Court File and Parties

CITATION: R. v. Islam, 2024 ONSC 3643 COURT FILE NO.: CR 22-30000678 DATE: 2024-06-27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – K.M. THAUHIDUL ISLAM

Counsel: M. Petrie, counsel for the Crown A. Bryant, counsel for Mr. Islam

HEARD: May 13, 14 and 15, 2024

Reasons for Judgment

H. McArthur J.:

Introduction

[1] K.M. Thauhidul Islam is facing charges of assault (count 1), utter threats to cause death (count 2), assault with a weapon (count 3), aggravated assault (count 4) and attempted murder (count 5) in relation to his wife, Farzana Iqbal.

[2] The assault charge relates to allegations that sometime in January 2020, Mr. Islam pushed his wife, causing her to hit her hand against a door frame. This resulted in a small injury to her hand. Mr. Islam denies pushing his wife and says instead that when his wife prevented him from leaving the home, he forcefully pulled her hand from a doorknob.

[3] The threatening charge relates to an allegation that in June 2021 he threatened to kill his wife. Ms. Iqbal said that she and Mr. Islam were arguing when he said something along the lines of, “Do you want to see what I am capable of?” He went into the kitchen and Ms. Iqbal said she heard Mr. Islam opening a drawer and the sound of something metal. Her young daughter then ran up to Mr. Islam, and he stopped whatever he was doing. Ms. Iqbal told him that they were in Canada and if he killed her, he would spend the rest of his life in jail. She says that Mr. Islam said in response, “I will kill you. I will kill the kids. I will kill myself.” He said this in Bengali. He then said in English, “End of Story.”

[4] Mr. Islam admits that he made a threat to cause bodily harm but denies that he threatened to kill Ms. Iqbal. He testified that he used a word that in Bengali can mean either “I will beat you” or “I will kill you”. When he used the word, he meant beat.

[5] Counts 3, 4, and 5 relate to an incident on July 5, 2021, when Mr. Islam took a metal rebar and struck his wife repeatedly. She suffered severe injuries, including an ulnar fracture on her left arm, a fractured right hand, and a Y fracture on her skull that required 27 staples to close. The attack ended when his stepson intervened by grabbing him from behind and pulling him to the ground. Mr. Islam then went into his home, got a knife, and stabbed himself in the stomach. Ms. Iqbal says that as he assaulted her, he said something along the lines of, “Today I will finish you. Today I will end you. Today I will kill you.”

[6] Mr. Islam admits that he hit his wife with the rebar and that he is guilty of assault with a weapon and aggravated assault. He said that he went outside to get gardening supplies, as he was angry and wanted to calm down. He said that on the way to get the gardening tools, he saw the rebar and suddenly recalled the times his wife had belittled him. He then became angrier and took the rebar to hit his wife. He denies, however, that he intended to kill her. He also denies that he said that he would kill her, and instead testified that he told her something along the lines of, “How can someone survive like this?” or “How can someone live like this?”

[7] The ultimate question in this case is whether the Crown has proven the disputed charges against Mr. Islam beyond a reasonable doubt. With respect to the assault and utter threat to kill counts, the issue is whether the events occurred. With respect to the attempted murder charge, the key issue is whether the Crown has proven beyond a reasonable doubt that Mr. Islam had the specific intent to kill. The reliability and credibility of the testimony of the witnesses is central to the analysis in this case.

[8] It is imperative to keep in mind that a criminal trial is not a credibility contest in which I pick the version of events I prefer. Nor is it a matter of which account I think is more likely. At all times, it is the Crown’s job to establish Mr. Islam’s guilt beyond a reasonable doubt. Again, my task is not to choose between the two competing versions of events: R. v. S. (J.H.), 2008 SCC 30, at para. 9. If after a careful consideration of all the evidence, I am unsure if Mr. Islam committed the disputed offences, then I must find him not guilty.

[9] I do not intend to set out the evidence in any more detail at this point but will refer to it as necessary in my analysis, to which I now turn.

Analysis

[10] The starting point of my analysis is that Mr. Islam is presumed to be innocent. As in all criminal cases, the onus rests entirely on the Crown to prove the charges beyond a reasonable doubt.

[11] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence. Proof beyond a reasonable doubt is a very high legal standard. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. It is not enough for me to believe that Mr. Islam is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt.

[12] Further, Mr. Islam testified. While he admits guilt on the assault with a weapon and aggravated assault charges, he denies his guilt on the other counts. He says he did not assault his wife, and that he only removed her hand from the doorknob when she was stopping him from leaving the home. On the utter threat charge, while he agrees that he threatened to cause her bodily harm, he says he did not threaten to kill her as particularized in the indictment. On the attempted murder charge, while he agrees he hit his wife repeatedly with a metal rebar, he is adamant that he did not intend to kill her. The law is clear that if I believe his evidence, then I must acquit. Moreover, even if I do not believe Mr. Islam’s evidence, I must consider whether I am left with a reasonable doubt by his evidence. If so, then I must acquit. Finally, even if I am not left with a reasonable doubt by Mr. Islam’s evidence, I must ask myself whether based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt. If not, then I must acquit.

[13] Here, the Crown relies on circumstantial evidence to establish that Mr. Islam had the specific intent to kill. Where the evidence in relation to an offence or an essential element of an offence is circumstantial, the Crown must prove that the defendant’s guilt is the only reasonable inference available: R. v. Villaroman, 2016 SCC 33. The consideration of circumstantial evidence requires drawing reasonable inferences based on logic, experience, and common sense. An inference inconsistent with guilt must be reasonable, not simply possible. The Crown is not required to negative every possible conceivable inference.

[14] I turn now to my assessment of the individual counts Mr. Islam faces.

Count 1: Has the Crown established beyond a reasonable doubt that Mr. Islam assaulted Ms. Iqbal in January 2020?

[15] Ms. Iqbal testified that her husband pushed her, causing her to strike her hand on the doorframe. She showed a picture of her hand that shows a laceration on her knuckle. Her evidence with respect to this count was clear and coherent. Her account is corroborated by the photograph she took.

[16] Mr. Islam’s account of the event does not account for the injury on Ms. Iqbal’s hand. Simply removing her hand from the doorknob would not have caused the injury. Given the photograph, I accept Ms. Iqbal’s evidence that her husband pushed her, causing her to fall and hit her hand.

[17] I note as well that even if I accepted Mr. Islam’s evidence, in my view the charge of assault would be made out in any event. He testified that he was angry and forcefully removed her hand from the doorknob. He was unable to say whether in so doing he caused her an injury or not. The action he testified he took was not de minimis. On his own evidence, he assaulted Ms. Iqbal.

[18] As a result, I find Mr. Islam guilty of assault (count 1).

Count 2: Has the Crown established beyond a reasonable doubt that Mr. Islam threatened to kill Ms. Iqbal in June 2021?

[19] Mr. Islam admits that he threatened to cause bodily harm to Ms. Iqbal. Count 2, however, is particularized as threatening to kill. Only if I am satisfied beyond a reasonable doubt that Mr. Islam threatened to kill his wife is a finding of guilty warranted. As I noted above, the reliability and credibility of the witnesses is central to the analysis.

[20] Overall, I thought that Ms. Iqbal came across well. She testified clearly and coherently. Her account of events was not undermined in any way in cross-examination. Her evidence was internally consistent and unshaken.

[21] In contrast, Mr. Islam’s evidence evolved and changed during his testimony. In examination-in-chief, he said that he told his wife, “Do not make me angry. Do not bother me. If I get angry, I can do anything.” He did not admit to making any specific threat.

[22] In cross-examination, however, he testified that he told his wife, “I cannot control myself when I get angry, and I might beat you.” The fact that he neglected to say anything about threatening to beat Ms. Iqbal when he provided his account in chief is concerning.

[23] Mr. Islam testified in Bengali, with the assistance of the interpreter. He explained during cross-examination that the Bengali word he used could be interpreted as either beat or kill. He repeated several times that while the word he used can have a dual meaning, he only meant beat. However, later in cross-examination, the Crown referred to another Bengali word, which means only beat. Mr. Islam then said that was the word he used, not the word that has a dual meaning. He then offered that he what meant was that he was going to beat his wife so that her “bones and muscles get separated.”

[24] I was troubled by the evolution in Mr. Islam’s evidence. At the end of the day, I do not believe him, and his evidence does not leave me with a reasonable doubt.

[25] I do not accept that he used the word that can have a dual meaning. Further, even if he did initially use that word, I accept Ms. Iqbal’s evidence that he went on to say that he would kill her, the children, and himself. It would make no sense for Mr. Islam to tell her that he was going to beat himself. Rather, the sequence of the words he uttered to Ms. Iqbal convince me beyond a reasonable doubt that he uttered a threat to kill her.

[26] As a result, I find Mr. Islam guilty of count 2.

[27] I turn now to the most contentious issue. Has the Crown established beyond a reasonable doubt that Mr. Islam is guilty of attempted murder?

Count 5: Has the Crown established beyond a reasonable doubt that Mr. Islam is guilty of attempted murder?

[28] There is no dispute that Mr. Islam took a heavy metal rebar and struck his wife repeatedly about the body and head. There is no dispute that she suffered serious injury, including fractures to her left arm, right hand, and skull. There is also no dispute that the attack only ended when his stepson grabbed him from behind and wrestled him to the ground.

[29] The key issue is what Mr. Islam intended to do when he struck his wife. The mens rea for attempted murder is a specific intent to kill: R. v. Ancio, [1984] 1 S.C.R. 225, at pp. 250-51; and R. v. Cunningham, 2023 ONCA 36, at para. 36. This corresponds with the direct intent for murder in s. 229(b) – “meaning to cause death to a human being.” The secondary intent in s. 229(a)(ii)(b) – “meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not” – is not an available pathway to a conviction for attempted murder: R. v. Boone, 2019 ONCA 652, at para. 51; R. v. Tyrell, 2021 ONCA 15, at para. 14; and R. v. Weng, 2022 BCCA 332, at para. 82. Nothing but a specific intent to kill will suffice to ground a finding of guilt for attempted murder.

[30] The Crown argues that there is overwhelming circumstantial evidence to support a finding beyond a reasonable doubt that Mr. Islam intended to kill his wife. Further, she asserts that there is direct evidence of his intent to kill, as Ms. Iqbal testified that as Mr. Islam struck her, he said something along the lines of, “Today I will finish you. Today I will end you. Today I will kill you.”

[31] Defence counsel counters that Mr. Islam denies that he made that threat to his wife and instead said something along the lines of, “How can someone survive like this.” Further, Mr. Islam testified repeatedly that he did not intend to kill Ms. Iqbal. Defence counsel argues that I should accept Mr. Islam’s evidence. While he asserts that it may be open to find that Mr. Islam intended to inflict grievous bodily injury that he knew was likely to cause his wife’s death, counsel stresses that such a finding is insufficient to ground a finding of guilt for attempted murder.

[32] The credibility and reliability of both Mr. Islam and Ms. Iqbal is important in the analysis on this count. I will deal first with Ms. Iqbal. Overall, I thought that she came across very well. She clearly suffered a deeply traumatic experience when Mr. Islam attacked her with the metal rebar in front of her young children. She suffered significant injuries. Despite the intensity of the attack she endured, she recounted events in a clear, coherent, and convincing manner. Her evidence was unshaken and corroborated by the evidence of her son and Connor Jenkins, a neighbour who witnessed part of the attack.

[33] Ms. Iqbal was obviously emotional in the stand at times as she explained the attack and its aftermath. There were times when she seemed to be struggling to maintain her composure. I keep in mind, however, that reliance on demeanour must be approached cautiously: R. v. S. (N.), 2012 SCC 72, at paras. 18, 26; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 66; R. v. Rhayel, 2015 ONCA 377, at para. 85; R. v. Hemsworth, 2016 ONCA 85, at para. 45; R. v. Ahmaddy, 2018 ONCA 496, at para. 6.; and R. v. A. (A.), 2015 ONCA 558, at paras. 131-2.

[34] Moreover, there is no dispute that the attack was vicious and horrific, whatever Mr. Islam’s intent. Ms. Iqbal’s emotional presentation while testifying is consistent both with an attack where the intent was to inflict grievous bodily harm where death was likely to ensue, and an attack intended to cause death.

[35] In any event, the law is clear that rather than focusing on demeanour, the trier-of-fact should look for any inconsistencies in the evidence, or any testimony that seems implausible. And here, Ms. Iqbal was not inconsistent on any material point. Her evidence was internally and externally consistent. Her account was corroborated by her son, who provided a s. 715 statement hours after the incident. Her account was also corroborated by the evidence of Mr. Jenkins, who witnessed Mr. Islam striking Ms. Iqbal repeatedly with the metal rebar as she curled up in the fetal position on the ground.

[36] In contrast, Mr. Islam’s account was marred by inconsistencies, contradicted by the independent evidence, and implausible.

[37] For example, Mr. Islam said that he became angry with his wife when she threatened to break the computer and threw the mouse. But in examination-in-chief, he failed to say anything about his wife threatening to break the computer. It was only in cross-examination that he provided this account. His evidence about his reaction to the alleged threat to the computer was also inconsistent. At first, he said he did not think anything when she made this threat. Then he said he became upset, but not angry. Later he said he became angry when she made this threat. His evolving evidence undermines his credibility.

[38] Mr. Islam said that during the argument with his wife on July 5, while she spoke to him in a belittling way, he did not respond in kind. Given how angry he said he was with his wife, it seems somewhat unlikely that he did not also use insulting language. More importantly, his evidence is contradicted by his stepson, who said that both Mr. Islam and Ms. Iqbal were using derogatory language towards each other.

[39] Mr. Islam’s position that he went outside to gather tools to garden also seems illogical. Ultimately, he agreed that he was angry with his wife at this point. He said he had gone to the bedroom to calm down. His wife had gone outside to get the children set up in the car. They were apart. She was no longer in his space bothering him. Given that, it makes no sense that he would suddenly decide to go and garden. Even if he wanted to garden to calm himself, why would he choose to go outside at a point when his wife was still there? Why not wait a few minutes until she was gone? His action of going outside seems calculated to continue the altercation with his wife.

[40] His evidence about the pieces of wood that were by the car also seems odd. The Crown showed him photos of several pieces of wood on the ground by the car. The implicit suggestion in the Crown’s line of questioning was that he could have easily picked up a piece of wood to hit his wife, which would have been less likely to seriously injure her. Mr. Islam at first said that you could not hit anyone with the wood. But the pictures clearly show that the wood was sized such that a piece could have been easily picked up and wielded as a weapon. Mr. Islam then said that he did not even notice the wood. But the photos show that Mr. Islam would have had to essentially walk over the wood to get to where the rebar had been placed.

[41] The inference that he passed over the wood because he wanted to wield a more lethal weapon seems supported by Mr. Islam’s evidence about the rebar that he chose. He testified that there were three rebars to choose from, and he chose the biggest one.

[42] Mr. Islam also testified that he did not know that hitting someone in the head with the rebar could kill them. That is difficult to accept. The rebar was filed as an exhibit. It is large. It is heavy. It is abundantly obvious that hitting someone in the head with this object could kill them. Mr. Islam’s denial that he understood that potential defies belief.

[43] Mr. Islam said his wife did not raise her arms to protect her head when he started hitting her. He said her arms were hanging down by her side as he struck them. But when he demonstrated how he hit his wife with the rebar, he raised his arms over his head. That is inconsistent with how he would have had to swing the rebar to strike her arms if they were by her side. It also seems unlikely that Ms. Iqbal would not instinctively raise her arms to protect her head when Mr. Islam began to strike her.

[44] Mr. Islam also said that he only hit his wife on the head once she was on the ground. Ms. Iqbal said that he hit her on the head when she was standing, after he had broken her arm and hand and she could no longer protect her head. She said that the blows to her head were what caused her to fall to the ground. The fact that she fell to the ground is far more consistent with her account of being hit in the head while standing than Mr. Islam’s account that he only hit her head once she was on the ground.

[45] Mr. Islam further testified that once his wife was on the ground, he only hit her once. That is inconsistent with Mr. Jenkins’ evidence. By the time Mr. Jenkins observed the attack, Ms. Iqbal was already on the ground, curled up in the fetal position. Mr. Jenkins saw Mr. Islam strike her several times, wielding the rebar above his head and bringing it forcefully down with both hands. As Mr. Jenkins described it, Mr. Islam was “wailing” on her.

[46] Mr. Islam also said that he only hit his wife five to six times. Again, that seems inconsistent with Mr. Jenkins’ evidence of seeing Mr. Islam continuing to strike her once she was on the ground. It also seems inconsistent with the medical evidence. In addition to broken bones and a Y fracture to her skull, Ms. Iqbal suffered soft tissue injuries. The medical reports suggest that she was hit more than the five to six times admitted to by Mr. Islam.

[47] Mr. Islam’s account of what he said to his wife during the attack was also inconsistent. In chief, he failed to testify about anything he said to his wife during the attack. In cross-examination, his evidence changed, and he testified that he said something along the lines of, “How can someone survive like this.” What, if anything, he said to his wife was clearly a central and important fact. His failure to initially recount saying words to his wife during the attack leaves me with concerns about the credibility of his evidence.

[48] I had other issues with Mr. Islam’s evidence but do not see the utility in outlining my concerns any further. Suffice to say, based on the issues I have outlined, I find that I do not believe him, nor does his evidence leave me with a reasonable doubt. Instead, I accept Ms. Iqbal’s evidence about the nature of the attack and what Mr. Islam said to her during the attack.

[49] Looking at the evidence that I do accept, in my view there are several factors that circumstantially support the inference that Mr. Iqbal intended to kill his wife. The nature of the weapon selected. He chose a strong, reinforced metal bar. As he said, there were three to choose from, and he chose the biggest one. The location of the blows. The head is a vital and vulnerable part of the body. Based on the injuries and the evidence of Ms. Iqbal and Mr. Jenkins, I am sure that several of the blows were targeted at her head. The severity of the attack. This could easily have been a fatal attack. The attack only ended when Mr. Islam was grabbed from behind and wrestled to the ground. [^1]

[50] Further and of import, the Crown does not only rely on circumstantial evidence. Rather, she also relies on the words Mr. Islam uttered as direct evidence. I reject Mr. Islam’s account of what he said and accept Ms. Iqbal’s unshaken evidence. That is, when Mr. Islam struck his wife repeatedly with the heavy metal rebar, he said, numerous times, something along the lines of, “Today I will finish you. Today I will end you. Today I will kill you.”

[51] Looking at the totality of the circumstantial and direct evidence, I find that the only reasonable inference is that Mr. Islam intended to kill his wife on July 5, 2021. I am sure that Mr. Islam intended to kill Ms. Iqbal when he struck her over and over, on her body and head, with the metal rebar.

[52] As a result, I find him guilty of attempted murder.

Conclusion

[53] I find Mr. Islam guilty on all counts.

Justice Heather McArthur Released: June 27, 2024

Footnotes

[^1]: The Crown also urges me to rely on my finding of guilt with respect to the threat to kill on June 2021 in assessing Mr. Islam’s intent on July 5, 2021 when he struck his wife with the rebar. The Crown did not file a similar fact application on this issue and should have: R. v. Tsigirlash, 2019 ONCA 650. However, she made the application during her final submissions, and I allowed her to advance the argument that I should use the evidence of the earlier threat in assessing Mr. Islam’s intention on July 5. However, ultimately I decline to use cross-count reasoning. That is because even without considering the evidence of the threat from earlier that summer, the evidence overwhelmingly establishes that Mr. Islam intended to kill his wife when he struck her repeatedly with the metal rebar.