R v. SONIA, 2013 QCCQ 6634

R. c. Abulsaad 2013 QCCQ 6634 JL 2407 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division N o : 500-01-059166-113 DATE: June 18, 2013 ______________________________________________________________________ PRESIDING: THE HONOURABLE LOUIS A. LEGAULT, J.C.Q. ______________________________________________________________________ THE QUEEN PROSECUTOR v.

SONIA BECKET ABULSAAD ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused Mrs Sonia Becket Abulsaad and the complainant Mr B. C. have lived together for a period of approximately 15 years and had a child issued of their union. [ 2 ] On or about July 19, 2011, there was allegedly a conflict in the couple that got the police to intervene. On the following day, after the complaint of Mr B. C., the accused was arrested. As a result, the accused was charged with assault against Mr B.

C. while using a weapon (267

a) of the Criminal Code ) and simple assault against the same person (266

b) of the Criminal Code ). [ 3 ] Defence denies any such conflict and any assault on that day or even any abusive behaviour of any kind against the accused. THEORY OF PROSECUTION [ 4 ] TENSE RELATIONSHIP – Prosecution contends that the accused was quite adversarial, tense and aggressive in her relationship to complainant, that she was beating up physically and psychologically complainant.

One of the assaults was with sandals. [ 5 ] REACTION TO THE ACCUSED'S DEFAULT TO TAKE THEIR CHILD TO THE ART CLASS – On July 19, 2011, complainant took a few hours to get a Doctor's note to justify his absence from work as he was to take care of both his spouse and child.

After the expression of his complaint or concern regarding the 25 $ paid to the Doctor, although he had taken the precaution of calling her from the Doctor's office regarding his being late for their child's art class, the accused became aggressive and violent with him as he had defaulted to take their child to her paid art class. [ 6 ] ASSAULT AND INSULTS – The accused first would have kicked complainant. She did hit him with force. He replied by kicking hitting her lightly.

She would then have pushed him around, hit him in the face and on the head, would have dragged him around the living room by his hair and broken wilfully his glasses. The accused would have been abusive verbally and would have invited the child to repeat that her father was an «asshole». Complainant alleges that on that evening he was forced to sleep on the floor in the hallway upon the summons of the accused. THEORY OF DEFENCE [ 7 ] NORMAL AND PEACEFUL JULY 19, 2011 – The accused denies any violence, any special or unusual conflict and any ongoing conflict.

She states that on the day of the alleged assault, she was in a happy mood, did lots of reading to her daughter, did not understand complainant's reaction to the Doctor's bill, that nothing violent happened, that the accused worked from home, that she even did exchange number of happy text messages with friends. Her arrest on the following day came as a surprise to her. [ 8 ] ALLEGATION OF A SCAM TO OBTAIN THE CUSTODY OF THEIR DAUGHTER – For her, complainant invented the whole thing to serve him in a custody fight that has not been decided finally so far.

GENERAL BACKGROUND [ 9 ] EXCURSION ON JULY 17, 2011 AT PARC JEAN-DRAPEAU – What is agreed upon is the fact that on the preceding Sunday, the accused suffered a heat stroke at Parc Jean-Drapeau, was taken care of by paramedics and refused to go at the hospital. So does the record reveal. She is reported stating in the ambulance that she felt better. They returned home by public transport. The medical

report speaks of an episode of heat stroke and anxiety. It is noted that it was a very warm day although she only had been in the sun for ashort time. [10] VICTIM TOOK DAYS OFF FROM WORK – She took a few days rest at home. She asked complainant to stay home on theMonday and then on the Tuesday. He was to take care of her and of their daughter. Complainant was invited to cancel a second day ofwork at the office. It was understood he had dealings of importance he should participate to.

He had to get a Doctor's note justifying hisabsence from his workplace. [11] ART CLASS MISSED BY THEIR DAUGHTER – On Tuesday July 19, 2011, complainant went to the Doctors office to obtaina Doctor's note regarding his absence from work that cost him 25 $. He had given a call to explain he was still at the Doctor's office. Thecharge of 25 $ was for complainant disappointing and unexpected. No doubt complainant conveyed this reaction to the accused. [12] INFRACTIONS AND FAMILY ATMOSPHERE – Whatever followed is debated and contested as well as the nature andquality of the relationship of both at that time.

Any and all allegations of verbal, psychological and physical violence are denied. Herbeing arrested was a total surprise and considered by her as a scam in the coming fight for custody. RULES GOVERNING THE ANALYSIS OF EVIDENCE PRINCIPLES OF ANALYSIS [13] The rules as developed by the Supreme Court of Canada regarding the analysis of the evidence are as follows. [14] PRESUMPTION OF INNOCENCE – The accused benefits until a verdict is arrived at of the presumption of innocence. Theaccused does not have to prove anything. All of the elements of the infraction must be established beyond a reasonable doubt.

For thatpurpose, the assessment of the credibility of witnesses is key. [15] CREDIBILITY AND REASONABLE DOUBT – If the accused testimony is trustworthy and raises a valid means of defence,she shall be acquitted forthwith. If disbelieved, her testimony in the context of the whole evidence raises a reasonable doubt and offers amean of defence, she shall then be acquitted.

In any case, the Crown always has the obligation to prove the accused guilt beyond areasonable doubt. [16] ASSESSMENT OF THE WHOLE EVIDENCE – The conclusions of the judge should demonstrate a fine appreciation andassessment of the whole evidence. (W.(D.).[1]) That reasonable doubt can be on an essential element of an infraction or on a means ofdefence. As the Supreme Court so affirmed and namely in Queen v MacKenzie, (SCC), [1993] 1 R.C.S. 212, theevidence shall be assessed in its entirety and not element by element.

The accused does not need to contradict the evidence ofprosecution to benefit from the reasonable doubt. [17] CONTRADICTORY EVIDENCE – Justice Proulx of the Appeal court of Quebec in Tabard[2], reminded that a judge to decideon contradictory versions should not make a choice of which version is the more likely to be true. The judge has to decide if the evidenceas a whole establishes beyond a reasonable doubt the guilt of the accused. An accused does not have any burden to show that the accuseddoes not say the truth. Prosecution has to show beyond any reasonable doubt that truth as proposed.

To impose upon an accused theburden of showing that a complainant is lying would atrophy the presumption of innocence. [18] RELIABILITY AND CREDIBILITY – A doubt can surge from the lack of reliability of the evidence whether the witnesseshave credibility or not. A witness can be sincere, truthful and even of good faith and be erroneous and not reliable in the context of thewhole evidence. [19] ASSESSMENT A QUESTION OF SUBSTANCE – These principles have been repeated in several decisions of the SupremeCourt of Canada [3].

Questions such as the presumption of innocence and the assessment of the evidence are not merely questions ofform but of substance.[4] There is no automatic formula to be followed in the assessment of the evidence. The verdict arrived at shoulddemonstrate a careful examination of the evidence.[5] [20] REASONABLE DOUBT – A reasonable doubt cannot be a frivolous or imaginary one. It must be based on good commonsense and on reason.

Any reasonable doubt should be inferred from the evidence or the absence of it. [6] DISPUTED FACTS [21] Two days before the alleged assault, on the Sunday, the accused and complainant had gone to the Jean-Drapeau Park. Theaccused suffered a heat stroke. The accused alleges that complainant objected to her being hospitalized by ambulance. Complainantaccording to the accused would have held him responsible for the heat stroke. [22] At his return home on his second day off work, he expressed his concern about the amount he had to pay to obtain a note of thedoctor regarding his absence.

He was unhappy about having to pay that much. The accused states that she invited complainant to take itcool, as she saw no problem in that situation. <<No big deal>>, she would have said. Complainant says that the accused was infuriated athim not having taken their child to her art class that was paid for. This is denied by the accused. And she states she could not do itherself, as she was weak and sick still. [23] She confirms that complainant stated he had to go to the office for important business.

She says that in the morning he workedon his computer and that in the afternoon for 1 hour to 1 hour and one half, he had a conference call and that he did lots of work in thehouse. The question was not put to complainant as to his office work at home. [24] Did she at any time become aggressive towards complainant and indulge in foul language, insults and assaults and mischief. All of it is denied. On the contrary, everything would have gone smooth.

He would have done better than ever the chores of the houseand taken care of their daughter while she did her share in reading to her stories and he would have worked from home.

[ 25 ] Was there violence exerted by the accused on complainant to the point of kicking, hitting the accused to the face, pushing him, grabbing his hair and pulling him around the place, hitting him in the face with sandals and insulting him and inviting their child to do that much? Complainant stated that the violence lasted for hours as it resumed from time to time. [ 26 ] Was the accused summoned to sleep on that Tuesday evening on the floor of the hallway and not elsewhere with disgraceful comments on his person on her part?

ANALYSIS OF THE EVIDENCE [ 27 ] CONTRADICTORY VERSIONS – There is not much in common between both versions as they differ immensely from the arrival of the accused at home after his visit at the Doctor's office. There is a striking difference between the two versions. [ 28 ] ACCUSED'S VERSION – The accused's testimony is disbelieved. It is totally unlikely. The accused offers a version strikingly totally unlikely, as manifestly the relationship between the parties could certainly not be as she described. It is unbelievable.

The accused is not at all believed to have abstained from any negative comments or aggressive behaviour. [ 29 ] ABSENCE OF TRUSTWORTHINESS OR RELIABILITY – The accused systematically transforms the truth and is not truthful as to what happened. When not simply denying the facts with no reliability or trustworthiness, she testifies vaguely and in a fashion that does not set the record straight. It is totally contradictory of the tense relationship between the accused and complainant.

The atmosphere of tension during that period leaves no doubt and the pretences of good times in the couple is totally unlikely. [ 30 ] ACCUSED ATTITUDE – There was even a striking difference in their attitude in Court. The accused alleges that she was serene and totally surprised and abashed at what complainant said about their relationship. Her relationship with complainant was allegedly good. She was in a good mood. She even was in a happy mood as from early in the morning she did send and receive numerous text messages and was preparing for a lunch on the following day.

She may have acted in a happy and active way towards her text messages friends. But this is not the case in her attitude with complainant. During those days, the relationship of the accused and complainant was tense and she became very violent and intimidating towards him. There is no doubt as to that difficult Tuesday. [ 31 ] COMPLAINANT'S ATTITUDE – Complainant showed as a man totally broken by the aggressiveness of the accused, of ongoing fights, lots of disputes even in a recent past.

He affirmed having been belittled and mistreated in his relationship and he showed an important vulnerability before the Court. [ 32 ] COMPLAINANT GENERALLY HELD RESPONSIBLE – Complainant states that the accused held him responsible for her suffering a heat stroke. It is believed. There was reference to the fact that complainant did not want her to be hospitalized. The record speaks of her refusal while questioned by the paramedics.

It may have been that complainant agreed to her refusal and not going back by cab as this was their means of transportation and as there is no evidence of the accused insisting to return by cab. [ 33 ] Complainant reports her as saying that he showed a bad attitude in complaining about the cost of 25 $ for the doctor's note justifying his absence from work.

The accused puts it in a positive way that there was no big deal there but it is believed that she made a blunt remark about his attitude. [ 34 ] Again, complainant is believed that the accused after having assaulted him, held him responsible for her hand being hurt as a result of the scuffle. She imputed to complainant the responsibility of her assaulting him and the ensuing injury to her hand then suffered through her violence. [ 35 ] ACCUSED PRETENCE OF ABSENCE OF TENSION – The Court found Mrs Abulsaad Becket's version totally unlikely.

She is not at all believed that nothing tense and violent happened on July 19, 2011. Complainant admits to kicking back and insulting her. She says that nothing peculiar happened. It was a nice day. [ 36 ] Complainant alleges being ordered to sleep on the floor by the accused. She opposes a denial that is not believed. Quite a submissive conduct on the part of complainant to sleep on the floor! It is however believed that he did so. She does not state the contrary. It speaks to the violence and its impact on complainant.

It was not the first time, he contends, that he ended up sleeping on the floor of the entry when summoned to do so. But he did not dare defying her. That speaks of complainant being intimidated and at least weak. [ 37 ] The accused states that there was no tension during those days with complainant. That is disbelieved.

Complainant is believed when he states that it was tense, that there were disputes and that she was aggressive with him. [ 38 ] ACCUSED PRETENCE OF COMPLAINANT'S SCAM – For her, all of complainant's speech was unreal, untrue and just a mere scam, a pure invention of the accused to prepare a motion for custody. The accused alleges that complainant fabricated, invented the whole thing. It is not at all believed. [ 39 ] The Court certainly has to seriously consider the possibility of complainant inventing a whole scheme so as to burden and gain advantage in custody debates before the Superior Court.

The whole of the circumstances including complainant doing the chores of the house in a perspective of furthering a better image of himself for family proceedings, does not throw any such shadow of doubt on the fact that complainant did not invent what he testifies to. [ 40 ] ACCUSED SERENITY ON JULY 19, 2011 DISBELIEVED – The accused affirmed serenity does not in any way impulse any doubt in the truth of complainant's statement about the violence of the accused and about her character. She is not at all believed.

Nor does it yield a suspicion that would discredit complainant's version. [ 41 ] AGGRESSIVE BEHAVIOUR OF THE ACCUSED – In Court, there were two extremes: a lady happy in her relationship, denying any violence or aggressiveness and a man appearing fragile in his wish not to provoke the accused, locked in his weakness, certainly replying with insults and questions as to why she was that aggressive towards him.

[ 42 ] The accused on that day showed a bad character, a bad attitude and a short temper attempting unfortunately to have her daughter join in insulting her father. At one time, complainant took the child in an emotional state to her room, in her bed. She resumed violence at different times and when out of energy, she simply summoned him to sleep on the floor. That most unusual behaviour is believed to have happened and it is believed that complainant slept in the entry on the floor. [ 43 ] COMPLAINANT'S RELUCTANCE TO COMPLAIN – Complainant is a man who felt belittled.

He confronted a bit the accused on her violence. He was repeatedly humiliated on that day and acted as a loser, a defeated man until he laid a complaint after being encouraged to stand up. It is not that he had not decided to get separated and ask for custody of their daughter. It did not induce complainant to lie. [ 44 ] That complainant was crushed by the physical and psychological violence suffered on that day as it is believed that complainant felt incapable of complaining, of reproaching publicly anything to the accused.

That was a most difficult step to break the silence of the abuse suffered. [ 45 ] MALICE OF THE ACCUSED – The Court believes in the malice of the accused, on her outbursts of verbal, psychological and physical violence. When complainant states that he had slept on the floor when summoned to do so and that she told him that he ought not to be treated as a normal person, this is believed.

It is also believed that the accused at times, replied by kicking, trying to control the accused, insulted her. [ 46 ] MISHCHIEF ON COMPLAINANT'S GLASSES – The accused response to the complainant glasses being broken by her is simply to the fact that she did not realize his glasses were broken. The accused is clear that she did so on purpose and it is believed. [ 47 ] DENIAL OF THE ACCUSED DISBELIEVED – The accused abashed at her arrest proposes a version that does not stick, does not have an air of likelihood. In her statement, no hint of tension, no hint of displeasure.

That is totally unlikely in the circumstances. [ 48 ] There is no doubt that the complainant went through a hard time in not taking his daughter to her art class. The accused was not cool as she testified to. On the contrary she got to be abusive when complainant expressed concern and disappointment with the doctor's fee. She was indeed very angry at complainant not taking their daughter to her art class.

There is no doubt that she got to be abusive, kicking hard on the knee of complainant, insulting him, standing up to hit him with her hands and sandals, grabbing him by the hair and dragging him in the living room, insulting him and belittling him in front of her daughter, even inviting the child to also treat her father of asshole and then ordering him to sleep in the entry, nowhere else as he was not normal and earned to be treated that way.

And no doubt, although unacceptable, complainant did so as ordered. [ 49 ] The Court does not doubt that complainant got some scratches on the skull that he suffered from headaches and drowsiness as he so testified. [ 50 ] Crown has established beyond a reasonable doubt the guilt of the accused on the count of assault while carrying a weapon, namely sandals that serve to hit complainant. The other count of simple assault in application of Kineapple will be stayed. Therefore, the Court declares the accused guilty on the count of assault while using a weapon.

Conditional stay of proceedings on the count of simple assault. __________________________________ LOUIS A. LEGAULT, J.C.Q. ME HÉLÈNE DÉCARIE ATTORNEY FOR PROSECUTION ME VALÉRIE DE GUISE DEFENSE ATTORNEY Date of hearing: 15 May, 2013 [2] L'arrêt La Reine c.

Tabard [1993] A.Q. nº 82 en page 5, le juge Proulx aura dit ce qui suit sur l'analyse des versions contradictoires: « Quitte à le redire, le juge du procès, confronté à des versions contradictoires, n'a pas à décider pour en arriver à un verdict, laquelle de ces versions l'emporte sur la vérité… Mais bien, si la preuve, dans son ensemble, le satisfait hors de tout doute raisonnable de la culpabilité de l'accusé; en conséquence, on ne saurait imposer à un accusé le fardeau de démontrer que la victime ne dit pas la vérité… C'est le poursuivant qui a le fardeau de satisfaire le Tribunal que la vérité qu'il propose soit démontrée hors de tout doute raisonnable.

Le fardeau de cette vérité appartient toujours au poursuivant. Quand un accusé témoigne, comme en l'espèce, il soumet sa vérité, il ne lui incombe pas pour autant de convaincre le juge de sa vérité, que la plaignante ne dit pas la bonne vérité. Exiger des accusés la démonstration du mensonge des plaignants, atrophie la présomption d'innocence. Un doute raisonnable surgit si le poursuivant échoue dans sa tentative de convaincre le tribunal de sa vérité. »

[6] R. v. Lifchus, (1997), (SCC), 9 C.R. (5th) 1 (SCC) Cory J.; R. v. Starr (2000), 2000 SCC 40 , 36 C.R.(5th) 1 (SCC).