COURT FILE NO.: CRIMJ (P) 1982/19
DATE: 2020 12 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Vickramjeet Aujla, for the Crown
- and -
MOHAMMAD AL HASSAN
Gabriel Gross-Stein, for the Defence
HEARD: November 9, 10, 11, 12, 2020, in Brampton
REASONS FOR JUDGMENT
André J.
[1] The Peel Regional Police Force (“PRPF”) charged Mr. Mohammed Al Hassan in December 2018 with four counts of assault, two counts of sexual assault, one count of mischief under $5,000, and one count of breach of a recognizance,[^1] following a complaint by D.C. During the trial, D.C. described the incidents she allegedly experienced between June and December 2018. Mr. Al Hassan admitted that he assaulted D.C. on at least five separate occasions, but he maintained that the sexual activity that D.C. testified about never happened.
SUMMARY OF THE EVIDENCE
Evidence of D.C.
[2] Twenty-seven-year-old D.C., who is a pharmacy technician, came to Canada from Saudi Arabia when she was sixteen years old. Her parents are very conservative and imposed strict rules on her such as observance of a curfew and restrictions on interaction with males. Premarital sex was impermissible in her family. D.C. was not opposed to dating, but she strongly opposed having premarital sex. She was amenable to kissing on a date, but not to any other intimate act. She believed that the person with whom she had sex had to be her husband – a belief, she testified, she repeatedly communicated to Mr. Al Hassan after meeting him outside a café in June 2018.
[3] On that day, D.C. met Mr. Al Hassan after she had gone for a smoke with a few friends. Mr. Al Hassan approached her. They spoke and discovered that their families came from Syria. They exchanged telephone numbers. Following this meeting, the two exchanged text messages and Mr. Al Hassan called her a few times.
[4] They went to dinner approximately two weeks after their first meeting and engaged in consensual kissing. In June, they entered into a relationship that involved supporting each other and being there for each other. However, an incident occurred before July 1, 2018, which led to an end to this relationship.
[5] Before that date, Mr. Al Hassan asked D.C. to meet him at a hotel to celebrate Eid, a religious holiday. She went to the hotel and met Mr. Al Hassan in a room. They kissed, but Mr. Al Hassan wanted to do more. He thought kissing was boring. He reassured her, however, that nothing would happen. He wanted to sleep with her. He eventually took his clothes off and then tried to kiss and hug her. She refused to do anything beyond kissing. He grabbed her hand and made her masturbate him. She told him that this was not “Ok with me”.
[6] “I just wanted to leave. I just took off after”, D.C. testified.
[7] She subsequently stopped answering Mr. Al Hassan’s phone calls and text messages. However, she received a text message from Mr. Al Hassan on July 4 or 5, 2018, indicating that he was in the hospital. They then started to communicate. He apologized for what happened. She again advised him that there were limits to her interaction with him and that she did not wish to engage in sexual activity with him. They had discussions about her virginity, and she told him that she did not wish to lose her virginity prior to marriage. She told him that she was saving herself for marriage. She made that clear to him prior to August 2018. She eventually agreed to give him a second chance.
First Sexual Assault Allegation
[8] One day in late August, D.C. met Mr. Al Hassan at his warehouse between 6:00 p.m. and 7:00 p.m. They kissed while she sat on a chair. He then asked her to go to a mattress which he had brought from the second floor, but she declined. He asked her to stay for a few minutes which she agreed to do. They started to kiss, but Mr. Al Hassan wanted to have sex, which she opposed. Nevertheless, he started to remove her pants and underwear. She told him that this was not a good time. She told him to stop a couple of times. He kept saying that she should relax. She tried to resist his actions. She was turning and twisting but he held her down by her shoulder. They ended up having sex against her will. She did not want to yell or scream because it was late at night and “anyone could hear”. She thought it would be a bigger scene if she did so because her parents would get to know what had happened. Mr. Al Hassan ejaculated on her thigh. He was not wearing a condom.
[9] D.C. was bleeding and in a lot of pain after the incident. Mr. Al Hassan kept telling her to keep calm and it was the right time to have sex. He kept saying that he loved her and wanted to be with her. She subsequently went home. She did not call the police or tell anyone because she did not know what to do. She did not wish to have a conversation about what had happened in front of strangers. She spoke to Mr. Al Hassan after the event because it was not culturally acceptable to lose one’s virginity and be with someone else. He was also telling her to be calm, he would marry her. That was why she kept the incident to herself. She did not fully know her rights and believed that she could deal with the situation herself. She believed he was serious about marrying her when he asked to speak to her parents.
Meeting With Parents Of D.C.
[10] Mr. Al Hassan eventually spoke to D.C.’s father and uncle some time in November 2018. Mr. Al Hassan subsequently told D.C. about the meeting. Her parents decided that he was not right for her. They called him when she was with him and told him that he was not right for her.
[11] Mr. Al Hassan became very angry following this call. He accused her of lying to him and trying to embarrass him because of her father’s statement to him. Their relationship became worse following the telephone call from her father.
Assaults
[12] D.C. went with Mr. Al Hassan to a cafe in Oakville. She went to use the washroom. While there she heard someone yelling her name. She turned around and Mr. Al Hassan then slapped her across the face with his right hand for no apparent reason. He then said, “Finish and come back right now.” He later told her that it was rude and disrespectful of her to just walk away from him. He said it was her fault that he had slapped her. D.C. did not want to involve “higher authority” or the police in the matter and therefore did not report the incident.
[13] Despite this, D.C. kept arguing with her parents for two weeks to give Mr. Al Hassan another chance. They denied her request.
[14] On November 2, 2018, D.C. had a heated argument with Mr. Al Hassan in his warehouse. He was very angry over her parents’ rejection of him. He felt disrespected by their rejection.
[15] During the argument, she received a text message and looked at her cellphone. Mr. Al Hassan took her phone, threw it against a wall and slapped her in the face. She started to cry because her eye hurt. She had a red mark around her eye where he struck her. Mr. Al Hassan then went on his knees and apologized to her. He said he slapped her because of a “built up anger” and that he did not mean to hit her. Again, she did not report the matter to the police. She was torn between Mr. Al Hassan and her family. She believed at the time that things would be better if the two were married.
[16] On December 5, 2018, Mr. Al Hassan received a laser tube from Montreal, which he needed to complete some work projects. The tube was broken, and Mr. Al Hassan became very upset. D.C. suggested that they travel to Montreal for a replacement and she rented a car later that day for that purpose. Mr. Al Hassan dropped her home.
Second Sexual Assault Allegation
[17] On December 6, 2018, Mr. Al Hassan messaged her to come with him to have a cigarette. They then drove around for a few hours, arguing most of the time. He then drove in the area of Erin Mills in Mississauga to his friend’s house. The friend gave him a piece of paper and left. Mr. Al Hassan then slapped D.C. as soon as he rolled up his window. She was talking to someone on her cellphone when he did so.
[18] “All I see is someone slapping me”, D.C. testified, “It came out of nowhere”. When she asked why he had done so, Mr. Al Hassan accused her of having some type of relationship with his friend and working to harm him. He repeatedly accused her of working against him and lying about her parents. He then drove to his warehouse. After remaining in the car for a short while, D.C. went into the warehouse. She was crying and kept saying to Mr. Al Hassan that she did not know why this was happening. He asked her to come upstairs. She told him it’s over; she wanted to leave. She asked him for the keys to the car. He replied that he was tired and under stress. He believed she was plotting behind his back.
[19] D.C. went upstairs because the keys for the car were next to Mr. Al Hassan. He blamed her for everything. He took a short nap. D.C. did not leave with the keys because she somehow felt like she was being “held” by Mr. Al Hassan. She did not wish to involve “higher authority” because she would have more trouble. She had also taken “emergency” leave from her work on December 4, 2018, for “almost a week” and was also worried about that.
[20] She joined him on the mattress because she felt she had no choice. She felt she would be hurt if she did not comply with his requests. He tried to remove her clothing. He kept saying, “I care for you; everything will be fine.” He tried to kiss her. She twisted and turned. He tried to undress her. She went into a fetal position. He succeeded in removing her leggings and underwear and had sex with her. He did not wear a condom and ejaculated on her. She kept telling Mr. Al Hassan that she was not comfortable with having sex with him.
[21] Afterwards, he asked her to accompany him to Montreal for the laser tube. D.C. agreed to go as a last favour to him.
Trip to Montreal
[22] She left Mississauga between 10:00 p.m. and 11:00 p.m. and drove to Montreal, arriving at approximately 7:00 a.m. They tried to rent a hotel room but could not check-in before midday. She dozed while Mr. Al Hassan drove around.
[23] They argued after she woke up. Mr. Al Hassan raised his voice at her and accused her of working behind his back. They later called a woman who had the laser tube. She asked them to meet her at a local plaza. Mr. Al Hassan became angry and said that the lady was a fraud. He again accused D.C. of working behind his back. He yelled and screamed at her. She asked him to return to Mississauga.
[24] Ms. Al Hassan stopped the car at a lake. She took a picture of him on his phone. He again became angry and started to throw things into the lake. He slapped her two to three times and punched her on her forehead. He then ordered her back into the car and started to drive again. She suffered bruising around her forehead and a cut on her lip. A picture was later taken of her injuries which was marked as an exhibit.
[25] Mr. Al Hassan kept driving and went to a gas station. He took her visa to purchase gas. D.C. thought of calling for help but did not know how to get back to Mississauga. Upon his return to the car, Mr. Al Hassan drove on the highway. He yelled and screamed at her. He drove erratically until they had no gas. He stopped the car on the shoulder of the road and told her to call her insurance. Mr. Al Hassan proceeded to call 9-1-1. When a police officer arrived at the scene, he told the officer that his girlfriend had forgotten to fill-up the tank. The officer questioned Mr. Al Hassan, who pretended not to understand English. When asked what was happened, he replied that his girlfriend was tired. D.C. remained silent in the presence of the officer. She did not think of asking for help. She thought that the officer would not believe her.
[26] The officer gave them some gas to get to a gas station. Following their arrival, she sent a text message to her sister which stated:
I’m in trouble if I messaged you now, you call the cops and come to me. I’m at 2586 Dunwin Dr. Don’t msg me back hope you did what I told you.
[27] The police called her when she was still at the gas station. She had given them the address of the station. Mr. Al Hassan became angry when told that D.C. had called the police.
[28] A police officer arrived. Mr. Al Hassan asked to speak to him on the side. The officer spoke to him. He then spoke to D.C.. She did not tell him what had happened because she was afraid that her parents would get to know, and she was not fully aware of her rights. The officer told her that they would be there to assist her if required.
[29] On the way back to Mississauga, Mr. Al Hassan started to drive recklessly. He punched and poked her, yelled and screamed at her. He told her she was worthless and that he never liked her. He accused her of taking his refugee documents. She promised to pay for the laser tube and hire a lawyer to get his documents back. She asked him to pay her back the money she had spent to assist him and to leave her alone. He got angry and played the radio at full blast.
[30] During the drive, her friend Yasmin called her. Mr. Al Hassan insisted on speaking to Yasmin. He told her that they were on their way to Montreal and that they were having fun. D.C. told Yasmin that everything was fine because she did not wish Yasmin to be harmed.
[31] They arrived in Mississauga at approximately 11:00 p.m. On December 7, 2018, D.C. met Mr. Al Hassan at the warehouse. She told him to sort out their problems and go their separate ways. Mr. Al Hassan got angry and started to throw things around. He grabbed her phone from her hand. He slapped her “across the face, really hard” and attempted to grab her cellphone. She held on to it, cried, and called the police. Her ears were ringing; her head was spinning after the slap.
Statements to the Police
[32] A police officer arrived. D.C. gave a statement to the police on December 7, 2018. She only told him about what happened on December 7, 2018, and she did not mention the sexual assault on December 6, 2018. She did not know about the meaning of consensual or non-consensual sex. “It came to my knowledge after the fact”, D.C. testified. A counsellor at a counselling place, called Nina’s Place, explained the terms to her on December 9, 2018. She did not learn about these terms at high school. She had believed that she was at fault, not Mr. Al Hassan.
[33] D.C. gave another statement on December 8, 2018, and she told the police about the other times when Mr. Al Hassan had assaulted her. She also told them about the alleged sexual assault in August 2018. She did not tell them about the incident of non-consensual sexual intercourse on December 6, 2018. She only did so while giving a third statement to the police on December 18, 2018. She went back to the police because of what a counsellor had told her at Nina’s Place. Prior to speaking to a counsellor, she did not know her rights.
Mr. Al Hassan’s Trial Testimony
[34] Mr. Al Hassan denied sexually assaulting D.C. at any time. He admitted to assaulting her on numerous occasions and breaking her phone. He testified that D.C. consented to their sexual activity. They had sex at the hotel after D.C. had laid down on the bed and spread her legs. She never told him to stop. Her body language, “body heating”, and their mutual kissing led him to believe that she wanted to have sex with him. She was pleased and happy about it. Everything was fine. However, one week later she sent him a text message that they may not be able to continue their relationship. He texted her and wished her all the best.
[35] About his meeting with D.C.’s father and uncle, Mr. Al Hassan testified that:
They humiliated me. They hurt my feelings. They mocked me. They wanted to know what I was working; what I was doing. They told me they do not raise donkeys. This is humiliation. Unhuman. Unacceptable.
[36] He later added that he subsequently told D.C. not to come to his place again. She came later that night and asked him for them to remain friends. Asked about his slapping D.C., Mr. Al Hassan replied that he heard D.C.’s father threatening his family over the phone. He was annoyed by her family’s treatment of him. He admitted that he had slapped D.C. at the cafe because he felt that she had disrespected him.
[37] He denied having sex with D.C. in December. “There was cuddling, some tenderness and D.C. tried to hug him”, he testified.
[38] He denied throwing things in the lake in Montreal. All he threw was a bottle of water in an area near to the lake.
[39] Concerning D.C.’s testimony that he repeatedly slapped her and then punched her in the car during the Montreal trip, Mr. Al Hassan denied punching but testified that “maybe” he pushed her with his elbow “a few times” because he wanted her to “shut up” or be quiet. He had not slept in over forty-eight hours and told her he was very tired. Mr. Al Hassan admitted that he sent a text message to D.C., apologizing for slapping her.
ANALYSIS
[40] Both the Crown and defence counsel agree that this case turns on an assessment of credibility of the witnesses in the manner suggested by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742.
[41] D.C. testified that she did not consent to the alleged sexual acts referred to in the indictment. Mr. Al Hassan testified that they never happened, although his counsel submits that the alleged acts were consensual.
[42] In analyzing Mr. Al Hassan’s testimony, I am concerned about a number of inconsistencies, his attitude towards D.C., and his hostility towards her family after they had rejected him as a future husband for their daughter.
[43] First, in his testimony about the hotel incident described by D.C., Mr. Al Hassan testified that they had consensual sex and that, in the following days, everything was fine between D.C. and himself.
[44] The evidence suggests that D.C. willingly went to the hotel where she met Mr. Al Hassan. Although she testified that Mr. Al Hassan grabbed her hand and placed it on his penis, she testified at the preliminary hearing in this case and admitted in the Agreed Statement of Facts that the incident she described in the hotel was consensual. I do not believe Mr. Al Hassan’s testimony that they had consensual sex at the hotel. D.C. testified that the following day she texted Mr. Al Hassan to advise him that their relationship had ended. Mr. Al Hassan did not dispute that he received such a text message from D.C., except that he received it a few days following the event. He testified that he replied that he wished her the best. In my view, however, the fact that D.C. sent Mr. Al Hassan this text message is at odds with his testimony that, following the hotel meeting, everything with the two was fine.
[45] Second, Mr. Al Hassan conceded in cross-examination that he knew that the Syrian culture was rather conservative and that sex outside marriage was taboo. He also agreed that sexual relations before marriage was viewed negatively in the Syrian culture. However, he denied that D.C. was very conservative with respect to premarital sex, and he denied that she ever told him that she was saving herself for marriage. He testified that she advised him that she did not care about tradition and did what she liked. He also testified that she said that she had the right to choose the person she wanted and did not need her parents’ consent before she could do anything.
[46] However, if Mr. Al Hassan believed that D.C. felt that she did not need her parents’ consent before she could do anything, there would have been no need for him to seek their permission for him to get married to D.C.. Neither would there have been any need for D.C. to have tried for two weeks to have her parents change their decision about Mr. Al Hassan, nor for Mr. Al Hassan to become upset with her because of her parents’ decision.
[47] Additionally, Mr. Al Hassan testified in cross-examination that, at the end of the relationship, it turned out that D.C. would not continue the relationship without her parents’ approval.
[48] Furthermore, Mr. Al Hassan, by his own admission, did not comply with D.C.’s wishes and, on the contrary, manifested an abusive, controlling attitude towards her. He repeatedly assaulted her throughout the relationship.
[49] Mr. Al Hassan denied that he sexually assaulted D.C. in late August or early September, or on or about December 6, 2018. He testified, in cross-examination, that the alleged incidents “never happened”. However, he testified in-chief that he believed that she had consented to them having sex at the hotel because of her body language, the “heat” of her body, consensual kissing, and the fact that she never told him to stop or push him away. Furthermore, he testified that he was too tired on December 6, 2018 to have sexually assaulted D.C., an explanation that, in my view, makes no sense.
[50] Additionally, Mr. Al Hassan testified in-chief that the laser tube was very important for him to complete a certain work project, which presumably explained why he became angry when he realized it had been broken. However, under cross-examination, he testified that the tube meant nothing to him and that it was silly. This evidence is clearly self-serving and intended to suggest that there was no apparent reason for him to have been angry with D.C..
[51] Defence counsel submits that Mr. Al Hassan’s evidence raises a reasonable doubt in the Crown’s case that there was a “moment of candour” in his testimony when he testified that he hit her in the car because she “wouldn’t shut up”. In my view, Mr. Al Hassan’s testimony reflects a degree of callousness rather than candour. He admitted to repeatedly striking her because she disrespected him. He believed that she was trying to destroy him yet had no problems relying on her credit card to purchase items on his behalf or on behalf of his business.
[52] Regarding her cellphone, Mr. Al Hassan admitted under cross-examination to only throwing the phone. He then testified that he did not know the difference between a slap and a punch. He further stated that “maybe I pushed her”, and finally admitted, “Yes, I slapped her”. His testimony about the phone incident was therefore internally inconsistent.
[53] For the above reasons, I do not believe Mr. Al Hassan’s testimony, neither do I find that it is capable of raising a reasonable doubt about the Crown’s case.
[54] I now turn to D.C.’s evidence. She testified in a clear, straightforward manner. She did not appear to manifest any animus towards Mr. Al Hassan and, on a few occasions, accepted her role in the alleged sexual assaults. For example, in describing the alleged sexual assault towards the end of August 2018, she admitted that she kissed Mr. Al Hassan and touched him around his face and neck. She also admitted that they were cuddling and that she got on the mattress. She testified that she repeatedly told him to stop and told him that she was not ready for this. She turned and twisted, and he held her down by the shoulder before he sexually assaulted her. D.C. became emotional while describing this incident. However, I do not place too much weight on her demeanour while she testified in this trial.
[55] D.C.’s credibility was not impeached on this evidence. There is no suggestion that she gave a prior inconsistent statement or that there were any internal inconsistencies in her testimony. However, I am mindful that the absence of a prior inconsistent statement does not necessarily mean that D.C. is a truthful witness, as she could simply be repeating an untruthful statement, whether to the police, while testifying at the preliminary hearing, or during this trial.
[56] I find that D.C.’s testimony is truthful for the following reasons. Contrary to Mr. Al Hassan’s repeated assertion under cross-examination that D.C. tried to destroy him, D.C. showed a remarkable degree of toleration and patience over a persistent pattern of abuse by Mr. Al Hassan. First, she did not contact the police after being assaulted by Mr. Al Hassan because she feared that contacting the “higher authority” would simply make matters worse. She continued to try to make the relationship work despite the abuse she experienced at the hands of Mr. Al Hassan. By Mr. Al Hassan’s own admission, D.C. paid for a number of things on his behalf, including a hotel room and a car rental. She took a week off from work in December 2018 to assist him and even undertook to pay for the broken laser tube, although she was not responsible for damaging it. This evidence demonstrates that D.C. did not harbour any animus towards Mr. Al Hassan.
[57] In some circumstances, delay in reporting sexual abuse to the police may be a factor in assessing the credibility and reliability of a witness’ testimony. With respect to the alleged sexual assault which occurred at the end of August or early September 2018, I do not have any such concerns.
[58] First, as a number of courts have noted, the failure to immediately contact the police after an assault is a myth that has historically led to the discounting of the evidence of a victim of domestic violence. As noted in R. v. D.D., 2000 SCC 43, 2 S.C.R. 275, delay in reporting a sexual assault is not necessarily evidence of fabrication. Second, in my view, D.C. gave cogent reasons why she delayed in reporting the matter to the police. These include her belief that doing so would make matters worse, fears over her father finding out that she had had sex with Mr. Al Hassan, and her desire to have her relationship with Mr. Al Hassan work. Given her conservative background and the taboo against premarital sex in the community to which she belonged, it is not surprising that D.C. did not wish to report the abuse to the police. Indeed, she remained quiet even when a police officer spoke to her at a gas station in Quebec on December 7, 2018, and only reported the August sexual assault to the police on December 8, 2018.
[59] Despite my view that the delay in reporting the August incident does not diminish D.C.’s credibility concerning the sexual assault in August or September 2018, I do have some concerns regarding D.C.’s reporting of the December 6 sexual assault.
[60] D.C. reported the December 6, 2018 sexual assault on December 19, 2018, rather than on December 8, 2018, two days after the December 6, 2018 incident. This delay only becomes significant because of the reasons given by D.C. about why she reported the August incident on December 8, 2018, but not the sexual assault that occurred two days earlier, which, she conceded under cross-examination, was “strikingly similar” to the August sexual assault. D.C. testified that she did not report it then because she did not know the meaning of consent and non-consent. However, as defence counsel pointed out, in D.C.’s statement to the police on December 8, 2018, she showed that she knew the meaning of both terms. Second, her explanation does not clarify why she reported the August incident on December 8, 2018, but not the one on December 6, 2018, despite agreeing with defence counsel that they were “strikingly similar”.
[61] D.C.’s other professed reason for her delay in reporting the December 6, 2018, incident was that she only found out about the meaning of sexual assault after speaking to a counsellor at a shelter called Nina’s Place on December 9, 2018. However, this evidence contradicts the fact that D.C. reported the August 2018 sexual assault before she spoke to anyone at Nina’s Place.
[62] While I am unprepared to conclude that Mr. Al Hassan did not sexually assault D.C. on December 6, 2018, I find that the Crown has not proven this charge on the indictment beyond a reasonable doubt.
CONCLUSION
[63] Based on the above, I find Mr. Al Hassan guilty of the following charges:
Count One (Assault) Guilty
Count Two (Assault) Guilty
Count Three (Sexual Assault) Guilty
Count Four (Assault) Guilty
Count Five (Mischief Under $5,000) Guilty
Count Six (Assault) Guilty
Count Seven (Breach of Recognizance) Guilty
[64] I find Mr. Al Hassan not guilty of count number eight on the indictment.
[65] The matter is adjourned to January 12, 2021, 9:30 a.m. TBST by teleconference.
[66] Mr. Al Hassan is remanded out of custody accordingly.
André J.
Released: December 14, 2020
COURT FILE NO.: CRIMJ (P) 1982/19
DATE: 2020 12 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MOHAMMED AL HASSAN
REASONS FOR JUDGMENT
André J.
Released: December 14, 2020
[^1]: Mr. Al Hassan pled guilty to this charge on November 9, 2020.