WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Central East - Newmarket 4911-998-12-03496

Date: 2013-10-04

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mahmoud Reza Shojaei

Before: Justice P.N. Bourque

Counsel:

• R. Scott for the Crown
• J.J. Grosberg for the accused M. Shojaei

JUDGMENT

Reasons for Judgment released on October 4, 2013

BOURQUE J.:

[1] Charges

[1] The defendant is charged with sexual assault and sexual interference upon the person of C.C. which is alleged to have taken place between February 10, 2010 and March 7, 2010.

The Complainant

[2] C.C. is 19 years old and at the time of the events was 15 years old, being born on […], 1994. She was living in an apartment at D[…] Drive in Newmarket, with her mother.

[3] She came to know Ali ("Alan") Shojaei, who was the brother of the defendant. When she met him, she was 13 or 14 and she thought he was 19. They exchanged text messages and sometimes "hung out". She understood that he lived in the apartment building with his parents.

[4] Sometime later, she met the defendant (whom she thought was 35 years old) in the lobby of the building. She exchanged telephone numbers with him.

[5] She states that at some point, Alan said his parents had returned from Iran and he would not be seeing her anymore (she did not say that they had any relationship). She stated that this "devastated" her as she was very much in love with Alan.

[6] She stated that she once saw the defendant and he sent her a message which stated that she had to go through him to be friends with Alan.

Testimony and Credibility Issues

[7] The complainant was directed by the Crown attorney to speak about the events which led to her being in court. The witness asked to look at her notes and use them in testimony. In the ensuing examination and cross-examination on the issue of her refreshing her memory, she stated that she had reviewed these notes some 10 to 20 times before this trial and had recently reviewed the video of the interview she had with the police on January 17, 2012.

[8] Notwithstanding these reviews, she still wished to have her notes with her. She testified that these notes were made by her over a two-day period, with the assistance of her mother. They were made in the days before January 17, 2012, which is some 1 year and 9 months after the date she states that the assaults occurred. She also agreed with the defence counsel that in her interview with the police on January 17, 2012, she essentially read her allegations from these notes.

[9] She stated that she would go up to the apartment of the defendant's parents many times over the next 2 to 3 years. Most times the parents would be there but sometimes the defendant would ask her up and they would not be there. She stated that when they were there alone, all they would do would talk and the defendant would talk "culturally", and they would talk about how she wanted to be with his brother. They would never watch TV or do any other activity. She denied that they would ever discuss any topics related to sex and he never expressed any feeling towards her. She stated that many times the parents would kiss her on the cheeks but once when the defendant tried to do it, she resisted.

Alleged Assault

[10] She stated that one time he asked her up and she came. She went to the washroom and when she came out he was in Alan's room. She went in, as they had been in Alan's room several times before.

[11] She states that without saying anything, the defendant "threw" her down on the bed. She stated that he held her down and took off his pants without using his hands. He was wearing a tank top which he did not take off. He took off her jeans. At some point he had on a condom, although she did not see him put it on. She states that she looked over to the picture of Alan on the wall as if to say to him "look at what your brother is doing to me". She states that he repeatedly inserted his penis into her vagina. She stated that she told him two times to stop.

[12] She said that when he was finished she went to the washroom and saw blood. In fact, she said that he told her that she would see blood. She then got her keys and her lip balm and went downstairs. She said she went to the washroom in her apartment and her mother was home, but she did not tell her mother anything because she was embarrassed. She did, however, tell her mother before she left for a trip to Florida, several days later.

Post-Incident Conduct

[13] She also stated that after this incident, she did not see the defendant for some 6 months. In cross-examination, this was proved to be false as she admitted to seeing him when he drove her to her aunt's house (to then leave on the Florida trip) and then saw her on her return. She stated at first that he came to the door and she did not see him, but because this contradicted something she said to the police, she then said that she spoke a few words to him and then she stated that she was standing in the living room with him and her mother when the mother was showing pictures of her trip to him.

[14] I note that at this point, the mother has been told by the witness that the defendant had attacked her. By the witness's description of the demeanour of the mother with the defendant, it is hard to see how that could have been possible.

Get-Well Card

[15] The witness was cross-examined about a card that had been given to the defendant in July, 2010. It was a get well card and the defendant had at least signed it. Interestingly, when she was first shown the card, she said she had actually written it and then changed her mind and said a friend of her mother's had written it. She did say that she probably gave it to the defendant. The card is an expression of sympathy to the defendant who had just undergone knee surgery.

[16] The witness sparred with defence counsel about the defendant's injury saying she had only seen him limp once. The card was dated July, 2010, some 4 months after the time she said that the defendant had sexually assaulted her. Her mother had also signed the card and according to the witness, her mother was aware of the fact that the defendant had sexually assaulted her daughter.

[17] This is another instance where the witness's statement, that she did not see the defendant for 6 months after the incident, is proved to be a misstatement. More importantly, it defies belief that the witness and her mother would extend any such courtesy to the man who had assaulted her.

Inconsistencies with Police Statement

[18] The witness was taken on many occasions to the transcript of the interview with the police officer. On many occasions because of her testimony in court, she was forced to say that what she had told the officer was incorrect, from the taking off of her underwear, to the words spoken (if any) by the defendant during the assault, to the degree of information she told her mother about the assault and when she told her.

[19] There were also several discrepancies noted between her original statement when she went to the police the first time and her video statement several days later. She admitted as such when she spoke to second police officer.

[20] She even added a further potential allegation of abuse in a parking lot, only upon re-examination by the Crown.

Credibility Concerns

[21] Of interest to me was that on more than one occasion during her cross-examination, she referred to the transcript as "the script". This may have simply been a slip of the tongue, but after hearing her many discrepancies, one could be forgiven for believing that she really looked upon it as her scripted statement of these events.

[22] As a further matter, in cross-examination, she admitted that what prompted her to go to the police was a meeting between he, her then boyfriend and the defendant in the parking lot of the apartment. Her boyfriend and the defendant were speaking Persian to each other. The witness became convinced that the defendant was talking to her boyfriend about her in a disparaging manner. In fact she admitted that she felt that the defendant and his family were trying to destroy her. She gave no explanation for this feeling, but she was convinced it was the case. It would not be difficult to come to the conclusion that her absolute dislike for the family may have coloured her story to the police and her story to the court.

The Defence

[23] The defendant testified in his own defence. He stated that he would visit his parent's apartment and he became friends with the complainant and her mother. He stated that he was never alone in his parent's apartment with the complainant and certainly denied the allegations that he had sexually assaulted the complainant, or had any sexual relations with her at any time.

[24] He confirmed that he was at the complainant's apartment with her mother and he had tea and looked at their Florida pictures. He also confirmed getting the card from the complainant. All these events took place after the alleged sexual assault and he describes everyone as being cordial and there was no sense of hostility.

[25] He admitted that he thought that the reason there was a friendship between him and the complainant was that she was romantically interested in the defendant's younger brother. The Crown cross-examined him vigorously with the suggestion that the defendant made it clear that the complainant had to have some sexual relation with him in order to curry favour with his brother. The defendant resisted this suggestion.

[26] The defendant in-chief denied ever being arrested for a criminal offence. In cross-examination, he admitted that he had been arrested for a fraud allegation in 2009, although he stated that it was a traffic matter and had to do with and insurance binder that he had in his car.

[27] I note that the medical report provides confirmation of the defendant's assertion that his knee pain would preclude him from attacking her in the fashion she describes.

Analysis

[28] The Crown bears the burden at all times of proving the guilt of the defendant beyond a reasonable doubt. The defendant has testified and if I believe his evidence, it affords a complete defence to the charges. Even if I do not believe him, I must still ask myself whether his evidence leaves me with a reasonable doubt. Even if I am not left in doubt by his evidence, I must still assess all of the evidence to decide whether the Crown has proved the case beyond a reasonable doubt.

[29] The relationship between the complainant and the defendant was, in my opinion, a casual if an unusual one. The Crown suggests that the defendant used a young girl's infatuation with his brother to seek sex from her. The defence suggests that the young girl's unrequited infatuation with the defendant's brother may have a reason to seek some vengeance on the defendant and his family. In many ways, this issue is something of a red herring because the Crown's case involves an attack upon the complainant, not some sort of sex by false pretences.

[30] She stated that she resisted his advances and, indeed, he pinned her down with his legs. She did speak of some words he said to her about having to go through him to get to his brother (she was most unclear about this however) but at no time did she say that she was consenting to any of this. While consensual sex may make more sense in looking at the total dynamic between these people, it does not conform to her sworn evidence.

[31] Ultimately, I find that with regard to his testimony, while I cannot be convinced of his total veracity, I am left in a reasonable doubt by it. I must go further, however.

[32] The complainant's testimony was rife with as many contradictions as I have ever seen in one witness. Her general animosity for the defendant (it does not seem to be related to the alleged assault) was palpable in her testimony. When she confronted the defendant in front of her new boyfriend, she spoke of the reason being a hatred for the family and a feeling that it was the family that was out to destroy her. She did not give as a reason (which would be logical) that she had been sexually assaulted by him.

[33] The greatest contradiction is the fact that she says that she told her mother soon after these events about this sexual assault upon her, and yet both she and her mother continue to act with the defendant as if nothing had happened. Persons who are the victims of sexual assaults commonly do not disclose right away, minimize and try and forget the incident. I do not think that such a reaction is commonly true of the family members of an assault victim. Unless I find that she lied about telling her mother these things, the only logical explanation I am left with is that, in all probability, nothing did happen.

[34] For this trier of fact, there is nothing left in the evidence that could convince me beyond a reasonable doubt that this defendant assaulted her in any fashion whatsoever.

Conclusion

[35] I find the defendant not guilty of all counts.

Signed: "Justice P.N. Bourque"

Released: October 4, 2013