COURT FILE NO.: 11-1309

DATE: 20140116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Tim Wightman and Louise Tansey for Her Majesty the Queen

• and -

M.H.

Accused, in person

HEARD: September 9,10, November 4, 6, 7, 8, 12,13, 14, 18, 19, 20, 21, 25, 26, 28, 29 and December 2, 4, 5, 19, 2013 (Ottawa)

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainants may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

HACKLAND R.S.J. (Orally)

REASONS FOR JUDGMENT

The Charges

[1] Mr. H. is charged with offences arising out of his alleged conduct toward Mrs. H. and their five children during the course of his 24 year marriage. Specifically, with respect to Mrs. H. he is charged with three counts of assault (s.266, CCC), one count of threatening death (s. 264.1(2),CCC), one count of intimidation (s.423(1)(d), CCC), and one count of criminal harassment (s.264(3), CCC). The accused is also charged with one count of assault, one count of threatening death and one count of criminal harassment of his eldest son. He is charged with one count of criminal harassment of his daughter. Concerning his second son, one count of criminal harassment and his third son, one count of assault and one count of criminal harassment. The Crown has withdrawn the one count of criminal harassment in reference to the accused’s 4^th son. For purposes of confidentiality, I refer to the sons (in order of descending age) as son 1, son 2, son 3 and son 4 and his only daughter as such.

[2] This family stopped living together on May 27, 2011 when the accused was arrested at his place of employment and charged with the offences currently before the court. The accused, who represented himself throughout this lengthy trial, remained in pre-trial custody for a total period of approximately two and one half years until the trial began. It appears that this was primarily due to his decision not to retain counsel or seek a bail hearing.

[3] At the time of the accused’s arrest, Mrs. H. was 49 years of age and the ages of the couple’s children were: son 1 age 22, daughter age 20, son 2 age 16, son 3 age 14, and son 4 age 12. They all resided together in a garden home which Mr. & Mrs. H. owned in an Ottawa suburb. Son 1 had graduated from a university undergraduate program and the daughter was about to graduate from high school. The other 3 sons attended high school near the family home. The family had lived in this home for approximately five and one half years (since October 2005) and prior to that, in several rented apartments in Ottawa.

[4] The Crown witnesses were Mrs. H. and the 4 eldest children, all of whom testified about their relationship with the accused and family life in the H. household. The Crown also called a neighbour who said little more than although there was little social interaction between the two families, the H. family were very nice people with whom he and his family got along very well. The accused testified in his own defence. He was assisted by counsel appointed under s. 486.3 of the Criminal Code of Canada for the purpose of cross-examining the complainants, Mrs. H. and the 4 eldest children. I allowed the Crown’s application to permit Mrs. H., the daughter and sons 2 and 3 to testify by way of closed circuit television.

[5] The criminal harassment charge in reference to Mrs. H. covered the latter 18 years of the marriage (the period 1993-2011) and in reference to son 1, to the same period of time i.e. from the time he was about age 4 to age 20. The criminal harassment charges referable to the daughter and the two younger sons spanned their entire lives. As the criminal harassment charges in this case are highly contextual in nature, it is necessary to discuss the family dynamics of this household including, to some extent, the personal characteristics of the accused and family members. Much of the trial evidence was directed to these issues as they formed the background relevant to the specific offences charged.

The Accused and Mrs. H.

[6] The accused and Mrs. H. were both in their mid twenties when they married in Ottawa in 1987 after a brief relationship of about two months. They met at the Ottawa YMCA where they both were living temporarily, having been introduced by Mrs. H.’s brother. The accused had just come to Canada from his native Yemen, on a scholarship to study computer science at an Ottawa college. Mrs. H. had recently come from her home in British Columbia and was working as a teller at a credit union. She had an undergraduate university degree.

[7] It was a significant part of the theory of the Crown’s case on the criminal harassment charges that the accused sought to control and micro-manage every aspect of this family’s life. However, I conclude that some of Mrs. H.’s important decisions concerning her married life were hers alone and were entered into freely.

[8] This couple jointly decided to keep the marriage ceremony secret from their respective families. The accused is Muslim and they were married by an Iman in a religious ceremony. Mrs. H., who grew up in the Christian faith, was interested in converting to Islam, which she ultimately did within several months. She testified that she read the Koran, considered the issues carefully and decided on her own to convert. The accused encouraged her to do so, but did not pressure her to take this important step. He was also pleased when she chose to adopt a Muslim first name and to wear the hijab. The couple brought up their five children in the Muslim faith and at trial it was clear that Mrs. H. remains observant and has chosen to continue to wear the hijab, although she has resumed use of her Christian name.

[9] Significantly, Mrs. H. testified that the decision she and the accused later took to have five children as well as the decision that she would remain home to raise her children, rather than to work outside the home, were lifestyle choices that she agreed with and was not intimidated into making by the accused.

[10] The couple’s marriage got off to a difficult start because Mrs. H.’s parents were very unhappy to learn, after the fact, that she had chosen to marry an Arab person of the Muslim faith and they did not hesitate to express this opinion, at least to Mrs. H. The couple undertook a two month visit to British Columbia to stay with her parents as a honeymoon of sorts. It was an extremely acrimonious and stressful visit according to both the accused and Mrs. H. The accused felt that he was subjected to racist remarks and disrespect for his culture and was dismayed at Mrs. H.’s reluctance to stand up for him in the face of her parents’ attitudes. It was a theme of the Crown’s evidence that the accused essentially saw to it that Mrs. H. and later the children were cut off from any normal relationship with Mrs. H.’s parents. I find that the evidence establishes that this was indeed the case and that the accused’s conduct is explained in large part by the treatment that he initially received from Mrs. H’s family. In the course of explaining his negative feelings about her parents, the accused told Mrs. H. that only God can forgive.

[11] The couple had their first child, a son, in March of 1989. Several weeks later they took the baby to Yemen where they stayed with Mr. H.’s parents. They planned to possibly remain permanently in Yemen if the accused could find work, which he was ultimately unable to do. After some six months they returned to Ottawa and never again visited Yemen. Mrs. H. testified that the trip to Yemen “was like going back in time 2000 years”. She said it was extremely hot with acute water shortages and the people, particularly the accused’s family, were very nice and welcoming, although they were very poor. She pointed out that she did not speak Arabic and was very bored for much of the time that she was there.

[12] Upon their return to Canada, the accused was briefly unemployed and then fairly promptly found work in his field through employment agencies. Mrs. H. returned briefly to her job as a teller in a credit union.

[13] The couple’s daughter was born in early 1993 and their second son was born in 1995. The family then moved to a larger three bedroom apartment in downtown Ottawa. They lived there for nine and one half years during which time sons 3 and 4 were born.

The H. Family in the Garden Home (October 2005-May 2011)

[14] Finally in October of 2005 this large family of seven moved to a home purchased by the accused and Mrs. H. in an Ottawa suburb. I will refer to this as “the garden home.” The family resided there together for about five and one half years until the time of the accused’s arrest on May 27, 2011. Remarkably, the garden home was paid for in cash, in the sum of $210,000. This came from the personal savings of the accused and Mrs. H. accumulated over the course of their eighteen years of marriage. By the time of this purchase, the accused had obtained full-time employment in the information technology field earning in the $90,000 range. The accused was the sole income earner for his family. This remarkable level of savings was the result of a very frugal lifestyle by the accused, Mrs. H. and their children and was a contributing cause of the pressures which built up in this family, leading ultimately to its break up.

[15] In the following paragraphs I summarize my findings concerning the family life of the H. family with particular reference to the period during which they resided in their garden home. I base these findings primarily on Mrs. H.’s evidence which I found to be credible in most respects and corroborated in large part by the testimony of the four eldest children and indeed by much of what the accused said in his own evidence.

[16] From the evidence of the family members who testified and from my observations of the accused, I conclude that he is a rigid thinking man of strong beliefs. He operated on the basis of the assumption that his beliefs were his family’s beliefs. He acknowledged in cross-examination that his frequent references to “we agreed” really meant “he decided”. He saw himself as the head of the household and believed that family members who lived in the household were to follow his rules – although he denied they were “rules”, rather they were “sensible practices”. He said he always sought to protect and raise his family “with good Islamic values”. I accept that he genuinely believed that.

[17] The accused did not like to spend money, never borrowed on credit and as noted, was a remarkable saver. Mrs. H. described him as “very cheap” and at several points in his evidence the accused seemed to accept that description. He had no interest in obtaining a driver’s licence or in buying a car, notwithstanding that the family lived well out in the suburbs and had 5 children. The family walked, bicycled or, on occasion, took public transportation. The accused bicycled many miles to his downtown office twice daily, or took the bus during the winter. The accused saw to it that, what he described as certain “common sense practices”, were followed in his home. He insisted the heat be kept down in winter to a very uncomfortable level. He ignored complaints of family members regarding the temperature in the home and felt they could simply layer up to keep warm. The lights were to be turned off when not in use and many light bulbs were not replaced or were substituted with 40 watt bulbs. Mrs. H. testified that through the winter the family “froze in the dark” but had given up complaining about it and abandoned attempts to get the accused to agree to turn up the heat.

[18] The accused also believed in conserving water. To that end, he decided that there was to be a very restricted usage of the shower in the home. The practice was to be that two containers of about two litres each were filled with water from the shower, one for washing and one for rinsing. This strange and somewhat demeaning arrangement only worked because the children often snuck quick showers on weekdays after the accused had left for work. The accused himself had the use of a shower at his place of work after he bicycled in. Further, the accused mandated that the toilets were not to be flushed after urinating unless everyone had finished using the bathroom.

[19] Mrs. H. was permitted a certain level of autonomy provided that she followed strict spending limitations. She did most of the food shopping for this family of seven and because they had no car, she walked or bicycled nearly every day to buy as much of the needed groceries as she could manage to carry. In addition, the accused would help with food shopping on the weekends. The accused insisted that Mrs. H. shop at discount stores whenever possible and sale advertisements were carefully monitored and discount coupons were collected and used. The accused took an active interest in his family’s food shopping and did not hesitate to criticize or even return items if he felt there were better bargains to be obtained elsewhere. Mrs. H. grew to resent this but gave up complaining. They made bulk purchases of staple goods as well as of turkey and salmon which were regular features of their diet. Mrs. H. was a good cook and the family ate well. It was the relentless cheapness and micro-managing by the accused that Mrs. H. said she resented. For his part, the accused viewed his approach to saving every possible dollar and to discount food shopping and water and electricity conservation as simply common sense, particularly for a family of seven persons.

[20] Mrs. H. testified that the accused tightly controlled the family finances and closely scrutinized bank statements and was frequently critical of any perceived unnecessary spending. On cross-examination it was clarified that in fact Mrs. H. carried out virtually all of the banking. This included seeking financial advice at the bank and deciding when accumulating savings would be put into savings certificates or term deposits. Mrs. H. was the one who advised about putting funds into RRSPs and more particularly recommended investing in RESPs for the children’s education. She had taken accounting courses in her university studies and enjoyed looking after the finances. I had the impression that the accused was quite unsophisticated in financial matters and was pleased to leave this to Mrs. H. I find that he generally took her advice as long as his overriding rule of no spending beyond absolute necessities was respected. Since Mrs. H. operated the family accounts for the most part, she had companion credit cards and, at least in theory, was physically able to access all of the family funds.

[21] The no spending rule also applied to the sons’ earnings from their part-time jobs. Their wages were deposited electronically into accounts in their names but they were never allowed to access the funds. They testified that they felt very discouraged about this. Mrs. H. testified that she would have considered going back to work but was faced with the certainty of being prohibited by the accused from spending any of her earnings. When asked why they did not confront the accused with their frustrations about the family practices and about the obsessive saving, both Mrs. H. and the four family members who testified gave the same explanation. They said that they had learned from experience that such discussions were pointless, that the accused would not budge nor welcome such discussion and would often become angry and abusive. He was not to be questioned and they feared his temper.

[22] This family became quite socially isolated and it was apparent from the accused’s evidence that he wanted, or at least was content with this fact. The accused admitted in his evidence that he would routinely telephone Mrs. H. from work multiple times a day using a special ring pattern that he had developed so that she would know it was him calling and presumably so she would not answer calls from anyone else (such as her parents or strangers). The accused was reluctant to afford his sons any privacy on the rare occasion when they did receive telephone calls although generally, there was little privacy to be had in this modestly sized and sparsely furnished open concept garden home housing seven people. The sons, and most particularly the daughter, were expected as a general rule, to come straight home after classes to do their homework. Then the family ate together, prayed together and turned off what few lights there were in the early evening and went to their rooms. It was required by the accused that all family members retire at the same time. The daughter had her own room, the four sons shared the second bedroom and Mrs. H. and the accused had the master bedroom. The accused slept on a mattress on the floor. He is a very non-materialistic person as son 1 explained and he is proud of that. His family was expected to accept the same lifestyle.

[23] The television was in the parents’ bedroom and the accused would allow some or all of the five children to come and watch television with him when and as he deemed appropriate. Television was treated as a privilege in this home, reserved for when homework was done and when no one was being disciplined. The accused essentially chose what programs were to be watched and when. The family did not have cable television so there were only one or two channels in any event. There was, in addition, an old television in the basement where the sons played video games and watched some DVDs from their collection, when their father permitted it. The daughter testified that she was expected generally to stay in her room and her interaction with her brothers was limited. She expressed that she had a somewhat lonely and frustrating existence.

[24] The single most problematic aspect of the accused’s conduct with his family, apart perhaps from his obsessive frugality, was his manner of disciplining his children. He believed in physical discipline and used it liberally. He would pinch and twist the children’s ears as a method of punishment. This was painful and upsetting to them and to Mrs. H. who had to watch this occur. More seriously, as the children got older, he would discipline them by striking them with a leather belt. He would have them hold out their hand, palm up, and strike the child’s open palm several times, with some force, using a piece of leather belt which he kept for the purpose. When son 1 was smaller, the accused would strike the palm of his hand with a plastic miniature toy bat or toy golf club. As son 1 approached adulthood, the accused discontinued use of the belt in favour of a practice which Mrs. H. referred to as “the silent treatment”, in which the accused refused to speak to son 1 but they would communicate in writing about the perceived misconduct, with Mrs. H. forced into the role of a go between. She found this to be very upsetting and stressful. In the last six months of this family’s time together, the accused was still resorting to the use of the leather belt on the three younger sons, particularly son 3, then fourteen, who like his eldest brother, was starting to rebel at the accused’s tight control of the family.

[25] The court heard a good deal of evidence about life in the H. family household during the last two to three months of the family’s time together leading up to the point at which Mrs. H. sought advice from a family lawyer and was ultimately put in contact with the police. The accused, during this period, was involved with a number of conflicts with son 1, his daughter and with the younger sons, in circumstances where they were attempting to assert their autonomy, or in the case of the younger sons, where they were fighting and rough-housing with each other. Son 1, then twenty-two, decided that he wished to trim his beard and the daughter then eighteen, was discovered to have trimmed her eyebrows. The accused became very upset about this and intervened to tell them what he expected in terms of their personal grooming and appearance and to express his dismay at them grooming themselves in this manner behind his back and then attempting to deny that they had done it. He apparently had certain cultural expectations in this regard that were not explained to the court. Mrs. H. felt caught in the middle of this growing hostility and was subjected to pressure from the accused to support his position in these conflicts. There was also a major altercation involving the accused and the younger three sons, particularly son 3, which resulted in the assault charge, count 13, discussed below.

[26] At the time of the trial, the daughter was eighteen years of age and sons 1 and 2 were twenty-four and twenty and I observe that they were two years younger when the described events occurred. They were relatively mature young people. As noted, son 1 had graduated from university. Son 2 was finishing grade 10 and the daughter was finishing grade12. They are extremely tall young people with broad shoulders and athletic builds. Son 1 is six foot six inches, son 2 is six foot four inches and the daughter appeared to be, like her mother, well over six feet tall. The accused on the other hand, is five foot eleven inches with a slim athletic build. The developing maturity of these growing young people both in terms of age and size, seemed to be more than the accused was able to comfortably deal with. In any event, the family situation began to spiral out of his control in the final months of this family’s together.

[27] In the face of this, on my view of the evidence as a whole, the accused appeared to think it necessary to re-assert his control over the family. He said that he suspected that son 1 was sneaking into their bedroom to surreptitiously take and use the beard trimmer. He seemed to suspect that Mrs. H. was somehow complicit with the children in this breakdown of family discipline. He may have sensed that son 1 had discovered how to access his part-time job earnings and was buying items for himself without permission. In any event, without any effort to explain his actions to Mrs. H., he locked up the credit cards and banking documentation in a suitcase in their bedroom. He told Mrs. H. that not having her do the shopping would give her more time to supervise son 1 and deal with his problems. According to Mrs. H.’s evidence, which I accept, the accused began to scrutinize the bank statements and monitor the mail box. He more or less took over control of the grocery shopping and the quality of the meals quickly deteriorated. Two of the children testified that there was not enough food during this period and that they were losing weight. The accused was giving son 1 the “silent treatment” over the beard trimming issue. He was also not talking to son 2. Having reached her limit, Mrs. H. spoke to her daughter and eldest son and it appeared to be a joint decision that the family had to separate from the accused. Mrs. H. consulted a counsellor, then a family lawyer and ultimately the police were involved and the present charges were laid.

[28] I would observe that it is far from clear as to what was actually going on in the final weeks leading to the accused’s arrest. Suspicion and lack of communication in this family were very evident. In his evidence, the accused’s position was that nothing at all was going on to his knowledge and that it was “business as usual” during this period. He said that the family prayed together as always, before he left for work the morning of his arrest. However he noticed that his wife and daughter seemed distant around that time and did not say that they loved him and declined to kiss him as normally expected. He denied that he had changed any of the household practices and stated that Mrs. H. retained a key for the locked suitcase and could and did go grocery shopping as usual, as she saw fit. He denied that there was any food shortage at all. He said that he was not giving son 1 the silent treatment, but only giving him some personal space to consider his issues. I prefer and accept the evidence of Mrs. H. and the children that something strange was going on with the accused in the final weeks. The family bank account showed $1,000 less than normal was spent on food that particular month. I conclude that the accused was attempting to send some kind of message to the family during this period and it certainly was not “business as usual”.

[29] With that background I now turn to examine each of the specific charges against the accused. I deal first with the assault and threatening charges involving Mrs. H. and son 1 and then the assault charge involving son 3. I deal lastly with the criminal harassment charges and then the charge of intimidation.

The Assault and Threatening Charges Involving Mrs. H.

[30] In count 1 of the indictment the accused is charged with assaulting Mrs. H. in April of 1989. Mrs. H. testified that shortly after being released from hospital following the birth of son 1, she had a ten minute telephone conversation with her mother who had called to see how she was doing. Later that day the accused arrived home from work. Mrs. H. mentioned that her mother had called. At this news, the accused’s mood changed rapidly and he became angry and questioned her about what had been said in the telephone conversation. She testified that at this time she had the baby in her arms and was preparing to nurse him. The baby’s head was resting on her right arm and her left arm was under the baby. The accused placed his hand on her left arm and twisted it and while doing so said in an angry voice, with a mean look on his face, that she should not answer phone calls at all. She said this did not injure her arm, although it was painful. She described her feelings as shock and surprise. The accused, for his part, testified that he had no recollection of this incident and repeated, as he often did in his testimony, that Mrs. H. was the love of his life and he would never intentionally hurt her. He said this was a very happy period in their lives.

[31] There was no corroborative evidence to assist the court in assessing this incident. On Mrs. H.’s version of events, the arm twisting lasted a few seconds at most and she was not hurt, but was shocked and upset. This incident occurred some twenty-two years ago without subsequent discussion of any kind. Given the brevity and minor nature of this long past incident I am not surprised that the accused has no recollection of it. Mrs. H. did not suggest that anything further came of the incident, even by way of subsequent discussion with anyone or between her and the accused. This was a relatively happy time for this couple by Mrs. H.’s own evidence and was shortly before their trip to Yemen.

[32] While I accept Mrs. H.’s evidence that some kind of unpleasant incident occurred, given the passage of time and the relatively minor nature of this brief incident and the rather vague evidence surrounding it, I am not satisfied beyond a reasonable doubt that an assault was committed on this occasion. The accused will be found not guilty of count 1.

[33] The second assault charge (count 9) and the charge of threatening death (count 10) also concern the accused’s conduct toward Mrs. H., this time in the year 2003. Mrs. H. testified that during this period the accused would push her out of the way when he was angry with the children, particularly when she tried to intervene. On one occasion when the accused was annoyed at her about something she could not remember, he placed his hands around her neck and squeezed and said something to the effect that “I won’t do it this time but I could if I wanted to”. From this she said she inferred he meant he could choke her to death if he chose to. She found the placing of his hands against her Adam’s apple to be painful and she choked momentarily. She said she felt the pain afterwards for quite a period of time. Mrs. H. was unable to recall what specifically led to the incident or exactly when it occurred. She said it was “about 2003 approximately”. For his part, the accused denied in his evidence that any such incident occurred and repeated that he loved Mrs. H. dearly and would simply not do or say such a thing.

[34] There is obviously a significant credibility issue relating to the assault and threatening charges in this 2003 incident. Mrs. H. has offered what I accept to be her honest recollection of what actions the accused took and his spoken words to her at the time. There were no witnesses to this incident. The accused denies that he would ever put his hands around Mrs. H.’s neck nor would he threaten her. As the Supreme Court of Canada has pointed out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, there is an analytical process to be followed to the application of the Crown’s burden of proof in the context of credibility issues such as appear here.

[35] As was pointed out in R. v. W. (D.), the court’s function is not simply to pick one or the other competing version of events. A trial cannot simply be a credibility contest between the accused and a complainant. The first question to address is whether the court believes the accused’s version of events. If so, the accused is entitled to be found not guilty. Secondly, even if the accused’s evidence is not believed, if it leaves the court with a reasonable doubt about an essential element of the offence, the accused is still entitled to be found not guilty. Lastly, even if the accused’s evidence does not leave the court with a reasonable doubt, the accused may only be found guilty if the evidence that the court does accept, viewing the evidence as a whole, establishes the accused’s guilt beyond a reasonable doubt.

[36] In this case I do not believe the accused’s evidence that he has no recollection of this incident or that he would never put his hands on Mrs. H.’s neck and threaten her because he loved her very much. The incident was described in clear detail by Mrs. H. and it was not an incident that could be easily forgotten. It happened in the context of the accused’s increasingly aggressive conduct toward Mrs. H. and the children. The accused’s assertion that due to his love for Mrs. H. he would never assault her in this fashion is not persuasive. Unfortunately, spousal violence does occur in intimate relationships, perpetrated by spouses who profess to love the victim. There is no evidence of the event that would put a different light on the incident than that offered by Mrs. H. This conduct was consistent with the accused’s obvious anger management issues which were shown to exist in the evidence of all the Crown witnesses, particularly the accused’s anger displayed to Mrs. H. when she intervened in the accused’s disciplining of the children. Although lacking any direct corroboration, I am satisfied beyond a reasonable doubt and accept Mrs. H.’s evidence that her neck was squeezed by the accused in a hostile manner and I find that an assault is made out in respect of this incident. The accused will be found guilty on count 9.

[37] I take a different view of the threatening death charge (count 10). As noted, when the accused put his hands around Mrs. H.’s neck he said, according to her evidence, which I accept, “I won’t do it this time but I could if I wanted to”. Mrs. H. did not offer this as a direct quote, but as a paraphrase of the gist of what she recalls him saying. She acknowledged that it was her inference that this was a threat that he could strangle her if he so chose. One must accept that her interpretation of the remark was not unreasonable in the circumstances. On the other hand, the remark is inherently ambiguous. It remains unclear what was he saying he might do in the future and under what circumstances. While this remark was a highly offensive and of a threatening nature, I have a reasonable doubt whether the accused was threatening Mrs. H. with death. My impression from her evidence was that she was surprised and appalled at his actions and the remark itself, but did not really know what to make of it. The Crown must prove its allegation that the accused uttered a threat to cause death. There was also a spontaneity to the remark which was typical of the accused’s periodic loss of control of his temper, in the context of family disputes. The exact context here which was less than clear to begin with and the ambiguous nature of the threat leaves me in reasonable doubt as to whether the accused intended this as a death threat and, if so, whether he intended it to be taken seriously as such. There will be a finding of not guilty on count 10, in respect of this incident.

[38] The accused in count 12 is charged with assaulting Mrs. H. in 2009. He and Mrs. H. were watching television in their bedroom. She laughed out loud at something that was said on the television program. The accused then suddenly punched her once on the shoulder. She burst into tears and left the room. He called her back and tried to explain that he had done that because she laughed at something that was not funny at all. Mrs. H. was not hurt, except emotionally, and she did not tell anyone about the incident. Mrs. H. offered this incident as an example of the accused’s ugly disposition at times and his propensity to suddenly lose his temper. The accused in his evidence simply denied that this ever happened and said that it would have been completely out of character for him. Notwithstanding the absence of any corroborative evidence about this specific incident, I accept Mrs. H.’s evidence and do not accept the accused’s evidence. I am satisfied that the accused does in fact remember this incident and that it occurred as described by Mrs. H. It is the type of angry volatile conduct described by all family members during this period. I find the accused guilty of assault as charged in count 12 of the Indictment.

Charges Concerning Son 1

[39] The accused is charged in count 7 with assaulting son 1 in 1998. I accept and rely on Mrs. H.’s version of this incident. It is corroborated by the evidence of son 1 and to an extent by the accused himself. The incident occurred sometime in 1998, when son 1 was about nine years of age and in the fourth grade. Mrs. H. testified that at this time the accused was in the habit of physically disciplining son 1 by striking him on the outstretched palm of his hand with a plastic toy baseball bat of about twelve inches in length. This was far from a gentle tap and there would be between two to six blows depending on the son’s perceived transgression. On this occasion, son 1 either tried to pull his hand away or the accused missed his target but, in any event, the bat struck son 1’s forearm leaving a swollen red welt which was very painful and lasted a week or two. Son 1 was very upset, crying and in considerable pain. The accused told him to wear a long sleeve shirt to school to mask the welts. Son 1 told the same story in his evidence, although he sought to be more charitable to his father whom, he acknowledged in evidence, he still loved very much. He said his father loved him and his siblings and “never sought to hurt us”. He said “he did not hit me that hard”. He explained that his father “felt kind of bad about it and had apologized and asked him to cover the welts and wear a long sleeve shirt to school”.

[40] The accused did not deny this incident. Instead, he explained that while he did discipline his children with a belt, and at one time with the toy bat or toy golf club, he did not hit them very hard. He demonstrated a gentle slapping motion from a foot or so over an out stretched hand. This contrasts with the vigorous over the shoulder blows described by all other family members. The accused explained that he used this form of punishment for correction purposes and only with the children’s best interests in mind.

[41] The accused sought to rely on s. 43 of the Criminal Code which affords a defence, in limited circumstances, to a parent who uses reasonable force for the correction of a child. The section states:

43. Correction of child by force – Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

[42] The Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 explained what is meant by the requirement that force “not exceed what is reasonable under the circumstances”. Chief Justice McLachlin stated at paras. 37 and 40:

37 Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

40 When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. The question must be considered in context and in light of all of the circumstances of the case. The gravity of the precipitating event is not relevant.

[43] As pointed out by the Chief Justice discipline by the use of objects is unacceptable and in particular, corporal punishment using belts or other objects is physically and emotionally harmful and will not be considered reasonable.

[44] The accused’s use of a plastic toy bat to strike son 1 on this occasion was certainly not reasonable and I conclude that s. 43 of the Criminal Code is inapplicable in these circumstances. I am satisfied beyond a reasonable doubt that the assault against son1 as charged in court 7 of the Indictment occurred in the manner described by Mrs. H. and son 1. There will be a finding of guilty on count 7.

[45] The accused is charged in count 11 with making a threat of death to son 1 in 2005. Mrs. H. testified that an argument developed in the family home shortly after the move to the garden home. It was just after sunset during Ramadam and the family was ready to eat. People were hungry and on edge. Son 1 began complaining about not having enough food on his plate. An argument ensued involving a lot of yelling between son 1 and the accused. At one point the accused got very angry and according to Mrs. H., shouted “I could cut your head off and flush it down the toilet”. Mrs. H. said that the outburst scared everyone, particularly the two youngest sons who appeared to take the threat literally. At the suggestion of the accused (“get your shoes and coat, we are going for a walk” – in a loud and aggressive voice), he and son 1 went outside for a walk and came back about twenty minutes later at which point son 1 went up to his room and the accused behaved like nothing had happened.

[46] The evidence of son 1 was that during this argument he and his father became increasingly angry and began shouting at each other. Son 1 said his father at one point shouted out “something about putting my head in the toilet or something… I do not remember exactly what he said”. He added that he did not think that his father would do that, but he was scared. He said “I love my dad a lot but when he gets mad he gets scary”.

[47] The accused recalled the argument. In his evidence, he denied saying anything about cutting off his son’s head but did admit to the toilet flushing reference. He said that flushing in the toilet was a rough English version of an Arabic insult and was not meant or to be taken literally.

[48] I conclude that son 1 and the family members who witnessed this outburst were frightened by the accused’s demeanour, particularly his angry shouting, rather than by any real concern that the accused would cut off his son’s head. I accept as a fact that the threat by the accused was in the terms related by Mrs. H. As the Supreme Court of Canada recently stated in R. v. O’Brien, 2013 SCC 2, [2013] S.C.J. No. 2 at para 11:

The question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed.

[49] The court stated further at para. 13:

It is not an essential element of the offence that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously. All that needs to be proven is that the words uttered were intended by the accused to have that effect.

[50] The accused’s threat was delivered spontaneously in the context of an angry and escalating verbal altercation with his adult son. I have a reasonable doubt as to whether this unfortunate outburst of angry hyperbole could have been taken seriously by son 1 or his mother. I have a reasonable doubt that the remark was intended by the accused as a serious threat to harm his son. There will be a finding of not guilty on this count.

The Assault Charge Concerning Son 3

[51] Count 13 of the Indictment alleges that the accused assaulted son 3 on January 15-16, 2011. Mrs. H. and sons 2 and 4 witnessed the incident. This was another argument between the accused and his three younger sons. Several family members stated in evidence that son 3 was disciplined by the accused much more than the others. Son 3 had, in the minds of his mother and siblings, a learning disability and often did not understand or read his father very well. They were often at cross purposes. I observed that son 3 was able to testify but struggled to express himself clearly.

[52] Son 3 initially explained that he could not recall what led to this altercation with his father, however in cross-examination he acknowledged that it was quite possible that he and his younger brother were fighting with son 2, as they often did, and that the accused had told them to stop it. He responded that it “seems familiar” when it was suggested to him in cross-examination that the accused had pulled him off his two brothers when he continued to engage in a physical altercation with them. He recalled angrily shouting at his father about always taking his brothers’ side. He recalls that the accused “starting throwing punches at me”. During his testimony, son 3 acted out the altercation as he described it. He demonstrated that his father grabbed his arms and pushed him against a door. He held his arms over his face to show how he blocked several punches from his father. These punches were deflected and glanced off his arm. He was unhurt but was “pretty angry and annoyed”. He ran out of the house for a few minutes after shouting “this is child abuse” at the accused. The accused called after him “that’s parental abuse”. Son 3 explained that when he came back in his father “started apologizing” as they sat beside each other in the living room.

[53] The accused’s version was that the three youngest sons were rough housing or fighting upstairs and he told them to stop. When the fighting continued and spilled downstairs, he felt it necessary to pull son 3 off of his two brothers. He described the boys as physically fighting and arguing loudly. He testified that he pulled son 3 away from his brothers and tried to pin him against the wall in an effort to have him calm down. As he pinned son 3 against the wall, son 3 was squirming and kicking to get free. He denies punching his son. Son 2 could not recall how the altercation started but saw his father deliver about five punches which son 3 was able to block. Son 2 shouted at his father to stop. He said his father and everyone was upset. He said “I was upset too... I do not like watching my family fight”. He described his father as “very angry”. Interestingly, son 2 acknowledged in cross-examination that he believed his father loved him because his father often told him so. Mrs. H.’s recall of the incident involved the accused demanding that son 3 get the belt and the struggle began after he refused. Mrs. H. agrees that the sons were making noise and fighting. She commented “this was by far the worst and the scariest incident that had occurred”. She said it was “so fast and so violent over a bit of noise”.

[54] The physical contact on the accused’s part consisted of grabbing son 3 and holding him for a few seconds against the wall followed by several punches thrown by the accused which son 3 was able to block with his arms. This brief altercation was accompanied by a lot of shouting including Mrs. H. and sons 2 and 4 calling out to the accused to “stop Baba”, as they called the accused. Needless to say, this was an example of deplorable parenting on the part of the accused. He clearly lost his temper. On the other hand, the loud fighting which I find was going on between sons 2, 3 and 4 warranted parental intervention. Sons 2 and 3 are physically larger than the accused and their fighting and shouting in this small home, would have been impossible to ignore. I am of the opinion that the accused’s action of physically pulling son 3 off of his brothers and holding him against the wall was justified. When son 3 continued to struggle, kick and shout, the accused responded inappropriately by throwing several punches which fortunately were blocked, and no one was hurt in this noisy but very brief incident. I acknowledge that the several punches the accused directed at his son may have constituted an assault. Having said that I am not satisfied beyond a reasonable doubt that such was the case. The several glancing blows were delivered spontaneously and arguably were not clearly out of proportion to the struggling and kicking on the part of his considerably larger son, who was attempting to break lose to rejoin the fight with his two brothers. The yelling and screaming surrounding this brief physical altercation shocked everyone. The physical altercation between the accused and son 3 escalated from what was arguably a reasonable intervention on the part of the accused into angry inappropriate behaviour. There will be a finding of not guilty on count 13.

The Criminal Harassment Allegations (counts 2-6)

[55] The Crown alleges that the accused criminally harassed Mrs. H. (count 2) and the four eldest children (counts 3-6). I think it important to review the elements of this offence. The relevant section of the Criminal Code of Canada is s. 264 subsections (1) and (2) which provide:

264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(d) engaging in threatening conduct directed at the other person or any member of their family.

[emphasis added]

[56] The Ontario Court of Appeal in R. v. Kosikar (1999), 1999 3775 (ON CA), 124 O.A.C. 289 identified the elements of this offence. Goudge J.A. stated at para. 19:

I also agree with Proulx J.A.'s adoption, from R. v. Sillipp (1997), 1997 ABCA 346, 11 C.R. (5th) 71 (Alta. C.A.), of the following description of the five essential elements of the offence:

1. It must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code.

2. It must be established that the complainant was harassed;

3. It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

4. It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

5. It must be established that the complainant's fear was, in all of the circumstances, reasonable.

[Emphasis added.]

[57] The actus reus of the offence requires the accused to engage in one of the four elements set out in subsection 264(2) of the Code, (in this case, “engaging in threatening conduct”) in a manner that reasonably causes the victim, in all the circumstances, to fear for their safety or the safety of anyone known to them. Kosikar also establishes that the mens rea of the crime has two elements: (1) the intent to engage in the alleged prohibited conduct and (2) with i) knowledge ii) recklessness or iii) willful blindness that the conducted caused the victim(s) to be harassed.

[58] The question of whether the conduct is considered to be “threatening” or not is to be assessed from the perspective of the complainant. Section 264 of the Criminal Code simply requires that the threatening conduct caused the complainant to be harassed. In Kosikar the court stated, (at para. 22) “The threatening conduct can be constituted by a single act provided it carries as a consequence that the complainant is in a state of being harassed. The court adopted the statement of Proulx J.A. in R. v. Lamontagne (1998), 1998 13048 (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.) at p. 186:

Because of the distinction which Parliament made between the prohibited conduct within the meaning of s-s. (2) and the harassment as the ultimate consequence of the conduct, one cannot just equate the two, which thereby creates the necessity, as I previously pointed out, to consider the definition of the state of being "harassed", independently from the prohibited conduct which may cause this state and which is expressly provided for in s-s. (2).

[59] The court in Kosikar went on, at para. 23, to clarify that this element of the actus reus requires that the complainant be in a state of being harassed as a consequence of the prohibited conduct. It is not necessary for the Crown to prove that the accused intended the conduct to intimidate or cause fear. Also, given that the analysis of this element of the offence is centred on the effect of the conduct, the communications/interactions are not necessarily required to contain threats or violent behaviour.

[60] There is no definition of threatening conduct in the Criminal Code. In the case law threatening conduct has been defined as “a tool of intimidation which is designed to instil a sense of fear in the recipient.” In R. v. Burns, 2008 ONCA 6, 77 W.C.B. (2d) 402, the Ontario Court of Appeal set out the three criteria by which the conduct is to be interpreted:

1. “objectively”

2. “with due consideration for the circumstances in which they took place” and

3. “with regard to the effects those acts had on the recipient.”

[61] Spoken words are not required for a person’s conduct to offend ss. (2)(d), see R. v. Kohl, 2009 ONCA 100, 94 O.R. (3d) 241 leave to appeal to S.C.C. refused, [2009] S.C.C.A No. 149.

[62] It has been held that it is not sufficient that the complainant was “vexed, disquieted or annoyed” (see R. v. Petrenko, [2009] O.J. No. 5094 at para. 10 (S.C.J.)). In Kosikar the court stated (at para. 25) that “being in a harassed state involves a sense of being subject to ongoing torment.” As noted, the fact that the prohibited conduct harassed the complainant is established by the effect of the conduct on the complainant.

[63] The British Columbia Court of Appeal has held that “it is common ground that, in order to prove harassment, the Crown must establish that the prohibited conduct tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered the complainant.” The Ontario Court of Appeal has explained that these words are not cumulative and are individually synonymous with the word “harassed” thus it would be harassment to be “plagued” in one context and “bedevilled” in another (see R. v. Kordrostami, 2000 5670 (ON CA), 47 O.R. (3d) 788 at para. 11 (C.A.).

[64] As noted, with respect to the mens rea of the offence, the Crown must prove beyond a reasonable doubt that the accused knew or was reckless or wilfully blind as to whether the complainant was harassed. Durno J. in Petrenko explained the role of the trial judge in assessing this element of the offence as follows:

There need not be direct evidence of the accused's state of mind. Whether the accused had the requisite mens rea is a question of fact. The trial judge is entitled to draw inferences from the facts in assessing whether the requisite state of mind has been established beyond a reasonable doubt. The trial judge is also entitled to draw a reasonable inference that an accused was reckless as whether the complainant was harassed: R. v. Holmes, [2008] O.J. No. 3415 (C.A.).

[65] In R. v. Davis (1999), 1999 14505 (MB QB), 143 Man. R. (2d) 105 at para. 35, aff’d 2000 MBCA 42, the Manitoba Court of Queen’s Bench outlined the mental element of the offence in the following way:

The mental element of the offence does not include a requirement that the accused foresee that his conduct will cause the complainant to be fearful. It is sufficient if it is proven beyond a reasonable doubt that the accused knew that the complainant would be harassed by his or her conduct, or was reckless or wilfully blind in that regard.

The court went on to explain that the accused’s pre-charge conduct and the history of the relationship between the parties is relevant and admissible for a determination of the accused’s intent and whether he knew or was wilfully blind or reckless as to whether his conduct harassed the complainant.

[66] Reasonable fear is governed by an objective standard. There must be evidence that the complainant reasonably feared for his or her safety. This fear is not restricted to fear of physical harm but also includes fear or mental, psychological or emotional safety. In Petrenko, Durno J. explained that it is not an essential element of the offence that there be a risk of physical violence and further that:

The complainant's fear for his or her safety may include psychological and emotional security. To restrict it narrowly, to the risk of physical harm by assaultive behavior, would ignore the very real possibility of destroying a complainant's psychological and emotional well-being by a campaign of deliberate harassment. If the accused engages in a course of conduct that causes a person to reasonably fear for his or her emotional or physical safety when viewed objectively the offence has been established: R. v. Gowling, [1994] O.J. No. 2743 (Gen. Div.), affirmed [1998] O.J. No. 90 (C.A.); R. v. Goodwin, [1997] B.C.J. No. 954 (B.C.C.A.).

[67] Similarly, in R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241 at para. 31, Rosenberg J.A. writing for the Ontario Court of Appeal adopted the trial judge’s finding that “fear for [one's] safety” included “a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm.” On the other hand it has been held that is not sufficient that the victim only fear for their financial well-being: see R. v. Lincoln, 2008 ONCJ 14, 777 W.C.B. (2d) 104.

[68] In R. v. Bates (2000), 2000 5759 (ON CA), 134 O.A.C. 156 at para. 30 (C.A.), the Ontario Court of Appeal discussed the sentencing principles relating to criminal harassment. The decision of the court refers to the nature of the complainant’s fear in a domestic context. In Bates the court stated that “crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.” The Bates decision has been summarized as follows:

Those [sentencing principles] apply with full force even where there is no physical violence. The absence of physical violence is not a mitigating factor on a conviction for harassment. The psychological violence done to the complainant and her friends over a prolonged period by the respondent's conduct is the very evil that Parliament sought to punish by creating the crime of harassment. The fact that the respondent did not commit additional crimes involving physical violence cannot mitigate his sentence on the harassment charge.

(R. v. Finnessey (2000), O.A.C. 396 at para. 16 (C.A.))

[69] I turn now to the allegation that the accused criminally harassed his wife, Mrs. H., as alleged in count 2. The Crown must prove beyond a reasonable doubt that the accused engaged in threatening conduct toward her (or one of her children) which made her feel harassed. The harassing conduct must have caused Mrs. H. to have had a reasonable fear for her safety (or for the safety of her children). As noted, safety can include one’s psychological and emotional security. As Durno J. stated in Petrenko at para. 14, “If the accused engages in a course of conduct that causes a person to reasonably fear for his or her emotional or physical safety when viewed objectively, the offence has been established”. As to the mental element of this crime, I am satisfied that the accused, who would regularly pray with the children and say “Baba loves you very much”, may not have fully appreciated that his conduct was harassing Mrs. H. and the children. The question was therefore whether he was reckless or wilfully blind in that regard.

[70] Earlier in these reasons I have described the somewhat economically deprived and restrictive home life of the H. family which resulted from the accused’s extreme frugality, or cheapness as Mrs. H. saw it, and his insistence on controlling and monitoring most aspects of family life.

[71] The children grew up with this. Mrs. H. did not. As noted previously, and as fairly acknowledged in Mrs. H.’s evidence, it was her decision to marry into what for her was a very different culture and religion, to not work outside the home and to have a large family with the economic consequences of doing so on one salary. I would be hesitant to view these lifestyle choices as harassment. However, as I understand Mrs. H.’s evidence, it was the accused’s conduct toward her and the children which she came to view as harassing and as undermining her physical and psychological well being. The economic deprivations were merely the unpleasant environment in which these events unfolded.

[72] I am satisfied that Mrs. H. was treated with a level of on-going disrespect that jeopardized her well being, particularly psychologically. The accused’s cheapness as she reasonably interpreted it, governed their lifestyle and her efforts to protest or get him to change were rudely and often angrily rebuffed. She was subjected to minor assaults or rough physical behaviour on many occasions. She was shoved and pushed out of the way when she intervened in his discipline of the children. She was called insulting names by the accused when he became angry such as whore, bitch and fat cow and told she walked like an elephant. She said she “froze in the dark” all winter, which was an exaggeration of the physical facts, but accurately captured her state of mind. She was constantly monitored by the accused and subjected to continual telephone calls from his office. She was deprived of any normal relationship with her parents and her children never saw their grandparents. Subsequent to the birth of their first child, she never took a vacation, apart from a one day family trip to a zoo in the Montreal area.

[73] Mrs. H. eloquently described her feelings about life in the H. household in these words:

• I was frustrated, angry, tense and on edge
• you get fed up but you know that’s just how it would be
• it was a struggle to survive
• hopeless ... you give up
• I used to wait for spring ... just surviving ... sad and hopeless
• I was very afraid and very careful
• I was sickened and I was very afraid
• It was hell and we had to get out.

[74] Although allowed to do the banking and the grocery shopping, she carried out these activities within strict parameters imposed by the accused. In particular, there was to be no spending beyond absolute basics and virtually any discretionary spending required his approval which was seldom forthcoming. The basic dignity of taking showers and flushing the toilet at will were denied or made the subject of comment and criticism. Worst of all perhaps, she was made to watch and sometimes required to participate in the accused’s physical disciplining of the children, which she considered to be cruel, excessive and inappropriate.

[75] A case somewhat similar to the present is R. v. Chugh 2004 ONCJ 21, 61 W.C.B. (2d) 691. In Chugh, Lampkin J. found the accused guilty of criminal harassment in a domestic situation where there were relatively minor instances of physical violence however the victim alleged that she suffered mental/emotional abuse and was under mental stress that caused her to be fearful of her husband. The complainant also alleged that she had no meaningful control over the family’s finances. She stated that she would have to get permission from her husband to make any purchases for the children and she received no “pocket” money for her own spending needs. The court ultimately found that the complainant was “tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered” by her husband. The court found that the accused’s conduct constituted harassment and he was wilfully blind to the effect his demands, threats, minor assaults, constant quarrelling and insults had on his wife.

[76] I am satisfied that Mrs. H. was forced to endure a thoroughly lonely and deprived existence for many years leading to the separation. She suffered deprivations in the basic amenities of life like heat and showers, spousal inequality, disrespect, and minor physical and significant emotional abuse. She endured the heartache of seeing her children being subjected to the accused’s unfortunate and controlling parenting and his discipline methods of the children, which were abusive and unlawful. I find that the accused’s conduct was threatening to Mrs. H.’s physical and emotional integrity and her feelings of fear and hopelessness were objectively reasonable. I am of the view that the actus reus of the offence of criminal harassment has been proven beyond a reasonable doubt.

[77] As to the mental element of the offence, I am satisfied that this is a case of wilful blindness. Particularly in the final years of his family life, the accused was receiving many complaints about the family rules and the discipline practices, from his children. He knew he was imposing a very difficult lifestyle on his family and he was not interested in hearing any complaints or discussing any changes. He was well aware his methods of physically disciplining the children were deeply distressing to Mrs. H. His family’s unhappiness was plain for him to see and his response in the final months was to attempt to tighten his control of the family. I find the accused guilty of criminal harassment of Mrs. H. as alleged in count 2.

[78] Count 3 alleges that the accused criminally harassed son 1. Son 1 provided a statement to the police when the accused was first arrested. It was a harsh denunciation of his father’s conduct. This statement was admitted for its truth on application of the Crown, when son 1 recanted much of his statement in his trial evidence. Even allowing for the possibility that son 1’s statement was the result of some collusion with his mother and sister, particularly concerning the hearsay references and may also have contained exaggerations, son 1’s evidence at trial paints a picture of harassing conduct on the accused’s part, particularly with respect to physical discipline and with respect to many of the issues he and his father fought over in the months leading to the separation. Nevertheless it was son 1’s evidence at trial that he now has a better appreciation of much of the accused’s actions, particularly his approach to discipline and his frugal lifestyle. He also testified that he does not consider that he was harassed or abused and that he never doubted that his father loved him. In all of the circumstances, I entertain a reasonable doubt as to whether son 1 was criminally harassed and there will be a finding of not guilty of count 3.

[79] Count 4 alleges that the accused criminally harassed his daughter. The daughter revealed in her evidence a deep resentment of her father. She blames him for what she considered to be her lonely and boring life through her high school years. She was close to her mother. The daughter was outstanding academically and she wished to pursue a career in graphic design, something she became very involved in in her high school program. Unfortunately, this was another issue the accused sought to control. He belittled graphic design. He thought she should pursue a profession such as law or medicine. He also pressured her to enrol in one of the on-line universities so that she could study from home and could stay home and help her mother. In fairness, the accused was always prepared to pay for his daughter’s university education, just as he had done for son 1 and planned to do for the other children. He closely controlled and limited her social life, apparently for religious reasons. She fiercely resented the heat, light and water restrictions and she felt she was treated differentially from her brothers. The accused did not physically discipline his daughter as she got older, although there was some ear pinching and some striking with the belt when she was younger. In summary, I have a reasonable doubt as to whether the lifestyle imposed on the daughter by the accused amounted to criminal harassment. She had an unhappy up bringing in her teenage years and suffered from the accused’s very poor parenting and communication skills. However I have a reasonable doubt whether the accused’s conduct toward the daughter caused her to be more than annoyed and resentful. His conduct fell short of causing her to fear for her safety or psychological well being. There will be a finding of not guilty on court 4.

[80] The accused is also charged with the criminal harassment of sons 2 and 3, in counts 5 and 6 of the Indictment. These two boys, 16 and 14 years old when the family separated, suffered the economic deprivations of this family and seemed to take it in stride. They continue to love their father but resented his temper and often arbitrary punishments, as they viewed them. In my opinion the evidence clearly establishes that these two boys were regularly and frequently subjected to physical discipline in the form of the accused strapping them on the hand with a leather belt, together with a certain level of verbal abuse. The situation was particularly concerning for son 3 who was beaten frequently, sometimes several times a week and on occasion called demeaning names implying that he was stupid. I find that this discipline with the leather belt directed at teenagers is clearly not reasonable within s. 43 of the Criminal Code, as discussed previously. I am satisfied beyond a reasonable doubt that continually subjecting these two boys to abusive discipline methods caused them to fear for their safety and the accused was aware of this. Often his discipline was arbitrary and apparently designed to intimidate. There will be a finding of guilty on counts 5 and 6.

[81] Lastly, count 14 of the Indictment alleges that the accused unlawfully deprived Mrs. H. of property, being her credit and debit cards, to prevent her from purchasing groceries for the family. Section 423 of the Criminal Code provides:

423. (1) Intimidation – Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing.

(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them;

[82] The evidence was somewhat unclear as to what occurred in the last month before the H. family separated, concerning their credit cards. Normally Mrs. H. used these cards to do the grocery shopping. Based on Mrs. H.’s evidence and the evidence of son 1 and the daughter, I find that the accused developed the idea that he needed to lock up these cards either as a manner of punishing or reasserting control over the family in the face of on-going conflicts, and his silent treatment of sons 1 and 2. He seemed to view Mrs. H. as being complicit in the sons’ rebellious activity. The accused denied this and said the cards were centralized and locked in the suitcase for security reasons and Mrs. H. had a key to access this suitcase whenever she chose to do so. I reject that evidence. Certainly the food expenditures were greatly reduced in this period of time and the children all complained of not having enough to eat. It may also be that Mrs. H. was responding to the increased restrictions imposed by the accused by reducing her own efforts in terms of shopping and meal preparation.

[83] In any event, this offence cannot be made out unless the Crown can prove beyond a reasonable doubt that the accused locked away these credit cards wrongfully and without lawful authority. In fact these credit and debit cards belong to the accused and Mrs. H. jointly. The accused would appear to have had the lawful right to discontinue the use of these cards at his discretion as the owner of the account. On that basis, I must have a reasonable doubt that this offence has been established. I find the accused not guilty on count 14.

[84] In summary, the accused is found guilty on counts 2, 5, 6, 7, 9 and 12 of the Indictment. I find him not guilty on counts 1, 3, 4, 10, 11, 13 and 14. Count 8 was withdrawn.

Mr. Justice Charles T. Hackland

Released: January 16, 2014 (orally)

COURT FILE NO.: 11-1309

DATE: 20140116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

M. H.

REASONS FOR JUDGMENT

HACKLAND R.S.J.

Released: January 16, 2014 (orally)