Court File and Parties

Court File No.: Newmarket Courthouse 11-03460 Date: 2012-04-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — Asif Habib

Before: Justice Peter N. Bourque

Heard on: October 20, 2011 and April 30, 2012

Reasons for Judgment released on: April 30, 2012

Counsel:

• A. Ghosh & K. Hutchison for the Crown
• B. Hundal for the accused Asif Habib

Reasons for Judgment

Bourque J.:

[1] The defendant is charged with two counts of assault against his spouse occurring on April 23 and 25, 2011.

Aniqua Asif

[2] The witness is the wife of the defendant. They were married in Pakistan in an arranged marriage when she was 19. He was in Canada and she came to join him one year later. They have three children ages 10, 8 and 7. They were having matrimonial difficulties (she accuses him of not helping her get more education and generally abusing her) and had both decided to separate.

[3] She describes that they are living in the same house but sleeping in different rooms. The complainant states that they had been arguing about the fact that she had not gotten a lawyer and he wanted to get things settled, including selling the house.

[4] On April 25, 2011, she states that they were having an argument in the morning as she was getting ready to leave for work. She states that he was enraged that his laptop computer had been damaged and was swearing at her. She states that she was going to the phone in the kitchen and the defendant pushed her against the wall. She kept moving and he was striking her with his hand but she got the phone and he took it and "threw it away".

[5] She states that she went upstairs and he followed her and he put his fist up to her face and threatened to "ruin her". He also pushed her. She states the defendant calmed down and went downstairs and the police came some five minutes later.

[6] She stated that when the police came and she spoke to an officer in the dining room. She told him about this incident. The officer went upstairs to speak with her son and came down and asked her about the bruise. She then told the officer about an incident two days previously.

[7] She stated that they were arguing again about the separation issues and she went to go upstairs and he followed and pushed her into the post at the end of the stairs.

[8] Marked as Exhibits # 2, A, B, and C, are photos of the witness taken by the police on April 25, 2011. They clearly show a large bruise on the back of her arm.

[9] She stated that she was afraid of the defendant and his brother and that he had been violent to her in the past. She stated that she did not call the police on April 23 because of that. In cross-examination it was suggested that these allegations were a fabrication and she only called the police to get him out of the house to stop these arguments over the divorce. She calmly replied: "if I wanted to do that I could have done it on the 23rd".

[10] In cross-examination it was pointed out that she was perhaps subject to bruising. She stated that while pregnant (some 6 years ago) she suffered an iron deficiency and bruised easily. She stated that the bruising was a mild yellow colour. The bruisings in Exhibit # 2 A, B, and C are deep red and blue.

[11] The defence pointed out that in 2009 the defendant paid for a CIS course for her that she did not take. She stated that she could not take the course because he was "on probation and out of the house" and she could not do all of the child care alone and also take the course. She stood by her earlier assertion in examination in-chief that he was not supportive of her taking further education as she had been pestering him for this since she came to Canada in 2000.

[12] With regard to the allegations of the assaults, she did not waver and the defence pointed out no discrepancies between her testimony in court and any out of court statements to the police.

Defence

[13] The defendant testified in his own defence. He stated that he was a programming systems analyst with Ontario Power. He agreed with most of the history of the marriage as set out by his wife. It was an arranged marriage and he sponsored her into Canada. They had three children who are now 11, 8 and 7 years old. She did not have any family in Canada when she came to the country. He agreed that they decided to separate in 2009. He admitted that he had a criminal record for an assault (on another person not in a domestic incident) and that he admitted that he told the police that he had slapped her in 2006 (there is no record of any conviction for that). His admission of a slap to his wife, which did not in fact result in any criminal proceedings, could enhance his credibility in these proceedings.

[14] He stated that they had frequent arguments, but other than the slap in 2006, he denied ever getting physical with her. He stated that it was a course of disagreement that she was not getting a lawyer and he wanted to have the house sold.

[15] With regard to the allegations from April 23, 2011, he recites his activities that day and only remembers speaking to her briefly on one occasion. He denies any argument and he denies grabbing her in the way she described, or at all.

[16] With regard to the April 25, 2011 incident, he describes it very much like the way she described it, including the argument and the breaking of his laptop computer, but he states that she intentionally dropped the computer on the floor. He also states that he never pushed her against the wall or stopped her from calling the police. He states that when he followed her upstairs, he stayed on the top stair and when she said she was going to call the police, he told her to go ahead. I note that the transcript of the 911 call was either not available or simply not used in this trial. It is not there to contradict his assertion that she did not mention anything about an assault to the 911 operator.

[17] With regard to the bruise on her arm, he gives no explanation. He stated that she had a condition for bruising easily, but stated in-chief that the bruise in the picture was bigger.

[18] He Habib was vigorously cross-examined by the Crown. He sparred with the Crown on some occasions about the agreement (or lack of same) to sell the house, but otherwise was not shaken from his initial story of the incidents or indeed the marriage.

[19] The Crown suggests that he when with the Crown's suggestion that the bruise could be from a medical condition, said "maybe", that it was a sign of his lack of candour. With all respect, I do not think he seriously raised the issue. It was the Crown that forced him to agree or disagree with the suggestion of "maybe".

[20] The Crown's suggestion that the tension in the home was such that some physical response by the defendant was a realistic possibility and was a real one. It was and is a distinct possibility that the defendant resisted.

R. v. W.D.

[21] The defendant has denied the allegations. If I believe him, then I have to acquit him. Even if I do not believe his denials, I must ask myself whether the totality of his evidence leaves me with a reasonable doubt. If I am not left in doubt by his evidence, I must still analyze the Crown's evidence and decide whether it convinces me beyond a reasonable doubt.

Credibility of Complainant

[22] The complainant also did not waver from her story. She gave an explanation for not calling the police on the first incident which could be consistent with the family history. The events of the April 25 may have been the final straw and that is why she only called the police at that time. I note however, that she did not raise it with the police (after she had summoned them to the home) until the officer noticed the bruising and questioned her about it.

[23] Surely at that stage there was nothing about the family history which was holding her back.

[24] Her assertion about not getting any support from the defendant for her wish for further education was not entirely correct but her explanation was not unreasonable. Something of "too little and too late" to satisfy her.

[25] The pictures of the bruise on her arm, is some support of her contention that he assaulted her on April 23. I do not accept that there was a medical reason for this bruise to be there other than the application of some force. However, it does not decisively stand for the conclusion that he assaulted her.

Analysis

[26] The scenario of the breakup of this marriage was a situation which was ripe for strife between the defendant and his wife. I have no doubt that they had many, many arguments and they had to do with the mechanics of the selling of the home and ultimate terms of the separation. The frustration of both parties would permeate all of their dealings and (as an aside) poison the atmosphere for the children.

[27] It could be easily said that the defendant's frustration boiled over and on one or more occasions, it resulted in an assault upon his spouse. It could equally be said that the complainant's frustration with the never ending arguments led her to call 911 and summon help from the authorities. I must say that I do have some sympathy for the complainant in the essential details of her allegations. However, that is not the standard of proof that I must, as a matter of law, apply to this proceeding.

Conclusion

[28] I have reviewed the evidence of the defendant. While it is not without some difficulty, and some contradiction, he was not significantly challenged in what was a very thorough and competent cross-examination. While I am left with some serious doubts about the total veracity of his rendition of events, I cannot say that at the end of the day, I am without doubt. Because of the foregoing, I must go further and say that the doubt I have is a reasonable one. Having made such a finding, I am compelled to acquit the defendant on both charges.

Note: The official version of these reasons for judgment is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. These reasons for sentence may have undergone editing changes.