COURT FILE NO.: CR - 17-301
DATE: 20191210
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
A.R.
COUNSEL:
C. Agatiello, for the Crown
N. Jackson, for the accused (pursuant to s. 486.3(2))
HEARD: September 23-27, October 2, 3, 4, & 7, 2019
CORRECTED REASONS FOR JUDGMENT
Corrected decision: The text of the original reasons for judgment released October 18, 2019, was corrected on December 10, 2019 and the description of the corrections is appended.
RESTRICTION ON PUBLICATION
By court order made under subsection 486.5 of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
BALTMAN J.
Introduction
[1] The accused faces numerous charges relating to alleged violence against his wife (HS), son (HM), and daughter (AA) on multiple occasions between 2003 and October 28, 2015.
[2] By way of background, the couple married in 1998, in Pakistan. HM (their son) was born in 1999. He is now 19 years old. The family moved to Canada in February 2002. AA (their daughter) was born in 2005. She is now 15 years old. The accused worked outside of the home and HS looked after the house and children.
[3] It is undisputed that the police first became involved on October 28, 2015, when AA telephoned them from the family home to report that her father was "abusing" her, her brother, and her mother. At that point HM was 15 years old and AA was 10 years old.
[4] The accused was self-represented at trial but had counsel appointed pursuant to s. 486.3(2) to cross-examine all three complainants. The accused did not testify but did call evidence from two of the investigating police officers. For the reasons that follow, I find that the Crown has proven the accused guilty beyond a reasonable doubt on some but not all of the counts in the indictment. On any counts where I have found the accused guilty, I am satisfied that any alleged exculpatory evidence that arose during the trial failed to raise a reasonable doubt on his behalf.
Overview of the Allegations
[5] There are 17 counts in the indictment. Many of them relate to historical events. The police were first notified of any allegations on October 28, 2015.
[6] I shall briefly summarize the charges and indicate which of the three complainants were involved in each.
Count 1: Rolling Pin: HS alleges that in 2003 the accused became angry with her and struck her legs, arms and stomach with a rolling pin. There were no witnesses to this alleged attack.
Count 2: Kick in Bed: HS alleges that in the summer of 2004, the accused kicked her while they were lying in bed. There were no witnesses to this alleged attack.
Count 3: Mop Handle: HS claims that in the summer of 2012 or 2013, the accused beat her with a mop handle inside their home, allegedly in the presence of their son, HM. However, HM did not report this incident to the police or testify about it at trial.
Count 4: AA's Award Ceremony: HS testified that after she criticized the accused for being late for their daughter's award ceremony at school, he assaulted her in the master bedroom while AA was present. AA did not report this incident to the police or testify about it at trial.
Counts 5, 6 and 7: Ramadan, July 2015: AA testified that her father slapped her face in the summer of Ramadan after becoming angry about her computer use. HS testified that she heard AA screaming from her bedroom, ran in and saw the accused slap AA while she lay on her bed. HS stated that when she tried to physically stop the accused from hitting AA, he struck her (HS) as well. HM testified that he witnessed the assault on both AA and HS in AA's bedroom.
HS testified that after the assault in the bedroom, she ran to the kitchen; the accused followed her and hit her on her head with one of his slippers. This latter attack (Count 7) was not witnessed by either child.
Counts 8, 9 and 10: Celebration Square, August 2015: The family was attending an outdoor music festival. HS and the children wanted to return home, while the accused wanted to remain there. HS testified that the accused pushed her from behind and that, after they all got into the car to return home, the accused slapped the side of her head repeatedly and then struck each of the children (who were sitting in the back seat) on their legs. Both children saw their father act aggressively toward their mother and confirmed that he struck all three of them when they were in the car.
Count 11: Assault over Selfie Stick: HM testified that on the day after the Celebration Square incident, the accused struck him twice on his head.
Counts 12, 13 & 14: mid-October 2015 threat and assaults: HS testified that, while in their kitchen, the accused pressed his hands to her throat and threatened that if she or AA ever called the police, he would kill them both. No one else heard or observed these alleged acts.
Counts 15, 16 & 17: October 28 call to police: The complainants identify two separate occasions that afternoon where they saw the accused strike HS within their home. HS also testified that he threatened to throw hot oil on her, however this was not witnessed by either HM or AA.
[7] Shortly after 4:00 p.m., AA dialled 911, stating that her father was "abusing" her, her brother and her mother.
The Crown's Witnesses in General
a) HS
[8] HS was the central witness in the Crown's case. Many of the alleged attacks were aimed at her or took place in her presence. However, HS was an exceedingly unreliable witness. She was persistently evasive and frequently answered questions in a long-winded and nonresponsive fashion. When asked for the time, she gave the weather. This continued throughout her testimony, despite several admonitions from the court.
[9] HS was also caught in numerous inconsistencies between her testimony at trial and previous statements, most of which she attributed to difficulties in comprehending English. At this trial, HS requested and received an Urdu interpreter. Significantly, HS gave her initial statements to the police (in October and November of 2015) in English. She also testified at the preliminary hearing in English.
[10] On many occasions when HS was confronted with a prior inconsistent statement, she blamed it on being wrongly deprived of an interpreter, both when the police interviewed her and at the preliminary hearing. Both claims ring false. Her first police interview, on October 28, 2015, resulted in a 42-page transcript; the second police interview (with a different officer), on November 5, 2015, produced a 62-page transcript. While the start and stop times are not accurately recorded on either transcript, it is apparent from the size of the transcripts and the lengthy answers given by her that these were meaningful, detailed interviews. At no point during either interview did HS suggest she needed an interpreter. At no point did either officer identify any problem with her English skills.
[11] As for the preliminary hearing, which occurred in February 2017, any alleged difficulty with English is, again, a diversion. At this trial HS testified that even though she "asked" the Crown attorney at the preliminary hearing (not Ms. Agatiello) for an Urdu interpreter, it was denied; she was "told" she "had to" testify in English. She agreed that at no point during the two-day hearing did she ask for an interpreter, but claimed that was unnecessary because whenever she was struggling with English the presiding judge "explained" the questions to her.
[12] All those assertions are contradicted by the transcript from the preliminary hearing. Significantly, the presiding justice canvassed the language issue with the Crown attorney at the outset:
THE INTERPRETER: The Urdu interpreter, Your Honour, two – there were two interpreters booked for this matter but we just found out that there's no need for an interpreter.
THE COURT: I don't know.
MS. STACKHOUSE: The – I had ordered one for the complainant in an abundance of caution, but after meeting with her yesterday I'm satisfied that she doesn't require an interpreter, certainly not…
THE COURT: Okay. So both sides say we do not need an interpreter?
MS. STACKHOUSE: Correct.
MR. PASHANG: That is correct.
[emphasis added]
[13] HS testified for approximately a day and a half at the preliminary hearing. At no point did the Crown attorney revise her view of the need for an interpreter. And at no point did HS alert the court that she was struggling with English. Significantly, contrary to what HS asserted at this trial, at no point did the presiding judge need to "explain" questions to her because of any language deficiency. The sole example of the court intervening occurred when defence counsel phrased one question in a confusing manner.
[14] To be clear, this court should not and does not make any adverse findings against HS because she requested an interpreter at this trial; the problem is her attempting to explain away prior inconsistent statements on the false pretext that they arose from lack of English comprehension.
[15] Given what I find to be HS's deliberately evasive and misleading testimony, I give very little weight to any of her evidence that is not corroborated. On that point, some – but not all – of the main points of her testimony were in fact confirmed by her children, which I will discuss below.
b) HM and AA
[16] As noted above, HM (the son) was 15 years old when the majority of these events transpired, and is now 19; AA (the daughter) was then 10 years old, and is now 14. Pursuant to s. 486 of the Criminal Code, both of them adopted video statements given shortly after the arrest. Neither of them has spoken to their father since the arrest.
[17] I found both individuals to be reasonably credible and reliable. They were straightforward with the court and their evidence was coherent and compelling. Both H.M. and A.A. acknowledged what they could not remember. Although there were some inconsistencies between them and/or between their testimony at trial and prior statements, those differences did not concern pivotal matters and did not detract from the essential thrust of their testimony. There is no indication whatsoever that they have colluded or attempted to fabricate evidence.
[18] As I outline below, I am satisfied based on their testimony that on several occasions they witnessed their father assault them and their mother.
Evidence and Findings
[19] As I have already noted, given the serious frailties in her evidence, I am not prepared to rely on any allegations by HS that were not corroborated by HM or AA. That effectively eliminates any findings of guilt on Counts 1, 2, 3, 4, 7, 12, 13, 14 and 17. I find the accused not guilty on all those Counts.
[20] I turn then to the remaining Counts, namely 5, 6, 8, 9, 10, 11, 15, & 16, all of which allege events that occurred when HM was 15 years old and AA was 10 years old.
Counts 5 and 6 (the Ramadan incident)
[21] AA testified that in July 2015, during Ramadan and shortly before the family was to finish fasting for the day, the accused began screaming at her for "playing" on her laptop. While she was lying on her bed, he slapped her face with his hand. When her mother came to her aid, the accused struck her face as well, "repeatedly".
[22] In her initial statement to police on November 5, 2015, when AA was asked how many times the accused struck her, she replied "like about one time". At trial she suggested he struck her repeatedly. HS and HM, who came into the bedroom after they heard her screaming, both testified that the accused struck AA's face repeatedly. Both also confirmed that the accused then struck HS repeatedly when she went to AA's aid. HM added that the accused also struck AA on her back and legs (in addition to her face), and that she was lying face down, whereas AA testified she was lying face-up and did not mention being struck on her back and legs.
[23] I am satisfied beyond a reasonable doubt that the incident unfolded largely the way all three complainants described it. Any discrepancies in their account are minor and attributable to the fact that this was an unexpected, traumatic and relatively fleeting event. I find that, at a minimum, the accused struck AA more than once on her face, and that he struck HS more than once when she went to AA's aid. I therefore find the accused guilty on Counts 5 and 6.
Counts 8, 9, and 10 (Celebration Square)
[24] This occurred on August 1, 2015. There was a festival in progress and many families around. HS, HM and AA all testified that the accused was angry with his family for wanting to leave the festival and became physically aggressive toward HS in the public square and then toward all three of them in the family car. Count 8 concerns alleged violence toward HS, both in the square and in the car. Counts 9 and 10 concern alleged violence toward HM and AA, respectively, in the car.
[25] Dealing first with the incident in the public square, the accused allegedly pushed HS from behind while the family was outdoors at Celebration Square. The Crown's witnesses gave conflicting versions of what happened to HS in the square. She may have been pushed in her back or hit on her head. HS, HM and AA were vague on the timing and precise location of the event, and I question the likelihood that the accused would have assaulted HS in daylight in a crowd filled with families. For those reasons, while I think it likely that the accused was angry and aggressive toward HS in the square, I am not satisfied beyond a reasonable doubt that he assaulted her at that point.
[26] However, I take a different view of what transpired in the family car when they set off for home. HS, HM and AA all confirmed that, once the family was contained within the privacy of their vehicle, the accused erupted, shouting and striking all three of them for being disobedient. HS was sitting in the front seat, and the children were in the rear (HM behind the accused, AA behind HS). Both children saw the accused strike HS repeatedly on the side of her head, and also saw him reach behind and strike each of them repeatedly.
[27] I find HM and AA's evidence persuasive. Their position in the vehicle allowed them to observe their father striking their mother and each other. Their assertions were barely shaken in cross-examination. Any minor discrepancies between their evidence at trial and statements previously given were inconsequential; e.g. AA testified he struck her on her left leg and HM on his right leg, whereas HM initially told police that the accused hit them both on their arms and legs but at trial he testified all he recalled were blows to their legs. The bottom line is that both HM and AA were clear that their father was enraged in the car and repeatedly struck their mother and each of them.
[28] For those reasons I find the accused guilty on Counts 8, 9 and 10.
Count 11: Assault over Selfie Stick
[29] HM testified that on the day following the Celebration Square incident, the accused confronted him in his (HM's) bedroom, demanding to know the location of a selfie stick they had recently bought. The accused punched him twice in the head. The second strike caused HM's head to bang into the wall.
[30] The difficulty with this allegation is that, although HM testified that AA was in his bedroom at the time, there is no evidence from her on this point one way or the other. If, as HM says, she was present, it seems unlikely that she would have forgotten this incident. While I do not believe HM deliberately invented this incident, AA's silence on this issue leaves me with a reasonable doubt on its accuracy. I therefore find the accused not guilty on Count 11.
Counts 15, 16 and 17: (the October 28 assaults, threat and call to police)
[31] This was the culminating series of events that resulted in police attending the home and arresting the accused. The exact sequence of events that day is unclear. However, shortly after 4:00 p.m., AA dialled 911, stating that her father was "abusing" her, her brother and her mother. AA spoke to the 911 operator in a hushed voice while huddled under a blanket in her room, in order to avoid alerting her father. The call triggered a police attendance to the home, followed shortly afterward by statements being taken from HS, HM and AA.
[32] As for the events that preceded that call, HS testified that the accused slapped her twice that morning (Count 15). No one witnessed this alleged assault and, in light of my reservations about uncorroborated evidence from HS, I find the accused not guilty on Count 15.
[33] HS further testified that later that day, she and the accused went to pick up their daughter AA from school. HS testified that on arriving home, the accused pushed her from behind as she was walking up the stairs. AA confirmed this, stating that she saw the accused push her mother as they walked up the stairs toward the kitchen.
[34] HS also testified that shortly after being pushed up the stairs, the accused struck her on the head with one of AA's running shoes while they were in the kitchen; HM confirmed that he saw his father strike his mother several times in the kitchen.
[35] I accept both AA's and HM's observations regarding the assaults by the accused on their mother. Although there were some discrepancies between the account they gave at trial and previous statements to the police and/or at the preliminary inquiry (e.g. HM did not refer to a running shoe), I find those relate to insignificant details that do not detract from the central thrust of their testimony, namely that they clearly recall seeing their father strike their mother that day, inside the home. I therefore find the accused guilty on Count 16.
[36] Finally, HS testified that the accused threatened to throw a pan of hot oil at her (Count 17). Neither HM nor AA heard or saw this, and I therefore decline to find the accused guilty on Count 17.
Conclusion
[37] For the reasons set out above, I find the accused:
a) not guilty of Counts 1, 2, 3, 4, 7, 11, 12, 13, 14, 15, and 17;
b) guilty of Counts 5, 6, 8, 9, 10, and 16.
Baltman J.
Released: December 10, 2019
Appendix
December 10, 2019:
Paragraphs 24, 25 & 26 were deleted and replaced with the following:
[24] This occurred on August 1, 2015. There was a festival in progress and many families around. HS, HM and AA all testified that the accused was angry with his family for wanting to leave the festival and became physically aggressive toward HS in the public square and then toward all three of them in the family car. Count 8 concerns alleged violence toward HS, both in the square and in the car. Counts 9 and 10 concern alleged violence toward HM and AA, respectively, in the car.
[25] Dealing first with the incident in the public square, the accused allegedly pushed HS from behind while the family was outdoors at Celebration Square. The Crown's witnesses gave conflicting versions of what happened to HS in the square. She may have been pushed in her back or hit on her head. HS, HM and AA were vague on the timing and precise location of the event, and I question the likelihood that the accused would have assaulted HS in daylight in a crowd filled with families. For those reasons, while I think it likely that the accused was angry and aggressive toward HS in the square, I am not satisfied beyond a reasonable doubt that he assaulted her at that point.
[26] However, I take a different view of what transpired in the family car when they set off for home. HS, HM and AA all confirmed that, once the family was contained within the privacy of their vehicle, the accused erupted, shouting and striking all three of them for being disobedient. HS was sitting in the front seat, and the children were in the rear (HM behind the accused, AA behind HS). Both children saw the accused strike HS repeatedly on the side of her head, and also saw him reach behind and strike each of them repeatedly.
i) Paragraph 28 was corrected to read "guilty on Counts 8, 9 and 10"
ii) Paragraph 37(a) was corrected to read "not guilty of Counts 1, 2, 3, 4, 7, 11, 12, 13, 14, 15, and 17"
iii) Paragraph 37(b) was corrected to read "guilty of Counts 5, 6, 8, 9, 10, and 16"
COURT FILE NO.: CR -17-301
DATE: 20191210
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
A.R.
CORRECTED REASONS FOR JUDGMENT
Baltman J.
Released: December 10, 2019