COURT FILE NO.: CRIMJ(P) 190/13
DATE: 2013 12 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. N. Redgate, for the Crown
- and -
DANNY BEHARRI
J. Pyzer, for the Defence
HEARD: November 12-4, 2013
JUDGMENT
HILL J.
INTRODUCTION
[1] Danny Beharri pled not guilty to a twelve-count indictment relating to allegations of violence directed toward his domestic partner, A.S.
[2] The parties were in agreement that the court could engage in count-to-count consideration of the evidence for the purposes of ascertaining the nature of the relationship between A.S. and the accused as well as any evidence of animus relevant to determination of criminal liability.
[3] At trial, A.S. and her friend of a number of years, L.W., testified on behalf of the prosecution. The sole defence witness was the accused’s mother, Lena Beharri.
OVERVIEW
[4] A.S. is currently 25 years of age. She has a special needs son, M., who is now 4 ½ years of age. He has had multiple brain operations and a host of medical problems including cerebral palsy. According to the complainant, “he’s my whole life”. The child has required her constant care and attention.
[5] A.S. is 5’3” in height. She has a Youth Court record from 2001 to 2003.
[6] A.S. testified that in 2012 she did not consume alcohol daily but mostly on weekends and some evenings. A.S. informed the court that she has not become intoxicated leading to her falling and injuring herself. Although the complainant testified to no recall of anyone expressing concern about her drinking, L.W. testified that, prior to being pregnant with M., a time when A.S. would drink eight or nine beers a night, she told her friend “flat out” that she did not like her silly behaviour when drinking.
[7] For a period of just over six months, from the beginning of 2012 and into July 2012, A.S. and the accused cohabited as girlfriend and boyfriend although the accused continued to spend some time at his mother’s house as well. Until June 1st, the complainant and the accused resided in the basement of A.S.’s father’s Mississauga townhouse. After June 1st, they resided in their own rented apartment in the basement of a house in Etobicoke.
[8] From January through July 2012, Mr. Beharri was subject to two Criminal Code orders:
(1) a recognizance to keep the peace and be of good behaviour;
(2) a probation order a condition of which was that the accused abstain from owning, possessing or carrying a weapon.
[9] During the same time period, the complainant’s allegations detail particular episodes of physical abuse during her domestic relationship with the accused, two at the Mississauga townhouse, one at the accused’s mother’s apartment and two at the Etobicoke residence.
[10] On the evidence, it was not until early August 2012 that A.S. disclosed the alleged abuse when she confided in L.W. and in turn made a report to the police.
THE ALLEGED OFFENCES
The “Broken Jaw” Assault
[11] A.S. testified that in the colder months in 2012 prior to her May 10th birthday, she was assaulted by the accused. In her August 15, 2012 video statement to the police, A.S. stated that the incident happened when it was cold outside perhaps in early April or in May.
[12] A.S. testified that her recall is that on the relevant date her father was away at a friend’s home. On the complainant’s evidence, she made a nice dinner to have with wine.
[13] A.S. informed the court that the accused did not come after work as expected. She had a couple of glasses of wine and was tipsy. The accused returned between 11:00 p.m. and midnight. When asked why he was not home earlier, the accused responded that he went out with friends after work.
[14] An argument developed in their bedroom on the upper level of the townhouse. M. was asleep in the adjacent bedroom. A.S. described their voices as normal volume. A.S. was upset and frustrated. Suddenly, without A.S. having made any physical contact with the accused, he punched her in the face with his right hand. It happened fast. In her evidence in-chief, A.S. stated that the blow landed on her left jaw. In her videotaped statement to the police, A.S. said she was unsure which side was struck. In cross-examination at trial, A.S. ultimately said she assumed she was hit on the left side.
[15] The complainant informed the court that she felt instant pain. She freaked out as she held her face. She was spitting blood. Despite being scared and in shock, she said words to this effect: “Oh, my God. You have to leave.”
[16] A.S. testified that the accused then hugged and tried to comfort her. He said it was an accident and that he didn’t mean to do it. Other things were said during the evening but A.S. could not recall what was said.
[17] On A.S.’s evidence, while there was a thought of her going to the hospital, she thought the pain might go away. On her evidence, “we” didn’t think the jaw was broken. She and the accused went to bed.
[18] A.S. recalled that the assault left some bruising and swelling on her face. While there was discolouration, in her opinion it was not sufficiently visible for her father to notice.
[19] In cross-examination, A.S. rejected the following scenario as to what occurred. The accused came home after 10:00 p.m. After consuming eight to ten beers, A.S. was highly intoxicated. After hearing M. crying upstairs, and going to check him, she tripped on the stairs and injured her face. There was no punch.
[20] The complainant told her father she had fallen. A.S. feared what he might do if he learned the truth. She told no one the truth. She did not contact the police. In some respects, she is unsure why she did not. The accused said it had been a mistake although she did not believe that. She did not want the accused to go to jail. She was “in a bad situation”. This was domestic violence and, with a special needs son, she feared C.A.S. intervention in her life. She still wanted to be with the accused.
[21] Some days later, when M. had a chest infection, A.S. took him to the William Osler Health Centre for a chest x-ray. Because she was still experiencing pain in her jaw, she asked to be examined by medical staff. To A.S.’s recall, she also informed the staff that she injured herself in a fall.
[22] Records of the William Osler Health Centre of February 3, 2012, identify A.S. as complaining of pain in the right side of her jaw after falling about a week earlier. Radiological examination revealed a left mandibular angle fracture and a right parasymphysis fracture. The hospital made a referral to Dr. Tina Meisami, an oral and maxillofacial surgeon.
[23] Dr. Meisami saw A.S. on February 10 at the Etobicoke General Oral Surgery outpatient clinic. Intravenous sedation was administered for the operation in which the patient’s jaw was wired shut (intermaxilliary fixation) to stabilize the parasymphysis fracture. A.S. was prescribed antibiotics and analgesics. With her I-Phone, A.S. took pictures of her mouth with her jaw wired shut (Exhibit #2). On February 17, Dr. Meisami tightened the 26-gauge wiring in A.S.’s mouth to ensure no mobility.
[24] A.S. testified that when she saw her friend, L.W., one or two weeks after the assault, she explained her injury by saying that while carrying a box in preparation for a move she fell on the stairs and hit her face on the corner of a stair. She did not want her friend to know the truth. When referred in cross-examination to the statement in her police interview that she had told L.W. she fell while wearing high-heels, A.S. stated that she had no present recall of whether she told L.W. that on this, or a separate, occasion. Further cross-examined as to whether she might have told L.W. that she fell when drunk, A.S. responded that, “I gave a lot of stories so it is possible”.
[25] L.W. testified to seeing her friend’s jaw wired shut. A.S. claimed that she fell when she had been drinking. It didn’t really make sense to L.W. unless the accident had occurred in the dark.
(Complete decision text continues exactly as in the original document up to paragraph [170], maintaining identical wording.)
HILL J.
DATE: December 18, 2013
COURT FILE NO.: CRIMJ(P) 190/13
DATE: 2013 12 18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. DANNY BEHARRI
BEFORE: HILL J.
COUNSEL: N. Redgate, for the Crown
J. Pyzer, for the Defence
JUDGMENT
HILL J.
DATE: December 18, 2013