Court File and Parties

COURT FILE NO.: 14-DV6761 DATE: 2017/10/17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – H.E. Accused

Counsel: Jessica Carvell for the Crown Sean May for the Accused

HEARD: June 5, 6, 7, 12 and 13, 2017

Reasons for Decision

R. Smith J.

[1] The accused is charged with sexually assaulting his wife in 2002; and with assaulting and threatening to kill his daughter R..

[2] The accused testified and denied ever having non-consensual sexual relations with his wife, and denied ever assaulting or threatening to kill his daughter R..

[3] Marriage is not a shield for sexual assault; however, the issue in this trial is whether considering the whole of the evidence the Crown has proven the allegations beyond a reasonable doubt. I must consider the evidence in accordance with the R. v. W. (D.), [1991] 1 S.C.R. 742 Supreme Court decision. An assessment of credibility involves an evaluation of both the honesty and reliability of the witnesses’ evidence.

Count #1 – Sexual Assault

[4] Z. testified that her marriage to the accused was arranged between her parents and the accused’s mother. She did not consent to the marriage to the accused but followed her parents’ wishes, as was expected in her culture. She withdrew from first year University and married the accused in Gaza in 1992.

[5] I accept Z.’s evidence about the circumstances of her marriage and that she was a dutiful daughter who followed her parents’ decision that she marry the accused. She came to Canada in 1989 when she was 19 years of age. She was about 22 years of age at the time of her marriage and had been raised in Kuwait by her parents, who are Palestinians.

[6] I also accept Z.’s evidence that the accused believed that as her husband he had the right to have sexual relations with her when he wished. She also shared the belief that she did not have the right to refuse to have sexual relations with her husband. She testified it was only in 2013 when she spoke with a police officer, who attended her home as a result of access problems with the accused after their separation, that she became aware that a wife could refuse to have sexual relations with her husband.

[7] Z. testified that there were many instances during her marriage where she did not consent to having sex with the accused but that he went ahead anyway in the circumstances where they both believed he had the right to do so. She was unaware that she could stop her husband from having sex with her without her consent. Their sexual relationship continued in this manner from 1992 until January 1, 2013.

[8] The parties separated in January of 2013 but they continued to live in the same house. At that time, the parties signed a domestic (separation) agreement where the family home was transferred to Z.. The accused left the home in August of 2013. Following their separation, the parties had difficulties arranging the accused’s access, particularly with their son F..

[9] Z. testified that the accused’s behaviour changed after he returned from a 20 month visit to Gaza in 2011 to settle an estate. After he returned, he was aggressive, had no patience and was no longer kind to her.

[10] Z. testified that she remembered one incident in 2002, just after the accused returned from having a hair transplant, they had sexual relations without her consent. She testified that the accused grabbed her by her wrist when he was on the couch in the living room and pulled her onto the couch, got on top of her, pulled down her pants and had sex with her. She testified that she asked him to stop 3 times but the accused continued until he ejaculated. She closed her eyes and prayed for it to end and then took a shower.

[11] Z. has essentially testified that she never consented to sex with her husband from 1992 until they separated on January 1, 2013, and that she only fulfilled what she believed was her obligation as the accused ’s wife.

[12] The accused denied ever having sexual relations with his wife without her consent, but specifically denied having sex with his wife during the 10 – 14 days after he had his hair transplant. He testified that he followed the advice of his doctor to abstain from sexual relations for 10 – 14 days after the transplant, and therefore the incident could not have happened. The accused did not call any medical evidence to show this was standard medical practice and I find his evidence in this regard does not accord with common sense to a reasonably informed person.

[13] Z. testified at the preliminary inquiry that she was wearing jeans, but at trial said she was wearing sweat pants. I find that the difference does not affect her credibility other than to confirm it is impossible to remember exact details 15 years ago.

[14] The accused was argumentative and evasive when cross-examined and often did not answer the question posed. I find that his evidence was not believable and did not raise a reasonable doubt.

[15] Z.’s evidence was credible. She answered questions in a straight forward manner. Her evidence that the accused believed he had a right to have sex with his wife was not contradicted. The accused acknowledged that he exercised control over his wife’s body by refusing to allow her to have an abortion when she became pregnant with F.. The accused did not deny this but testified that he convinced her to do the right thing and to have the child.

[16] I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so.

[17] However in such circumstances where the complainant had lived in Canada since 1989, did not make any complaint until the parties had a dispute involving access, where the complainant continued to have sex with the accused from the time of the alleged incident in 2002 until January 1, 2013 a period of approximately 11 years, I am not satisfied that the Crown has met its burden of proving beyond a reasonable doubt based on all of the evidence that the accused had the required mens rea to have sexually assaulted the complainant in 2002.

[18] For the above reasons, the accused is found not guilty of Count #1.

Counts #2- Assault of R.

[19] The accused is also charged with assaulting his daughter R. by allegedly grabbing her by the neck during an argument and stating in Arabic that “I will end you”.

[20] In her evidence, R. described an argument with her father, when he came into her and D.’s bedroom, and was very angry and yelling at her. The accused approached her while she was sitting on her bed. She testified that her sister D. ran and jumped between them to protect her from her father. During the incident R. testified that the accused stated that he “would end you” in Arabic.

[21] When R. gave her evidence at trial, she failed to mention that the accused had grabbed her by the neck during this incident. The Crown then refreshed her memory by allowing her to review her statement to the police. She then testified that the accused had grabbed her by the neck, on a different occasion in the living room, and not during the bedroom incident.

[22] R.’s mother testified that she had observed the accused grab R. by the neck during an argument in R.’s bedroom, but she did not testify that the accused made any threat to “end” R. during the incident.

[23] D., (R.’s sister), testified that she had jumped between the accused and R. during the dispute with the accused in their bedroom. However she did not testify that the accused had grabbed R. by the neck at that time or that the accused had threatened to “end” R. during this argument.

[24] The accused testified that he had never threatened to “end” R. but rather that he had used a similar sounding Arabic word which meant “I want to finish this argument”. The accused testified that he had gone upstairs to R.’s bedroom to “straighten her out” at the request of her mother. Z. denied ever making this request. The accused acknowledged that he became very angry at R. and that D. had jumped in between him and R. and that R. was frightened of him during this incident, but he denied grabbing her by the neck.

[25] The accused offered an explanation for R. having stated that he had grabbed her by the neck, namely that he talks with his hands and that R. must have remembered him playing rough with her by tickling her neck. I do not find that these explanations accord with common sense to a reasonably informed person.

[26] In the R. v. W. (D.) decision, the Supreme Court set out the approach to be taken when making a finding of credibility. First if I believe the accused, I must acquit; second, if I do not believe the accused, but am left in doubt by it I must acquit; third, even if I am not left in doubt by the accused’s evidence, has the Crown satisfied me of the accused guilt beyond a reasonable doubt based on the whole of the evidence.

[27] I accept the evidence of Z., R. and D. that R. had many disputes with her father because she would talk back to him and because her father had not accepted the fact that she became ill following a vaccination in her early teens.

[28] The accused returned to Gaza for 20 months in about 2009 to settle his father’s estate but did not return with any money. When the accused returned to Canada he had become more religious and tried to set limits on the clothing that his daughters could wear, which resulted in disputes.

[29] I find that D. was a very credible witness and gave both honest and reliable evidence about the accused’s conduct and the accused ’s relationship with R. and the other family members.

[30] I also find that R. was a very honest witness who gave her evidence in a truthful manner. However, there are some problems with the reliability of her evidence. She initially forgot to mention that her father had grabbed her neck in her evidence in-chief and then described a different version of the alleged assault having occurred in the living room at a different time which did not occur in her bedroom.

[31] Complainants who testify about events that occurred when they were a child, particularly as to peripheral matters such as time and location, should be considered in the context of the witness at the time of the events to which she is testifying. In this case R. was about 14 years of age (between grade 9 and grade 10) when the assault allegedly occurred. Her evidence is consistent on the time of the alleged incident but she testified that the accused grabbed her neck at a different time than she initially told the police. R. was not simply mistaken about where the event occurred, rather she described a different incident that occurred at a different time and place from the incident in her bedroom. The timing of her complaint is only one circumstance to consider and I give her delay in reporting the alleged assault minimal weight in this case.

[32] Notwithstanding that I did not believe the accused’s denial, nor did his evidence raise a doubt about his guilt on either Count #2 or Count #3, the Crown has not satisfied me beyond a reasonable doubt based on the fact that R. gave different evidence at trial from her evidence at the Preliminary Inquiry and in her police statement. At trial, she testified that the accused grabbed her by the neck in the living room during a dispute and not in her bedroom. D. testified that she did not observe the accused grab R.’s neck during the incident in the bedroom. Based on the contradictions in the evidence I find that the Crown has not proven the accused’s guilt beyond a reasonable doubt.

[33] For the above reasons, the accused is found not guilty of the assault charge in Count #2.

Count #3 – Threatening R.

[34] With regards to the allegation that the accused threatened to “end” R. during the dispute in her bedroom, I am satisfied that this threat was probably made to R. by the accused, but I am not satisfied beyond a reasonable doubt of his guilt because two of the other witnesses, namely Z. and D. did not testify that they heard this threat being uttered. In addition, R. previously stated that she had memory problems at around this period of time. For the above reasons, the Crown has not satisfied me beyond a reasonable doubt based on all of the evidence of the accused’s guilt on count #3.

[35] As a result, I find the accused not guilty on Count #3.

Justice Robert J. Smith

Released: October 17, 2017

COURT FILE NO.: 14-DV6761 DATE: 2017/10/17 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – H.E. Accused REASONS FOR decision R. Smith J. Released: 2017/10/17