Court Information

Information No.: 2811-998-16-21635-00

Ontario Court of Justice

Her Majesty the Queen

v.

Seyed-Javad Moussavizadeh

Proceedings at Reasons for Judgment

Before the Honourable Mr. Justice M.S. Felix

on February 26, 2018 at Oshawa, Ontario

Appearances

T. Jackson – Counsel for the Crown

D. D'Intino – Counsel for Seyed-Javad Moussavizadeh

Table of Contents

I. Introduction II. The Events of June 12, 2016 III. Analysis: Events of June, 2016 IV. Historical Criminal Allegations V. The "Folder Incident" VI. The "Boston Pizza Incident" VII. The "Cigarette Incident"

Reasons for Judgment

FELIX, J: (Orally)

I. Introduction

The defendant is charged with three counts of assault and one count of assault with a weapon concerning his domestic partner.

In June 2016 the complainant attempted suicide and was hospitalized. The police were contacted. The complainant provided a statement concerning a recent assault allegation. During the interview the complainant provided further detail concerning historical complaints of criminal activity that was not reported to the police at the time of the events.

Many allegations of domestic violence involve assessing the evidence of the complainant and the defendant in accordance with the principles outlined in W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) and applying the criminal burden of proof. This case is largely dependent on an assessment of two antagonistic witnesses - the defendant and his former domestic partner.

I generally believe the evidence of the complainant concerning all of the allegations before the Court. The complainant was articulate, intelligent, and clear about the alleged criminal acts.

I have carefully assessed the evidence of the defendant. I do not find him persuasive. I have some doubts about his recall of events and his report of events. But in the end, I am unable to articulate a complete rejection of his evidence. In other words, his evidence leaves me in a state of doubt.

The criminal burden of proof requires that I be satisfied beyond a reasonable doubt. While I prefer and favour the evidence of the complainant, this is not enough to discharge the criminal burden of proof.

In the result, for the reasons that follow, I am obligated to acquit the defendant.

I will examine the June 2016 event first and then address the historical allegations.

II. The Events of June 12, 2016

In June 2016 the complainant's child suffered a broken bone as a result of an accident at school. The complainant left her child in the care of the defendant while she attended an important job interview. When she returned from her interview, the complainant and the defendant argued about the defendant's level of care accorded her child, his disciplinary approach, and the physical condition of the child. Subsequently, there was further disagreement about a plan to visit the defendant's parents.

The complainant alleges that the focus of the argument was her refusal to attend the defendant's parent's residence. She testified that the defendant physically took her from her child's bedroom to the master bedroom and threw her into the walk-in closet for the purpose of changing her clothes. He held her with one hand and with the other hand removed some clothes for her to wear. While she maintained her refusal to attend his parents residence he became angrier and pushed her such that she collided with a table causing an injury to her left arm. The defendant verbally berated her and then threw her onto the bed. He placed his hand on her neck and threatened to kill her. The grip on her neck was such that she could not breathe and thought she was going to die. The complainant resisted this assault using her hands and legs attempting to push the defendant away.

The complainant testified that the assault ended when the defendant's son entered the room and confronted his father asking him "Dad, what are you doing? You're killing her". The son grabbed the defendant, removed him, took him out of the room and down the stairs telling him to leave the house.

Once the complainant had recovered from the assault, she described going downstairs and encountering her child and the defendant's son arguing about the television remote control in the family room. When the complainant told her daughter to leave the defendant's son alone because he is just like his father, the son swore at her and told her she was the worst mother ever.

In the aftermath of this incident the complainant became very, very upset. She testified that this was the culmination of a long period of abusive behaviour from the defendant. She attempted suicide by taking some pills. She later awoke in the hospital where she received treatment.

The defendant testified that there was a concrete plan to visit his parents that weekend. When he arrived home he confirmed that he spoke with the complainant in her daughter's bedroom. He says that the argument began over the relationship between his mother and the complainant and certain text messages. He asked to see text messages on the complainant's phone and she refused. He grabbed the phone away from the complainant and ran into the master bedroom so that he could review the content of the communications between his mother and the complainant. He situated himself behind the bedroom door to prevent the complainant from coming in as he reviewed the text messages. The defendant testified that once he had completed reviewing the messages, he opened the door, and the complainant rushed in and physically attacked him. He threw the phone on the bed. He defended himself from the attack by holding the complainant's wrists. He acknowledged that there was a struggle on the bed while he was holding the complainant's wrists and she was repeatedly trying to strike him and kick him. He described the complainant trying to free herself by kicking him. His son then entered the room, separated them, and removed him from the room. He testified that the complainant pursued him out of the room and down the stairs and kicked him in the back as he was leaving on the stairs leaving from the second floor of the house to the first floor causing him to fall down.

III. Analysis: Events of June, 2016

The analysis of this event provokes consideration of the following issues:

1. The circumstances surrounding the complainant's statement to the police at the hospital in June 2016;

2. The circumstances surrounding the complainant's statements to medical staff at the hospital in June 2016;

3. Injuries;

4. The cell phone video;

5. The defendant's son;

6. Credibility of the Complainant; and

7. Credibility of the defendant.

A. The Complainant's Statement to the Police at the Hospital

Shortly after the events of June 2016 the complainant was transported to the hospital for treatment. Medical evidence reports and a Domestic Violence checklist completed by hospital staff were filed in evidence. The medical information was admitted on consent for the truth of its contents.

The defendant argues that there are material inconsistencies in the complainant's report to the police, her report to hospital staff, and her testimony at trial.

Further, the defence specifically argued that the complainant was motivated to fabricate her evidence because she anticipated the involvement of the Children's Aid Society in relation to the injury to her child.

The prosecution submits that the police took a brief statement from the complainant given the circumstances and this is the rational for inconsistencies.

The complainant had been hospitalized for medical treatment including mental health treatment. Both the prosecution and the defence suggest this is important for different reasons.

It is important to note notwithstanding the assertion by the defence that the complainant fabricated evidence in her statement to the police - the statement is not in evidence. The allegation was not directly rebutted by reliance on any portion of the statement. As a result, I am limited to assessment the record produced by counsel through questioning and the complainant's answers.

I am not in a position to examine the thoroughness of the police interview or the detail or lack thereof in answers provided by the complainant. I do not accept respectfully the prosecution's submission that the police took a brief statement from the complainant because of her mental condition and the fact that she had been hospitalized. There is no question that the complainant was in the hospital, was receiving medical care including medication to address a suicide attempt. If it is true that the interviewing police officer took a limited approach to the interview because of these factors, it is not in evidence nor is it reasonably available to me based on the evidentiary record. In any event, even if this submission accurately captures the circumstances, this does not end the matter. If the police approach is to interview a witness and it is perceived to be compromised to some degree because of the witnesses' state of mind or medical circumstances it is the responsibility of the police to follow up, to obtain a further interview to obtain clarity to the issues that have been raised.

In a similar vein, I am not able to assess the demeanour of the complainant or to what degree she struggled with language due to the absence of an interpreter during her police interview.

The complainant did not have an interpreter at the hospital. She did utilize an interpreter at trial. Once again, if there was a concern that the original interview provided to the police was compromised by the lack of contemporaneous translation the police had a duty to conduct further interviews with a translator. There is no evidence that the lack of interpretation impacted the statement provided by the complainant.

The defence submits that the complainant demonstrated animus towards the defendant as evidenced by multiple references to her testimony at trial. The defence as I indicated also clearly submitted that the complainant was motivated to fabricate because hospital staff mentioned the involvement of the Children's Aid Society (CAS). It was suggested to her that she was frightened by the CAS involvement given the injury to her daughter. The complainant testified that at the time she did not clearly understand the mandate of the CAS and thought their involvement was for the purpose of protecting her daughter from the defendant. I accept the complainant's perspective on this issue. I do not believe that she was motivated to fabricate because of a concern about CAS involvement.

In the final analysis with respect to her statement there are several conclusions that I accept.

I may safely conclude that although there is evidence before the Court concerning the types of medication administered to the complainant, there is little evidence concerning the dosages, and there is no evidence as to the impact of the medication on the complainant. I may simply conclude that the complainant was receiving medical treatment including mental health treatment nothing further.

The complainant testified that she did her best to answer the questions put to her in the hospital. She says she answered the questions she was asked. I accept generally that this was so, particularly given that I am not in a position to evaluate the record she provided to the police.

Furthermore the third observation I can make, is that it is important that the police were contacted by the hospital staff and not the complainant. The disclosure to the police was in response to her medical treatment as a result of a suicide attempt, not because she initiated involvement with the police.

B. The Complainant's Statements to Medical Staff

The defence argues that the complainant's statements to medical staff contain inconsistencies and material omissions - that the statements are both internally inconsistent at times and that the statements are inconsistent broadly with her evidence at trial.

The medical information was admitted for the truth of its contents. A review of the medical records does support the defence submission concerning inconsistencies and omitted detail. Despite this conclusion, I have not given a great weight to this area of evidence.

First of all, some of the information in the medical reports is certainly hearsay or "double-hearsay". Second, the complainant was receiving medical care including mental health treatment and medication. While I emphasize I have no information as to the impact of the medication or the treatment, I accept the viva voce evidence of the complainant that she was not well.

Third, the complainant did not have the assistance of an interpreter. Finally, even in the absence of an evidentiary record on point, I may reasonably find that the medical staff were not forensically concerned with the circumstances surrounding the complainant's medical condition. Furthermore, there was no investigatory duty on the medical staff (as contrasted to the police) to re-interview the complainant concerning the specifics of any criminal allegation.

C. Injuries

The complainant attributed a number of injuries to the actions of the defendant during the June 12th, 2016 incident. She identified many photos and explained how the defendant caused the injury.

The complainant notably testified that the defendant gripped her neck, for approximately one minute, with such force that she thought she was going to die. The complainant testified in the aftermath her throat area was very painful and she had trouble even swallowing saliva. She further explained that the area of her Adam's apple was black and blue from injury.

It is important to note that the police took several photographs of the complainant for the purpose of documenting injuries yet the photo of her neck area does not appear to me to depict any injury. I have examined the photo of the complainant's neck very closely and there is no apparent injury consistent with her testimony that she was choked in the manner she described. I am cognizant that it is entirely possible that there was no bruising or injury caused by the defendant. It is true that the peculiar dynamic associated with bruising is highly individualized. But, in the end, it is important that there is no photo corroborating the complainant's recount of the pressure on her neck. Given the length of time and the amount of pressure involved one might expect to see some evidence of injury.

I have also noted that the medical staff did not note any complaint or observed trauma to the neck and Adam's apple area. While medical staff did note a complaint of "Bilateral pain to the trapezius" I do not accept the Crown's respectful submission that this amounts to the neck area or Adam's apple. I find that this is not the area that the complainant described when she testified that the defendant choked her on the bed.

I have also examined the photos documenting injuries to the defendant. The parties (both parties) submit that these are "defensive wounds". To the extent this submission is dependent on the depiction of injury in the photographs, I reject it, as there is no expert evidence of causation in this case. The viva voce evidence of both witnesses supports a struggle on the bed in the master bedroom. The defendant testified that the complainant assaulted him and caused the injuries. The complainant conceded that such injury might have occurred when she was defending herself against his assault.

In the end the photos neutrally support both the complainant and the defendant's version of events. The photographs of injuries to both parties does not drive to an immediate conclusion that the defendant committed an assault.

D. Cell Phone Video

The defence adduced a cell phone video of the complainant and other persons recorded approximate to the June 12 event. The video was captured by the defendant's son. The video was largely in a different language. The prosecution and defence agreed to a typed translation of the video with the assistance of an interpreter. The video contains utterances from other persons who have not been called as witnesses. I am relying on the portions of the video acknowledged by the complainant, things that were said in her physical presence.

The complainant testified that the video was taken approximately five minutes after the defendant's assault in the master bedroom – after the defendant had left the scene.

The video provoked two mild reliability concerns with respect to the complainant's evidence.

First of all, prior to seeing the video the complainant denied that she was aggressive towards other parties including her son or the defendant's son. The video clearly shows the complainant's son intervening to prevent her from approaching the defendant's son. The complainant threatens her son with force if he does not get out of her way. The complainant did not acknowledge this type of behavior until the video was played for her.

Second, the timing of the video calls into question the complainant's timeline overall. The complainant testified that after the defendant's assaultive behaviour in the bedroom she went downstairs, she went to see her daughter because she heard her daughter crying. She went to the living room and found her daughter and the defendant's son fighting over the television remote. It is unclear to me if and when this actually happened and if so when given the fact that five minutes after the assault the parties are on the stairs (absent the defendant) outside of the bedroom being filmed by the defendant's son.

In the end I am not sure that I would conclude that the complainant's demeanour on the tape is exactly the demeanour that she presented to the defendant. On her version of the events she had just been viciously assaulted by the defendant. Perhaps her demeanour is an understandable reaction to the unwanted application of force. On the other hand, the video does show the complainant was emotional and even reasonably combative with individuals around her. The video also demonstrates an animus towards the defendant's son that appears to be reciprocated.

E. The Defendant's Son

The prosecution submits that the defendant was inconsistent about his son being present for the incident (as between his statement to the police and his evidence at trial).

The defendant's son was not called as a witness by either side in this trial. This is not intended as a criticism. There might be a variety of good reasons for the absence of this witness. That neither side decided to call a witness who allegedly witnessed the events is probably a tactical decision given the potential for bias, or the absence of an impeachable statement, rather than an effort to shield the Court from material evidence. But, in the result, I have no direct evidence from this apparent material witness.

In these circumstances having regard to the submissions of the parties, it is unwise to conclude anything of significance concerning the defendant's son. I should not conclude that he witnessed an assault. Even if the defendant's son's statements are captured by the cell phone video and even if arguably they were admissible (and there is an argument about that), they have not been testified to in court and subject to cross-examination and the light of day so to speak. So I do not rely on those statements. While it might be true that the defendant was mildly inconsistent and that he told the police that his son was present for the events in the bedroom and then changed his version of events, ultimately this inconsistency does not assist me with determining criminal liability.

The simple finding available is that the defendant's son intervened to separate the defendant and the complainant and that he removed his father from the master bedroom.

F. Credibility of the Complainant

The complainant presented as an intelligent articulate person. She was able to provide fairly specific detail during her articulation of incidents when questioned by the prosecution. At times the complainant was mildly uncooperative with defence counsel during cross-examination. Demeanour evidence provides some limited assistance to a Court including non-verbal cues, body language, eyes, tone of voice, manner of speaking: R. v. N.S. (2010) 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57. However I am mindful that a trial judge must keep in mind that subjective perceptions of demeanour may be an unreliable predictor of accuracy: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.P. (S.H.) (2003) 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2.

The complainant is a highly sympathetic individual. She recently emigrated to Canada with two children from a previous relationship. She was trying to better her circumstances through education and provide a future for her children. It seems that emotional and physical abuse has been a feature of more than one of her relationships. I accept the complainant's perspective that she was trying to make the blended family relationship work with the defendant. She wanted the relationship to work.

There is little doubt that coming and testifying was a difficult exercise for the complainant. That being said the Court is obligated to ensure that decisions are based on fact, inference, and law, rather than undue reliance on obviously sympathetic circumstances.

The circumstances surround her disclosure of the defendant's domestic abuse augment her credibility to a degree. She did not seek police involvement. And there is something akin to a "dying declaration" reliability enhancement to a disclosure like this on the heels of a suicide attempt.

The lack of photographic corroboration of a neck injury, her statement to the police, and the inconsistencies in the medical reports detracted from her credibility to a degree, but mostly impacted her reliability in this case.

G. Credibility of the Defendant

The defendant did not present well or perform well as a witness.

He presented as defensive, highly sensitive, emotional, nervous, self-absorbed, even drifting towards narcissistic. There is little doubt that he has a great focus on pride and ego and these are prominent features of his personality.

The defendant provided highly defensive answers to even the most basic question. At times he recalled specific peculiar detail for events. It was quite evident to me that he was engaged in an ongoing careful analysis of the impact or implication of his answers during his testimony.

That being said, it is important for a Court to step back have some distance from the testimony heard and the observations made and to keep in mind that demeanour evidence alone cannot suffice to properly ground a finding of guilt: R. v. K.(A.) (1999), 123 O.A.C. 161 (C.A.) - at p. 172.

H. Conclusion: Credibility and the Burden of Proof

The main purpose of the Supreme Court of Canada's guide in W.D. is to ensure that the trier of fact correctly analyses credibility issues without losing sight of the overarching criminal burden of proof.

The trier of fact need not believe or accept the defendant's evidence completely or comprehensively in order to have a reasonable doubt: R. v. Minuskin, [2003] O.J. No. 5253 at para. 22. The trier of fact of course may believe all, none or some of a witness's evidence: R. v. Francois, [1994] 2 S.C.R. 827, at para. 14.

The trier of fact is entitled to accept part of a witness' evidence, reject other parts, and determine the weight to be accorded to individual parts: R. v. Howe, [2005] O.J. No. 39 (C.A.), at para. 44.

Guilt may not rest on a simple choice between the defendant's evidence and the complainant's evidence but whether on all of the evidence there exists a reasonable doubt: R. v. C.L.Y., 2008 SCC 2 at para. 8. When the case rests on the evidence of two conflicting witnesses, the trier of fact must be satisfied beyond a reasonable doubt on the issue of credibility: R. v. Selles, (1997), O.J. No. 2502 (C.A.).

Notwithstanding the performance of the defendant, I recognize that a criminal trial is not a credibility contest between the complainant and the defendant.

I preferred and favoured the evidence of the complainant. As I said I found her to be an articulate persuasive witness.

That being said, I cannot categorically reject the defendant's evidence in its entirety. The content of his evidence deserves some weight and some consideration notwithstanding his performance or his demeanour as a witness.

I have set out in this judgment why the complainant's injuries, her statement to the police, her statement to hospital staff, the cell phone video, and the absence of evidence from the defendant's son did not serve to significantly augment the statement or the evidence given by the complainant.

The defendant's version of events was not punctured to any great degree by the cross-examination of the Crown Attorney, and where there were provoked inconsistencies and problems with his evidence it was not sufficient for me to reject his evidence overall.

First, I do not think it significant that the defendant told his parents a sanitized version of the truth concerning the reason for his spouse not accompanying him to the trip to the house. Many partners in a relationship engage in such fictions and white lies when dealing with other family members.

Second, it is true that the defendant was inconsistent concerning his evidence about the complainant kicking him as between his police statement and the evidence at trial. This had some impact on the reliability of his recount. But in the end these inconsistencies when I considered them were not significant. The inconsistencies focused on allegations he made about the complainant assaulting him. The number of kicks, where he was kicked. Not inconsistencies concerning his core version of events – that is to say he did not assault the complainant.

The defendant did not provide a detailed sequenced account of the physical interaction flowing from the daughter's room, to the bedroom, to the stairs in his police statement. He was not asked to. Inconsistencies about where and how many times the complainant allegedly assaulted him as I said provoked mild reliability concerns – but not enough to reject his evidence entirely.

Furthermore, I have been able to evaluate the defendant's statement to the police in its entirety and I cannot reject the defendant's contention that he was tired, scared, and nervous when presenting his statement to the police.

There is no particular reason to categorically reject either recount of the events on June 12, 2016. Consequently, where I cannot decide which version is true, then the Crown has not proven the criminal allegation beyond a reasonable doubt: R. v. S.(J.H.), 2008 SCC 30.

To be clear I do not entirely believe the evidence of the accused, but is nevertheless sufficient to raise a reasonable doubt in my mind on the second branch of the W.D. analysis.

While I favour the evidence of the complainant, I am unable to reject the defendant's version of events. In a civil matter, preferring the evidence of the complainant would be sufficient. In a criminal matter, reasonable doubt can prevail notwithstanding the acceptance of the complainant's evidence.

IV. Historical Criminal Allegations

Having addressed in great detail the merits of the offence allegation that brought the matter to court I will now briefly address the remainder of the prosecution concerned with historical allegations of assault and assault with a weapon.

Once again these allegations rest on the testimony of the complainant and the defendant. There is little other evidence to consider as against the two versions provided by the complainant and the defendant.

V. The "Folder Incident"

The complainant testified that during the winter of 2014 she was studying for the Dental Assistant Program on her bed in the basement apartment bedroom she shared with the defendant. During a verbal argument with the defendant, the defendant became upset and threw a folder at her and struck her forehead causing it to bleed. The defendant immediately apologized.

The defendant testified that a similar event occurred in the kitchen not in the bedroom. He maintained that the complainant studied at the kitchen table not on the bedroom bed. He testified that he did indeed get upset during an argument on an occasion and that the source of the argument was his view that the complainant was not taking her studies seriously and he was trying to assist her with this endeavour.

He was invested in assisting the complainant with her studies and was upset with her lack of dedication. He also testified that he admonished the complainant's daughter because she kept interrupting her mother's studies. He testified that he did indeed cast the binder off the table and onto the floor at the feet of the complainant. The binder did not strike the complainant, it did not touch her in any way. She began to cry and he apologized because he felt guilty for causing to be so upset.

The complainant's varying description of the table or fireplace ledge used to support her folder was not crucial in my view. More important was the fact that the complainant was unable to articulate or explain or recall the source of the argument precipitating this assault of the defendant's actions with the folder. The complainant disagreed that the argument was about her discontinuing her studies because of the length of her studies and the time of year, yet she could not articulate any other basis for the argument.

Having considered all of the evidence at trial and the issues at large, again there is no reason to reject the evidence of the defendant. There is no reason to reject the evidence of the complainant. On this particular allegation, I tend to prefer the evidence of the defendant given he was able to provide specifics a date, a location, and detail for example involving the involvement of the complainant's child, and the reason for the entire argument in the first place.

The defendant is acquitted on this count of assault.

VI. The "Boston Pizza Incident"

The complainant described an assault that occurred near the first floor stairs of the family residence. The complainant and the defendant were arguing about going to a restaurant for dinner. The children were outside in a car on the driveway waiting for their parents.

In direct examination the complainant testified that during the argument the defendant pushed her and hit the back of her head on the stairs. She then modified her testimony and testified that the defendant hit her forehead on the stairs. The complainant amplified her testimony with a physical demonstration in court suggestive of the defendant grasping the rear of her head with his hand and striking her forehead off of the stairs.

During cross-examination the complainant testified that she was facing sideways or partially sideways when the defendant assaulted her. In answer to the suggestion that if she was standing sideways the side of her head would have been struck the complainant maintained that the defendant pushed her head and her forehead hit the stairs.

The defendant confirmed and when he testified that there was an argument in the area of the stairs about going to the restaurant. His version of events was that in the heat of the argument, with the kids waiting in the car on the driveway, the complainant turned and slipped on a rug in front of the stairs.

I am somewhat suspicious of the defendant's version of events on this event. First of all, the evidentiary record supports the presence of this rug at the foot of the stairs for a significant period of time without any other known mishaps. Second of all, I do not recall clearly the complainant being cross-examined about the rug – making it seem to me that the defendant possibly made this up on the stand having regard to the rule in Browne v. Dunn. Defence counsel in this case was eminently prepared, he was thorough, and he was strategic. It seems unlikely that defence counsel forgot to put this circumstance to the complainant.

Where I do not accept the evidence of the defendant I am nonetheless required, pursuant to the third branch in W.D., to assess whether I am satisfied based on the Crown's case overall. Having carefully considered the complainant's versions I am not convinced. She has given several different versions of how the assault occurred as I have described. There are no other witnesses to the event, no objective evidence supporting the complainant's version. So notwithstanding generally the fact that I accept the complainant's version and I do not have credibility issues, I am just unclear and confused about how that assault happened on the stairs and when I am confused, I am unclear, it translates into a state of doubt.

I am left in a state of reasonable doubt concerning this allegation.

VII. The "Cigarette Incident"

The complainant and the defendant both agree that they attended a party at a friend's residence. At the party the defendant consumed alcohol and marijuana. The complainant says that the defendant drove home after the party.

When they returned home the defendant was smoking a cigarette in front of the residence. She testified that she went out to speak to the defendant and ask him why he as smoking a cigarette outside the residence given his physical intoxication from alcohol and consumption of marijuana. She relates that the defendant told her to mind her own business and burned her on the wrist with his cigarette for about a second or two. The complainant did not call the police or obtain medical treatment for the burn. She put on polysporin and then went to sleep. She said that the burn lasted for months and it was photographed by the police in its late stages before it disappeared in June 2016.

The defendant testified that they did indeed attend a party hosted by a co-worker and that persons at the party consumed alcohol and marijuana.

The defendant testified that he did indeed consume alcohol and some marijuana as did everyone at the party including the complainant to a limited degree. Thereafter he testified that the combination of drugs and alcohol caused him to sit quietly with other men at the party enjoying music videos. He was not used to the effects of marijuana. He also was generally aware that the complainant was observing his behaviour at the party and perhaps she was not pleased with his behavior.

The defendant testified that the complainant drove them home given his state of sobriety. Once they were in the car he says that she started arguing with him. She complained that he had made a fool out of her in front of the other guests because he was falling asleep. The implication being he was not sociable because he had drunk too much and he had consumed the drugs. They had an argument specifically about whether or not his eyes were closed at the party.

When they reached home the defendant testified confirmed that he had a cigarette on the porch of the residence. The complainant came out and commented again negatively concerning his level of intoxication and reiterated the points made during the car ride home. She then went inside. He went inside. And they went to sleep together in the same bed. There was no assaultive action by either party on this night according to the defendant's testimony.

Frankly with respect to this event the defendant's testimony about certain aspects of the circumstances leading up to the allegation of burning with a cigarette drive me to prefer his evidence over the evidence of the complainant with the result that the Crown has not proven this allegation beyond a reasonable doubt.

First of all, the photograph of the injury to the complainant described as a cigarette burn does not give the timeline establish that (a) the defendant caused the injury; or (b) the injury was in fact a cigarette burn.

Second, the complainant emphasized the defendant's degree of intoxication at the party. She noted that the defendant drank a lot and smoked weed so much so that he could not even stand on his feet at the party. She also asserted that she had not consumed any drugs and that she was supposed to be the driver that night. She testified that notwithstanding she insisted on being the driver the defendant insisted on driving in his state. During the cross-examination in this area I have to note that the complainant took great care to emphasize the defendant's intoxicated state – he was so imbued with alcohol and consumption of marijuana that he fell asleep and everyone at the party was laughing at him and ridiculing him. The complainant repeatedly emphasized this. I have difficulties with her evidence on this particular part of the allegations. The complainant is a caring mother of two children. Her child was at the party with her and was asleep in the car on the ride home. It seems reasonable that if the defendant was so intoxicated in the manner that she described she would not have placed herself and her daughter at risk by relenting to the defendant's insistence on driving. Given his level of intoxication it might even seem reasonable to infer that persons at the party or the complainant would have vigorously prevented him from driving. This leads me to believe that the defendant did not in fact drive home. He and the complainant both agree that he was intoxicated by the combination of drugs and alcohol.

Furthermore, it seems reasonable to me in my assessment at least that if it was true that the defendant had driven home in that state, the conversation on the porch would not have been about the fact that he was smoking as described by the complainant. I think it is reasonable to assume that the conversation would move to more weighty matters such as how the defendant's obstinate behaviour placed the complainant, her child, himself and the general public at risk from his insistence driving. Given the record at trial, I prefer the evidence of the defendant that he did not drive home in that state from the party.

The complainant's insistence that the defendant drove home causes me to question the reliability of her evidence to a degree. I recognize who drove home that night is not an essential element of the offence but it is significant in this particular scenario.

The defence cross-examined the complainant and suggested that the circumstances surrounding the cigarette incident were provided to the authorities two weeks before the trial. During submissions the defence argued that the complainant recently fabricated this evidence because it was not provided to the police at the time of her hospitalization and as I said was only provided two weeks prior to trial.

I do not find definitively that the complainant recently fabricated this evidence. I am not privy to the acquisition by the police concerning of the circumstances concerning what happened at the party preceding the "cigarette burn incident". The complainant testified that she told the police in the hospital that the defendant burned her arm with a cigarette. In fact, her exact recitation of this utterance was put to her in cross-examination. Further, the complainant testified that she answered the questions put to her to the best of her ability. As indicated earlier in this judgment my respectful view the police are duty bound to conduct further clarifying interviews if the original interview is so obviously compromised by the mental state of the complainant, the medical circumstances of the complainant or the lack of an interpreter. That being said, I have to bear I have heard no evidence from any police officer in this case and I do not have the statement of the complainant in evidence to property evaluate it. Notwithstanding various allegations of recent fabrication. As such I am not in a position to assess the thoroughness of the police interview or the level of detail provided by the complainant.

The photograph of the alleged injury does not assist me with fixing criminal liability on the defendant. The photograph of the injury was not taken proximate in time to the incident and there's no evidence other than the complainant's to suggest it is a cigarette.

Given the circumstances outlined on this particular incident I cannot determine which version of the events occurred. Again where I cannot decide between the competing versions in a criminal trial given the criminal burden of truth that translates into reasonable doubt: See S. (J.H.).

The gentleman is acquitted of the last count of assault with a weapon.

Released: February 26, 2018

FELIX, J.