Court File and Parties

Ontario Court of Justice

Date: 2017-06-12

Court File No.: Newmarket 16-05823

Between:

Her Majesty the Queen

— and —

Abdolkarim Emami

Judgment

Heard: May 19, June 12, 2017

Delivered Orally: June 12, 2017

Counsel:

• Ms. Czirmak, counsel for the Crown
• Mr. Vakili, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Emami brought his family from Iran to Canada in 2013. He returned in 2016 from working in Iran as an engineer to support the family. The family he returned to had changed while he'd been away. Financial pressures and other issues led to an argument on August 3, 2016 which the Crown alleges escalated to the point where the accused choked his wife, then later beat her, pushed her into a wall multiple times and hit her hard on the back of the head. The defence called evidence that it was the complainant who was physically violent. Both parties agreed that credibility is the central issue at trial.

The Evidence

[2] Ms. Sherafat testified that she and her husband argued after a family dinner which escalated to the point that her husband started choking her, pressing, "very tight" around her neck. He prevented her from calling the police and threw her cellphone to the floor. He ran upstairs to argue with their son and she was afraid for her son so she followed. She testified that he started beating her. He pushed her into the wall more than five times and beat her about the head. She said he hit her head from behind with a fist or heavy object. She had a headache for a week afterwards and, "lots of bruises on my body". Two weeks prior he had pointed to a knife and said "I want to kill you with this knife". Ms. Sherafat said her husband must have dropped her cellphone while beating her upstairs so she retrieved it and called police. Her husband insulted her and her adult son had a panic attack as a result of the arguing.

[3] In cross-examination the complainant explained that she did not notice the bruises about her body at the time. It was one week after the incident that she noticed bruising. She did notice the redness to her neck immediately and she said that the police saw her neck was very red, indicating that she showed the redness to the police officers. She agreed she declined medical assistance when the police made that offer at her house. In response to defence questions the complainant revealed that she took her own photos of the bruises arising from this incident and sent them to police.

[4] Ms. Sherafat received advice from the Victim Witness Assistance Program and another agency that caused her to attend a hospital to document the injuries she received. A nurse completed the intake form based on responses from the complainant. There was no translator but Ms. Sherafat said she was able to communicate with the nurse. She didn't recall the conversation by the time of trial and allowed that she may not have understood all of the words used. She did confirm that she told the nurse about pushing and hitting and restraining, all checked off. There was no biting, cutting or burning so the form correctly showed those responses. There were check marks beside "kicking" and "objects thrown". Ms. Sherafat did not recall giving those answers to the nurse and testified that she does not know the English word "kick".

[5] The complainant admitted in cross-examination that she didn't tell police that she was pushed into the wall upstairs. She did tell police she was hit several times before being hit in the back of the head. The complainant said that in the months after the incident her husband did not cooperate with setting up a separation agreement. He said to her several times, "I don't divorce I want to kill you."

[6] Constable Melinda Finn received a radio call to attend this incident at 2024h on August 3, 2016. She arrived at 2046h with other officers. She found the complainant visibly upset. When the complainant told her that she'd been choked the officer checked her neck area but did not see any redness on her neck or note other injury.

[7] Mr. Emami was an engineer in Iran. He brought his family to Canada in 2013 but continued working in Iran. During the time apart his wife purchased an expensive Genesis convertible for their son which put some financial pressure on the family. His wife forged his signature to obtain 8 year financing for the luxury vehicle. He saw that his son had changed tires 12 times in 6 months because of stunt driving. The vehicle that was meant to be transportation to university had become entertainment. When Mr. Emami returned he found his oldest son was not in school and was regularly staying out until 5am. He suspected his son of drug use as he saw narcotics paraphernalia in the son's car and saw that his son had lost half of his body weight and his gums were "totally ruined". Mr. Emami and his wife argued about the changes to the family and by August 3, 2016 they'd been sleeping in separate rooms for three months.

[8] Mr. Emami agreed that the argument started in the kitchen after supper. It escalated and his wife started swearing. He yelled at her that it was enough. She hit him on the side of his head several times and he pushed her away. He yelled upstairs to his adult son that, "for a car you ruined my life." He went upstairs and his wife followed accusing him of being with prostitutes in Iran. He told her she was wrong but he knew she had been with a colleague while he was in Iran. She became angry and started punching him. He pushed her away again. She then calmed down and lay down on her bed. She called police. He did not push her into walls or hit her.

[9] In January of 2017 while Mr. Emami was on a bail which included a "no contact" condition the complainant went to his store. After he was finished with a customer she confronted him about not signing her proposed separation agreement. As shown in the store video she became upset and picked an item from the counter and threw it on the floor. He said that when he went to leave his son grabbed him to prevent him from leaving.

Analysis

[10] The Crown referred to demeanor as central to the credibility assessment in this case. Both witnesses were educated, intelligent and polite. They both responded to questions put by counsel. I'm mindful that both were testifying with the assistance of an interpreter. I don't find that the demeanor of either witness could reasonably assist in evaluating credibility in this case.

[11] I did not find the accused's evidence to be credible on the central points. Mr. Emami's testimony that his son was involved in drugs, had lost half his body weight and was so ill his gums were totally ruined was never put to the complainant. His assertion that she forged his signature to obtain financing for the Genesis vehicle was never put to the complainant. Regarding the incident itself, it was never suggested to the complainant that she attacked the accused in the kitchen, hitting him until she was pushed away. It was never suggested to her that she punched her husband on his side upstairs. The defence evidence presents a much different factual scenario on every essential point yet none of those particulars were put to the Crown's witness. In these circumstances I find that the defence choice not to put their contradictory evidence to the Crown's witness significantly detracts from the weight that can be given to the accused's evidence.

[12] Mr. Emami's evidence that his wife was the sole aggressor is unlikely in context and his account provides little explanation about why she would have twice resorted to violence during their argument. His account is inconsistent with Ms. Sherafat's credible evidence that she suffered some bruising and documented her bruises related to this incident at hospital after receiving advice from a social agency to do so.

[13] Ms. Sherafat's evidence was generally logical and in part consistent with the bruising she described, however there were issues with her account as well. Ms. Sherafat described a forceful choking resulting in redness to her neck that she recalled showing to the police. The officer who attended 20 minutes after the call said she did not seeing any bruising and she did not see any redness to the complainant's neck. That contradiction on one of the few points that could reasonably have led to corroboration does not mean that the complainant's account overall can't be true, but it must be considered when weighing the evidence as a whole. The officer's evidence shows that the beating described with blows and pushes into walls apparently left no visible mark that evening. That's unlikely given the complainant's evidence as a whole. The fact that she declined medical assistance does not add to or detract from the credibility of her evidence given the limited injuries she described.

[14] Ms. Sherafat was able to discuss the incident to some degree with a hospital nurse but given her genuine difficulty with some English words I am not able to place much weight on the fact that the nurse checked off boxes that refer to conduct such a kicking that were not part of her evidence at trial. More would have to be known about that interview including the actual words used by both parties before it would be fair to view it as an inconsistent statement.

[15] The photographs the complainant gave to the police were not tendered by the Crown. The Crown may have many reasons for not tendering the photographs including the quality or continuity of the evidence so I draw no inference from the failure to adduce that evidence other than to note that the complainant's reference to the photographs cannot be given any weight in assessing her evidence.

[16] Ms. Sherafat did not explain that the car she purchased for her son was a luxury Genesis model. She was not candid about the cost or the expenses associated with the car. The accused's credible evidence on this point along with the expenses he described better explains the financial impact of the car on the family and why there would be a dispute about having to sell the car.

[17] The fact that Ms. Sherafat was upset and her son was upset when police arrived is a circumstance consistent with either the Crown or defence evidence. The fact that she went to the accused's work place months later to confront him about the separation agreement and was angrily discussing the issue with him and throwing things off his counter is a circumstance that is inconsistent with the historic and ongoing fear that he would kill her as she described at trial and the threats she described both before and after the incident. It also shows the animus with regard to her husband that was apparent at trial. While I don't find any evidence to support the defence theory that this complaint is nothing more than a tactic in a family dispute to get the accused out of the house, I do find that the circumstances described above reasonably leave a doubt about whether the account of either witness is accurate. While the complainant's evidence is more likely than her husband's evidence to be closer to the truth, and it's certain there was some physical altercation between the two, I find I'm uncertain about important details in that regard. On the credible evidence as a whole I find a doubt reasonable remains. The charge is dismissed.

Delivered: June 12, 2017

Justice Joseph F. Kenkel