messages and call history have been authenticated and can be considered evidence undermining Ms. Akter’s testimony. They raise serious concerns about her credibility and why she contacted Mr. Miah’s sister. The thrust of Ms. Chowdhury’s submissions appeared to be that Ms. Akter had a clear motive to lie, as the evidence suggests Ms. Akter was seeking financial compensation from Mr. Miah’s family in exchange for her dropping the charges.
38The call logs on Ms. Akter’s phone, reviewed by the officer during her October 21, 2025, police statement, are similarly probative. Those records demonstrate that Mr. Miah did not contact Ms. Akter as she alleged, and Ms. Akter acknowledged during her testimony that the officer accurately summarized them at the time. That demonstrated she was intentionally trying to mislead the officers to have her husband charged again with violating the terms of his release order.
39Overall, Ms. Chowdhury submits that Ms. Akter presented as she did during cross-examination not because of the tone of the questioning, but because Ms. Akter was being exposed as a dishonest witness and knew it. Ms. Akter had emotional outbursts in response, and went on tirades, hoping to distract the court from the obvious deficiencies in her evidence.
40At a minimum, I should have grave concerns about Ms. Akter’s credibility and find Mr. Miah not guilty accordingly. The Crown cannot point to any source of independent, corroborative evidence capable of restoring faith in Ms. Akter’s testimony. While not strictly required, I can consider the absence of such evidence when rendering my verdict. And its absence is telling.
Analysis
41Mr. Miah is presumed innocent. The Crown must prove the charges against him beyond a reasonable doubt.
42In cases of this nature, where the prosecution turns exclusively on the testimony of a single witness, it is vital that a court examine that witness’s testimony carefully. While a court may convict based on the uncorroborated evidence of a single witness, any frailties in the witness’s evidence must be thoroughly considered: R. v. A.G., 2000 SCC 17, at para. 30; R. v. P. N., 2013 NLCA 16, at paras. 36-8; R. v. C.(J.), 2000 CanLII 1931 (Ont. C.A.) Where the defence raises a motive to lie, that too must be considered “to give full effect to the presumption of innocence”: R. v. Kruk, 2024 SCC 7, at para. 65.
43The presence or absence of confirmatory evidence may be determinative. Any confirmatory evidence identified by the Crown must be capable of restoring confidence in the testimony of a witness whose credibility has been undermined through cross-examination. The mere presence of confirmatory evidence will normally not be sufficient. Its cogency and quality matter. The trier of fact must determine whether the evidence is sufficiently probative of material points that remain in dispute at the conclusion of the trial to overcome any frailties found with the witness’s testimony: see R. v. Bradshaw, 2017 SCC 35, at para. 39; R. v. Seruhungo, 2016 SCC 2, adopting the reasons of Justice O’Ferrall of the Alberta Court of Appeal, 2015 ABCA 189, at para. 63.
44Ms. Akter did not impress me as a trustworthy witness. She was evasive during cross-examination. She refused to answer many simple, direct questions with straightforward answers. Despite several admonitions, she provided long-winded diatribes on other topics only marginally relevant to this trial when she saw the opportunity to do so. She often went out of her way to slander her husband’s character and suggested to Ms. Chowdhury that whatever she had done wrong in their marriage, her husband had engaged in even worse behaviour. She was often non-responsive to relevant questions put to her in cross-examination and repeatedly claimed memory loss on important, material matters when it suited her.
45In addition, I noticed that at several points during cross-examination, Ms. Akter smirked or smiled, as if to convey that the questions Ms. Chowdhury asked her would not be taken seriously. This typically occurred when Ms. Chowdhury attempted to demonstrate deceit on Ms. Akter's part, and Ms. Akter apparently found those attempts to undermine her credibility humorous. It should go without saying that a criminal trial is a serious matter. Mr. Miah's very liberty is at stake. Ms. Akter’s demeanour was a telling sign to me that she often disregarded her sworn duty to provide honest testimony and treated the trial as a game.
46Of great importance, Ms. Akter’s testimony was furthermore riddled with inconsistencies, both internal and external. I appreciate that English is not her first language, and she testified with the assistance of an interpreter. When she provided her police statements, she was also assisted by an interpreter. Some nuance in her answers may have been lost accordingly. Nevertheless, the inconsistencies were often glaring and on important subjects.
47I begin with the most troubling aspect of her testimony: the multiple contradictions in her account of her ongoing contact with Mr. Miah after his arrest, despite a court order prohibiting such contact, and her admission of perjury.
48During cross-examination on June 16, Ms. Chowdhury challenged Ms. Akter’s assertion that she had never contacted Mr. Miah after September 15, 2025. Ms. Chowdhury suggested that Ms. Akter had called him at least five times. Ms. Akter initially said she did not remember if she contacted him and that she “cannot remember everything.” She then tried to deflect when asked further questions on this topic, suggesting that the questions did not matter and, in any event, she suffered from memory loss due to the burden of caring for her children.
49Ms. Akter was interviewed by a Toronto Police Service officer on October 21, 2025, many days after her encounter with Mr. Miah outside the pharmacy. She admitted to Ms. Chowdhury that, although she had told the officer that Mr. Miah had been contacting her regularly, she had not told the investigating officer that she had contacted Mr. Miah herself. That initially left the officer with a false impression to the contrary. The officer then noticed that her phone records showed Mr. Miah had never contacted her as she alleged; rather, she had contacted him multiple times. In cross-examination, when asked about this apparent contradiction in her evidence, she responded that “if the officer said that, he’s correct.” I took this to mean she adopted this portion of her prior statement and agreed that the officer’s review of her phone records was accurate.
50As Ms. Chowdhury asked more questions about this contradiction, Ms. Akter testified that she “didn’t know my phone would become evidence.” That was, in my assessment, an admission that she believed she could mislead the police officer at the time, but she was surprised that he insisted on inspecting her phone and that its contents could be used as evidence to undermine her claims that her husband had been violating his release order. This was deceitful conduct that dramatically undermined her credibility.
51Under further questioning, Ms. Akter finally admitted that she had, in fact, contacted Mr. Miah, but “not on a regular basis.” She agreed that she should have informed the police officer of this fact. Far more troubling to me, she also admitted that she had not answered questions put to her in court earlier on this very subject honestly. Indeed, she accepted that she had lied to the court despite her affirmation to tell the truth.
52Whether, how, and under what circumstances any contact occurred between Ms. Akter and Mr. Miah after his arrest on September 15, 2025, was crucial to my assessment of the criminal harassment and uttering death threat charges in particular. The Crown could not point to any confirmatory or corroborative evidence supporting Ms. Akter’s version of events other than Mr. Miah’s guilty plea to the failure to comply charges, which required him to admit that some form of contact took place outside the pharmacy on October 10, 2025. This is of limited value, as Ms. Akter agreed that it was a “chance encounter.” What was said between the parties that day was fiercely disputed. Relying on the testimony of an admitted liar who would attempt to manipulate the police and was willing to perjure herself in court, without any other evidence capable of confirming her version of events, would be extremely dangerous. Indeed, in this case, it is not simply the absence of confirmatory evidence that is noteworthy. The phone records presented to the investigating officer actively undermined her claims about how contact occurred between her and her husband after his first arrest.
53There were other significant areas of concern regarding Ms. Akter’s evidence that warrant mention.
54Ms. Chowdhury exposed a startling inconsistency between Ms. Akter’s courtroom testimony and her prior police statement about what threats, if any, were made to her outside the pharmacy on October 10, 2025. During her examination in chief, she testified that Mr. Miah told her he wanted her to drop the charges against her and that, if she did not, he would jeopardize her refugee application. She did not remember anything else. After Ms. McPhedran refreshed her memory by having her review a sample of her prior police statement, she recalled that he had also threatened to kill her.
55There is nothing inherently detrimental to a witness’s credibility or reliability if they need their memory refreshed. But the trier of fact must determine how “reliable and truthful” any subsequent recollection truly is: see R. v. B. (K.G.), 1998 CanLII 7125 (Ont C.A.), at para. 19. The events at the centre of this trial occurred not that long ago. I do not believe Ms. Akter genuinely had her memory refreshed about this purported death threat and that her subsequent testimony was an honest recollection of what her husband said to her. It defies belief that such a vivid detail would slip her mind during her examination in chief when the threat was made by her husband, in the presence of her nearby children, a few weeks after his arrest for assaulting her.
56During cross-examination, Ms. Chowdhury noted that in Ms. Akter’s prior police statement, Ms. Akter provided many details to the officer about what her husband said to her on this date. Surprisingly, she did not mention that he demanded she withdraw the criminal case or that she might face immigration consequences if she defied him. That was a notable contradiction with her courtroom testimony, which had focused on those particular aspects of his conduct because she alleged that those remarks specifically had caused her to fear for her safety, in conjunction with the threat to her life.
57Ms. Chowdhury suggested to Ms. Akter that she was unable to keep her story straight, as she could not remember which version of this fabricated encounter she had told the police and which version she was telling in court. Ms. Akter rejected this suggestion, but I find that it perfectly encapsulates what occurred. There is no other rational explanation for these stark inconsistencies in the prominent details of what her husband allegedly said to her.
58On the last day of the trial, Ms. Chowdhury revisited Ms. Akter’s description of how she was assaulted on September 15, 2025. Ms. Akter testified earlier in the trial and described being struck by her husband, who, in the process, hit her two-year-old child by accident. Yet, in her statement to the police, Ms. Chowdhury suggested that Ms. Akter had neglected to mention this detail, other than to say that he may have “tried” to strike the child. Ms. Akter agreed, and when asked how she could have possibly neglected to mention to the investigating officer that her husband had hurt her child in the course of this assault, Ms. Akter stated she must have “forgotten” to do so.
59I do not accept this explanation. Ms. Akter testified during her examination in chief that her child screamed as a result of being hit by her husband during this incident. If this truly happened, she would not have “forgotten” to inform the officer when he was asking her several questions about the assault. One would not forget their two-year-old child being harmed so severely by their abusive husband.
60The final area I wish to review for this judgment concerns the electronic messages, phone calls, and voicemail history that Ms. Chowdhury presented to Ms. Akter during cross-examination. The messages and calls were exchanged via WhatsApp. They were presented through screenshots of 11 pages. The account in question was in the name of “Sharmin Luna” and contained messages and calls with Ira, Mr. Miah’s sister. Many of the messages discussed exchanging funds, and different bank accounts were referenced under different names.
61I found Ms. Akter to be highly evasive when asked about the authenticity of these messages, particularly regarding whether she knew who “Jamer Hossain” was and whether she had been to his Toronto address to collect funds.
62On page 6 of the exhibit, there are messages referring to being at a lawyer’s office, and a statement that, “what happens I will let you know through a voicemail message.” Ms. Akter eventually agreed that she sent those messages to Ira and that this page of the exhibit was accurate. She also agreed that she often sent messages to Ira in this manner. Yet when asked for further details, she “forgot” or could not otherwise remember them.
63On page 4, there are other messages, calls and texts. Some of them reference “bi cash,” a money transfer method that Ms. Akter accepted was commonly used in Bangladesh. The messages describe different ways to send and receive money. To repeat some of my prior review of Ms. Akter’s evidence, Ms. Akter admitted during this area of cross-examination that she does “a lot of financial dealings with a lot of people.” When initially asked to explain the source of those dealings, she refused to answer. She also refused to answer a question about a bank deposit slip shown in a picture on the exhibit's last page. Near the end of her cross-examination, many days after the topic first arose, Ms. Chowdhury returned to this area and again asked Ms. Akter with whom these financial dealings had been conducted. Ms. Akter testified that she only meant “hypotheticals” and that no dealings had ever taken place.
64A witness’s refusal to answer questions, absent a very compelling explanation, may greatly undermine their credibility and require a court to place little to no weight on their testimony: R. v. Daignault, 2025 ABCA 328, at paras. 46-9; Duong v. R., 2007 ONCA 68, at paras. 23-35. While Ms. Chowdhury did not press Ms. Akter on her refusal to answer these questions when they first arose and was willing to move on, I remain deeply suspicious that Ms. Akter was engaged in discussions with Ira to have funds transferred to her in the lead-up to this trial. Her denials were not credible, and nor was her explanation near the end of cross-examination that she had only testified about “hypothetical” arrangements previously. She repeatedly stated that she was destitute or of limited means, and that her only source of income was from the Ontario Government. Yet in these messages, she is discussing the transfer of funds with Mr. Miah’s sister in the months after his arrest but before the trial commenced.
65I emphasize that before Ms. Akter settled on the messages only being about “hypotheticals”, which occurred after she had days to think about how she would respond, Ms. Akter originally refused to explain her “financial dealings” with “a lot of people.” When Ms. Chowdhury suggested at that time that Ms. Akter had fabricated her allegations to extort money from her husband’s family, Ms. Akter became quite animated and provided an unfocused, emotional response. I find that her purported memory loss about this and other topics was feigned. The WhatsApp messages raise the troubling spectre of a powerful motive to lie: financial gain.
Authenticity of the WhatsApp Messages
66Ms. McPhedran disputed that all the WhatsApp messages were sufficiently authenticated to be deemed admissible evidence and that I should not consider some of them when rendering my verdict. She noted that Ms. Akter outright denied authorship of many of the messages. For example, Ms. Akter specifically disavowed page 1 of the conversation and opined that many of the messages on other pages may have been fabricated. In the absence of another witness testifying to their accuracy, they cannot be authenticated. Only those messages that Ms. Akter admitted she authored may be considered.
67I disagree.
68Section 31.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5, requires only that there be “evidence capable of supporting a finding that the electronic document is that which it is purported to be.” The authentication standard is “low”: see R. v. C.B., 2019 ONCA 380, at paras. 67-8. Section 31.1 of the CEA does not require that the digital evidence be reviewed by any particular type of witness. In this case, Ms. Chowdhury presented the messages to Ms. Akter, and based on Ms. Akter’s responses, they were sufficiently authenticated.
69Ms. Akter initially denied authorship of the messages and denied that it was her WhatsApp account represented in the conversation. As cross-examination continued, she accepted that the messages constituted a conversation between herself and Mr. Miah’s sister, Ira. She agreed that she had sent messages to Ira and that at least “some” of them were hers. She agreed that she could translate the Bengali messages into English and that she had made many calls to Ira, which were also reflected in the printout of the communication history between the two accounts. She agreed that the picture associated with the account was hers and that she goes by the nickname “Luna”, which appeared at the top of the screenshots next to her photo. In my view, that is sufficient to authenticate the entire collection of text messages: R. v. S.P., 2025 ONCA 60, at para. 10.
70I accept that anyone could create a falsified WhatsApp account to impersonate Ms. Akter. However, the mere possibility of fabrication is not a basis to rule electronic evidence inadmissible: R. v. Lalji, 2026 ONCA 255, at para. 30; R. v. Medow, 2025 ONCJ 661, at paras. 54-9; C.B. at para. 72. Rather, such concerns may bear on the ultimate weight of the evidence or its lawful use at trial. Each case will be different.
71In this case, there is direct evidence from Ms. Akter that she authored some of the messages and regularly used WhatsApp to communicate with Ira. But there is also circumstantial evidence that Ms. Akter authored all the messages attributed to her side of the conversation. The 11 pages capture communications from January 2026 to June 2026, a period between Mr. Miah’s final arrest and the commencement of the trial. They involve Ms. Akter and the accused’s sister and discuss the transfer of funds through intermediaries. The subject matter discussed in the messages is logically and temporally connected to the events underlying this trial, as I have explained. The only rational inference to draw is that Ms. Akter authored the messages sent by the account that appears in her name, notwithstanding her inconsistent denials on this point:5 see, for example, R. v. Smithen-Davis, 2019 ONCA 917, at paras. 17-9. I reach the same conclusion about the associated voice calls.
72I am satisfied that the messages and voice calls or voice messages have been authenticated to the requisite standard. They are lawfully before me as evidence and worthy of consideration.
Conclusion
73Ms. Chowdhury raised other arguments in defence of her client. I need not comment on any of them in light of the analysis I have already completed.
74I did not find Ms. Akter to be a credible or reliable witness. The Crown was unable to direct me to any confirmatory evidence that might restore my faith in the disputed portions of her evidence. Indeed, the opposite occurred; by the end of the trial, the other forms of evidence presented only amplified my concerns about the fundamentally dishonest nature of her testimony.
75I find Mr. Miah not guilty of all the charges for which he pleaded not guilty.
76With respect to the two fail-to-comply charges, where he pleaded guilty, I find as a fact that he had a chance encounter with Ms. Akter on October 10, 2025. He approached her after their son called out to him, and they spoke. I am not prepared to find as an aggravating fact that he made any threatening remarks or acted in an untoward manner. Nevertheless, he was bound by a release order and should not have approached or spoken to Ms. Akter. It is on that basis that he will be sentenced.
77As a final remark, I find it necessary to observe that there was nothing inappropriate about Ms. Chowdhury’s cross-examination. The areas she explored were indisputably relevant, and the answers her questions elicited were highly illuminating. The tone of her questioning and the style she employed when confronting Ms. Akter could be described as assertive, focused and intense. At times, she was relentless in her pursuit of the truth. There is nothing wrong with that whatsoever. As I have found, the questioning was highly effective. Confidence in a lawyer during cross-examination is to be expected and, indeed, encouraged.
78Ms. McPhedran objected during Ms. Chowdhury’s cross-examination, arguing that the “tone and style” of the cross-examination were inappropriate and disrespectful to the witness. I overruled the objection. Witnesses for the prosecution in a criminal trial must be prepared for their version of events to be challenged and cannot be shielded from probing questions simply because answering them is uncomfortable. A criminal trial is not a tea party, and counsel are entitled to press their case and represent their respective positions with vigour and passion: see R. v. Clark, 2004 CanLII 12038 (Ont. C.A.), at para. 122; R. v. McKnight, 2022 ABCA 25, at para. 147. It is Mr. Miah who faced the jeopardy of multiple criminal convictions and a prolonged period of incarceration if he were found guilty.
79Certainly, cross-examination that crosses the line can and should be stopped by a trial court. Questions that are “repetitive, wandering, and misleading” or difficult to understand are inappropriate: see R. v. Samaniego, 2022 SCC 9, at paras. 11-4. Unduly complicated questioning should not be permitted for particularly vulnerable witnesses, such as children.6 The Law Society’s Rules of Professional Conduct place an obligation on lawyers to maintain “dignity, decorum and courtesy” in the courtroom, and require that a lawyer “shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings”: see the commentary to Rule 5.1-1, The Law Society of Ontario’s Rules of Professional Conduct, and Rule 7.2-1.7 That does not mean that lawyers cannot firmly challenge a witness’s credibility and even squarely confront them with a suggestion that they have intentionally misled the court. Furthermore, counsel may always cross-examine a witness on matters that they may not be able to prove independently, where there is a good-faith basis to do so: R. v. Lyttle, 2004 SCC 5, at para. 47.
80None of the problematic descriptors reviewed in the jurisprudence applies to any of Ms. Chowdhury’s lines of inquiry. She was firm but fair, and Ms. Akter was a mature adult at the time of the trial. Courts would do a great disservice to the animating principles of our justice system, especially the presumption of innocence, if they were unduly critical of criminal defence lawyers who, in good faith and with fervour, represent their clients' interests. As noted by the Supreme Court of Canada, “[c]are must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility”: see Groia v. Law Society of Upper Canada, 2018 SCC 27, at para. 3.
Released: June 30, 2026
Signed: Justice Brock Jones
Footnotes
- Ira did not testify, and the parties agreed this statement constituted hearsay, and could not be relied upon for the truth of its contents.
- Mr. Miah and Ms. Akter both required Bengali interpreters during the trial.
- I am not including the address in this judgment out of respect for the parties’ privacy.
- Ms. Chowdhury explored several other areas during cross-examination intended to call into question Ms. Akter's credibility. I need not review them in detail for this written judgment. Suffice it to say that each area of questioning was relevant and produced highly probative evidence.
- To be absolutely clear: I do not accept Ms. Akter’s denials of having authored the messages or of having made the voice calls otherwise attributed to her WhatsApp account.
- See the remarks of Justice Cory of the Supreme Court of Canada in R. v. F. (C.C.), 1997 CanLII 306, at para. 48.
- https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct