Court File and Parties

Court File No.: CV-16-500000S9-00AP Date: 2017-06-05 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Ali Ahmad

Counsel: Melissa Mandel, for the Crown Boris Bytensky, for the Appellant

Heard: May 17, 2017

Summary Conviction Appeal

Before: A.J. O’Marra J.

Endorsement

[1] The appellant appeals against a finding of guilt after trial September 30, 2015 that he committed an assault against his wife, on October 9, 2014.

[2] The trial was heard over one day during which three witnesses were called, the complainant, her brother Qazi Rehman and the appellant. After submissions the trial judge returned to give an oral judgment.

[3] The appellant cites a number of grounds for appeal. The trial judge:

1. Erred in failing to give meaningful reasons to explain finding the appellant guilty beyond a reasonable doubt,
2. Materially misapprehended the evidence and erroneously relied, in part, on the misapprehended evidence to support his conclusions of guilt,
3. Inappropriately took judicial notice of the significance or interpretation of the complainant’s injuries and in turn relied on them to support his conclusion.
4. Misapplied the burden of proof.

[4] In this instance, on a review of the evidence, submissions and the reasons for judgment, I am satisfied that the finding of guilt should be quashed and a new trial ordered on the basis that the trial judge erroneously relied on misapprehended evidence in support of his judgment for the reasons set out below.

Summary of the Trial Evidence

[5] The appellant, Ali Ahmad, a 28 year old medical student and his wife, Chandni Rehman, the complainant were married June 5, 2014 in an arranged marriage. Following the wedding the complainant moved in with the appellant and his family, however, it was common evidence that the marital relationship was strained from the outset. The complainant experienced difficulties with the appellant’s parents and in turn the appellant was troubled by the amount of time and attention the complainant was giving to her own family by constantly text messaging and speaking with them on her cell phone.

[6] The complainant and the appellant separated after approximately one month. The complainant moved back to her parents’ home. They remained separated for approximately three months, but reconciled after she agreed to abide by certain conditions required by her husband, which included not bringing her cellular telephone with her and to only contact her parents by use of a landline in the appellant’s home.

[7] The appellant testified that the condition of her not to have a cellular telephone was necessary in his view for them to be able to better communicate. The requirement for her to use the landline telephone in the home was not to prevent her from contacting her family, but rather to avoid the constant distraction of her text messaging them.

October 9, 2014

[8] Over the course of the day of the incident there were three distinct events testified as occurring to by the witnesses:

1. The morning of October 9, 2014 in the home of the appellant and his family when and where the alleged assault was said to have occurred,
2. After 5:30 p.m. in the bedroom of the home during which the complainant was “Skyping” over her laptop computer with her family and a “struggle” over it was said to have occurred, and
3. That evening at the hospital when police were notified as to the alleged assault and the complainant gave an initial statement.

The Alleged Assault and Events in the morning, October 9, 2014

[9] Three weeks after the complainant and appellant reconciled with her moving back into his family home on the morning of October 9, 2014, the incident of the alleged assault occurred. The complainant was in their bedroom speaking on the telephone with her mother while the appellant was studying. The appellant became angry with the complainant for speaking on the telephone for an extended period of time, and for not assisting his mother and sister downstairs in the home preparing a meal for the family.

[10] The complainant testified that the appellant began to yell abusive language at her, and then he grabbed her by the hair from the back and hit her head on the edge of the study table, which caused a cut and a large lump on the left side of her forehead near the hairline.

[11] The appellant denied that any assault occurred, but agreed he was angry with his wife and told her that his mother and sister were not her servants.

[12] The complainant said that after washing her face to stop the bleeding she styled her hair in order to cover the injury, and then went downstairs to the kitchen.

[13] The appellant testified that he had gone downstairs and then the complainant followed afterwards. When she arrived she was carrying the cordless telephone and its base she had taken from their bedroom to show she would no longer be talking on the phone to her parents. She had unplugged the phone from below the study table in the bedroom.

[14] Both the complainant and appellant agreed in evidence that any injury was not seen or the subject of any discussion. The complainant testified she hid the injury. She had styled her hair in order to “cover my wound because I didn’t want to show the sign, like, I don’t want to tell the family what’s going on”. She said she was trying to be normal because she did not want to bring the issue in front of the family.

[15] She testified that on arrival in the kitchen that an argument with the appellant, his mother and sister, carried on with her for hours, in her estimation from 12:30 p.m. to 5:30 p.m. During that time, her brother, and her mother called to speak with her. Both calls were answered the appellant who told them she was busy. His evidence was that he told them she would call them later.

Computer Incident later that Afternoon

[16] The complainant testified that to end the argument that she agreed to all of the conditions set out by the appellant and his family discussed that afternoon. She went upstairs to the bedroom and used her laptop computer to “Skype” with her family because she thought they may be concerned not having been able to speak with her earlier.

[17] It was her evidence that the appellant on seeing her on the computer said to her loudly, “you better not say anything to your family what happened today”. Then he came over to where she was typing a message on her laptop and snatched it away to read what she had been typing. He read her message asking her family members where they were, then gave it back to her.

[18] Qazi, the complainant’s brother, who was speaking with his sister at the time the appellant took the lap top from the complainant, described him appearing and grabbing the computer and threw it away. He demonstrated the action described on the record by the Crown as “you’re using both of your hands and tossing to the side”. He said then the conversation with his sister went blank.

[19] The appellant testified that as he sat at the study table studying, the complainant was laying on their bed having a conversation with her family over Skype on her laptop. Near the beginning of the conversation he heard his wife tell her mother that she had bumped her head earlier that day. She had injured it as she had bent down under the desk to unplug the telephone. Later, he saw that she was typing on her computer. He went over to see what she was typing because he “didn’t want her family involved in their problems: …so I rotated the lap top toward me so I could see what she was typing…when I did, she was trying to hide it and then she turned it another way and then she just turned it off and then she put it aside”.

[20] Shortly afterward, the complainant went into the washroom. Later, her sister-in-law gave her a cup of tea. She began to experience severe stomach pains. Concerned that she may have appendicitis the appellant took her to the hospital at approximately 8:30 p.m.

Events at the Hospital

[21] After arrival at the hospital they were met by the complainant’s mother and brother. There, the complainant told her mother she had been assaulted by the appellant. In turn her mother told her brother Qazi and then he called the police to report the assault.

[22] That evening at the hospital the complainant provided a lengthy signed statement in which she described an assault that occurred that morning. In the interview the investigating officer asked her whether the appellant had ever assaulted her before. Her response was “No he hasn’t. Today was the first time”. The appellant was arrested that night and charged with assault.

[23] On April 11, 2015, several months later, the complainant provided a videotaped statement to the police in which she alleged that the appellant had repeatedly threatened to throw acid in her face, threatened to kill her and on many earlier occasions assaulted her with shoes, books and by throwing other objects at her.

Trial Judgment

[24] At the end of the evidence and submissions, the trial judge delivered an oral judgment in which he set out the burden of proof, his general approach to the assessment of credibility the central issue on the trial, and evidence as it related to the nature of their marital relationship and the involvement of their respective family. Thereafter, he set out the reasons in support of the finding of guilt in the following passage:

What is consistent here is her description of the struggle over the computer, and the anger by the accused. It’s supported to some degree, but a very limited degree and not by itself sufficient to support her evidence of the size and nature of the bruise and the location. It is also supported to some extent, the struggle and the degree of force and upset of her brother testifying as to the struggle over the computer and the explanation given by the complainant.

There are inconsistencies in the complainant’s evidence with respect to her statements to the police at a later date versus her earlier statements about the degree of physical assaults that may have taken place at an earlier stage, but those are explained away in the totality of evidence by her concern not to describe to her parents in full detail as to the difficulty of the relationship, and I accept that.

At the end of the day the accused, in his evidence, I find is unreliable. Not unreliable because he is intentionally trying to lie, but unreliable in its totality because he has expressed a viewpoint, a subjective viewpoint that does not fit with the objective standards of all the evidence when it is examined altogether.

I find her evidence, as I have indicated, lacking – I should not say, animosity is not an issue, it does not bolster her evidence, but I find her evidence more consistent with the overall picture that unfolds in this case, and it is supported to some extent by the injury, as I have indicated, and the brother’s description of the struggle over the computer. As a result of that, I am satisfied beyond a reasonable doubt that the Crown has made its case and I find the accused guilty of the charge of common assault.

[25] In the judgment the trial judge did not set out, consider, discuss or reject any of the following as noted by the appellant in argument:

(a) The complainant’s evidence about the assault itself; (b) The appellant’s evidence that he did not assault the complainant in any way; or (c) The appellant’s testimony that he heard the complainant admit during the Skype call to her mother that she had injured herself accidentally by bumping her head as she tried to unplug the telephone from under the study desk.

[26] In Regina v. Morrissey, 1995 ONCA 3498, [1995] O.J. No. 639, Doherty J.A. noted at para 83 that a misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, mistake as to the substance of the evidence or a failure to give proper effect to the evidence. Further, the court should first consider the reasonableness of the verdict, which an appellant will be in a much better position to demonstrate if the appellant can demonstrate that the trial judge misapprehended significant evidence: Regina v. Burns, 1994 SCC 127, [1994] 1 SCR 656 at p. 665.

[27] In this instance, the trial judge misapprehended the evidence as to the events of the day and used evidence unrelated to the alleged assault to support his conclusion that an assault occurred.

[28] Trial judge materially misapprehended evidence in two ways. First, with respect to evidence of the brother and complainant relating to the struggle over the computer later in the afternoon as evidence in support of the complainant’s evidence as to the size and nature of the bruise and the location, resulting from an assault alleged to have occurred that morning. Second, in the assessment of the complainant’s evidence, the trial judge accepted an explanation not in evidence for the many inconsistencies for her initial statement she was only ever assaulted once by her husband.

[29] As to the first misapprehension, the trial judge appears to have conflated the two separate incidences by utilizing the description of events in the afternoon to support the complainant’s evidence about being assaulted in the morning and the resultant injuries.

…I find her evidence more consistent with the overall picture that unfolds in this case, and it’s supported to some extent by the injury, as I have indicated, and the brother’s description of the struggle over the computer.

[30] In concluding on that observation the trial judge found the accused guilty of assault.

[31] Even if the trial judge realized the computer struggle and the alleged assault were not part of the same event finding the evidence of the brother supported the complainant as to assault is a significant error. The evidence of the brother as to the “struggle” over the laptop, which did not coincide with that of his sister, could not support her evidence about an alleged assault earlier in the day and her injuries.

[32] The second misapprehension of evidence was by failing to give proper effect to evidence on the issue of credibility as to the complainant’s multiple explanations for her many inconsistencies for failing to mention other alleged assaults or threats after she initially denied to the police that there had been any other assaults before that day.

[33] In Regina v. Morrissey, 1995 ONCA 3498 at para 95 Doherty J.A. makes reference to the observation of Laycraft J.A. in Whitehouse v. Reimer (1980), 1980 ABCA 214, 116 D.L.R. (3d) 594 at p. 595:

Where a principle issue on a trial is credibility of witnesses to the extent that the evidence of one party is accepted to the virtual exclusion of the evidence of the other, it is essential that the findings be based on a correct version of the actual evidence. Wrong findings on what the evidence is destroy the basis of findings of credibility.

[34] Here, the central issue was one of credibility. There were numerous inconsistencies as to why she said there were no prior assaults In cross-examination the complainant sought to explain the inconsistencies by explaining at the time she was depressed and not mentally set. Further, she stated:

“After when I wrote the whole statement to my family law or my family law lawyer then I remembered it, it would happen on each day, so then it reminded me that was not the first time.”

[35] She provided further explanations as to her initial denial of any other assaults by stating that she had nothing in her stomach and she was mentally “really upset” with it when she spoke to the police at the hospital. She said she was not “in the senses that time” and “like I was willing to do anything to keep this relationship”.

[36] In considering the inconsistencies the trial judge indicated that they were “explained away in the totality of evidence by her concern not to describe to her parents in full detail as to the difficulty of their relationship”, which he accepted. However, the complainant never offered the accepted explanation cited by the trial judge in his judgment.

[37] In this instance, by conflating the timing of the allegation with a later incident, as well by an acceptance of an explanation for inconsistencies not in evidence in an assessment of the complainant’s credibility demonstrate significant errors in the judge’s understanding of the substance of the evidence.

[38] I am satisfied that the appellant has demonstrated that the verdict was unreasonable as a result.

[39] In the result, the finding of guilt is quashed and a new trial ordered. Given the result it is unnecessary to address the other issues raised on appeal.

[40] This matter should be returned to Courtroom 201 at the Metro West Courthouse, 9:00 a.m., 2201 Finch Avenue West, Monday, June 19, 2017. It is within the discretion of the Crown as to whether this matter proceeds.

Released: June 5, 2017 A.J. O’Marra J.