ONTARIO COURT OF JUSTICE
DATE: August 12, 2021
COURT FILE No.: Brampton 19-6800
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
M.A.M.
Before: Justice Hafeez S. Amarshi
August 12, 2021
Counsel: S. Scully, counsel for the Crown S. DiMartino, counsel for the Defendant
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.
H.S. Amarshi J.:
A. Introduction
[1] M.A.M. is charged with the following criminal offences in relation to his wife and child. (i) Assaulting H.N. on April 9, 2019; (ii) Asssaulting S.N. on February 1 2019; (iii) Assaulting H.N. in June or July 2018; (iv) Threatening to cause death to H.N. in June or July 2018; (v) Sexually assaulting H.N. in December 2018; and, (vi) Sexually assaulting H.N. in September 2017.
[2] The Crown elected to proceed by indictment and the trial commenced in the Ontario Court of Justice. At the conclusion of the Crown’s case, Ms. Scully invited me to aquit M.A.M. of assualting his daughter S.N.
[3] H.N. and Cst. Juliana Daod were called as witnesses by the Crown. The defendant testified.
[4] During the complainant’s testimony, the Crown applied pursuant to section 9(2) of the Canada Evidence Act to cross-examine H.N. on prior inconsistent statements contained in her video recorded statement to police. I found the inconsistencies between her evidence in this trial and her previous statement to police to be significant and allowed the application.
[5] Of note, the complainant was not asked to adopt her statement, nor was there an application pursuant to KGB to admit her statement for the truth of their contents. Accordingly, I am only to consider H.N.’s testimony at trial as her evidence in this case.
[6] The central issue in this case is credibility. The defendant denies all of the allegations. They can be characterized as basic denials.
B. Relevant evidence
[7] H.N. is 23 years old. In 2016 she married M.A.M. in Afghanistan. She joined her husband, who was already living in Canada, in September 2017. She lived with her husband’s extended family in a house on [address redacted] Street in Brampton.
[8] She described the period when she was first married as good, however she said during the first few months of her time in Canada she was unhappy and depressed. At the beginning of 2018, she became pregnant. She was still unhappy because it was hard to be away from her family in Afghanistan.
[9] When she came to Canada, she was 19 years old. She says her husband did not allow her to work, restricted contact with her family and limited her movements. She was permitted to attend school to learn English. There she made some friends.
[10] She testified that her brother came to Canada in 2018, one week after her daughter was born. Her brother is married to M.A.M.’s sister.
[11] On April 9, 2019, she alerted police. Earlier that day, the defendant and her brother were involved in a confrontation outside of the family home and police were called. She says at around 1 or 2 p.m. she was confronted by M.A.M. and that he was angry about the incident. H.N. says she was angry as well, and that the defendant slapped her once with an open hand to the left side of her face in an attempt to calm her down. This occurred in the living room and in front of the defendant’s extended family.
[12] After being slapped she went up to her bedroom. She could see police officers outside her window that had responded to the altercation involving her husband and brother. She waved at them to get their attention. The complainant said she was too scared to go downstairs while the defendant’s family were in the living room. Officer Juliana Daoud came into the home to investigate and the defendant was subsequently arrested.
[13] Later that afternoon H.N. gave a videotaped statement to police where she alleged multiple acts of domestic violence and sexual assault.
[14] The complainant was a reluctant witness. It was clear that she did not want to participate in this criminal proceeding.
[15] When asked about an incident that occurred in September 2017, which she described to police as “rape,” she testified that her husband wanted sex, but she said no. That he tried to encourage her and persuade her and eventually she agreed but that she was not, “happy internally inside me.” She demonstrated her consent she says by being comfortable and calm.
[16] H.N. further testified to an incident in the weeks after she gave birth to her daughter on December 4, 2018. She said she was not mentally ready to have sex and mentioned that to her husband once, but then she was silent and quiet. The couple had intercourse. Earlier, however during examination-in-chief she testified that she did not have sex with her husband in the six weeks after birth because of medical advice to refrain from intercourse.
[17] H.N. further described that during an argument with the defendant about her sister-in-law that her husband raised his hand against her. It was at night and she was three months pregnant at the time. When the Crown refreshed her memory using her statement to police, she provided additional detail and testified that in June 2018 the defendant slapped her with an open hand. It occurred in the bedroom while she was laying in the bed. That after being stuck in the face she rolled off the bed and was standing when the defendant kicked her. She described the kick as not being hard and that the defendant struck her stomach once with his leg. During that same incident she says M.A.M. threatened to kill her and her family in Afghanistan. She clarified however that she ignored the threat because her husband was upset, and it didn’t come from his heart.
[18] She did not see a doctor and did not tell anyone about the incident. According to the complainant that was the only physical fight the couple has had.
[19] The Crown called Cst. Juliana Daoud who corroborated some aspects of H.N.’s evidence, but I would describe the corroboration as largely non-material. The officer testified that she was on uniform patrol on April 9, 2019 when she responded to a call at [address redacted] Street in Brampton. The call was in relation to the complainant’s brother and the defendant, who had been in a physical altercation.
[20] While investing that incident, the officer observed the complainant in the second story window of the house. She looked like she was trying to jump off the ledge.
[21] She says she ran into the house and observed H.N. to be coming down the stairs with her baby. That she was crying. She told the officer that her husband beats her.
[22] Cst. Daoud proceeds to arrest the defendant, who is in the living room.
Defence evidence
[23] M.A.M. testified that he sponsored the complainant to come to Canada in 2017. He described their relationship as good, that they would go shopping and go to the park. Indeed, during the time the complainant was pregnant, he said he was very happy and showed his wife kindness and love. The defendant denied having any arguments with her during her pregnancy and denied slapping or kicking her when she was pregnant. He further denies threatening her or her family in Afghanistan during that same time period.
[24] He described that on April 9, 2019, he came home at 12:30 p.m. because his sister had called him for help, saying her husband attacked her. When he arrived, he got into a confrontation with his brother-in-law and police were called.
[25] He says police detained him in the kitchen of his home.
[26] M.A.M. conceded he had an argument on April 9 with H.N. but he described it as a “very little” argument because she was taking the side of her brother. The defendant testified that since his brother-in-law came to Canada, they started having problems in their relationship.
[27] He denied slapping her or raising her his hand towards her on that day.
[28] When asked whether he had non-consensual sex with the complainant in September 2017, M.A.M. said no, saying she never indicated to him that she didn’t want to have intercourse.
[29] He further denied having sex with her against her wishes soon after the birth of their daughter in December 2018. He said he waited 6 weeks and the couple did not resume having sex again until January 2019.
C. Relevant Principles
[30] Credibility and reliability are the central issues in this case. The framework in R. v. W.(D.), [1991] 1 S.C.R. 742, applies in this case and requires me to find M.A.M. not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with his guilt. In other words, I need not believe the defendant to find him not guilty. Further, even if this court rejects such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty.
[31] This Court can accept some, none or all of any witness’ testimony. [1] For example, if some parts of the testimony of the defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt. [2]
[32] The onus is on the Crown to prove beyond a reasonable doubt that the defendant committed the criminal offences before this court. To secure a conviction, the Crown must establish each essential element of the charge against an accused to a point of "proof beyond a reasonable doubt," this standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probability. It is not a standard of absolute or scientific certainty, but it a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charges. [3]
[33] To emphasize, this Court cannot make a finding of guilt because it prefers the complainant's evidence to that of the defendant. In other words, criminal trials are not credibility contests and it would be an error to arrive at a conclusion on culpability based on which witnesses' evidence I preferred. There is no burden on M.A.M. to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of the offence or offences as charged.
D. Analysis and conclusion
[34] I found H.N. to be an unreliable witness and I attached little weight to her evidence. Cases such as this are particularly difficult. The complainant was a reluctant witness. She wishes to reconcile with the defendant and it is clear that she minimized many aspects of her evidence and downplayed the seriousness of what she says happened to her. She was not honest with this Court. Although she was likely the victim of physical and sexual abuse it would be unsafe to convict M.A.M. based on her testimony.
[35] Of particular concern were several inconsistent statements, between what she told police in April 2019, and her in court testimony. It impacted her credibility.
[36] For example, in H.N.’s statement to police she recalled an incident in September 2017, when she says she was “raped” by the defendant. Specifically, he wanted to have sex, but she said no. She described trying to run away from the defendant but that he pushed her to the bed and threatened to kill her and her family.
[37] However, at trial she described a very different occurrence. She confirmed that M.A.M. wanted to have intercourse and that she said no, but that he persuaded her to have sex. She demonstrated her consent she says by being comfortable and calm.
[38] It is difficult to reconcile these two descriptions of the same event.
[39] Her evidence at times was internally inconsistent. In cross-examination she described a second alleged sexual assault which she says occurred in December 2018, soon after the birth of their daughter. She testified that she told the defendant that she was not mentally ready to have sex. The couple proceeded to have intercourse. However, earlier when questioned by the Crown about the same incident she testified she did not have sex with her husband in the six weeks after birth because of medical advice to refrain from sexual intercourse.
[40] Again, it is difficult to determine which of these two contradictory versions to believe.
[41] When the complainant was asked why her video statement was different than her in court testimony in several areas, H.N. explained she was having difficulty expressing herself to police, saying, “M y main problem was that I was not able to find the corresponding word in English with respect to my own language and because I was a newcomer, you can easily see in the video that my speech was not correct, or not good, and my understanding was not that good.”
[42] However upon review of the portions of the video statement that were played in court, although English is not H.N.’s first language, I found that I could understand her, that she grasped the seriousness of her allegations and that she was an articulate witness to what she said occurred to her.
[43] Ultimately, I found the complainant to be an evasive witness, not only in recasting incidents to make the defendant appear less culpable as compared to her police statement but also when responding to basic inquiries at trial. During cross-examination for example, she stated at one point that she was not interested in repeating her evidence, when questioned by Ms. DiMartino who was attempting to clarify her evidence. When questioned by the Crown, she provided vague and at times confusing responses to straightforward questions.
[44] In the end, one of my principal concerns with the complainant‘s testimony was her apparent willingness to tailor and change her evidence during the course of the trial. As Justice Horkins stated in R. v. Ghomeshi, 2016 ONCJ 155,
The harsh reality is that once a witness has shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of truth.
[45] Although there were some aspects of H.N.’s evidence that I accepted – for example her feelings of sadness and isolation when she first came to Canada or that her brother’s relationship with her husband’s sister was a source of conflict in her own marriage, I could not, given my conclusions about the reliability of the complainant’s evidence, accept her testimony on material issues in dispute in this trial. Not without corroborative evidence. See R. v. Frietas, 2010 ONSC 2031, for instance, where the court cautioned about the dangers of relying on conclusively unreliable evidence in the absence of supportive circumstances.
[46] Given my conclusions about the complainant’s credibility I will not spend too much time on the W.D. analysis, but I have made certain conclusions.
[47] I did not find M.A.M. to be a particularly credible witness. I did not believe much of his evidence. I agreed with the Crown that he overromanticized his relationship with H.N. and did everything he could to distance himself from any conflict. He consistently portrayed their relationship in idealized terms, despite clear evidence that there were challenges in their marriage.
[48] The defendant could not even allow himself to accept that his wife was stressed and unhappy when she first came to Canada because she missed her family as she stated in her evidence. He testified that she could use technology to reach out to her family and she had a credit card for shopping. A nonsensical comment in the circumstances to suggest that the opportunity to go shopping was sufficient to negate her feelings of sadness.
[49] I accepted H.N.’s evidence that the defendant exerted control over her and limited her movements. She was young, a newcomer to Canada, with a limited grasp of the language. She was completely dependent on M.A.M. for financial and emotional support. She was isolated from her family.
[50] It was not lost on me that the defendant interrupted this proceedings in order to speak for his wife in relation to what holy book she would prefer when swearing an oath - to suggest to this Court that the complainant could not make that basic decision by herself.
[51] I don’t know you M.A.M. and my role is not to lecture you, but I was sufficiently concerned about your conduct. Your desire to exert control over your wife, and I accepted her evidence on this issue, will ultimately lead to a dysfunctional and unhappy marriage.
[52] In end although I did not find the defendant to be an honest or particularly reliable witness, I cannot after assessing the totality of the evidence in this trial make any definite findings of fact in this case. I simply cannot be sure what happened between the couple. Specifically, I cannot reliably conclude or determine what occurred between H.N. and the defendant in relation to the counts before this Court.
[53] As a result, all charges are dismissed.
H.S. Amarshi J.
Citations
[1] R. v. D.R., [1996] 2 S.C.R. 291
[2] R. v. J.H.S., 2008 SCC 30, [2008] 2 SCR 152, at para. 11
[3] As Justice Horkins succinctly wrote in R. v. Ghomeshi, 2016 ONCJ 155, in explanation of the standard of proof in a criminal trial.