CITATION: R. v. Abraham, 2016 ONSC 2349
COURT FILE NO.: CRIMJ(P) 840/11
DATE: 20160407
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Andrew Falls, for the Crown
- and -
IVERSON ABRAHAM
Brian Starkman and Robert Wulkan, for the Defence
HEARD: January 19, 20, 21, 2016, at Brampton
REASONS FOR JUDGMENT
Justice F. Dawson
[1] Iverson Abraham is charged that on February 26, 2009 he attempted to administer a noxious thing to Karen Conceicao with intent to cause her bodily harm contrary to s. 245(a) of the Criminal Code. The case was previously tried before a jury but the jury was unable to reach a verdict. The trial proceeded before me as a judge alone trial.
[2] Mr. Abraham and Ms. Conceicao were involved in a prolonged sexual relationship which she described as their being “friends with benefits”. Ms. Conceicao became pregnant. It is alleged that Mr. Abraham attempted to have her consume a drink laced with synthetic hormones in an effort to induce an abortion because Ms. Conceicao refused to terminate the pregnancy.
[3] The evidence at trial consisted of the testimony of Ms. Conceicao and the testimony of her cousin and of two police officers. The accused did not testify or call any evidence. However, an extensive Agreed Statement of Facts was filed to supplement the oral testimony. Fifty four pages of text messages between Ms. Conceicao and Mr. Abraham were appended to the Agreed Statement of Fact.
[4] There are ongoing acrimonious family law proceedings between Ms. Conceicao and Mr. Abraham concerning the custody and access of their daughter Jaeda, who was born in 2009.
The Evidence
[5] Ms. Conceicao testified that she worked as a teaching assistant for children with special needs and also worked at a Swiss Chalet restaurant at Pearson International Airport in Mississauga. She met the accused through her job at Swiss Chalet. He worked at the airport and attended the restaurant.
[6] At the time they met Ms. Conceicao was in a failing marriage. She and her husband had spent large sums on fertilization treatments. Ms. Conceicao had become pregnant and then lost the child. She testified she was told there was no further chance she could become pregnant. The marriage then became abusive.
[7] Ms. Conceicao explained that she and the accused became very close friends by sharing their difficulties and offering each other support. Eventually they began a sexual relationship. She knew the accused was seeing another woman. She said their relationship involved sex without commitment. She referred to this as their being friends with benefits. Based on what she had been told by her doctors she did not believe she could become pregnant. She was also taking birth control pills to regulate her menstrual periods.
[8] Around Christmas 2008 Ms. Conceicao learned she was pregnant. She described it as a miracle from God. She was shocked and delighted. On December 26, 2008 she encountered Mr. Abraham in a parking lot at the airport. He knew from text messages that she had been in the hospital. She told him she was pregnant.
[9] Based on Ms. Conceicao’s testimony and the content of the text messages it is clear that Mr. Abraham had a very negative reaction to this news. His immediate response was to question how this could have happened. He blamed Ms. Conceicao and was insistent that she should terminate the pregnancy. He repeatedly told her and texted her that she had promised him that if she ever got pregnant she would terminate the pregnancy. He begged her to “get rid of it”. There are numerous text messages between Ms. Conceicao and Mr. Abraham where they express their positions. He continuously insisted she terminate the pregnancy and she refused.
[10] Ms. Conceicao testified that on Thursday, February 26, 2009 Mr. Abraham contacted her and said that it was very important that they meet. She testified that she was afraid of him but said she would meet him in a “neutral place”. She said she thought the accused might do something due to his texts. They agreed to meet in the parking lot of the Square One shopping centre in Mississauga that evening. Ms. Conceicao testified that she told her friend about the meeting and asked her friend to call the police if she did not contact her friend after the meeting. The friend was not called as a witness.
[11] Ms. Conceicao testified that the accused told her before the meeting that he was going to Tim Hortons and asked her if she wanted a coffee. She asked him to bring her a peach drink. She said that she drank peach drinks from Tim Hortons a few times a week.
[12] Ms. Conceicao said that when she arrived at the meeting spot Mr. Abraham was already there. Her peach drink was sitting on top of his car. When he gave it to her she noticed it was already open. She testified that Mr. Abraham told her he was thirsty and had taken a sip.
[13] Ms. Conceicao said that when she took a small sip of the drink it sizzled and fizzed and white stuff came to the top. This was not normal. She did not comment to Mr. Abraham about the drink because she was alone with him in that part of the parking lot. She said the accused asked, “Aren’t you thirsty?” She pretended to drink and then placed the bottle in the cup holder of her car.
[14] When she asked what the accused wanted to talk about he asked her if she had told anyone at the airport about her pregnancy. He said he did not want anyone to know he was the father. She thought this was not urgent and could have been discussed over the phone. At that point the accused got a text and said he had to go.
[15] Ms. Conceicao testified that as she was driving home she noted that a white powder was settling in the bottom of the peach drink. She called her friend and they discussed the drink. Her friend told her that she should contact the police and that perhaps the drink could contain “rat poison”. Ms. Conceicao said she did not think the accused would do that. She did not tell her mother or sister about what had happened when she got home. The drink remained locked in her car.
[16] Ms. Conceicao testified that she had an exchange of text messages with Mr. Abraham later that evening during which he asked her if she drank all of the peach drink. She lied and told him that she had.
[17] The next day, Friday February 27, 2009, Ms. Conceicao attended a funeral in the morning which lasted until about 3:00 p.m. She then went home and had a nap before driving to her cousin Natalie Pickett’s home in Markham where she had plans to spend the weekend. She testified that she discussed what had happened with her cousin and showed her the bottle of peach drink containing sediment. Her cousin told her she should go to the police. She agreed to go to the police the next day. Her cousin took her to a division of the York Regional Police in the Markham area.
[18] The York Regional Police assumed custody of the drink bottle and sent a message to the Peel Regional Police about the complaint. The Peel Regional Police commenced an investigation and took custody of the drink bottle and its contents, which were submitted to the Centre of Forensic Sciences (CFS) for analysis.
[19] The Agreed Statement of Facts establishes the continuity of the peach drink and describes how the text messages were recovered from Ms. Conceicao’s iPhone. It explains that the times of the recovered texts are in Greenwich Mean Time and must be adjusted.
[20] The Agreed Statement of Facts also establishes the results of the forensic testing on the drink by Dr. Robert Langille of the CFS. The drink was found to contain synthetic progesterone and synthetic estrogen of particular types identified by Dr. Langille. Both are commonly found in oral contraceptives. The type of synthetic progesterone identified is also found in the “morning after” pill but the synthetic estrogen is not. Therefore, the synthetic hormones in the drink could have come from birth control pills or from a combination of the morning after pill and birth control pills.
[21] The Agreed Statement of Facts also establishes that if these substances were introduced into a peach drink there would not be any fizz or reaction as Ms. Conceicao described. Dr. Langille could not say how long it would take for such additives to dissolve in a peach drink or precipitate out. These synthetic hormones taken after implantation of an embryo are insufficient to cause it to be removed from the uterine wall. While they can prevent fertilization it is extremely unlikely they could induce an abortion. There is no forensic laboratory in Canada capable of quantifying the amount of synthetic hormones that were in the peach drink.
[22] Ms. Conceicao did not tell Mr. Abraham that she had gone to the police. She did falsely tell him that the peach drink had made her sick and pressed him to tell her whether he put something in the drink. This is all contained in text messages. Mr. Abraham told her in a text on March 3, 2009 that he did not put anything in the drink.
[23] However, Ms. Conceicao also testified that during a telephone conversation the accused told her that if she did not get the drink back from the police he was going to jail.
[24] There is an exchange by text message on March 9, 2009 where Mr. Abraham does ask Ms. Conceicao to call off the investigation. This exchange included comments by Mr. Abraham that he had started making arrangements to provide for the baby. He had taken the position in a number of texts that if the child was born he wanted to be involved in the child’s life and said that he could not turn his back on his own child. It is also an agreed fact (but not recorded in the written agreement) that before Mr. Abraham asked Ms. Conceicao to call off the investigation he had been told during a recorded police interview that if anything was found in the drink the police would arrest him. Based on all of the evidence it was obvious that something had been placed into the drink by someone.
Analysis
[25] In the foregoing summary I have set out the bones of the case with little reference to Ms. Conceicao’s cross-examination or to parts of the text messages which paint a somewhat different picture than that presented by Ms. Conceicao’s evidence-in-chief.
[26] Ms. Conceicao’s cross-examination demonstrated a number of significant inconsistencies and changes of position on her part. In my view, it also demonstrated that she has a strong animus against Mr. Abraham. During her cross-examination it became apparent that she is far from impartial. I would describe her as taking on the role of advocate and going overboard to have the court adopt her version of events. For example, when being referred to portions of the text messages in cross-examination she would sometimes read back long passages with dramatic emphasis and intonation.
[27] On behalf of the Crown, Mr. Falls made very able submissions about why I should find Mr. Abraham guilty as charged. However, he commenced his submissions by stating that the Crown was not submitting that Ms. Conceicao is a credible or reliable witness. In fact Mr. Falls accepted that the court could not find her to be credible or reliable. Mr. Falls acknowledged that on matters of significance Ms. Conceicao was inconsistent between her evidence-in-chief and her cross-examination, that she was inconsistent within her cross-examination, and that her trial testimony was directly contradicted by her sworn affidavit in family law proceedings. He also acknowledged that her testimony about a froth or fizzy reaction in the peach drink was inconsistent with Dr. Langille’s evidence in the Agreed Statement of Facts. He did not suggest that the court should act on her evidence that in a telephone conversation the accused said that if she did not get the drink back from the police he was going to jail.
[28] Notwithstanding Crown counsel’s concession on the credibility issue I will set out a number of matters that I find reflect adversely on the credibility and reliability of Ms. Conceicao’s evidence.
[29] Throughout her evidence-in-chief Ms. Conceicao repeatedly said that Mr. Abraham would say “kill it”, referring to the unborn child. An examination of the texts reveals that Mr. Abraham said to “get rid of it”. It was only Ms. Conceicao who used the words “kill it”. She did so repeatedly and with considerable vitriol. This reflects her disdain for Mr. Abraham and his position that she should have an abortion.
[30] When she commenced her evidence Ms. Conceicao said she was a teacher with the Peel District School Board. It eventually came out that she is an educational assistant. Based on my overall impression of her evidence I do think this was a calculated misrepresentation.
[31] Ms. Conceicao testified that she was so afraid or mistrustful of Mr. Abraham that she wanted the meeting on February 26 to be in a neutral public place. When cross-examined on the text messages it became clear that they had previously arranged to meet on February 26, 2009. This meeting may have been contemplated as being for sexual purposes.
[32] Texts revealed that Ms. Conceicao and Mr. Abraham had a conversation about having had sex on February 14, 2009 at her home. Ms. Conceicao denied that she was having sex with Mr. Abraham after she became pregnant and he told her he wanted her to have an abortion. She then acknowledged that they met at her home and that there was some sexual touching. She said she considered that to be sexual intercourse. This is nonsensical and I do not believe her evidence on this point.
[33] Despite the fact that Ms. Conceicao said she and her friend discussed that there might be rat poison in the peach drink she did not seek medical attention although she was pregnant with a child that she felt was a gift from God. This seems to me to be behaviour inconsistent with her overall version of events.
[34] It is with respect to her reaction to sipping the drink that there is the greatest and most significant inconsistency. Ms. Conceicao initially testified that she had only a small sip of the drink and that it had no adverse effect. Therefore she did not seek medical attention. She was cross-examined on her affidavit in the family law proceedings where she clearly swore that she did have a physical reaction to the drink which contributed to her belief that the accused was trying to induce an abortion. In response she said that she was sick but that she did not know whether it was from the drink or was due to morning sickness. Finally, she said the drink did make her ill. In short, her evidence varied considerably on this important point about whether she had any physical reaction to the drink.
[35] Ms. Conceicao then testified that she went to her family doctor a week or two after February 26, 2009. In cross-examination it was established that she had never said this before despite being interviewed by the police and testifying at a preliminary inquiry and a previous trial.
[36] Ms. Conceicao was also cross-examined about her delay in going to the police. She said that on February 26, 2009 she was too tired to go. With respect to February 27, she said she had to go to the funeral. She then took a nap before driving to Markham. She said she was uncertain about going to the police and she wanted a second opinion from her cousin. She was then cross-examined on prior testimony where she said she did not go to the police on her way to Markham because there were no police stations nearby. It was then established that there was a police station just blocks from her house. She then said she meant there were no police stations along the 407 as she drove to Markham.
[37] I also observe that I do not view the text messages between Ms. Conceicao and Mr. Abraham as reflecting any fear or mistrust of Mr. Abraham. They continue to discuss their sexual interest in each other. Her position in the texts was that she would have sex with the accused if and when she had not been bleeding for a week.
[38] At this point I also note that the texts on February 26, 2009 in which Mr. Abraham asked her whether she drank all of the drink down were, as Ms. Conceicao agreed, banter of the type she and Mr. Abraham engaged in when they were discussing getting together for sex. He did not bring up the drink, she did. She thanked him for getting it for her. He then asked if she drank it all. When she said she did he said, “well that sucks…I might need a drink later…after i fuck u i might have wanted some…” Read in context the exchange does not have the impact Ms. Conceicao attributed to it in examination-in-chief.
[39] For all of the reasons I have expressed I did not find the complainant to be a credible or reliable witness.
[40] I also note that she agreed in cross-examination that she did not think that the accused was a proper father figure. She was aware that if the child was born the accused wanted to be a part of the child’s life. She agreed that she did not want the accused to be a part of the child’s life. She said that was due to his texts and to his providing the drink and not due to her opinion he was not a suitable father figure. The record clearly establishes that prior to February 26, 2009 the accused had sent many texts that would have been very hurtful to a woman who wanted a child as much as the complainant did.
[41] Ms. Conceicao also agreed that it “could be” that in October 2008, just before she conceived, that she told Mr. Abraham that she loved him. She agreed that he told her he did not love her, emphasized that he was involved with another woman and suggested they should stop having sex. She then agreed to continue their no commitment sexual arrangement. She denied that she was the one who put birth control pills in the drink after the fact and then went to the police as a means of keeping Mr. Abraham out of the child’s life or because she was hurt by his rejection of her, her belief that he was not a suitable father figure and his desire that she have an abortion.
[42] The complainant also acknowledged that she saw the criminal case and the family law case as connected. A conviction in the criminal case would assist her in the ongoing family law case.
[43] Ms. Conceicao also agreed that subsequent to Jaeda’s birth she complained to the police and to the Children’s Aid Society (CAS) that the accused had assaulted and sexually assaulted Jaeda while exercising access. She acknowledged that the CAS had interviewed Jaeda and that the police had investigated and that no charges had been laid.
[44] All of these features of this case signal an additional need for caution in relying on anything which depends in any way upon the trustworthiness of the complainant’s evidence.
[45] Mr. Falls submits that despite the lack of credibility of the Crown’s primary witness a factual foundation does exist to establish Mr. Abraham’s guilt. He commences his argument by submitting that the texts up to December 30, 2008 show that the accused had a strong motive for doing what is alleged against him in order to induce an abortion. Next he says that we know the parties met at Square One and he relies on the agreed fact that the two synthetic hormones found in the drink are found in female oral contraceptives.
[46] Mr. Falls then submits that there are five pieces of reliable evidence which, taken together, ought to rule out that it was the complainant who put the synthetic hormones in the drink. He submits that realistically there are only two persons who could have “spiked” the drink I should be satisfied beyond a reasonable doubt that it was the accused because the five pieces of reliable evidence the Crown points to eliminate the complainant. I will refer to Crown counsel’s submissions on each of these five pieces of evidence in order. I will add my comments about them as I go along.
[47] First, Mr. Falls refers to a point in the complainant’s cross-examination on January 20, 2016 where defence counsel was asking Ms. Conceicao how she could be certain that another medication she was taking did not get in the drink. She testified that she took that medication by saliva alone when she put her tongue over the bottle and pretended to drink. Ms. Conceicao said in response, “We all know it was the morning after pill that went into the drink”.
[48] Mr. Falls points out that we know that is incorrect. The hormones could not have come from the morning after pill alone. They could have come from the morning after pill in combination with birth control pills or from birth control pills alone. Mr. Falls said that Ms. Conceicao would not have made this mistake if she was the one who spiked the drink because she would have known what was in it.
[49] I would point out two weaknesses in this submission. First, it assumes that the complainant was not capable of the level of deceit that would make that answer less than spontaneous. Based on my overall observations I have reservations about that.
[50] Second, I do not know what the police or others may have told the complainant about the results of the CFS analysis or what they may have shown her. It seems likely to me in this day of concern for victim rights that the authorities would have had some communication with her about this point. I do not know what information she might have received or how she interpreted or understood it. Ms. Conceicao was not re-examined on this point and the onus is on the Crown. This lack of evidence is significant in the circumstances of this case.
[51] Second, Mr. Falls refers to two places in the text messages where Ms. Conceicao asks Mr. Abraham about the drink.
[52] The first is later on February 26, 2009 where the complainant thanks the accused for the drink and he asks her if she drank it all down. Mr. Falls acknowledges that this may have been part of their flirtatious banter but he submits it is suspicious. He submits that if Ms. Conceicao spiked the drink and was trying to get Mr. Abraham to say something that could assist her plan she would have stopped there as it was the best answer she could get. However, Mr. Falls notes that one and a half months later she says, at text number 3762, “Please tell me you didn’t put nothing in these drinks.” Mr. Falls submits that if she spiked the drink she could only expect to get the answer which she did, which was “no”. That would not assist her nefarious plan. This, Mr. Falls submits, is an indication she did not spike the drink herself.
[53] This is an interesting and well-crafted submission. However, as Crown counsel points out, it was obvious only two people could have spiked the drink. If she had done so and was going to go to the police and make a false allegation she would want to do what she could to make it appear that she had not done so. She clearly had a potentially strong motive of her own. This must be kept in mind when assessing all of the evidence and applying the reasonable doubt standard to the totality of the evidence.
[54] Third, Mr. Falls makes a submission related to the previous one. He refers to the exchange between the parties represented by texts 3742 to 3763. Mr. Falls says here the complainant “upped the ante” by telling the accused that the hospital and the police were involved. He submits that if she spiked the drink this would be valueless and could only work against her goal of getting a confession. It would not convince a person to falsely confess or lead them to make a comment that she could twist or take out of context to direct suspicion towards him. Mr. Falls submits that what Ms. Conceicao did only makes sense in a world where she did not spike the drink.
[55] This point is susceptible to the same concern as the last one. If she was scheming and had spiked the drink herself she would need not only to point to Mr. Abraham but also to act to divert suspicion from herself. Defence counsel submits that this is capable of being viewed as a form of self-serving evidence.
[56] Fourth, Mr. Falls makes a submission about deleting texts. At text 3763 the accused denies putting anything in the drink. Mr. Falls says that not deleting Mr. Abraham’s denial is inconsistent with Ms. Conceicao having spiked the drink.
[57] As defence counsel, Mr. Starkman, points out, Ms. Conceicao would be aware that Mr. Abraham may also have kept his record of these texts. If Ms. Conceicao deleted part of the text messages she risked detection should he produce his copies. In my view this significantly weakens the force of the Crown’s submission.
[58] I also observe that I have no evidence before me that it is even possible to delete individual text messages in a chain or conversation on the model of iPhone the complainant had. When I asked about that during submissions counsel agreed the record is silent in that regard.
[59] Fifth, Mr. Falls points to the evidence of the complainant’s cousin, Natalie Pickett. Ms. Pickett testified that the complainant was hesitant about going to the police. It is submitted that this is inconsistent with the complainant having spiked the drink.
[60] On the other hand, as Mr. Starkman points out, going to the police to make a false complaint would be a big step for the complainant which might well have engendered some hesitation on her part. Alternatively, it could have been self-serving feigned hesitancy. I do note in favour of the Crown’s argument, however, that the complainant was also saying that she did not think the accused would do this. That adds strength to the Crown’s argument on this point.
[61] Although not referred to by Crown counsel in his submissions there is also the evidence that in text messages the accused asked the complainant to request that the police call off the investigation. I have reflected on this evidence. Its value as incriminatory evidence is reduced by the fact that the police had told the accused they would be coming for him if anything was found in the drink. It would have been apparent to the accused that the police thought he was responsible for whatever had caused the sediment in the drink. This could have caused an innocent as well as a guilty man to make such a request of the complainant.
[62] In conclusion I have thought carefully about Crown counsel’s interesting and well-presented argument. Persuasive as it is I find it does not take me all the way to a conclusion that I am satisfied of the guilt of the accused beyond a reasonable doubt. I have a great deal of difficulty reaching such a conclusion in a case where it appears that either the complainant or the accused spiked the drink, where they each had powerful motives, but where I have come to the conclusion that I cannot rely on the evidence of the complainant.
[63] In the emotionally charged circumstances that led to the complaint to the police in this case, the concerns about the complainant’s credibility and reliability that I have expressed are not adequately overcome by the Crown’s five point argument to allow me to say that I am satisfied of the accused’s guilt beyond a reasonable doubt. There are some weaknesses in each of the Crown’s five points that collectively, against the background I have described, leave me unsure as to the accused’s guilt. I think Mr. Starkman’s concluding submission is apt. While the phrase “dangerous to convict” may be over-used, it is appropriate in this case where the Crown agrees that its main witness is not credible.
[64] The accused is found not guilty.
Justice F. Dawson
Released: April 7, 2016
CITATION: R. v. Abraham, 2016 ONSC 2349
COURT FILE NO.: CRIMJ(P) 840/11
DATE: 20160407
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
IVERSON ABRAHAM
REASONS FOR JUDGMENT
Justice F. Dawson
Released: April 7, 2016