Court File and Parties

Ontario Court of Justice

Date: 2018-09-18

Court File No.: Toronto 4917 998 17-75004733

Between:

Her Majesty the Queen

— and —

Alban Bidollari

Before: Justice Howard Borenstein

Heard on: August 7 and September 5, 2018

Reasons for Judgment released on: September 18, 2018

Counsel:

• Mr. Jacob Wilson, counsel for the Crown
• Mr. Adetayo Akinyemi, Counsel for the accused Alban Bidollari

BORENSTEIN, J.:

Overview

[1] Mr. Bidollari is charged with assaulting his ex-wife on October 3, 2017 and with threatening death by telling her that he would kill her sister.

[2] The accused, and his ex-wife Mirejda were married for 16 years. They have four boys, who are now between the ages 6-16.

[3] They were all still living in the family home at the time of the allegations but their marriage was about to end. They disagree about who wanted to leave the marriage more. The accused says he was through with the marriage due to the abusive way she treats the children. The complainant says she could not take his abuse any longer, although she agreed the accused said he wanted to sign the divorce papers. By any account, it was a hostile environment.

The Complainant

[4] The complainant testified that she was at home on October 3rd with two of her children, including her youngest son, Jessie, who was around 4½ or 5 years old at the time. The accused came home in the afternoon and said he wanted to take the children out. The complainant did not want him to take Jessie and this began the confrontation. She testified that the accused grabbed Jessie and began dragging him. The complainant grabbed Jessie back as she wanted him to eat. The accused allegedly punched her in the arm and took Jessie. They then struggled over Jessie and the accused pushed the complainant. Her foot was caught in a railing and she stubbed her toe. She testified that the punch was intentional. The push may have been accidental. The accused then left with some of the children to pick up their other son Mathew. The complainant called the police. The police attended and called the accused back. The accused returned and was arrested. She has not spoken to the accused since that time.

[5] The complainant came to court with a cell phone photo of a small bruise near her bicep, which she said was taken after the assault. This was the first the Crown had seen of the photo.

[6] The complainant testified that the accused routinely threatened to kill her and her family. The threats were specific and graphic. He allegedly threatened to burn her entire family like mice, killing the complainant last. He said he would make her family disappear. He had a particular fixation on the complainant's sister, whom he blamed for the couple's separation.

[7] Her sister had nothing to do with her decision to separate. She merely helped her with some of the English forms.

[8] In response to a suggestion in cross-examination, the complainant denied that the incident began by her chasing Jessie and trying to discipline him, and the accused trying to prevent her from doing so. She repeated that it began by the accused trying to grab Jessie from her.

[9] The conflict in the home between the complainant and the children is high. It was suggested that the complainant was upset that day because Jessie called her a "fucking bitch" and a "fucking whore". She replied that her children regularly call her names like that. Further, they hit and push her. Her oldest child once put a towel around her neck and threatened to kill her. She called the police on him, not to have him arrested, but, to teach him a lesson. She called the police on him again for lesser reasons, such as when he took or would not return her cell phone. The complainant testified that her two older sons do not speak to her since these allegations and have excluded her from their social media accounts.

[10] The defence adduced two brief cell phone videos the accused took shortly before the incident, including one just before the alleged assault. The accused seems to think this video shows the complainant to be a violent or bad parent. It does not. The videos last only a few seconds but show some of the household dynamic. In one video, the complainant is trying to deal with Jessie who is on the floor in pain or acting as if in pain. The accused then asks Jessie what happened and he replies that his mother hurt him. In the other video clip, taken shortly before the alleged assault, the complainant is basically pursuing and trying to hold Jessie and get him to apologize to her for calling her names. Jessie is trying to hit the complainant on the arms with his shoes. She was clearly having difficulty that day with Jessie. The fact that the accused, rather than help, was recording to try to get some evidence shows the extent of the hostility in this relationship. There is a small bruise visible on the complainant's right arm in one of the videos, but it is not the bruise she alleges the accused gave her by the punch. Defence counsel produced large still photos from the video and submits that, while not clear, they do show the bruise or, at least, does not clearly show no bruise.

[11] When it was suggested to the complainant that she never told the police that the accused punched her, she replied that she did tell the police and showed the officers the bruise on her arm and the photo of the bruise, and one of the officers told her to keep those photos.

[12] The Crown concedes that none of the officers had any notes or any recollection of being shown bruises, told of bruises or told of or shown photos of bruises. Further, she did not ever tell the police the accused punched her. She does tell them about pushing, although it sounds like they were pushing each other while grappling for Jessie.

[13] When confronted with this, the complainant explained that her English was not very good and that she was stressed as the children were in the house. She did testify with an interpreter although her statement to the police was in English.

[14] The complainant testified that the accused threatened her and her family in the graphic manner already described. She never mentioned any threat to herself to the police or the graphic threat to burn the family. She did tell the police the accused threatened to kill her family. These prior statements were adduced by the defence to show a difference in what she told the police from what she alleged, and are not being used as prior consistent statement.

[15] The complainant agreed that Viorela Kundraxhi is a mutual friend of her and the accused and is someone she respects, though she does not speak to her about "these matters". She was asked if she ever told Viorela that she called the police as it was the only way to get the accused out of the home. She did not recall making such comment.

The Accused

[16] The accused testified that he met the complainant in Albania in the fall of 1998. They married and he came to Canada in 2000. For the first two years, he lived with her family. He still has a good relationship with her family. He denied assaulting the complainant or ever threatening her family.

[17] He describes a very different scenario that day albeit one with conflict.

[18] He testified that, on the day in question, he came home and wanted to take the children to soccer. The complainant did not want Jessie to go as she wanted to discipline him for the way he spoke to her. She was forceful and slapped Jessie. Jessie went to the basement. The accused told the complainant; "let me speak to the boy". The complainant replied, "No-you never talk to them, you always let them do whatever they want". She then went after Jessie. The accused took out his phone and began to record the complainant for a moment, but then put the phone back in his pocket. The complainant slapped Jessie again. The accused went in between the two and she ended up slapping the accused's forearms. The accused grabbed Jessie and left. He picked up Mathew, who was at a friend's house, and was going to take them all to soccer. He returned home to pick up his eldest son, Martin. When the accused pulled into the driveway, the complainant came out and admonished him for not also picking up Mathew's friend. Martin decided to stay home to do homework. The accused then left with the other children. At around 5:30 p.m., Martin called and said the police were at the house and that his mother called the police on him. The accused said he would be right there. He gathered the children from soccer and came home. He was arrested.

[19] As for the bruise on the complainant's bicep seen in the photo, he was not sleeping with her at the time and does not know if she had a bruise before. When shown the video he took, he would not readily confirm that no bruise was visible.

Viorela

[20] Viorela Kundraxhi testified. She is friends with both the accused and the complainant, and has known both since 2001. She has seen the complainant verbally and physically abuse the children. The complainant would hit them and call them garbage and useless, and often say "fuck you" to them. She testified that, after the alleged assault, the complainant told her that she called the police "with the intent of getting him out of the house and keeping the contents to herself." Viorela could not believe the complainant would call the police on the father of her children. Viorela was not cross-examined.

[21] That was the evidence called.

Credibility, Reliability and Findings

[22] As always, the issue is whether the Crown has proved either or both counts beyond a reasonable doubt. To do so, the evidence must be both credible and reliable. If there is a reasonable doubt, the accused is entitled to be acquitted.

[23] Both the accused and complainant gave evidence directly contradicting each other.

[24] The complainant says the accused punched her when he pulled Jessie away from her. She denied that he was intervening as she was trying to physically discipline Jessie. She said he threatened to kill her sister, herself and her whole family, and that she told her family about the threats at the time.

[25] The accused testified that he did not assault her. He intervened to protect Jessie from her. He denied he ever threatened her or her family, and testified that he still has a good relationship with her family.

[26] Both testified in what appeared to be a very natural and credible manner. The complainant was somewhat less responsive in cross-examination but that did not undermine her credibility.

[27] I am skeptical about Viorela's evidence that the complainant told her that she called the police to get the accused out of the house in order to get the house and contents for herself. However, Viorela was not cross-examined at all. Moreover, the complainant confirmed that Viorela was a friend that she respected. Further, rather than flatly deny her allegation, the complainant testified that she could not recall saying such things to Viorela.

[28] Adding to this evidence is the photo of the bruise. The photo is potentially very significant evidence. In evaluating its significance, I note several things:

• First, it was produced only on the day of trial. While that is disruptive to the trial and unfortunate, it does not necessarily undermine its reliability or value.

• Second, the photo shows a small bruise on the complainant's right arm which she says the accused caused that day. She testified that she bruises easily. While initially testifying, the complainant pointed to her left bicep when demonstrating where the accused allegedly punched her. When the photo showed a bruise on her right arm, she explained that she did not intend initially to point out which arm the accused punched but merely where on the arm the punch landed, namely, her bicep.

• Third, the photo's date and time stamp bears the date of the offence but a time hours earlier in the day. The Crown says the date is likely right and the time is therefore wrong. Assuming the date is correct, there would be no reason for the complainant to photograph a bruise earlier in the day. I agree with the Crown that it is more likely that the time is wrong.

• Fourth, the photo has the complainant wearing a blue top. That is not what she was wearing in the video of her and Jessie taken just before the alleged assault.

• Fifth, the video of her interaction with Jessie lasts only seconds but shows the complainant's arm before the alleged punch. There is a bruise visible on her right arm, but that is a different bruise than the one shown in the photo. The bruise in the photo does not seem to appear on the video, though I am not sure about that due to the brevity of the video, especially the brevity and angle of the view of her arm. The defence produced still photos from the video which he submits shows that bruise. I do not see that bruise clearly at all but it is also not clear that there is no such bruise.

• Sixth, in any event, the video is turned off after a few seconds and while Jessie is still swinging his shoe at the complainant, and before there was further pushing and grappling with the accused over Jessie. The accused denied punching the complainant and testified he was not sleeping with her at the time and did not know how the bruise occurred.

[29] I consider as well that the complainant testified that she told the officers about the punch and the bruise, and none have any recollection or note of being told. I think it unlikely all the officers would have coincidentally failed to note a bruise or a photograph of a bruise. Further, she never told the police that the accused punched her. I do not accept that language was the issue. She was able to distinguish between pushing and a punch.

[30] So, based on the accused's evidence denying the assault or threats, Viorela's evidence, the concerns flowing from what the complainant did not tell the police about the threat, the punch, the bruises and the photo, I have a reasonable doubt on both counts. I do not reject the evidence of either the complainant or the accused. Accordingly, he will be found not guilty.

Released: September 18, 2018

Signed: "Justice Borenstein"