COURT FILE NO.: 30000149/12
DATE: 20140916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AM
Defendant
Julie Battersby, for the Crown
Mark Trenholme, for the Defendant
HEARD: September 8-10, 2014
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
E.M. Morgan J.
[1] AM is charged with 14 different offenses. These include four counts of assault and/or sexual assault of his former spouse, BK, seven counts relating to threats allegedly made against BK and/or her children, one count relating to an alleged threat made against BK’s sister RK, and two counts of communicating with BK contrary to a condition in his recognizance of bail entered into before a justice, and attempting to obstruct, pervert or defeat the course of justice.
[2] AM pleaded not guilty to all charges and was tried by me without a jury.
[3] BK, RK, and AM were the only three witnesses to testify at trial.
I. Background
[4] BK was born in Pakistan in 1983. After spending several years living in the United States with her first husband, she immigrated to Canada in 2002 with her son from that first marriage. Three of her sisters came to Canada at the same time. BK is now a Canadian citizen and works as a law clerk.
[5] In an effort to find a new spouse for BK, RK made her a profile on the Shia Match website, an internet service dedicated to matching men and women from the Shia Muslim community. AM, who was living in Pakistan at the time, also had a profile on the same website, and the two were introduced to each other sometime in 2004 or 2005. Their respective siblings – BK’s sister RK and AM’s brother – communicated with each other and made the introduction. Thereafter, AM and BK began speaking with each other on the telephone and chatting with each other over the internet.
[6] The couple was married over the telephone in August 2006 in a form of ceremony that is recognized in the Islamic tradition. BK testified that she wanted to get married in order to start a family and to provide her son with a father. She also explained that in her culture there is more respect given to married women than to divorced women, which provided a further impetus for her to find someone and to get married.
[7] During the wedding ceremony, AM was in Pakistan and BK was in Canada. BK testified that in addition to the telephone ceremony, she was sent a certificate to sign to make the marriage valid in Pakistan, which she signed and sent back to AM.
[8] Shortly after the marriage, BK sponsored AM to immigrate to Canada. This turned out to be a lengthy procedure, as AM’s application for a permanent resident visa was at first declined by the Canadian immigration authorities. This decision was eventually overturned on judicial review, and AM was finally able to come to Canada in May 2009. During all this time, BK and AM continued to carry on a long-distance relationship by speaking on the telephone and chatting over the internet.
[9] AM and BK met in person for the first time when they each travelled to Iran for a 15 or 16 day visit in December 2007. At the end of the visit, AM returned to Pakistan and BK returned to Canada. This two-week sojourn was the only time that the two of them actually met prior to AM’s eventual arrival in Canada in May 2009.
[10] The Iranian visit produced a daughter for BK and AM who was born on October 5, 2008.
[11] Both AM and BK testified that their relationship was fine for the first short while that AM was in Canada, but that it started to deteriorate soon thereafter. AM moved in with BK and the two children. He had told her that he did not want to live with any of her siblings or with her mother (who was now living in Toronto as well), so in anticipation of AM’s arrival in Canada BK had found a separate apartment located near her family.
[12] BK testified that after his arrival AM spent a lot of time on his computer, apparently sending emails and engaging in internet chats. She complained that he was very secretive about these digital conversations, and that if she happened to walk by him while he was sitting at the computer he would minimize the screen so that she could not see what he was doing. In addition, BK’s son reported that AM spent stretches of time on the computer when she was not at home.
[13] Eventually, BK became so suspicious of this behaviour that she took steps to find out what her husband was doing. One time, when he got up from the computer to go to the bathroom, she took the opportunity to activate the “archive” function on the chat program he was using so that his computer would save transcripts of the chats that she could print out later. Another time, when he was logging into his computer, she stood behind him so she could watch him type his password which she then used to access his email and chats.
[14] A large number of AM’s computer chats and emails were in this way acquired by BK beginning in September 2009. Printouts of these messages were entered into evidence at trial.
[15] AM’s digital correspondence revealed to BK that he spent much time discussing his marriage and his future plans with his brother, and that AM was rather negative or cynical about his marital situation. The gist of many of the conversations that were entered into evidence is that he had only married in order to acquire a Canadian passport, and that as soon as he had the new passport he intended to leave the country in order to pursue job opportunities in the United Arab Emirates. His exchanges with his brother were replete with references to the fact that he never considered BK to be a real wife, that he disliked her son, and that he was anxious to leave.
[16] In addition, AM’s email correspondence revealed that he had a relationship with another woman in Pakistan during the time when he and BK were already married and BK was pregnant with his daughter. Several messages which BK printed from AM’s email account were addressed to a female who BK had never met, and were written in romantic language that expressed AM’s longing for the woman.
[17] It became clear to BK that she was being used by AM and that his heart was elsewhere. As BK put it at one point in her testimony:
A: Those emails were showing that these two people – [AM] and that lady – were in love with each other.
Q: How did that make you feel?
A: Bad. Really bad, actually… I was kind of sad and feeling betrayed by him.
[18] It was on September 30, 2009 that BK finally decided to print out the transcripts of AM’s computer chats and emails for the first time. This roughly coincided with some heated discussions that the two of them had regarding the prospect of an upcoming first birthday party for their daughter.
[19] According to BK, it was during the course of arguing over the birthday party that a long series of violent assaults and threats by AM began. According to AM, the discussions surrounding the plans for their daughter’s birthday party and the arguments between BK and him during the ensuing months may have been disagreeable, but there were no threats or physical assaults perpetrated by him.
II. The approach to the evidence
[20] Before describing the testimony regarding the alleged assaults and threats, it is worth briefly reviewing the approach that must be taken to the evidence in a case like this.
[21] I must decide this case on the basis of a number of fundamental legal principles. Foremost among these is that AM is presumed to be innocent, and that the onus of proving the case beyond a reasonable doubt rests with the Crown. If I find that the evidence establishes a likelihood of guilt, or even a strong probability of guilt regarding any of the offenses charged, I must nevertheless acquit as that level of proof does not meet the requisite standard of proof beyond a reasonable doubt.
[22] Further, I must keep in mind that a criminal trial is not a credibility contest between witnesses. As Cory J. put it in R v W (D), 1991 93 (SCC), [1991] 1 SCR 742, at para 10, as a trier of fact I “need not firmly believe or disbelieve any witness or set of witnesses.” Moreover, I must proceed in accordance with the instructions that Cory J., at para 11, states that a jury would properly have received in a case where credibility is important:
First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[23] The evidence must be considered in its totality, such that “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v. L (CO), 2010 ONSC 2755, at para 6. Accordingly, I must acquit AM of any given charge if I am unable to come to a determination “as to exactly where the truth of the matter lay”, R v Nimchuk (1977), 1977 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA), or if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 1979 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).
III. The assault and sexual assault allegations
a. September 2009
[24] At some point roughly a week or two in advance of their daughter’s first birthday on October 5, 2009, BK raised with AM the subject of a birthday party. She could not recall the specific date, or whether her son was at home. She indicated that he may have been at her mother’s apartment at the time, which was in the same apartment building three floors down from their own suite.
[25] BK testified that AM did not want to have a party. She stated that he particularly didn’t want her to invite any males to their home, to which she replied that she could cover her head with a hijab and reminded him that his mother and sister used to have parties like that. According to BK, the mention of his mother and sister made AM angry, and he slapped her on the face, pushed her onto the sofa, and grabbed her hair.
[26] She testified that this was the first time he had hit her, and that she was shocked. She recalled that AM responded to her shock by saying that, “It’s up to you how I treat you.”
[27] According to BK, AM then became apologetic, telling her that, “You have to understand it’s a new environment. My family is not here. I don’t know why you want to have a party when my family is not here.”
[28] For his part, AM agrees that they argued over the birthday party sometime in late September 2009, but denies that there was any physical altercation. One of his internet chats with his brother shows that he told him that he did not want to invite his wife’s “stupid family”, but otherwise there is no indication in what he thought was his confidential correspondence with his brother that a physical fight had ensued.
b. October 2009
[29] BK testified that sometime shortly after their daughter’s birthday party, toward the end of October 2009 or, possibly, the beginning of November, she had another argument with AM that culminated in his hitting her with the TV remote device. As she narrated it, she was sitting in the lounge area of the apartment on a two-seat sofa, and AM was reclining on the three-seat sofa; they had an argument about the TV show they were watching, and he threw the remote at her which struck her on the upper arm.
[30] According to BK, she was again shocked that he had hit her and asked why he got so mad, to which he retorted, “I’m your husband and you have to take my side.” She says that she then became quiet, and that shortly afterward he said that he was sorry.
[31] In cross-examination, BK conceded that she cannot really recall when this incident took place. She stated that, in fact, it may have taken place prior to the argument about planning the birthday party in September 2009, which she had originally testified was the first time AM had ever been violent with her. As she put it, “I cannot be 1000% sure. It’s been a long time.”
[32] As with all of the allegations of violence, there were no other witnesses to the incident and AM denies that it occurred.
c. October/November 2009
[33] Another violent incident was described by BK as having occurred sometime after the birthday party, when the family was together in the apartment and the children were in the lounge area watching television. She testified that AM started to scream at her son, asking why the TV was so loud. BK says that her son got scared and that she came into the TV lounge and told AM that it’s not the child’s fault, to which AM replied that her son is like an animal.
[34] BK relates that she and AM then went into the bedroom to talk, where he started hitting her and grabbed her in the jaw. She could not recall if he grabbed her with one hand or two, but she said that she was crying because he slapped her very hard on her face with his hand.
[35] Portions of the printouts of AM’s internet chats with his brother suggest that he disliked BK’s son. BK states that the printouts confirmed for her what she already knew about AM’s feelings toward her son. She testified that, “The idea that I got from the chats was that… he considers me an animal. Not only me, my son. He used to call him ‘animal’”.
[36] BK indicated that after this incident, AM told her son to stay in his room with the door closed when he is home.
[37] AM denies that any such assault or violent incident occurred. In his testimony he related that over the course of their marriage he and his wife had a number of arguments over the son’s behaviour, but insisted that he was never violent toward her. The son himself did not testify at the trial, and so there was no other witness to this event.
d. February/March 2010
[38] Another violent incident described by BK appears to have occurred sometime between February and April 2010, when she told AM about obtaining printouts of his computer chats. She testified that around the same time she called her husband’s uncle and aunt in Pakistan who he had referenced in his chats with his brother, and that they apparently had never been told about his marriage.
[39] BK said that one day when he came home from work, AM grabbed her and pulled her down off of a stepladder and beat her all over her body with a belt he had taken from the closet. According to BK, AM continually asked her, “Why did you call my auntie, why did you call my uncle”, to which she responded, “I didn’t know you wouldn’t like it.” She testified that he continued beating her until he got tired and sat down on the bed.
[40] The fact that AM did not want BK to be in contact with his relatives in Pakistan is confirmed in one of his internet chats. Indeed, in his testimony at trial AM acknowledged that he had discussed with his brother the fact that BK had called their aunt. However, he denied that he had ever hit her or pushed her off a stepladder, and none of his computer correspondence contains any reference to a physical fight relating to BK’s call to his relatives.
[41] BK testified that she was badly hurt in this beating incident, and that she had many bruises on her arms and stomach. She stated, “I really got sick. My body was in pain.”
[42] She also testified that AM did not permit her to go to the doctor or to get medical help for her injuries. She did concede, however, that she had ample opportunity to go to a doctor when AM was at work, but that she never did so. She explained that she was anxious to preserve their marriage and did not want to report his violence to anyone.
e. Mid-2010
[43] Sometime in 2010 – BK could not identify a date or month, but seemed to recall that the balcony door was open for ventilation suggesting it was spring or summer – AM came home from work in the middle of the day looking angry, and complained that the TV was too loud. She testified that she was making bread in the kitchen, and that he took the rolling pin and hit her on the left shoulder; and that thereafter when she began arguing with him, he said, “Do you want another dose?”
[44] BK described the blow with the rolling pin as being very painful and causing her to cry. She said that AM then threw the roller onto the counter and went to change clothes. She added that she then put the food on the table, and when he came out of the bedroom to eat she went into the bedroom and pretended to sleep.
[45] As BK relates it, after finishing his food AM came into the bedroom and touched her hand and said “wake up”, and “take off your pants.” When she asked, “Why?”, he responded, “You know why.”
[46] “I knew why, of course”, BK told the court. She then said that he tried to pull her pants off and she tried to pull them back on. According to BK, he told her, “You have to know what your husband needs”, and she responded, “I do not want it.” BK told the court that in early 2010, when she confronted AM with the printouts of his internet chats, she had already decided that she no longer wanted to have sexual relations with him.
[47] She continued her testimony by describing how he pushed her back until she fell against the wall and hit her head against the baseboard heater. She said that her hands were already hurting from where he had hit her with the rolling pin, and she couldn’t brace herself to stop her fall. She said that after she fell on the floor, he punched and slapped her.
[48] BK related that he put on a condom and continued to curse her and punch her while having intercourse. In her words:
He kept on doing it until I lost all my energy. Then he did intercourse. After I lost all my energy and gave up, then he pulled my pants off. Then he came on me on my legs… It was really painful. He was doing it on purpose just to give me more pain and pain.
[49] BK stated that after he finished he slapped her and told her, “Next time if I ask you, you have to do it. Never say no.”
[50] AM denied that this incident ever took place. He testified that when he would come home from work in the middle of the day, BK was always still in bed. He said that she never did any baking and that she was never up and working in the kitchen when he arrived mid-day.
f. Fall/winter 2010
[51] AM’s one set of relatives in Canada of which BK was aware was his cousin Jennifer and her husband who lived in Mississauga. At one point she called them to introduce herself, and invited them over for dinner. As BK described it, they were surprised to learn that AM had a wife and daughter. BK did not recall when this conversation took place, but remembered that when they visited the next day they were wearing jackets, and so she surmised that it was the late fall or winter of 2010.
[52] When Jennifer and her husband left the apartment following their visit, AM took them downstairs and then dropped BK’s son at BK’s mother’s apartment. According to BK, he then came back to their own apartment and began beating her. She described this fight in some detail, stating that he first hit her with his hands, punched her in the mouth, grabbed her and pulled her by the hair into the bedroom, punched her in the face with his fist, and pushed her onto the floor and began “punching” her with his knee. She related that by the time the beating ended, her mouth and her nose were bleeding and she was crying.
[53] Once again, BK indicated that she did not seek medical help because AM did not let her. As she narrated it, he advised her to “take Advil. If you go to the doctor, you know the police will get involved, the family will break and all the hard work you have been doing will be for nothing.”
[54] BK explained that this line of thinking accorded with her own, and that for that reason she did not report her injuries to a doctor or to anyone else.
[55] BK also testified that the same night AM had told her he wanted to have sex, but that she told him she would not do it because he had beat her. As BK related it, he then said, “You see, you are Canadian”, to which she replied, “It’s not about Canadian or Pakistani, it’s about my own choice.”
[56] She went on to describe how, despite her protests, AM demanded that she take off her pants, and that she told him that she didn’t want to. She testified, “But he didn’t leave me alone, and he was slapping me and punching me and pulling my hair,” after which he sat between her legs and put his penis in her vagina. She said that he had a condom on, although she did not know when he had put it on.
[57] AM denied that this incident took place. He testified that he never had sex with BK against her will; he conceded that the two of them had “indulged in arguments” on several occasions, but swore that he never “touched” his wife in any violent way.
g. Unknown times
[58] BK stated in the witness stand that at some point the beatings affected her memory, especially the beatings on her head. She said that sometimes she would forget about food and that her children would have to remind her to prepare something.
[59] Insofar as other allegations of sexual assault were concerned, BK stated that she was frequently forced to have sex with AM during the course of their 18 months together, but her memory was foggy. She stated, “I don’t remember a specific one, but when I told him I don’t want to [have sex] – I don’t remember which month it was – but he said that if we don’t I’m going to take your son away.” She testified that he threatened her that way often when he wanted to have intercourse.
[60] BK related that one time she asked AM to take out the garbage, and that he got angry and said, “Do you think I’m a Canadian man and I’ll just do anything you want him to do?” She said that she then took the garbage out herself and put her daughter to sleep, after which he told her, “Pull off your pants.” She replied, “I don’t want to. Don’t force me.”
[61] According to BK, AM then pulled off her pants and threatened to harm her son if she did not have sex with him. She testified that he told her, “If you’re not going to do it, I’m going to kill him. I’m going to beat him right here in front of you.” She continued by stating that she had to have sex with him because she lacked the energy to resist and because of the threats.
[62] When BK was asked if this incident happened after she confronted AM with the internet chats, she was unsure of the timing and replied, “It might have been after.”
[63] BK acknowledged that she told her sister, RK, about AM’s internet chats that she had discovered, but she testified that she never told RK or anyone else about any violence or sexual assaults.
[64] AM conceded that he wrote the correspondence that BK found on his computer. However, he strenuously denied that he ever made threats against BK’s son or that he hit BK or forced her to have sex against her will.
h. December 1, 2010
[65] The marriage between BK and AM ended with a fight on December 1, 2010. The previous day, BK had been called to her son’s school to speak with the teacher about the boy’s behaviour. Both BK and AM are in agreement that the next morning BK wanted AM to speak with her son abut his problems. AM testified that he told her he would speak with her son that evening after work, while BK testified that AM refused to speak with her son and had no concern for him.
[66] The fight that day started early in the morning, and continued until the afternoon when AM finally left the apartment. During that time, BK came and went several times as she took her son to school, picked him up for lunch, took him back to school, and brought him home for the day. She said that she was constantly trying to get AM to talk to her son, but he refused to do so as the fight between them escalated.
[67] The most severe of the incidents appears to have taken place in the morning before BK took her son to school. BK testified that AM slapped her, grabbed her neck and throat, and pushed her against the wall. She said that when AM saw her son during the course of this assault, he exclaimed, “Look, your Mom is beating me.”
[68] AM testified as to roughly the same sequence of events, but portrayed BK as the aggressor and himself as the victim. He said she was constantly demanding that he discipline her son by beating him, and that the fight escalated because he said he would speak with the boy but that he would not beat him. He also testified that he sent a letter to the son’s school responding to the teacher’s concerns, although no copy of the letter was produced at trial.
[69] According to AM, at various points that day BK threatened that she would call her two brothers to come kill him, and that she would cut her own arm and call the police to blame it on him. AM stated that he was startled by BK’s threat to harm herself, as he had never heard her say that before. He also said that at one point, when he was trying to leave the apartment, she pulled him back and the bolt of the door hit him and injured his wrist. She then pulled on his jacket, and he escaped into the son’s room saying, “You are a witness that your mother is beating me.”
[70] BK related that in the middle of the day, and in the midst of the fighting, there was a knock at the apartment door. She said that AM accused her of calling the police and threatened to kill her if the police were at the door, although AM testified that he never heard anyone come to the door at all.
[71] As it turned out, BK said, it was the building manager who had come to ask a question. BK stated that she answered the door and, despite the fact that she had been crying, the manager did not ask what was going on and BK did not tell her. When asked about this, BK conceded that she had ample opportunity that day to seek outside help, but was still of the view that she should not do so for the sake of her marriage. She explained, “If I was looking for help, I was outside the apartment twice and could have asked for help.”
[72] AM eventually left the apartment in the afternoon. He did not return until late at night, when he arrived accompanied by a police officer and collected his belongings.
[73] As BK narrated it, she took the occasion to finally do what she had never done before and to tell the officer that her husband beat her. She explained, “Once he involved the police, then why would I hide.”
[74] As AM narrated it, he had called the police and told them that he was afraid to go home as his wife and her brothers were bullying him. He explained that he wanted to involve the police because BK had threatened him and he feared a false accusation. He indicated that he did not tell the police about BK’s threat to cut herself.
[75] That day was the last time that AM resided with BK. AM took several suitcases from the apartment and the police officer accompanied him to a shelter. He ended up staying with a friend for a few days thereafter.
[76] The next day, on December 2, 2010, BK herself contacted the police and arranged to give a full statement to them about all of the incidents in which she said that AM assaulted her. She conceded that although she gave the police a lengthy statement, she did not mention any of the allegations of sexual assault. As she put it in her testimony, “I did not have knowledge that I should tell the police everything that was going on with me.”
[77] BK testified that sometime later, when she went to a victim counselling session, a counsellor explained to her that she should tell the police everything that had transpired between AM and herself. In March 2011, several months after her initial report to the police, BK gave a new statement to the police and this time included the sexual assault allegations.
[78] In his testimony, AM did not disagree that a physical altercation had occurred in the apartment on December 1, 2010. However, he stated that it was BK who threatened and assaulted him, and that he still has a protruding bone and pain in his wrist to show for it.
IV. The telephone call allegations
a. December 5, 2010
[79] BK explained that she was so upset and fearful when she gave her statement to the police on December 2, 2010, that the officer advised her not to stay in her own apartment. As a consequence, she moved in with RK and her family for a period of time.
[80] BK also indicated that she was having dinner at RK’s apartment on December 5, 2010 when she received a call on her cell phone from AM. According to BK, AM threatened that if she did not withdraw the charges against him he would kill her son and take their daughter to Pakistan.
[81] RK testified that she was sitting at the dinner table when BK received the call from AM, and that she heard BK’s half of the conversation. She also testified that immediately after BK finished her conversation, RK’s home phone rang and it was AM looking to speak with her. According to RK, AM threatened her as well. As she narrated it, AM told her that he knew where she and her husband work and where her children go to school, and so “it would be better for you if you ask your sister to take all the charges back.”
[82] On cross-examination, RK was asked whether BK ever told AM where she was during the course of her cell phone conversation with him, and RK said that she did not hear BK tell him where she was. It is unclear from RK’s testimony how AM knew to call her on her home phone immediately thereafter. I also note that there were no telephone records entered into evidence to verify that a call to BK’s cell phone took place on December 5, 2010.
[83] AM denied that he ever called either BK or RK on December 5th. He testified that he was at a friend’s house and spent the entire day with the friend and the friend’s mother. I note, however, that neither his friend nor friend’s mother testified at trial to corroborate AM’s version of events. His counsel asked him about this during his testimony in chief, and AM explained that his friend and his mother were out of the country during the week of the trial.
[84] According to AM, he learned on Friday, December 3rd that the police were looking for him. He said that he spent the weekend at his friend’s house without contacting BK, and on Monday, December 6, 2010, turned himself in to the police.
b. July 22, 2011
[85] On December 10, 2010, the court issued a recognizance which, inter alia, required AM to refrain from communicating with BK except through counsel for the purpose of preparing for trial.
[86] BK testified that AM called her on July 22, 2011 and again threatened her. In fact, she stated that there was more than one phone call that morning and that AM kept calling and she kept hanging up. According to BK, AM threatened her and her children once again; and that this time, in addition to demanding that she withdraw the charges, he asked her to return the money he had spent on her car. She explained that this was the same thing that he had sought and had been denied at a family court hearing shortly before this date.
[87] Again, AM denies calling BK on July 22, 2011, and there is no phone bill or other record to provide an independent confirmation of the calls. AM testified that after the recognizance of December 10, 2010, he has had no contact with BK outside of a courtroom.
V. Reasonable doubt
[88] With the exception of RK’s brief testimony, the case is composed entirely of BK’s word against AM’s. There are no telephone records, police or medical evidence, or witness accounts to take the matter outside of the closed world of these two spouses. I do not mean to say that there is any requirement that a third party witness the events or that the incidents be reported to anyone, and I draw no inference from the way the case has taken shape. I merely point out that there is little to assist me in assessing the credibility of either BK or AM.
[89] BK points to the many pages of transcribed internet chats and emails obtained from AM’s computer as confirming her description of his actions. However, there is nothing in all of those pages that corroborates or suggests that any violence or non-consensual sexual relations transpired between them.
[90] BK perhaps rightly feels betrayed by AM; the internet chats and email exchanges show him to be an unfaithful husband whose interest was more to exploit her to obtain Canadian citizenship than it was to have a wife and family. However, the charges against AM are sexual assault, assault, and threatening and intimidation; the evidence pointing to his planning to leave Canada for a job, or to his romantic involvement with another woman, does not address the criminal allegations against him.
[91] Indeed, the computer conversations, which go on for pages and which span many months of exchanges with his brother, serve more to cast doubt on AM’s guilt than to establish it. Never in all that time did AM indicate that there had been any violent or otherwise criminal altercation between him and BK, despite the fact that he was speaking frankly with his brother in what he thought was an entirely confidential medium.
[92] I hasten to add that, on its own terms, I do not have any particular reason to doubt BK’s credibility. Although her testimony was vague on the dates of some of the occurrences, and she herself conceded that her memory is not strong, there was nothing illogical in her narrative. She testified in a poised and confident manner, and her evidence was coherent and straightforward.
[93] That said, the same thing can be said of AM’s evidence. This is not a case where the complainant’s evidence causes me to reject outright the accused’s evidence: See R v JJRD, 2006 40087 (ON CA), [2006] OJ No 4746, at para 53 (Ont CA). AM’s testimony at trial was mediated through an Urdu language interpreter, but he appeared to have an equally factual approach and confident way of speaking.
[94] AM was firm in his denials of BK’s allegations; he did not circumvent the issues or fail to deny any allegation in a way that could be interpreted as a tacit admission: See R v Govedarov (1974), 1974 33 (ON CA), 3 OR (2d) 23 (Ont CA), affirmed (sub nom R v Popovic) 1975 30 (SCC), [1976] 2 SCR 308. On its own terms, AM’s description of the events was as logical as BK’s description.
[95] RK’s evidence was not particularly helpful in clearing up the matter. It related to only one phone call (or, perhaps more accurately, to one-and-a-half phone calls). RK supported her sister in stating that BK received a call on her cell phone on December 5th, but even if I accept that, it is difficult to take anything more from RK’s description of the one-sided conversation that she said she heard.
[96] With respect to RK’s own call from AM, there is some question as to how AM would have known to call her at the very moment when she was sitting with BK. AM denies that he called her at all. Overall, there is nothing to make the AM-RK telephone conversation any less closed and unverifiable than any of the AM-BK interactions.
[97] The fact is that BK and AM each narrate a sequence of events that occurred in private between them. Each testified as to a version of those events that, while containing certain small inconsistencies, generally makes sense. Taking the totality of evidence before me, I am not convinced that the version of events narrated by one of these witnesses is any closer to the truth than that narrated by the other. As Code J. described it in R v Edwards, 2012 ONSC 3373, at para 20, I am left in “a state of indecision or uncertainty” as to where the truth lies.
[98] I must keep in mind that “the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence”: R v Lifchus, 1997 319 (SCC), [1997] 3 SCR 320, at para 36. As Iacobucci J. observed in R v Starr, 2000 SCC 40, [2000] 2 SCR 144, at para 242, the criminal standard of proof beyond a reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities.”
[99] Accordingly, the question is not whether I believe one witness relatively more than the other. Rather, “if the defence evidence leaves [me] in a state of doubt after considering it in the context of the whole of the evidence, then [I am] to acquit”: R v Morin, 1988 8 (SCC), [1988] 2 SCR 345, at para 42.
VI. Disposition
[100] The Crown has not proved any of the offenses beyond a reasonable doubt. Accordingly, I find AM not guilty on all counts.
Morgan J.
Released: September 16, 2014
COURT FILE NO.: 30000149/12
DATE: 20140916
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
AM
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: September 16, 2014