ONTARIO COURT OF JUSTICE

CITATION: R. v. Hamid, 2022 ONCJ 618

DATE: 2022 03 09

COURT FILE No.: Brampton 3111 998 20 9822

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ABDUL HAMID

Before Justice G.P. Renwick

Heard on 07 and 08 March 2022

Reasons for Judgment released on 09 March 2022

S. Hopkins............................................................................................ counsel for the Crown

C. Zeeh................................................................. counsel for the Defendant Abdul Hamid

An Order prohibiting the publication of information that could identify the complainant has been made pursuant to s. 486.4 of the Criminal Code of Canada.

RENWICK J.:

INTRODUCTION

[1] The Defendant had a brief trial before me on two charges: invitation to sexual touching (s. 152) and breach of a prohibition order (s. 161(4)). The prosecutor proceeded summarily. The young complainant, her mother, and the Defendant testified.

[2] The complainant testified about an incident two days after her thirteenth birthday. She had been involved in a significant argument with her mother the day prior. She had left her home around seven in the evening. After a while, she made her way to the Defendant’s residence. She told him about the argument. At this point, the complainant’s narrative differs from the Defendant’s.

[3] She testified that she was invited into the Defendant’s home and she spent the night. The next morning, according to the complainant, the Defendant asked if she wanted to engage in sexual activity. The Defendant denied having permitted the complainant to enter his home, that she spent the night there, and having invited her to any sexual touching.

[4] The Defendant made several evidential concessions. The sole issue for my consideration is whether the offences are proven beyond a reasonable doubt.[^1]

GENERAL LEGAL PRINCIPLES

[5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed an offence, he will be acquitted of the charge.

[6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities.[^2] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[7] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[8] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[9] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into five propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[10] Also, I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of a witness’ role, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.

[11] Lastly, I recognize that child witnesses may remember and recount events differently than more mature witnesses. This is not to say that younger witnesses are deserving of special consideration, or, that their evidence should be scrutinized to a lesser degree than older witnesses. Rather, “every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate.”[^3]

[12] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[13] I have thoroughly reviewed the testimony and exhibit evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the evidence or testimony I heard until all of the closing submissions were made, and my review of the evidence was complete.

THE EVIDENCE AND FINDINGS OF FACT

The Evidence of the Complainant

[14] On consent, the parties agreed that the child complainant’s video statement to the police could be admitted pursuant to s. 715.1(1) of the Criminal Code (exhibit 1). That statement was given to police within four hours after the events recounted within.

[15] The parties also agreed that the complainant could testify and provide further details of the allegations and her evidence. She testified in chief for approximately 40 minutes and for a similar amount of time in cross-examination.

[16] The complainant was an exceptional witness. Although she is now only 14 years old, she testified like someone much older. It is obvious that she is intelligent and articulate beyond her years.

[17] Overall, I found the complainant to be a credible witness for several reasons.

[18] First, the complainant listened carefully to what was asked. Where she required clarification before answering, she sought it. On one occasion, during her cross-examination, the complainant asked the court if she could have a moment to think before giving her answer. I also find that the complainant’s answers were responsive to the questions asked.

[19] Second, the complainant was candid during her evidence. Within the first thirteen minutes of her video statement to police, the complainant admitted that she thought that the Defendant was weird and that she did not like him. As well, while testifying in cross-examination, she quickly agreed that she thought the Defendant was “creepy” and she disliked him because of a remark he made about having a crush on her some years prior.

[20] The complainant was also quick to admit when she did not remember something, like the number of times she had ever been in the Defendant’s apartment. Though there were parts of her testimony for which the complainant had poor memory, they were few, they seemed genuine, they did not relate to significant events, and given the passage of time and her age, her occasional lack of memory seemed plausible.

[21] Third, the complainant’s evidence was balanced. She did not exaggerate her claims, she admitted that the Defendant had been a friend of her mom’s, he had done favours for her family, and she had spoken to him on occasion. Both the complainant and the Defendant testified that the complainant had gone to the Defendant’s when she wanted to discuss her arguments with her mother. Though she may not have liked the Defendant, there is no issue that she had relied on him in the past.

[22] The complainant had also told the police that when she was trying to think of someone with whom she could stay, she thought of people in her building that she could trust. She said that there are a lot of people in her building “that are unfit to take care of a child.” Then, because she did not know too many other residents, she went to the Defendant’s apartment.

[23] I did not sense, nor was it ever suggested, that the complainant had some undisclosed grudge or an agenda in reporting or testifying about these allegations. In fact, at the time, the complainant perceived the content of the Defendant’s mention of his sexual partners and another child’s “nice, big breasts” as an indication that he thought that she was mature, rather than what she now believes were “red flags.”

[24] Lastly, the complainant provided several details that gave her evidence credibility.

[25] For example, the complainant testified that on 26 August 2020 the Defendant let her use his iPhone to message her friends. She described the Defendant’s device as an iPhone 7 or iPhone 8. This evidence was never challenged or contradicted. It was minimally supported by the Defendant’s testimony that he owns a “smart phone,” although, to be fair, it is unclear if he did so on the day in question.

[26] While it is not beyond the realm of possibility that the complainant knew this detail from some other occasion, there was no evidence to suggest that was the case. Moreover, if the complainant’s entire narrative (beyond knocking on the Defendant’s door) had been fabricated, it stretches credulity that she would have offered a detail about which she could have been easily contradicted. In fact, she testified that although she could no longer remember it, the Defendant had given her the password while she used his phone, “a couple of times,” that night. Again, this too is a small detail, but it was never challenged and it made her narrative more credible.

[27] The complainant was also able to provide, with some precision, the layout of the Defendant’s apartment in her description to the police. Again, the complainant does not say that this occasion was the only time that she had ever been inside the Defendant’s apartment, but her description was not contradicted or challenged. This is notable because apart from this event, the evidence of both witnesses suggests that the complainant had not been in the Defendant’s apartment for months, if not years.

[28] When asked the name of the neighbour across the hall where she claimed to have first attempted to stay, without hesitation, the complainant gave the name, “Sophia.” This is another small, uncontradicted detail that provided a natural contour to her evidence.

[29] The level of detail and the consistency of the complainant’s narrative throughout the police statement, her evidence in chief, and her cross-examination all assist me, to some extent, in finding the complainant credible.

[30] Given the complainant’s ability to recall and communicate, her obvious intelligence, and her maturity as a witness, I do not find it necessary to discount the scrutiny that should be applied to the complainant’s testimony or to make any allowances for the frailties in her evidence.

[31] Indeed, the complainant was not a perfect witness. Her evidence diverged with her mother’s over the number of times she had ever been inside the Defendant’s apartment,[^4] when it was that her mother heard someone attempting to use keys to open their apartment door,[^5] whether her mother had confiscated her cell phone, and whether her mother had called any of the complainant’s friends before she had left.[^6]

[32] However, despite the imperfections in the complainant’s testimony or the parts that did not align with her mother’s evidence, I do not find that the complainant was less than completely truthful or trying to mislead the court. Rather, the inconsistencies in the evidence were not unexpected. Different witnesses do not always perceive or remember events the same way. Given the level of detail in the complainant’s testimony, her apparent sincerity, and her overall credibility, where her evidence did not align with her mother’s, I am not satisfied that it is an indicator of untruthfulness.

[33] In the end, the complainant was a believable witness and I believe her.

[34] Credibility, however, is not a proxy for reliability. Credible witnesses may be unreliable.[^7]

[35] The Defendant submits that there were several issues within the complainant’s narrative which raise questions about her reliability.

[36] First, the complainant had a motive to lie to her mother about where she had spent the night. It was suggested that she would want to protect whichever friend had sheltered her on 26 August. This presupposes that the complainant had spent the night at a friend’s place or that there was someone else worth shielding. Unfortunately, this theory was never put to the complainant.

[37] I accept the evidence of the complainant’s mother that her daughter’s absence overnight was entirely unusual and contrary to the norms of their home. Absent a good story, it is not unfathomable that the complainant may well have suffered some form of punishment for her disappearance. However, there are problems with the theory that the complainant implicated the Defendant to avoid punishment and to protect someone else.

[38] In essence, the complainant’s mother did not testify whether she did or did not punish her daughter for her overnight absence. This issue was never explored. If the complainant had fabricated the allegation to avoid punishment, it is far from clear that her fabrication had the intended effect. Moreover, also unexplored would be any reason to continue the lie, testify deceitfully, and sacrifice an innocent man, but stop short of implicating him in sexual assault. Although the complainant found the Defendant “creepy,” he was also someone in whom she had previously confided and trusted on this night.

[39] I have also considered that the lack of a proven motive is not proof of absence of motive. In this case, the admitted animus of the complainant towards the Defendant provided an available and credible reason to offer the Defendant as a scapegoat to explain her disappearance. This unproven possible motive, coupled with the complainant’s stated animus, require me to exercise significant caution before accepting the complainant’s uncorroborated narrative. This affects the reliability of her evidence.

[40] Second, the Defendant argues that the complainant’s evidence was internally inconsistent. She testified that she was not planning ahead when she was outside her building but nevertheless she decided against going a short distance to a friend’s house to avoid the possibility that her friend’s parent would notify her mother of her whereabouts. The complainant’s explanation that she had made poor choices because of her emotional state is plausible. This completely explains the apparent inconsistency and I accept it. This did not undermine the complainant’s reliability.

[41] Third, the complainant’s evidence was said to be inconsistent with other evidence. Mainly, it was contradicted by the Defendant’s evidence. I will have more to say about the Defendant’s testimony, below. Suffice it to note that given my concerns with the Defendant’s evidence, it did not impact upon my consideration of the reliability of the complainant’s testimony in any way.

[42] As noted above, there were inconsistencies as between the complainant and her mother’s evidence. In my view, in the overall context, these were minor. They did not detract from the complainant’s reliability as a witness. They did not cause me to question the sincerity of the complainant or the accuracy of the substance of her evidence. The fact that she remembered that her mother had called her friends during their argument was not disproven by her mother’s testimony. Her mother could not recall doing this. Her mother could not suggest a reason why she may have called her daughter’s friends before her daughter left home. However, this lack of memory is not positive evidence that causes me to doubt the complainant on this or any other part of her narrative.

[43] Also, despite the controversy over whether or not her mother had confiscated the complainant’s phone, there is no issue that the complainant left her home and she did not have her cell phone with her. Nobody has suggested the contrary.

[44] The prosecutor suggested that messages that were exchanged between the complainant and her friend (exhibit 2) provide some corroboration that the complainant used a phone other than her own to communicate with others that night. I disagree. There was nothing about the messages that suggest that the complainant did not have her phone, or that she was using someone else’s, let alone the Defendant’s. While I accept that the complainant did not have her phone (based upon the testimony of both the complainant and her mother), it remains far from proven by either the content or the fact of the messages which phone she used.

[45] Again, whether her mother confiscated her phone or she left it under her daughter’s bed (where her mother testified it was seen), in my view, in light of the totality of all of the evidence, does not affect the reliability of the complainant’s testimony in the critical areas of her evidence.

[46] There were some issues respecting the reliability of the complainant’s evidence which were not raised by the Defendant.

[47] First, the messages sent by the complainant to her friend indicate that she was alone. She was asked several times by her friend if she was inside or outside, but the complainant never answered the question. She certainly did not indicate that she was staying at the Defendant’s residence. The complainant was not asked about this portion of her messages. Nor did she volunteer any explanation for the vagueness in this evidence. This unexplained missed opportunity to memorialise her whereabouts or explain her failure to do so detracted from the overall reliability of the complainant’s evidence.

[48] Second, the complainant’s police statement indicates that she found the Defendant weird because of his comment about having a crush on her. As a result, she told the officer:

And I was like 10 at the time, so I didn’t really. I knew it was weird, but I was like, whatever. And then after that I was kind of just like, yeah, you’re weird, and I stayed away from him. [emphasis added]

[49] In her examination in chief, the complainant contradicted this evidence. She testified that in the past she would go to tell the Defendant that she had argued with her mom, but she had not stayed there, but she would tell him what was going on.

[50] Third, in her statement to the police, the complainant provided another possible motive for fabricating evidence against the Defendant: “And my mom thinks that he did something [sexual] with them [the Defendant’s daughters], or tried to.”

[51] Fourth, in her video statement, the complainant never told police that on the night she arrived at his home the Defendant had spoken about having sex with other women and he commented on another girl’s breasts.

[52] The complainant testified that she may have left out details from her police statement because it was shortly after the events, it was before she had processed what had happened, and she had not organized her thoughts before speaking with police. While these are reasonable explanations, they do not completely remove the pall of unreliability hanging over the complainant’s evidence.

The Evidence of the Complainant’s Mother

[53] I have no difficulty accepting the testimony of the complainant’s mother. It is largely unhelpful in resolving the dominant factual dispute.

[54] I accept the testimony that the complainant was completely emotional when she returned home, but absent objective evidence respecting the cause for her daughter’s sorrow (something besides the complainant’s own testimony), the demeanor evidence has little independent probative value.

The Evidence of the Defendant

[55] The Defendant testified poorly.

[56] The prosecutor suggested five difficulties with the Defendant’s evidence:

i. The Defendant had the opportunity to commit the offences; he admitted that the complainant came to his home and he knew that his daughters were not expected to arrive at his home that night;

ii. It was implausible that the Defendant sent a crying thirteen year old home, someone he had spent time listening to in the past when she had grievances with her mother, without inviting her to come in;

iii. The Defendant was inconsistent when he testified that after dinner (which was well described in his testimony) the complainant knocked on his door, but he had told the police that he had not eaten anything that night;

iv. The Defendant was inconsistent when he testified that he had woken up and was preparing breakfast when his daughter arrived the next morning. In his statement to police the Defendant admitted that after his morning prayers he had fallen asleep, he had missed the plan to go down and retrieve his daughter’s things, and his daughter woke him up when she arrived at his apartment; and

v. Despite the Defendant’s history of always calling his daughters when the complainant had dropped by his place in the past, he departed from his usual practice on this occasion, even though he spoke to both of them that morning.

[57] I do not take anything from the Defendant’s inconsistencies respecting his dinner or breakfast preparations. In the circumstances, it is not that telling that the Defendant does not remember the culinary details surrounding events that took place more than 18 months ago.

[58] The bigger problem I had with the Defendant’s evidence was the unlikelihood that he did not help the complainant, he did not invite her inside, he did not call her mother after he supposedly sent her home, and contrary to his usual practice, he kept the fact of this visit from his daughters. These are telling circumstances that impel a finding against his credibility.

[59] Also, in cross-examination, the Defendant initially denied that the complainant had ever come to his door before this occasion. When he was confronted with his police statement, he apologized and admitted that this was incorrect. He testified that he had told the complainant’s mother about this, but he could not remember when. This inconsistency in an important area irreparably damaged his credibility in my view.

[60] Of lesser importance, the Defendant’s demeanor while testifying (stiff, almost mechanical, detached) did little to inspire confidence in the veracity of his evidence.

ANALYSIS

[61] I have accepted as credible the complainant’s evidence that she was invited into the Defendant’s home and was permitted to stay the night on 26 August 2020. I reject as untrue the Defendant’s evidence respecting whether the complainant entered his apartment and stayed overnight.

[62] However, given my concerns about the potential for the complainant to have fabricated her evidence, some of the reliability markers identified above, and some residual doubt created by the Defendant’s evidence, I am left in a state of reasonable doubt that the Defendant ever propositioned the complainant to kiss or have sex.

[63] After considering all of the evidence, I find that the Defendant invited the complainant into his apartment and she entered. They spoke. He calmed her. He let her use his phone. At some point, either that night, or the next morning, she left his apartment. I have a reasonable doubt that there was any discussion about the Defendant’s sexual partners or the bodies of other young girls. I also have a reasonable doubt that the Defendant ever asked to kiss the complainant or to have sex with her.

Section 161(4) and the Argument of De Minimus Non Curat Lex

[64] There is no issue that the Defendant knew that he was prohibited from having unsupervised contact with a child under the age of 16 by reason of a s. 161 Order that was made in 2016 (exhibit 3). The Defendant was well acquainted with the complainant and he testified that he was aware of her age at the time. In his cross-examination, the Defendant admitted that in the past he had always told his daughters when the complainant had come to his door because of the s. 161 Order. He offered no excuse for why he did not immediately close his apartment door or report this visit to anyone. His testimony raised no issue about the currency of the s. 161 Order or his awareness of it.

[65] On the facts that I accept, the Defendant spent more than a few minutes with the complainant, in his apartment and this allegation is proven beyond a reasonable doubt. However, even if I had accepted the Defendant’s evidence in all respects, I would still have been satisfied beyond a reasonable doubt that this offence had been proven.

[66] The Defendant testified that when he opened his door and saw the complainant, they spoke for about two minutes before he sent her home. His testimony also included the following details: the complainant had told him about the argument with her mother; she claimed she had been beaten; he was aware that she was 13 years old at the time; and he was also aware that he was prohibited by s. 161 from having unsupervised contact with someone under the age of 16.

[67] The Defendant submitted that the prohibition against unsupervised contact with minors did not include innocent, brief contacts, such as greeting a neighbour, sharing an elevator, or answering a knock at the door. The Defendant claims that the principle de minimus non curat lex (the law does not concern itself with trifling matters) applies.

[68] Though the Defendant did not cite any law, it is reasonable to infer his reliance on the following finding of our Court of Appeal:

This principle seeks to avoid the criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm to any legitimate personal or societal interest: R. v. Murdock (2003), 2003 4306 (ON CA), 176 C.C.C. (3d) 232 (Ont. C.A.).[^8]

[69] With respect, I disagree that the principle applies in the circumstances of this case. This section of the Criminal Code serves to protect children under 16 from sexual, predatory behaviour. Even apparently innocuous contacts, if repeated, can have the effect of undermining the protection afforded by the provision. The strong public interest in maintaining a protective boundary around our most vulnerable community members from those who are subject to a s. 161 Order resists almost all exceptions.

[70] That said, I recognize that there may be circumstances where the exclusionary principle applies. In the circumstances faced by the Defendant on the night in question, had he closed the door after discovering the child complainant, the contact, initiated by her, would have been so fleeting and innocent that the de minimus principle might well have applied.[^9] But that is not what happened.

[71] According to the Defendant, the conversation with the complainant involved a significant amount of content over a more than fleeting period of time. He received details from the complainant and they spoke for up to two minutes. Then, he told her to leave.

[72] There is no doubt in my mind that if this occurred, it also proves the offence. The Defendant has no excuse for not having immediately closed his door without having spoken a word. When he permitted the discussion to continue, when he spoke to the complainant, he committed a criminal offence. It was with full awareness of the prohibition, the age of the complainant, and the volition to communicate with her (he intended to convey the message he gave to “go work it out with her mother” and “leave”). This was not trifling. This was not momentary. This was not de minimus.

CONCLUSION

[73] I find Abdul Hamid not guilty of the offence of invitation to sexual touching and guilty of breaching a s. 161 Order.

Released: 09 March 2022

Justice G. Paul Renwick

[^1]: To be fair, the Defendant also asks whether if I reject his evidence, or I am not left in a state of reasonable doubt by it, the principle de minimus non curat lex would exculpate him of liability for the s. 161 offence.

[^2]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[^3]: R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (C.A.) at para. 9, citing: R. v. W.(R.)., 1992 56 (SCC), [1992] 2 S.C.R. 122 at p. 134.

[^4]: The complainant’s mother testified that she had been in the Defendant’s apartment less than 10 times and her daughter had been with her about half of those times. The complainant testified that she had only been inside the Defendant’s apartment on 2 occasions in the past.

[^5]: The complainant gave evidence that her mother had told her that at some point during the night someone had tried to use her keys to open their door. Her mother testified that this had happened just before her daughter returned home in the morning.

[^6]: The complainant testified that this happened during their argument. Her mother did not recall doing this.

[^7]: R. v. H.C., 2009 ONCA 56 at para. 41.

[^8]: R. v. Carson, [2004] O.J. No. 1530 (C.A.) at para. 24. Interestingly, in R. v. Carson, the Defendant was found guilty of breaching a recognizance of bail for briefly speaking to his fiancée, contrary to a bail Order, after she had called him over to speak at her parked car.

[^9]: It is also unlikely that the mens rea could be established in such circumstances.