2022 QCCQ 6363, 2022 QCCQ 6363

R. c. Scholey 2022 QCCQ 6363 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU «Criminal Division» No: 550-01-119382-200 DATE: May 2, 2022 ______________________________________________________________________ BY THE HONOURABLE ROSEMARIE MILLAR, J.C.Q. ______________________________________________________________________ THE QUEEN v.

NATHAN WINSTON SCHOLEY Accused ______________________________________________________________________ VERDICT ______________________________________________________________________ [ 1 ] Nathan Winston Scholey is charged with assaulting Sara Ozra Mehvari on August 1 st , 2020, in Val-des-Monts. [ 2 ] Mrs. Mehvari claims she was pushed once by Mr. Scholey which he denies. [ 3 ] The Court must decide if the prosecution has met its burden of proving beyond a reasonable doubt that the accused assaulted the complainant. [ 4 ] For the following reasons, the Court finds that there is no reason not to believe Mr.

Scholey and acquits him. CONTEXT [ 5 ] The accused and Mrs. Mehvari lived as common law partners for seven years and are the parents of two children X, 6 years old and Y, 4 years old. [ 6 ] At the time of the separation, they lived in Val-des-Monts. [ 7 ] The evidence shows a significant family conflict situation in Superior Court. [ 8 ] At the time of the offence, separation was pending, as they were living in the same house but the accused stayed in the basement from February 2020 until Mrs.

Mehvari left with the children on August 13 th , 2020. [ 9 ] On July 31 st 2020, Me Kim Gauthier Le Breton, lawyer for Mr. Scholey, sent a letter by email to Mrs. Mehvari informing her of her client’s intention to separate and to undergo mediation. [ 10 ] On August 1 st , 2020, an incident happened while Mr. Scholey was giving the bath to his children, as it will be more described later in this judgment. [ 11 ] On August 13 th , 2020, Mrs. Mehvari left the home with the children without letting the accused know where she had gone. [ 12 ] On August 14 th , 2020, Mrs.

Mehvari filed procedures for separation in Ontario. [ 13 ] On August 17 th , 2020, the accused’s lawyer filed procedures for separation in Québec. [ 14 ] On this same date, the accused was arrested for assault on the complainant. FACTS [ 15 ] Mrs. Mehvari is 41 years old and works for the federal Government. [ 16 ] After more than 7 years of common law partnership, in the winter of 2020, there were significant tensions between her and Mr.

Scholey and he moved to the basement. [ 17 ] On August 1 st , 2020, Mr. Scholey was in the bathroom giving a bath to the children, aged 4 and 2 at the time. [ 18 ] Mrs. Mehvari was concerned for the safety of the children and in particular due to the fact that the accused was running the water too hot for them. This was a concern for Mrs. Mehvari. [ 19 ] Mrs. Mehvari went into the bathroom to ensure that the water temperature was not too hot. According to the accused the water temperature was fine. The water was hot according to Mrs. Mehvari. She turned on the cold water. Mr.

Scholey became angry and switched the water back to hot. Then, he pushed her and she fell down the shower glass. She said ‟don’t touch me” and left very scared. [ 20 ] The whole event lasted 2 minutes. The next day she went for a walk with the dog and called the police. It was the first time an incident like that had occurred. [ 21 ] Mr. Scholey’s testimony is different. [ 22 ] Mr. Scholey is 46 years old.

He was in the military before, then went to law school and wrote his Ontario Bar exams in April 2022. [ 23 ] After living in Fredericton in New Brunswick for a few years, the family moved to Val-des-Monts in July 2019. [ 24 ] Mr. Scholey also states that things became unmanageable between the couple in the winter of 2020. [ 25 ] On February 6 th , 2020, he sent Mrs. Mehvari a letter to tell her that the relationship was over and they had to move on. [ 26 ] He expected Mrs.

Mehvari to get a job, as she was a stay home mother. [ 27 ] She proposed couple’s counselling, which they did undergo, but he focused on separation and according to Mr. Scholey, she seemed not to accept the separation. [ 28 ] In February 2020, having Covid symptoms, Mr.

Scholey moved into the basement and stayed there. [ 29 ] They continued to share the house. [ 30 ] On August 4 th , 2020, after his release from the military, he began his articling at the Federal Martial Court. [ 31 ] On August 1 st , 2020, he gave the bath to the children as he did regularly. [ 32 ] He went to prepare the bath by starting to fill it with hot water. He was crouched down next to the tub. The water was hot and he cooled it by adding cold water. He checked the temperature. [ 33 ] Mrs. Mehvari came in the bathroom and stood right next to him. She began to check the water.

He moved his hands as she was inside his space. He tried to get some space for himself, lifting his arms in the air and it happened again as she was basically on top of him. He stood up and took a step back. She said ‟don’t touch me”. He responded ‟don’t touch me” and there was no contact. They were 3 feet apart. [ 34 ] He denies touching or threatening her. ANALYSIS [ 35 ] The versions are contradictory. [ 36 ] The Court is not required to choose one version over another. [ 37 ] The Court has to follow the rules established by the Supreme Court in the case R. v.

W. (D.) [1] when credibility is the issue: ‟First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.” [ 38 ] Does the Court believe the evidence of the accused? [ 39 ] The question is simple and if it is answered positively, the Court must acquit the accused. [ 40 ] Mr. Scholey testified in a composed and sober manner. [ 41 ] Mr. Scholey did not discredit his ex-common law spouse, telling the Court he had respect for the mother of his children.

[ 42 ] Despite the fact he was under stress for his for exams and the fact he was arrested for a breach of recognizance in Ottawa for which he was not convicted, Mr. Scholey appeared calm and not vindictive. [ 43 ] The evidence shows that the matrimonial case is still highly contested and there are allegations of contempt of Court by Mrs. Mehvari [2] , but Mr. Scholley has remained calm. [ 44 ] According to Mr. Scholey, it appears that Mrs.

Mehvari was trying to frame him to obtain full custody of the children. [ 45 ] For example, the Court heard stories of visits at the Children Hospital for Eastern Ontario (CHEO), each time after the children came back from visits with their father. [ 46 ] Even if Mr. Scholey finds the battle in Superior Court total unnecessary, the Court notes that he does not blame his ex-common law spouse. [ 47 ] His explanation for the August 1 st 2020’s incident is clear and credible. [ 48 ] According to the prosecution, Mr.

Scholey’s testimony is not credible because he remembers exactly what happened on that day despite nothing unusual occurring, according to him. [ 49 ] The Court disagrees with this argument: Mr. Scholey learned 12 days after that day that he was being charged for assault. He was about to do his articling in a Court of Justice and to begin a matrimonial case in family Court. This is stifling for him. It is certainly not usual. [ 50 ] He explained he began to think about what happened that day. [ 51 ] It is inaccurate to say that nothing unusual happened. According to Mr.

Scholey’s testimony, he had to step back in the bathroom because Mrs.

Mehvari was in his personal space twice and she told him not to touch her and he did the same, all of that because of water temperature in a bath for their children. [ 52 ] According to the prosecution, the Court should not believe him because he has an interest not to tell the truth. [ 53 ] The Court disagrees with that argument since every accused would have such an interest and would not be believed. [ 54 ] The Court observed the accused during his testimony, his behavior during examination in chief and in cross examination and concludes that Mr. Scholey’s seems credible. [ 55 ] Mr.

Scholey’s version is not farfetched. It is not unbelievable and is plausible. [ 56 ] He explained that he thought Mrs. Mehvari was scrutinizing him to find a way to show him in a negative light in order to frame him. [ 57 ] Considering the context of the significant conflict related to the family Court case, the Court is not surprised and takes that aspect seriously. [ 58 ] For all these reasons, the Court has no reason not to believe the accused’s version of events. [ 59 ] Consequently, the Tribunal must acquit the accused.

FOR THESE REASONS, THE COURT: FINDS the accused not guilty. __________________________________ ROSEMARIE MILLAR, J.C.Q. Me Simon Pier Cossette Criminal and penal prosecutor Me Michel Swanston Counsel for the accused Dates of hearing: October 22 nd , 2021 and April 5 th , 2022