Court File and Parties
Court File No.: CR-23-00000083-00BR Date: 2023-04-17 Ontario Superior Court of Justice
Between: His Majesty The King – and – Farhang Bani-Naeim, Defendant/Applicant
Counsel: M. Gries, for the Crown/Responding Party R. Handalarski, for the Defendant/Applicant G. Gray, for the Complainant
Heard: March 10, 2023
Molloy J.:
Reasons for Decision
A. Introduction
[1] Farhang Bani-Naeim was arrested on January 9, 2023 and charged with several counts of assaulting and threatening his wife (“M.A.”). He was released on bail on January 10, 2023, with a condition that he have no contact with her. On February 10, 2023, he breached that non-contact provision of the bail order and was again arrested. On February 15, 2023, he was once again released on bail, again with a provision that he have no contact with the complainant, but this time with an additional requirement that he reside with his surety. Mr. Bani-Naeim applied to this court for an order “varying” his bail “to permit him to have contact with [the complainant and their child] and to live with them at the same address.” I heard that application on March 10, 2023 and dismissed it for brief oral reasons delivered that day. I advised at the time that I would deliver written reasons for my decision at a later date. Those reasons are set out below.
B. Background Facts
Circumstances of the Alleged Offences
[2] On the night of January 8, 2023, a concerned neighbour overheard a commotion in the apartment Mr. Bani-Naeim shared with his wife. The neighbour knocked on their door and told Mr. Bani-Naeim that, if he did not leave, she would call the police. Mr. Bani-Naeim left, but took with him his wife’s cellphone, passport, keys to the house, and credit cards, as well as the passport of their child. The neighbour then called the police. The police attended and interviewed M.A. The police interaction with M.A. that night was recorded on their body cameras. M.A. told the police that earlier that night she told her husband she wanted a divorce. This led to him becoming very angry. She said he had been drinking, and estimated that he had consumed half a litre of cognac. She told the police that her husband assaulted her during this argument, in the presence of their five-year-old child, and that this included choking her to the point where she nearly passed out and threatening to kill her. She also reported that he had assaulted her on two prior occasions by slapping her in the face. In addition, she described an incident in Turkey (where the family had been visiting for one and a half months) in which she said her husband kicked her in the back and slapped her face. M.A. was taken to hospital and from there to a woman’s shelter. She had no serious injuries.
[3] The police contacted Mr. Bani-Naeim, who turned himself in the next day. He was charged with multiple counts of assault, including choking and threatening, and with theft of M.A.’s property.
[4] On January 10, 2023, Mr. Bani-Naeim appeared before Borenstein J. for a bail hearing and was released on a surety bail with a condition that he have no contact, directly or indirectly, with the complainant. The surety was K.H., a woman who had previously been in a relationship with Mr. Bani-Naeim.
[5] On February 10, 2023, officers on a routine patrol investigated a car parked in the parking lot of the Admiral Inn in Burlington. They learned that it was registered to Mr. Bani-Naeim and that a room in the hotel was also registered to him. When they knocked on the door, M.A. answered and appeared to the police to be evasive. Concerned for her safety, the police entered the hotel room and found Mr. Bani-Naeim hiding in the closet.
[6] Following his arrest for breaching the first bail order, Mr. Bani-Naeim again applied for bail, and on February 15, 2023 was granted bail by Justice of the Peace Kirke. This is the bail order for which he now seeks a variation.
Circumstances of the Accused
[7] Farhang Bani-Naeim is now 54 years old. He was born in Iran, came to Canada in 1999, and is now a Canadian citizen. He owns a company that does contracting and maintenance for condominiums and commercial buildings in Toronto. In his affidavit filed on this application, he said that he and M.A. “have been together for more than five years.” They married on July 31, 2020, and have a five-year old daughter together. M.A. is now 30 years old.
[8] Mr. Bani-Naeim has no criminal record. However, there have been three prior incidents, each with a different domestic partner, in which Mr. Bani-Naeim was charged with assault in a domestic situation. The first situation led to a conviction for assault with a weapon, although he later obtained a pardon for that offence.
In 2007, Mr. Bani-Naeim was charged with assault with a weapon. The charges arose when Mr. Bani-Naeim’s then girlfriend who had been out drinking with friends, returned home to find him in her apartment. She told him to leave and when he refused one of her male friends intervened. Mr. Bani-Naeim pulled a knife, threatened the friend, and waved the knife at him, slicing his face slightly in the area of his lip. Mr. Bani-Naeim was found guilty and sentenced to 30 days in jail, varied on appeal to time served, plus 2 years’ probation. See R. v. Bani-Naeim, 2010 ONSC 1890.
In June 2008, Mr. Bani-Naeim was charged with assaulting K.H. to whom he had been married for six years and with whom he had two children. They had been living apart as of April 2008, and continued to cooperate to look after the children. She had given him the keys to her apartment so that he could pick the children up from school and stay with them until she got home from work. However, K.H. alleged that Mr. Bani-Naeim had abused this arrangement by showing up unannounced and moving some of his clothing into her apartment. The incident in June arose when she told him that she did not want him to move in and he reacted by grabbing her shoulder and pushing her, in front of the children, who started to cry. K.H. called the police who attended and arrested Mr. Bani-Naeim. The assault charge against him was withdrawn when he entered into a peace bond. It should be noted that K.H. was the surety for the first bail order in relation to the charges now before the court, but subsequently pulled the bail.
In 2015, he was charged with assaulting his domestic partner, with whom he had been in a relationship for seven years. She alleged that he slapped her in the face while she was holding their eight-month-old son. He was charged, but the charge was withdrawn in July 2016, when he entered into a 12-month peace bond.
The First Bail Order
[9] On January 10, 2023, Mr. Bani-Naeim was released on bail with K.H. named as his surety. At that time, the court was apparently unaware that K.H. was the complainant in an incident of domestic assault by Mr. Bani-Naeim. The bail contained two conditions requiring Mr. Bani-Naeim to stay away from his wife and child: (1) prohibiting him from contacting or communicating with them in any way, either directly or indirectly; and (2) prohibiting him from being within one kilometre of any place where he knew M.A. or his child to be.
[10] One of the documents before the court at the initial bail hearing was a “Victim Input Form” dated January 10, 2023. In that document, M.A. is noted to be fearful of the accused and fearful for her safety and that of her child. She advised that she had no plans to reconcile with her husband and was planning to start family law proceedings. She said she wanted no contact with him and requested an order that he not communicate with her or her child.
[11] On February 5, 2023, Mr. Bani-Naeim filed an Application for a Consent Variation of Bail. In that application, he requested the removal of the two conditions preventing him from having contact with his wife and child. In the section that asks him to detail the reasons he is seeking this change, he started by saying this situation “was a huge misunderstanding.” He said that it had started with an argument between their relatives while they were away on vacation and referred to his wife being “depressed and moody because she had a miscarriage two weeks before.” He asked for the opportunity to get his family back together. He stated that “there is no threat or danger facing anyone in this case” and said that he was “certain [his] wife would acknowledge this.”
[12] The very next day, February 6, 2023, M.A. sent emails to both the worker with the Victim Witness Assistance Program and the officer in charge of the case indicating that she wanted to withdraw the charges. She wrote that she now realized this had all been a “big misunderstanding”, that she was carrying some “unnecessary hate” as a result of disputes between her family and her husband’s family in Turkey, and that she was going through a depression as a result of a recent miscarriage. She acknowledged that she “did say something at the time of the incident, which emotionally [she] thought was right,” but that she now knew that she and her husband did not have any serious argument. She said she was not willing to testify and wanted the charges dropped. She also wanted her husband’s bail conditions removed so that she and her child could see him. She stated, “Clearly, I want to state that I’m not under any kind of pressure, threat or danger. I’m taking this decision on my own free will.”
[13] On February 7, 2023, the Crown Prosecutor refused to consent to the variation sought. Crown counsel notified Mr. Bani-Naeim by email that same day, stating: “Mr. Bani Naeim, [t]he Crown is not consenting to your requested bail variation. You are not to have any contact with [M.A.] or [their child], as your bail says.”
[14] On February 10, 2023, Mr. Bani-Naeim was found in a hotel room with M.A. He was hiding in the closet when the police checked the room out of concern for M.A.’s safety. He was arrested and remained in custody until he was again released on bail on February 15, 2023.
The Current Bail Order
[15] Justice of the Peace Kirke released Mr. Bani-Naeim on February 15, 2023 on terms that are somewhat stricter than the previous bail. The named surety is a friend and former co-worker, Andi Mangelli. Mr. Bani-Naeim is required to reside with Mr. Mangelli and to observe a curfew between 10:00 p.m. and 6:00 a.m., unless required to attend emergency calls for work. The conditions with respect to no contact with M.A. and their child remain in place. Mr. Bani-Naeim, was also ordered to turn over the passports for M.A. and their child, which he had taken on January 8, 2023.
[16] Before Kirke J.P., the Crown opposed Mr. Bani-Naeim’s release on bail, citing concerns on the secondary grounds that he was likely to reoffend in a violent way given the nature of this offence, his history of domestic violence, and his breach of the non-contact provisions in the previous bail order. Kirke J.P. also expressed concerns on the secondary grounds, noting the domestic assault in 2007 and the domestic context assault with a weapon in 2008, as well as the aggravating factors of the current assault. However, the Justice of the Peace also referred to the emails from M.A. (in which she said she wanted the charges dropped and wanted to reunite with her husband) and the fact that Mr. Bani-Naeim had now spent six “unpleasant” days in custody, which would deter him from having contact with his wife and child outside of what a family court might order. She found that, based on these factors, and with the proposed plan of supervision, her concerns about his likelihood to reoffend were lowered. However, she added a curfew requirement to provide more control over Mr. Bani-Naeim and more opportunity for the surety to supervise him, given that they both worked at different locations during the day.
[17] The Justice of the Peace left open the possibility of a future bail variation to permit contact, stating:
But given that there is this history which seems to indicate that you have volatile relationships, especially when provoked or when challenged or when alcohol is involved, I think it is necessary to impose conditions on you that will be very similar to the Milton bail, so that you can be properly supervised, and as things perhaps work out, perhaps bail variations can be made, so that you have further contact, But at this point, I think it is very early in the process, and given your history, I think those conditions are needed. [2]
C. This Application to Vary
Material Relied Upon for the Variation
[18] The affidavit filed by Mr. Bani-Naeim on this application to vary was affirmed on February 27, 2023, which is a mere 17 days after Kirke J.P. made the bail order. Mr. Bani-Naeim seeks to remove the residence condition, the curfew provision, and the non-contact provisions. Basically, he seeks to be permitted to go back to living with his wife and child. He says he feels he is missing crucial moments of his child’s life every day and he would never harm his wife and child if he were permitted to return home. He describes the pain of being separated from them as “unbearable” and says that his life “is falling apart” without them (including his business, his ability to function, his ability to eat and sleep, and his mental health). He says he would “do anything to go home to my family and be there for them.”
[19] In his affidavit, Mr. Bani-Naeim said he feels that he is a “tremendous burden” on his surety, Mr. Mangelli, because of the condition that he is required to reside with him and his wife and two children. Mr. Mangelli also provided an affidavit. He stated that he supports Mr. Bani-Naeim’s request to be permitted to go home to his wife and child. He said that it has been “difficult” having Mr. Bani-Naeim living with him and his family, but that he is willing to continue as surety whatever the court decides about the conditions.
[20] The defence also filed the affidavit of M.A., affirmed on February 23, 2023, a mere 13 days after the bail order now under review. At this point, M.A. has had independent legal advice and was represented by counsel at the bail hearing. She also testified at the bail hearing, reiterating what she had attested to in her affidavit. Her evidence is similar to what she said in her February 6 emails, although with a little more detail. She referred to the miscarriage she had in Turkey in December 2022 and said that both she and her husband were devastated. She also said that after the miscarriage there were many arguments between her family and her husband’s family, and that her family was pressuring her to leave her husband, even after they returned to Canada in January. On the night giving rise to the charges, she said she was arguing with her husband about the miscarriage and the feud between their families. She said she was screaming at him and that a neighbour “must have heard us fighting and called the police.” She completely recanted her allegation that her husband choked her. She said that at one point during the argument she pushed him and he put up his hands to protect himself and, in doing so, his fingers on one hand touched her neck. She said this was what she was referring to when she said he choked her, referring to it as an “exaggeration.” She said that her husband also did not assault her on any of the other occasions she described. To explain the allegations she made to the police she stated that “[w]hen I was speaking with the police officers, I was highly emotional, sleep-deprived, and still deeply traumatized by the miscarriage. The way I see my state of mind now, I feel like I was highly prone to suggestion and to exaggeration.”
[21] In her testimony at the hearing, M.A. denied being financially dependent on her husband. She said that on April 1, she would be going back to work fulltime in the field of property management (which she worked in part-time in the past) and would be earning $3,600 per month. She also has a small business buying things from China and selling them online (from which she earns $200-$300 per week) and she is investing in gold bars. She said that her rent is only $935 per month and with her income and the child tax benefit of $670 per month, she is able to support herself and her child. However, she also acknowledged that, at least up until now, her husband has been paying the rent.
Material Change in Circumstances
[22] The defence argues that there has been a material change in circumstances based on the full recantation in sworn evidence by M.A., and the fact that she has done so after having independent legal advice. She has also disclosed a motive to lie: the pressure put on her by her family in Turkey to leave her husband and take their child to Turkey. This evidence, it is submitted, affects the strength of the Crown’s case and gives rise to a very serious doubt as to the truth of the allegations upon which the charges are based.
[23] I am in substantial agreement with the Crown’s argument that this does not constitute a material change in circumstances given that the recantation had already been made in the emails that were before the Justice of the Peace. She held that notwithstanding the complainant’s change in position and stated wish to reunite her family, the conditions imposed in the bail order were required to ensure that Mr. Bani-Naeim did not reoffend in a violent manner. It is difficult to see how the new evidence could have changed the result of the bail hearing, which is a requirement to meet the material change test. See R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 121, 128 and 137; Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.
[24] That said, the fact that M.A. had independent legal advice before providing this affidavit, and the additional information she provided do change the circumstances somewhat. It was difficult to assess the extent to which the change in circumstances was material without fully considering all the evidence. In effect, I heard the matter de novo, and I will therefore deal with it that way in my reasons.
Strength of the Crown’s Case
[25] The defence submits that the Crown’s case is no longer viable, relying on the affidavit and viva voce testimony of M.A. in which she fully recanted her allegations of assault and explained why she mistakenly told the police what she did.
[26] I do not agree with that submission. On the contrary, I agree with the Crown’s submission that there is still a reasonable prospect of conviction, notwithstanding M.A.’s current position as to whether these assaults occurred. Notwithstanding M.A.’s recantation, and even if she refuses to testify at trial, the Crown may still be able to obtain a conviction, relying on other evidence, including M.A.’s statement to the police that night. I recognize that the statement recorded on the officer’s body camera is not under oath and that M.A. had not been warned about the consequences of making a false statement. Nevertheless, there is a strong argument to be made that the statement is both compelling and credible. The statement may be admissible at trial as a prior inconsistent statement by M.A., or it could be admitted under the principled exception to the hearsay rule after meeting the requirements of reliability and necessity, as established in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47.
[27] M.A. gave a detailed statement to the police officers who attended in response to the 911 call. Those statements were video and audio recorded because the officer who was asking her what happened was wearing a body camera. Both the sound and audio are excellent. M.A. was clearly upset, and was weeping at times, which is fully consistent with what she described had occurred. She demonstrated to the officer how her husband had grabbed her around the neck and choked her. She went with the officer into her bedroom and acted out portions of the assault. Her story was powerful and compelling. Although upset, she was not hysterical. She did not appear to be exaggerating. For example, she did not claim to have lost consciousness for even a moment, although she said she felt she was close to passing out. Likewise, when asked about injuries, she indicated only some soreness at the front of her throat.
[28] It is apparent from the medical records at Sunnybrook Hospital (where M.A. was taken by the police), that M.A. gave staff there a version of what happened to her which is fully consistent with the version she gave the police immediately after the incident.
[29] Further, there is a corroborative arms-length eyewitness. The upstairs neighbour told the police that she heard shouting coming from M.A.’s apartment between 10 and 10:10 p.m. (the same time that M.A. told the police the fight had started). The neighbour further said that she heard M.A. screaming, “Call 911. Help. Help. He’s trying to kill me.” The neighbour knocked on the door of the unit and spoke to the accused. At the request of M.A. she called 911, but the accused left before the police arrived. The neighbour reported seeing visible redness in the area of M.A.’s throat. This is powerful confirmation of M.A.’s statement to the police about what Mr. Bani-Naeim had done.
[30] I would contrast that to the clear weaknesses in the new version of these events now being put forward by the complainant. The first area of concern is the timing of when M.A. first advanced this new version. As I described above, Mr. Bani-Naeim filed an application seeking a consent variation of the terms of his bail on February 5, 2023. Mr. Bani-Naeim began his statement of reasons by saying this had been a “huge misunderstanding,” went on to say his wife was depressed since her recent miscarriage, blamed the disagreement on fighting between their respective families, and stated his confidence that his wife would acknowledge that there was “no threat or danger” to anyone if they had contact.
[31] Mr. Bani-Naeim’s confidence that M.A. would say this was well-placed. The very next day, M.A. sent emails to the Victim Witness Assistance Program and the police officer in charge of the case stating that she wanted to withdraw the charges. She referred to the accusations she had made as being a “big misunderstanding,” attributed her statement to the police as being caused by her depression after her recent miscarriage, and said the source of the dispute was the fighting between their respective families. As predicted by her husband the day before, she said that there was no “pressure, threat or danger.”
[32] In my view, the timing of these two communications and the similarity in their content cannot be mere coincidence, but rather points towards a coordination of efforts, notwithstanding the bail term that Mr. Bani-Naeim was to have no contact with M.A. directly or indirectly. This causes me to have serious doubt as to M.A.’s change of heart being self-generated, as opposed to being directed by the accused.
[33] There are also elements of her affidavit and evidence at trial that simply do not ring true. For example, in her affidavit she states that the neighbour must have heard her screaming at her husband. That is not what the neighbour heard. The neighbour heard her screaming for help, asking someone to call 911, and saying her husband was trying to kill her. Her explanation of “exaggerating” the circumstances of her husband accidentally touching her neck when she pushed him is also not credible. What she described to the police, and indeed demonstrated to them, and what she told the hospital staff when she was examined later, was being manually strangled almost to the point of passing out. That is considerably more than an accidental touch and cannot be attributed to exaggeration. I note as well that the neighbour saw redness in the area of her throat, precisely where she said her husband had assaulted her.
[34] In my view, the story M.A. told the police is not adequately explained by being depressed, or in a poor state of mental health as a result of her miscarriage, nor can it be a mere exaggeration of an accidental touch. One of these two versions is untrue. It may be that M.A. had a motive to lie about her husband being abusive so that she could get custody of their child, as suggested by the defence. However, the statement M.A. gave to the police that night was made spontaneously, with little or no opportunity to invent a tale, and came after a violent dispute that was overheard by neighbours. The second version was given after Mr. Bani-Naeim had direct contact with M.A., in blatant violation of the bail order.
[35] M.A. is in a position of extreme vulnerability. There is a clear power imbalance between her and her husband. He is 24 years older than her. He is a Canadian citizen; she has only been in this country for a little over two years. He has shown extreme controlling behaviour, taking away her phone and passport when he left that night. She reported to the hospital staff that he also controlled her Facebook account, monitored her phone, and listened to her phone calls. She has no family in Canada and told the hospital staff, as well as the police on scene, that she has no close friends and nowhere to go.
[36] In these circumstances, I find that the strength (or weakness) of the Crown’s case is not a factor supporting the variation sought.
Secondary Grounds: Likelihood to Reoffend
[37] At the initial bail hearing, Borenstein J. was sufficiently concerned about the safety of the complainant and her child to impose a condition that the accused have no contact with them. At the second bail hearing, before Kirke J.P., those concerns about the substantial likelihood of the accused reoffending in a violent manner remained. In addition, Mr. Bani-Naeim had demonstrated his utter disregard for orders of the court by blatantly meeting with the complainant at a hotel, just days after being refused a bail variation for that purpose. The real issue before the Justice of the Peace was not whether there should be a non-contact condition, but rather whether Mr. Bani-Naeim should be released at all. I agree entirely with that focus.
[38] The recanting complainant is a well-known phenomenon in cases of domestic assault. On the night in question, M.A. seemed to be relieved when the police attended at her apartment and fearful of her husband returning. It would appear from her recent affidavit and testimony that she has changed her mind about that. It is perhaps not surprising that M.A. wishes none of this had ever happened and wants to go back to her previous life with her husband and child. However, that does not make the allegations she made untrue. Neither does it reduce the risk that if Mr. Bani-Naeim moves back into the home, there is a substantial likelihood that he will harm her.
[39] Many judges have written about the dichotomy of respecting individual autonomy and the right of individuals to associate with whomever they choose on the one hand and protecting the safety of vulnerable people on the other. Non-contact and non-communication orders interfere greatly in the family dynamic, particularly when children are involved. However, so too does domestic violence. In R. v. S.S.M., 2015 ONSC 3840, Pomerance J. provides an insightful analysis of this conundrum. [5] This was a sentencing decision after the accused was convicted of a serious assault on his domestic partner and the issue was whether the three-year probation order should include a non-contact condition as requested by the Crown over the objection of the complainant. Although arising in the sentencing context, it is nonetheless relevant to the issue now before me. Pomerance J. referred to a number of decisions in which a non-contact order was made when the complainant wanted to maintain contact, including R. v. B. (M.A.), 2006 ABQB 578, an Alberta Court of Queen’s Bench decision dealing with the very issue before me in which Lee J. held:
I do appreciate that the complainant has come forward to support the accused’s request to lift the no contact provision. The complainant obviously has no fear of the accused, but the court is concerned about the real possibility of further spousal violence, particularly given the accused’s drinking problems and related record.
While by default this complainant will likely have contact with this accused irrespective of what the court says or does, it is still my duty in these circumstances to refuse to lift the no contact provision given the danger that the accused poses to his wife. [6]
[40] Pomerance J. then went on to note that domestic violence is not merely a private matter, but rather one that has a broad public impact, which informs the exercise of a judge’s discretion in cases of this nature. She held:
At first blush, this approach might seem a paternalistic solution to the problem of domestic violence. But it is important to remember the public nature of the criminal law and its role in maintaining societal norms of conduct. A sentence is not a private remedy any more than a criminal offence is a private wrong. A crime – even a crime against an individual victim – offends the broader public interest. Crime and punishment have implications that extend beyond the individuals appearing in court: see Michelle Madden Dempsey, “Public Wrongs and the Criminal Law’s Business: When Victims Won’t Share” in Rowan Cruft, Matthew H. Kramer & Mark R. Reiff, eds., Crime, Punishment, and Responsibility: the Jurisprudence of Antony Duff (Oxford University Press, 2011).
This was not always the case. For far too long, domestic violence was erroneously seen to be a private or family matter, leaving victims with little or no protection. We now accept that the public has a compelling interest in seeing that offenders are fairly prosecuted and, where convicted, properly sentenced. The wishes of a victim are relevant and must be considered, but can never be determinative. Whether a plea for leniency or a cry for retribution, a victim’s view may conflict with what is in the public interest. Where that occurs, it is the public interest that must prevail.
Moreover, the dynamic of domestic violence is complex. The victim and offender share an emotional bond, have a common history and may be planning a united future. The relationship may involve elements of affection and trust in addition to manipulation and control. Victims may experience fear, love, optimism, despair, denial and/or resignation. They may be influenced by romantic entanglement, fear of retaliation, economic need, and/or the symptoms that comprise battered woman’s syndrome. Whatever the cause, recantation is a notorious problem in these cases, with victims often reluctant to cooperate with the prosecution. The Crown anticipated that there might be a recantation in this case. Victims often return to, or remain with, a violent partner despite the risk of future harm. In extreme cases, this can lead to tragic, even fatal, outcomes: see Domestic Violence Death Review Committee 2012 Annual Report, Office of the Chief Coroner for Ontario, February 2014. [7]
[Emphasis added]
[41] Similar observations were made by my colleagues Nishikawa J. in R. v. Weil, unreported decision of Justice Nishikawa delivered January 28, 2021, ONSC Court File No. CR-21-35-00BR (Toronto) and Harris J. in R. v. Khinda, 2020 ONSC 7275, at paras. 14, 16, 22-23 and 25. [8] both of which involved applications to vary bail conditions restricting contact in which the complainant supported the accused’s application to vary the terms.
[42] No two cases are ever exactly the same, and there is little utility in drawing parallels or noting differences among the various cases dealing with these issues. What is important is the overarching general principles.
[43] In this case, I am highly suspicious as to the genuine nature of M.A.’s recantation. There are good reasons to believe that the accused himself is the instigator, notwithstanding M.A.’s protestations to the contrary. As I have already stated, the Crown has a viable case against the accused, with or without M.A.’s cooperation.
[44] I recognize that these conditions disrupt Mr. Bani-Naeim’s relationship with his family. However, completely removing these conditions is not the only way for Mr. Bani-Naeim to have a relationship with his child. The alleged assault occurred on January 8, 2023 and Mr. Bani-Naeim was arrested on January 9. In less than a month, he applied to vary the bail order to remove the non-contact provision. When the Crown denied that request, he simply contacted his wife anyway and spent time with her in a hotel in complete disregard of the court order. He was arrested and charged and again released on bail on February 15. In his affidavit in support of this application, he talks about his devastation about not being able to see his child, stating that he cannot sleep, cannot eat, cannot work, and misses his child every day. He professes to be concerned that this absence will do permanent damage to their relationship. The non-contact and non-communication conditions in the February 15 bail order contain an exception if the contact is pursuant to a family court order for access to his child. In less than a month, Mr. Bani-Naeim was in the process of filing his material to remove that condition. This matter was argued before me on March 10, 2023. In all the time since he was first released on bail there is no indication that Mr. Bani-Naeim did anything to initiate lawful contact with his child. In particular, despite a condition that contains an exception for arranging access visits with his child, and despite his professed devastation at missing his child every day, he appears to have done nothing whatsoever to obtain such access through the means provided for in the order.
[45] In all the circumstances, I find that the risk of future violence outweighs any concerns about interfering with this family unit. Although Mr. Bani-Naeim technically does not have a criminal record, he is no stranger to domestic violence. Indeed, he has resorted to such violence on at least three separate occasions in three separate domestic relationships prior to this one.
[46] Mr. Bani-Naeim was convicted of the first set of charges in 2007 and sentenced to 30 days in jail, varied to time served, plus 2 years’ probation. Although the person he assaulted was not his domestic partner, the incident arose in circumstances involving an argument between Mr. Bani-Naeim and his girlfriend, who had been drinking at a bar with her cousin and two friends. Mr. Bani-Naeim had been expecting to meet up with his girlfriend that night at her apartment. When she had not arrived by midnight he went to the bar to find her. She was intoxicated and Mr. Bani-Naeim had an argument with her companions, blaming them for getting her drunk. He attempted to take his girlfriend home, but she objected and her friends told him to leave. Instead of going home, he went back to his girlfriend’s apartment and waited for her inside. His girlfriend told him to leave, but he refused, whereupon she went downstairs and informed her friends about the situation. One of those friends went upstairs and demanded that Mr. Bani-Naeim leave. This led to a physical altercation in which Mr. Bani-Naeim brandished a knife, threatened the victim, and slashed the victim’s lip. This is the assault that resulted in a criminal conviction, even though subsequently pardoned. The assault occurred in 2007, which is considerably in the past. However, it demonstrates an extreme degree of controlling behaviour and an attitude of entitlement.
[47] The second domestic assault occurred approximately a year-and-a-half later in June 2008. The complainant had been married to Mr. Bani-Naeim for six years, but they had split up, and she had her own apartment. Without her consent, he started moving his things into her apartment and physically assaulted her, in front of her children, when she told him she did not want him to move in. She asked him to return her keys, which he refused to do. This incident did not result in a criminal record because Mr. Bani-Naeim was permitted to enter into a peace bond. However, the underlying facts again demonstrate his extreme possessiveness and controlling behaviour, deteriorating to physical assault, in front of children, when he was rejected by the complainant.
[48] The third incident was in 2015. Again, Mr. Bani-Naeim assaulted his domestic partner in the course of an argument. They had been together for seven years and had an eight-month-old child. He slapped her in the face, while she was holding their child. It would appear from the occurrence that this relationship would have started in approximately 2008, just after the assault charge involving the former domestic partner.
[49] Mr. Bani-Naeim was vague in his affidavit as to when his relationship with M.A. began, except to say that it was more than five years ago, and that they have a five-year-old child together. M.A. did not amplify on this in her affidavit or testimony, but she told the police officers on scene that they had started living together as common-law partners in Turkey in 2017 and their child was born there in 2018. It would appear that this relationship also started not long after the previous relationship ended in spousal assault. M.A. told the officers on scene that Mr. Bani-Naeim had assaulted her on two prior occasions in 2021, each time slapping in her in the face in the presence of their child. She also told the officers that Mr. Bani-Naeim had kicked and slapped her when they were in Turkey a few weeks earlier. She also told hospital staff that there had been prior incidents of assault. M.A. reported to the police and hospital staff numerous examples of Mr. Bani-Naeim’s controlling behaviour throughout their relationship, including taking her cell phone, credit cards, and passports with him when he left that night.
[50] In short, simply describing Mr. Bani-Naeim as a person who has no criminal record does not address his prior and repeated history of violence and controlling behaviour, with multiple different domestic partners unknown to each other, over a period of many years. There is a very substantial risk that if Mr. Bani-Naeim is permitted to simply return home and have unsupervised and unlimited private control over M.A., he will assault her again. It is by no means clear that Mr. Bani-Naeim will abide by any order or condition the court imposes. He has already demonstrated his blatant disregard for such conditions in the past. However, I cannot countenance simply removing that condition. In my view, it is not safe to do so. Such a condition is the least restrictive term that can possibly be imposed while at the same time protecting the public, which includes M.A. and her child.
[51] Accordingly, the application is dismissed.
Molloy J. Released: April 17, 2023