Overview

[1] A.Z.A. (“Z.A.”) and Y.A. married in about 1998 in Baku, Azerbaijan. They have two daughters: V.A., born in 2001 and S.A., born in 2003. In 2006, they came to Canada, settling first in Sherbrooke, Quebec. In 2008, they moved to Toronto and lived in an apartment in Thorncliffe Park. They had a difficult and unhappy marriage. Z.A. was frequently physically abusive towards his wife, and both Z.A. and Y.A. were physically abusive to their daughters.

[2] Z.A. and Y.A. separated in 2016, after Y.A. discovered that Z.A. was in a relationship with another woman. In 2017, V.A. and S.A. reported assaults on them by both parents and were placed in foster care. Y.A. and Z.A. faced criminal charges arising from these complaints. Y.A. pleaded guilty and received a conditional discharge. Z.A.’s charges were resolved similarly by way of an agreed statement of facts.

[3] In 2018, after she pleaded guilty, Y.A. provided a statement to the police which led to the five charges in this case against Z.A., all of which are said to have occurred at some point between January 1, 2009, and June 1, 2016. Z.A. is charged with sexually assaulting Y.A. causing bodily harm, and also with sexual assault on Y.A. He is also charged with three counts of uttering threats to Y.A., specifically threats to cause death to Y.A. and to their daughters.

[4] I find that the Crown has proven beyond a reasonable doubt that Z.A. uttered threats to kill Y.A., V.A., and S.A., and that he is guilty of those charges. Both Y.A., who testified for the prosecution, and V.A., who was called by the defence, stated that Z.A. threatened to kill them, and counsel for Z.A. did not contest those charges at the conclusion of the trial.

[5] I am also satisfied beyond a reasonable doubt that Z.A. committed sexual assaults on Y.A. in their apartment, at least one of which caused her bodily harm, and therefore I find him guilty of sexual assault and guilty of sexual assault causing bodily harm as alleged in Counts 1 and 2.

Uncharged prior discreditable conduct

[6] At the outset of the trial, I granted a motion by the Crown to adduce evidence of what it described as prior discreditable conduct of the accused pre-dating the time-period of the charges. Some of this evidence was general in nature, to the effect that Y.A. had been the victim of physical abuse by her husband throughout their marriage. The Crown also led evidence of three specific acts allegedly committed by Z.A.: (1) the burn incident; (2) the threat with a knife; and (3) the balcony incident.

[7] Counsel for Z.A. did not object to evidence of the general nature of their relationship and of the burn incident, nor did he “strenuously” object to the incident with the knife. Counsel did, however, object to the final incident on the balcony, in which it was alleged that Z.A. held a young S.A. over the edge of their 18^th floor balcony threatening to drop her. It was argued that this incident was irrelevant and had been the subject of charges in 2017 after the children reported violence against them by both parents. The incident was not adjudicated as Z.A.’s charges were resolved without addressing it.

[8] In light of the information provided to me on the motion and the consent of the defence to most of the proposed evidence, and having regard to the fact that this trial was before me as a judge alone and I would be able to determine the extent, if at all, to which the evidence would assist me in reaching a verdict, I permitted this evidence to be presented. Relying on R. v. J.H., 2020 ONCA 165 at para. 55, I admitted the evidence as being relevant to obtaining an understanding of the nature of the relationship, including physical abuse, between Y.A. and Z.A., the narrative, the failure of the complainant to leave the relationship and report the abuse, and to rebut any claim of recent fabrication.

[9] However, I expressed concern that the trial not turn into a trial on these other, collateral, events and indicated that any weight I would give that evidence would be subject to submissions at the end of the trial. As things turned out, a great deal of time was spent on the prior conduct, especially the burn incident. While the background of the relationship between Z.A. and Y.A. was important in providing me with narrative and context for the charges, the extensive examination and cross-examination over the disputed facts arising from the burn and knife incidents provided me with limited assistance in determining the specific charges before the Court.

The history of the relationship

[10] Y.A. was born in Azerbaijan. At some point in her childhood her family moved to Baku, where Y.A. continued in school, completing grade 10. She met Z.A., who was from Afghanistan, when she was 20 or 21 years old and was attending a college nursing program. Z.A. was studying at Baku State University. They lived in the same apartment building. About a year after they met, Y.A. and Z.A. married.

[11] According to Y.A., the marriage caused a rift with her family. She said that not long after they married, Z.A. became physically abusive because he wanted to have sex with Y.A. She described Z.A. as becoming increasingly violent, frequently assaulting and sexually assaulting her, up to 5 or 6 times per month.

The burn incident

[12] Y.A. testified that the burn incident occurred about a year before the birth of their first child, V.A., who was born in December 2001. They were living in an apartment residence at Baku State University. Y.A. said that Z.A. told her to buy acetone, which is used as a nail polish remover but, she said, is also used for cleaning paint, and is flammable. She said that Z.A. was angry with her and spilled acetone on her. He threatened to light her on fire and after she tried to escape from their apartment, she said he lit a match and set her on fire.

[13] Y.A.’s recollection was that Z.A. took no steps to help her, and that neighbours banged on the door when they heard her screams and called an ambulance. In cross-examination, however, Y.A. recalled that Z.A. made efforts to pat down the flames on her.

[14] Y.A. was in hospital for about two and a half months. During much of that time, Y.A. was sedated. Photographs of Y.A.’s scars taken when they still lived in Azerbaijan were made an exhibit at the trial.

[15] No complaint was made that Z.A. had set Y.A. on fire. Y.A. said that she told the police that the fire was an accident. She said that when Z.A. visited her in the hospital he would cry and ask her not to tell the police that he had caused her injuries, and he promised that things would get better. At the preliminary inquiry, however, Y.A. said that her husband threatened to kill her if she told the police what he had done to her. In cross-examination it was suggested that both versions could not be correct, but Y.A. disputed that, saying that as time passed and Z.A. returned to his old behaviour, he threatened her if she went to the police.

[16] Y.A. testified that when she first arrived at the hospital, she must have told the doctors that her husband set her on fire as one doctor confronted her about it; but later, as she recovered, and after speaking with her mother who told her not to tell anyone that Z.A. had caused the fire, she told people, including the Azerbaijan police, that she slipped and that it was an accident. On the other hand, in her evidence at the preliminary inquiry, Y.A. said that her mother had wished to report Z.A.

[17] Y.A. was also confronted on other inconsistencies in her explanations, such as whether she had slipped on a sock, or tripped on the corner of a carpet.

[18] When asked what she knew of the burn incident, V.A. testified that she had heard two accounts from her mother: first, that she was removing nail polish and something “sparked”; and secondly, that Z.A. caused the burns. These accounts were given many years ago when the girls were little, although a variation of the account blaming Z.A. was given to them more recently by Y.A.

Move to Canada and the knife incident in Sherbrooke

[19] In 2006, the family arrived in Canada as refugees. They settled, initially, in Sherbrooke, Quebec, where they lived for about two and a half years. Y.A. stated that after living there for 5 or 6 months, Z.A. began to be physically abusive towards her and to the children. She also said that Z.A. was frequently drinking and smoking marijuana. She said that she thought he was doing other drugs as well, although she said that the beatings were not the result of him being intoxicated.

[20] Y.A. testified that on one occasion Z.A. became abusive towards S.A. in front of others. Later that day, Y.A. told Z.A. that she wished to separate from him and he became physically abusive towards her. The police were called—although Y.A. was not sure whether she called them or neighbours did so—and at that point she said he put a long kitchen knife to her throat and threatened to kill her and the children. When the police arrived, Y.A. did not tell them about the knife. She said there had been a fight, but that it was not serious.

[21] V.A. testified that she did not, today, have a specific memory of her father holding a knife to her mother’s throat in Sherbrooke, when V.A. would have been quite young. However, she acknowledged that she could “imagine it”, and stated that her father has threatened her and her sister with a knife.

The balcony incident involving S.A.

[22] The family moved to Toronto in the summer of 2008. They moved into a high-rise apartment in Thorncliffe Park. Y.A. said that physical abuse of her by Z.A. continued, often several times a week. She said he often hit her with a stick, the vacuum cleaner, a belt and a frying pan. She said that she had bruises and swelling from Z.A.’s beatings, but that he would not permit her to go to the hospital.

[23] Y.A. said that Z.A. sometimes beat his daughters, and that on one occasion he picked up S.A. and held her over the edge of the balcony. Y.A. said that V.A. witnessed this as she told her mother to come to the balcony because of what Z.A. was doing to S.A.

[24] V.A. testified that she recalls her father holding S.A. over the edge of the balcony in Thorncliffe Park when she was “very little”, about 5, 6 or 7 years old.

The evidence of sexual assaults in the apartment

[25] Y.A. testified about sexual abuse of her by Z.A. in the bedroom of their apartment during the time period of the charges. She described Z.A. as insisting that she cry out other peoples’ names when having sex with her, and that he used a variety of implements on her. Y.A. said Z.A. would sit on her back, sometimes put his knee on her back, pull her hair and choke her, and sometimes tie her hands. She described incidents in which he insisted on inserting a large plastic penis into her rectum which caused her to scream in pain, but he kept doing it. She said this caused bleeding for almost one month. She also said Z.A. inserted a stick, fruit and vegetables into her rectum. She said she did not consent to any of this. If she refused to have sex, he would beat her.

[26] Y.A. said she saw her doctor when she was in pain from the sex, which included back pain from Z.A. putting his knees on her back, but said she was too embarrassed to tell the doctor what had happened. She said she feared the doctor would report it to the police which would lead to the break-up of the family. Y.A. was vulnerable, dependant on her husband, and feared losing her daughters.

[27] Y.A. testified that her children knew she was in pain and heard her screaming in the bedroom begging Z.A. to stop when he was forcing her to do various sexual acts. She said that the children sometimes opened the door and saw Z.A. sexually assaulting her, but they would pretend to the children to be getting dressed or doing something else when that happened. She said she told the children not to come into her bedroom when she was screaming, and to watch television with the volume turned up. The sexual assaults occurred frequently over the years that they lived together in the Thorncliffe Park apartment, Y.A. said.

[28] Y.A. said that her daughters discovered the plastic penis in the apartment and asked her what it was. She told them it had been left in front of their apartment door and she called the building management about it.

[29] Y.A. also alleged that Z.A. fondled his erect penis in front of his daughters.

[30] Y.A. said she threatened to throw herself over the balcony of their apartment. In cross-examination, she said this happened once or twice, and that she did this in front of her children. She could not recall how old the children were when these events occurred.

[31] It was suggested in cross-examination that Y.A. often threatened to kill herself when upset. In particular, it was suggested that she had done so to V.A. just a few days before the trial after learning that V.A., who was living with her mother at the time of the trial, had used her credit card to buy a new dress.

[32] This threat of suicide became the subject of additional questioning as it was learned that during an objection, when Y.A. was excluded from the courtroom, she saw and spoke to V.A., who was waiting outside the courtroom to testify for the defence. It was suggested that Y.A. asked V.A. if she had recorded their recent conversation in which Y.A. had threatened to kill herself. Y.A., who had been surprised to see V.A. as she did not know V.A. was going to testify, did not deny speaking to her. She said she was angry about her daughter’s conduct stealing things from her, and believed V.A. was going to lie for Z.A.

[33] V.A., testifying for the defence, confirmed the discussion with her mother in the courthouse during the trial, when her mother approached her to ask if she had recorded their recent argument including her mother’s threat to throw herself off the balcony. V.A. described her mother as having put a leg over the railing, something she had also done when V.A. was little when her mother was very angry with her.

[34] V.A. readily acknowledged that her parents had a difficult relationship and that there was a lot of arguing and violence in the home. She confirmed that her father assaulted Y.A. on many occasions, pulling her hair, and hitting her with a belt, stick and frying pan. She also recalled her father throwing the vacuum at her mother. V.A. said her father also pulled her hair and that of her sister, and that he hit her with a stick and a belt, albeit only once or twice. V.A. said that there were times when her mother intervened to help the girls and tell them to hide in the bathroom. V.A. said that sometimes Z.A. was drunk when he assaulted Y.A. and his daughters, but other times he was sober. V.A. also confirmed that her mother often got angry with her and her sister and would hit them.

[35] V.A. said she never saw her parents having sex, and she did not recall her mother telling her to watch television to avoid hearing her scream. V.A. said her father did not expose himself to her or her sister. On the other hand, V.A. said that when things got heated between her parents she would hide in the bathroom and could hear her father assaulting her mother and hear them yelling. She also recalled finding a plastic penis in the hallway outside the apartment which her mother brought inside and was embarrassed about.

The evidence of sexual assaults in parks

[36] Y.A. testified that Z.A. also sexually assaulted her in city parks. She described one occasion where they left the children waiting for their school bus and Z.A. insisted they go into a nearby park where, among some trees, he forced Y.A. to have sexual intercourse. Y.A. said that she could see people walking and biking nearby as this happened.

[37] Y.A. said this happened several times in different parks between 2008 and 2016. She said she did not want to leave the children alone but described on some occasions leaving them in the dog-walking area where she and Z.A. told people they would be back shortly while the children played with the dogs. She said Z.A. would force her to have vaginal and anal intercourse in parks. Y.A. was inconsistent on whether people saw this or not.

[38] V.A. testified that the family would, together, go shopping, have picnics, take trips to Niagara Falls, and often went to Brimley Park. But she said that she and her sister were never left alone in parks.

[39] In cross-examination, Y.A. testified that V.A. once walked in on them having sex in a tent while on a camping trip to Algonquin Park. V.A. said this did not occur.

The separation

[40] In 2016, Z.A. and Y.A. separated. Y.A. said that she discovered that Z.A. was having an affair with another woman, which led to a fight between them. Y.A. threatened to call the police unless Z.A. left. When he did so, he told Y.A. he would kill her and the family. Y.A. said that Z.A. said words to the effect of: “whatever I have done until now is nothing. You will see what I am capable of. First, I will start with the kids, and then you and your family. I will kill everyone.”

[41] In 2017, after the children reported violence against them, Y.A. and Z.A. were both charged with criminal offences relating to assaults on their children. Y.A. pleaded guilty and received a three-month conditional discharge. I have been provided with no details of the specific charges laid against Z.A., other than being told that they were resolved by way of an Agreed Statement of Facts on a similar basis to the charges against Y.A. For about two years the girls lived in foster homes. S.A. has now married, and V.A. has returned to live with her mother.

The threatening charges – Counts 3, 4 and 5

[42] In closing argument, the defence did not contest the threatening charges. It was acknowledged that both Y.A. and V.A. had provided evidence of threats that established those charges beyond a reasonable doubt. I agree, relying on Y.A.’s evidence that Z.A. threatened to kill her and their two children when the couple separated in 2016. I therefore find Z.A. guilty on Counts 3, 4 and 5 in the Indictment.

The sexual assault charges – Counts 1 and 2

[43] The sexual assault charges are not particularized to specific events, but simply allege the offences were committed between 1 January 2009 and 1 June 2016. The only difference between them is that Count 1 alleges that Z.A. “did, in committing a sexual assault on [Y.A.], cause bodily harm to her, contrary to s. 272(2) of the Criminal Code”, while Count 2 alleges sexual assault alone, contrary to s. 271 of the Criminal Code.

[44] My decision on these Counts turns on my assessment of the credibility and reliability of Y.A.’s evidence and, in particular, her accounts of what happened between her and Z.A. during their life in Toronto. I accept that Y.A. and Z.A. had a marriage in which violence occurred frequently. The story of the knife incident in Sherbrooke is consistent with this conclusion. The incident involving S.A. on the balcony, which was confirmed by V.A., is also consistent with a violent household. Although I heard evidence about the burn incident in Azerbaijan, I reach no conclusions on how it was caused.

[45] In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada provided guidance regarding the required standard of proof. At para. 36 the Court stated that “a reasonable doubt… is based upon reason and common sense” and that it is “logically connected to the evidence or absence of evidence.” Proof beyond a reasonable doubt “does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt.” [emphasis in original.] “[M]ore is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guilty must acquit.”

[46] I must also have regard to the approach to conflicting evidence described in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 at 759-60. Here, although Z.A. did not testify, the defence led evidence through V.A. which, if it raises a reasonable doubt on an essential element of a charge, requires me to acquit the accused: see R. v. B.D., 2011 ONCA 51 at para. 114.

[47] V.A. was articulate and testified in a clear and straightforward manner. Both counsel agreed that she was credible and did her best to tell the truth. V.A. was visibly moved when she entered the courtroom and saw her father. He was moved too. V.A.’s relationship with her mother was, as she put it, “complicated.” She agreed that she had told her mother that she did not want to see her father “die in jail”, but she denied asking her mother to withdraw her allegations.

[48] I found V.A.’s evidence to be credible, but limited. She testified about events that occurred when she was a child. She was emotional when acknowledging she did not grow up in a safe home, agreeing that her father was violent and used implements against Y.A. and the children. Although V.A. said she did not see any sexual assaults or her father exposing himself, she frequently heard her parents yelling and heard her father assaulting her mother. She would hide in the bathroom. V.A. may not have been aware of what her parents were doing, had she seen it. Y.A. said she did her best to avoid the children seeing them having sex, stating that if the girls came into the bedroom Y.A. and Z.A. would pretend they were getting dressed and she would yell at the girls, or punish them for coming in.

[49] V.A.’s evidence that she did not see sexual violence in the apartment does not mean it did not happen. Where her evidence differed from Y.A.’s, it was not on the central allegations of sexual assault. In my view, her evidence does not raise a reasonable doubt that sexual violence occurred in the apartment.

[50] In contrast, V.A.’s evidence does raise a reasonable doubt about the alleged incidents in the parks, as she contradicted Y.A. on those allegations, stating that she and her sister were never left alone in parks. This does not mean that Z.A. did not assault Y.A. in parks, but V.A.’s evidence raises a reasonable doubt that those assaults occurred.

[51] On all the evidence, I am satisfied beyond a reasonable doubt that Z.A. sexually assaulted Y.A. in the apartment during the time in question, without her consent, and that he caused her bodily harm as she described, including causing bleeding.

[52] Y.A. described a life full of violence, which was confirmed by V.A. This included specific prior acts such as the knife incident in Sherbrooke and the balcony incident in Toronto, as well as consistent accounts of violent acts by Z.A. against Y.A. and the children in the Thorncliffe Park apartment. V.A. confirmed the frequent acts of violence by Z.A. against Y.A. She also saw the plastic penis described by Y.A.

[53] There were inconsistencies in Y.A.’s accounts of Z.A.’s conduct towards her. However, much of that arose over the burn incident and Y.A.’s differing accounts which she gave at the time of how that incident happened, over twenty years ago in Azerbaijan. There were few inconsistencies about Y.A.’s accounts of Z.A.’s assaults and sexual assaults in the apartment in Toronto. Y.A. did say things in court which she did not say to the police, but these are omissions, not inconsistencies, and do not, in my view, make her evidence unreliable.

[54] Y.A. readily acknowledged that she did not tell the police every detail, observing that she has also been seeing counsellors and psychologists to help her cope with her experiences. She has told her accounts of what her life was like with Z.A. many times. Quite understandably, as she said, she cannot recall what she has told each person.

[55] Y.A. is a woman who has suffered a great deal of trauma at the hands of her husband over many years, and her evidence will inevitably have some weaknesses. She explained that she put up with Z.A.’s violence to keep the family together, just as V.A. said she did not report the violence due to her fear of being separated from her sister. Y.A. was, as I have noted, a vulnerable woman, a recent immigrant who spoke limited English, with a young family, who was dependent on her husband.

[56] I also place little weight on the interaction between Y.A. and V.A. during the trial. Their conversation did not deal with the allegations against Z.A. and reflected the undoubtedly “complicated” relationship between mother and daughter during a very stressful time. Y.A. explained that she was surprised to see V.A. at the courthouse and was angry as she thought her daughter would lie on behalf of her father.

[57] Y.A.’s descriptions of the assaults and sexual assaults in the apartment, and of the injuries she suffered, were consistent, credible and reliable. Having heard and seen Y.A. testify and having considered her evidence in light of the undoubted violence to which she was subjected, and having regard to all the evidence, I am satisfied beyond a reasonable doubt that Z.A. sexually assaulted Y.A. in their apartment on many occasions between January 1, 2009, and June 1, 2016, and that at least one of those sexual assaults caused Y.A. bodily harm. I therefore find Z.A. guilty on Counts 1 and 2.

Paul B. Schabas J.

Released: December 19, 2022

COURT FILE NO.: CR-21-10000205

DATE: 20221219

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

A.Z.A.

REASONS FOR JUDGMENT

Schabas J.

Released: December 19, 2022

R. v. A.Z.A., 2022 ONSC 7052

Case Summary

Overview

Uncharged prior discreditable conduct

The history of the relationship

The burn incident

Move to Canada and the knife incident in Sherbrooke

The balcony incident involving S.A.

The evidence of sexual assaults in the apartment

The evidence of sexual assaults in parks

The separation

The threatening charges – Counts 3, 4 and 5

The sexual assault charges – Counts 1 and 2

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 2