Court File and Parties
COURT FILE NO.: CR-15-1473 DATE: May 30, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Caitlin Downing for Her Majesty the Queen
- and -
MOHAMMAD TAVALIPOUR William Watson, for the Accused Accused
HEARD: April 18, 19, 20, 21 and 24, 2017
REASONS FOR DECISION
James, J.
The Facts
[1] This case involves 11 counts arising from several incidents involving the accused and one complainant, the now estranged wife of the accused.
[2] The accused in this case is 38 years old. He is a soldier serving in the Canadian Forces. He was previously married and has a teenage daughter, Madelaine, from that relationship. The accused said that the complainant was unhappy with the fact he maintained a relationship with his daughter which in turn brought him into contact with Madelaine’s mother, the former wife of the accused.
[3] The complainant is 37 years old. I will refer to her as C.M. She has a Master’s degree in Social Work. She is currently receiving ODSP. They first met in 2011. They began dating in October 2013, moved in together in November 2013 and got married about a year later.
[4] They have a son together, Benjamin, who was born on May 26, 2015. They have lived separate and apart since November 2015 following an incident in their home at Garrison Petawawa.
[5] For the reasons that follow I have determined that the accused is guilty on count 9 of the indictment, an assault that occurred in Toronto on or about July 9, 2014 and guilty on counts 2 and 4, when he made a threat on the life of the complainant and cut a pillow belonging to her on November 30, 2015. I find that the accused is not guilty on all remaining counts.
[6] I will deal with the incident on November 30, 2015 first as this is the incident which precipitated the involvement of the police. The other allegations against the accused arise out of the police investigation that followed the initial complaint in 2015.
[7] The allegations in relation to the November 2015 incident form the basis of counts 1, 2, 3 and 4.
[8] The evidence of the complainant is that this incident occurred on the day following her 35th birthday. They had argued the night before. The accused slept on the couch. In the morning on November 30th the attitude of the accused was cold and dismissive. She said they ignored each other and then they left the residence separately to do errands. The complainant returned around noon and the accused arrived about 45 minutes later with three tetra packs of wine. She said the accused ignored her and went straight to their bedroom where he changed into his pajamas and went on his laptop computer.
[9] That evening the complainant put Benjamin in his crib at about 8:45 p.m. It took about an hour to get him to sleep and once he was asleep the complainant went outside the residence to smoke a cigarette. When she returned the accused was in Benjamin’s bedroom and he was holding his phone near Benjamin’s face. His daughter Madelaine was on the phone and they were having a conversation by means of FaceTime, a type of video phone communication. He was holding the phone so Madelaine could see Benjamin in his crib. Benjamin was awake. The complainant said she was very disappointed, perhaps angry, that Benjamin had been wakened. The accused seemed intoxicated. He was slurring his words. She got a bottle of formula and held Benjamin in her arms in his room as he went back to sleep. The complainant placed a comforter on the floor, having decided to sleep in Benjamin’s room.
[10] Just as the complainant was about to go to sleep the accused entered the room. He was very angry. She didn’t respond. He returned to their bedroom and got dressed and packed some clothes in a backpack. The complainant asked the accused what he was doing as he had consumed a large quantity of alcohol and she was concerned that he was going to drive. The accused angrily called the complainant and Benjamin names. He went to the kitchen and returned with a knife. He held the knife in a stabbing position with the blade pointed down from his fist. He walked past her in the hall and into their bedroom. He started stabbing a pillow and the bed. He called her several bad names including “you fat cow; you and that fat fuck; you motherfucker; I’m going to kill you motherfuckers, you fat bitch,” as he slashed the pillow with the knife. The complainant said she was going to call the police. She said she was scared because the accused was holding a knife and was angry and threatening. She dialed 9-1-1 with the call on the speaker of the phone. He said, “Go ahead, call the police.” It was about 11 p.m. The police arrived quickly. The complainant thinks the accused had consumed most of the wine he had purchased earlier that day. There were 2 empty tetra packs in the garbage and a nearly empty wine container in their bedroom. She said she was sober. She acknowledged the accused never “got physical” with her.
[11] Corporal Genevieve Barrett and two other military police, Cpls. Morrison and Piercy were dispatched to the residence in response to the 9-1-1 call. When Cpl. Barrett arrived she was met at the door by C.M.
[12] The accused was sitting on the couch drinking a soft drink. She made no observations regarding the state of his sobriety. He questioned why the police were there. C.M. seemed angry, upset, sad, scared and sober. She told the police about the threats and showed them the pillow. The corporal viewed an empty wine container and can of beer.
[13] The accused was arrested by Cpl. Piercy for threatening and mischief regarding the slashing of the pillow. The complainant provided a verbal account of what had happened but was not prepared at that time to give a written statement.
[14] C.M. showed Cpl. Barrett two photos that were recorded on her cell phone of a scratch on her face and some bruises. The photo of the scratch was never provided to Cpl. Barrett after she saw it that night on C.M.’s phone. The other photos of C.M.’s face were sent to the police following C.M.’s video statement in January, 2016.
[15] Cpl. Morrison testified he remembered the call. He saw a cut-up pillow on the floor in the baby’s room.
[16] According to the accused’s version of events, he returned to Petawawa on November 28 after 2 weeks away. C.M.’s birthday was the next day. He bought groceries for dinner, 2 litres of wine and some beer. He cooked dinner the next day. After dinner his daughter Madelaine Facetimed him with her new phone. It was their first contact in several months. He said C.M. was upset that he was spending time with his daughter.
[17] The following day, on November 30, they argued in the morning and the accused went out to do some errands. When he returned at about 12:30 no one was at home. He played on his computer in the bedroom. When C.M. returned, she gave him a sandwich she had purchased that had a peace sign written on it. He was feeling sad about C.M.’s attitude towards his daughter.
[18] He said that in the evening his daughter called again to Facetime with the accused. He went into the baby’s room to show the baby to his daughter. Benjamin was awake. C.M. came into the room. She was angry. She didn’t want him spending time with Madelaine. He hung up the phone. C.M. was saying bad things about his daughter. He went into their bedroom and closed the door. C.M. followed him into the bedroom and continued to say bad things about his daughter. He went into the kitchen and got a paring knife which he used to stab the pillow in their bedroom. He then returned the knife to the kitchen drawer. He then threw the pillow in the baby’s room and said, “Here, have your pillow.” At this point C.M. started screaming and threatened to call the police. She wanted him to stop having contact with his daughter. He said “go ahead, call them” and she did. The call was made with the phone’s speaker on. When asked in cross-examination to describe what C.M. had said about his daughter, the accused said that she called her a prostitute, a drug addict and accused him of sleeping with his daughter. He said he stabbed a pillow but not the pillow that was seized that night and made an exhibit at trial. He said C.M. was not in the bedroom when he stabbed the pillow. She was in Benjamin’s room and the door was closed. He denied making any threats. He says that C.M. threatened him, saying that if he didn’t promise to stop having contact with his daughter she was going to call the police. That is when he said to go ahead and call the police.
[19] About six weeks after the police were initially contacted C.M. provided a video statement to the police in mid-January, 2016. At that time she said there was another incident that had occurred but she wasn’t prepared to disclose the details. Two weeks later C.M. re-attended with the police and provided details of an incident that I will refer to later.
[20] C.M. testified that the first time she was assaulted by the accused was in May 2014. They were staying at the trailer the accused kept at a commercial campground in Bancroft. They arrived in the early afternoon. The accused was not in a good mood. She said he was sulking for some reason. He drank heavily. She said she had a couple of beer. They were sitting in a small living room attached to the trailer. When C.M. went to enter the trailer the accused blocked her way. She doesn’t recall saying anything. She told him to move out of her way and he responded by grabbing her hair and throwing her on the ground. He dragged her by the hair into the trailer. He slammed her head repeatedly on the ground and choked her using both hands. She was unable to breathe for a few seconds. He kicked her several times while she was on the ground. He threw her IPhone against the wall several times until it was destroyed. The assault, as C.M. described it, was prolonged, extremely violent and unprovoked. The attack ended when the accused left the trailer.
[21] Evidence of the sequence of events following the attack is sparse and unclear. C.M. went into the bedroom of the trailer and cried. She did not leave. They went shopping the next day. C.M. said she covered the scratches on her face with make-up. She did not call the police. She said she did not want to get him in trouble. She didn’t want to affect his military career. She did not seek medical attention.
[22] When questioned at trial about these allegations, the accused denied everything. He didn’t assault her. There was no incident. They stayed at the trailer for a few days then returned for the May 24th long weekend. He referred to a selfie taken at the trailer park on May 25th (Exhibit 6) which showed the two of them in a happy pose. He said that he did not break C.M.’s cell phone. In fact the opposite occurred and C.M. broke his phone. He said he bought a replacement phone on May 20th. He produced a phone contract with Koodo dated May 20th, 2014 for a new phone plan that included a new phone as part of the transaction. (Exhibit 19).
[23] In her second video statement C.M. said there was an incident on July 9, 2014 when she was assaulted again. The assault took place in the apartment they were sharing in Toronto. The accused had been drinking vodka over the course of the evening and had become very intoxicated. She may have said something to him that made him angry. He lunged at her and she pushed him off and went into the bedroom. He followed her there, grabbed C.M. from behind and threw her to the floor. He straddled her while she was on the floor and choked her. He also struck the back and left side of her head against the floor. He had a fistful of her hair in his hand. She had scratches on her face and neck. The assault ended when C.M. managed to get away from him. He left the apartment. She said her injuries included a cut lip, bruising on her nose, her left ear and around her left eye. The next morning she took pictures of her injuries and they were marked as Exhibits 2a and 2b. They show bruising on the left side of her face and head and what appears to be a cut on her lip.
[24] C.M. did not call the police or seek medical attention. She didn’t want him to be arrested. She didn’t want to damage his career. She said she was still in love with him.
[25] When he was asked about the allegations respecting the incident on July 9th, the accused said that C.M. was away visiting her family when the assault was supposed to have occurred. He said she left for the visit on July 8th and when she returned they went to his trailer in Bancroft. The accused said the assault described by C.M. never happened.
[26] C.M. also testified about an assault alleged to have occurred shortly after they were married in October, 2014. She was in bed. She was pregnant with Benjamin. The accused was angry about something; she didn’t know why. He was standing over her as she laid on the bed. She said he lunged at her and gouged a piece of skin from her nose. She pushed him off and he slept on the couch. She doesn’t remember exactly how the fight started.
[27] The accused denied that this incident occurred. He said after they got married on October 3rd, they went to Quebec City for 3 or 4 days then to the trailer in Bancroft for 3 or 4 days then back to Toronto.
[28] The determination of whether Crown counsel has proved the guilt of the accused beyond a reasonable doubt requires that I make factual findings based on conflicting evidence. I have to determine what allegations I will accept and what allegations I am not prepared to accept.
[29] Fact-finding in the face of contradictory evidence involves assessing the credibility of witnesses. Generally speaking, the assessment of credibility includes observing witnesses as they give their evidence, considering conflicting evidence in relation to known facts, determining the presence or absence of inconsistencies, assessing probabilities and determining the presence or absence of corroborating evidence. This is not a complete list of factors to be taken into account. While engaging in the process of finding facts I may accept some, none, or all of a witness’s testimony.
[30] Determining guilt or innocence involves more than a credibility contest. Guilt cannot be determined by choosing among competing versions of what happened. The accused has two very important advantages in this situation. He has the benefit of the presumption of innocence and the prosecution must prove his guilt beyond a reasonable doubt. Reasonable doubt is a higher standard of proof than probable or likely guilt. If I was to conclude that the accused was likely guilty, he would be entitled to be found not guilty because Crown counsel would have failed to prove his guilt beyond a reasonable doubt.
[31] When the accused presents evidence that contradicts the evidence tendered by Crown counsel, the Court must apply an analytical framework commonly referred to as the W.D. analysis. There are three elements to consider. The first element is obvious. If I believe the accused, he is entitled to be found not guilty. Secondly, even if I don’t believe him, disbelief alone is not sufficient to justify a finding of guilt. That’s because even if I don’t believe his testimony, I may still have a reasonable doubt as to his guilt, in which case he is also entitled to be found not guilty. Thirdly, even if I disbelieve the accused and his testimony does not create a reasonable doubt, I must consider the quality of the evidence against him. The court must be satisfied by acceptable evidence that the guilt of the accused has been proved beyond a reasonable doubt before the presumption of innocence is displaced and a finding of guilty can be made.
[32] Dealing firstly with the evidence of the accused, I found that he testified politely and directly. He did not hesitate when answering questions. I did not find his answers to be defensive or evasive. Generally speaking, there were no obvious flaws in his testimony. However, I found his testimony about what C.M. is alleged to have said about his daughter, calling her a prostitute and a drug addict, to be quite improbable. C.M. testified that she did not have any problem with the accused having contact with his daughter. She did not display any animus towards Madelaine when testifying. I find that the evidence of C.M., that she was upset that the accused had awakened the baby just after she had spent the best part of an hour putting the baby to sleep, is a much more probable explanation for the conflict that evening.
[33] As for C.M., she too answered questions directly. I found that she was careful with her words and that her language was precise, in keeping with the fact that she is articulate and well-educated. There were opportunities for her to exaggerate but she did not do so. For example, in describing the events of November 30, 2015, the night she called the police, C.M. confirmed that the accused had not touched her physically and she had not been assaulted that evening.
[34] In addition, on November 30 she told Cpl. Barrett that there were other incidents but she was not prepared to fully disclose details. When she was ready, several weeks later, she disclosed additional information. This suggested to me that C.M. knew the importance of being truthful while at the same time realizing that once details were provided to the police, how matters proceeded, at least to some extent, would be out of her hands and beyond her control.
[35] Her recollection of events seemed good and she was polite yet firm during cross-examination. I did not detect any significant inconsistencies or improbabilities in her testimony. I found her to be a truthful witness who gave reliable evidence.
[36] Turning to the specific counts set out in the indictment, I will deal with them approximately in the order in which they are listed. Counts 1 to 4 relate to the allegations arising from the events of November 30, 2015. I find that the accused had been drinking and was intoxicated that evening. It is likely that C.M. was angry with the accused because according to her, the accused had just awakened Benjamin. I think she probably said something to the accused that set him off and made him very angry as well. I reject the contention of the accused that he was sad, not angry. By his own account he used a kitchen knife to damage property belonging to C.M. I accept C.M.’s evidence that the accused made threats against her during his angry outburst that frightened C.M. I accept that he swore at her and as part of a string of epithets and insults, he said, “I’m going to kill you motherfuckers,” as he stabbed at the pillow or the bedding in the master bedroom while C.M. was standing nearby. I reject the evidence of the accused that when he cut the pillow he was alone in the bedroom and the door was closed. It doesn’t matter that the accused may not have intended to actually harm C.M., so long as he made the threat knowingly. On count 2, that the accused uttered a threat to cause the death of the complainant, there will be a finding of guilty.
[37] On count 1, possession of a weapon dangerous to the public peace, I note that C.M. did not get a good look at, and was unable to describe, the knife which the accused referred as a paring knife. She was never threatened with the knife. The accused did not point it at her. He returned the knife to its place in the kitchen after he cut or stabbed the pillow. I am unsure whether the accused thought of the knife as a weapon in the circumstances of this case. There will be a finding of not guilty on count 1.
[38] I find that the accused is not guilty on count 3, uttering a threat against his son Benjamin. There is no evidence of any animus on the part of the accused against his infant son. There is nothing in the circumstances that suggests the accused intended to threaten his son, regardless of how the situation was construed or perceived by C.M.
[39] There will be a finding of guilty on count 4 of mischief in connection with the destruction of a pillow belonging to C.M. By the accused’s own admission to Paul Henry, he wanted to get back at C.M. for something she had done to his property, that he knew the pillow had sentimental value to C.M. and that he cut it with a knife. I am prepared to find that the pillow marked as an exhibit was the one that the accused cut with the knife. Recall that one of the police officers said he recovered the damaged pillow from the floor in Benjamin’s room and it was taken as evidence. The accused suggested that the pillow marked as an exhibit is a different pillow that the one he damaged but to my mind, even if true, nothing turns on this point because of his admissions.
[40] Counts 5 to 8 relate to the allegations of an assault that took place on May 13, 2014 in Bancroft. On count 7, unlawful confinement, there is inadequate evidence to support this charge and I find the accused not guilty of it.
[41] While corroboration is not necessary, I find that I have a reasonable doubt in the absence of any corroborating evidence in the circumstances of this case regarding the events of May 13. There is no physical evidence of the assault. Despite apparently having been severely beaten, C.M. remained at the trailer with the accused, went shopping with him the next day, told no one about the attack, did not seek medical attention and returned there again with the accused a couple weeks later for the long weekend in May. In the face of the denials by the accused, even though I am skeptical of his evidence, I find the accused not guilty on counts 5, 6 and 8.
[42] On count 9, the assault alleged to have occurred in Toronto on July 9, 2014, I find the accused guilty. I accept the evidence of C.M. that she was attacked by the accused in their apartment when he was heavily intoxicated. In addition, C.M.’s evidence is corroborated by the photos she took of the injuries to her face.
[43] On count 10, mischief in relation to damage to an antenna on a radio belonging to C.M., I find the accused not guilty of this minor, if not trivial, charge. The circumstances surrounding this allegation were not well developed in the evidence. The timeframe was unclear as well as the basis for the argument that led to the damage. The accused denied intentionally breaking the antenna and outlined an alternate scenario that the radio was damaged during a move from one apartment to another.
[44] On count 11, an assault alleged to have occurred in October, 2014 when the skin on C.M.’s nose was damaged, C.M. could not recall what precipitated the argument that led to the assault. The accused denied that an assault took place as described by C.M. and noted that this was around the time they were on their honeymoon. Again, while corroboration is not necessary, in the absence of corroboration in the particular circumstances of this allegation, I find that the accused is not guilty.
Mr. Justice Martin James