Ontario Court of Justice

Date: 2019-11-20 Location: Newmarket

Between:

Her Majesty the Queen

— and —

Shahid Rabbani

Judgment

Evidence and Submissions Heard: November 20, 2019. Delivered: November 20, 2019.

Counsel:

• Mr. Wilson, counsel for the Crown
• Mr. Rabbani, on his own behalf

KENKEL J.:

Introduction

[1] Mr. Rabbani was charged with assault and uttering a death threat arising out of an incident with his wife in the early morning of August 18, 2019. Mr. Rabbani had been up all night visiting with his mother and she was leaving the house. He wanted the children to say goodbye and the youngest did, but his two daughters did not get up. An argument followed during which it's alleged Mr. Rabbani stepped on his wife's feet, spit on her and threatened to kill her.

[2] Ms. Hamid testified that her husband could have accidentally stepped on her feet as she lay on the floor where she had been sleeping. He was close enough to her that the spit could have been the result of the angry argument and not deliberate. Given that evidence, the assault count was dismissed at the close of the Crown's case before Mr. Rabbani chose to testify.

[3] Mr. Rabbani explained that he was in a calm state that morning, it was his wife who had just woken up. He denied making any threat and attributed the complaint to the presence of Ms. Hamid's sister who may have encouraged her to call the police.

[4] This case requires an assessment of the credibility of both witnesses along with the circumstantial evidence to determine whether the Crown has proved the remaining allegation beyond a reasonable doubt.

Credibility

[5] The case of R v W(D), [1991] SCJ No 26, provides a framework to assess the conflicting evidence of witnesses in the context of the Crown's burden to prove the charge alleged beyond a reasonable doubt. If Mr. Rabbani's evidence is believed he must be found not guilty. If he is not believed but his evidence leaves a reasonable doubt, he must be found not guilty. Even if Mr. Rabbani's evidence is rejected, if there is any direct evidence or circumstance that reasonably could leave a doubt he must be found not guilty.

[6] Both Ms. Hameed and Mr. Rabbani testified in a straightforward manner and were responsive to questions. I accept that both were complying with their oath to tell the truth as they now remember it.

[7] Ms. Hameed's account was logical and consistent with the circumstances that morning. Mr. Rabbani had been up all night speaking with his mother and the five people sharing the only other bedroom had a restless night given that conversation. It was Eid al-Adha (Feast of the Sacrifice) which is an important holy day. Mr. Rabbani was tired and reacted badly when told that his daughters who are 18 and 20 were not getting up to say goodbye to their grandmother. Ms. Hameed described his actions but at the same time emphasized that she did not think they were intentional. She said he threatened to kill her as alleged, but she also provided an explanation about his personal circumstances that might have led to the threat. She was a reluctant witness.

[8] Mr. Rabbani testified that his recollection of the incident is particularly detailed as he has reflected upon that day afterwards with the help of the Koran. He was somewhat emotional as his mother had health issues and there was a discussion when she left. He wasn't angry and did not utter any threat, but he did have a "little emotion." His wife was sleepy and unhappy with the situation but the police were not called until after he left the house. He suggested that his wife's sister may have encouraged his wife to contact police to gain some advantage.

[9] Mr. Rabbani's evidence was internally inconsistent on the central point. He generally described himself as a calm person that morning with a "little emotion" but in cross-examination he agreed he got angry. The admission of anger is credible considering he'd been up all night, that he felt the situation at the time his mother left was tense, he was concerned about his mother's health, and he was unhappy with the failure of his daughters to say goodbye. Mr. Rabbani's rapid approach to his wife that caused him to step on her toes and then spit in her face are circumstances that are consistent with her evidence that he was angry and inconsistent with the parts of his evidence where he denied that.

[10] Mr. Rabbani's personal circumstances at the time as outlined above detract from the reliability of his present recollection. Ms. Hameed hadn't slept through the whole night, but she didn't have the concerns the accused had at the time and was able to provide a much more detailed description of the incident including what was said. Her account is logical and consistent with the circumstances described by both witnesses. She was a reluctant but candid witness, plainly sympathetic to the accused. There's no evidence of embellishment. On the contrary, she provided excuses for Mr. Rabbani's actions. I find the Crown has proved her evidence was credible and reliable in the context of all of the evidence.

Conclusion

[11] I find I am unable to accept the evidence of Mr. Rabbani. He was a sincere witness, but his present recollection of the event was shown to be unreliable despite his subsequent reflection. Such evidence cannot reasonably leave a doubt.

[12] Considering all of the evidence as a whole, I can find no evidence or circumstance which reasonably could leave a doubt in relation to the alleged threat. Mr. Rabbani will be found guilty on that count.

Delivered: November 20, 2019.

Justice Joseph F. Kenkel