Court File and Parties

Ontario Court of Justice

Date: 2015-08-13

Court File No.: Regional Municipality of Durham 998 15 21021

Between:

Her Majesty the Queen

— and —

Samir Nabi

Before: Justice J. De Filippis

Heard on: April 14 & June 1, 2015

Reasons for Judgment released on: August 13, 2015

Counsel:

• Mr. Black, counsel for the Crown
• Mr. Baksh, counsel for the Defendant

Reasons for Judgment

De Filippis J.:

[1] Charge and Overview

The defendant was charged with assaulting his wife, Ms. Wakeela Himidi, by punching her in the stomach during her ninth month of pregnancy. It is not alleged that the mother or daughter, who was born several weeks later, were injured. I heard from the complainant and defendant. These reasons explain why I accept her evidence and reject his, with the result that I find him guilty.

[2] Background and Marriage

The parties met in Afghanistan in 2008 and were married that same year. This was an arranged marriage and both were young at the time. Currently she is 23 years old and he is 29 years old. The complainant had gone to Afghanistan to attend her sister's wedding. On her return to Canada she supported the defendant's application to immigrate. He arrived in 2012 and is now a permanent resident in Canada.

[3] Events Leading to December 25, 2014

The complainant testified that in the two years between the defendant's arrival in Canada and the incident in question, the "marriage had its ups and downs". They initially settled in Oshawa and then moved to London. In December 2014, she visited her parents in Pickering. She travelled there by bus and stayed at their home for one week, while the defendant remained in London to work. The defendant arrived by car on December 24. He spent the night with the complainant in Pickering and visited his aunt and uncle the next day in Markham. According to the complainant, he went without her because the defendant's uncle had told him he did not want a pregnant woman in his home in the company of his sons. On this day, the complainant's parents left to visit relatives in Montreal.

[4] The Assault

The complainant expected the defendant to pick her up at 1 PM at her parent's home for the drive back to London. When he failed to do so, she sent a text message to him. According to the complainant, he responded that he was with his cousins and "kept delaying". She sent many more text messages inquiring as to his whereabouts. At 3:30 PM, he responded that "it's none of your business". He arrived at 6 PM and said he was ready to leave. The complainant replied that she was not. She told him she wanted to finish watching her movie. That lasted about 15 minutes. She then said she wanted to pray. That took a few minutes. Afterwards, the complainant stated she wanted to stop at a restaurant for a meal. When the parties argued about the latter, the complainant demanded that she be given the car keys. The vehicle had been purchased for the couple by her father. The complainant testified that she saw the defendant clench his fist and before she could move away he punched her to the upper left side of her stomach. She screamed and her brother, who was in another part of the home, came down and asked what happened. The defendant said nothing.

[5] Hospital Visit

The complainant testified that throughout her pregnancy, "my daughter moved a lot" and that since she did not feel this in the 45 minutes following the punch, she said she wanted to go to the hospital. The defendant did not respond so she asked her brother to take her there. Before departing, the complainant telephoned her father in Montreal to report the assault. The complainant testified that on arrival at the hospital, she realized she did not have her health card and telephoned the defendant to ask that he bring it to her. According to her, he replied that "he'd get there when he did". When he eventually arrived at the hospital, she declined to see him.

[6] Police Report

The complainant had been told she should stay under observation for four hours. When this time expired, the defendant called the nurse and said they were leaving as she was fine. She was driven to her parent's home by her brother and the defendant went with his uncle to the latter's home. She called the police the next day at the direction of her father. She explained that she did not want charges laid as she loved her husband.

[7] Cross-Examination of Complainant

In cross examination, the complainant agreed that her husband does not consume alcohol or illicit drugs and that both are devout Muslims. She conceded that apart from food available in her parent's home, the defendant had earlier texted her to suggest she order food to be delivered. The complainant refused to do so, saying she wanted to eat at the same Afghan Restaurant he had attended with his cousins. The complainant admitted her conduct was "vengeful" and that she wanted to make the defendant wait for her as she had had to wait for him. She denied this "vengeance" also caused her to call her father and falsely claim he had punched her in the stomach. She also denied the suggestion that, having done so, she persisted in the prosecution because she could not extricate herself from the initial lie.

[8] Defendant's Background and Employment

The defendant was a lawyer in Afghanistan and is now employed as a Loss Prevention Officer while pursuing studies at the University of Western Ontario. He confirmed much of the background evidence given by the complainant. He denied assaulting her.

[9] Defendant's Explanation for Leaving Complainant Behind

The defendant explained that his aunt and uncle are the only family he has in Canada. The plan had been for the couple to spend the night in Pickering on December 24 and then to go to Markham the next day to visit the defendant's family. However, after saying his morning prayers on December 25, the defendant told the complainant not to join him because it would be "more comfortable" for her to stay at her parents' home as she was nine months pregnant. He added that his wife does not like his aunt and uncle.

[10] Defendant's Account of the Visit to Markham

The defendant left Pickering at 11 AM and told his wife he would return around 2:30 PM so they could depart for London before it became dark. He acknowledged that since it is a 45 minute drive to Markham from Pickering, he would be with his family for less than two hours. When asked why he thought his wife would be uncomfortable for such a short visit, he replied that he said he would return as soon as possible and did not actually promise the visit would be less than two hours. When Crown counsel pressed him on this matter, the defendant insisted it had nothing to do with his family not wanting a pregnant woman in their home. When pressed further, he explained that he has four cousins at the Markham home, all boys between the ages of 12 and 21, and that in his culture [unmarried] men and women do not socialize with each other.

[11] Defendant's Response to Text Messages

The defendant conceded he did not respond to all of the complainant's many messages and did not comply with her request that he return to Pickering. He explained that he does not often see his family and decided to go to a restaurant with them. He suggested the complainant order food to be delivered to her.

[12] Defendant's Arrival and Departure

The defendant arrived in Pickering at 6 PM. He testified that it was now dark and he was in a rush to get on the road as the drive to London takes about 2.5 hours. He said he was a "little upset" at the complainant's "childish behaviour" in delaying their departure but did not consider her demand for the car keys to be a "second challenge" toward him. He attributed his wife's reaction to her belief his relatives were a bad influence on him and "being moody" in the final stages of pregnancy. He tossed the keys at her and telephoned his uncle to take him to a bus or train station. He walked to a nearby plaza to meet his uncle. Crown counsel suggested that is not why he left the house:

Q: What happened is you punched [the complainant] and left, knowing you'd done wrong

A: No, why I left I called my uncle to take me to the train station and she called me back and talked to her Dad on the phone.

[13] Defendant's Return to Hospital

The defendant testified that on his return to the house, he was shocked to learn the complainant had told her father he punched her. Her father asked to speak to the defendant and told him to leave the house, without his wife. He added that after the complainant left for the hospital, she called him to bring her health card. The defendant testified he did not get a chance to ask her why she had gone to the hospital as she hung up the phone when he said he could not get her health card.

[14] Defendant at Hospital

The defendant was taken to the hospital by his uncle and arrived at about 8:30 PM. He waited in the parking lot as the complainant would not see him. At 11 PM, he went to her room and they left 30 minutes later. He explained that the complainant was comfortable with this decision and he denied "abruptly" leaving with her upon the expiry of the four hour monitoring period suggested by the doctor.

[15] Defendant's Departure and Aftermath

The defendant testified that he left the hospital in the company of his uncle and the complainant went with her brother. They all met at the Pickering home. The defendant retrieved his belongings and departed. He said nothing to his wife. He spent the night with his uncle and went to London the following day. Later he called the complainant's father to inquire after her and was told by the latter that he was not welcome at his home. When asked by Crown counsel why he left his wife in Pickering, the defendant replied, "to give her time to relax…time with her family". The complainant gave birth to a daughter in January. The defendant said he could not be present for this as the Crown rejected his request for the necessary bail variation.

[16] Defendant's Implausible Explanations

When asked if searching for a bus or train, late on a holiday, was a reasonable option, the defendant's answer implied he had not thought carefully about it. When Crown counsel asked why it would not be more reasonable to simply wait for the complainant to get her food, the defendant replied, "she wanted her keys and insisted on driving on her own".

Q: You thought she would drive to London on her own?

A: I thought she'd stay longer at her parents' home…maybe she decided to have the baby in Pickering.

Q: Wouldn't you need the car in London for your work?

A: Yes, I would have to take the bus to visit my stores or get stores close to home.

Legal Analysis

[17] Criminal Standard of Proof

The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v. W.D., 63 C.C.C. (3d) 397. A criminal trial is more than a credibility contest between different versions of events. To support a finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence to the contrary, that standard is not met if it (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case: F v. R.D., [2004] O.J. 2086 (O.C.A).

[18] Defence Submissions

Defence counsel argued that this is a case in which the word of one person is pitted against that of another, without independent corroboration. He added that the complainant should not be believed as she admitted being "vengeful" and thus had a motive to fabricate. The police were not called until the next day, when the complainant's father returned from Montreal. In any case, it is submitted that the defendant was a credible witness and is entitled to an acquittal. In this regard, it is pointed out that it was reasonable for the defendant to limit contact with his wife and leave without her for London, having regard to the complainant's allegation and her father's reaction. I do not accept these submissions.

[19] Crown Submissions

Crown counsel argued that it is clear that what the complainant meant by vengeance is that she intended to delay the defendant just as he had delayed her. Moreover, the fact the complainant went to the hospital is some corroboration about the assault. It is also argued that the defendant cannot be believed as his testimony makes no sense in all the circumstances. I agree with these submissions.

[20] Credibility of Complainant

In explaining why I consider the complainant's evidence to be credible and reliable, it is important to note that most of it was unchallenged. Indeed, except for her testimony about being punched, the defendant generally confirmed her version of what occurred beforehand and afterward. The Defence position is that the complainant acted childishly and lied about the assault because she was vengeful. Moreover, having done so, she could not extricate herself from this falsehood once her father intervened.

[21] Rejection of Defence Theory

It is obvious that the complainant was upset with the defendant because he kept her waiting and responded in kind by making him wait on her. In describing herself as vengeful, she acknowledged that her reaction was immature. However, I do not accept the additional Defence submissions because there is nothing in this case to support them. There is no reason to conclude that the complainant's petulant response also involved lying about being punched in the stomach, contacting her parents in Montreal to repeat the false report, and going to the hospital to ensure her pregnancy had not been compromised by the pretended assault. Moreover, it is mere speculation to claim that she had to persist in lying after her father told her to contact the police. There is no evidence about the relationship between father and daughter touching upon this matter.

[22] Defendant's Credibility Issues

It may be that the defendant's uncle did not want a pregnant woman in his home in the presence of his sons. At the very least, as eventually admitted by the defendant, she was not welcome there because of her gender. His reluctance to concede this until after repeated questioning may reflect embarrassment about a cultural practice he knows is not common in Canada. In any event, that reluctance shows he was not initially candid with the court. This is relevant to my assessment of his credibility. However, the principal reason I reject his evidence is because it is internally inconsistent; that is, his conduct on the day in question belies his denial of the assault.

[23] Unreasonable Conduct Indicative of Guilt

Assuming the defendant was angry with the complainant simply because she was being childish, the following intentions and actions are unreasonable:

• To leave a home in Pickering late on a holiday to explore public transit options for a trip to London;
• To return to London without the car he normally uses for work;
• To leave his wife behind in an advanced state of pregnancy to either drive to London on her own or remain in Pickering;
• To go to London without his wife and without any further discussion with her, after she had been discharged from the hospital.

[24] Finding of Guilt

I have no doubt the defendant was upset with the complainant because of her prior repeated text messages and present delaying tactics. His anger turned to violence when she also demanded the keys to the car her father had purchased for the couple. This is why he left the Pickering home looking for other means of transportation to London and eventually travelled there alone, without speaking to his wife.

Released: August 13, 2015

Signed: Justice De Filippis