Court Information

Ontario Court of Justice Scarborough – Toronto Date: November 28, 2017

Between: Her Majesty the Queen And: Habib Mohammed

Counsel:

• E. Rokach for the Crown
• No one appearing for the Defendant

Heard: October 5, 2017

Reasons for Judgment

Russell Silverstein, J.:

A. Introduction

[1] Habib Mohammed is charged with two counts of assault and one count of threatening death. The complainant is his estranged wife, A.B. Mr. Mohammed represented himself at trial.

[2] Ms. B. was the sole witness for the Crown. She described two incidents, roughly two weeks apart, when the accused allegedly assaulted her in the apartment she and the accused shared with several members of her family. On the second occasion the assaults were accompanied by death threats.

[3] The accused testified and denied the allegations. In essence he testified that there was indeed a dispute between him and the complainant, but that in so far as there was any physical contact between them, it consisted of her grabbing him and him shaking loose from her grasp. According to him, he did not threaten her. The accused called one other witness to testify about the nature of the relationship between the complainant and the accused.

[4] The issue in this case is straightforward: has the Crown proved beyond a reasonable doubt that the offences occurred? The complainant's testimony, if believed, makes out the alleged offences. The question is: does the testimony of the accused, along with the other evidence favourable to him, examined in the context of all the evidence, raise at least a reasonable doubt.

B. Evidence

(a) Introduction

[5] According to both Mr. Mohammed and Ms. B., they entered into an arranged marriage, having been introduced to each other by a family friend. On both of their accounts the marriage was a miserable one. The couple lived together in a 2-bedroom apartment shared with her mother and father and her five siblings. Ms. B. was a Canadian citizen when they married. Mr. Mohammed was on a visitor's visa that was soon to expire.

[6] Ms. B. describes the accused as generally lazy, possessive and physically and verbally abusive. According to Mr. Mohammed, Ms. B. and her family would routinely berate him and his family. Ms. B. was verbally and physically abusive towards him while constantly threatening to have him arrested if he did not comply with her wishes, which were usually contrary to his choice of lifestyle. In particular, she would often call him when he was out with his friends and remind him that she could put an end to his future plans.

(b) The Incident on August 28, 2016

[7] According to Ms. B., she, the accused and her brother took Ms. B.'s mother out for a ride at 2 a.m. for some tea because she was upset. They returned home at around 4 a.m. She reminded the accused of his obligation to complete some sort of accident report for her father's insurance company. He ignored and mocked her and this upset her. She told him to leave the room and he got angry, grabbing her by the neck, choking her and pushing her to the floor. She screamed and her mother came into the room to find him lying on top of her. The accused called his father overseas and the accused eventually left the apartment. Although Ms. B.'s brother, who also witnessed some of the commotion, threatened to call the police, no one did so.

[8] According to Mr. Mohammed, it was Ms. B.'s brother's idea to take his mother out late that night. She had had a bitter argument with her husband that had left her very upset. Upon their return to the apartment the mother once again got upset, this time at the brother and Mr. Mohammed decided to take the blame, causing both the mother and Ms. B. to get angry at Mr. Mohammed.

[9] Mr. Mohammed withdrew and tried to avoid an argument, yet Ms. B. launched into a verbal tirade and told him to "get the fuck out of the room". He asked her to respect her husband and he went to leave. She began assaulting him. He grabbed on to her so that she would stop. Her brother arrived and began to berate him and his family and threatened to call the police. Ms. B. also threatened to call the police just as her mother had done regarding her father.

(c) The Incident of September 12, 2016

[10] According to Ms. B., this incident arose out of a dispute between her and the accused regarding his continuing failure to provide the accident report referred to above. Once the report was finally ready, the accused used Ms. B.'s computer to send it to her father. While doing so he stumbled upon an old photo of Ms. B. and her former fiancé. Mr. Mohammed flew into a jealous rage. While calling Ms. B. a "fucking bitch" he began punching the mirror and the walls, and then pushed her twice against the furniture. He then left, telling her he would kill her if she didn't get out of his way. After he left, Ms. B. sent him several text messages asking him to be reasonable and to understand that her former fiancé meant nothing to her and that she was a virgin when she married him. She tried phoning but couldn't get through. Finally she did speak to him on speaker phone the next day and pleaded for him to come back. She was afraid he was going to leave her for good and return to the United States. Her family was listening in. This time the accused said "I swear on my mother's life I will kill you". Because this threat was more significant than his earlier threats, she decided to call the police.

[11] According to Mr. Mohammed, Ms. B. would not stop haranguing him about the accident report. She was insisting that he talk to her father again about it. He promised he would but Ms. B. nonetheless told him he was just a big disappointment. When she came home and couldn't get into the bedroom she lost her temper. There were further discussions about the accident report which he finally sent to her father on her computer. While using the computer he saw the picture of her former fiancé and got upset. He was confused but calmed himself and asked for an explanation. He decided to leave the apartment but she grabbed him from behind and implored him to stay. He shook her off and left. He confirmed Ms. B.'s evidence regarding the text messages, and brought them to court. Mr. Mohammed told Ms. B. he needed time to think about the future of the relationship. She called the police just like she had often threatened to do if he left her.

(d) The Evidence of Owias Ali

[12] Mr. Ali testified for the accused. He is the accused's best friend. According to him, on one occasion he was out with the accused when Ms. B. called the accused, who put the telephone call on speaker. Mr. Ali overheard her berating the accused and his family and telling him to "come home right now or I will destroy your life". On another occasion he witnessed the complainant and her mother reminding Mr. Mohammed that they "had the power".

(e) The Cross-examination of the Witnesses

[13] Effectively, the complainant was not cross-examined. The accused, representing himself, clearly had no idea how to cross-examine the complainant and did not undermine her testimony in that way.

[14] The cross-examination of the accused concentrated on his immigration status and his attitude towards the marriage in that context. Mr. Mohammed had very little time left on his visitor's visa when he married Ms. B. The Crown suggested to Mr. Mohammed that the prime motivation for marrying was to achieve residence status in Canada. Even though his explanation of his attitude towards the marriage and its relationship to his status was somewhat fractured, it amounted to essentially this: the accused liked Canada and realized that in order to stay here he would have to marry, which he was keen on in any event. He heard good things about Ms. B. and it seemed like he could have an agreeable arranged marriage as well as a new home in Canada.

[15] The marriage was, however, an immediate failure and the notion of getting sponsored by Ms. B. stopped making sense. While it was initially his goal to find an apartment for them to live in, he abandoned that notion and looked to leave the relationship, which he could not easily do, in fear of her threats to call the police on him, just like she eventually did.

C. Analysis

[16] I reiterate that the question for the Court is: does the testimony of the accused, along with the other evidence favourable to him, examined in the context of all the evidence, raise at least a reasonable doubt as to his guilt.

[17] While the testimony of Ms. B. was delivered cogently and calmly, so was that of the accused.

[18] Ms. B.'s testimony was not undermined on cross-examination.

[19] In my view, Mr. Mohammed's testimony was not significantly undermined on cross-examination either. Even though his testimony concerning his father's assets was somewhat troubling, I do not find that Mr. Mohammed's general credibility was damaged, nor was his version of the critical events significantly weakened.

[20] The complainant's evidence is largely uncorroborated (apart from the text messages, which I shall address below), while that of the accused was corroborated by Mr. Ali as concerns Ms. B.'s attitude and behaviour towards the accused. That Mr. Ali is Mr. Mohammed's best friend, without more, does not undermine his testimony.

[21] The texts that were filed as exhibits raise issues as to the extent to which the complainant's allegations of assault and threats in the texts enhance her credibility. The circumstances of the allegations, coming close upon the complainant's encounter with the accused, and being voiced to him, as opposed to the police, are such that the allegations can provide some support for her credibility, unlike in other types of prior consistent statements. See R. v. Khan, 2017 ONCA 114. But the accused denies these allegations in the very same text message "conversation", and as such, these denials support his credibility. The text messages are thus, as Ms. Rokach put it, "a wash". They do not materially advance the credibility of either the complainant or the accused.

D. Conclusion

[22] A careful review of all the evidence in this trial leaves me quite unsure as to what occurred between the complainant and the accused on August 28 and September 12, 2016. The charges have thus not been proved beyond a reasonable doubt.

[23] The three counts on the information are thus dismissed.

Released on November 28, 2017

Justice Russell Silverstein