R v Ababneh, 2023 ABCJ 184

In the Alberta Court of Justice Citation: R v Ababneh, 2023 ABCJ 184 Date: 20230925 Docket: 220495816P1 Registry: Calgary Between: His Majesty the King - and - Majdi Ababneh Judgment of the Honourable Justice B.R. Fraser Introduction [ 1 ] The accused is charged with assaulting his wife on three different occasions. The first time was in or after November 2020 shortly after they were married. The second was on Mother’s Day, the 9 th day of May, 2021. The third incident took place on November 24, 2021.

A number of other charges arise but the third incident included allegations of choking, using a weapon, assaulting his wife’s daughter and depriving both the complainant and their caregiver from using their phones so they could not call the police. [ 2 ] The Crown called four witnesses being the complainant, her daughter, her brother and the caregiver. The defence called the accused and his daughter. [ 3 ] The accused and his son and daughter lived in Belgium. The complainant lived in Calgary with her two daughters. One of her daughters has special needs and requires a constant caregiver.

The accused and the complainant met online. He came to Canada and they met in person and married within days of him arriving with his family. They moved in together. Facts in Evidence [ 4 ] The Crown’s witnesses’ version of events in all three incidents varies completely from the defence witnesses’ version. There is no room for both versions to be reconciled. This will require a credibility assessment. I will set out each version by reviewing the evidence of each witness.

The Crown Witnesses’ Version November 2020 [ 5 ] The complainant states shortly after they were married, they were invited over to her brother and his wife’s place for coffee. This included the complainant, the accused and their two daughters. The two daughters got into an argument and the complainant told them to stop. The accused then slapped the complainant across the face leaving a red mark on her cheek. This was witnessed by her daughter and her brother.

He later apologized and said he would take counselling. [ 6 ] Her daughter described the incident as her arguing with the accused’s daughter at the brother’s house about her Mom, she

telling her to respect her elders. They were both yelling. Her Mom told them to be quiet and yelled at them. The accused came up and slapped her Mom across the face really hard. Her uncle yelled at him and said, “ You can’t touch my sister .” They left 10 minutes after. [ 7 ] Her brother said that when they came over, he and the accused went to the basement. They heard the daughters arguing. They went upstairs and the complainant, his sister, told them to shut up. The accused struck her for yelling at his daughter. It was an open hand slap, very quick and hard.

His reaction was extremely disappointing, he said his trust disappeared. He grabbed the accused who said, “ She is my wife .” Those were his exact words. May 9, 2021 Mother’s Day [ 8 ] On Mother’s Day, the complainant testified the accused came home and yelled at her that she was not the mother of his children, called her names and hit her in the living room. She ran to the bedroom and he followed. He grabbed her by the neck and lifted her up against the wall and was choking her. She could not breathe. All three children came in and told him to stop. He let go of her neck.

She told him to get out of the room and shut the door. She told him she was going to call the police and get a divorce. He apologized, said it would never happen again and he would take counselling. She suffered bruising on the side of her neck and some scratches. No photos were taken and she did not go to the police. [ 9 ] Her daughter testified on Mother’s Day, she asked the accused to take her out to get her mother flowers. They were sold out so the accused bought her a plant. They came home and the accused and the complainant were arguing in the living room.

They went into the bedroom and he had her up against the wall and was choking her. She was trying to push him away. The daughter and the accused’s daughter were in the doorway watching and telling him to stop. The complainant was telling him to stop. He let her go and left the room. She saw marks on her mother’s neck from his hands. It was a reddish-purplish colour and bruised. Later he said he was sorry. She said in their religion they do not necessarily celebrate Mother’s Day as they are supposed to honour their mother every day. She took no photos of the injuries and the police were not called.

November 24, 2021 [ 10 ] This is by far the most serious incident described by the complainant. She testified when she woke up in the morning the accused came out of the bathroom swearing at her in Arabic and calling her names saying she hated his kids. He then punched her above her left eye, cutting it open and bleeding profusely. He then grabbed her by the shirt and threw her against the wall, choking her. He then pushed her into a wall mirror, shattering it. She then pushed him away and scratched his face with her nails. She grabbed a bottle of cologne off the dresser and hit him on the head.

He grabbed her and shook her again hitting her in the head several times, she estimated at least ten times. By this time his children were in the room but did not help her. Her daughter came in and tried to help her. She got up and ran into the bathroom. He came into the bathroom and punched her again. She ran to the living room and he followed. He continued to hit her. She said “ call the police ” and ran into her special care daughter’s room where the caregiver was and he again followed. He slapped her again in front of the caregiver.

She asked the caregiver to call the police but the accused took her phone so she could not. Someone had called her brother and he and her father walked in. She eventually went to the hospital where she received stitches. She said her face was covered with blood and she had multiple bruises from being hit. Photos were taken that day by her daughter showing the injuries. Photos were also taken of the accused’s face showing numerous scratches to his face and a gash on his head.

She acknowledged she caused those injuries in an attempt to get away from him. [ 11 ] When she got home from the hospital she asked him to leave. She said she wanted a divorce. Her father did not want her to involve the police because of their religion. The accused said if she did he would show naked pictures of her. Regardless, she called the police two weeks later. [ 12 ] She said she couldn’t find her phone until later when his son gave it back to her. She said he hid it so she couldn’t call the police. [ 13 ] The complainant’s daughter heard talking from their bedroom.

The accused was swearing at her in Arabic. He said, “ You hate my kids ” and her mother said “ Where is this coming from? ” She walked to the bedroom and saw him hitting her and his kids standing there watching. He hit her over the eye and cut her so blood was dripping down her face. He then pushed her into the mirror as he was choking her and it shattered. He was punching her in the face. Her mother grabbed something from the dresser and hit him with it. She ran to the bathroom. He came after her. They were all trying to hit her. She ran to the living room and he followed.

She went to her sister’s room and he followed. He started slapping her again. He took the phone from the caregiver’s hand and told her she couldn’t call the police. She pushed him out of the room and closed the door. It was then her uncle came. [ 14 ] Her mother drove her to work. She put a bandage on the wound and went to the hospital. Her mother picked her up from work and they went to a friend’s house and then went home. Her mother told the accused to leave. The accused and the children stayed in the basement that night and left the next day.

She has never spoken to him since. [ 15 ] She testified that while he was punching her mother in the face, choking her and throwing her into the mirror, she was telling him to stop. His kids also participated and her mother was pushed to the ground. At some point while he was punching and slapping her mother, he hit her in the nose with his elbow. She thought it was accidental. [ 16 ] When her mother came back from the hospital she had stitches above her eye and her face was bruised. She took photos of her mother’s face before she went to work and after she came back from the hospital.

She identified the photos she took. She said her mother couldn’t see well after that, she lost weight and suffered from nightmares. [ 17 ] She said in their religion, you are not supposed to call the police. You are supposed to go to the priest to settle things. [ 18 ] The caregiver testified she works for an agency that provides family services. She is paid by the agency and the complainant is a client. She does not work for the complainant and is not paid by the complainant. The services are paid by the government. [ 19 ] She heard arguing that escalated into shouting then she heard something shatter.

She stayed in the daughter’s bedroom. They

all went into the living room. She heard the complainant screaming “ help ” and “ call the police .” She saw she had blood on her face. She went back into the room, dumbfounded, shocked and panicking. Her phone was charging. The complainant followed her into the bedroom and tried to lock the door but there was no lock. The accused followed them into the room. She was holding her phone but the accused aggressively grabbed it and took it from her. She was scared of the violence that was happening and particularly scared of him.

The complainant’s daughter came in and tried to de-escalate things and keep them away from each other. The caregiver tried to protect the special needs daughter by covering her but the complainant tried to get in the bed. The accused was yelling in Arabic and hit the complainant with a slapping motion but she couldn’t see where. Someone called the complainant’s brother or father and they arrived shortly after. The accused told her to go home and she left. Two hours later the complainant called her and asked her to return as she had to go to the hospital for stitches.

Before she went home, she said she asked the accused for her phone and his daughter took it from him and gave it back. She said she intended to call the police because she was scared they may kill each other, but she didn’t because the accused took her phone. She thought the complainant would not press charges because her father did not want her to. When the accused slapped the complainant she slapped him back, she said. The Defence Version November 2021 [ 20 ] The accused testified he, the complainant and the two daughters went over to the complainant’s brother’s house for coffee.

The girls stayed in the living room and he and the brother went downstairs. The brother asked him for $200,000 for some business purpose. He heard noises upstairs and they went upstairs. The complainant and her daughter were physically attacking his daughter. He got in between them to de-escalate. The complainant was using the “F” word the whole time. He did not hit the complainant. Her brother said, “ I know my sister.

That’s the way she is .” He did not threaten or try to slap the complainant. [ 21 ] The accused entered a number of text messages which I found admissible under sec 31.1 of the Canada Evidence Act after hearing the evidence in a voir dire . One text conversation between the accused and the brother was dated January 8 th and 9 th . The accused stated this was the date they visited. This caused the Crown to widen the dates of the incident to January 9. The text entered as exhibit 6 is inviting them over for coffee.

The text on the next day from the brother appears to be one of reconciliation asking to treat his sister like a queen and don’t sweat the little things, indicating every marriage has fights and next time to call him and come for coffee to get away a bit. [ 22 ] A text entered as exhibit 5 appears to be the day after the incident at the brother’s between the complainant and the accused which appears to illustrate everything is fine between them. May 9, 2021 Mother’s Day [ 23 ] The accused testified he and the complainant’s daughter texted about getting flowers for her mother.

Texts entered as exhibit 7 confirm this discussion. He bought her a plant but the complainant was not happy with it and threw it in the garbage. She wanted flowers. He said she insulted him so he went outside. He did not strike or choke the complainant. There was no assault and no threat. Texts marked exhibit 4 between the complainant and the accused on Mother’s Day and the next day seem to indicate normal conversation that evening and the next day.

November 24, 2021 [ 24 ] The accused testified that morning he woke at 7:00 AM and went to the kitchen, came back to the bedroom and the complainant was in the bathroom. She came out looking mad about his kids. He left and went to the kitchen and she followed him screaming at him and using the “F” word. He said she is always trying to make trouble. He phoned her brother to come over. He went back to the bedroom and she followed. He sat on the bed and she jumped on him and scratched him. He said she is always saying “ I’ll divorce you and call the cops on you .” I was trying to defend myself as she was screaming.

His daughter came in and pushed her off him. They were pushing each other and grabbing hair. They hit the mirror and broke it. He got in the bathroom then and the complainant grabbed a bottle of perfume from the dresser and hit him on the back of the head causing it to bleed. The defence entered photos, exhibit 2, taken by his daughter, showing this injury and the scratches to his face. [ 25 ] He said he sat on the bed then stood up to go to the bathroom to wash. She still had the bottle and threw it at him and hit the door frame. The bottle bounced back and hit her above the eye.

The bottle has a chip on it and was entered as exhibit 3. She was bleeding and said, “ You hit me. I’m calling the cops. ” [ 26 ] He stated only his daughter was in the room, not the complainant’s daughter. Her daughter only arrived at the end and told her mother to stop it. At that point his mother phoned and for some reason he gave the phone to the complainant who took it to her daughter’s room where the caregiver was. He went to the living room. The complainant was screaming and swearing at his mother for about 10 minutes.

Then her brother and her father showed up. [ 27 ] He said the complainant was hitting and slapping him and he never hit nor slapped the complainant. [ 28 ] Under cross-examination he said he is Jordanian but is a Belgian citizen. He came to Canada on a visitor’s permit. He has applied for a work permit but it has not been completed and his status remains as a visitor. He said he brought money with him from Belgium. He said he is in the construction business and works for Truman Builders. He hires sub-trades for construction cleaning. He does not get paid and the company pays the sub-trades directly.

He now owns his own company. [ 29 ] As to his relationship with the complainant, he says she always fights and threatens to call the police. He always goes away and does not fight with her. He says her brother is mad at him because he will not give him money. [ 30 ] He said on May 9, Mother’s Day, he gave her flowers, not a plant and she was happy with him.

[31] As to November 24, 2021, he said the complainant was angry over nothing. When she threw the bottle, it bounced back onemeter. He could not remember if the complainant had any bruises in spite of the photos of her face. He said he was never angry with herand was used to her being mad in the morning. He never put a hand on her, he just pushed her hands away when she was scratchinghim. He said the children never came into the bathroom and he never touched her daughter. He did not take the complainant’s phone ortell his daughter to take it.

He said the caregiver never came out of the bedroom, he did not take her phone, he never hit the complainantin front of the caregiver but the complainant hit him in front of her. He had no reason to take the phones as he was not afraid to have thecops called because he did nothing wrong. [32] He said the complainant’s face was not covered in blood, there was only a small amount of blood from her eyebrow, in spiteof the photos entered of her face, exhibit 1. [33] The accused’s daughter testified about the incident at the complainant’s brother’s house.

The complainant’s daughter wasyelling at her in her face and the complainant joined in. Her father came up from the basement and got between them and gently pushedeveryone away. He was arguing with the complainant’s brother who was telling him not to get involved. [34] As to May 9, 2021, she does not remember anything and did not see her Dad hit the complainant. [35] On November 24, 2021, she heard screaming and stomping and ran to the bedroom and saw the complainant sitting on top ofher Dad, scratching him. She pulled her off and they fought. She was pushed into the mirror and it broke.

The complainant grabbed abottle and hit her father. Then her brother came in and then the complainant’s daughter. She and her father went to the living room. Shecalled the complainant’s brother. He and his father arrived about 20 minutes later, 10 minutes after the mirror broke and 10 minutesafter the complainant’s daughter came up from the basement. She said the complainant was not bleeding until later. She also said shehit the complainant and her daughter and her father never hit the complainant or her daughter. She said no one’s phone got taken.

Shealso stated the complainant’s brother said his sister is crazy and if this ever happens again to call me. It is unclear when he said this. [36] In cross-examination, she emphasized that her father did not do anything or hit the complainant and did not push thecomplainant into the mirror. The complainant was never screaming for someone to call the police. She said the complainant said manytimes that she would try to deport him. There were weekly arguments that the complainant started, never her father. Finally, she saidshe would do anything for her father.

The Law of Credibility and Reliability [37] Clearly there are two very different versions before me on a number of issues going to credibility. When credibility is anissue it raises the Supreme Court of Canada case of R v WD, [1991] 15 SCR 742 (WD) and authorities following. [38] In a case where the accused testifies and the issue is credibility, the rule of reasonable doubt applies to that issue. There aretwo situations where the court must acquit the accused. First, if the trier of fact believes the accused.

Second, even if they do notbelieve the accused but his evidence raises a reasonable doubt as to his guilt when considered in the context of the evidence as a whole. [39] The concept of reasonable doubt was explained by the Supreme Court in R v Lifchus, (SCC), [1997] 3 SCR320 (Lifchus). The standard of proof beyond a reasonable doubt is intertwined with the presumption of innocence. It is based on reasonand common sense. It is logically connected to evidence or absence of evidence. It does not involve proof to an absolute certainty. It isnot proof beyond any doubt, nor is it an imaginary or frivolous doubt.

On the other hand, more is required than proof that the accused isprobably guilty. If the conclusion is only that the accused is probably guilty, he must be acquitted. [40] In 2019, The Alberta court of Appeal handed down the case of R v Ryon, 2019 ABC 36, (Ryon) where they reiterated notonly that the accused’s evidence must be considered in the context of the evidence as a whole but that R v WD does not stand for theproposition that the accused’s evidence must be considered first. They adopted the approach proposed by Doherty J.A. in R v Carriere,(2001) (ON CA), 151 OAC 115 (Ont.

CA). [41] They then referred to the Supreme Court case R v Dinardo, 2008 SCC 24 (Dinardo) as support for considering the accused’sevidence in the context of the evidence as a whole. [42] It is only exculpatory evidence the instruction of WD applies to. [43] In R v Achuil, 2019 ABCA 299, the Court of Appeal clarified its wording in Ryon regarding the second prong of WD. [44] In assessing credibility there is no magic formula provided to triers of fact.

Instead, there are a number of questions to beconsidered, for example, whether the witness seems to have a good memory of the relevant events, whether evidence provided by awitness seems reasonable and consistent and whether there is any reason why a witness would not be telling the truth.

When assessingthe evidence of the accused, it is impermissible to assume that the accused will lie to escape conviction, to do so would undermine thepresumption of innocence, R v Laboucan, [2010] 1 SCR 379, at paras14-18. [45] In addition, there are several authorities dealing with a bare denial by the accused or a different version by an accused. [46] In R v Page, 2017 ABQB 33, Justice Renke, under the heading “Rejection of the Accused’s Account,” states that an accused’saccount need not raise a reasonable doubt, even if that account was plausible and unshaken in cross-examination.

He states a trier of factmay reject an accused’s plausible account wholly, because the trier of fact accepts the counter-account of the Crown’s evidence beyond areasonable doubt. That is if the trier is convinced beyond a reasonable doubt by the Crown’s evidence and no reasonable doubt arisesfrom the evidence that the trier accepts. He refers to R v Vuradin, 2013 SCC 38 (Vuradin) as well as R v Gordon, 2015 ABCA 341; andR v (S(T), 2012 ONCA 289 By Watt J.A.

[ 47 ] In Vuradin the Supreme Court stated the trial judge found the complainant’s evidence compelling and accepted her evidence where it conflicted with the evidence of the accused. They then stated at para 19: ...No further explanation for rejecting the appellant’s evidence was required. [ 48 ] In R v CLS , 2021 ABCA 147 the court stated the trial judge did not reject the accused’s evidence because it was a bare denial. He disbelieved his evidence because it conflicted with the balance of the Crown’s evidence, including the complainant’s.

It did not raise a reasonable doubt because it was inconsistent with the complainant’s evidence which he accepted as credible. He does not need to find fault with the accused’s evidence in order to convict. [ 49 ] In R v TS , 2012 ONCA 289 (Ont CA), Justice Watt stated at paragraph 79 as follows: As a matter of law, reasoned acceptance of a complainant’s evidence is a basis upon which a trial judge can reject the evidence of an accused and find guilt proven beyond a reasonable doubt.

A reasoned and considered acceptance of the complainant’s evidence is as much an explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused’s own testimony. [ 50 ] I have also reviewed the recent Court of Appeal decision of R v Clarkson , 2023 ABCA 212 and intend to follow its direction as to assessment of credibility. Analysis [ 51 ] I choose to analyze the evidence in the order that I heard it, beginning with the Crown’s evidence. Crown’s Evidence [ 52 ] I found the complainant had a good memory of the three events and her evidence was reasonable and consistent.

There was no reason I could detect why the witness was not telling the truth. She answered every question in both direct and cross without hesitation and gave full answers. Most of her evidence, where applicable, was corroborated by the evidence of her brother, her daughter and her caregiver. She appeared to me to be an intelligent, thoughtful witness who was severely shaken by the events of November 24, 2021. Her demeanour gave me no concern for her credibility.

Her evidence was corroborated by the photographs of her injuries to her face and details of lasting injuries she detailed such as weakened sight and concussion symptoms. [ 53 ] Defence counsel submitted the complainant was a combative witness and did not answer questions. I disagree on both counts. The only time she appeared the least bit combative was when counsel suggested the version of the accused to her which she denied and stated such suggestions were completely untrue and did not happen.

She was obviously hearing this version for the first time and appeared to find them fanciful. [ 54 ] When first shown the text messages she thought they were fake. I surmised she thought this because they were in her phone system and could not be extracted by someone else. She was obviously not thinking that they would be in the accused’s phone system as well and could be extracted from that end. This does not cause me any concern for her credibility.

As the texts were reviewed with her, she realized they were not fake and remembered some as legitimate but not all. [ 55 ] The fact that some of the texts appear to indicate everything was okay and back to normal relations between her and the accused following the first two incidents, is explained by the complainant that on both occasions the accused apologized, said it would never happen again and he would take counselling. As a result, she was obviously prepared to continue on with the relationship.

The texts give me no concern for her reliability. [ 56 ] Defence counsel submits the facial injuries are not consistent with being punched. I can see no basis for such a submission. It is only common sense that when a person is punched several times (the complainant said at least 10 times), cuts, bruises and swelling are the result. When I compare the size of the accused, a large man, to the size of the complainant, a petite woman, his punches to her face could easily cause the damage described and shown in the photos.

What I find unbelievable and next to impossible is that the cut over her eye could result in the glass object bouncing back off the door frame a meter or more and hitting her. I will deal with that version subsequently. [ 57 ] I agree with Crown counsel that the complainant did not overstate her injuries or the extent of the assaults in the first two incidents. She described them as slaps that were hard causing redness and choking but nothing more. The third incident clearly caused significant injuries and the complainant described it as fighting for her life.

Her actions that she testified to would indicate she was terrified and certainly wanted help by calling the police. The broken mirror was indicative of the aggressiveness of the assault and the injuries to the accused show she was fighting back to defend herself. [ 58 ] In my view, the complainant was a credible witness and her evidence is reliable. [ 59 ] The complainant’s brother was a very impressive witness. He witnessed the event at his house and the aftermath of the events of November 24, 2021. I could tell he was appalled by the actions of the accused in striking his new wife with an open hand.

This was demonstrated by his reaction he described as being extremely disappointed by the accused striking his sister and any trust he had disappeared. He said when he grabbed him, the accused said, “ She’s my wife. ” I find this very telling as though the accused believes he

has a right to strike her because she is his wife. This may apply to the other two incidents as well. I firmly believe this evidence of the brother. He had a good memory of the incident. He was consistent and I can see no reason he would not be telling the truth. He said there was no question the accused went directly to the complainant and struck her.

He confirms the complainant’s and her daughter’s evidence that the accused’s daughter was saying bad things about the complainant and her daughter was defending her and that the complainant yelled at both of them to shut up and the accused immediately struck the complainant for yelling at his daughter. This directly contradicts not only the accused’s evidence but also that of his daughter. [ 60 ] He confirms the text messages the next day with the accused but describes them as calling him out and that he knew what he did and he was talking about the altercation.

This conforms to the portion of the text referred to by Crown counsel about fighting. In my view, it suggests an attempt by him to smooth things over. As well he denies or does not recall going to Edmonton with the accused the next day which contradicts the accused’s evidence. In his texts with the complainant about going to Edmonton the accused never mentions going with her brother. The brother only mentions going over to their place the next morning.

This is perhaps not relevant to the issues but may go to the credibility of the accused. [ 61 ] The brother also confirms the injuries to the complainant when he arrived on November 24, 2021, that she had blood all over her face, hair, neck and clothes. He described the situation as outrageous. He talked to them and they all agreed they shouldn’t be together. He said the accused had promised him he would protect his sister and never hit her again. [ 62 ] I find his evidence to be very credible and reliable. [ 63 ] The complainant’s daughter also impressed me as credible.

One could question her reliability because of the relationship but I see no evidence of that here. For the most part her evidence supports that of the complainant with the exception of some minor details. As to the incident at her uncle’s, she acknowledges arguing with the accused’s daughter who was saying things about her mother and she told her to respect her elders when her mother yelled at both of them to be quiet. She did not know where the accused came from but he slapped her mother hard across the face. She said her uncle yelled at him “ You can’t touch my sister .” Her uncle did not mention saying this.

She said they left 10 minutes after. [ 64 ] As to the mother’s Day incident she witnessed the accused choking her up against the wall and described it vividly. She described the marks on her neck. She also confirmed her mother’s evidence that the accused said he was sorry afterwards and then things were okay. [ 65 ] As to November 24 she testified she witnessed the whole incident corroborating her mother’s description and contradicting the accused’s version and that of his daughter. She heard the accused swearing at her mother in Arabic.

When she went to the door, his kids were there watching their Dad hitting her Mom. She saw him hit her in the eye causing a cut and blood dripping down her face. She saw her mother pushed up against the mirror shattering it as he choked her. She saw her mother hit him with something from the dresser. Her mother ran to the bathroom and then the living room; he followed. Then she ran to the sister’s room and he followed. He hit her there. He took the phone from the caregiver’s hand and told her she couldn’t call the police. She described the assault as including punches with closed fists, slapping and choking.

She described being hit on the nose by his elbow but she thinks that was accidental. She also described her mother yelling at the accused for her phone. He gave it to her. She also saw the accused’s daughter push her mother to the ground after the accused had choked her. [ 66 ] I found her description of this incident to be vivid and quite detailed. For the most

part it corroborates the complainant’s evidence and contradicts that of the accused and his daughter. She also had a good memory of this incident and was consistent in both direct and cross. [ 67 ] There were two things she said that helped put some things in context and impressed me. One was why they do not necessarily celebrate Mother’s Day. The second was that their religion suggests not to go to the police in such incidents but to go to their priest to try to settle things.

This partially explains why the complainant did not go to the police until two weeks after the November 24 incident and why her father did not want her to go to the police. [ 68 ] I found her to be intelligent, credible and her evidence to be reliable. [ 69 ] The fourth witness was the caregiver. I see no reason for her not to be telling the truth. She was an unbiased witness describing the portion of the November 24 th incident that she observed. For the most part her evidence corroborates the complainant and her daughter and contradicts the defence version.

She was in shock and panicking over the violence she saw.

She corroborates the complainant had blood on her face; that the complainant was screaming for help and to call the police; that the complainant followed her back into the bedroom she was in; that the accused followed them in and aggressively grabbed her phone from her; that the complainant’s daughter was trying to de-escalate things; that the accused’s arm made a motion to hit the complainant; she didn’t see it land but heard a slapping sound; that they were fighting each other; that the complainant tried to climb into the bed with her other daughter; that she was scared of the accused and his violence; that she intended to call the police because she was scared of them killing each other; that she saw the blood on the complainant’s face; that she asked for her phone back and his daughter took it from the accused and gave it back to her. [ 70 ] I observed this witness’s demeanour as she testified and it was almost as though she was reliving this traumatic event as she was telling it and the shock she experienced was returning.

She was a very believable witness and I find her evidence reliable. Defence Evidence [ 71 ] There was nothing in the manner in which the accused testified that gives me any concern. Rather, it is the content of his version that is concerning.

[72] Since I have found the complainant and the other three Crown witnesses credible and reliable, no further explanation isnecessary for rejecting the accused’s version according to the Supreme Court in Vuradin and Justice Watt in R v TS as well as theAlberta Court of Appeal in Clarkson. A reasoned and considered acceptance of the complainant’s evidence is all that is needed to rejectthe contrary evidence of the accused. [73] However, there are specific reasons I do reject the accused’s evidence and that of his daughter. First is his evidence that heworks but does not get paid.

He stated he has a business of hiring sub-trades for Truman Builders but they pay the sub-trades directlyand he gets nothing. In reading the text messages between him and the complainant it is clear that he is working. But who works forfree? If he is working, as he clearly is, he is in violation of his status in this country which is as a visitor. He has tried to get a workpermit and has failed. The only purpose in lying about working is that he would be in violation of his status if he admitted to working.

This indicates to me that he is entirely capable of lying under oath. [74] Secondly, I find his explanation for the severe injury over the eye of the complainant that she threw a bottle of perfume at himand missed, hit the bathroom door or frame and it bounced back a meter or more and hit her above the eye, defies all logic. The bottle, inevidence, is heavy and would fall down, not bounce through air. In my view, his explanation has an air of unreality.

There is noevidence of such, it is just common sense. [75] Defence counsel put a second suggestion to the complainant that her cut above the eye was caused by flying glass from theshattered mirror. The complainant answered it could not have because she was pushed backwards into the mirror.

No such evidencewas led by the defence. [76] I find it difficult to believe a man the size of the accused from my observations and the size of the complainant, that if she wasattacking him as he testified to, that he would not fight back but rather just remain passive. [77] I find his entire version to be falsified. [78] His daughter’s evidence is partially at odds with the accused’s evidence. For instance, she testified she called thecomplainant’s brother. The accused said he did. She said the complainant was always threatening to call the police on her father and threatening to have him deported.

Yet during the November 24th incident, the most serious incident, she said the complainant never saidcall the police or threatened to call the police. She said no one’s phone got taken in spite of the Crown’s evidence. She said thecomplainant was not bleeding in the face until later when her brother arrived. She did not see how the complainant got cut over the eye. She does not corroborate the accused’s version of the bottle throwing explanation and yet she maintains she was present throughout.

Shetakes responsibility for any facial injuries to the complainant in that she was hitting her, not the accused. [79] I also am mindful that she said she would do anything for her father. I find her evidence not to be credible and not reliable onits own and also because it is contrary to the credible evidence of the Crown that I accept. Conclusion [80] My conclusion is that the accused assaulted the complainant on all three occasions. On two of the occasions he choked her, being the Mother’s Day incident and the November 24th incident.

I find on the November 24th incident while assaulting thecomplainant he accidentally elbowed her daughter in the nose. Based on the law of transferred intent that is an assault on her. [81] The law of transferred intent is set out in two established authorities, R v Gordon, (2009) 940 OR (3d) 1 (Ont CA) and R vDeakin, (1974) (MB CA), 16 CCC (2d) 1 (Man CA). In Gordon at para 42 the court stated: The doctrine of transferred intent... applies when an injury intended for one falls on another by accident... . When an accused with themens rea of a crime, does

an act that causes the actus reus of the same crime, the doctrine holds that the accused commits the crime... . The doctrine applies only where the harm that follows is of the same legal kind as that intended.

And at para 68: The common law doctrine of transferred intent takes the mens rea of an offence in relation to an intended victim and transfers it to theactus reus of the same offence committed upon another victim....In combination however, they amount to a whole crime through theapplication of a legal fiction. [82] Although the accused is charged and convicted of an assault and choking the complainant while accidentally elbowing thecomplainant’s daughter, he is only charged with common assault of the daughter so the conviction is for common assault in count 3. [83] Based on the Crown’s evidence I am satisfied the accused did deprive the caregiver of her phone by taking it from her so shecould not call the police. [84] I am not satisfied the evidence is clear, that the accused deprived the complainant of her phone as there is no evidence he tookit from her or if he did, when, and it was returned to her by his daughter, or his son, not the accused. [85] There is no evidence that he assaulted the complainant with a glass object or that he threatened to use a weapon such as a glassobject as set out in count one. [86] Therefore, I find the Crown has proven beyond a reasonable doubt the guilt of the accused to counts 2,3,5,6,7 and 8.

He isacquitted of counts 1 and 4.

Dated at the City of Calgary, Alberta this 25 th day of September, 2023. B.R. Fraser A Justice of the Alberta Court of Justice Appearances: M. Parhar for the Crown S. Fagan for the Accused