Ontario Court of Justice

Date: 2017-05-05

Court File No.: Newmarket 16-06308

Between:

Her Majesty the Queen

— AND —

Hamidreza Ghaffari

Judgment

Heard: May 5, 2017

Delivered: May 5, 2017

Counsel:

• Mr. Rob De Chellis, counsel for the Crown
• Mr. Sourena Sarbazevatan, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Ghaffari walked into a mosque and started cursing and swearing. He was ushered outside by the mosque President. On the steps of the mosque he unzipped his pants, took out his penis and started urinating while continuing to yell insults to Islam. The entire incident was captured on video. He is charged with committing Mischief in relation to a property used for religious worship contrary to s. 430(4.1) of the Criminal Code.

[2] To determine whether the Crown has proved the count alleged beyond a reasonable doubt, the court must determine:

• The credibility of the witnesses
• Whether the urination meets the definition of Mischief under s. 430(1) of the Criminal Code
• Whether the defence of necessity applies
• If the Crown proves the Mischief alleged, whether the Crown has proved the act was motivated by bias, prejudice or hate based on religion as alleged

The Evidence

[3] Mr. Ghaffari testified that he was drinking alcohol that day following the death of his mother. He attended the mosque to ask them to say a prayer for his mother but they pushed him out as he had been drinking alcohol. As he walked down the steps he was overcome by a sudden and urgent need to urinate. He had no intention to insult Islam and he called the Crown's witness a liar.

[4] Mr. Kari is the President of the mosque. He was standing near the entrance to the mosque while the Imam was speaking during a Ramadan service. Ramadan is the month of fasting and he said it is considered the holiest month of Islam. The accused came into the entrance of the mosque and stood there looking around. Mr. Kari approached him and Mr. Ghaffari started insulting him, Islam and the persons in the mosque. He called the women prostitutes and the men inside their pimps. He repeatedly said, "Fuck your Religion", "Fuck Islam". He also directly insulted Allah repeatedly.

[5] The three videos of the incident show the actions of the accused and Mr. Kari from the moment the accused entered the mosque until he urinated on the mosque steps. He urinated on the mosque steps in front of two children shown in the video and with other families arriving to the service. The video shows that he yelled and gestured angrily while urinating and then continued to do so afterwards pointing to his urine on the steps and the roadway.

Credibility

[6] Both witnesses testified in a straightforward manner and were respectful and polite. There is nothing in the demeanor of either witness that assists in the assessment of their credibility.

[7] I've considered the evidence as a whole and I find that I cannot accept the evidence of the accused nor could it reasonably leave a doubt either alone or in combination with other evidence for the following reasons:

• The accused's account doesn't make sense. He testified that he attended the mosque to ask for a prayer for his mother but the members of the mosque threw him out and didn't listen to his request. He testified that he was suddenly overcome with a need to urinate on the steps of the mosque for no apparent reason, a need that hadn't been there moments before when he stood beside a washroom but didn't go inside.

• Mr. Ghaffari's account is contradicted in almost every detail by the video evidence. The video shows that he entered the mosque and was not immediately thrown out. He was approached by the mosque president and there was a conversation. The video record of that conversation shows the accused's angry demeanor which is inconsistent with his evidence that he was calm. He was not thrown out by multiple people but rather the mosque president alone ushered him to the doorway and outside. His explanation for his urination as a simple urgent need is contradicted by the video showing an angry demeanor and gestures with apparent shouting throughout. He then points repeatedly at his urine on the steps and ground which is inconsistent with his evidence.

• Mr. Ghaffari's evidence was internally inconsistent on central points including the level of his drinking that evening and the urgency of his need to use the washroom.

• Mr. Ghaffari was agitated that evening and may have been drinking, both circumstances that appear to have affected the reliability of his recollection.

• Mr. Ghaffari called Mr. Kari, "a liar" but none of Mr. Ghaffari's contradictory evidence was ever put to Mr. Kari by the defence in cross-examination. The Crown witness did not have the opportunity to comment on any of the assertions made by the accused in his testimony. While not every breach of the rule in Browne v Dunn will affect the weight of evidence – R v Quansah 2015 ONCA 237, I find that the failure to provide notice to the Crown's witness of the planned attack on his credibility at a time when the witness could comment was unfair. The accused's evidence was otherwise incredible but this point would further reduce any weight given to that evidence.

[8] Mr. Kari's evidence was logical, internally consistent and consistent with the video record. He was remarkably restrained and calm throughout, ushering the accused out of the mosque with minimal force and preventing others from assisting despite what was being said. Once the accused was outside he ceased contact with the accused and then prevented others from reacting to the insults being yelled by the accused. The accused's actions as seen on the video are consistent only with Mr. Kari's evidence. The defence submitted that Mr. Kari lied when he said that he hadn't seen the accused at the mosque before, but the accused himself testified that he didn't recognize Mr. Kari the mosque president on that day, confirming Mr. Kari's evidence that they had not had contact there. I accept Mr. Kari's evidence as credible.

Mischief s. 430

[9] The accused's actions in interfering with the ongoing religious service and interfering with the lawful use of the property constitute Mischief contrary to s. 430(1).

Necessity

[10] It's plain that the accused's act of urination was wilful within the meaning of s. 430(1). The defendant testified that he had no alternative given an urgent need to relieve himself at the time. This testimony if accepted would raise the defence of necessity as an excuse in law.

[11] The accused's testimony on this point was not credible. When he entered the mosque he agreed that he knew there was a washroom immediately to one side. He did not enter the washroom nor did he look in that direction. It's not credible that he would not sense any need to use the washroom when he entered but 1 minute and 32 seconds later after being ushered out he would be overcome by a need so great that he would have to urinate in front of two children and families arriving for Ramadan on the steps of the mosque. His evidence makes no sense and it's not surprising that Mr. Ghaffari was inconsistent on this point when he was questioned in cross-examination. His account is contradicted by the video evidence which shows an angry man shouting and pointing on the mosque steps while urinating. It's also contradicted by the credible evidence of Mr. Kari.

[12] There's no credible evidence which would support the excuse of necessity. Even if the accused did have a sudden uncontrollable need to urinate, as pointed out in cross-examination the video shows an area with bushes directly across a driveway from the Mosque steps. There was no imminent peril or danger and the accused plainly had other legal alternatives to avoid committing the offence – R v Latimer 2001 SCC 1. Even on the accused's evidence the excuse would not apply.

Motivated by Bias, Prejudice or Hate

[13] The defence submits that the accused is an Iranian Muslim, a member of the same sect as the persons who worship at that mosque. They've tendered photographs in evidence to show that in the past the accused was observant and attended Shia holy sites in Iran and Syria. The defence submits that the accused's evidence on this point is credible and shows that his actions could not have been motivated by religious hatred as alleged.

[14] The accused was not a credible witness overall but I accept the fact that he's from Iran and has in the past participated in the Shia branch of Islam. The only credible evidence as to his motivation for his actions on June 29, 2016 comes from his statements at the time. His angry statements denouncing Islam, Allah and the persons who attended the mosque to worship plainly show that the motivation for his actions on that day was religious hatred. He did not mention any other grievance.

[15] His action in urinating on the stairs was not a mere inconvenience. The testimony of both witnesses shows that the mosque is considered a house of God and persons entering must be clean. The video shows persons entering the mosque removing their shoes at the door. The fact that there is a washroom immediately beside the entrance likely relates to that same concern. Mr. Ghaffari did not remove his shoes when he entered the mosque and he knew his action in urinating on the stairs of the main entrance would render the entrance unclean. This was a busy time with families arriving for Ramadan dinner and service. The accused's actions in that context and his contemporaneous statements as to his purpose leave no doubt that on that day at least, he was angry with Islam and those who practice Islam at that mosque. I find that the Crown has proved the mischief was motivated by religious hatred.

[16] In the alternative, if the Crown did not prove the added purpose under s. 430(4.1) the accused would still be guilty of the included offence of Mischief s. 430(1) for deliberately interfering with the use of the property.

Conclusion

[17] I can find no credible evidence that reasonably could leave a doubt. I find that the Crown has proved the count alleged. There will be a finding of guilt.

Released: May 5, 2017

Justice Joseph F. Kenkel