Ontario Court of Justice

Citation: R. v. Shafqat, 2018 ONCJ 46

Date: January 24, 2018

Location: Scarborough – Toronto

Between:

HER MAJESTY THE QUEEN

— AND —

RAJA SHAFQAT

Counsel:

L. Epplet, For the Crown

D. Jean-Pierre, For the Defendant

Heard: Oct. 19, 20, Nov. 17, Dec. 13, 2017

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Shafqat is charged with six counts of assault on his wife, Aneega Tahir, one of which is alleged to have involved the use of a weapon, a television remote control. These assaults are alleged to have occurred during their marriage, from 2007 – 2013.

[2] He is also charged with criminal harassment in the summer of 2016 and failing to comply with a recognizance on September 9, 2016.

[3] The allegations arise out of a broken down, arranged marriage with two children. Ms. Tahir and Mr. Shafqat met in Pakistan and married in 2006. She sponsored him to Canada and they lived together in Scarborough from 2007 – 2013, at which time Mr. Shafqat left the home and moved to Edmonton, Alberta, and then back to Pakistan for a short while. He returned to Scarborough some three years later, in 2016 and again encountered Ms. Tahir. As a result of this contact Ms. Tahir called the police and complained that Mr. Shafqat was stalking her. She also told the police that Mr. Shafqat had assaulted her on numerous occasions from 2007 – 2013.

[4] This case turns principally on the credibility of Ms. Tahir and Mr. Shafqat.

[5] Mr. Shafqat testified and denied assaulting his wife. He further denied the criminal harassment allegations and offered an alibi with respect to the final alleged encounter of September 9, 2016.

[6] With respect to any of the alleged offences, if I believe Mr. Shafqat’s denial I must of course find him not guilty. Even if I do not believe him, his evidence and the evidence of other witnesses favourable to his position may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does I must also find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the allegations beyond a reasonable doubt. Only then can I find Mr. Shafqat guilty.

B. EVIDENCE

(a) Introduction

[7] The Crown called only one witness in her case – Ms. Tahir.

[8] Mr. Shafqat called several witnesses in the following order: P.C. Heather Hope, who arrested Mr. Shafqat for failing to comply on September 9, 2016; Muhammad Adnan who testified as to Mr. Shafqat’s alibi for September 9, 2016; Mr. Shafqat; and Muhammed Afzal.

[9] The Crown called P.C. A. Eyden, P.C. H. Hope and Det. J. Brown in reply, all on the issue of Mr. Shafqat’s alibi.

(b) The evidence for the Crown

[10] Ms. Tahir is 32 years old. She is a full time child care worker with an early education degree. According to Ms. Tahir, she and Mr. Shafqat entered into an arranged marriage in 2006. Mr. Shafqat lived in Pakistan when they married. He immigrated to Canada to join her in 2007.

[11] At first the marriage was fine but it soon became clear to her and her family that Mr. Shafqat had lied about his education and was not pulling his weight in providing for the family. She would criticize him at times and he would sometimes respond violently. She described being slapped, struck, pushed to the ground, and choked between 2007 and 2013 when Mr. Shafqat abandoned the family and moved to Alberta.

[12] At first Ms. Tahir told no one about the assaults for fear of breaking up the family. She eventually confided in her mother-in-law and sister who both implored her not to go to the police.

[13] In 2013 Mr. Shafqat suddenly left for Alberta, after having discussed with Ms. Tahir the notion of moving the family there, which she did not want to do.

[14] She did not see him again until June 13, 2016 when he showed up at her workplace. He approached her while she was with the children but she ignored him. Two days later she saw him in a car with Alberta plates in the parking lot adjacent to her workplace. She called the police who told her they would speak to him and to call them if he contacted her again. She received a letter from him shortly thereafter asking to allow him to make arrangements for him to pay child support. She did not respond, but instead called the police, and this time told them about the history of violence.

[15] She learned from the police that he had been arrested and was on bail with a condition that he not contact her.

[16] On September 9, 2016 Ms. Tahir was certain that she saw Mr. Shafqat behind the wheel of the same Alberta plated Nissan she had seen him in back in June. It was lunchtime. He was pulling out of the driveway of her workplace. She called police and gave them the licence number of the Nissan.

(c) The evidence of the accused

[17] According to Mr. Shafqat, he did not particularly want to leave Pakistan for Canada. He was well off in Pakistan and had inherited a good job there, despite his meagre education.

[18] After arriving in Canada his marriage went well. He sought opportunities to better himself and advance his education. He denies that he and his wife argued and he denies ever assaulting her. The only source of tension was Ms. Tahir`s parents who insisted he sell his property in Pakistan for the benefit of his family in Canada. He refused.

[19] The marriage deteriorated when Ms. Tahir returned to university. She and her family increased the pressure on him to further his education and sell his property overseas. Finally they threatened to call the police if he did not leave the family. Afraid of what might happen if he didn`t, he left to work in Alberta. He also returned to Pakistan for an unspecified period of time.

[20] He called Ms. Tahir shortly after his arrival in Alberta to tell her to put the auto insurance in her name. He also invited her and the children to move to Alberta. She refused and told him not to call again so he didn`t.

[21] Three years later, missing his children, he decided to return to Toronto in order to see them and arrange for their support. On June 13, 2016 he went to see them at their school. He saw them and their mother who ignored him.

[22] He denied ever going back to the school again. After being visited by the police and warned not to contact her he consulted a paralegal and had him send a letter offering to make child support payments. Several days later he was arrested and charged with assault then released on bail. Finally, he was arrested for the further offences of fail to comply and criminal harassment on September 9, 2016.

(1) The alibi

[23] Much of Mr. Shafqat`s evidence, and that of other witnesses he called, concerned his whereabouts on September 9, 2016 when Ms. Tahir said he was at her place of employment.

[24] Mr. Shafqat`s first witness was P.C. H. Hope who arrested Mr. Shafqat at his home on Malvern Avenue late in the afternoon on September 9, 2016. She did not see the car that Ms. Tahir reported earlier in the day. Rather she saw another car with a different Alberta licence number.

[25] His next witness was Muhammad Adnan who testified that he lived with Mr. Shafqat on September 9, 2016. On that particular day he saw Mr. Shafqat come to breakfast around 12:45 pm. They then left for Mosque at about the same time and sat near each other until 2:15 pm. If his evidence is accurate Mr. Shafqat cannot have been at Ms. Tahir`s workplace when she says she saw him.

[26] Mr. Adnan said he told one of the arresting officers that Mr. Shafqat had been with him all day and he attended Mr. Shafqats bail hearing where he revealed the alibi to Mr. Shafqats counsel.

[27] Mr. Shafqat gave essentially the same evidence concerning his alibi, although it must be noted that he called Mr. Adnan first and was thus present for his testimony.

[28] Muhammed Afzal testified and confirmed that Mr. Adnan lived at the Malvern address on September 9 and that Mr. Adnan was at the bail hearing, although there were significant inconsistencies between his evidence at trial and his evidence at the bail hearing where he offered himself as a surety.

(d) The Crown’s reply evidence

[29] The Crown called three witnesses in reply on the issue of the alibi. The two arresting officers denied ever hearing Mr. Adnan tell them that he had been with Mr. Shafqat at the material time on September 9, 2016.

C. ANALYSIS

[30] I do not accept the evidence of Mr. Shafqat. His and Ms. Tahir’s evidence both support the conclusion that their marriage was immensely problematic. Ms. Tahir was better educated than him and frustrated by his laziness. She was disillusioned by his failure to tell the truth about his lack of education and his reluctance to sell his property in Pakistan for the benefit of their new family in Canada. While Ms. Tahir readily admitted that both their tempers would fray from time to time, according to Mr. Shafqat, everything was fine until sometime in 2013 when Ms. Tahir told him he had to leave or she would call the police. Mr. Shafqat’s description of the relationship is not credible. The marriage, as described by both parties, would undoubtedly have given rise to arguments on a regular basis. I suspect that Mr. Shafqat’s refusal to admit this is fuelled by a fear that if he admits these disputes he admits too much of Ms. Tahir’s evidence and admits to the motive he would have had to lose his temper as she describes. Moreover, his testimony, when confronted on cross-examination with the discrepancies in Mr. Afzal’s bail testimony, defies credulity. One moment he says he’s sure that Mr. Adnan attended the hearing and then the next moment he claims not to know.

[31] I am also suspicious of Mr. Shafqat’s explanation for why he suddenly, after going three years without speaking to his children, came back to Toronto. He says he returned because he missed his children and wanted to support them. If he missed them so badly why did he wait so long to do anything about it?

[32] I accept Ms. Tahir’s evidence, almost in its entirety, and where I don’t accept it, it is not because I do not believe her, but rather, I have some concerns regarding the reliability of her identification of Mr. Shafqat on September 9, 2016.

[33] She gave her evidence in a forthright and calm fashion. Her account of the assaults had the ring of truth. Her answers, on what she must have thought was a long and intrusive cross-examination, were succinct and unguarded. Her story makes sense given what is so apparent about her marriage to Mr. Shafqat.

(1) The assault charges

[34] Having rejected the evidence of Mr. Shafqat and accepted the evidence of Ms. Tahir regarding the alleged assaults, I am convinced beyond a reasonable doubt that they occurred as she described them.

(2) The alibi and the alleged fail to comply on September 9, 2016

(a) Alibi notice

[35] One issue in this case is whether the alibi defence raised by Mr. Shafqat was properly disclosed to the Crown. As the Supreme Court explains in R. v. Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 S.C.R. 175, proper disclosure of an alibi has two components: adequacy and timeliness. Notice need not come from the accused or his counsel. Notice from a witness will suffice. Nor must notice be delivered to the Crown. Notice to the police will suffice. But the alibi notice must be given with sufficient particularity and early enough for the police to investigate it.

[36] Failure to give proper notice of an alibi permits the trier of fact to draw an adverse inference when weighing the alibi. Improper notice can only weaken alibi evidence; it cannot exclude it. Cleghorn at para 4.

[37] In this case, there was no notice to the police or the Crown from Mr. Shafqat himself, or his counsel. According to Mr. Adnan, he told the police who arrested Mr. Shafqat on September 9, 2016 that Mr. Shafqat was with him throughout the day. The arresting officers both denied receiving any such information.

[38] I need not resolve this discrepancy. Even if Mr. Adnan did tell the police that Mr. Shafqat was with him all day, this notice is not sufficiently particular and detailed to meet the Cleghorn requirement of adequacy.

[39] I thus conclude that the alibi presented at trial was indeed presented without notice to the Crown. Its strength is thus undermined to a great extent.

(b) Conclusion

[40] The issue remains: Am I convinced beyond a reasonable doubt that Mr. Shafqat was at Ms. Tahir’s place of employment on September 9, 2016, contrary to his bail conditions?

[41] Ms. Tahir was on edge that day. She believed she had seen her ex-husband twice earlier that summer, in similar circumstances that frightened her. On those two earlier occasions, he was in a car with Alberta plates. On September 9 she saw a man in a Nissan with Alberta plates for a few seconds. She was sure it was Mr. Shafqat. When police arrived at his home just a few hours later, there was indeed an Alberta plated Nissan parked at the house, but it was not the car Ms. Tahir saw. The car she saw was not there.

[42] Mr. Adnan presented as a well-spoken, credible witness. He is a graduate of a law school in Pakistan and is studying to join the Ontario bar. While he is a close friend of the accused, I heard no evidence that he was motivated to lie under oath in this trial. Notwithstanding the confused evidence of Mr. Afzal, I cannot, on the evidence I heard, reject Mr. Adnan’s alibi testimony.

[43] Notwithstanding the failure of the defence to give notice of the alibi, I am left with a reasonable doubt that Mr. Shafqat was the man behind the wheel of the Alberta plated Nissan seen by Ms. Tahir. Even though she knows Mr. Shafqat well, Ms. Tahir’s opportunity to see the driver was limited. The car she said she saw was not at Mr. Shafqat’s house when the police arrived. When I add to this the evidence of Mr. Adnan I conclude that it is a reasonable possibility that Ms. Tahir was mistaken that day.

(3) The criminal harassment allegations

[44] As stated above, I am not satisfied that Mr. Shafqat came to Ms. Tahir`s workplace on September 9, 2016. I do, however find that he did attend at her workplace on June 13 and 15, 2016. The issue is: does his behavior on those dates make out the charge of criminal harassment beyond a reasonable doubt.

[45] In my view, it does not. While I accept that Ms. Tahir felt frightened by his sudden appearance after three years of absence, there is insufficient evidence to conclude that Mr. Shafqat either intended to frighten her or was reckless in that regard. I do not find that his behavior as she described it makes out the allegation of “watching and besetting”. Nor was his behavior objectively threatening. On neither of these two occasions had he been warned to stay away, and when he was told by police to only contact Ms. Tahir through counsel, he sent a letter to her from a person he believed to be a paralegal.

D. CONCLUSION

[46] In the result I find the accused guilty on all the assault counts and not guilty on the fail to comply and criminal harassment counts.

Released on January 24, 2018

Justice Russell Silverstein