Court File and Parties

Ontario Court of Justice

Date: 2018-04-30

Court File No.: Newmarket 17-10393

Between:

Her Majesty the Queen

— and —

Fady Hanna

Judgment

Evidence and submissions: April 18, 19, 2018.

Delivered: April 30, 2018.

Counsel:

• Mr. Rob Scott, counsel for the Crown
• Mr. Ken Anders, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Hanna is charged with two counts of assault on his wife. Ms. Salib called the police in the early morning hours after her husband woke her up to argue about which one of them would go to work that day. By that time in their troubled marriage they were living separate lives but still in the same house with little communication between them. Neither one of them had made arrangements to look after the children. The argument became heated, it woke the children and Ms. Salib called the police for help. Ms. Salib told the 911 operator there had been no violence that evening, but when she was later asked by an officer if there had been any past physical violence she told them about two prior incidents which led to the charges before the court. The original purpose of her call was to obtain help before the argument escalated to that point. Mr. Hanna testified that his wife is, "the type of person who would call 911 if there's no milk in the fridge". He admitted they argued at times, but he denied using any physical force towards her.

[2] Credibility is the central issue at trial. The instruction in R v WD, [1991] SCJ No 26 applies. In any case where the evidence consists primarily of two witnesses who give different and opposite accounts, it's important to keep in mind that the assessment is not limited to identifying one side as more credible than the other – R v RA 2017 ONCA 714. The court must consider the whole of the evidence to determine whether any credible evidence or circumstance could reasonably leave a doubt on either charge.

The December 911 Call

[3] Ms. Salib was sleeping when her husband knocked on her bedroom door loudly at 1 a.m. He told her to move her car so he could go to work later that morning. He was very angry. Earlier in the afternoon they had argued about who would go to work the next day. She suggested that they alternate days. He ignored her proposal which upset her as she was on contract trying to establish herself as a pharmacist and she needed to let her employer know whether she would be able to work. They did not resolve the issue so after returning from an errand she parked at the top of the driveway so she couldn't be blocked in. That led to the late night threat from her husband to park in front of her car.

[4] Ms. Salib called 911 because she was frightened of her husband's anger when he woke her up. She didn't want things to escalate. She didn't complain of being hit that night to the 911 operator because that didn't happen. She didn't bring up the subject of past violence until she was specifically asked by the police. The 911 call was played in cross-examination. Ms. Salib confirmed that even though she was not hit that night she was upset and crying throughout as can be heard on the call record. In the discussion with the operator she said, "I can't have it anymore. It can't happen anymore. It can't happen anymore". Ms. Salib agreed she did not lock the door when the accused went outside to have a cigarette. She said she knew the police were coming, she was speaking with the 911 operator and she didn't think to lock the door.

[5] Mr. Hanna testified that his wife waited 4 days until the last minute to discuss work arrangements. He felt she was putting him on the spot. He said she moved the cars so she could get to work the next morning. She later asked him if he'd taken her car keys but that didn't make sense as he knew she was hiding them inside her coat. They argued about the position of the cars in the driveway as it related to who would be able to go to work. Mr. Hanna told his wife that if she, "acted like a civilized person" and parked as he wanted he would let her move the cars. If not, he would block her in. The accused laughed as he described his wife's position during the argument. He said, "I know it's nonsense" referring to the fact that her actions during the dispute as he recounted them didn't make sense. Mr. Hanna testified that he was calm throughout and did not threaten or intimidate her.

[6] Mr. Hanna was present when his wife called the police and he said, "I witnessed the switch in tone and all the crying and whining. It happened in a split second." He said that when his wife realized she could not win the parking argument she called the police and fabricated a complaint to punish him.

The December Incident – Sausages

[7] Ms. Salib testified that earlier in December she was feeding the children sausages which Mr. Hanna does not think is a healthy food. He pushed a plate of food she was holding into her chest and they argued. He told her to go upstairs so they wouldn't argue in front of the children. He pushed her down onto the stairs. She explained in cross-examination that she wasn't sure if he meant to push her down as opposed to up the stairs, but she fell down when pushed. He kicked her with his feet while she tried to push him away. Her daughter (then four years old) was crying throughout. She thinks she may have called 911 but then hung up the line. She did not suffer any injuries.

[8] Mr. Hanna testified that he told his wife he was concerned that processed meats caused cancer. He asked her to stop feeding sausages to the children and she agreed. In December, he found her feeding the children sausages and he told her to stop. He took the plate from her and put it in the kitchen. She didn't resist. He testified that she said if he threw the sausages in the garbage she'd throw his chocolate in the garbage. He told her to relax, that he didn't throw the food out it was just in the kitchen. She yelled and screamed for no reason and he told her to go upstairs so they could talk there. She refused to go upstairs but he didn't push or kick or punch her. In cross-examination Mr. Hanna denied that he wanted his wife to go upstairs so their daughter would not see anything. He disagreed, adding that he actually witnessed Ms. Salib "brainwashing" his daughter teaching her to say that "daddy is hurting mommy" apparently referring to an earlier incident at school that led to Children's Aid supervision.

The October Incident – Socks

[9] In October of 2017 Ms. Salib's parents were visiting and her mother was helping with the children. One evening Mr. Hanna found a pair of her socks in an ottoman in the living room. He told her to remove the socks and he put them on the stairs. Later he threw her socks in the garbage. She became upset as he'd done that before. When she took the socks out some garbage spilled onto the floor. She said Mr. Hanna shouted at her to clean it up. In the argument that ensued he went upstairs and took her by the neck from behind causing scratches that bled. A physical fight ensued. She doesn't recall the precise details of the fight, but her body felt sore afterwards. Her daughter was in the room. Afterwards she called 911 from her cellphone but she hung up before they answered. Police did not attend that night.

[10] Ms. Salib testified that she did not go through with the 911 call because she "didn't want to destroy" her home. She explained that she wanted her husband to stop harming her, but she knew that police intervention would likely result in the end of the family. She would be left with three children and would likely receive no financial support as happened when they separated months earlier in February. She described her position as being trapped in a circle with no easy solution.

[11] Mr. Hanna testified that one day he sorted out a mess in their ottoman and found single socks belonging to his wife. He told her to match them and put them on the landing but they sat there for two weeks untouched. He asked her if she was going to take the socks and for no reason she went upstairs, got his socks and threw them in the garbage. She then threw the garbage all over the kitchen floor. In cross-examination he described it differently, "I think she actually kicked it over" referring to a 50 litre stainless steel can. He added that she left the mess on the kitchen floor for almost a week and refused to clean it up. He was calm at the outset. He didn't get upset until Ms. Salib kicked over the garbage can. He never grabbed or scratched her. He didn't hit, punch or drag her. The incident ended with them going to their separate rooms.

Prior 911 Calls

[12] Ms. Salib was cross-examined about three calls to 911 that pre-date the two incidents of alleged assault. Mr. Hanna testified that he never saw his wife call 911 nor did he ever try to stop her from calling. He described her as a "frequent 911 caller" who is the type of person who would call 911 "if there was no milk in the fridge". Every time she called he apologized to the officers because his wife wasted their time. The defence points to the circumstances of the prior calls as detracting from the credibility of the present complaints.

[13] The defence had Ms. Salib read police incident reports from prior 911 calls out loud for the court record. The first incident was on September 20, 2015. On that date police attended the home for a domestic argument and Ms. Salib agrees that she did not make any allegation of any physical altercation. Mr. Hanna testified that he didn't remember the events leading to the first 911 call by his wife where she alleged that he hit her then threatened to take away the children if she told the police. He was shown the police incident report dated September 20th, 2015 marked as Exhibit #1 but he testified that did not trigger any recollection even though the police attended his home.

[14] On May 16, 2016 the police again were called to the home. Ms. Salib explained that her parents were visiting. Mr. Hanna wanted them to leave so he turned off water and electricity in the home. He locked the basement so nobody could access the utilities. The police report marked as Exhibit #2 by the defence was consistent with her account. The police were in the home for hours before the accused finally relented and agreed to turn the water and electricity back on. Ms. Salib agreed in cross-examination that she did not complain about being hit on that occasion. She explained that despite the argument and the accused's behaviour there was no violence as her parents were in the home.

[15] Mr. Hanna did recall the events leading to the second 911 call. His recollection was largely consistent with the complainant's evidence and the police report marked as Exhibit #2. He agreed that he turned off the water and electricity to parts of his home in an effort to force his visiting in-laws to leave. Mr. Hanna testified he told the police, "I have strangers living in my house. I wanted to lock the basement for my security." To force his wife's parents out of the house he shut down the water to the whole house and turned off the electricity to their room. The locked basement door prevented anyone from turning the utilities back on. He conceded the police were in his house for hours before they were able to convince him to turn the water and electricity back on.

[16] Ms. Salib was cross-examined about a third 911 call on June 6, 2016. The argument on that occasion involved air conditioning. Mr. Hanna was living in the basement and didn't want the air conditioning used. They disagreed and he pulled the thermostat from the wall. There was no complaint of violence, but according to the report both parties told the police that they were planning on separation. Ms. Salib agreed that she did not report any violence to the police. Her parents were still in the home so that made a "big difference". Once she saw the report she agreed that her initial recollection that she mentioned being hit on prior occasions was likely not correct. She generally didn't complain to police about past family violence as she, "didn't want to destroy my house".

[17] With respect to the third 911 call in June of 2016, Mr. Hanna agreed that he argued with his wife about the temperature of the house. He was living in the basement and didn't want the air conditioning turned on. He agreed that he removed the thermostat from the wall to prevent her from adjusting the temperature. He added that he felt, "she was trying to provoke me to do something".

Submissions of Counsel

[18] The Crown submits that both charges have been proved beyond a reasonable doubt. The complainant's account was internally consistent. She did not embellish her evidence and she did not speculate on points where she was unsure. She agreed with suggestions put in cross-examination that were reasonable. Her demeanor as a witness was calm and neutral. The defence submission that these complaints were fabricated given the delayed reporting was reasonably explained by the complainant. The defence showed that she provided an incorrect marriage date in a family law affidavit, but that was reasonably explained as there were two different dates on Canadian government papers, she provided both to her counsel and they used one. She gained no advantage in doing so and the date of their marriage was otherwise well known to Mr. Hanna. The complainant's failure to disclose incidents of violence when police attended in the past was reasonably explained by the fact that she didn't want to "destroy her family" and her economic dependence upon her husband to support their three children. She was also fearful her husband would take the children. The fact that complainants in domestic violence cases obtain advice from a family lawyer does not undermine their credibility. There's no basis to suggest that family lawyers are encouraging false claims of domestic abuse. Even on the final call to 911, the complainant did not raise the topic of domestic violence. She did not complain about being hit that day which she easily could have if she wanted to fabricate a complaint. The complainant's testimony was logical and credible.

[19] The defence submits that the complainant was "caught in an ongoing lie" about her marriage date in a sworn family law affidavit so that must cast doubt on all of her evidence under oath in this proceeding. If an oath doesn't bind the conscience of a witness then her evidence loses all value. The court should not accept her evidence without corroboration and there is none. Her evidence is so flawed that it's not reliable and not credible.

[20] The defence reasonably concedes that the complainant's reference to feeling threatened on the night of the final 911 call could have referred to having her car blocked in and the fact of the argument. Her reference to feeling threatened with no allegation of a particular physical threat was not necessarily inconsistent in that context. However, the emotional state of the complainant as heard in the 911 call despite the lack of any physical violence was "over the top" and plainly fabricated. She didn't lock the door when her husband went outside to smoke a cigarette which she would have done if she was worried enough to call police. She said in cross-examination that she didn't think of it which cannot be true. It's also not credible that she had no bruises when hit as she described on a prior incident. The credible evidence of the accused shows there was no violence in the relationship. His evidence was not diminished in cross-examination. There's independent evidence of the accused's good character.

[21] The complainant received legal advice less than two weeks prior to making these allegations to the police. On three prior occasions when police attended she did not make any complaint of violence. It's plain that the complainant was advised if there was any allegation of violence the husband would be removed from the house. These allegations are a fabrication. The accused chose to testify and he told the truth. He should be believed, but even if his evidence is rejected there must be a reasonable doubt on the whole of the evidence.

Analysis

[22] After reviewing the evidence as a whole with the benefit of counsels' submissions, the first step in the WD analysis is to determine whether the accused's evidence is credible in the context of all of the evidence.

[23] Mr. Hanna has degrees in architecture and urban planning and he has had a successful career. He has no criminal record and aside from these complaints is plainly a person of good character. The character witness called by the defence did not add anything to that presumption as his testimony showed he'd never discussed the accused's reputation for honesty within the community. While good character is an important circumstance, it's not unusual for witnesses in cases of alleged domestic violence and it's not conclusive. The substance of the accused's testimony is the focus of the credibility assessment.

[24] Mr. Hanna did not testify in a straightforward, responsive manner. Many times during his evidence he added negative comments about his wife's character and her testimony. He belittled her complaints about past domestic violence saying that his wife is, "the type of person if there's no milk in the fridge she will call 911. She is a frequent 911 caller". The circumstances of the three 911 calls show that she had good reason on each occasion to request the intervention of the police. Mr. Hanna testified that his wife, "brainwashed" their daughter into making statements at school that caused Children's Aid to intervene. This allegation which would bear directly on her credibility and the defence theory in this case was never put to Ms. Hanna in a very careful cross-examination.

[25] Mr. Hanna is of course entitled to disagree with any allegation made by another witness, but his inability to testify in a responsive, factual manner I find undermines the credibility of his testimony. It's at odds with his evidence that he was the calm, rational person during their past arguments. His attempt to trivialize his wife's evidence and her 911 complaints as irrational even after defence evidence had showed the substance of those complaints I find significantly undermines the credibility of his evidence overall.

[26] Mr. Hanna did not seem to think his own failure to discuss child care arrangements prior to December 26th contributed to their argument. That's consistent with the complainant's account as was the fact that he woke her up in the early morning hours to continue that discussion. That odd timing is inconsistent with the calm approach he described but consistent with the state of anger described by Ms. Salib, as was his threat to block her car if she didn't do what she was told. His controlling behaviour as described by Ms. Salib is consistent with his actions on that night and prior occasions including the time he turned off the house utilities and it took police hours to get him to relent. Mr. Hanna's evidence that his wife's "crying and whining" was acting as part of a fabrication to obtain "revenge" on him is not credible and it's inconsistent with the circumstances that evening.

[27] Mr. Hanna's suggestion that his wife fabricated the December 26th complaint in order to obtain an advantage in family court proceedings is plainly contradicted by the circumstances of the complaint. If the call was a planned fabrication she would not have waited until the early morning hours after her children were asleep. She would have complained of violence or death threats being made but she never made any such claim and she did not mention past occasions until she was specifically asked. A planned call would have been timed so that she could attend work the next day which was the point of the entire argument. Instead, she found herself having to take her children to the police station in the middle of the night and she missed work the next day. There's no credible evidence or circumstance that supports the defence theory on this point. The fact that a woman in a troubled marriage receives legal advice provides no basis to assert that she was encouraged to make a false allegation of family violence to win possession of the home.

[28] With respect to the December argument over sausages, Ms. Salib agreed with Mr. Hanna's evidence that the argument involved serving that processed food. Mr. Hanna said he calmly took the food from his wife and put it in the kitchen. For no reason the accused said his wife threatened to throw out his food. For no reason she yelled and screamed at him. I find that Mr. Hanna's evidence that he reacted calmly to Ms. Salib feeding the children a particular food contrary to his wishes is unlikely in the context of all of the evidence. Like her husband, Ms. Salib is a high educated professional and her evidence showed she had logical reasons for her actions and reactions. I find Mr. Hanna's account of the December incident as just another example of his wife's irrational behavior is not credible on the whole of the evidence.

[29] I must make the same finding with respect to the October sock incident. Mr. Hanna's description of his own initial calm approach is unlikely given his actions that day and the whole of the credible evidence at trial. His assertion that his wife threw his socks in the garbage and that she deliberately kicked a can of garbage all over the kitchen floor for no reason isn't logical or credible. His evidence that she left a can of garbage on the kitchen floor for a week wasn't credible and was never put to her in cross-examination.

[30] Mr. Hanna was not a credible witness. While I accept the portions of his account that were confirmed by independent credible evidence, I find I cannot reasonably place any weight on the remainder of his testimony. I cannot accept his account of the two incidents at issue nor does his evidence reasonably leave a doubt. Of course the rejection of the accused's evidence adds nothing to the Crown's case. The burden remains on the Crown to show whether the whole of the credible evidence proves the allegations beyond a reasonable doubt.

[31] Ms. Salib is a pharmacist. She married Mr. Hanna in 2012 in Egypt and then immigrated to Canada. They have three children, one daughter now five years old and twin boys turning four. Her marriage had difficulties from the outset. In the months prior to the December 911 call they were living separate but in the same house with little conversation or interaction between them. In February of 2017, Mr. Hanna left the home for two months and they were separated. He told his wife that the government provides child benefit payments so he wasn't responsible for providing further support.

[32] Ms. Salib answered questions in direct examination and cross-examination in a straightforward and factual manner. She identified details she didn't remember, agreed with facts put to her where her memory was refreshed, and on reflection agreed that her present recollection that she mentioned being hit in a conversation with police three years ago was likely mistaken given that it wasn't mentioned in the police occurrence record.

[33] Ms. Salib did not exaggerate or embellish her testimony. Her specific complaints of two incidents of violence in the home are serious given the domestic context and the toxic state of the relationship, but are otherwise limited with no complaint of injury. Her testimony was logical, internally consistent and consistent with the circumstances she described and the statements and actions of Mr. Hanna.

[34] Ms. Salib reasonably explained how it came to be that she served the children sausages despite the health concerns of her husband. At the time it was the only food in the house of two busy, working, non-communicating parents. Her description of the accused's anger was credible and consistent with his anger and actions during past arguments about thermostats and utilities. Her description of the physical altercation was not exaggerated. She said her husband pushed her onto the stairs but she was careful to explain it seemed to her he was trying to push her upstairs but she fell forward. When she was on the stairs he hit and kicked her but she resisted and tried to protect herself. Their daughter started crying and the incident ended. Ms. Salib's account is logical and consistent with the circumstances.

[35] Ms. Salib thinks she called 911 in relation to that incident but hung up. She believes she did that for both incidents before the court. She explained that she didn't want to "destroy her house" referring to the effect on the family of making a complaint that would lead to her husband's arrest. She said, "It's not an easy decision, you're always in this circle" describing a relationship that at times escalates to violence, but continues because of the complainant's concern not to break up the family and not to become a single mother to three children. She also referred to the fact that based on their prior two month separation she had concern about financial support for the children and she also worried her husband would attempt to take the children away from her. On past occasions she even told police there hadn't been any violence in the home for the same reasons, to prevent the breakup of the family. Ms. Salib's explanation for failing to complain and even at times denying physical violence had occurred in the past is logical in the context of the evidence in this case and describes a common dilemma faced by many victims of domestic violence. I find the lack of prior complaint and even prior denials were reasonably explained in this case and do not detract from the credibility of Ms. Salib's testimony.

[36] Ms. Salib's recollection that her husband threw her socks in the garbage when she didn't move them as she was told to do was credible as consistent with the accused's responses to their other disagreements. When she took the socks out of the garbage and some of the refuse came out she ignored his direction to clean the floor. Her testimony that he became angry, followed her upstairs and pulled her neck from behind is credible in that context given his controlling behaviour during other disputes described at trial. She described a physical fight but understandably was not able to provide a blow-by-blow account. She didn't try to fill in details that she didn't remember and she made no attempt to embellish her evidence. The defence submits that if the blows were sufficient to cause soreness there should have been some sort of injury or bruising. Ms. Salib testified that she saw no bruising. If she wanted to fabricate a complaint that would have been an easy detail to add.

[37] In cross-examination Ms. Salib agreed she did not photograph the scratch at the back of her neck. She explained that if she wanted to make a record of it she would have called the police without hanging up. She believed that the clothing she was wearing may have provided some protection such that the blows did not leave marks that she could see. The incident she described was brief and I can find no meaningful inconsistency in her account. Her evidence on this count was both logical and credible.

[38] Ms. Salib was cross-examined closely about an affidavit filed in current family court proceedings involving her husband. The affidavit was related to a financial statement disclosing her assets and income as required in that court. It's not alleged she made any false statement regarding the financial substance of the affidavit, but it turns out that the marriage date listed in the affidavit was incorrect. Ms. Salib agreed that the marriage date stated didn't match the date of her church marriage in Egypt. She testified that the Canadian government had two different dates listed for her marriage. Neither party asked her whether there was also a civil registration date as required in some countries or whether the two dates reflect some form of error. Whatever the reason, Ms. Salib provided both dates to her lawyer. When she reviewed the financial statement she focused on the substance of the form and didn't notice the discrepancy in the date. She gained no advantage from the error. In fact, the date she provided actually shortens the length of their marriage by 7 months which if anything works to her disadvantage in family court proceedings. Both parties were well aware of the date of their marriage and there was no purpose to her providing a different date other than to accord with the dates she believed the Canadian government had recorded when she came as an immigrant. Although the defence submitted in strong terms that Ms. Salib lied under oath and cannot now be believed, the circumstances were fully explained. It's plain that the discrepancy cited was minor and incidental. It could not reasonably have any impact on the complainant's credibility as a witness in these proceedings.

[39] Ms. Salib's final call to 911 was understandable given the breakdown of the marriage and the escalation of prior incidents to violence. Her testimony was consistent with the details and the tone of the recorded 911 call put to her in cross-examination. She was plainly upset, crying and at times gasping for breath. Her decision not to hang up on this occasion was explained by her statement to the operator that "it can't happen anymore". She called police for help to stop the incident before it progressed further, not to make a complaint about past problems. Even when the operator asked her if there was any violence that night and she had the opportunity to fabricate a complaint she didn't take it. The fact that she didn't think to lock the door while she spoke to 911 is not remarkable, particularly as there'd been no actual violence that evening. The suggestion that she fabricated her complaint for revenge or family law advantage is plainly untrue given the timing, the circumstances that led to her call, and the limited nature of her complaint. It was reasonable for the police later to ask about possible violence given the history of troubles at that house and this time Ms. Salib responded candidly, ending the difficult cycle she'd described.

[40] I find Ms. Salib was a forthright witness who testified in a factual and credible manner. She did not embellish her evidence and she readily identified things she didn't remember. Her evidence was consistent with the objective external evidence of the 911 call and with the history of past incidents put to her in cross-examination. Her failure to report earlier and her denials of violence were reasonably explained. Her account was logical and credible. Ms. Salib's evidence was tested in a very detailed and thorough cross-examination, but nothing of substance was identified that could reasonably impact her credibility. The Crown has proved Ms. Salib's evidence is both reliable and credible.

Conclusion

[41] Considering the evidence as a whole, I find that I cannot accept the evidence of Mr. Hanna nor could it reasonably leave a doubt either alone or in combination with any other evidence. I can find no credible evidence that reasonably could leave a doubt on either count. I find the Crown has proved both counts alleged beyond a reasonable doubt.

Delivered: April 30, 2018.

Justice Joseph F. Kenkel