R. v. Ismail, 2011 ONCJ 761

COURT FILE No.: Toronto Region – Scarborough DATE: 2011·06·13 Citation: R. v. Ismail , 2011 ONCJ 761 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MOHAMED ISMAIL Before Justice M. Wong Heard on March 29 and May 13, 2011 Reasons for Judgment released on June 13, 2011 J. Smith ..................................................................................................................... for the Crown M.

Osseiran .................................................................................. for the accused Mohamed Ismail Wong, J.: [ 1 ] Mohamed Ismail is charged with two counts of Criminal Harassment of his former wife relating to November 14 and November 16, 2009; as well as two counts of Failing to Comply with a

section 810 common law peace bond relating to the same complainant. At the outset of the trial, Mr. Ismail pleaded guilty to breaching his peace bond by having contact with Fatima Khtabe and by going to her home. However, Mr. Ismail pleads not guilty to the two counts of Criminal Harassment. Mr.

Ismail’s defence is that while he admits he breached the court order by having contact with his former wife and showing up at her apartment, he was not aware nor was he reckless as to the fear his conduct may have caused the complainant. [ 2 ] The Crown elected to proceed summarily and called two witnesses; and the defendant testified on his own behalf. [ 3 ] The following facts are not disputed: [ 4 ] Mohamed Ismail and Fatima Khtabe were married in Morocco when the complainant was 16 years old and the accused was 34 years old. It was an arranged marriage brokered by Ms. Khatbe’s father and the accused.

Almost immediately after marrying and immigrating to Canada, the couple had marital difficulties. Ms. Khatbe left the marriage shortly after her first year in Canada. On October 21, 2008, Mr. Ismail was charged with Criminal Harassment relating to the complainant. On July 29, 2009, Ms. Khatbe appeared in court for Mr. Ismail’s trial and she agreed to a peace bond after receiving independent legal advice.

Both before and after the peace bond was signed, the accused had almost daily contact with the complainant in violation of his court orders, but the reasons for the contact is disputed. [ 5 ] On November 14 and 16, 2009, Mr. Ismail acknowledges he went to Ms. Khatbe’s apartment; thereby breaching conditions of his peace bond. On November 14 th , around 10:00 p.m., Mr. Ismail admitted parking his vehicle in the parking lot of the complainant’s building and watching Ms. Khatbe as she left the parking lot in a car driven by another man. Mr. Ismail admits he called her on her cell phone and they spoke.

The reason and purpose of the contact and what was said between the parties is disputed. [ 6 ] On November 16 th – two days later – Mr. Ismail admits he returned to the Ms. Khatbe’s residence in the evening and went to her 16 th floor apartment. The accused was standing in the hallway when Ms. Khatbe came off the elevator. Ms. Khatbe asked him what he was doing there, and Mr. Ismael left without saying anything. Ms. Khatbe called police. While police were still at Ms. Khatbe’s apartment investigating, Mr. Ismail called the complainant and she spoke to him on the phone. Police also tried talking to the accused.

The officer was able to track down the public phone booth from which Mr. Ismail was calling and police arrived while Mr. Ismail was still on the telephone. He was arrested and charged with the offences before the court. Again, the parties dispute the nature and the intention of Mr. Ismail’s contact with the complainant on November 16 th . Parties’ Positions: [ 7 ] It is the Defence position that Mr. Ismail continued to have ongoing contact with the complainant in spite of court orders prohibiting contact because, according to Mr. Ismail, not only did Ms.

Khatbe want contact, she often initiated the contact when it served her purpose. Defence argues his client did not know and was not reckless in knowing that his ongoing contact caused the complainant to fear for her safety. Furthermore, Defence counsel submits the complainant did not fear Mr. Ismail. Defence counsel

argues the officer investigating the complaint on November 16 th did not record in his notebook that Ms. Khatbe was afraid; thereby, undermining the complainant’s testimony that she feared for her safety. [ 8 ] The Crown argues Ms. Khatbe was subjected to years of emotional and psychological abuse. Counsel submits, in fact, the complainant repeatedly told the defendant to leave her alone – pointing to several times when Ms. Khatbe called the police. But the complainant grew frustrated with the police inactivity so she tolerated the accused’s continued presence because they had a daughter.

However, on November 14 and 16, 2009, the complainant became very fearful when Ms. Khatbe realized Mr. Ismail was following her. Based on her past relationship with the accused and his prior discreditable conduct, the Crown argues Ms. Khatbe’s fear for her safety was reasonable. The Law: [ 9 ] Both counsel agree the main issue in this case is credibility and whether the Crown has proved the essential elements of the charge of Criminal Harassment beyond a reasonable doubt. [ 10 ] The leading case regarding issues of credibility is R. v. W.D [1] .

It begins by indicating that a judge, or a jury, need not firmly believe or disbelieve any particular witness or a set of witnesses. A judge can accept or reject some, all, or none of any particular witnesses’ testimony. [ 11 ] Further, a judge must apply the following test: [ 12 ] First, if I accept the defence evidence then obviously Mr.

Ismail must be acquitted. [ 13 ] Secondly, if I do not believe the defence testimony, I could still be left with a reasonable doubt, and again I must acquit the accused. [ 14 ] Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against Mr.

Ismail. [ 15 ] There is also the fundamental principle that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, and the onus is on the Crown throughout a trial. The Defence Evidence: [ 16 ] Mohamed Ismail is 40 years old. He was born in Soudan and studied civil engineering. In 2002, he came to Canada and became a Canadian citizen in 2006. He worked as a project coordinator for a construction company and studied at George Brown College where he earned a certificate in construction estimating. Currently Mr.

Ismail works for a company delivering car parts. [ 17 ] Defence counsel did not ask his client any questions regarding how the couple met and the nature of their relationship before the peace bond. I will review the couple’s history momentarily but it is noted that Ms. Khatbe’s evidence in this area is unchallenged. [ 18 ] Mr. Ismail admits he was charged in October 2008 with Criminal Harassment relating to Ms. Khatbe, which was resolved at trial by way of a peace bond in July 2009. Mr.

Ismail admits he continually breached conditions of his bail and then subsequently the peace bond by having contact with his wife. He described it as a “mistake” and blamed it on his “ignorance and silliness”. According to Mr. Ismail, he was compelled to breach the no-contact condition but it was his wife’s fault: Ms.

Khatbe, he complains, was always demanding that he come over to help her clean the house, do the dishes, and drive her to her friends; she was needy and would sometimes not have anything to eat but for the food he brought; he felt he had no choice to go along with what she wanted because of their daughter; as well, Ms. Khatbe told Mr. Ismail that she wanted to continue to see him not just because he was visiting his daughter. Mr. Ismail said Ms. Khatbe told him that she needed him “to support [her] intellectually, mentally and spiritually”. Furthermore, Mr. Ismail testified that Ms.

Khatbe took advantage of him and would manipulate him into doing things for her or else she would call police. It was her nature to yell and scream at him, but he knew that after a couple of days she would calm down and come around. According to Mr. Ismail, they both used pay phones to call one another back and forth because they were both did not want their personal cell and/or home numbers traceable by caller ID or in some other way. [ 19 ] As soon as he signed the peace bond in July 2009, Mr. Ismail said his wife called him even before he left the courthouse. He saw her that same day at her apartment. Mr.

Ismail also referred to two specific occasions after he had signed the peace bond when he drove Ms. Khatbe: once when he drove her to and from a friend’s house and they saw police and the complainant was worried they would get caught. The second instance was when Mr. Ismail drove Ms. Khatbe for some dental surgery. He waited with their daughter until Ms. Khatbe awoke from the anaesthetic and then drove her home and returned with the prescription medication. He also drove her to the family lawyer when they were signing papers for their divorce. [ 20 ] Mr.

Ismail testified that one day he got a parking ticket while he was up helping Ms. Khatbe clean her apartment. Mr. Ismail testified the complainant took the ticket and told him that she was going to keep it; and should he do anything to upset or anger her, then she would use the ticket to prove the accused was present at her apartment and breaching the no-contact condition. However, at this trial, Ms. Khatbe did not come with any parking ticket nor did she claim to know anything about the incident. [ 21 ] According to Mr.

Ismail, in October 2009 – a month before the charges before this court – the complainant asked him for $10,000 so she could put a down payment on a house. Mr. Ismail testified he told her that he did not have the money and he agreed Ms. Khatbe knew the same. However, Mr. Ismail said Ms. Khatbe suggested he go to the bank and get a loan. Mr. Ismail did not go to the bank and nor did he try to borrow the money. However, part of the explanation as to why he went to Ms. Khatbe’s apartment on

November 16 th (and hence, the breach of the peace bond conditions) was to tell her he did not get the money and that it would take some time. [ 22 ] Two days earlier on November 14, 2009, Mr. Ismail said he went to his former wife’s apartment at around 10 p.m. to visit their then 2-year old daughter. When the Crown suggested that 10 p.m. was very late to see his young child, Mr. Ismail agreed, but complained Ms. Khatbe often let the child stay up until midnight. He said he did not approve of his daughter staying up so late and that he had talked to his wife “about better organization”. [ 23 ] According to Mr.

Ismail it was normal for him to just show up at his former’s wife’s apartment building – unannounced and without first calling. He said he sometimes entered the building if the door was unlocked or another tenant was entering and would let him in. In chief, he said if the entrance door was locked, he would buzz the complainant’s apartment. However, in cross examination, Mr. Ismail contradicted himself and said he would buzz his wife and she would tell him “I will not come and open the door. You wait for someone to come in”. He also said that Ms.

Khatbe’s buzzer was not working for a long period of time, so she would tell him to wait. If a tenant did not arrive home or another visitor did not let him in, Mr. Ismail said he would tell her that he was going to leave. Even based on the accused’s evidence, Ms. Khatbe would not open the door for the accused and he relied on other methods to gain entry to the apartment building. [ 24 ] Mr. Ismail says on November 14 th , he went the complainant’s apartment door and knocked a couple of times but no one answered. He was surprised because he expected Ms. Khatbe would be home with their 2 year old. Mr.

Ismail said he was “bothered and annoyed” and did not know if something bad had happened. Mr. Ismail agreed that his wife was now divorced; and free to go out and have her own life. However, Mr. Ismail said Ms. Khatbe called him when she wanted to go out so that was why he was worried. [ 25 ] As he was leaving the apartment and getting into his car, Mr. Ismail said he noticed his wife was in a car with a man. Mr. Ismail said it did not bother him that she was with a man – rather what annoyed him was that he could not see his daughter. “[I] was bothered as a father”. [ 26 ] Mr.

Ismail called his wife from his cell phone. When she answered, the defendant asked, “ Where is my daughter? You are going out after 10 p.m. without my daughter, and I know there is no one to take care of her ”. Mr. Ismail said his wife began screaming at him – accusing him of following her. Mr. Ismail reassured her that he was not following her and only wanted to know about the child. The defendant said the complainant repeatedly screamed at him so he hung up and drove home. He did not find out the whereabouts of his daughter, and when he got home he went to bed. He did not call nor did he hear from Ms.

Khatbe the next day. [ 27 ] In cross examination, Mr. Ismail said he was worried and upset and had an uneasy sleep because he was worried about his child. However, he did not report the child missing to police because he was worried about getting into trouble for breaching the court order because he had gone to the apartment building. In spite of his breaching this – a second court order prohibiting contact with Ms. Khatbe – Mr. Ismail said he was now afraid of getting into trouble even though he believed his daughter was missing. Mr.

Ismail agreed there was a condition of his peace bond that allowed lawful contact with his wife through a mutually agreed upon third party, but he did not contact anyone to inquire about his daughter. Mr. Ismail said he did not call his wife for the next day and a half because the complainant always needed a couple of days to calm down after “yelling and insulting him”. According to Mr. Ismail, “that was her nature”. He knew that in order for her to calm down and have a normal conversation, he needed to wait at least a day to call her. [ 28 ] Besides Mr.

Ismail said, he knew that if something had happened to their daughter, Ms. Khatbe would call him. This answer, of course, completely contradicts his original testimony, which he claims was the reason why he said he was so worried in the first place after seeing his wife in the car with a man but not with his daughter. Mr. Ismail said he was afraid something bad had happened to his daughter; however, in cross examination, he said he did not need to call his wife because he was confident she would tell him if anything was wrong. [ 29 ] According to Mr.

Ismail, he returned to the complainant’s apartment two days later on November 16 th . It was around 9 p.m., and again he entered the building without first calling and got inside because the entrance door to the building was open. Mr. Ismail said he went to the apartment for two reasons: to see his daughter and to tell Ms. Khatbe that he needed more time to get the $10,000. Mr. Ismail said he went to her apartment door and heard a man’s voice speaking on a phone. Immediately, Mr. Ismail said he knew he was not wanted and went back towards the elevator. Suddenly, the elevator door opened and out stepped Ms.

Khatbe with their daughter. Ms. Khatbe asked him “Why are you here?” Mr. Ismail did not say anything but quickly left. Mr. Ismail said it was enough for him to see his child so he never told the complainant he was there to see his daughter. He said had his wife “been honest with him” about seeing another man, then arrangements would have been different and she would not have been able to “take advantage” of him. Mr. Ismail said he knew immediately from the tone of her voice that Ms. Khatbe was going to call police. [ 30 ] Mr.

Ismail left the complainant’s apartment and drove to a restaurant on the Danforth where he ate and then went to an internet café. He was driving back to his apartment when he received a call on his cell phone from an unknown number. Mr. Ismail said he suspected Ms. Khtabe was calling him because she always called him from unknown numbers when she was very upset or angry. He did not answer the phone because he was driving. Instead Mr. Ismail pulled over and called Ms. Khatbe from a payphone. [ 31 ] According to Mr.

Ismail’s earlier evidence, he knew that when the complainant was mad at him, the best course was to leave her alone for a couple of days to let her calm down. Therefore, based on his evidence, pulling over to the side of the road and calling the Ms. Khatbe back made little sense and contradicts his own testimony. This was especially true since Mr. Ismail said that when he saw his wife coming off the elevator, he knew immediately she was going to call the police. [ 32 ] I have already reviewed parts of Mr. Ismail’s evidence that do not make sense and where he contradicts himself.

These contradictions are substantial and undermine the trustworthiness of his testimony. Mr. Ismail’s testimony is also almost entirely self- serving. In spite of him being bound by the court orders and not his wife, the accused characterizes himself as the unwitting victim who has been taken advantage of. The consistent theme of his testimony was that he continued to visit Ms. Khatbe in large part to see his daughter. Yet on November 14 th , when he says he was so worried about the child, he did nothing to follow up until November 16 th ; and

that was because, as he later admitted in cross examination, Ms. Khatbe always called him if there was a problem. On November 16 th , when Mr. Ismail again says part of the reason for his evening visit was to see his daughter, he did not tell Ms. Khatbe he was there to see his daughter nor did he ask for a visit. He did not ask about his child or tell Ms. Khatbe his troubles in obtaining the loan – the two reasons he said he went to her apartment in the first place. [ 33 ] In assessing Mr.

Ismail’s evidence, I accept very little of his evidence and what I do accept does not raise a reasonable doubt for the reason why he was at Ms. Khatbe’s apartment. As such, on the first and second prong of the W.D., supra , test, I am not left with a reasonable doubt. I will now review the Crown’s evidence. The Crown’s Evidence: [ 34 ] Fatima Khatbe was living at home with her parents in Morocco and attending high school when she first met Mr. Ismail through an on-line chat room. Ms. Khatbe was only 16 years old and the accused was 34 years old. Soon Mr. Ismail arranged to speak to Ms.

Khatbe’s father who agreed that his daughter would marry this virtual stranger. Ms. Khatbe said she was shocked her father would agree. However, in her culture, “if the father says ‘yes’, you should say ‘yes’ or else you are a bad child”. Nine months later, Mr. Ismail came to Morocco and he stayed with her family for 3 months. On October 25, 2005, the couple married before a judge because she was under the legal age of marriage. [ 35 ] According to Ms. Khatbe, whose evidence is undisputed, she and her family believed the accused was an engineer who would provide her with a “family home” in Toronto.

On September 11, 2006, Ms. Khatbe arrived in Canada to find that her husband was not an engineer but rather he worked as a project coordinator at a construction company, and he lived in an apartment. Again, in undisputed evidence, Ms. Khatbe said she was shocked to find her new husband lived in an apartment which had only a bed, a kitchen and a computer. Ms. Khatbe said all her husband wanted her to do was to cook and entertain him sexually. According to Ms. Khatbe, she “felt like she had been sold”.

She used her family’s money to buy furniture for the home. [ 36 ] From September to November 2006, when she first arrived, Ms. Khatbe said she never left the apartment alone because she was too scared, she knew no one and she could not speak the language. When she tried to speak English, Ms. Khatbe said Mr. Ismail would criticize her. During those first two months, her undisputed evidence was her husband would go to work leaving her alone. Ms. Khatbe said she would hear someone knocking on the apartment door.

Terrified, she would call her husband who would tell her that it might be a neighbour who knew she was alone in the apartment because her husband was at work, and if she opened the door she might get raped. Later as the marriage was dissolving, Ms. Khatbe’s undisputed evidence was that Mr. Ismail later admitted to her that it was him who was knocking on the door. Similarly, as her marriage disintegrated, Ms. Khatbe testified she would go to sleep in a separate room and in a separate bed from her husband. Mr. Ismail would tell her that he could see her bed was moving. Ms.

Khatbe said she would sleep with the lights on. Ms. Khatbe said “when I married him, I was a child and I believed him”. [ 37 ] Defence counsel cross examined Ms. Khatbe about a call she made to police on October 21, 2006, presumably from a police occurrence report; wherein she complained to police about an argument with her husband when a side table was knocked over and a mess made in the living room. The point of the cross examination was to establish that as far back as 2006, Ms. Khatbe knew enough to contact police and, in turn, they gave her victim support information and telephone numbers. However, Ms.

Khatbe was unable to specifically recall the date of the complaint and initially thought it was from 2007 when a neighbour called police. In the end, Ms. Khatbe said that there was daily violence when living with Mr. Ismail and back in 2006 she thought it was normal. She does not deny police gave her victim services information but thought it was later when they again responded to a complaint. Ms. Khatbe added it was impossible to pinpoint any particular event because there was constant verbal and sexual abuse. She testified when Mr.

Ismail wanted to have sex with her, she felt like she could not say “no” because God would be upset with her. [ 38 ] By November 2006, Ms. Khatbe was pregnant. She returned home to Morocco for the next 6 months and says she begged her family to let her to leave her husband. Ms. Khatbe said her family would not permit her child to be born without a father and she was forced to return. [ 39 ] On June 15, 2007, she gave birth to a girl. [ 40 ] By November 2007, the couple was separated. According to Ms. Khatbe, whose evidence was not disputed, Mr.

Ismail had been verbally and sexually abusive, but in November when he lifted his hand and pushed her, she told him that she was “not going to wait until you hit me”. She moved to her own apartment on 273 Pharmacy but eventually let the accused move back in because he called her and said he had nowhere to stay. However, she eventually asked him to leave, but even after he had left, she found his suitcase and other possessions in her storage locker. Ms. Khatbe believed the only way he could have got access to the locker was to break in. [ 41 ] Ms. Khatbe agreed with Defence counsel that Mr.

Ismail would drop by unannounced late at night and she agreed that she would let him in. According to Ms. Khatbe, the only time she refused to open the door for him resulted in the accused screaming, yelling, swearing and cursing; and police were called. She did not want the scene repeated. [ 42 ] Ms. Khatbe agreed with Defence counsel that just before October 2008, she went for Chinese food with Mr. Ismail. According to the complainant, she went with him because he wanted to take the daughter and Ms. Khatbe did not want the accused to be alone with the child so she went along. [ 43 ] On October 21, 2008, Ms.

Khatbe contacted police and Mr. Ismail was charged with Criminal Harassment. Ms. Khatbe left her apartment at 273 Pharmacy and for two months lived in a women’s shelter, which the complainant described as “horrible”. In November or December 2008, she left the shelter and moved to another apartment, but said the accused kept contacting her. Mr. Ismail admits he repeatedly breached the condition of his bail release to have no contact with Ms. Khatbe. [ 44 ] According to Ms. Khatbe, whose evidence is again undisputed, as his trial on the Criminal Harassment charge approached, Mr.

Ismail told her that he did not want a criminal record. Ms. Khatbe said she brokered a deal with Mr. Ismail: she would agree to a peace bond if, in return, he agreed to a divorce recognized not just in Canada, but also one recognized in Morocco.

[ 45 ] On July 28, 2009, the day before Mr. Ismail’s scheduled trial on the Criminal Harassment charge, Ms. Khatbe testified the accused told her he had arranged an appointment for her to see a lawyer. Ms. Khatbe said Mr. Ismail drove her to his lawyer’s office for independent legal advice wherein she met with counsel, Dan Brodsky. According to Ms. Khatbe, she felt that the only way to get a divorce was to agree to the accused entering into a peace bond. [ 46 ] On July 29, 2009, Exhibit 1 at this trial, Mr. Ismail entered into a peace bond for 12 months agreeing to have no contact with Ms.

Khatbe “except through counsel for family court purposes and to arrange access to your child through a mutually agreed upon third party”. Ms. Khatbe agreed with Defence counsel that she expressly did not want to have any other contact with the accused except for the limited purpose of child access. In other words, Ms. Khatbe wanted “less” not “more” contact with the accused than what is often included in a condition relating to non-association with the offender. The peace bond also included a condition that Mr. Ismail was “not to be within 100 metres of 273 Pharmacy Avenue” – Ms. Khatbe’s former address.

In August 2009, a month after the peace bond was signed, Ms. Khatbe moved back to 273 Pharmacy because she believed she would safer because the court had specifically forbade the defendant from going to that particular address. [ 47 ] Defence counsel attempted to show that Ms. Khatbe understood she had the option of asking the Court for less not more contact with the accused; hence, while she knew she could have restricted contact with him, she voluntarily chose to continue their relationship. Ms. Khatbe disagreed saying she only wanted contact with Mr.

Ismail through a third party for access to their child, but the accused refused to comply. [ 48 ] Both parties agree they had further contact almost from the get-go after the peace bond was signed. Their reasons and explanations for the contact widely differ. According to Mr. Ismail, Ms. Khatbe immediately called him while he was still in the courthouse waiting to sign the document because she continually used him as a driver, babysitter, house keeper and cook. According to Ms.

Khatbe, she called him because she wanted to know when he would fulfill their agreement by granting her a divorce because she had agreed to a peace bond. [ 49 ] On October 29, 2009, the couple received their formal divorce. Ms. Khatbe agrees she went with Mr. Ismail to the family lawyer’s office. [ 50 ] Ms. Khatbe testified she repeatedly told Mr. Ismail to leave her alone and told him that she did not want anything to do with him; however, he did not take her seriously. Ms. Khatbe repeated throughout her evidence that she wanted Mr.

Ismail to see his child and to be in his daughter’s life, but that he ought to have done it appropriately. [ 51 ] Ms. Khatbe said she was reluctant to call the police and press charges and agreed with Defence counsel she called police twice – both prior to when Mr. Ismail was criminally charged by the police. Ms. Khatbe believes the police spoke to her then husband to caution him about his behaviour. Ms. Khatbe said she could not call the police every time Mr. Ismail contacted her or came by. She said Mr.

Ismail would call her from pay phones, which is consistent with his own evidence and which is where police located him. Ms. Khatbe said her former husband was smart and would not want a record of his calling her from his own cell phone. [ 52 ] Ms. Khatbe was asked if the accused helped her move to back to her apartment of 273 Pharmacy after the peace bond had been agreed to and signed. Ms. Khatbe said she was in the middle of moving when the accused appeared.

She said she either had to deal with him or have him make a scene so she accepted a ride and told him to leave as soon as they arrived at the new address. [ 53 ] She disagreed with the suggestion that she gave Mr. Ismail her new address each time she moved. Ms. Khatbe said there were many ways for the accused to find out her address including calling her mother. Ms. Khatbe said that Mr. Ismail was still in contact with her parents – promising them that he would take care of her, which the complainant described as “lies”.

The complainant said after the accused called her family, her mother would call her accusing her of not being religious enough, becoming too westernized, and telling her she was not a good person. The complainant said Mr. Ismail would call her family and friends, but the only time she initiated contact with the defendant was to call him to tell him to stop. [ 54 ] During one point in cross examination, Defence counsel suggested to Ms. Khatbe that in fact her phone records showed that she had called Mr. Ismail as many times as he had called her. Ms.

Khatbe answered counsel’s questions repeating that she did not deny calling him but that was to tell him to stop calling her family. However, as the phrase goes, the “penny dropped” when suddenly Ms. Khatbe realized Mr. Ismail had a copy of her phone bills. Ms. Khatbe expressed shock and looked horrified asking the Court how the defendant had copies of her phone records? Ms. Khatbe’s reaction was consistent with the fear and disbelief she said she felt each time Mr. Ismail was able to successfully invade her life and privacy. [ 55 ] On November 14, 2009, at approximately 10 p.m., Ms.

Khatbe said she left her apartment building and saw Mr. Ismail’s car in the parking lot. She immediately recognized his car and was shocked that her former husband was there and “at it again”. Ms. Khatbe took a photo of the licence plates. Ms. Khatbe went to the front lobby and asked someone if they had seen the person who had parked that car. She was given a description, which she believed matched Mr. Ismail and she asked where that person went? Ms. Khatbe left her apartment building in a car driven by a male friend.

Her phone rang and it was the accused, who said “Hey, I am following you” and he described to her the colour of the car in which she was riding. Ms. Khatbe testified she was scared because Mr. Ismail was obviously following her and she was afraid the situation might escalate into something physical. Ms. Khatbe said she did not tell her friend who was on the phone, but instead asked her friend to pull over. Ms. Khatbe flagged down a police officer and explained her situation: that her divorce was final and yet her former husband was following her. Ms. Khatbe believed the police would take care of the situation.

She testified she cannot have a social life because everyone always gets scared off by Mr. Ismail. [ 56 ] Two days later, Ms. Khatbe said she had just finished getting her hair done at a neighbour's and was exiting the elevator on the 16 th floor, when she saw Mr. Ismail standing approximately six inches in front of her apartment door. Ms. Khatbe said she was shocked, terrified and frozen on the spot. She asked him what he was doing there. Mr. Ismail said nothing and rang down the hallway to the stairs. Ms. Khatbe said her husband was obsessed with her and described his spying as “an illness”.

She called police immediately and they arrived soon after.

[ 57 ] While police were still in her apartment, Ms. Khatbe received a call from Mr. Ismail on her cell phone. Ms. Khatbe testified the accused always called her from pay phones. Ms. Khatbe continued to talk to the accused while police attempted to trace his call. During the call, Mr. Ismail continued his usual harangue of telling her that she was a bad mother; that he was going to talk to her mother and tell her the same. After she attempted to have police talk to Mr. Ismail and the phone was returned to her, Ms. Khatbe testified Mr. Ismail accused her of having a boyfriend. Ms. Khatbe testified that Mr.

Ismail always assumes any male with whom she has any contact is a boyfriend and “always in the context of something wrong”. [ 58 ] Defence counsel cross examined P.C. Wayne Howell, who arrived shortly after midnight on November 16 th at Ms. Khatbe’s apartment that he did not record in his notebook that the complainant was afraid for her safety. P.C. Howell agreed there was nothing specifically in his notebook, but that he recalled Ms. Khatbe being “afraid” and “really nervous”. Consistent with the officer believing that Ms. Khatbe was genuinely afraid for her safety are two facts: (

a) the officer tried to get dispatcher to use their computer systems to track the location of Mr. Ismail’s call, which they refused, and (

b) the officer believed he had reasonable and probable grounds and charged Mr. Ismail with the offences before the court. [ 59 ] Ms. Khatbe testified she continues to live in fear of Mr. Ismail. On March 29, 2011, when she testified in court, Ms. Khatbe said she still has difficulty sleeping. She wakes in the middle of the night and even though she knows she has locked the door, she checks the locks and looks out the peephole to make sure Mr. Ismail is not standing outside. When she speaks to her friends on the phone or the internet in her apartment, Ms. Khatbe is always worried that Mr.

Ismail is listening outside of the door. [ 60 ] Overall, I found Ms. Khatbe to be a very compelling and believable witness. She gave her evidence in English, which is quite remarkable considering when she came to Canada, as an 18 year old, she spoke no English. Ms. Khatbe was very bright and extremely articulate, and she has obviously worked very hard at continuing her education and integrating into the community. Ms. Khatbe’s evidence was very consistent and despite lengthy cross examination that spanned over two days, her credibility was not shaken. When she could not remember something, Ms. Khatbe admitted it.

For example, she could not remember the first time she called the police and gave an explanation as to why. [ 61 ] Unlike, Mr. Ismail’s testimony, I did not find Ms. Khatbe’s evidence self-serving or exaggerated. She admitted having repeated contact with Mr. Ismail, who was bound by various court orders not to have contact with her. I think Defence counsel sometimes lost sight of the fact that it was his client who was bound by court orders and not Ms. Khatbe. Defence counsel unsuccessfully challenged Ms.

Khatbe about receiving independent legal advice before agreeing that her then husband could sign a peace bond. The complainant agreeing to sign the peace bond does not mean that the circumstances for the initial laying of the charge did not exist. People often agree to court orders and court imposed conditions for various reasons. I am saddened, but not surprised to hear that Ms. Khatbe agreed to the peace bond because it was the only way she believed she could get a divorce.

The fact that she subsequently received her divorce corroborated her testimony. [ 62 ] Also consistent with her evidence that she was afraid of Mr. Ismail was her agreeing to the peace bond with the less and not more contact with him. If Ms. Khatbe had wanted the kind of contact Mr. Ismail suggested she wanted – namely, to have him support her “intellectually, mentally and spiritually” as well separate and in addition to having contact with his child – then it would have reasonable for Ms. Khatbe to have asked the Court for the usual exception of non-contact except with her written revocable consent.

That was not done. [ 63 ] As well, the undisputed evidence was that Ms. Khatbe moved into a shelter with her young daughter – a pretty radical move for someone especially with a small child. It is consistent with Ms. Khatbe’s evidence she needed to get away from Mr. Ismail. Ms. Khatbe also explained why she moved back to 273 Pharmacy after the peace bond was signed; namely because the court had specifically ordered that Mr. Ismail stay away from that address so she thought she would be safer. [ 64 ] There is also the undisputed evidence that police were called at least on two occasions and Mr.

Ismail had been previously charged with Criminal Harassment in 2008. [ 65 ] Overall, I find Ms. Khatbe a very compelling and credible witness. Analysis: [ 66 ] Mr. Ismail is charged with Criminal Harassment on November 14 th with subparagraph 264(1)(

a) and on November 16 th with 264(1)(

b) of the Criminal Code which provides:

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of: (

a) Repeatedly following from place to place the other person or anyone known to them (

b) Repeatedly communicating with, either directly or indirectly, the other person or anyone known to them [ 67 ] For the Crown to have proven either or both of these offences, they must established the following:

a) It must be established Mohamed Ismail engaged in the conduct set out in section 264(1) (

a) and (

b) b) It must be established that Fatima Khatbe was harassed;

c) It must be established that Mr. Ismail who engaged in such conduct knew that Ms. Khatbe was harassed or was reckless or wilfully blind as to whether she was harassed;

d) It must be established that the conduct caused Ms. Khatbe to fear for her safety or the safety of anyone known to her and;

e) It must be established that Ms. Khatbe’s fear was, in all of the circumstances, reasonable. [2]

a) Whether the accused committed the actus reus of the offences : [ 68 ] The Crown argues Mr. Ismail ought to be convicted on both counts of Criminal Harassment: first, by “repeatedly following” Ms. Khatbe on November 14 th by parking his car outside of her apartment building and then following her and contacting her as she drove away in the car with a male friend.

The Crown also submits the Court should find the accused guilty of the November 16 th incident by “repeatedly communicating” with her by showing up yet again at her apartment door and then calling her from the pay phone; coupled with the November 14 th incident. Crown counsel submits that Ms. Khatbe had always made it known to the accused that his presence and repeated communication was unwelcomed; and that Mr. Ismail knew or was reckless in knowing that he was harassing her. Counsel submits Ms.

Khatbe’s fear of the accused was reasonable. [ 69 ] Crown counsel, in the alternative, argues if the Court finds insufficient evidence to support a finding of “repeatedly following” based on the November 14 th incident then it is still open to the court to find Mr. Ismail guilty of Criminal Harassment of “repeatedly following” based on the November 14 and 16 th , 2009 incidents as a whole. The Crown cites R.v.

S.D . [3] for the proposition that the court is not limited by the specific date on the information: in S.D. , the Supreme Court held the trial judge did not err in law convicting the respondent, who was charged with sexual interference, on the basis of a date other than the one referred to in the indictment. The majority of the Court held the accused was not prejudice and trial fairness was not compromised. [ 70 ] Defence counsel argues the Court is limited to the events of November 14, 2009 and Mr. Ismail should be acquitted because there was no “repeated communication” – only the one phone call to Ms.

Khatbe in the car. Furthermore, Defence argues the court ought to accept Mr. Ismail’s innocent explanation for trying to communicate with his wife on both November 14 and 16 th . The couple had ongoing communication throughout their separation and, therefore, Mr. Ismail would not have reasonably known nor was he reckless in knowing that his contact with his former wife was harassing and causing her fear. Further, counsel argues any fear Ms. Khatbe says she experienced was unreasonable because she admitted ongoing and continual contact with Mr.

Ismail throughout their separation and the officer did not make any notation that Ms. Khatbe was afraid. [ 71 ] Parliament by including the word “repeatedly” in subparagraphs 264(2)(

a) and (

b) clearly intended conduct that was repeated on more than one occasion. [4] [ 72 ] With respect to November 14 th , Ms. Khatbe testified she was first alarmed when she noticed the accused’s vehicle parked in the parking lot. To her that meant Mr. Ismail had driven over to her building and was following her. Next as she and her friend left the building, Mr.

Ismail called her and according to her evidence he told her he was following her and described her friend’s vehicle, as further confirmation. [ 73 ] I am satisfied those two incidents on November 14 th , albeit close in time, are sufficient to constitute “repeatedly” especially in light of the context of the parties’ relationship coupled with a finding that Mr. Ismail actually followed Ms. Khatbe out from the parking lot and called her. [ 74 ] On November 16 th , Mr. Ismail again returned to Ms. Khatbe’s building and was still present when she stepped off the elevator.

However, he did not speak to her and only communicated with her later when he telephoned her. [ 75 ] I am not satisfied the events of November 16 th constitute two distinct occasions where Mr. Ismail communicated with Ms. Khatbe so as to be considered “repeated” communication.

As such, I find the Crown has not proven count #2 as particularized. [ 76 ] However, I accept the Supreme Court of Canada’s position in S.D. , supra , as permitting me to make a finding that the actus reus of the offence of Criminal Harassment was made out “on and between November 14 and 16, 2009” by both “repeatedly following her from place to place” and “repeatedly communicating with her”: and that the information can be amended without prejudice to Mr. Ismail’s fair trial interests. (

b) Was the complainant harassed by the accused’s conduct : [ 77 ] Evidence of conduct between the parties prior to dates in the information is admissible to establish that as a consequence of the conduct covered within the timeframe of the information, the complainant felt harassed. In order to appreciate the impact of the prohibited conduct and the gravity of the wrong committed, the entire factual context must be considered [5] . [ 78 ] Based on my earlier findings and findings of prior discreditable conduct on the part of Mr. Ismail, I am fully satisfied that Ms. Khatbe felt harassed on the dates in question.

Prior to November 2009, Ms. Khatbe had taken concrete steps to protect herself from the accused including contacting police at least on two occasions; the accused was charged with Criminal Harassment in 2008; Ms. Khatbe moved to a shelter; she asked for less not more contact on the peace bond; and she moved back to 273 Pharmacy after the peace bond was signed because she thought she would have more protection from Mr. Ismail. Each of these steps are consistent with Ms. Khatbe feeling harassed. I also accept Ms.

Khatbe’s evidence that she tried to persuade her family to let her leave him but based on her culture and upbringing she did not leave until finally she became concerned for her physical well being. I reject the accused’s evidence that November 14 and 16 were typical occasions wherein Ms. Khatbe agreed that he could simply drop by her apartment. [ 79 ] As such, the conduct of Mr. Ismail on November 14 and 16, 2009, was not only a continuum of Mr. Ismail refusal to respect Ms. Khatbe and the Court which had ordered him to stay away from the complainant, but was an escalation because now he was stalking her.

Hence, I am satisfied Mr. Ismail’s conducted resulted in Ms. Khatbe being harassed. (

c) Did Mr. Ismail know that Ms. Khatbe was harassed by his conduct or was reckless or wilfully blind as to whether she was

harassed ? [ 80 ] Mr. Ismail denies he knew his conduct caused Ms. Khatbe to be harassed. He paints a picture, whereby he was welcome and used by Ms. Khatbe to do her favours and chores. I have already rejected Mr. Ismail’s evidence as self-serving and fanciful. Where Ms. Khatbe’s evidence differs from the accused’s, I accept the complainant’s version of events. [ 81 ] Mr. Ismail clearly knew he was not welcome at Ms. Khatbe’s apartment: hence, by his own admission he had to wait downstairs in the lobby of the apartment for someone to let him in or find the door open. He testified Ms.

Khatbe would not let him in the apartment building and if she were home, but no one let him in, then he would leave. [ 82 ] As well, on November 16 th , when he saw Ms. Khatbe coming off the elevator, Mr. Ismail asks the court to believe he was there for an innocent purpose of seeing his child and telling her about the loan; yet he did neither. Instead, he ran away which is consistent with his guilty conscience. The reasonable inference of Mr. Ismail’s flight was he ran because he knew he was at Ms.

Khatbe’s address without permission, in breach of a court order, and because his purpose for being there was to keep tabs on Ms. Khatbe – her comings and goings and with whom she was associating. [ 83 ] Willful blindness applies where the accused suspected that he was or would be guilty of an offence if he persisted in his conduct but despite this suspicions he refused to make inquiries to confirm or deny them [6] : Willful blindness applies where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.

A court can properly find willful blindness only where it can almost be said that the defendant actually knew. [7] [ 84 ] I find there is ample evidence to find – not that Mr. Ismail was wilfully blind – but rather that Mr. Ismail intended that his repeated following and communicating with Ms. Khatbe, was to instil in her fear: to let her know that he was omnipotent and he could do what he wanted even in spite of all court orders. Mr. Ismail had manipulated the complainant practically since the day they met on the chat line.

He manipulated and controlled her in their marriage, made her frightened of imaginary strangers knocking on her door when she was alone, and played on her culture and obedience to her parents to have Ms. Khatbe remain in the marriage in spite of years of abuse. [ 85 ] I find Mr. Ismail’s goal was to destroy the complainant’s psychological and emotional well being by a campaign of deliberate and continual harassment. (

d) Did Mr. Ismail’s conduct result in Ms. Khatbe fearing for her safety : [ 86 ] I fully accept Ms. Khatbe’s evidence that Mr. Ismail’s conduct on November 14 and 16 th caused her to fear for her safety. She immediately contacted police, as she had done in the past, and reported the conduct. The fact that P.C. Howell did not record in his notebook that Ms. Khatbe was afraid does not undermine her credibility. The officer testified he remembered Ms. Khatbe being afraid and nervous and he took steps including tracking the accused to the phone booth and charging Mr. Ismail criminally. (

e) Has the Crown established that Ms. Khatbe’s fear was, in all of the circumstances, reasonable ? [ 87 ] The court is also entitled to consider the prior discreditable conduct to provide context within which to assess not only the effect of the incidents on Ms. Khatbe and whether the conduct of Mr.

Ismail was of such a nature that he knew she would be fearful, but such evidence can also provide the necessary context in which to consider whether her fear was objectively justifiable. [8] [ 88 ] I would only be repeating myself to review the many areas wherein I find the complainant’s evidence credible and reliable. Ms. Khatbe’s fear of Mr. Ismail’s conduct on November 14 and 16, 2009 was objectively reasonable based on years of abuse and manipulation. Conclusion: [ 89 ] I am wholly satisfied that the Crown has proven the essential elements of Criminal Harassment.

However, the information shall be amended to read:

a) Count 1 – “….on or between November 14 and 16, 2009, in the City of Toronto, in the Toronto Region, knowing that Fatima Ezzahra Khtabe is harassed did without lawful authority repeatedly follow Fatima Ezzahra Khtabe from place to place thereby causing Fatima Ezzahra Khtabe to reasonably, in all the circumstances, fear for her safety contrary to the Criminal Code ;

b) Count 2 – “….on or between November 14 and 16, 2009, in the City of Toronto, in the Toronto Region, knowing that Fatima Ezzahra Khtabe is harassed did repeatedly communicate directly or indirectly with Fatima Ezzahra Khtabe thereby causing Fatima Ezzahra Khtabe to reasonably, in all the circumstances, fear for her safety contrary to the Criminal Code [ 90 ] As such, Mohammed Ismail will be found guilty of count 1 and count 2 will be stayed. [ 91 ] Mr. Ismail has already pleaded guilty to count 3 and 4 of breaching a

section 810 peace bond.

Released: June 13, 2011 Justice M. Wong [7] R. v. Sansregret (1985), (SCC), 18 C.C.C. (3d) 223 (S.C.C.).