Ontario Court of Justice
DATE: 2021 03 17 COURT FILE No.: Central East Region: Oshawa Courthouse 20-RA25210
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ATTAUL RAHEEM AHMAD
Before: Justice Peter C. West
Evidence and Submissions Heard on: March 15 and 16, 2021 Oral Reasons for Judgment given on: March 17, 2021
Counsel: Ms. K. Myge................................................................... counsel for the Crown Ms. R. Abraham................. counsel for the defendant, Attaul Raheem Ahmad
WEST J.:
[1] Mr. Attaul Raheem Ahmad is charged with assault causing bodily harm and assault with a weapon in respect of an allegation of assault towards his mother, Mrs. Aroosa Ahmad on September 20, 2020. Mrs. Ahmad testified for the Crown in Urdu through an interpreter. She does not speak any English. The accused Attaul Raheem Ahmad testified on his own behalf.
Factual Background
[2] Mrs. Aroosa is 69 years of age and has four sons and one daughter. One of her sons is the accused, Attaul Raheem Ahmad. She was living in the family home at 1361 Brands Court in Pickering, with her son, Attaul, on September 20, 2020. Her husband is living in a long term care facility and only she and Attaul live in this house. On occasion she visits her other children and stays with them for periods of time.
[3] On September 19, 2020, she returned to the family home after spending two days with her son, Rashid’s family. According to Attaul’s evidence he had been living with his mother for six months to a year. Prior to living at the family home he was in a common law relationship, but they had been separated for a year. Mrs. Ahmad testified she slept on a sofa in the living room or on a single bed that was set up in the living room because she could no longer climb the stairs to her bedroom on the second floor. Mrs. Ahmad described how she walked with a limp and used a cane or sometimes she used her husband’s walker that was in the house on the main floor. Attaul Ahmad agreed in his evidence that his mother and his father, when he still lived at the house, only stayed and lived on the main floor as they could not climb or go down stairs. I observed Mrs. Ahmad have great difficulty walking when she was in the courtroom walking to the witness stand.
[4] Mrs. Ahmad testified when she came home on September 19, 2020, she had groceries with her that she got from a senior’s centre and Attaul assisted her bring these groceries into the house.
[5] She testified after she had gone to the washroom that night she called up to her son, who was upstairs in his room, to bring her cell phone, which he had taken when she returned home. He came down the stairs and for no reason started to beat her. He hit her on her head with a handle, covered in black tape and she fell to the ground. She believed she was unconscious for a period of time. He dragged her to the sofa and beat her all over her body, her arms and legs and her shoulder and hip. She was half on and half off the sofa. She begged him to stop but he did not. She thought the beating went on for an hour and a half.
[6] She indicated she had just finished her prayers and reading her Koran and had gone to the bathroom on the main floor. She was planning to go to sleep on either the sofa or the single bed in the living room. She saw Attaul at the top of the stairs and asked for her phone. He came down and started hitting her with open hands and this handle, which she believed was a gun handle. She did not know how many times he hit her. No evidence was led during the trial about whether the police searched for this handle or whether a handle was located.
[7] Mrs. Ahmad said she tried to protect herself with her hands and arms, but he kept hitting her. He told her she was not his mother. He said to her, “I’m your God, your Allah, do you understand that.” In her evidence Mrs. Ahmad really had no concept of time. It began at night and she talked about being on the sofa or bed when she came to in the morning. She never looked at a clock. She was in pain the next morning. She said it took her an hour to get up because she was so beaten up.
[8] She described how at some point later, perhaps the next morning, she asked her son to help her go pee in the washroom. He only helped her a little and then he left through the back door to the backyard and ran away. This is apparently how Attaul leaves the house to go to a convenience store close to the house. Attaul confirmed he would leave through the back door in his evidence to go to the convenience store to buy cigarettes. He testified the next morning he did go out through the back door to get cigarettes from the store.
[9] At some point she described asking her son for some water and he got a bottle of water and he spit in it and offered this to her. He refused to get her another bottle, so she drank some of the water. It was difficult to determine from Mrs. Ahmad’s evidence at what point this occurred during the interaction between Mrs. Ahmad and her son. Mr. Ahmad testified he gave his mother a bottle of water the next morning when she asked, and he denied spitting in it.
[10] Mrs., Ahmad did not understand why Attaul had beaten her the way he did. She just asked him for her cell phone so she could charge it. She did not know if he had consumed alcohol or drugs. She asked him during her testimony, on at least three occasions, to explain to her what she had done to deserve such a beating.
[11] She wanted to call her daughter the next morning, but she could not because she did not have a phone. Eventually she was able to get to one of her neighbour’s homes and she called her daughter, who called the police and an ambulance, and she was taken to the hospital. She could not walk because of the pain she was experiencing from the beating her son gave her. She was shown photographs of her on a hospital bed taken by the police after she had been seen by the doctors and testified these were the injuries she sustained as a result of her son beating her.
[12] In cross-examination Mrs. Ahmad said Attaul helped her with the groceries when she came in the house. He was fine then. She had her cell phone then. Attaul took the cell phone from her that night. There were also two house phones in the house. She believed he later took the batteries out of those phones after he beat her. She said her sunset prayers and read her Koran before she went to the washroom to get ready to go to bed. Attaul did not say prayers with her. He was up in his room.
[13] She called her daughter after saying her prayers on the house phone. She also called her sister-in-law. She agreed she told her daughter she was not feeling well because she was always not feeling well. Her daughter told her to go lie down. When she was coming out of the washroom, after asking Attaul for her cell phone, he began hitting and beating her. The stairs going upstairs are right across from the washroom on the main floor.
[14] She said she said her prayers and read the Koran on the sofa. She sleeps on single bed in the living room and sometimes will sleep on the sofa. She never showered or took a bath in this house because she could not go upstairs. She would do that at her daughter’s or Rashid’s house. On Sept 19 it was Rashid who dropped her off with the groceries, she had been at his house for two days. Rashid did not come into the house. Attaul testified his mother had been at one of his sibling’s houses for a couple of days.
[15] She asked for the cell phone so she could charge it downstairs. When she asked for it Attaul came down the stairs and started beating her.
[16] When she was at the hospital her daughter and Rashid came there. She was not conscious at the hospital. Her son was speaking to the police officer. She did not recall anything that happened at the hospital.
[17] Exhibit 1 was a series of photographs admitted on consent taken of Mrs. Ahmad at the hospital in the afternoon of September 20, 2020. a) Photos 0002-0006: Left hand, injury to middle finger, b) Photo 0007: Left arm, shoulder and elbow area. Large red/blue bruise, c) Photo 0008: Close-up of left arm, shoulder and elbow area. Large bruise covering most of left upper arm and elbow, d) Photo 0009: Close-up of left arm, shoulder and elbow area. Large bruise covering most of left upper arm and elbow, e) Photo 0010: Right forearm showing bruising, appears to be three red bruise circles close to elbow, f) Photo 0011: Close-up of right forearm showing bruising, appears to be three red bruise circles close to elbow, g) Photos 0012 to 0015: Injury – round ½ inch red abrasion on left cheek close to chin, h) Photo 0016: Right upper arm showing large red/blue bruise with 3 darker red circles in the larger bruise, i) Photo 0017: Close-up of right upper arm with 3 darker red circles in larger bruise, j) Photos 0018-0021: Left upper thigh large cluster of several red bruises, k) Photos 0022-0024: Left hip/waist area with red bruise, l) Photo 0025: Right shoulder and upper back, dark red bruising on shoulder radiating to upper back, and m) Photo 0026: Close-up of right shoulder and upper back with dark red bruising, several smaller red bruises (6-7) in a row at edge of bruising to upper back.
[18] No medical evidence was called during this trial by either the Crown or defence.
[19] In cross-examination Mrs. Ahmad said her son should have told her what she had done to deserve this beating. She did not speak to Attaul that much. She was questioned about her statement to the police at the police station on December 1, 2020. This statement was given through an officer who spoke Urdu according to the transcript, yet Ms. Abraham indicated in her questions it was in the Hindi language. Mrs. Ahmad had not reviewed her statement before testifying on the trial. The transcript of the statement was in English.
[20] Mrs. Ahmad agreed she had medical conditions, osteoarthritis, diabetes and high blood pressure. She takes medications for these ailments.
[21] Mrs. Ahmad said her son was saying to her, “Who are you, give me your name.” He was hitting her entire body. He used a handle with black tape. That was the weapon he had.
[22] She agreed that prior to this date Attaul kept to himself. He made his own food, did his own laundry. He never harmed her before. She knew her daughter had Attaul taken to a psychiatric hospital.
[23] She denied having injuries to her body before coming home on Sept 19. She denied she made this incident up with her daughter to get Attaul out of the house. She denied falling. She denied going upstairs at the house and then falling down the stairs.
[24] She agreed Attaul had thrown a table with her medication on it at her two weeks before this incident, but she did not tell anyone about it. She wanted him not to do it again and told him not to do these things.
[25] Mr. Ahmad testified in his defence. He had a criminal record from 2006 for the offence of assault with a weapon where he received a suspended sentence and probation.
[26] Mr. Ahmad is not working because of spinal arthritis, which he has had for 7-8 years and he is currently applying for ODSP. He was residing at 1361 Brands Crescent with his mother. He has lived in this house with his family for over 15 years. Only he and his mother were residing at this house on September 19, 2020. His mom returned to the house on September 19 and she had been gone for 2 days. She arrived with a bag of groceries and he assisted her bring the groceries into the house. She was by herself.
[27] She always walks with a limp. She has arthritis in her hip and had surgery on one of her knees. Her fingers are bent and crooked from arthritis. She has severe osteoarthritis in her elbows. After helping her into the house he went upstairs to his room. He did not have her cell phone. He sometimes makes jewellery in his room, rings. At some point he went outside to have a cigarette in the backyard. His mother saw him leave. This was quite some time after she came home. He did not speak to her. He said he noticed she recognized him. He went upstairs and stayed there. He had no interactions with his mother. He did not see her again until the next morning at 7 or 8 am.
[28] In the morning he was stressed out, so he went to get cigarettes from the store. He spoke to his mother; she was complaining about lots of pain. She was lying on her bed in the morning. She asked him for help, but he did not help her. She was in a lot of pain. She asked him to help her get up. She had already gone to the bathroom on her bed. Mr. Ahmad testified, “When you see someone in pain you don’t want to touch them.” He got the walker and he touched her – helped her stand up and use the walker. He helped her get half way to the washroom and then he left and went out the back door, hopped the fence and was gone for a half hour. When he returned she was sitting outside on a bench, holding the walker.
[29] He heard his mother’s evidence that the night before she was calling upstairs for him to bring her phone and that he came down and hit her three times. He does not have any items wrapped with black tape. He heard her describe a series of events, that he dragged her to sofa. He did not do that. He does not know a gold ring she had on her finger; he did not remember a ring. He had made her a ring, which he gave her a long time ago, but she didn’t put it on.
[30] He heard her say she was asking for a bottle of water because she was thirsty. When he came back from the store a half hour later he got her a bottle of water from the fridge. She had one by the bed or sofa in the living room as well. She did not ask him for a bottle of water the previous night. He had no interaction with his mother that night. He was fully asleep upstairs. He likes to be aware of his environment. When he went upstairs he stayed up in his room.
[31] He saw the pictures from the hospital. He did not see any bruises when he helped her to the washroom. She was wearing a long sleeved shirt. He testified he thought, “Did she fall? She has diabetes and she is not good at keeping her blood pressure. She’ll sit there, pale and dizzy. She had a whole array of symptoms, which made her incoherent.”
[32] Mr. Ahmad testified he never told her that she was not his mother. He never suggested to her that he was her God, or she was not his mother. He does not have any superstitions in his bones. He testified he asked her what her name was because she was not herself, she was holding onto the walker. She said her pain was overwhelming. She said her name was Aroosa Rafiq. Maybe she was not taking care of her blood work. He did not drag her. He didn’t assist her onto her bed. He was sound asleep upstairs.
[33] His mother had more contact with his sister. He didn’t have much of a relationship with his mother. He said he treated her in normalcy. She never begged him to stop doing something. He saw her sitting on the porch with the walker. He did not see if she left the porch. When she was outside she was calmed down, the sun was shining outside, she was enjoying the afternoon. She didn’t complain about pain. He saw her later on a stretcher being taken away in an ambulance. He did not know what happened.
[34] In cross-examination he agreed he was alone with her in the house on September 19, 2020. Everything was normal. He didn’t really talk to her. She is a woman talking about womanly things with his sister. She was always on the phone. He testified for the first time he came downstairs in the morning as he was going to make her coffee. She called to him – she needed help. She was complaining about a lot of pain she was suffering that morning. He helped her by getting the walker. It made sense to get her his father’s walker to help her get up, but she wasn’t able to. He did not notice any bruising at that point. He helped her because she was struggling. She had more pain than usual.
[35] He agreed she walked with a limp and had trouble going up stairs, but he testified, in fact, she did go upstairs in the house. This was the first time Mr. Ahmad had said his mother went upstairs in the house.
[36] In the morning he stopped helping her when she got close to the washroom. She was going to use the downstairs bathroom. She had urinated on herself, but she did not ask for help to change her clothes. She has a nurse that comes to help her, but he did not think she was coming that day. She did not change her clothes and she stayed in the same clothes.
[37] Mr. Ahmad testified he asked her why she was in pain and she kept saying why had he done this to her. He agreed he did not call Shahiba, his sister. The pain she was saying she had was not usual. He could only do so much for her, and he had to take care of his own life. He did not call Rashid or any of his other brothers. He was more focused on his life. He could have asked his mother for his sister’s number, but he did not think of it, as it was a hectic moment. He agreed she was in more pain than usual. He had never seen her urinate herself in bed before. He did not call 911 or call the clinic to speak to her doctor.
[38] When he was asked about her pain medication Mr. Ahmad said he asked her if she needed pain medication, but she did not say anything. He went and got some Benadryl from his room and this was why she needed a glass of water. This was when she came out of the washroom, before she went outside and sat on the porch. He testified he left after she got close to the washroom and he knew she was going into it. This was when he left to go out the back door
[39] When he came back from having his cigarette his mother was sitting on her bed. This was also a change in his testimony. She was sighing about her pain, not screaming. This was when he asked her if she wanted her medication. He got the Benadryl from his room and gave it to her. Then he went back upstairs to his room. He was organizing things in his room to make rings. He had another cigarette outside. He met a friend and got a cigarette. He went to see a friend to see if he could get another cigarette. Mr. Ahmad’s evidence changed again, and he now indicated he never bought cigarettes as he had no money, he just bummed them off of people on the street. He now said he went out on two occasions to bum cigarettes off of people walking on the street.
[40] Initially Mr. Ahmad said when he came back from getting cigarettes his mother was sitting outside on the bench on the porch, now he testified when he came back the first time she was sitting on the bed in the living room.
[41] He testified he never hit her on the head but if he had hit her on the head with a large object there would have been blood everywhere on the floor. He has no idea how she got bruises all over her body. He thought maybe she went up the stairs when he was sleeping and then fell down the stairs. He testified for the first time that his mother had fallen down the basements steps previously and she had similar bruises as he saw in the photographs taken at the hospital. The last time she fell down the basement stairs her whole arm was bruised up. She once fell on her bum and had bruises.
[42] He agreed his mother never told him she fell down the stairs when he asked about why she was in pain that morning. Mr. Ahmad then told the Crown the railing going upstairs was shaky for the whole time they have lived in the house. He agreed if his mother was going upstairs the railing would have been fixed. Everyone in the family was aware of this shaky railing. Nobody fixed the railing because their mother was not going up the stairs. He agreed his mom and dad stayed on the first floor of the house because they were afraid of falling.
[43] When it was suggested to Mr. Ahmad he had a handle wrapped with black tape he said the railing was covered in shiny dark brown rubber. He denied hitting his mother on the head causing her to fall down. He denied dragging her to the sofa and then to the bed. If he had seen the bruises he would have called 911 immediately. He agreed he had no explanation for how the extensive bruising to his mother occurred
[44] As in any criminal case, Mr. Attaul Raheem Ahmad is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.) . [1] Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.
[45] The onus remains on the Crown to prove Mr. Attaul Raheem Ahmad’s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility . Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.
[46] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.); [2] Avetsyan v. The Queen . [3]
[47] As the Ontario Court of Appeal in R. v. Hull , [4] noted: W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.
[48] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued: However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[49] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant’s evidence but still not being sufficiently satisfied by the complainant’s evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus . [5]
[50] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.
[51] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.
[52] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman , [6] is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” ( see R. v. Wu . [7] )
[53] Justice Cromwell, for the Court in Villaroman , cautioned in para. 30 : It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[54] These are the principles I must use in my assessment of the totality of the evidence led during Mr. Attaul Raheem Ahmad’s trial.
Analysis
[55] I do not accept Mr. Ahmad’s evidence for a number of reasons. The most significant reason is the fact his evidence as to what occurred during the morning of September 20, 2020, changed considerably. Mr. Ahmad speculated for the first time in cross-examination that his mother might have fallen down the stairs leading to the second floor because although she had difficulty going up stairs because of her limp, her osteoarthritis and her knee surgery, she did in fact go up these stairs. He had not mentioned this in his evidence in chief. Mr. Ahmad had also not mentioned in chief that his mother had fallen down the basement stairs. This incident was not put to Mrs. Ahmad in cross-examination by Ms. Abraham. Nor was an incident of Mrs. Ahmad falling onto her buttocks, which Mr. Ahmad testified also caused bruising put to Mrs. Ahmad in cross-examination. In fact, Mr. Ahmad indicated in chief that he had no idea how the bruising shown in the photographs could have occurred. His only explanation for the bruising was his mother not dealing properly with her diabetes and her blood sugar being too high or too low.
[56] Mr. Ahmad then attempted to plant the idea that his mother had fallen down the stairs from the second floor because of the shaky railing. Yet, he ultimately agreed if his mother was actually going upstairs to the second floor that the shaky railing would have been fixed by his siblings because everyone knew it was shaky and would be dangerous for their mother. He ultimately agreed that both his father and mother were living on the first floor only and did not use the stairs. This accords with common sense given Mrs. Ahmad had a single bed set up in the living room for her to sleep on. She also testified she could not walk up the stairs because of her medical conditions.
[57] Mr. Ahmad’s evidence in chief concerning what he did during the morning after he woke up also changed considerably both in chief and later in cross-examination. In my view it was as if he could not keep his story straight, which detrimentally affects his reliability. His evidence as to what occurred was in my view a moving target. He testified when he got up and came downstairs his mother was in bed complaining of lots of pain and that she had urinated in her bed. He did not initially go to help her. He finally helped get her up using the walker and got her half way to the washroom before going out the back door to get cigarettes from the store. When he returned a half hour later she was outside at the front sitting on a bench on the porch, enjoying the sunshine, no longer in pain. In his evidence in chief he testified when he came back home after a half an hour he got her a bottle of water from the refrigerator, yet he had previously said his mother was outside on the bench and he had no interaction with her. He then said towards the end of his evidence in chief when he came back home he came in the back door. His mother was on the bench, she was calmed down, sitting in the sunshine, enjoying the afternoon, not complaining about pain and he never saw her leave the porch. It was some time later he saw her being taken away by ambulance and he did not know what happened.
[58] In cross-examination Mr. Ahmad now testified he did not buy cigarettes at the store, he got one from a friend. This changed again when he testified he bummed a cigarette from someone on the street. His evidence changed further to the fact he had actually gone out on two different occasions to bum cigarettes off people on the street. When he came downstairs after waking up his evidence changed that he was coming down to make his mother coffee, which he had not indicated previously in his evidence.
[59] Mr. Ahmad’s evidence about asking his mother if she wanted her pain medication was also new. As was his testimony of going to his room to get her a Benadryl, which he now said he did and offered this as a reason for why he also got her a glass of water in order to take the Benadryl. This all occurred before she went outside to sit on the bench, which was completely different from his version in chief of finding his mother sitting on the bench when he came home from buying cigarettes.
[60] Mr. Ahmad’s evidence changed again when he testified after coming back into the house from having a cigarette the first time his mother was sitting on her bed and now she was only sighing in pain. He changed his evidence again to say this was when he got the Benadryl from his room and gave it to her with the glass of water.
[61] It appeared that Mr. Ahmad was prepared to change his version of what happened on September 20 repeatedly, without any consideration to what he had already testified to.
[62] I found Mr. Ahmad’s testimony to be rambling and on many occasions not responsive to the questions he was being asked. I do not accept his evidence and it does not raise a reasonable doubt.
[63] Mrs. Ahmad’s evidence on the other hand did not change. It was consistent on the important issues raised in this case. Her evidence did not change in terms of the sequence of events that occurred leading up to her son Attaul assaulting her. She testified she had no difficulty with Attaul. He treated her well. He helped her with her groceries when she was dropped off by Rashid. She testified it was not a problem that Attaul had taken her phone earlier, she just wanted it to charge it. She had sat on the sofa and said her sunset prayers and read her Koran. She then called her daughter and sister-in-law on the phone and spoke to them for awhile. She agreed she told her daughter she was not feeling well but that is how she always felt. Her daughter told her to lie down. She went to the washroom on the main floor to get ready for bed and when she came out she saw Attaul at the top of the stairs and asked for her phone. She had no idea why he assaulted her when he came down the stairs. This was a complete shock to her.
[64] She testified she loved her son. She had no difficulty living in the house with him. Attaul testified he believed his mother loved him and cared about him. The defence theory is that Mrs. Ahmad made this up to get Attaul out of the house. There is no evidence to support this. The other theory is that Mrs. Ahmad climbed up the stairs to the second floor and then fell down the stairs, causing the massive bruises displayed in the photographs in Exhibit 1. Again there is no evidence to support this theory or give it any credibility. There was a bed set up in the living room that Mrs. Ahmad slept on because she could not go up the stairs to get to her former bedroom. She was sleeping in the living room.
[65] Mrs. Ahmad’s description of what occurred did not change. Attaul came down the stairs and struck his mother on her head 2 or 3 times, in my view the difference between the number of times he struck her on her head is not a significant discrepancy. Mrs. Ahmad testified she fell as a result to the floor, went unconscious for some period of time. The next thing she described was consistent throughout her testimony – her son dragged her from the hallway outside the washroom to the sofa and then beat her all over her body. She was half on and half off the sofa. She was begging him to stop hitting her. She demonstrated during her evidence how she put her hands together as if praying and said she begged him to stop. He told her she was not his mother and told her that he was her God or her Allah. In my view the behaviour of her son was bizarre as well as the comments she testified he said to her as he was beating her.
[66] The only two individuals in the house over the night of September 19 into the early morning hours of September 20 were Attaul Ahmad and his mother, Aroosa. There was no evidence led during the trial from which a reasonable inference could be drawn demonstrating any other explanation apart from someone forcefully assaulting Mrs. Ahmad. The only person who was present and with her was her son Attaul. I want to be clear that Mr. Ahmad bears no onus to provide an alternative explanation for his mother’s injuries, as I have indicated the Crown bears that onus.
[67] The most significant evidence, which in my view corroborates Mrs. Ahmad’s version of the incident, are the injuries depicted in the photographs in Exhibit 1. Both of Mrs. Ahmad’s upper arms are severely bruised, with bruises that covered almost every square inch of her upper arms to her elbows. As well, she has severe bruising to her right shoulder and upper back. Many of these large bruises have smaller red circle bruises which lead to the reasonable inference she was grabbed by someone’s hand or hands – finger marks. Her left upper thigh also has a significant cluster of several bruises. As I have indicated it is my finding that the only reasonable inference on the totality of the evidence is that Attaul Ahmad assaulted his mother in the manner she described. Mrs. Ahmad testified she did not fall down the stairs and Mr. Ahmad testified he did not hear any loud noises during the night when he was in bed. The evidence disclosed Mr. Ahmad was up in his bedroom on the second floor of the house when his mother came home, and he heard her come into the house and he came and assisted her. If she had fallen down the stairs it would have made noise and Mrs. Ahmad would have cried out in pain.
[68] Ms. Abraham submitted that I should not accept Mrs. Ahmad’s evidence because she said the incident occurred at different times and the time line did not make sense. The difficulty with this submission is that Mrs. Ahmad is an elderly woman with a number of serious medical conditions, who, based on the injuries depicted in the photographs, was subjected to a violent, prolonged brutal beating. It is my view common sense and logic dictate that such a serious assault would have had a significant impact on Mrs. Ahmad and would have adversely effected her memory and recollection of what occurred. I was advised by Mrs. Ahmad that she was kept in hospital overnight until September 21, 2020, the next day. I was surprised that the Crown did not seek to put in the emergency records respecting the medical treatment Mrs. Ahmad received. Mrs. Ahmad testified she still suffers dizziness from the assault when she looks down and she feels like she is going to black out. Common sense dictates this would have been a traumatic event for a youthful individual given the significant bruising shown in the photographs, yet Mrs. Ahmad is an elderly frail woman and in my view the impact would have been significantly more severe.
[69] Considering the totality of the evidence I am satisfied beyond a reasonable doubt that the Crown has proven both charges and there will be a finding of guilt.
Released: March 17, 2021 Signed: Justice Peter C. West
Cited Cases:
[1] R. v. W. (D.) (1991) , 63 C.C.C. (3d) 397 (S.C.C.). [2] Ibid ., at p. 409, per Cory J. [3] R. v. Avetsyan (2000), 2000 SCC 56 , 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22 , per Major J. [4] R. v. Hull , [2006] O.J. No 311 (C.A.), at para 5 . [5] R. v. Lifchus (1997) , 118 C.C.C. (3d) 1 (S.C.C.). [6] R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000, at paras. 55-56 . [7] R. v. Wu , 2017 ONCA 620 , [2017] O.J. No. 3868 (C.A.) , at paras. 9 and 14-15 .