r v. MIKE ALIPOOR, 2015 QCCQ 539

R. c. Alipoor 2015 QCCQ 539 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF TERREBONNE Criminal and Penal Division No. 700-01-111966-126 DATE: January 22, 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE BRUNO LECLERC J.C.Q. ______________________________________________________________________ Her Majesty The Queen Prosecutor v. MIKE ALIPOOR (1965-[...]) Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Alipoor is charged with having sexually assaulted N. T.. [ 2 ] The Court is faced with contradictory versions and it must determine whether the prosecution has discharged its burden of proving the accused’s guilt beyond a reasonable doubt. CONTEXT [ 3 ] Around July 2008, Ms. T., who had been in Canada for some time, met with Rimma Brutman, to discuss business opportunities that could be offered to her. [ 4 ] Ms. Brutman introduced the accused to Ms. T. at that time. [ 5 ] Ms. Brutman and Mr. Alipoor are business partners in the real estate field. [ 6 ] When a business opportunity arose, Ms. Brutman contacted Ms.

T., and a meeting took place between the three individuals. [ 7 ] Ms. Brutman and Mr. Alipoor purchased a bar/hotel in Amherst, in the Mont-Tremblant area. The place was in bad condition

and needed renovation. [ 8 ] The two associates had their place of business in Montréal and hence, they needed someone they could trust who could live in Amherst, at least on certain days, and take care of the place. They offered Ms. T. the opportunity to rent the place and look after the bar and the few rooms for rent on the floors above the bar. [ 9 ] Ms. T. accepted the offer. The two associates told her that they would not leave her on her own and would help her. [ 10 ] They had to do the necessary work or to have it done to make the place acceptable. [ 11 ] Ms.

T. started to work on August 1, 2008 and lived at the hotel, except on Mondays and Tuesdays, her days off. [ 12 ] Over time, Mr. Alipoor went to the business more often to help Ms. T.. Ms. Brutman went there on weekends, since it was the busiest time at the bar. She noted that Mr. Alipoor would go to Amherst during the week. [ 13 ] According to Ms. T., Mr. Alipoor talked often with her about things that were increasingly personal, a fact that is not denied by the evidence filed by the defence. [ 14 ] Ms. T. even felt that, when someone came to talk to her, Mr.

Alipoor would intervene and send that person away one way or another, as if he wanted to be the only one to talk with her. [ 15 ] The victim said the events at the centre of this case occurred on October 25, 2008, the Saturday before Halloween. [ 16 ] On that date, she was waiting for Ms. Brutman, who was to bring and install the decorations necessary for the festivities of the following week. [ 17 ] According to her, Mr. Alipoor arrived around 4 p.m. on Saturday, October 25. [ 18 ] Ms. T. mentioned that, on that day, she was not feeling well and had a fever. She asked Mr.

Alipoor to replace her at the bar so that she could take medication and lie down in her bedroom, located on the second floor. [ 19 ] Mr. Alipoor agreed to take her place so that she could rest. [ 20 ] Ms. T. went to her bedroom upstairs and locked the door. She took medication and lay down on her bed. [ 21 ] A few minutes later, she heard someone unlocking her bedroom door and coming in. She was awake, as she did not have time to fall asleep. [ 22 ] According to Ms. T.’s testimony, Mr. Alipoor, as the owner of the hotel, had the key to the bedroom. A fact that the accused denied. [ 23 ] She saw Mr.

Alipoor approaching the bed; he put his hand on her forehead and noted that she had a fever. He then placed his hand on Ms. T.’s neck and told her: “You are so hot”.

[ 24 ] He then literally jumped under the covers and slid his hand into Ms. T.’s underwear, touching her genitals. [ 25 ] Ms. T. jumped out of bed and told Mr. Alipoor to leave. [ 26 ] Mr. Alipoor left the room saying: “I do not accept no as an answer”. [ 27 ] The next day, the situation was tense between the two of them. [ 28 ] Ms. Brutman arrived with the decorations and noticed that the victim was not well. She asked her what was wrong, but Ms. T. told her that she simply had a fever. [ 29 ] Mr.

Alipoor, who was supposed to leave the bar in the evening of the Sunday in question, decided to leave in the afternoon instead. [ 30 ] About 30 minutes after Mr. Alipoor left, the telephone in the bar rang. Ms. T. answered, and Mr. Alipoor asked if Ms. Brutman was there. [ 31 ] As Ms. T. did not see her, she told him that she was not there. That was when the accused allegedly said the following: “I hope you’re smart enough to stay quiet after what happened yesterday. You know I can make your life miserable. And you know I do not accept no as an answer.

If you go against me, I’m gonna erase you from the face of the earth. I’ll find a way”. [ 32 ] Ms. T. was shaken and did not respond; she suddenly saw Ms. Brutman, who was holding another telephone handset. [ 33 ] There were in fact two telephones connected to the same line. One of them was at the bar, and the other, on the second floor. Ms. Brutman and Ms. T. both had the impression that they answered the call almost at the same time, but Ms. Brutman did not speak to Mr. Alipoor. However, she heard what he said and confirmed Ms. T.’s testimony. [ 34 ] The victim then told Ms.

Brutman what had happened in her bedroom the day before. She was in tears when she recounted the event. [ 35 ] A few days later, Ms. Brutman went back to the office and decided to confront Mr. Alipoor. She asked him what had happened in Amherst, and the accused told her that she should not believe Ms. T., who was lying. [ 36 ] Ms. Brutman said she had heard the telephone conversation between him and the victim. [ 37 ] Mr. Alipoor went on to give her an explanation, which Ms. Brutman did not believe. [ 38 ] He explained to her that, Saturday evening, he had used or lent to Ms.

T. a massage machine and that the machine pinched the victim’s skin, which made her angry. [ 39 ] No explanation was provided in defence regarding that conversation between Ms. Brutman and the accused. That is evidence of a conversation that neither the existence nor the content of which has been denied or explained, in chief. [ 40 ] Ms. Brutman testified that she then called the victim and who told her the story of the massage machine, which was given to

explain the telephone conversation of Sunday afternoon. [ 41 ] At the same time, the accused was trying to call Ms. T.. Ms. T. set up a conference call for all of them, unbeknownst to the accused, who believed he was on the line only with the victim. [ 42 ] He then told her what he had said to Ms. Brutman to explain what was said on the telephone and what she had heard in Amherst on Sunday afternoon. [ 43 ] He told Ms. T. that it would be better for her to support that version, or else he would carry out his threats. [ 44 ] In defence, Mr.

Alipoor submitted several documents, from which he inferred certain things, including the allegation that he did not go to Amherst on October 25 and therefore could not have committed the acts alleged against him. [ 45 ] Asked to comment on what the victim said regarding the sexual acts he is alleged to have committed, he claimed that it was a complete fabrication.

THE LAW [ 46 ] As the parties’ attorneys pointed out during their arguments, the Court has to deal with an allegation of sexual assault that is the subject of a general denial. [ 47 ] Since this is a case in which credibility is at the centre of the dispute, the Court will apply the criteria laid down by higher courts in such cases. [ 48 ] The Honourable Fish J.A., when he was sitting on the Court of Appeal of Québec, said the following : The main points, where the complainant and the accused have both testified and credibility is an important issue, can be made, for example, in this way:

(1) The defendant in a criminal trial is presumed innocent.

(2) The burden of proof is on the Crown.

(3) This means that the accused does not have to prove his or her innocence. Rather, the Crown must prove that the accused is guilty.

(4) The accused enjoys a right of silence and is not required to testify. When the accused does testify, the burden of proof remains unchanged: the prosecution must still prove that the accused is guilty.

(5) In order to discharge its burden of proof, the prosecution must establish the guilt of the accused beyond a reasonable doubt.

(6) In determining whether this burden has been discharged, the jury must consider all of the evidence.

(7) If the jury, after considering all of the evidence, believes the testimony of the accused, then the accused must be acquitted.

(8) If the jury, after considering all of the evidence, does not believe the testimony of the accused but are left in reasonable doubt by it, the accused must be acquitted.

(9) If the jury, after considering all of the evidence, does not know whom to believe or has a reasonable doubt about whom to believe, they must give the benefit of that doubt to the accused and return a verdict of not guilty.

(10) If, after considering all of the evidence, the jury is not left in doubt by the evidence of the accused, they should ask themselves whether the evidence they do accept satisfies them beyond a reasonable doubt that the accused is guilty. If, and only if, the answer to this question is "yes", should the jury convict the accused. [1]

[ 49 ] Therefore, the Court will analyze the facts in this case on the basis of that memorandum of law, which reiterates, in paragraphs 7 to 10, the teachings of the Supreme Court in R. v. W.(D) . [2] ANALYSIS [ 50 ] As mentioned above, the accused began his testimony by submitting several documents, from which he inferred certain things. [ 51 ] He submitted a credit card statement indicating that payment for his children’s skating lessons was made on the day of the events alleged against him. [3] [ 52 ] Mr.

Alipoor said he made that payment with his credit card in the morning of the events and that, as usual, he spent his lunch hour and part of the afternoon with his children. [ 53 ] The claim drawn from that document does not contribute anything to the dispute since, according to the victim, the alleged events occurred in late afternoon that day, which left ample time for the accused to go to the hotel the victim was operating. [ 54 ] What is troubling in the accused’s testimony is his cross-examination.

At the beginning of his testimony, it was not clear whether there were two credit cards on the same account, i.e. his card and his spouse’s card. [ 55 ] Only after firmly insisting was the Crown prosecutor able to clarify that there were indeed two cards, one in the name of the accused’s spouse and one in the name of Mr. Alipoor. [ 56 ] The card used for the payment made to the skating school was that of the accused’s spouse. [ 57 ] Mr. Alipoor explained that, although there are two cards for the same account, he always has both of them in his possession.

But reason leads us to question the relevance of having two credit cards if the same person has both of them and only one person uses both. [ 58 ] Mr. Alipoor also submitted a statement of account [4] from the alleged victim concerning the expenses of the Villa Mont- Tremblant hotel for the period from October 19 to 25, 2008. With the statement of account, he submitted a cheque issued in the name of Ms. T. as payment for those expenses. [5] [ 59 ] The accused inferred the following from those documents.

If those expenses were incurred until October 25, that is, the day of the alleged commission of the offence, why would Ms. T. have waited until October 28 to hand him the statement of her expenses?

Why would she not have taken advantage of his presence at the hotel in the morning of the 26th to hand him that statement of account and claim the payment of the cheque in question? [ 60 ] He believed that leads to the conclusion that he was not present in Amherst on the day of the events. [ 61 ] Cross-examined on the fact that that document (D-3) could have been prepared after October 26, the accused could but agree that this was a possibility. [ 62 ] The Court believes that it is likely that the document in question was not prepared on Sunday, the day following the events, at a time when the bar still needed to be decorated for Halloween and the festivities of the following week.

[ 63 ] The inference drawn by the accused is obviously not the only logical inference that a reasonable person could draw from that document and the payment made on October 28. [ 64 ] The Court believes that that evidence, which is in the nature of an alibi, if of only little probative value in this case, as the evidence does not show that the “alibi” was announced before the accused’s testimony at the trial. [ 65 ] Exhibit D-5 does not contribute anything to this case either.

The evidence of liquor being purchased from the SAQ on behalf of the Villa Mont-Tremblant hotel does not show who made the purchase. [ 66 ] According to the accused, only the owners or the tenant, Ms. T., could purchase alcohol for the hotel, but the accused was not present at the time of the purchase and was not able to say whether someone other than Ms. T. made the said purchase, taking advantage of a SAQ employee’s leniency, for example. [ 67 ] The accused’s inference from the document that Ms.

T. was at the SAQ at 4:36 p.m. on the day of the events does not withstand scrutiny. [ 68 ] Nor does Exhibit D-6 allow for any inference regarding the telephone conversation between the accused and Ms. T. that Ms. Brutman allegedly overheard. [ 69 ] According to the alleged victim, the telephone rang approximately half an hour after Mr.

Alipoor had left, that is, the time required for him to arrive near Saint-Jovite, where it is possible to use a cell phone. [ 70 ] The Crown prosecutor affirmed that that document (D-6) shows only long-distance calls, not local calls, made from the cell phone, as indicated on the back of the document. [6] He contended that the call between Saint-Jovite and Amherst was a local call and that, accordingly, it did not appear on the statement. [ 71 ] The defence attorney contended that the call, even if it was made within a local area, should appear on the statement, given that it was made from a Montréal number, in area code 514.

It would constitute a long-distance call. [ 72 ] The Court does not know whether the call was within a local area within the meaning of the telephone service provider, and does not know whether the company considers such a call a ROM for the purpose of billing; the evidence is silent in that regard. [ 73 ] One thing is clear, the Court cannot infer anything from that document, in favour of the Crown or the defence, which would raise a reasonable doubt, given the total lack of evidence on a key element of those contentions. [ 74 ] Ultimately, it was only after he had submitted those documents and after his attorney had asked him to comment on Ms.

T.’s testimony that the accused generally denied committing the offence. [ 75 ] So, it was only near the end of his testimony that he denied having committed the offence. In fact, during his examination in chief, he did not deny the telephone conversation reported by the witnesses for the prosecution and made a half an hour after Mr. Alipoor left on Sunday, October 26. [ 76 ] Nor did the accused, during the examination in chief, deny the telephone conversation he had with Ms. T., further to the conversation he had with Ms.

Brutman upon his return to Montréal and further to the fact that she allegedly overheard the conversation mentioned in the preceding paragraph. [ 77 ] It was only during his cross-examination, and at the Crown prosecutor’s suggestion, that Mr. Alipoor grudgingly denied that

those conversations had taken place. [ 78 ] The accused has never denied the conversation he had with Ms. Brutman when she asked him to explain the telephone conversation she overheard between him and Ms. T.. [ 79 ] The accused gave no explanation as to the content of that conversation or the circumstances that allegedly led him to threaten the victim because she was unhappy about pinching her skin with a massage device. That explanation also does not withstand scrutiny.

Someone is not asked to stay quiet when she is unhappy about having her skin pinched with a massage device, and such threats are not made to someone for such a trivial reason. [ 80 ] It was, in fact, very difficult to determine, in the accused’s testimony, what constituted inferences and what was an actual recollection.

In fact, the arguments of the defence attorney provided an example of that when he argued that the accused inferred from his credit card statement that he was at his children’s skating lessons on the morning of October 25. [ 81 ] Since the accused chose to testify, the Court must assess the defence submitted, not to determine whether the accused has discharged any burden―the accused has none and at no time was the initial burden of the Crown transferred to him―but instead to determine if the defence is believed or if it raises, in the mind of the trier of fact, a reasonable doubt, based on reason, logic. [ 82 ] For the reasons mentioned above and after seeing and analyzing the way the accused testified, the Court does not believe him.

The Court also answers the second question in W.(D.) in the negative and finds that the accused’s testimony does not raise a reasonable doubt in its mind. [ 83 ] His testimony was an attempt to give, through the filing of documents and invalid inferences, an air of veracity to an incomplete general denial, which leaves a central question in this case unexplained. [ 84 ] If the conversation between Ms. Brutman, an appropriate and impartial witness, and Mr. Alipoor took place, it means that the telephone conversation between Mr. Alipoor and Ms.

T. also took place; and if that telephone conversation took place, it means that Ms. T.’s testimony is true and that the sexual assault, as reported by the victim, also took place. [ 85 ] Contrary to what the defence attorney argued, the Court did not see Ms. T. as being partly on the defensive when she was testifying. [ 86 ] In the testimony of the prosecution, the Court saw a reliable narration of actual events. [ 87 ] That testimony was given with great detail and with an effort to adequately answer the attorneys’ questions.

That testimony was credible. [ 88 ] Consequently, the Court is of the opinion that the prosecution discharged its burden of proving beyond a reasonable doubt that the accused is guilty of the charge against him. [ 89 ] THEREFORE, THE COURT : [ 90 ] FINDS the accused guilty of having sexually assaulted Ms. T. on October 25, 2008.

__________________________________ BRUNO LECLERC J.C.Q. Mtre. Maxime Lacoursière Crown prosecutor Mtre. Éric Pierre Fugère Counsel for the defence Dates of hearing: October 28 and November 4, 2014