Ontario Court of Justice

Date: 2019-07-03

Court File No.: Newmarket 19-02373

Between:

Her Majesty the Queen

— and —

Javad Sadeghpour

Judgment

Evidence Heard: April 26, July 2, 2019

Delivered: July 3, 2019

Counsel:

• Ms. Lee-Anne McCallum — counsel for the Crown
• Ms. Sunny Wu — counsel for the defendant

KENKEL J.:

Introduction

[1] The complainant testified that her partner threw vodka in her eyes during an argument and later punched her. Mr. Sadeghpour is charged with Assault and Assault with a Weapon. The accused testified that the complainant did get alcohol in her eyes but it was an accident. He tried to take the vodka away from her and some splashed into her eye. He did not punch her. The Crown submits that the complainant's testimony is credible as it is internally consistent on the central points and consistent with much of the accused's evidence regarding the incident. The defence submits that the complainant's evidence was not credible as her actions after the incident do not reflect the actions a reasonable person might take if they were assaulted. The defence submits that the accused is the more reliable of the two witnesses and his evidence should be believed.

[2] Credibility is the central issue. The principles in R v WD, [1991] SCJ No 26 guide that assessment in the context of the Crown's duty to prove the allegations beyond a reasonable doubt.

The Incident

[3] The evidence of both the complainant and the accused described a difficult and complex relationship. The complainant is an intelligent and articulate woman who met and fell in love with the accused who is many years her senior. Throughout their time together the complainant struggled with severe alcoholism. She became very dependent upon Mr. Sadeghpour and she said their relationship deteriorated to the point where they were constantly arguing.

[4] The accused testified that he genuinely loved the complainant despite learning of her drinking problem as they were dating. He tried to encourage her to seek counselling or get medical help but that was never successful. There were times that the complainant suffered seizures which he attributed to her efforts to stop drinking through sudden abstinence. He agreed their relationship deteriorated over time to the point where they argued frequently in the months prior to the incident that resulted in these charges.

[5] On March 16th Mr. Sadeghpour brought two small bottles of vodka home. He intended to share one with the complainant. He bought smaller bottles to help moderate the level of drinking. He testified that the complainant had some success with moderation to that point, not drinking during the day. Since she was not able to completely refrain from drinking he thought that moderating drinking was the practical approach. After drinking they argued about the fact that the accused's brother's friend from Iran had been staying with them.

[6] The complainant testified that the accused told her he was a homosexual after being confronted about the visitor from Iran. She was very angry and she "said things she shouldn't have said". In response he splashed vodka in her eye and punched her. She described the force of the punch as an "8 out of 10" although after the event on the video statement she described it as a 6.5 out of 10. She scratched him in response as her arms "were all over the place". She said she did not drink alcohol that evening. The accused had been drinking but was not intoxicated.

[7] Mr. Sadeghpour agreed that they argued about the person staying with him. He testified that the complainant had been drinking with him and the argument followed the drinking. She became angry with him and it's then that he says she called him a homosexual. He wanted her to stop drinking so he decided to take the vodka away from her. In that struggle some vodka splashed into her right eye. He did not do that intentionally. After that she was in pain and she fell to the floor. He did not punch her. He went to his truck to get eye wash from his first aid kit but she refused help.

The Alleged Assault

[8] The complainant was uncertain about the circumstances of the punch. Even in her video statement made the day after the incident she described it as happening a second after the vodka was thrown but possibly 10 minutes after, "I couldn't tell you". The complainant also expressed uncertainty about many of the details of that evening including those related to the allegation of assault. She repeatedly said, "I cannot confirm that" which was an honest acknowledgement that she does not remember many of the details of this still recent event. At the outset of her video statement to police she said of her recollection, "there's alcohol involved so that's why I want to be careful".

[9] The accused's testimony that they were both drinking that evening is logical and credible given the circumstances at the time and the events that followed. The complainant didn't accept help to wash the vodka that was causing her pain out of her eye or take steps herself to do so which is consistent with the accused's account of her drinking but is not consistent with her present recollection that she was sober at that time. His evidence was much more detailed but he was evasive when asked about certain topics, primarily about his providing alcohol to the complainant instead of insisting on her abstinence.

[10] Both parties provided detailed answers to questions but at times the complainant was unnecessarily annoyed or argumentative and at times the accused's testimony was evasive. Both generally appeared to be describing the incident as best as they now remember it.

[11] The evidence as to the punch was vague and uncertain. It's not plain when the punch would have happened given the complainant's reaction to the pain in her eye. That portion of the complainant's evidence is not supported by independent evidence as her bloodshot eye and redness is reasonably attributed to having vodka in that eye all night as she described. There was no bruising around the eye. It's not plain there was any injury observed that would be attributable only to a punch. That's not to say it didn't happen, but I find it would be unsafe to convict on the evidence as a whole. The assault charge is dismissed.

Assault with a Weapon

[12] The complainant testified that the accused intentionally threw the vodka in her face resulting in the injury to her eye. Despite the frailties in her evidence already mentioned, that assertion is consistent with the bloodshot and red eye she described that was confirmed by PC Spezza. Given the drinking, the fact of the argument and the fact that she admitted saying insulting things to him, her evidence that he threw the vodka in response is both credible and likely on the whole of the evidence.

[13] The defence submits that the complainant's evidence should be rejected because she did not contact police after her eye was injured and she was initially reluctant to provide a statement after her brother called police. I place no weight on that submission and it's important to explain why. The defence argument relies on pre-conceived views about how a victim of domestic assault should behave. Assault in the domestic context is completely different from incidents involving strangers and the reluctance of persons to complain about even violent conduct from their partners is well recognized and flows from many circumstances unique to that context. The recent case of R v Cepic, 2019 ONCA 541 explains the dangers in relying on stereotypical thinking in credibility assessment.

[14] Considering all of the evidence I find that Mr. Sadeghpour's explanation that the vodka was splashed in the complainant's eyes as he tried to take the glass of vodka from her is less likely but also reasonably possible. The drinking had led to an argument that was escalating and his ongoing concern that the complainant moderate her drinking may reasonably have led to an effort on his part to stop her having more. He had denied her request for more. The credible evidence though including the accused's testimony describes a simple assault – the intentional application of force to take the glass away from the complainant with the unintentional consequence of having vodka splashed into her eye. Mr. Sadeghpour gave few details about how he took the glass away from her, but as he conceded she did not hand it over to him willingly. He took it by the use of force to which the complainant did not consent. The force was enough to eject the contents of her glass resulting in vodka causing injury to the complainant's eye. On his evidence the grabbing of his arm that resulted in scratches occurred before he tried to take the glass away.

[15] Mr. Sadeghpour is found not guilty of Assault with a Weapon s 267 but guilty of the included offence of Assault s 266.

Conclusion

[16] The accused is found not guilty on count one. He's found not guilty on count two as alleged but guilty of the included offence of assault s 266.

Delivered: July 3, 2019

Justice Joseph F. Kenkel