2022 QCCQ 12518, 2022 QCCQ 12518

R. c. H.W. 2022 QCCQ 12518 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU. Criminal and Penal Division No: 550-01-116008-204 550-01-117602-203 550-01-117908-204 DATE: MAY 18, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE ALEXANDRA MARCIL, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. H. W. Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ This file is subject to an order under

section 486.4 of the Criminal Code , prohibiting the publication or dissemination in any manner of any information that would identify the complainant. TABLE OF CONTENTS INTRODUCTION .. 2 ANALYSIS .. 3

PART 1—THE LAW ... 3

PART II—APPLYING THE LAW TO THE FACTS .. 4 PRELIMINARY REMARKS CONCERNING SOME PARTS OF THE EVIDENCE .. 4

A) THE CREDIBILITY OF THE ACCUSED AND OF THE COMPLAINANT . 5 1) THE CREDIBILITY OF THE ACCUSED .. 6 2) THE CREDIBILITY OF THE COMPLAINANT . 7

B) THE EVIDENCE RELATED TO THE THREE FILES .. 9 FILE 550-01-117908-204: 9 COUNT 1: ASSAULT .. 9 COUNT 2: ASSAULT CAUSING BODILY HARM .. 12 COUNT 3: ASSAULT USING A WEAPON .. 14 COUNT 4: SEXUAL ASSAULT . 17 FILE 550-01-116008-204: 20 FILE 550-01-117602-203: 24

CONCLUSIONS . 25 INTRODUCTION [ 1 ] H. W. is on trial for three files in a domestic violence setting. The complainant is his former spouse. In file 550-01-117908- 204, he is charged with the following counts: Assault [1] , assault causing bodily harm [2] , assault using a weapon [3] and sexual assault [4] . In file 550-01-116008-204 , he is charged with assault [5] , uttering threats [6] and intimidation [7] . In file 550-01-117602-203, he is charged with a breach of condition [8] , which was not to communicate with his former spouse. [ 2 ] The accused was born in Iran and his father is from Irak.

He moved to Canada in 1999 with his parents and sisters. In 2008, he met the complainant, who was about 17, while he had seven or eight years older. They dated for a few years, before their wedding at the end of 2012. They first lived in the basement of the accused sister and later moved to their own condo. Quickly the chemistry became difficult. [ 3 ] According to the complainant, they came from a different culture, despite both Arabic. While she came from a liberal family, according to her, the accused culture and family was more conservative about men and women relationships, requesting her to be submissive.

She was opposing the accused, which was causing arguments and physical violence. She testified that acts of physical and sexual violence started early, and occurred regularly during their 6-year relationship. During the trial, she testified on specific incidents relevant to each count in the three files. [ 4 ] According to the accused, their difficulties were caused by personal matter. The complainant has a big character. According to him, she was trying to control him and wanted to be the “big boss”. She was choking him while he loved going out, partying and drinking.

He met someone else at the end of 2016 while she was pregnant. He admits that their relationship was problematic and that they were pushing each other a lot, and he also admits that he slapped her when she slapped him. But he denies the specific incidents charged in the three files. The defence attacks the complainant’s credibility. [ 5 ] This trial is largely based on the assessment of credibility and reliability. The Court must determine whether all ingredients of all offences are demonstrated beyond a reasonable doubt. ANALYSIS

PART 1—THE LAW [ 6 ] A person charged with criminal offences is presumed innocent until proven guilty beyond a reasonable doubt. The presumption of innocence is the cornerstone of criminal law. Protected by s. 11(

d) of the Charter, it is intended to safeguard the liberty and human dignity of a person who is accused of criminal conduct and who, as a result, may face serious consequences, including the possibility of deprivation of liberty. The presumption of innocence and the standard of proof beyond a reasonable doubt are intended to prevent an innocent person from being convicted of an offence that he or she did not commit. As the Supreme Court points out, this would be an unacceptable result in a free and democratic society [9] . The standard of proof “beyond a reasonable doubt” places a heavy burden on the prosecution.

This burden never shifts to the accused. [ 7 ] This Court must not choose between the versions of the accused and of the complainant. The burden of proof rests on the prosecutor, who must proof the guilt beyond a reasonable doubt. The standard of proof beyond a reasonable doubt applies to the evaluation of conflicting testimonies, as explained by the Supreme Court in R. v. W. (D.). The three-step test set out in that case is well known: - First, the judge must ask himself whether he believes the accused testimony.

If he does, he must acquit. - Second, if the judge does not believe the accused’s testimony, he must ask himself whether that testimony raises a reasonable doubt, taking into account all the evidence. If there is such a doubt, the judge must acquit. - Third, if the testimony of the accused does not raise a reasonable doubt, the judge must determine whether the evidence he retains demonstrates beyond a reasonable doubt that the accused committed the crime. Again, if there is a reasonable doubt about the guilt of the accused, the judge must acquit [10] .

PART II—APPLYING THE LAW TO THE FACTS [ 8 ] The Court will start with preliminary remarks concerning some parts of the evidence. Then the Court will present its analysis of the accused’s credibility as well as the complainant’s credibility. The last subsections contain the Court’s analysis on each count. PRELIMINARY REMARKS CONCERNING SOME PARTS OF THE EVIDENCE [ 9 ] Some parts of the evidence will not be considered in the analysis on each count. [ 10 ] It is the case where they are not directly relevant to the charges but only intended to describe the accused as someone violent.

Evidence of propensity or evidence of bad character is inadmissible when its only purpose is to establish that the accused is the kind of person likely to have committed the offence. Acts of extrinsic misconduct by the accused or “ discreditable conduct,” such as threats or assaults, may be admitted as exceptions to the general principle, if they are useful for the resolution of the litigation. But in the case at bar, many allegations are so general that they could hardly be the subject of an efficient cross-examination and judicial challenged. This type of evidence has an unfair effect on the accused.

Then the prejudicial effects to the fairness of the trial outweigh the probative value. [ 11 ] Some parts of the complainant’s testimony are too prejudicial considering their low probative value. Some allegations are too

general and prejudicial to the accused, and or have no time frame allowing this Court to assess whether they are relevant to the charges. [ 12 ] The complainant’s mother testified that one day the accused jumped on her while screaming and calling her names in a very aggressive manner, that he threatened to cut their throat and burn them alive. The prosecutor submits that this incident was intended to demonstrate that the accused has a violent temper, which is in principle prohibited and inadmissible. [ 13 ] Moreover, this witness also testifies that she wrote to the accused sister to inform him of this incident.

The statement of a witness is hearsay and is in principle not admissible. It is also self-serving evidence. [ 14 ] In addition, the Court does not give much credibility to this witness. She has family reasons and financial reasons that may explain her will to testify against the accused, and does not show enough neutrality. [ 15 ] The complainant made some allegations of a general nature without any time frame or outside the time frame of the charges. For instances, she testified that the accused was constantly hitting her and that she was wearing long clothes to cover her bruises.

She also said that when he was criticizing the way she was dressed, she would answer and he would give her a beating. She also testified in a general manner that while they were in the car, the accused would take her head and smashed it on the dash board or push her arm and hit her upper thigh.

She also testified that, after the marriage but before November 2019, at the Riverside Park, the accused slapped her. [ 16 ] No request for the admission of bad character evidence nor for the admission of similar fact evidence has ever been filed in the accused’s trial. [ 17 ] According to the complainant, there were damages to their condo up to between 5000 and $10,000.

This evidence is prejudicial to the accused and only serves to portray the accused as violent, without, however, having enough probative value with regard to the charges. [ 18 ] Finally, all the relationships of the accused with other partners prior to his marriage with the complainant are not relevant to the charges. This is of no use here. [ 19 ] All these parts of the evidence will not be considered.

A) THE CREDIBILITY OF THE ACCUSED AND OF THE COMPLAINANT [ 20 ] Our conclusions were reached after carefully analyzing all of the evidence, not in a vacuum, but as a whole, at the end of the trial. They are presented in the two following subsections, although relevant throughout the Judgment. 1) THE CREDIBILITY OF THE ACCUSED [ 21 ] For the following reasons, the Court finds that the accused lacks credibility. [ 22 ] The accused testimony lacks transparency. Many answers he gave were aimed at avoiding contradictions with his previous statement.

First, the accused pretended that he does not remember the interview he gave to the police although it was a 3-hour interview given in 2018. Second, he claimed that during this interview he could not understand since the police spoke to him in French, so he asked to reject his entire interview, on the basis that it was in French. T he Court notes that the accused’s knowledge of French is considerable. Indeed, during his police interview, he did not raise that he would not understand properly and, obviously, he understood and spoke French quite well.

In addition, during the trial when the accused sister testified in French, the accused refused the services of an interpreter [11] . [ 23 ] At trial, the accused doesn’t always seem to answer with good faith. For instance, he mentioned that he went to rehab therapy, but when asked for what problem, he had a hard time answering. Also the accused was shown pictures of his bed, which he first claimed not to recognize.

In addition, he pretended not to recognize detective Lapointe, although he had a 3-hour videotaped interview with him. [ 24 ] The accused downplays his drinking problems, claiming to have no alcohol problems and mentioning drinking: “like a normal guy.” However the evidence suggests the opposite. On many occasions he admitted that he loves drinking. He has two impaired driving priors involving alcohol. Even his younger sister J.J.

W., who tried to present him in his best light, recounted having often told him that alcohol was not good for him and that he should reduce his consumption. [ 25 ] The accused claims that he is not physically violent, despite his priors on the following: uttering threats, assault, assault causing bodily harm, assault with a weapon, and assault on a peace officer. Confronted with his priors, he answered that he intends to request the withdrawal of his guilty pleas. [ 26 ] The accused doesn’t always seem willing to tell the truth . At first, he started claiming that he always tells the truth.

Then he testified that he doesn’t always tell the truth to the police because he doesn’t trust them. When confronted with inconsistencies between his statement and testimony, he answered he was taking painkillers during the interview. According to him, he said certain things just in order to please the detective. With other people, the accused said that he “ tries ” to tell the truth.

Finally he admits that he wouldn’t tell the truth to his wife. [ 27 ] The accused testified in a way that reveals a lack of concern for the accuracy of the facts, giving a large number of answers like “maybe” or “I don’t know” or “if you say so.” He often gave evasive, imprecise and vague answers, as we will see throughout this judgment. [ 28 ] Consequently, with all due respect, the Court finds that the accused’s credibility is very low. He is not believed. 2) THE CREDIBILITY OF THE COMPLAINANT [ 29 ] The defence attacks the complainant’s credibility in several respects, pleading:

a) that she is not a typical victim,

b) that her

claims would be recent fabrications and revenge after she learned that he was seeing another woman; and

c) that her story is uncorroborated and contains vague allegations with no timeframe.

a) The Untypical Victim [ 30 ] According to the defence, the complainant is aggressive. She would often scream or prevent him physically from leaving the house. J. W. testified about the complainant’s general negative attitude. She also testified about the incident on November 10, 2019, where the complainant hit the accused in his back.

In addition, written exchanges between the complainant and the accused, filed as Exhibit P-2, showing that the complainant calls him: a monster, an animal, crazy and mentally ill, selfish, negligent and disgusting, piece of shit, losers, God’s punishment and disgusting devil. [ 31 ] At trial, the complainant testified that she let off steam in writing but would not have told him this in person, since he would have killed her. She admits that it is in her nature to argue and oppose. The Court notes that this was noticeable during her testimony.

However this does not mean she was not telling the truth under oath. [ 32 ] To suggest that the complainant seems too aggressive to be a typical poor victim would amount to a stereotype or prejudice. The Court should not make inferences about the complainant’s credibility based on prejudice or stereotypes concerning how a typical or normal victim would be expected to act. The Court must draw inferences that flow reasonably and logically from the facts adduced into evidence. T he typical victim’s characteristics and behavior are not part of the evidence and would not be a matter for judicial notice.

There is no evidence that gentle and submissive women are more often abused or beaten. [ 33 ] The testimony of J. W. does not undermine the complainant’s credibility. First, as we will see, when considering the incident on November 10, 2019, the Court does not give much credibility to this witness. Second, after this incident, J. recounted having gone to the police station but was told that there were no grounds for a complaint against the complainant.

b) The Allegation Of Recent Fabrications [ 34 ] The defense pleads recent fabrication. According to the accused, the complainant’s difficulty to accept his double life would explain her complaint. According to him, she filed a first complaint as soon as she learned about his new girlfriend, and withdrew it later, expecting him to be back. [ 35 ] The Court notes that there may be a connection between the loss of hope in a relationship and the filing of a complaint. But this does not mean that the complaint is untrue. [ 36 ] The fact that the complainant withdrew her complaint in 2019 does not mean much.

It may be explained by the context of terror that flows from the evidence. The complainant explained that, on multiple occasions, the accused and his family asked her to drop the charges. [ 37 ] The complainant has certainly a lot of bitterness and anger towards the accused. She learned that he had started dating another woman while she was carrying their child. Also, she explained that the accused wanted polygamy. The allegation is not new. We find traces of it in their text messages files under P-2, at p. 2 [12] .

But the complainant’s anger and bitterness do not lead the Court to think that she is not telling the truth under oath. [ 38 ] Some pieces of evidence suggest that the complainant’s allegations are not recent fabrication. In Exhibit P-2, the complainant referred more than once to the accused using physical violence on her.

c) The Uncorroborated Allegations Without Dates [ 39 ] As correctly stated by the defence, there is few corroboration of the complainant’s version, and none regarding the sexual assault count. [ 40 ] The complainant gave satisfactory explanations in this regard. Over the years of their marriage, she did not take any pictures of her injuries and was not gathering information against her husband. [ 41 ] Corroboration is not required.

If the Court exercises care and if the complainant’s testimony is credible and reliable, the verdict may be based on a single testimony. [ 42 ] The complainant was often unable to mention specific dates. However it can be explained by the passage of time, by the duration of their marriage and by the repeated incidents. The date is usually not an essential element of a crime. In g eneral, her recollection seems good , although some incidents are not recent.

She used adequate temporal landmarks. [ 43 ] In sum, regarding the complainant’s credibility, the Court finds that her aggressive personality does not make her a less likely person to be victimized. Several elements contradict the allegation of recent fabrication. Her recollection of the alleged incidents seems quite detailed even without being able to provide specific dates. And her account does not need to be corroborated if credible and reliable. [ 44 ] This complainant seems to be telling the truth.

She gave a day and a half long detailed testimony, and was not particularly shaken during the cross-examination. She seems honest and sincere. The Court has no good reason to disbelieve her testimony. The Court finds the complainant credible. The reliability of her accounts will be assessed in relation to each incident.

B) THE EVIDENCE RELATED TO THE THREE FILES FILE 550-01-117908-204: [ 45 ] The first file concerns incidents that are alleged to have been committed in Town A between January 2013 and June 2018

during the couple’s marriage. COUNT 1: ASSAULT [13] [ 46 ] Two different incidents are to be considered.

a) The Strangulation Incident [ 47 ] The complainant testified that while she was pregnant, she and the accused had a fight. They were in the room devoted to their future baby. The accused took her throat and choked her on the ground while being on top of her [14] . [ 48 ] The accused denies having strangled her and testified that he never saw any bruises on her neck. As explained earlier, the credibility of this accused is very low. His general denial is not believed and does not raise a reasonable doubt.

The burden of proof rests on the prosecutor. [ 49 ] The Court notes that the complainant’s account regarding this strangulation incident is detailed and reliable. [ 50 ] The complainant’s account is partly corroborated. Indeed, witness Ju. Ha., a former colleague, testified about one day, before the birth of their child so before October 2016, where she noticed redness on the complainant’s neck, despite the fact that she was trying to hide her neck with a scarf. This witness has no reason to lie. She is reliable and credible.

b) The Hair Pulling Incident [ 51 ] The complainant testified about another incident while they were living in their condo. Their child was about one year old. She and the accused had a fight. At the time, the accused was consuming opium. He couldn’t find his opium and was suspecting her of having taken it. The accused took the complainant by the hair. He threw her on the floor and pulled her by the hair, about five metres, from the baby’s room to the living room, while she was begging him to stop.

She said she lost hair during this incident. [ 52 ] In response to this specific allegation, the accused testified as follows: “Me Cossette : So, must I understand that you never took her by the hair? The accused: I don’t remember. Me Cossette : You don’t remember or you did it? The accused: I don’t remember. Me Cossette : You don’t remember? The accused: No, Sir. Me Cossette : So maybe you took her by the hair? The accused: Maybe not. Me Cossette: Ok The accused: I don’t know. Me Cossette : Because you don’t know, you said at the video you were quite affirmative that you never did that?

The accused: So I didn’t, I guess. Me Cossette : You guess you didn’t? The accused: But I don’t know what I said there. I don’t even remember what I said. Because I said, I wasn’t good, so (…) The Court: You may answer with your own memory (…)? The accused: Maybe I pushed her or something, but pulled her, no I didn’t, no.” [15] [ 53 ] As we can see, his version is evolving. It is therefore not credible. His denial is not believed and his evidence does not raise any reasonable doubt. The burden of proof rests on the prosecutor. [ 54 ] The complainant’s version is well detailed and reliable.

She remembers this specific incident vividly. The accused confirms that he was using opium in late 2017, which is consistent with the complainant’s version that the incident took place in the fall of 2017. [ 55 ] According to the prosecutor, the complainant’s testimony is corroborated by Exhibit P-2 [16] , which contains text messages between the complainant and the accused.

On page 5, a message from the complainant to the accused states: “you ripped my hair from my head you beat me you almost killed me last night.” The prosecutor argues that the accused’s written answers did not explicitly deny the complainant’s allegation. [17] [ 56 ] The Court notes that Exhibit P-2 contains no denial of this incident, but also no admission on the part of the accused in relation to this alleged incident.

[ 57 ] In principle, a witness must come and testify before the Court. Prior statement is hearsay and in principle inadmissible. Exhibit P-2 was admitted for the limited purpose of demonstrating that the said allegation was not recent fabrication. It lacks probative value for demonstrating that this alleged hair pulling incident occurred. Consequently, the Court concludes that this exhibit does not corroborate the incident. [ 58 ] However, corroboration is not required. The complainant’s account is considered detailed and reliable. Despite the cross- examination, her account stands.

The complainant is trustworthy and credible. [ 59 ] In conclusion, on Count 1, considering all of the evidence, there is no doubt that the accused used force intentionally, without the consent of the complainant, during the two incidents: when he choked the complainant and when he pulled her by her hair. The mens rea flows from the evidence. These acts of violence were not accidental, but were done intentionally without the complainant’s consent. The accused took the time to get on top of her to squeeze her throat. Moreover, when he was pulling her by her hair, she begged him to stop.

The Crown has met its burden. The Court finds that all ingredients of the charge of assault are demonstrated beyond a reasonable doubt. COUNT 2: ASSAULT CAUSING BODILY HARM [18] [ 60 ] Several allegations are to be considered as relevant.

a) The Eye-Popping Incident [ 61 ] The complainant testified that at the end of 2013, after she had an eye surgery, she and the accused had a fight. As they were in the bathroom, the accused took her by the throat, pushed her against the wall and hit her in the eye so hard that her eye swelled up immediately. She had bruises all over her eye. She had to take off from work and isolate herself for quite a long because of the apparent black-eyed.

When she went to the doctor, he asked multiple questions, but she kept the same story told by the accused, that she was hurt by the steering wheel. [ 62 ] The accused denied having ever hit the complainant. He also testified that he never saw her with a black-eyed. [19] [ 63 ] The accused’s denial is not believed, and his evidence does not raise a reasonable doubt. But this is not the end of the analysis since the burden of proof rests on the prosecutor. [ 64 ] The complainant’s account regarding this incident is well detailed and reliable.

We note that the medical report filed under Exhibit P-15, at p. 2, confirms that the complainant had an eye surgery in 2013. This is consistent with the complainant’s version, which places the alleged incident at the end of 2013. As explained earlier, the complainant is considered credible.

b) The Incident Of Her Head Smashed On A Table [ 65 ] The complainant testified that before the birth of their child, so before October 2016, while they were at the house of the accused’s sister, she got agitated and the accused started moving his legs in an irritable way and then shaking, trying to hold himself. Suddenly, he took the complainant’s head with his right hand and strongly smashed it on the dining table. The whole family was present. Two of them had to take the accused and hold him, while the complainant was brought upstairs and laid down.

She couldn’t walk because of the pain and dizziness. [ 66 ] The accused denies having hit the complainant. We recall that the accused lacks credibility. His denial of the alleged incident is not believed and his evidence does not raise a reasonable doubt. We also note that no one from his family came to Court to deny this allegation. The accused’s sister J. W. was not examined in this regard. [ 67 ] The burden of proof rests on the prosecutor beyond a reasonable doubt. The complainant’s account regarding this incident is well detailed and reliable. As explained, the complainant is considered credible.

c) The Chocking Incident [ 68 ] According to the complainant, after the birth of their child, one night, the accused came home intoxicated and woke her up. They started having argument. At some point, while she was sitting at the end of the sofa, the accused jumped on her, chocked her with both hands on her neck. She pushed him, but he came back and continued chocking her while pressing his knees on her arms. According to her, this incident lasted for so long she thought she was going to die. She couldn’t breathe, her strength was leaving and she could not push him back.

Her arms were numb, she saw bright spots and her vision blurred. As the accused finally released her, she stayed on the ground coughing and trying to take her breath. After this incident, her voice was coarse, her arms were completely covered with bruises because of the accused’s knees, and her neck had blood under the bruises. [ 69 ] The accused denies hitting the complainant or choking her. He also denies having seen any bruises on the complainant’s arms.

The defence argues that on many occasions the complainant attacked the accused, who had to defend himself by holding her harms, which may have caused bruises on her arms. [ 70 ] However, the Court notes that this would not explain the bruises on her neck. The accused evidence is not believed and does not raise a reasonable doubt. [ 71 ] The burden of proof rests on the prosecutor. The complainant’s account regarding this choking incident is well detailed and reliable. As explained, the complainant is considered credible.

d) Analysis And Conclusion On Count 2 [ 72 ] Considering all of the evidence, the Crown has discharged its burden of proof.

[73] There is no doubt that the accused used force intentionally, without the consent of the complainant, when he hit her eye. Theblack-eyed is a bodily harm according to

section 2 of the Criminal Code. The requisite mens rea flows from the evidence. This was doneintentionally. He took her by the throat and pushed her against the wall before hitting her in the eye where she was already woundedbecause of an eye surgery. [74] There is no doubt that the accused used force intentionally, without the consent of the complainant when he smashed her headon the table. After this incident, the complainant had a big bump in the skull, and still has it at the time of her testimony, which is bodilyharm according to the Criminal Code.

The requisite mens rea flows from the evidence since even after that assault, he had to be held bytwo members of his family. This was not an accident. [75] There is no doubt that the accused used force intentionally, without the consent of the complainant when he choked her with hisknees in her arms. The bruises on the complainant’s arms and neck are bodily harm according to the Criminal Code.

The requisite mensrea flows from the evidence since he used his knees in her arms to control her body while squeezing her throat. [76] All ingredients of the charge of assault causing bodily harm are demonstrated beyond a reasonable doubt. COUNT 3: ASSAULT USING A WEAPON[20] [77] As a preliminary remark, the Court notes that the complainant testified about an incident where the accused took a knife,followed her in the bedroom, punched and kicked her, while telling her she looked like a rat. This seems relevant to the assault using aweapon. However the evidence in this regard is confusing.

The Court is not convinced that it is the same incident which occurred at thebeginning of their marriage. In addition, there are insufficient details to assess this incident. Therefore this incident will not beconsidered. [78] The complainant testified that, in 2013 at the very beginning of their marriage, the accused came home intoxicated. She startedconfronting him, crying and becoming hysterical. At one point, the accused ran to the kitchen and took a knife.

He pointed the knife ather throat and at her stomach, while threatening to kill her. [79] Later the complainant wrote a text message about this incident with a kitchen knife to Mr. L., who was the employer and friendof the accused. This message to Mr. L. referring to an assault with a knife was filed under Exhibit P-1. [80] The accused said that he has no idea about this knife incident and that it was not true. He also testified that he never used aweapon to hurt anybody. He admits Mr. L. was his employer and friend in 2013. At one point, he lost his job and stopped being Mr.

L.’sfriend, which seems consistent with the complainant’s version. The accused denies that the complainant’s message to Mr. L. could havecaused the loss of his job, although he wasn’t aware of the complainant’s message to Mr. L.. [81] The accused evidence is not believed and does not raise any reasonable doubt. Of course this is not the end of the analysis. Theproof must meet the standard beyond a reasonable doubt. [82] The complainant has a very detailed recollection of this incident and is considered reliable.

She is credible. [83] According to the prosecution, Exhibit P-1 is corroborative of the complainant’s testimony. This message to the accused’semployer in 2013 states : “… il est allé chercher un couteau il tenait sous ma gorge et mon ventre me disant que si je narrêtais(sic) pas depleurer qu’il allait me trancher la gorge!” [84] Exhibit P-1 was intended by the prosecutor for the limited purpose of denying the allegation of recent fabrication. The defenceagrees that it has this effect. [85] In principle, a witness must come and testify before the judge.

The prior consistent statement is hearsay and thus inadmissible,unless subject to an exception that was not argued by the prosecutor requesting its admission.[21] [86] In addition, evidence that a witness previously made a prior statement consistent with her testimony is generally inadmissibleand its proof is typically self-serving[22]. [87] Like other exclusionary rules, the prior consistent statement rules have exceptions.

As explained by Honourable judgeBastarache for the Supreme Court in Stirling at para.5, this type of evidence may be admitted for a limited purpose: “It is well established that prior consistent statements are generally inadmissible (R. v. Evans, (SCC), [1993] 2S.C.R. 629; R. v. Simpson, (SCC), [1988] 1 S.C.R. 3; R. v. Béland, (SCC), [1987] 2 S.C.R. 398). Thisis because such statements are usually viewed as lacking probative value and being self-serving (Evans, at p. 643).

There are, however,several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statement can be admitted whereit has been suggested that a witness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22–23). Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made—it is sufficient thatthe circumstances of the case reveal that the ‘apparent position of the opposing party is that there has been a prior contrivance’ (Evans, atp. 643).

It is also not necessary that a fabrication be particularly ‘recent,’ as the issue is not the recency of the fabrication but ratherwhether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v.O’Connor (1995), (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95).

Prior consistent statements haveprobative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.(…)” “However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative valuebeyond showing that the witness’s story did not change as a result of a new motive to fabricate.

Importantly, it is impermissible toassume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admittedprior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 2004

9212 (ON CA) , 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28 , ‘A concocted statement, repeated on more than one occasion, remains concocted” [23] [ 88 ] Exhibit P-1 was admitted into evidence to counter an allegation of recent fabrication. I t does not mean that the complainant is more likely to be telling the truth. This exhibit just shows that the complainant has the same version of this incident for a long time.

It would be an error to use it improperly. [ 89 ] After having assessed all evidence with caution, the Court finds the complainant’s account to be credible and reliable. [ 90 ] In conclusion concerning Count 3, considering all of the evidence, the Crown has discharged its burden of proof. There is no doubt that the accused used force intentionally, without the consent of the complainant, when he pointed a knife at her throat and at her stomach. There is no doubt that the requisite mens rea is demonstrated since at the same time he threatened to kill her.

The Court finds that all ingredients of the assault using a weapon are demonstrated beyond a reasonable doubt. COUNT 4: SEXUAL ASSAULT [24] [ 91 ] The complainant testified that, between their wedding and the childbirth in October 2016, the accused was coming home late at night, highly intoxicated, and that he was waking her up and forcing her to have sex without her consent. She would say “no”, but he would not take “no” as an answer. He would penetrate her without preparation, although she would contract her legs.

She said that sometimes, after these incidents, her genital would hurt for very long. [ 92 ] The accused denies having any sexual intercourse with the complainant without her consent. He testified that he was not attracted to her since she was not taking care of herself and because of her attitude towards him. He said that he was coming out late and was not looking for sex when coming home. To believe him, he seems to have trouble remembering that he has ever had sex with his own wife. [ 93 ] As already explained, the accused lacks credibility.

However, the Court considers that such general allegation from the complainant cannot give rise to a verdict beyond a reasonable doubt. Indeed, the complainant does not seem to refer to one particular incident but speaks in general terms. As she was testifying in this regard, she did not seem to recall a particular or specific incident. Allegations of such a general nature can hardly give rise to an effective challenge and an effective cross-examination. What was done exactly to her on which occasion, when, where and how?

The evidence is unclear. [ 94 ] However the complainant also testified about one specific incident that occurred just before she got pregnant, at the beginning of 2016. The couple was not using contraceptives. She had tried pills but have had a strong reaction to it. The accused was not using condoms. The complainant did not want to have children with the accused and already had three abortions. She usually asked him not to ejaculate inside of her. [ 95 ] According to her testimony, one night, they had a consensual sexual relation.

She had done a panic attack, and the accused had given her a quarter of an unidentified pill, that made her feel flirty. She admitted during her testimony that it could have been it Ativan or something else. However, on that occasion, she did not express her lack of consent to sexual intercourse. She did not say “no.” But she asked the accused not to ejaculate inside of her, and the accused did not respect her wish and did ejaculate inside of her. The complainant testified that after, the accused did not allow her to wash herself and kept her in the bed, and held her legs up together.

He expressed his intention to make her becoming pregnant. A couple of weeks later, she learned that she was pregnant. She begged him to get an abortion but he told her he would make her life miserable if she gets one. Their child Hussein is born about nine months after this incident. [ 96 ] The prosecutor pleads that the accused can be found guilty of sexual assault for having ejaculated in the complainant’s vagina without her consent. [ 97 ] The actus reus of sexual assault requires a touching of a sexual nature, combined with a lack of actual consent to that touching.

The mens rea for sexual assault is established by showing that the accused intended to touch the complainant in a manner that is sexual, and knew of, or was reckless or willfully blind to, the fact that the complainant was not consenting. [ 98 ] The Court considers that the act of ejaculating inside the complainant without her consent may be a sexual assault. It is a sexual act. For instance, in Ljiljanic , the Ontario Superior Court confirmed that a defendant who ejaculates into a complainant’s mouth commits a sexual assault if he was reckless about her consent [25] .

Applying reasoning by analogy, the Court finds that intentionally ejaculating into someone’s body, while being reckless about his or her consent, is a sexual assault. [ 99 ] Sexual assault is a crime of general intent.

The mens rea must be demonstrated with respect to two distinct elements, as explained in Ewanchuk at paragraphs 42: “the mens rea of sexual assault contains two elements: intention to touch and know of, or being reckless of or willfully blind to, a lack of consent on the part of the person touched.” [ 100 ] The accused’s ejaculation into the complainant’s vagina may be a sexual assault if the prosecution succeeds in proving beyond a reasonable doubt not only that the accused was reckless or willfully blind as to the fact that the plaintiff did not consent but also that the accused ejaculated voluntarily. [ 101 ] In 2002 in the Kuryluk case [26] , the Superior Court of Nova Scotia concluded, however, that accidental ejaculation could not be sexual assault under the Criminal Code .

Also the British Columbia Provincial Court found not guilty and accused charged with sexual assault because the ejaculation was not voluntary [27] . [ 102 ] In the case at bar, the accused does not claim that he ejaculated accidentally inside the complainant. He denies having had sexual intercourse without the complainant’s consent. However he does not comment directly on or deny the incident in which the complainant alleged that they conceived their child. This is not a case where the accused claims that he did not ejaculate voluntarily. Thus, the accused does not contradict the complainant’s version.

[ 103 ] The burden of proof must meet the standard beyond a reasonable doubt, and this burden rests on the prosecutor. [ 104 ] In chief, the complainant’s account is detailed and specific. Her recollection seems reliable since it is on that occasion that they conceived their child. We recall that at common law , the failure of a complainant to tell someone about the offence at the first reasonable opportunity was considered to hurt the reliability of the complainant.

Section 275 of the Criminal Code has now abrogated this rule. It is now an error to use the failure to complainant at the first occasion as a basis for a presumptive adverse inference relating to credibility. A delay in disclosure will never in itself give rise to an adverse inference against the credibility of the complainant. [ 105 ] However, in cross-examination, the complainant’s version changed.

When asked if other sexual assaults occurred after the birth of their child, she testified about this sexual intercourse that occurred after her panic attack, where she did not say “no” and became flirty after having been given a quarter of a pill of an unidentified substance. This same specific event seems to have taken place not before but after the birth of their child [28] . [ 106 ] In the current circumstances, taking into account the fact that, in chief, the complainant describes this incident as the one where they conceived their child, a contradiction concerning the timeframe is of great significance.

This is not a minor inconsistency. The Court finds the complainant’s recollection regarding this specific incident to be unreliable. [ 107 ] Consequently, on count 4, the Court has a reasonable doubt. FILE 550-01-116008-204: [ 108 ] The accused is facing one count of assault [29] , one count of uttering threats [30] and one count of intimidation [31] . At the time of the alleged facts, on November 10, 2019, in Town A, the couple was no longer living together. But there was still a hope to rebuild the relationship, at least on the complainant’s part.

The complainant had the legal custody of their 3 years old son, while the accused had access rights. [ 109 ] The complainant testified that, on November 10, 2019, she came by car with the child and picked up the accused, who had his legs broken and was living at his sister’s place. They went together at the Promenade, at a playground for children. The couple started having an argument and had to leave. They kept arguing in the car while the complainant was driving. Both were screaming at each other and the child was crying. According to the complainant, the accused punched her while she was driving.

The car was zigzagging. The accused hit her head on the dash board. Once stopped at a red light, she tried to ask people to call the police but they did not understand, so she kept driving. Being close to a police station, she threatened to stop at the police station if the accused did stop hitting her. According to her, he answered: “ If you go to the police station, your son won’t have a mother anymore, I will kill you and won’t stop until you and your family are demolished” . T he accused then made obvious efforts in order to avoid punching her again.

He hit himself a few times, including his own head on the car dash, and also hurt his knuckles. [ 110 ] The accused confirmed the complainant’s account in several respects regarding this specific incident. He testified that these facts occurred at the time where he had his two legs broken and was living at his sister. He and the complainant were in the car coming from the Promenades, having an argument in the car while their child was crying. The complainant was driving. She was treating him as a looser and a piece of shit. He said that he told her to stop.

As stated by the complainant, the accused also admits that he hit himself in the car so that she stopped. While they were in the car, but testified that he did not hit the complainant. He denies having hit her head on the dash board. Also, the accused denies having utterred any threat. The accused admits that they drove close to a police station and that the complainant indeed threatened to stop there make a complaint against him. But he did not do anything and did not utter any threat to her. [ 111 ] As already explained, the accused evidence is not believed.

In addition, neither the accused’s testimony nor that of his younger sister, J. W., raise a reasonable doubt. [ 112 ] The complainant’s testimony is confirmed by accused in relation to what happened next. They arrived at his sister’s house. He took the baby inside the house. According to him, the complainant hit him in the back. His sister J. was witnessing. His older sister gave the baby back to the complainant, who left. The accused also confirmed that the complainant made a complaint at the police on the same day. [ 113 ] J. W.’s testimony does not raise a reasonable doubt.

It is similar in many respects with the complainant’s version. Both testified that, in November 2019, the accused, the complainant and their child came to her house. The couple was having an argument. The accused came inside the house with the child while the complainant stayed outside, screaming. Quickly the child was given back to the complainant, who left for the police station. [ 114 ] J. W. was not present in the car at the time of the alleged offences.

So her version does not have the effect of denying the charges. [ 115 ] Neither the testimony of the accused nor his sister’s testimony raise a reasonable doubt. Of course this is not the end of the analysis. The burden of proof must meet the standard beyond a reasonable doubt. [ 116 ] J.’s testimony does not affect the complainant’s credibility. She confirmed many details in the complainant’s story.

Although this witness stated that the complainant hit the accused, she admits that after the incident, she went to the police station but was told that there was no cause for prosecuting the complainant. [ 117 ] There are slight differences between their versions. J.’s testimony does not include the complainant’s assertion that she asked for help. And the complainant’s version does not include J.’s assertion that she hit the accused. For the rest, there are a few slight differences, which do not affect the complainant’s credibility.

The identity of the person knocking at J.’s door, whether it is the accused or the complainant, is not significant. The identity of the person that gave the child back to the complainant, whether it is the sister or the grandmother, is of little interest. Small differences do not affect the complainant’s credibility nor the reliability of her testimony, and can be explained by stress and by the passage of time.

[ 118 ] Furthermore, J. is a witness who lacks neutrality . Her credibility is tainted by her lack of impartiality . During her testimony, she spontaneously addressed a number of irrelevant matters with the obvious aim of criticizing the complainant. She visibly tried to present the accused of his best light and to eagerly boost his credibility, turning a blind eye to his conduct. The Court finds that her credibility is low. [ 119 ] The prosecutor argues that the medical report filed as Exhibit P-15 corroborates the complainant’s version [32] .

This Court disagrees. [ 120 ] This medical report mentions that, in the context where the complainant was supervising the accused access rights with their child, the accused beat her in the car in front of their son and threatened her with death if she went to the police. Obviously, this

section of the report comes from the complainant’s remarks, and not from another source. [ 121 ] The complainant cannot corroborate herself. This flows from the logic. As explained by Honourable judge Fish for the majority of the Supreme Court in Khela : “Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness.

The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth. “ [33] [ 122 ] Case law recognizes that a prior consistent statement can be used to rebut an implied claim of recent fabrication, but not for the purpose of corroborating the witness’s testimony. As a result, the medical report does not corroborate the complainant’s version. [ 123 ] The prosecutor also pleads that Exhibits P-11 and P-12 corroborate the complainant’s testimony. T he Court disagrees.

The complainant testifies that she took pictures of herself and these pictures were filed as P-11 and P-12. According to the prosecutor, on these pictures, we can see redness in her neck. But, a s pleaded by the defence, it is unclear from these pictures that the complainant was chocked since these images are blurry or unclear. In addition, it is uncertain whether P-11 and P-12 relate to the incident that occurred on November 10, 2019. In chief, the complainant testified about an assault in the car where the accused hit her, without mentioning that he choked her.

Later in her testimony, she referred to a chocking incident that occurred in the car in 2019 and said that she took pictures of herself. However it is unclear whether it was on November 10, 2019, or on another occasion. Her statement given on the 10 th of November 2019 does not mention a choking incident. However, the Court considers that no corroboration is required. [ 124 ] After having assessed all the evidence with caution, the complainant’s account regarding these alleged offences is considered well detailed and reliable.

The complainant went to the police station and made a complaint against the accused on the same day. She is considered reliable and credible. [ 125 ] The Crown has discharged its burden of proof. There is no doubt that, in the car, the accused used force intentionally, without the consent of the complainant by hitting her. Also there is no doubt that he threatened to kill her by saying the following words: If you go to the police station, your son won’t have a mother anymore, I will kill you and won’t stop until you and your family are demolished .

It is clear beyond a reasonable doubt that the requisite intent flows from this threat. All ingredients of the charges of assault and uttering a threat to kill are demonstrated beyond a reasonable doubt. [ 126 ] We will now turn to the count of intimidation [34] . The Court notes that u ttering a threat of violence is one of the ingredients of the offence of intimidation [35] . This last offence is of specific intent. The accused’s purpose of intimidating the complainant is also one of the essential ingredients of the crime created by section 423 (1) of the Criminal Cod e [36] .

This s ection requires, in addition to a finding that the accused of intimidating a person, that the attempted intimidation has been “for the purpose of compelling another person to abstain from doing anything that she has a lawful right to do.” T he onus rests upon the prosecution beyond a reasonable doubt. [ 127 ] The words attributed to the accused are threatening. Their impact was obvious. They make the complainant fearful. She mentioned that the accused was able to put his threats into practice.

Although she was the subject of physical violence in the car while driving close to the police station, despite the danger to drive as the car was zigzagging, the complainant did not stop at the police station. [ 128 ] The purpose of the accused was that the complainant abstains from doing something that she had a lawful right to do: making a complaint against him at the police station. The alleged purpose of the accused necessarily flows by inference from the circumstances. They were having an argument and were screaming. He was hitting her as she was driving close to a police station.

She had just threatened to stop at the police station. He did not want her to make a complaint against him. The Court finds that the specific intent of the offence of intimidation is demonstrated beyond reasonable doubt. [ 129 ] In the circumstances of the case, the offence of uttering threats is a lesser offence then the intimidation and is included in the charge of intimidation. According to the Kienapple principle [37] , a person cannot be convicted of two offences that are as a result of the same act.

The Kienapple principle does apply here since it is the same criminal conduct that give rise to the two charges. Consequently, taking into account the conclusion regarding Count 3, a conditional stay of proceedings will be ordered on Count 2. FILE 550-01-117602-203: [ 130 ] This breach of condition is alleged to have occurred on March 11, 2020 [38] . The condition was to abstain from communicating with the complainant. [ 131 ] On November 10, 2019, Mr.

W. was arrested on the basis of the alleged commission of offences related to the previous file, and signed a promised to appear with conditions, including a prohibition to communicate directly or indirectly with the complainant [39] . Four months later, on March 11, 2020, on the accused’s birthday, he was still bound by these conditions. [ 132 ] According to the complainant, when she woke up, she realized that she had received phone calls and a voice mail during the night while asleep: one anonymous call and a second call from the number ending with 2661. When listening to her voice mail, she heard

someone’s voice sighing as well as the noise of a car in the back. She testified that the phone number ending with 2661 was used by the accused. According to her, the voice of the messenger was the one of the accused. And she heard noises that seemed to be the bips in the car when a driver does not wear his seatbelt, which would be typical for the accused. [ 133 ] She took pictures of her screenshot showing the missed calls [40] . She got in touch with Detective Lapointe, who called the number ending with 2661.

He listened to the voice message and recognized the accused voice, whom he had met on a number of occasions. He asked the complainant to call back the number ending with 2661. She did so and confirmed that it was the accused’s voice on the voicemail. [ 134 ] The version of the accused is evasive and evolving. He testified that it was not his phone number, but his sister’s phone number, J.. Later in cross-examination, he admitted that he was using her phone since he did not have any at the time. He denies having left a message to the complainant on that date, raising the question of why would he have called her.

He does not deny that he may have been in possession of her phone on that day. But he raised question on why would he have been out so late in his car during the Covid-19 curfew. He finally answered, “Maybe, I don’t know.” As explained earlier, the accused lacks credibility. Thus, he is not believed. [ 135 ] The Court must determine whether the prosecutor’s evidence meets the standard beyond a reasonable doubt. We note that neither the complainant nor Detective Lapointe were cross-examined regarding this alleged specific offence.

Also, the parties did not put any question to J. concerning the use of her cell phone on March 11, 2020. As explained earlier, the complainant is considered credible.

No issue was raised concerning Detective Lapointe’s credibility. [ 136 ] On the basis of the testimonies of the complainant and detective Lapointe, as well as exhibits P-13 and P-14, taking into account that the accused’s use of his sister’s phone at the time, considering that the accused’s denial is not believed and that he presented no lawful excuse, the Court concludes that all ingredients of the offence are demonstrated beyond a reasonable doubt.

CONCLUSIONS [ 137 ] The Court concludes as follows: [ 138 ] In file 550-01-117908-204: - All elements of the assault [41] are demonstrated beyond reasonable a doubt; - All elements of the assault causing bodily harm [42] are demonstrated beyond reasonable a doubt; - All elements of the assault using a weapon [43] are demonstrated beyond reasonable a doubt. - On the count of sexual assault [44] , the Court finds that the complainant’s recollection is unreliable, that the required burden of proof is not met and that there is a reasonable doubt. [ 139 ] In file 550-01-116008-204: - All elements of the assault [45] are demonstrated beyond a reasonable doubt; - All elements of the intimidation [46] are demonstrated beyond a reasonable doubt. - On the charge of uttering threats [47] , under the prohibition of multiple convictions, the Court will order a conditional stay of proceedings. [ 140 ] In file 550-01-117602-203, on the breach of condition [48] , all elements of the offence are demonstrated beyond a reasonable doubt.

FOR THESE REASONS [ 141 ] In file 550-01-117908-204, on counts 1, 2 and 3, Mr. W. is found guilty. However, on Count 4, Mr. W. is acquitted. [ 142 ] In file 550-01-116008-204, on counts 1 and 3, Mr. W. is found guilty. The Court orders a conditional stay of proceedings on Count 2. [ 143 ] In file 550-01-117602-203, Mr. W. is found guilty. __________________________________ Alexandra Marcil, J. C. Q.

M e Simon-Pier Cossette For the Prosecutrix M e Marc Doyon For the Accused Date of hearing: February 1, 2022, February 2, 2022, and February 16, 2002