CITATION: R. v. Khamush, 2022 ONCJ 249

DATE: May 17, 2022

Information No. 20-883

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

MAHFOOZ KHAMUSH

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD

on MAY 17, 2022 at ORANGEVILLE, Ontario

APPEARANCES:

M. Occhiogrosso Counsel for the Crown

S. Sarbazevatan Counsel for Mahfooz Khamush

TUESDAY, MAY 17, 2022

WAKEFIELD J. (Orally):

Mahfooz Khamush stands charged with offences of domestic violence between 2015 and 2020 in which he is alleged to have assaulted both his wife and his daughter multiple times on an information setting out 11 separate allegations of assaults, threats, and one count of assault causing bodily harm.

The Crown case consisted of the complainant. The defence case consisted of the defendant, the complainant’s brother and a former employer of the defendant.

The complainant presented as a confident and erudite witness who testified that she was born in Afghanistan and immigrated to Canada with her family when she was six years old, having escaped Afghanistan to neighbouring countries for their safety before proceeding to Canada. She is now 40 years old and her daughter now seven. The complainant has university degrees and is self-sufficient in her employment. She was the financial support of her husband as he settled into Canada.

By the time of this trial the couple were now divorced with their daughter residing with the complainant.

The complainant described meeting the defendant on a trip back to Afghanistan for her brother’s arranged marriage in her family’s originating village. The defendant’s family were friendly with the complainant’s father from when the father lived in Afghanistan. The defendant’s family approached the complainant’s father with respect to having their son marry his daughter, the complainant. The complainant’s father agreed to the match and the complainant described that it would be dishonourable to refuse her father’s agreement.

The complainant subsequently married the defendant in 2011 and after some initial expectation that she would move to Afghanistan and move in with the defendant’s family there, ultimately he moved to Canada and resided with the complainant, her parents and siblings.

She described increasing friction between her and the defendant arising from conflicting cultural values and the defendant’s expectations of being in charge and demanding control over many aspects of her life. She described the defendant wanted to move to an Islamic country in order to ensure the correct upbringing for their daughter.

Testifying several years after some of the events underlying the 11 counts she had difficulty remembering specific details for some of the alleged offences. Without an opportunity to refresh her memory from her statement to the police four of these counts were dismissed at the request of the Crown.

Of the remaining counts two pertained to alleged assaults on their daughter. One was regarding a slap on the daughter’s face, which was denied by the defendant who said that their daughter fell off the couch when he was sleeping.

While initially describing having seen the slap, in cross-examination the complainant clarified that she was in the kitchen and heard the slap and her daughter’s cry, turned around and saw the defendant’s hand coming down from the area of the daughter’s face. The complainant described a fresh, red mark on the face. The slap was heard and the red mark seen by the complainant’s mother, according to the complainant, but who was not called to corroborate the incident.

The complainant described the defendant as playing too roughly with the daughter and sometimes risking the girl’s head hitting the ceiling of their residence. She also described the defendant twisting the girl’s fingers when instructing her how to write with a pencil in a manner the complainant advised was the typical Afghan way of teaching a child, though not obviously one which would be appropriate in Canada.

Neither incident resulted in injuries and the defendant denied any inappropriate physical contact with their daughter in either scenario.

The complainant testified to the assaults and threats towards her by the defendant. She advised that at first there were verbal arguments, but those would escalate over time into physical assaults.

One incident was during a drive to her brother’s residence with the daughter in the back of the car with the defendant. The couple were arguing on the way and, once parked in front of the brother’s house, she described the defendant grabbing the complainant’s mouth with sufficient force to split her lip against her front teeth. She went into the house where her sister-in-law told her to wash her face from the blood. Neither party called the sister-in-law to testify.

This incident resulted in a family conference in which the defendant is described as apologizing to the complainant’s father and the complainant forgiving the defendant.

In another described incident the defendant barged into the complainant’s room and in a physical struggle he punched the complainant in the mouth and her resisting him caused him to throw her to the floor resulting in her blacking out. She subsequently took photos of herself demonstrating the injuries, albeit as far as disclosure was concerned, undated photos.

After testifying the complainant was recalled to be cross-examined on further photos she had forwarded to the investigating officer after testifying, which now did have dates embedded in the photographs. Neither Crown nor defence had either set of photos analyzed to determine if they had been manipulated despite the guidance set out by the Court of Appeal in R. v. Aslami, 2021 ONCA 249. At paragraph 30 the court directed as follows:

“As I said at the outset, trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not.”

I note that without expert evidence I would not be able to engage in a rigorous analysis in a case which had already exceeded its original time estimate and knowing that my intervening would cause further delay and disruption in scheduling of other trial matters.

As such, I am unaware of how reliable the photographs are beyond the sworn testimony of the complainant. I note that there was some conflicting testimony by the complainant regarding the circumstances of finding further photos, which might have been resolved had their been examination of her phone. Certainly, I would have expected the investigating officer to have confirmed the reliability of the photographs prior to trial.

Unlike the Crown’s submissions, while I find the inconsistency in how the photographs were found undermining the reliability of the complainant with a consequential assessment on the balance of her testimony I am left with a frustration that a more proactive investigation of digital evidence may very well have resolved this issue in favour of the complainant.

In a different incident described by the complainant about when the complainant and the defendant were discussing other Afghan families where a wife contacted police the defendant responded that such a wife would be bad and deserving to be shot, and if necessary the husband might then kill himself.

The defendant denied threatening this complainant on this matter or any other matter.

On other occasions the defendant was described as pushing and shoving the complainant during arguments. The defendant claimed the only pushing and shoving was during play fights in which the complainant would be laughing.

Throughout the testimony of each witness there was references to Afghan culture and the role of men and women within that culture. The complainant asserted that her brother and the defendant supported each other and would be prepared to lie since her choice to go to the police and then to divorce the defendant was shameful in their culture.

Both the defendant and brother denied that and asserted that unlike some in their own country they were educated and now westernized having lived in Canada. The assertions of the apologies regarding assaulting the complainant or the alleged stabbing of the defendant needed context.

Having presided over other Afghan family disputes I have some insight on the testimony in the case at the bar. However, that, in my view, is a very far thing from being able to take judicial notice.

In any event, neither party called the complainant’s father or any other people present, nor delved into the relationship of the former employer, Mr. Sorash, to the defendant and his brother-in-law, other than possibly all attending the same mosque for funerals.

Neither Crown nor defence called expert evidence as to the conflicting asserted cultural underpinnings clarifying what, if any, such culture constraints have applicability to assessing credibility and reliability.

While I have been following the news of Canada’s involvement in Afghanistan and the subsequent withdrawal of peace keeping troops and the resurgence of the Taliban, and their values in taking control of that country, I must take guidance from the Court of Appeal decision in R. v. B.G., 2022 ONCA 92. I am not comfortable drawing any conclusions based on my own reading of news coverage. Similarly, while I have read about the cultural values of the Taliban, especially towards girls and women, I am not prepared to draw conclusions regarding their applicability to assessing the credibility and reliability of the defendant’s denial, and the testimony of the complainant’s brother supporting the defendant over his own sister without expert testimony.

The Crown submits that there is no credible reason for the complainant to fabricate her evidence. Leaving aside that there is no burden on the defendant to show otherwise, the defence submitted motive can be found in ongoing family litigation. However, neither Crown nor defence provided any evidence as to the status of any outstanding litigation after the divorce was finalized.

I note that the complainant was transparent regarding her fear of the defendant taking their daughter to a different country, which may not have the same reciprocal child custody treaties. Then again, that fear was not followed up in cross-examination, nor even whether the family litigation included any expressions of fear or any orders restricting the defendant’s parenting time or travel.

I do agree with the Crown’s submission regarding the manner in which the defendant testified regarding moving into tangential issues. However, asserting a different version of events, which contradicts prejudicial assertions is not necessarily self-serving.

The brother-in-law contradicted the defendant as to arguments regarding property and other issues arising from the family litigation, but he also contradicted the complainant regarding who was at home at the time of being assaulted in the car. I am certainly not convinced the defendant’s photo of the stabbing wound was legitimate and I place no reliance on it. While proffering that photograph certainly diminished the defendant’s credibility, the assertion of a stabbing wound was corroborated by the other defence witness.

Without expert evidence I am not prepared to make any findings regarding the Crown assertion as to the shameful impact of divorce on women in Afghan culture, and certainly not prepared to make findings that such attitudes are uncontroversial, whatever my personal readings might suggest in support of the Crown’s position. I also note that Mr. Sorash’s testimony included an assertion that divorce was shameful for the women, suggesting only the women, and again, expert evidence would have clarified much of these opposing views.

The Crown also submits that the brother-in-law’s testimony is suspect for not remembering the date that the complainant allegedly threatened to make false criminal allegations against the defendant. I would find it more suspicious if he did have an exact date years after the event.

I am not prepared to find fault in not remembering a wedding date, though that may very well provide insight as to the brother’s views regarding his wedding.

As for his not reaching out to the police or Crown to advise of the alleged threat by the complainant, I do not find that reticence illogical at all given that many people in many communities are suspicious of the authorities. Some may fear being charged with obstruct if the police disbelieve the assertion, and tactically, once charges are laid, defence counsel may very well keep some information from the police for trial tactical reasons.

The contradictions by the brother-in-law of the circumstances of the alleged threat to fabricate evidence completely undermines his credibility on this point.

In summary, I find the complainant subjectively persuasive overall, but that issue regarding the photographs as well as the lack of investigatory work undermines the strength of her testimony.

While the defendant’s manner of testifying and proffering the stabbing injury photograph also undermines his denials of criminality under the first two branches of W.D., on the third branch I find that the overall testimony of the defence witnesses and reliability concerns of the complainant leave me in a reasonable doubt despite my view that the complainant was otherwise credible.

I certainly would have a different verdict had the evidentiary burden been one of a balance of probabilities.

As such, I find the defendant not guilty of the two counts of assaulting his daughter. Indeed, much of the disputed versions can be viewed in context of different parenting values given the lack of injuries the witnesses being called.

I find the defendant not guilty of each of the counts of assault and threatening on the basis of the Crown not meeting its obligation of proof beyond a reasonable doubt, but not otherwise rejecting, on a subjective level, the testimony of the complainant, but rather, weighing her reliability in context to my concerns set above.

I find the defendant not guilty of assault bodily harm solely on the basis that the Crown has not met its evidentiary onus of proving the photographs pursuant to the Aslami decision and given the inconsistencies in the complainant describing how she found the second set of photographs, and the impact on the reliability.

For the same reasons I would not find a lesser-included offence of assault simpliciter on this count.

As such, the defendant is acquitted on all charges and is free to go.

...REMAINDER OF PROCEEDINGS NOT REQUESTED FOR TRANSCRIPTION

...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

Certification

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Mahfooz Khamush in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_102_20220517_090706_6_WAKEFIG.dcr, which has been certified in Form 1.

(Date) (Signature of authorized person)