Court File and Parties
Court File No.: Central East - Newmarket 13-00814 Date: 2014-01-17 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Amir Mousa Soufian
Before: Justice P.N. Bourque
Judgment
Released on January 17, 2014
Counsel:
- J. Kim for the Crown
- Amir Mousa Soufian Self-Represented
BOURQUE J.:
Overview
[1] The defendant and his spouse (the "complainant") were engaged in an acrimonious separation and court proceedings over custody and access to their child Tina.
[2] At an exchange of the child at a shopping plaza in Richmond Hill, the complainant alleges that angry words resulted in the defendant assaulting her with a "ski".
Nadereh Boujar
[3] …was married to the defendant in Iran in 2005. They had a daughter Tina (who is 9 years old). They came to Canada in 2011. They separated and have been engaged in litigation in the family court over custody and access to the child.
[4] The witness states that the original court order provided for a mutual third party to be present at exchanges but they often exchanged the child without the third party. On January 25, 2013, they were doing an exchange at a plaza in Richmond Hill. The defendant had texted the complainant beforehand and had asked her to bring the child's ski equipment with her on the transfer.
[5] They met at the parking lot and the witness stated that the defendant told her that he wanted to settle some other issues about access to the child and he said he had filed a new motion in court. She stated that he was becoming agitated as she would not agree to any of this, and while he was getting the child's skis out of her trunk, she stated that he could not have the child that day. He became unhappy and he went to the passenger door of her car to get the child while he was still holding the skis. She went to push the door closed and she says that he hit her on the left of the chest and the left cheek (on single blow) with the ski, he pushed her back and took hold of the child. She says that she went to stop him and he waved the ski at her. She said that she would call the police and he told her that she could. He took the child, went to his car and drove away. She called her lawyer who told her to call the police.
[6] In cross-examination, it was established that the witness gave two statements to the police, one in January 2013 after this incident, and another in June 2013. She gave some conflicting evidence in the two statements as to the reason for the argument on the January 25th. In June, she also mentioned a dispute about some money ($5,000.00) that he had given her in November 2012. While I never understood from the witness just what the monetary issue was, I am concerned that this was a point that she did not speak to the police about initially.
[7] I am having the greatest difficulty with her description of the mechanics of the assault with the ski. In her examination in-chief, it was unclear how it happened. In the course of cross-examination, she stated that while at the back of her car, she announced that because of his impolite words to her, she was going to deny him access to (her) child. After saying this, he asserts that he will have his access and goes past her (without touching her) to the rear passenger door of the car and opens it to have the child get out and come to his car. She follows him up to the door and at least makes a motion to stop him. She says that he has the skis moved from his left hand to both hands and somehow strikes her with the tip, but she also says that he pushed her (presumably with the ski in hand) back about half a metre, and then he takes the child and carries her (along with the skis perhaps?) to his car.
[8] Surely it makes more sense that as she is preventing him physically taking the child from the back seat, he pushes her away and happens to have the ski in the hand that he is using to prevent him from having his lawful access.
[9] I also note that it was her unilateral decision to stop him from exercising his access (in a fashion that he had been doing for many months, if not years). She feels that he is the irrational one in this sequence of events. I am not sure that is the case.
The Defence
Amir Mousa Soufian
[10] …testified in his own defence. It was his evidence that he had texted his wife earlier in the day and they agreed on the time and place that he would pick up the child. He stated that he was there and his girlfriend had come there in her car and was sitting in her car. He described the location of the cars and made a sketch which was filed as Exhibit Number 3.
[11] He stated that he came out of the Tim Horton's and went up to his wife's car which was some 10 to 15 metres from his. He had arranged to take his child to a child's restaurant and was going to take her skiing the next day. He stated that he went up to the car and was taking the ski gear out of the car. He stated that he mentioned to his wife that he was still awaiting the repayment of the money that he lent her. He stated that she became irrational and demanded that the transfer was not going to happen without the third party as stipulated in the Order. (He confirmed that they had used the third party on only one other occasion). She stated that his wife got into the car and he went quickly to the right rear passenger side of the car and took the child out. His wife came out and said she was going to call the police and he said that he waited in the car with the child for 5 minutes and then left as the police had not come. He stated that the police called him at 10:40 that evening and he went to the police station.
[12] He denied suggestions from the Crown that he was angry at his wife and that he had reacted in anger. He stated that he was calm throughout and it was his wife who was upset. He also denied generally that this was a volatile situation and stated that his wife would be upset sometimes.
[13] He was not shaken by the Crown in the thrust of his evidence which was that he had not struck his wife with a ski (and indeed had not had any physical contact with her at all).
Shahin Bolhassani
[14] …has been the girlfriend of the defendant for over a year. She testified that she attended at the parking lot and was sitting in her car in plain view of the defendant and his wife as they were interacting with regard to access. She largely confirms the defendant testimony in that she could see and hear an argument, which consisted mainly of the wife's loud voice, but she never saw any physical contact between the defendant and his wife. She stated that could see that the wife had returned to the driver's seat and seemed to be leaving when the defendant went up to the rear passenger side and got the child out of the car. She could hear the wife saying that she was going to call 911.
[15] As a result of this scene, she decided not to go to dinner with the defendant and his daughter.
Analysis
[16] The defendant is charged with assaulting the mother of his child in the course of exercising access. The scene that was played out in that Richmond Hill Mall parking lot is a sadly familiar one. What begins as a moderately tension filled exercise, quickly becomes a severely tension filled exercise. Tempers flare and ultimatums are thrown. For the Crown's case, I am to assume that the defendant assaulted the mother of the child because she arbitrarily denied him access at the last minute. For the defendant, (who denies any assault at all), he was simply continuing to do what he had done every Friday for years, and that was to have access to his child. I also note that the legal battle between these two people over this child still continues apace, as this man has had his access interrupted for some 6 months, probably as a result of these proceedings.
[17] I note that with regard to whether there was any assault, the evidence of the defendant is supported by Shahin Bolhassani. While their evidence does not coincide in all respects (the location of the vehicles for example) none of their evidence was shaken by cross-examination.
[18] What can I make of it, other than to point out that the burden remains upon the Crown to prove the charge beyond a reasonable doubt? I also point out that by the doctrine of R. v. W.(D.), I must acquit the defendant if I believe his version of the events, if I am just left in doubt by his version of the events, or if I am left in doubt by the evidence of the Crown without consideration of the defendant's evidence.
[19] It is certainly possible in that situation, that this defendant did indeed give the complainant a push with his left hand while he had the ski in that hand. It could have been that he was trying to keep her away as he was removing the child from her car.
[20] While that scenario is a possibility, that is far from proof beyond a reasonable doubt.
[21] Indeed, based upon the difficulties that I have noted with her evidence, and based upon the fact that there is nothing that dissuades me about the veracity of the evidence of the defence, I must and I do find the defendant not guilty of the charge of assault with a weapon.
Conclusion
[22] I find the defendant not guilty.
Post Script
[23] The Crown has asked that I should, notwithstanding the acquittal in the matter, exercise my common law jurisdiction and have the defendant enter into a peace bond for a period of time. The defendant is representing himself and as a procedural matter, I am not sure I can simply take the evidence I have heard and make a decision without giving the defendant the right to "show cause", and that could include the calling of further evidence, and further submissions. I contrast this to a situation where a defendant is represented by counsel who can take instructions to waive any and all of these requirements.
[24] I understand the reasons for the Crown's request. There is a potential here for some violence as the matrimonial matters are still progressing. However, even if I felt I had the right to proceed, I feel I must decline to exercise my prerogative, and I decline to order a peace bond for the following reasons:
I have found the defendant not guilty. I have accepted his evidence that he has not assaulted his wife. My acquittal goes further than merely not being convinced beyond a reasonable doubt;
He has been on an undertaking for a year which includes conditions of non-contact with the complainant;
The family court proceedings are continuing. As any issues between these people arise from those proceedings, I believe that the Family Court Judge is in the better position to make any appropriate orders of non-molestation or contact;
In the same vein, I do not want to take any steps which could have the effect of limiting the child from her right to have meaningful contact with both of her parents. Again, I think that the Family Court is in a better position to assess any issues in that regard and especially taking into account the best interests of the child.
Signed: Justice P.N. Bourque
Released: January 17, 2014