Court File and Parties

Ontario Court of Justice

Date: 2018-05-10

Court File No.: Ottawa 16-DV6554

Between:

Her Majesty the Queen

— and —

Amina Abdi Aden

Before: Justice P.K. Doody

Heard on: September 20, 2017 and April 20 and 26, 2018

Reasons for Judgment released on: May 10, 2018

Counsel:

• B. Bencze and B. Laplante, counsel for the Crown
• K. Irwin, counsel for the accused

Judgment

DOODY J.:

Part 1: Overview and Background

[1] Amina Aden is charged with assaulting Abdirashid Mohamud on July 28, 2015.

[2] Mr. Mohamud has testified that Ms. Aden came up behind him when he was putting on his shoes preparing to leave their home, banged his head on the wall twice, then hooked her hand in his mouth and tore his lip, an injury that required 8 stitches to close.

[3] Ms. Aden denies assaulting Mr. Mohamud. The defence position is that the injury to Mr. Mohamud's lip was either self-inflicted or caused by someone other than the defendant.

[4] Mr. Mohamud and Ms. Aden went through a form of marriage according to Sharia law on March 14, 2007 in Ottawa.

[5] Mr. Mohamud had previously been married under Canadian law to Sophia Mohamud. He divorced her before entering into the Sharia marriage with Ms. Aden. Mr. Mohamud and Ms. Mohamud had had 4 children, all now adults, before he married Ms. Aden.

[6] Mr. Mohamud and Ms. Aden had a daughter, who was 7 years old at the time of the alleged assault.

[7] On September 9, 2014, Mr. Mohamud remarried Sophia Mohamud in accordance with Canadian law. He also went through a form of marriage with her according to Sharia law.

[8] Thereafter, he and Ms. Aden considered him to have two wives according to Sharia law and in accordance with their cultural traditions. He split his time between their residences, alternating the nights he would sleep at each woman's home. He supported both of them financially.

[9] On July 2, 2015, some 3 ½ weeks before the alleged assault, Sophia Mohamud gave birth to a daughter.

[10] On September 28, 2015, two months after the alleged assault, Mr. Mohamud went through a form of divorce from Ms. Aden under Sharia law.

Part 2: Analysis

(a) How I must decide this case

[11] Ms. Aden has testified. If I believe her, I must acquit her. If I do not believe her, but her evidence, when considered with all the evidence, leaves me with a reasonable doubt as to whether her evidence is true, I must acquit her. Even if I do not believe her and her evidence does not leave me with a reasonable doubt, I must consider the rest of the evidence, disregarding the fact that I do not believe her evidence. I can only find her guilty if the rest of the evidence convinces me beyond a reasonable doubt that she assaulted Mr. Mohamud. I must analyze the case in this way in order to comply with the bedrock principle of the presumption of innocence and the requirement that criminal charges be proven beyond a reasonable doubt.

[12] These principles, long established in Canadian law and protected for the last 36 years by the Canadian Charter of Rights and Freedoms, are essential foundations of our criminal justice system. They help protect, to the greatest extent possible, innocent persons from being found guilty of criminal offences.

[13] In determining whether a witness' evidence is credible – that is, whether the witness is honestly attempting to tell the truth – I consider, among other things:

(i) its inherent reliability – that is, whether it is in accord with my understanding of human behaviour;

(ii) whether the witness' evidence is internally consistent;

(iii) whether it is contradicted by other evidence;

(iv) whether the witness has made a prior statement which is inconsistent with the testimony sworn to at trial;

(v) whether the defendant has made an admission explicitly or by failing to provide an explanation for or denial of a statement made to her when she would be reasonably expected to do so if the statement is not accurate;

(vi) whether there is evidence which corroborates the evidence of the witness (although corroboration is not required to support a witness' evidence that the defendant has assaulted someone);

(vii) whether there has been established a motive for the person to have acted as the witness described;

(viii) whether there has been established a motive to provide false evidence or whether there has been established an absence of motive to give the evidence;

(ix) whether the witness answered questions in a forthright manner or attempted to evade or avoid answering; and

(x) the witness' demeanour while testifying, although demeanour is a factor of limited utility in determining credibility. Truthful witnesses can appear nervous and ill at ease simply by the circumstances of testifying in a courtroom, and untruthful witnesses can appear confident and self-assured.

[14] In determining whether a witness' evidence is reliable, I consider, among other things, whether there were impediments to the witness' ability to see or hear the things testified to (such as lighting of the scene, the witness' eyesight or hearing ability, the length of time during which the events took place, the distance between the witness and the events, and whether the witness' view was impeded); whether the passage of time may have affected the witness' memory; and whether the witness is able to adequately describe the things testified to.

(b) Photographs of and medical records clearly establish injuries

[15] Mr. Mohamud clearly sustained an injury to his lip.

[16] He took photographs of his lip, which he took himself on his cellphone. He testified that he took them in his car while driving to the hospital and in the hospital before receiving stitches. They show a significant tear in his left lower lip. One of the pictures shows blood on an overgarment which Mr. Mohamud testified was a khami shirt, which he described as a big shirt men wear to go to the mosque. Mr. Mohamud testified that the pictures were taken at 10:28 a.m. and 10:30 a.m. on July 28, according to the time stamp imprinted by his phone, although the copies entered into evidence were not time stamped.

[17] The medical records from the Ottawa Hospital show that Mr. Mohamud arrived at 2:56 p.m. on July 28, 2015. He was diagnosed and treated for a lip laceration which was described in the records as "large lip defect, extends into the inner mucosa". He received 8 stitches.

[18] Mr. Mohamud also produced a photograph taken on his phone that day which showed 3 or 4 parallel scratches on his upper left shoulder. He testified that they had been made by Ms. Aden when she ripped off his shirt after ripping his lip.

(c) Ms. Aden's evidence was not inherently incredible or inconsistent

[19] Ms. Aden's evidence was direct and given in a forthright manner. She did not shy away from answering questions in cross-examination. She testified that she did not assault Mr. Mohamud at any time.

[20] A week before the day of the alleged assault, both she and Mr. Mohamud had returned from extended trips abroad – her to the United States to visit family, and him overseas. She had learned shortly before they left that he had changed his employment spousal benefits so that the beneficiary was Sophia Mohamud and not her. Although she had not had a difficulty with him having a second wife, or him having another child with her (which she learned of shortly before the trip) the transfer of benefits gave her concerns about her own marriage. She was not happy about Sophia Mohamud being seen as the primary wife. She said she decided that their marriage was not working out and she told him that they should both think about the marriage while they were away.

[21] Mr. Mohamud stayed at Ms. Aden's home the night of July 27, 2015. She testified that the next day, between noon and 1:00 p.m., she called her uncle in Toronto to ask if he would mediate between her and Mr. Mohamud to attempt to resolve their difficulties. As Mr. Mohamud had testified, her uncle had been the man in her family who Mr. Mohamud had asked for approval of his marriage to Ms. Aden, as was customary in their culture. He had also mediated the arrangement between them when Mr. Mohamud remarried Sophia Mohamud. She said Mr. Mohamud became angry, refused to talk to her uncle, put on his shoes and left the house.

[22] She did not deviate from her evidence. Nor did she give evidence which was inconsistent. She was not cross-examined on a prior inconsistent statement other than the text messages I will refer to later in these reasons. She gave her evidence in a straightforward way. Cross-examination did not cause her to waver in or deviate from her evidence in any material way.

(e) Ms. Aden's evidence was corroborated by her daughter

[23] Ms. Aden's daughter from a previous marriage was 26 years old at the time of the alleged assault. She lived with Ms. Aden and Ms. Aden's 7 year old daughter, whose father is Mr. Mohamud. She is employed as a customer service agent for an airline and attends Algonquin College.

[24] She testified that the last time Mr. Mohamud was in the house was in the summer of 2016. Both Mr. Mohamud and Ms. Aden testified that the last time he was in the house was the day of the alleged assault.

[25] She testified that after waking up that day between 11:00 a.m. and noon, she brushed her teeth, dealt with a few things in her room, went on her phone, and checked on her younger sister who was in her own room. She could hear no argument downstairs. She went downstairs and saw her stepfather, Mr. Mohamud, putting on his shoes to leave the house. He was facing the closet, so she saw only one side of his face. Her mother was in the living room, with her phone in her hand. She saw the side of his face but did not see his mouth. She saw no blood anywhere. She could not see his mouth. He was wearing what she described as traditional Islamic dress. He left the house after putting his shoes on.

[26] She testified that her stepfather did not seem angry. He was not rushing out. Her mother was not trying to ask him to stay or to talk. Her mother was not banging her stepfather's head against the wall or grabbing his mouth. She did not say anything to her stepfather. He did not say anything to her. She did not tell her mother to stop.

[27] Nor had she ever come downstairs on any other day to see her mother assaulting her stepfather. Nor had she ever told her mother to stop. She testified she never said to her stepfather "no uncle don't do anything don't do anything just leave her alone."

[28] She testified that her 7 year old sister did not go downstairs at any time that day after she (Ms. Aden's adult daughter) woke up. She said she would have heard her moving downstairs.

[29] Ms. Aden's daughter gave her evidence in a forthright manner. She was not evasive in her answers, either in cross-examination or examination in chief. She testified that she was aware that her stepfather had remarried Sophia Mohamud, but said she did not talk to her mother about that. Nor did she inquire as to her stepfather's whereabouts, either when he was only staying at the house every second night after his remarriage to Sophia Mohamud or when he did not return after the day she saw him leave. She said she did not inquire because she was not a "curious person", but that she later got an explanation that they were separating and then "no more". She said she did talk to her mother about the photos of Mr. Mohamud's injury after he sent them to her.

[30] This evidence was consistent with Ms. Aden's evidence. It is inconsistent with the evidence of Mr. Mohamud.

[31] He testified that after Ms. Aden banged his head against the wall twice, hooked her hand in his mouth and ripped, he moved to the living room. He said that his 7 year old daughter then came downstairs and yelled "stop". He said his stepdaughter came downstairs and yelled "uncle leave her alone." He testified that Ms. Aden then ripped off his khami shirt and scratched him on the shoulder. Later, he testified that she still had her hand in his mouth when his daughter and stepdaughter came downstairs and yelled, at which point Ms. Aden let go of him.

(f) Ms. Aden's text messages and responses to text messages are not clearly admissions that she assaulted Mr. Mohamud

[32] The following texts were sent and received between Ms. Aden and Mr. Mohamud at the times set out:

(i) on July 28, 2015:

Ms. Aden: (4:07 p.m.) I can not see well

Ms. Aden: (4:09 p.m.) I,m not happy what did front of [name of daughter]

Ms. Aden: (4:14 p.m.) The picture u showing me is normal

(ii) on August 4, 2015:

Ms. Aden: (11:47 a.m.) Salamucaleykum you thing you are doing the right juice but, Allah will won for give you what doing to your daughter she is a child she did not do anything to you. Fist I'm sorry if did something that is non right I got upset because you didn't respect me you ran and you know you did something wrong anyway if you want talk to you can what you doing right now is not good the way you are talk to my family just you have to let me know as soon as posable you said my brothers I,m not save that is what 52 year old say and when I come back I will see the way you are talking you are up to something, you don't need to say that you have be clear.

Mr. Mohamud: (12:37 p.m.) Wa Aleykum AL Salaam Sorry if I did something wrong, after 8 stitches you are not even sorry the way you sound, if I did something wrong May Allah give us his mercy . This is not first time not a second time but a third time, the worst for me is you bang it my head on the wall but alhamdulilaah that nothing happen to my Brain. May Allah guide us all and I afraid for my life, I can't trust you anymore.

Ms. Aden: (1:00 p.m.) Xaaji what happen is what happen" I told you I'm sorry what you want me say and you are the who pushed me until the end so we have child together you have to think about your daughter not our self I just want to know, what you want for this family.

Ms. Aden: (1:05 p.m.) This is happened you are men, you have responsibly

Mr. Mohamud: (1:09 p.m.) We have daughter together you are right and I have responsibility for her.

Ms. Aden: (1:10 p.m.) You saying I did three times I did not do do this more then one time but is did something wrong you have to understand that

Ms. Aden: (1:12 p.m.) I understand you get upset you have right to get upset

Ms. Aden: (1:16 p.m.) And for me it was hard for me when did that any way I want to for give me what I did but when you said you not sound sorry I not happy what you doing to [her daughter].

Ms. Aden: (1:24 p.m.) I know you are not bad person and you are working hard and you have to know-that you have another family you can't do what ever you want.

Ms. Aden: (7:21 p.m.) You are not saying anything that is okey, you made this plan that you make Amina upset to find a way to leave so

Ms. Aden: (7:26 p.m.) If you don't want this family you have tell me what you want

Ms. Aden: (7:52 p.m.) If you ignore everyone and keep saying to the hold world afraid for my life, they are not helping you this is what man your age say as said be clear. Nobody know what is your mind and what you doing to your daughter is not good you are damage her life.

(iii) on August 5, 2015:

Mr. Mohamud: (11:30 a.m.) If I am damaging her life!!! Who is damaging her life when you attacked me in front of her and I broke her bed, when I was going to work and you attack me from the back and she was watching this and screaming and lastly last attack that she was crying. Who us doing this to her me or you

Ms. Aden: (11:39 a.m.) You are the one who is damaging Sara and she.

Ms. Aden: (11:43 a.m.) Want her father in her life if you keep doing what you now Allah will ask, you need to ask for givenes to Allah.

Ms. Aden: (11:59 a.m.) You keep saying, you did this you did that, that is your hold point but if you don't see the picture "what you done to your daughter, You think about it!!

[33] Ms. Aden was cross-examined on the texts she sent on July 28, the day of the alleged assault. She testified that Mr. Mohamud had texted her that day after he left the house. She said that he sent a picture of himself around 4:00 p.m. in which he looked normal. He did not tell her why he sent her the picture. She said that the same day he had sent pictures of himself to her family which showed his torn and bloody lip. Members of her family had asked her what had happened. She testified that she believed he was "plotting something" because by sending the pictures to her family members he was acting like she had done something wrong to him.

[34] She was asked why she had written "I'm not happy with what did front of" their daughter. She said that she meant that he was lying normally on the chair and then he ran away.

[35] Ms. Aden was asked about her text on August 4 in which she wrote "I'm sorry if I did something that is not right." She denied that by writing this she was acknowledging that she had done something that was not right. She said that she meant that she was acknowledging that he was upset that she had contacted her uncle.

[36] Ms. Aden was asked, in cross-examination, why she had not asked him what he was talking about when she answered Mr. Mohamud's text of August 4 in which he wrote "after 8 stitches you are not even sorry the way you sound, if I did something wrong …. This is not first time not a second time but a third time, the worst for me is you bang it my head on the wall …." She said that she was surprised at what he wrote and her answer was "what happen is what happen" by which she meant that she wanted to talk about things and it seemed that he did not want to talk about things.

[37] It was suggested to her that if she believed that he was setting her up by sending pictures of his cut lip to her family members, and he was lying to her about what she did to him, it should have been important to her to protect herself and set the record straight by saying that it did not happen. She responded by saying that it was important but she did not answer him back.

[38] Statements made by a defendant which are against her interest are admissible in evidence. Ms. Aden's statements in the texts are not clear admissions that she assaulted Mr. Mohamud. Her explanation was that she said she was sorry if she had done something that was not right because she realized that Mr. Mohamud was upset that she had contacted her uncle to talk about the difficulties with their marriage.

[39] An inference can arise that an accused person has adopted a statement made to her or in her presence where the accused person has been silent or has given an equivocal or evasive denial when she could reasonably have been expected to reply. (R. v. Robinson, 2014 ONCA 63 at paragraphs 48-51)

[40] In Robinson, the Court of Appeal cited with approval the following excerpt from R. v. Eden, [1970] 2 O.R. 161 at pp. 163-4:

The right of a trial Court to conclude that an accused adopted an inculpatory statement made in his presence rests upon the assumption that the natural reaction of one falsely accused is promptly to deny or assert his innocence. It follows that before such an assumption can be acted upon the circumstances surrounding the making of the statement must be such that it would be normal conduct for the person involved by the statement to deny it. When the circumstances are such that the failure to protest can be attributed to some circumstance justifying such failure, the probative value of the failure to protest is lessened and may be entirely negatived.

[41] The court in Robinson also noted the following cautionary approach to the doctrine of adoption by silence recommended by S. Casey Hill, David M. Tanovitch and Louis P. Strezos in their text McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Canada Law Book, 2013):

One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should respond in what are often extreme and unusual situations. Jury suppositions about how an accused "should" behave in such circumstances may be inaccurate. They should be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way. [Citations omitted.]

[42] This caution is particularly appropriate in this case. It is clear to me that Ms. Aden's relationship with her husband is not one to which I can apply rules of human behaviour arising from the traditional cultural norms of many members of Canadian society. Both Ms. Aden and Mr. Mohamud are members of a group within the Canadian multicultural community which has different expectations of how people should behave than do other groups within that community.

[43] The relationship between men and women is one example. I heard evidence, which I accept, that it is the norm for a man wishing to marry a woman in their culture to seek permission from a male in the woman's family. There was a power imbalance between Mr. Mohamud and Ms. Aden. He felt free to change the relationship between him and Ms. Aden, by putting Sophia Mohamud in the position of primary wife and relegating Ms. Aden to the position of secondary wife, without consultation or even notice to her. These things may well have affected the manner in which Ms. Aden responded to Mr. Mohamud.

[44] Ms. Aden testified that Mr. Mohamud stopped all payments of rent or support in any way after he left the house on July 28, 2015. I accept that evidence. At the time these texts were sent, Ms. Aden was in a precarious financial position. Denying her husband's accusation, if it was untrue, would have caused him to become further upset. This would not help her get him to recommence his support of the family. Instead, she wrote "I know you are not bad person and you are working hard and you have to know-that you have another family you can't do what ever you want."

[45] The analysis of how Ms. Aden "should" have reacted or responded to the texts Mr. Mohamud sent to her must be made with these things in mind.

[46] When I consider the entire context in which the text messages were sent, I cannot conclude that, to the extent that she either did not respond to what Mr. Mohamud wrote her, or her responses were equivocal or evasive, she was adopting the accusations he made to her.

(g) Mr. Mohamud sent pictures of his injured lip to members of Ms. Aden's family

[47] Mr. Mohamud sent the pictures he took of his injured lip to members of Ms. Aden's family – to her brothers, her mother, and his stepdaughter. His stepdaughter testified that she received the pictures within a week or two of the day that she last saw Mr. Mohamud in their home. He testified that he did this so that he could show Ms. Aden's family what she did because "I'm an example for the community, I have to be the example to come out and tell what happened." He also testified that what Ms. Aden did was unacceptable to him, and was unacceptable to their community.

(h) Mr. Mohamud was evasive and contradicted himself in his evidence

[48] Mr. Mohamud did not give his evidence in a straightforward manner. He frequently evaded answering the questions put to him. I had to specifically direct him to answer three different questions put to him by defence counsel. Once, he had answered the question by saying "no comment".

[49] His evidence was internally inconsistent. He testified that "I had no issues, until Amina attacked me. That was the last day that I left for Amina. Before that, everything was handy and … and good." and "There's no separation, no divorce, everything was dandy, everything was okay". He also testified, however, that his daughter had seen Ms. Aden attack him three times, and that he could not sleep because he "was afraid every night she might do something to me. She might even knife me, she might – ah – warm up water and … and kill me, you know?"

(i) Mr. Mohamud changed his evidence as to the time the assault occurred after being confronted about discrepancies

[50] In his examination in chief, Mr. Mohamud testified that he took the selfies of his lip as soon as he left the house. He was asked when he had been assaulted by Ms. Aden. He responded by saying that the time stamp on the pictures he took was 10:30 or 10:28. In cross-examination, he confirmed that she had assaulted him at that time. He testified that he drove directly to the hospital after leaving Ms. Aden's home, and that it was a 10 minute drive.

[51] When confronted with the medical records that showed that he arrived at the hospital at 2:56 p.m., he changed his evidence. He said that perhaps he was mistaken as to the time. He testified that, since he had taken parental leave, he had intended to go to Sophia Mohamud's house to help look after his baby daughter when he would normally have been at work and that perhaps he would have been on a 3:00 p.m. to 11:00 p.m. shift that day if he had not been on parental leave. He suggested that perhaps the time on his phone was wrong. The photographs entered into evidence did not have a time stamp.

[52] Ms. Aden testified that Mr. Mohamud left the house beween 12:30 and 1:00 p.m. Her daughter testified that he left the house sometime around midday, after she had woken between 11:00 a.m. and noon, brushed her teeth, dealt with a few things in her room, went on her phone, and checked on her younger sister who was in her own room. If their evidence is correct, Mr. Mohamud could not have driven directly to the hospital and arrived there at 2:56 p.m.

(j) Mr. Mohamud swore an affidavit which was inconsistent with his evidence at trial

[53] On February 17, 2016, Mr. Mohamed swore an affidavit in proceedings in the Superior Court in which he was seeking custody and access to his and Ms. Aden's daughter. At that time, he was proposing that custody be shared equally with Ms. Aden. He acknowledged that he took an oath that the contents of the affidavit were true, and that he was advised of the consequences of swearing something to be true that was not.

[54] In that affidavit, he was asked to answer the following question:

8. When the court is assessing a person's ability to act as a parent, s. 24(4) of the Children's Law Reform Act requires the court to consider whether the person has at any time committed violence or abuse against:

• his or her spouse; • a parent of the child to whom the claim for custody or access relates; • a member of the person's household; or • any child.

I am aware of the following violence or abuse the court should consider under s. 24(4) of the Children's Law Reform Act: (describe incident(s) or episode(s) and provide information about the nature of the violence or abuse, who committed the violence and who the victim(s) was/were)

[55] Mr. Mohamud did not answer this question. He left the space following the question blank, although he testified before me that Ms. Aden had assaulted him on three separate occasions.

[56] Mr. Mohamud testified that he did not answer the question by telling the court that Ms. Aden had assaulted him three times, in front of his daughter, because his lawyer told him that the criminal case and the family law case were two separate things. He testified that the family law case "was nothing to do with criminal case". He also said that he was under shock when he swore the affidavit, and there was no time for him to write specifically on this issue, although he admitted that he had gone to the police about his allegation of assault against Ms. Aden a month before.

(k) Mr. Mohamud was in financial difficulties as a result of supporting two wives and six children

[57] It is clear that Mr. Mohamud was finding it difficult to support both Ms. Aden and Sophia Mohamud, together with his and Ms. Aden's daughter and his and Ms. Mohamud's 4 adult children and one infant. He testified that he was paying rents and expenses for both houses, and that he was "in a debt that you cannot believe". He said that he had to be "man enough to support my wives."

[58] He also testified that he and Ms. Aden had discussed his financial situation before they became married under Sharia law. He said he explained to her that he was paying child support for four children and he had only one pay cheque to contribute to the family. He said that they had entered into an unwritten prenuptial agreement in which she agreed to work full time to help support the family, but she stopped working after their daughter was born and only worked part time on occasion. He testified that she did not hold up her end of the contract. This clearly upset him.

(l) Mr. Mohamud did not go to the police with this complaint until after Ms. Aden had commenced family law proceedings against him and she had not accepted his settlement proposal

[59] On December 30, 2015, Ms. Aden commenced a proceeding against Mr. Mohamud in the Superior Court seeking custody of or access to their daughter. That application was served on Mr. Mohamud on January 9, 2016.

[60] Two days later, on January 11, 2016, Mr. Mohamud's lawyer wrote to Ms. Aden (not to her lawyer) threatening to commence proceedings in respect of access to their daughter, and seek costs against her, if she did not agree to a separation agreement by January 20, 2016. Ms. Aden did not agree. On January 19, 2016, Mr. Mohamud went to the police and told them that Ms. Aden had assaulted him six months earlier.

(m) Mr. Mohamud offered to withdraw the criminal charges if Ms. Aden would agree to withdraw her family law proceeding

[61] Abdisalan Moelim is a work colleague of Mr. Mohamud's. He has known him for over 12 years. He has, on occasion, seen both Mr. Mohamud and Ms. Aden outside of work. He testified on behalf of the defence. He testified that at some point, he believed in 2015, Mr. Mohamud asked him to mediate the family dispute between him and Ms. Aden. He said it was normal in their community for such disputes to be mediated rather than settled in the courts. He testified he spoke to their imam about doing this for Mr. Mohamud. He then agreed to do so.

[62] He said that the first time he approached Ms. Aden in 2015, she refused to take part in the mediation or attempt to resolve the family law dispute. He told Mr. Mohamud that she wanted to go to the family court. He went back to see her in 2016. They already had gone to family court but were waiting for a trial date to determine Mr. Mohamud's support obligations. Mr. Mohamud asked him to tell her that they could settle that dispute outside court. When he went back to speak to Ms. Aden, she told him that there was a criminal charge against her. She did not ask him to mediate that issue. Nor did she agree to participate in a mediation. He then asked Mr. Mohamud if there was a case in the criminal courts. Mr. Mohamud told him that there was, and asked him to return to Ms. Aden and ask her to withdraw her case against him in the family courts. He told him to tell her that if she dropped her case, he would drop the criminal case and they could settle both cases in the community, outside the courts.

[63] I accept Mr. Moelim's evidence. It was clear that he was uncomfortable giving evidence. But he was straightforward in the evidence he gave. He was not shaken in cross-examination. His evidence that it is common in the community to which he, Mr. Mohamud, and Ms. Aden belong to resolve disputes in the community, by mediation by community members rather than through the courts, is corroborated by the evidence of both Mr. Mohamud and Ms. Aden. And he did not go so far as to testify that Mr. Mohamud initially suggested that he propose to Ms. Aden that he would drop the criminal charges if Ms. Aden would resolve the family law dispute. If he was intentionally fabricating evidence to assist Ms. Aden, he could have done so.

Part 3: Conclusion

[64] I believe Ms. Aden's evidence.

[65] It was corroborated by her daughter's evidence, which I accept. She was careful in her evidence to say no more than she had seen. For example, she testified that she was unable to see Mr. Mohamud's full face, so that she could not give evidence about the condition of his lip. If she was intentionally providing false evidence to support her mother, it would have been a simple thing to testify that she had seen his lip and it was not split or bloody. I am not troubled by her lack of curiosity about the ongoing state of the relationship between her mother and her stepfather. I regard that as no more unusual than parents choosing not to inquire into the state of or details of their adult children's relationships. People deal with these things differently.

[66] I do not believe Mr. Mohamud's evidence.

[67] It was internally inconsistent, inconsistent with the affidavit he swore on February 17, 2016, and inconsistent with Ms. Aden's evidence (which I accept) and Ms. Aden's daughter's evidence.

[68] The immediate broadcast of the pictures of the injury to Ms. Aden's family members, so that, as Mr. Mohamud testified, their community would become aware of what she had done, shows that he had a motive to fabricate the assault allegation. He was in dire straits financially as a result of his remarriage to Sophia Mohamud. He saw himself as a leader of their community. The expectations of the members of that community was that a man who married two women had to be able to support both of them. He divorced Ms. Aden, under Sharia law, on September 28, 2015. The distribution of the photographs allowed him to do so without losing face in his community, and end his support of Ms. Aden (until the court ordered him to continue his support on an interim basis after she commenced the family law proceeding).

[69] He delayed reporting the incident to the police for some 6 months. Delay in reporting assaults, particularly those that arise in the context of an intimate relationship, does not by itself undermine the credibility of the testimony that the assault did take place. People delay reporting for many reasons. But in the context of this case, where the alleged assault was only taken to the police after the accused person failed to agree to a proposed settlement of a claim for custody and access, the delay does give rise to credibility concerns.

[70] He then offered to withdraw the criminal charges if she would resolve the family law proceeding. The criminal charges thus gave him leverage in the family law proceeding. That proceeding had the potential to cost him dearly. He had a motive to make a false charge to the police.

[71] I find that Mr. Mohamud intentionally injured himself or caused himself to be injured after leaving Ms. Aden's home on July 28, 2015 sometime before 1:00 p.m. His actions thereafter were driven by his desire to minimize his own financial exposure.

[72] The charge is dismissed.

Released: May 10, 2018

Signed: Justice P.K. Doody