Court File and Parties

Court File No.: Newmarket Courthouse 11-01451 Date: 2012-03-02 Ontario Court of Justice

Between: Her Majesty the Queen — and — Babak Ezati

Before: Justice Peter N. Bourque

Reasons for Judgment released on: March 2, 2012

Counsel:

• J. Fuller for the Crown
• A. Top for the accused Babak Ezati

Bourque J.:

Overview

[1] The defendant is charged with harassment, threatening to cause death and breaches of probation arising from the allegations of his ex-wife, in the course of her exercising access to the child of the marriage in January and February 2011.

Mandana Ezati

[2] Mandana Ezati is the ex-wife of the defendant. Both are from Iran but have been in Canada since 2000.

[3] In 2009 they were divorced and the defendant husband was awarded custody of the two children by a Family Court order.

[4] The witness, Mandana, lived in Ottawa and the defendant lived in the G.T.A. She would come to the G.T.A. and stay with friends and then see her daughter (the son was grown by this time) for a day visit.

[5] She states that on a visit in February 2011, she was staying with a friend and someone tore the mirror off her car. She assumed it was her husband who had done it (she did not see who did it) and she assumed he was following her. In her evidence in chief in this matter, she began to describe an incident when she says that the defendant was following her in his friend's car. She cannot describe the car. She has no details of the incident. Sometime later in her examination in chief she actually admitted that she had never seen the defendant at all in the period of time and was just assuming that he was following her.

[6] She states that on February 21, 2011 she called the home to speak to her daughter to explain to her that she could not come to the visit at that time as she had no mirror on her car and did not want to get a ticket. She says that the defendant came onto the phone and swore at her "using the words he had used towards her for the 22 years of marriage" and then stated that "when he saw her in Toronto he would cut her up, even if she was with friends in a cafe".

[7] In the course of her evidence in chief, she spoke a lot about her difficulties with access to her daughter and how she would visit the police on many occasions to have them enforce the custody order. She was extremely frustrated that the police would not enforce her access to her daughter.

Jasmine Ezati

[8] Jasmine Ezati is the daughter of the defendant and the complainant. She lives with her father and her brother. She testified that she recalled getting the phone call on February 21, 2011. She states that she was in her room and heard her father's cell phone which was next door in the living room. She went and answered it, knowing from the call display that it was from her mother. She states that she spoke to her for a short time and then the conversation was over. She denies that her father was in the room for the conversation, (although she says he was somewhere in the house) and certainly denies that the conversation as related by her mother between her mother and father ever took place.

Analysis

[9] With regard to the allegation of criminal harassment, (which was count 1 on the information) the defendant brought a motion for a directed verdict. As the witness ultimately stated she never saw the defendant following her and only assumed that he had damaged her car, and then assumed he was following her, I granted the motion for a directed verdict upon that count.

[10] With regard to the remaining three counts I am mindful that the burden is on the Crown at all times to prove the allegations beyond a reasonable doubt, and I must also assess the defence evidence in light of the directive in R. v. W.D.

[11] With regard to the daughter's evidence the Crown has pointed out that a 13 year old child would probably favour the parent she was living with, and also pointed out that she never went to the police with this information. I note there was also no evidence that the police tried to contact her. She was a person of few words, did not embellish anything she said and she was not shaken upon cross examination.

[12] Ultimately pursuant to the analysis in the R. v. W.D. doctrine, I could not reject her evidence and therefore would have to acquit the defendant on all counts.

[13] I must in this case go further. This case spoke of a very sad family situation. The complainant, by court order, lost the custody of her children. She was obviously very embittered by this and the whole divorce process which occurred. She may have had other very good reasons to dislike the defendant and she made reference many times in her evidence to a mistreatment by him during the marriage. It was clear to this trier of fact that all of these issues were severely clouding her ability to accurately recite events. Her assumption that she was being followed by the defendant also impacts upon her general credibility. I can only hope that the police had more information about that count before they laid the charge, but perhaps they did not.

[14] At the end of the day, and for the reasons set out above, I cannot be convinced on any basis that the defendant threatened his ex-wife.

[15] I can however be certain of one thing, that the process by which this defendant has spent some several days in pre-trial custody, that the complainant woman spent a very uncomfortable and unhappy time in the witness box, and that a young 13 year old girl was forced to take sides, once again between her parents, can serve, in my opinion, little or no public policy interest.

Conclusion

[16] In conclusion, I find the defendant not guilty on all counts and dismiss all the charges.