R. v. Yousufzay, 2019 ONCJ 1009

ONTARIO COURT OF JUSTICE CITATION: R. v. Yousufzay , 2019 ONCJ 1009 DATE: 2019 06 10 COURT FILE No.: Brampton 015281 BETWEEN: HER MAJESTY THE QUEEN — AND — MOHAMMAD YOUSUFZAY Before Justice I. Jaffe Heard on January 15, 16, April 24, and May 10, 2019 Reasons for Judgment released on June 10, 2019 D. Portolese......................................................................................... counsel for the Crown D. Paradkar.......................................... counsel for the accused Mohammad Yousufzay JAFFE J.: Introduction [ 1 ] On December 21, 2017, Fatima Yousufzay provided P.C.

King with a statement in which she recounted the details of an assault committed against her by her father in the early morning hours of that same day. Just over two years later on January 15, 2019, while testifying at her father’s trial, Fatima denied she had been assaulted and swore that everything she told P.C. King was a lie. [ 2 ] After permitting the Crown to cross-examine Fatima on the inconsistencies between her police statement and in court evidence, I invited written submissions from both counsel on the substantive admissibility of Fatima’s police statement. In response to the Crown’s submissions, Mr.

Paradkar, counsel for Mr.

Yousufzay, conceded that the twin preconditions to the statement’s admission, namely necessity and threshold reliability, had been met. [ 3 ] Quite apart from defence counsel’s concession, I am also satisfied that Fatima’s statement possessed a classic combination of procedural reliability indicia in that it was videotaped, was under oath, and Fatima was available for cross examination. [ 4 ] Fatima was the only witness who testified at Mohammed Yousufzay’s trial and accordingly, the end result is that I have before me two completely different and irreconcilable accounts of what happened in the Yousufzay home on December 21, 2017, both accounts given by the same witness. [ 5 ] On behalf of the Crown, Ms.

Portolese argues that Fatima’s statement to the police is more reliable than her in-court testimony and should be accepted as the accurate account. The statement was given to a police officer who went out of his way to make sure Fatima was comfortable and well rested during her interview and her statement was not the product of pressure or inducement. The statement was made under solemn affirmation and Fatima understood the implications of lying. [ 6 ] The Crown submits that in contrast to her calm and forthright demeanour in her videotaped statement, Fatima was combative and evasive in court.

The Crown argues that something has influenced Fatima to recant her prior statement and it is the prior statement in which Fatima revealed the truth. [ 7 ] Mr. Paradkar argues that it is not a matter of which statement I find more believable. If I have a doubt about which one is true, I

must acquit Mr. Yousufzay. He argues that Fatima was clearly sleepy when the oath was administered at the outset of her statement andshe did not appreciate its implications. Fatima testified that she was under the influence of much medication that night, was suicidal anddepressed. By contrast the evidence Fatima gave in court was far more capable of belief. [8] Before even delving into the reliability of either of Fatima’s accounts, one thing is certain – Fatima perjured herself. Fatima wasdishonest either to the Court or to the police.

However, this finding alone does not necessarily determine the outcome of the trial. [9] The whole purpose of the KGB rule of admissibility is to enable a trier of fact to assess the comparative trustworthiness ofcompeting evidence by placing the witness’ previous and inconsistent out-of-court statement on the same evidentiary platform as his orher in-court testimony: R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740. [10] In R. v. Jeffers, [2019] O.J.

No. 1711, (C.J.), at paras. 14 and 15, Duncan J. cautioned against the kneejerk rejection a witness’evidence on the basis that the witness gave divergent accounts in her police statement and in court: This credibility of the complainant is of course central to this case. There are obvious problems with her credibility - as there are in everyKGB case. The witness has given two (or more) accounts and both cannot be true. There is little chance that the variance is reconcilableas mistake or failure of memory.

The plain inference is that the witness is a liar – worse, a perjurer – and that she has intentionally misledthe police and/or the courts and attempted to undermine the administration of justice. Still, such is the case in every KGB situation and it would be wrong to allow this feature, as significant as it is, to almost automaticallyrequire the wholesale rejection of the witness’s evidence.

The KGB rule was developed so the trier of fact could, in appropriate cases,consider a witness’s prior out-of-court statement for its truth and accept and act upon it even where the witness at trial swears that it isnot true and testifies to the contrary. The rule was designed to advance the truth-seeking function of the courts and also to reduce thepotential benefit that could be achieved by witness intimidation or improper influence.

For the court to simply throw up its hands anddeclare that the witness’s perjury means that neither version can be accepted would be to take a step backwards, undo a long overduemodification of the law and defeat its purposes. [11] Once admitted into evidence, the out-of-court statement of a witness must be assessed in the same manner as her in-courttestimony with a view to determining, if possible, whether the declarant was being truthful and whether the evidence she provided in thestatement is ultimately reliable. [12] Notwithstanding the fact that Fatima was the Crown’s witness, as the evidence she gave was entirely exculpatory, the principlesof R. v.

W.D., (SCC), [1991] 1 SCR 742, are engaged in determining whether or not the Crown has proven the charges.In other words, if I believe Fatima’s in-court account of what transpired on December 21, 2017, I must acquit Mohammad Yousufzay. IfI do not believe her testimony but it nevertheless leaves me in a state of reasonable doubt, I must acquit. Even if the exculpatory evidenceis neither believed nor leaves me in reasonable doubt, I must go on to determine whether on the basis of the evidence I do accept, theCrown has proven the charge. These questions must be asked with respect to all counts before the court.

Fatima’s Videotaped Statement [13] P.C. King of the Peel Regional Police Service began his videotaped statement of Fatima at 7:53 a.m. on December 21, 2017.Shortly thereafter, a commissioner of oaths entered the room. P.C. King explained to Fatima the criminal implications of perjury and ofmisleading or obstructing a police officer during an investigation. [14] Fatima opted to affirm and swore to tell the truth. It was soon clear to P.C. King that Fatima was sleepy and not feeling well, andhe offered her the opportunity to take a nap.

The officer retrieved a pillow and a blanket and let Fatima sleep for just over three hours.When P.C. King checked up on Fatima at 11:18 a.m., Fatima told the officer “I can do this now.” P.C. King reiterated to Fatima theimportance of telling of the truth and the reality that lying could potentially get her in trouble. [15] For the next 45 minutes, Fatima disclosed the details of what had transpired the night before. In

summary, Fatima described howearlier in the day on December 21, 2017, she had packed her things and while her mother was occupied in the basement, she grabbed herbags and left the house. Fatima explained she had cancelled work that day because she wanted to spend time with her friend andboyfriend contrary to her parents’ wishes. [16] Fatima further explained that she had to return to the family home in the evening as in her haste to leave earlier, she hadmistakenly left behind her phone and glasses.

Upon returning to the home, her mother confronted her about having left and the two ofthem talked in Fatima’s bedroom for about an hour. Fatima explained that her mother was aware of her boyfriend, and knew that Fatimasuffered depression and anxiety. Fatima told her mother she could not remain living in the home as a result of how she is treated andFatima’s mother cast blame on Fatima. [17] Fatima was later persuaded by her mother to leave her room and wash the dishes at which point she was called into the livingroom by her father, Mr. Yousufzay.

According to Fatima, her father showed her a video of an Afghani girl who had been the victim oftorture and told Fatima that unlike Fatima, the tortured girl had a reason to be depressed and anxious. What followed was a one-hourlecture by her father on life choices during which amongst other topics, Mr.

Yousufzay questioned Fatima on her intentions with herboyfriend, Leo, and revealed to her that he had been tracking her movements for the past couple of weeks. [18] Through their conversation, and even faced with her father’s question about what she plans to do, Fatima remained silent.Apparently frustrated by her silence, Mr.

Yousufzay then yelled that he would raise a hand to Fatima and beat the information out of her.Scared, Fatima retreated upstairs to her bedroom while her father continued to yell at her. [19] Feeling trapped in the house, Fatima started packing up some things she would need for school, such as her laptop and charger.While in the midst of packing up, Mr. Yousufzay entered her room and demanded that she come back downstairs so she could see what

she was doing to her mother. He then pushed her towards the stairs and continued to physically shove her on her back as she made her way down the stairs. Once downstairs, her brother and two sisters blamed her for causing trouble in the family. [ 20 ] Fatima again retreated to her room intent on getting her things and leaving the house. She put on her jacket, grabbed her bag and ran out.

Fatima explained that she had disabled the door chime earlier in the day so that it would not make a sound when she opened the door to leave. [ 21 ] Fatima was able to unlock the front door of the house with no one noticing but as she was attempting to unlock the second exterior door, her sister Sarah noticed and tried to prevent Fatima from leaving. Her father then came to the door and while yelling at Fatima, grabbed her and dragged her inside. Fatima screamed loudly hoping someone outside might hear and call the police.

She explained that she was “terrified.” [ 22 ] Once back in the house, her father yelled at her accusing her of causing problems and while her mother was attempting to convince him to leave the room, out of nowhere, Mr. Yousufzay hit Fatima on the face with an open hand causing her glasses to break, and causing bruising to Fatima’s left eye. Fatima went upstairs to her room where her mother and a sister continued to blame her for causing trouble in the family.

When her mother left the room, Fatima called 911. [ 23 ] Fatima disclosed other instances of physical abuse and threats by her father which form the basis of counts 4 to 6 on the information. According to Fatima her father frequently threatened violent repercussions to his children in the event they ever dishonoured him. Her father even referenced the honour killings in the Shafia family as something he was not afraid to do himself should his family ruin his honour. [ 24 ] During her interview with P.C. King, Fatima encouraged P.C.

King to view the footage from the home security video which would capture her family’s efforts in preventing her escape from the home. Fatima’s Trial Evidence [ 25 ] At trial, Fatima gave a completely different account of events. She testified that on December 21, 2017, she had been suffering from anxiety which worsened when she essentially “overdosed” on anxiety medications. She became suicidal and wanted to leave the house. [ 26 ] When her family members noticed Fatima attempting to leave the house, they rushed to her and stopped her from leaving.

Fatima testified that her family knew that she was not in a right state of mind. Her family members tried to calm her down and Fatima went back to her room, but unable to calm down, she called 911 and lied to the operator about her father abusing her. Realizing the police were on their way, Fatima then hit herself in the face and broke her own glasses to lend credence to the lie she just told the 911 operator. At the police station, she perpetuated the lie in providing P.C.

King with an extremely detailed statement. [ 27 ] Fatima maintained throughout her testimony that everything she said in her police statement was a lie made believable by the detail she provided. She explained that she had learned in drama class that providing as much detail as possible was the key to giving a realistic performance. Front Door Security Camera Footage [ 28 ] Security camera footage capturing Fatima’s attempted exit from her home was identified by Fatima and admitted into evidence.

According to the date and time stamp on the video clip, the video captured the front entrance of the Yousufzay’s family home on December 21, 2017 at 2:11 a.m. [ 29 ] In the video, Fatima can be seen approaching the front door and bending down. It turns out she was picking up a pair of winter boots. As she was turning around to face the front door, her sister approaches and puts her hands on Fatima. Her sister also appears to turn the lock on the front door. [ 30 ] Fatima can then be seen shoving her sister in an apparent attempt to exit the house, however her sister is clearly preventing her from doing so.

Each time Fatima reaches for the lock, her sister forces her hand away. [ 31 ] The defendant then enters the scene and with Fatima leaning backwards slightly, he grabs both her arms and forcefully pulls her forward. Fatima is clearly struggling attempting to get free from her father’s grasp. [ 32 ] Fatima’s sister can be seen grabbing her father’s right arm in an attempt to pull him off Fatima and the defendant pulls his arm free and appears to say something to his other daughter.

With the assistance of someone who I assume was Fatima’s mother, the accused drags Fatima on the ground out of the camera’s view while his other daughter appears to be yelling at him. Fatima’s winter boots, which she dropped during the struggle, lay on the floor by the door. Fatima’s 911 Call [ 33 ] Fatima’s 911 call was played in court and admitted into evidence.

When the operator first answers Fatima can be heard whispering something unintelligible and then whispers “please come.” When the operator asked what was going on Fatima stated in a hushed and hurried tone that there is “violence and abuse.” The operator asked “by who?” and Fatima whispered “my dad, please come, please come, I need to hang up.” [ 34 ] The Crown did not seek to have the 911 call admitted for its substantive truth as an exception to the hearsay rule.

Accordingly my use of the call is limited to what the call might reveal about the sequence and timing of events and what it might reveal about Fatima’s emotional state at the time the call was made. Limited in that way, the 911 call can be considered but only in assessing Fatima’s credibility.

[ 35 ] Fatima agreed with defence counsel’s suggestion that her call to 911 was merely a call for attention. Credibility of Fatima in Court [ 36 ] I do not believe Fatima’s in-court testimony as it suffers from a number of inconsistencies and improbabilities. Here are a few examples: [ 37 ] During her in-chief examination, the Crown played the security camera footage following which the Crown asked Fatima to identify the other people in the footage. Fatima identified her sister and then her father.

When asked to identify the second woman with long brown hair, Fatima claimed not to recognize her explaining “we all have long brown hair.” Fatima testified it could be her mother or perhaps her other sister – she could not tell. This seems very unlikely to me. The clarity of the video is good and the side of the woman’s face is visible. I simply do not believe that Fatima could not discern whether the woman was her mother or sister. [ 38 ] Fatima testified that she was attempting to leave the home for the purpose of killing herself by lying down on the train tracks.

However, in the video you can clearly see that Fatima is carrying what appears to be a fully stuffed backpack. This stuffed backpack seems inconsistent with an intention to end her life and far more consistent with having just packed her bag with things she would require once she left the home. [ 39 ] Fatima testified that she did not tell P.C. King she had made up the allegations of abuse because the officer made her feel uncomfortable and was very “pressurizing” with her. She explained that had P.C.

King been more “calming” with her, she would have been more comfortable in confessing that she had lied about her father abusing her. [ 40 ] I have carefully watched Fatima’s police statement and far from pressuring Fatima, P.C. King demonstrated patience and compassion from start to finish. When it became clear to P.C. King that Fatima was too sleepy to provide a statement he told her that if she was not able to give a statement she should just let him know because he does not want to force her. He then offered her the opportunity to lie down and sleep. P.C.

King brought Fatima a blanket, turned down the lights and let her sleep. [ 41 ] When he returned, Fatima seemed happy and noticeably more awake. She thanked P.C. King for allowing her the time to sleep. For the duration of the interview P.C. King was calm in his questioning and I did not detect the slightest hint that he was pressuring Fatima in any way. [ 42 ] Fatima testified that her sister was in the room with her when she called 911.

It seems improbable to me that in the presence of her sister, she would falsely accuse their father of violence and abuse and then hit herself in the face to support that false claim. [ 43 ] Moreover breaking her own glasses in her attempt to lend credence to her lie seems to me to be an unnecessary and costly act. It seems more likely to me that she was not the one who broke her glasses. [ 44 ] By the time Fatima provided P.C. King with the details of the abuse allegations, she had slept for several hours and seemed entirely lucid.

Yet according to Fatima, she perpetuated a lie she spontaneously concocted while on the phone with 911, and while in an altered state of mind, added more and more unnecessary detail to her police statement, simply to make it more believable. Fatima offered no compelling reason why she felt bound to continue the lie throughout her police statement and into her email sent to Ms. Kendal almost 6 months later. [ 45 ] Moreover, Fatima explained that she called 911 and leveled the false allegation of abuse against her father precisely because she was not in the right state of mind.

Yet she seemingly possessed the mental acuity to undertake actions (such as breaking her glasses and adding irrelevant detail to her account) in an effort to make her allegations more realistic. Such calculated efforts seem incompatible with what Fatima described was a significantly altered state of mind. [ 46 ] Near the end of her examination-in-chief, Fatima identified an email she had sent Lianne Kendal of Victim Services on June 13, 2018. In the email Fatima explained that she did not want to be a witness in her father’s criminal trial.

Fatima explained that she was experiencing severe anxiety and had developed depression for which she was seeking counselling. Fatima told Ms. Kendal that she was going through a very difficult time adjusting to life without her family and having to deal with the “trauma from my abuse/forced marriage.” [ 47 ] Fatima ended the email asking Ms. Kendal if there was nothing she could do to prevent the case from going ahead. Fatima explained that her mental health would worsen if forced to testify.

Fatima ended the email by saying “in addition, my memory of the events that took place are really blurry and I have big gaps in what I can remember happened.” [ 48 ] Asked by the Crown what she intended the email to convey, Fatima explained that she was telling Ms. Kendal that she did not want to come to court because everything she had said was a lie. Fatima explained that her reference to abuse in the email was another example of her attempt to back up her lies. [ 49 ] The email was entered as an exhibit though the Crown did not seek to admit it for its substantive truth.

It is however, a previous statement of Fatima which is inconsistent with her in-court testimony and which is properly considered when assessing her credibility. [ 50 ] I found Fatima to be evasive in answering the Crown’s questions. For instance in one portion of her in-chief examination, the Crown questioned Fatima about whether the concept of honour was discussed in her home.

This was a repeated theme in Fatima’s police statement and so leaving aside whether or not Fatima was telling the truth during her police statement, I have a hard time believing she did not fully understand what the Crown was asking in the following exchange: Crown: Were there ever discussions about how one’s reputation could be ruined? Fatima: Isn’t that reality though?

Crown: Is this something that you guys ever discussed? Fatima: It’s like a fact of reality so it’s going to come here and there like anyone can ruin their reputation. Crown: So just to be clear is that a yes? Fatima: I don’t know it’s something everyone kind of talks about in general, you talk about reputation you talk about ruining it you talk about several things about it, it’s really general topic. Kind of hard to point fingers and say yes. Crown: Were there ever discussions about how one person’s actions would affect the honour and reputation of the rest of the family?

Fatima: One bad apple doesn’t ruin a whole tree. Crown: So I’m sorry is that a yes or a no? Fatima: No. Crown: So there was never any discussion… Fatima: No. [ 51 ] Fatima also had a tendency during her in-chief examination to ask the Crown to repeat questions which to me, came across as a means by which to further contemplate her answer and frustrate the examination. An example of this can be found in the part of Fatima’s examination during which she is asked about the many details she provided in her police statement.

The following exchange offers another example of Fatima’s evasiveness: Crown: You’d agree with me that this is a lot of detail being put into your story correct? Fatima: Well when you lie right, you want to make it sound as realistic as possible usually details are what makes it sound more realistic. Crown: And uh you’d agree with me that forgetting your glasses at home really had nothing to do with the allegations that you told the police about happened later that night, right? Fatima: Can you please repeat the question, I don’t understand.

Crown: Whether or not you forgot your glasses at home in the morning has nothing to do with what you say happens later in the evening, right? Fatima: Can you rephrase? Crown: You agree with me that your story about what happened later in the evening would still make sense even if you hadn’t told the officer about forgetting your glasses in the morning right? It neither adds or takes away from your story. It was just an extra detail you added? Fatima: Eyes are connected to the brain when my eyes get tired I get headaches headaches makes my depression worse so I try to keep my glasses on at all times.

Crown: You’d agree with me the story would have still made sense without mentioning your glasses and the bus driver. This was not a critical piece of information the officer needed to know. Fatima: Eyeglasses are critical to the mind if you have low vision. Crown: I have no doubt they are important to your eyes what I’m saying is your glasses and the bus driver were not important to the story. Fatima: I think my glasses are an important part of anything.

Crown: I’m going to suggest to you that it was a completely unnecessary detail to have added in, and the only reason it was added in was because you wanted to give the officer the full picture of what really happened that day and that was something that happened that day? Fatima: No. Crown: No? You didn’t want to give the officer the full picture of the whole day? Fatima: I was just trying to make things realistic. Crown: I’m going to suggest to you that’s an odd detail to add into a fabricated story and… Fatima: My mind and your mind are two different things so what’s odd to you is not odd to me.

Crown: And I’m just going to remind you to not interrupt me if I am still talking and just wait for me to finish my question. Fatima: Sounds great and I hope you do the same for me. Crown: I absolutely will.

[52] The last part of this exchange illustrates the hostility that Fatima expressed towards the Crown at times throughout her in-chiefexamination. Another example of that hostility can be found during the portion of the examination during which Fatima was asked whyshe told the police officer that her father used to threaten to beat her with electrical wires in the basement.

The Crown suggested that herfather had in fact threatened her with electrical wires and Fatima shot back that the Crown should stop “accusing things.” Fatima’s Credibility in her Police Statement [53] Though it is clear that at the outset of the statement Fatima was sleepy, following her lengthy nap she appeared alert and lucid.Fatima kicked off her statement by smiling and telling P.C. King “I can do this now.” What followed was a very detailed account ofevents which took place earlier that very morning.

Fatima also volunteered details of her father’s previous threats and acts of physicalabuse. [54] Fatima’s account was not the product of leading questions. To the contrary, Fatima did almost all of the talking with P.C. Kinginterjecting with the occasional “Mm-mm.” At the conclusion of Fatima’s statement, P.C. King sought some clarification but never byway of leading questions. [55] The security camera footage lends support for Fatima’s police statement. As previously mentioned, the footage captures Fatimaattempting to leave the home carrying a backpack.

In my view carrying a stuffed backpack is consistent with Fatima’s stated plan to leavethe home having packed her bag with whatever she thought she might need for her second semester and is inconsistent with a plan ofimminent suicide. [56] Moreover, while there is no sound in the video the interaction between her and her father is more consistent with the version ofevents Fatima described in her statement.

In my view the video appears to capture what seems to be an angry confrontation betweenfather and daughter, and not one in which a worried father was trying to dissuade his suicidal daughter. [57] A witness’ prior consistent statement cannot be used to corroborate his or her in-court testimony, however, depending on thetiming and nature of the prior statement, it might nevertheless be of some probative value in assessing the witness’ credibility: R. v.Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, at para. 38; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 43 and 44.R. v. M.C., 2014 ONCA 611 , [2014] O.J.

No. 3959, at para. 66, In R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at para.32. [58] With that caution in mind, I find that Fatima’s 911 call furnishes some independent support for Fatima’s credibility in her policestatement. Fatima sounded rushed, panicked, scared and emotional in her short conversation with the 911 operator. In other words shedisplayed emotions consistent with being afraid of her father. [59] Fatima’s police statement, given only hours after the alleged abuse, was chalk full of details and was given without anyprompting or persuasion.

Once she had the opportunity to sleep, Fatima was lucid during her interview and did not appear to be sufferingfrom any mental impairment. [60] By contrast Fatima’s in court testimony was devoted solely to convincing the Court that her statement was a lie. In so doing she offered implausible explanations for her actions on December 21st. [61] A witness’ demeanour can be an unreliable yardstick by which to gauge the veracity of the witness’ evidence: R. v. G. (G.)(1997), (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8.

It does however remain open to the trier of fact toconsider the demeanour of a witness in assessing the witness’ credibility as long as it is not overemphasized in the credibility assessment:R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5 at para. 34; R. v. D.P., 2017 ONCA 263, leave to appeal refused at [2017] S.C.C.A. No.261, at para. 26. [62] With that in mind, I cautiously note that throughout her examination-in-chief, Fatima was frequently defensive, often evasive,and at times even hostile towards the Crown. This is in contrast to Fatima’s more relaxed and forthcoming attitude during her policeinterview.

Conclusion Regarding Fatima’s Credibility [63] I have come to the conclusion that Fatima was misleading the Court in her testimony. I do not believe the exculpatory evidenceFatima gave in court nor does it leave me in a state of reasonable doubt. [64] I must then go on to consider whether on the basis of the evidence I do accept, the Crown has proven the charges beyond areasonable doubt. In my view Fatima was attempting to be truthful to P.C. King during her police statement.

Nevertheless, in light of herwillingness to give false testimony in court, I must exercise caution in determining whether, on the basis of her police statement, theCrown has met its heavy burden of proof. [65] In Jeffers, Duncan J. concluded that the complainant’s KGB statements were truthful in contrast to her in-court testimony.However, in light of the witness’ willingness to commit perjury in court, Duncan J. entered convictions only on the counts for whichthere was additional corroboration or support.

At paragraph 35 of Jeffers, Duncan J. explained his approach in these terms: While I could be satisfied to the required standard on the evidence of the complainant alone, the need for caution leads me to concludethat I should not do so unless there is corroboration or, less formally, evidence or circumstances that tend to support her evidence inrespect of a particular count. [66] I intend to take the same approach in determining whether the Crown has proven the charges in this case.

The uncorroboratedevidence of a complainant can support a finding of guilt, however, notwithstanding my acceptance of Fatima’s police statement, I feel itis desirable to seek circumstantial support for her specific allegations in light of her documented willingness to commit perjury.

Count 1: Assault on December 21, 2017 [ 67 ] A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly. According to Fatima’s police statement, Mr. Yousufzay assaulted her on December 21, 2017 when he hit her face, causing her glasses to break and causing an injury to her left eye. [ 68 ] Photos entered as exhibits depict some bruising on the corner of Fatima’s left eye lid. As mentioned earlier, I reject Fatima’s in- court evidence that she hit herself in the face and broke her own glasses.

In my view the photographs furnish some independent support for Fatima’s allegation that her father struck her in the face. [ 69 ] Even before the slap, Mr. Yousufzay committed an assault against his daughter when without her consent, he physically grabbed her and dragged her away from the front door. The security camera footage clearly captures that particular assault. [ 70 ] I am convinced that Mr. Yousufzay assaulted his daughter on December 21, 2017 and find him guilty on count 1. Count 2: Unlawful Confinement on December 21, 2017 [ 71 ] In R. v. Hamidi , [2018] O.J.

No. 2788 (S.C.J.), at paragraph 8 , Shaughnessy J. succinctly defined the offence of unlawful confinement in these terms: If for any significant period of time a complainant is coercively restrained or directed contrary to her wishes so that the complainant cannot move to her own indication and desire or her own inclination and desire, the offence of unlawful confinement is established. The case law establishes that unlawful confinement is a general intent offence that requires the Crown to prove only the minimal intent to effect deprivation of freedom of movement.

Unlawful confinement requires actual physical or coercive restraint, but the confinement need not involve the physical application of bindings to the complainant. The restraint may also be affected by fear, intimidation, psychological and other means. Confinement does not require proof of total physical restraint of the complainant. Further, it is not necessary for the complainant to have been confined for the entire time that the complainant was together with the accused.

If the complainant was restrained against her wishes for any significant period of time, then a confinement has taken place. [ 72 ] The security camera footage clearly captures Mr. Yousufzay coercively restraining Fatima’s movements against her wishes. Mr. Yousufzay grabbed on to Fatima’s arms and, once she fell to the floor and onto her back, he dragged her away from the door by her legs. The only reasonable inference available from the evidence is that Mr. Yousufzay intended to effect the deprivation of Fatima’s freedom of movement.

Based on evidence contained in Fatima’s police statement, as corroborated by the security camera footage, the offence of unlawful confinement has been proven. I find Mr. Yousufzay guilty on count 2. Count 3: Utter threat on December 21, 2017 [ 73 ] Fatima recounted in her police statement that during a heated interaction with her father in their living room, he threatened to raise a hand at her and beat information out of her. However, the threat was allegedly made during her father’s heated lecture and at a time when Fatima’s mind was racing. While Mr.

Yousufzay may well have threatened Fatima in the manner described, I am not certain what was said during this exchange. I find Mr. Yousufzay not guilty on count 3. Count 4: Mischief [ 74 ] Everyone commits mischief who wilfully destroys or damages property. In this case, it is alleged that Mr. Yousufzay willfully damaged Fatima’s glasses when he slapped her face causing her glasses to break. [ 75 ] Mischief is a general intent offence and in this case requires the Crown to prove that Mr. Yousufzay either intended to damage Fatima’s glasses or was reckless in causing the damage.

There is no evidence upon which I can find that Mr. Yousufzay intended to damage Fatima’s glasses and accordingly I must be satisfied on the basis of recklessness. While I am convinced Mr. Yousufzay struck Fatima, I am not convinced that he was aware of the probability his actions would cause damage to Fatima’s glasses and I find him not guilty on count 4. Count 5, 6 and 7: Historical Allegations of Assault and Threatening [ 76 ] At the conclusion of her KGB statement, Fatima disclosed other instances of abuse.

For instance, Fatima recalled how on one occasion her father slapped her and on another he kicked her in the back.

Fatima reported that these assaults took place in the span of five years since the day they moved into their current home. [ 77 ] Fatima also recounted that during that time, her father dragged his children into the basement and threatened to lock them up and beat them with electrical wires if they dishonoured them. [ 78 ] On one occasion at their previous home, Fatima had stuck her tongue out at her brother, and her father responded by striking her repeatedly with his belt. [ 79 ] It is clear to me that the relationship between Fatima and her father is complex. I am also convinced that in the past, Mr.

Yousufzay has reacted angrily and physically towards his daughter when they have experienced conflict. The events of December 21 st are illustrative of that dynamic. [ 80 ] However, Fatima’s evidence concerning these historical instances of abuse lacks the sort of detail and circumstantial support which rendered her statement regarding the December 21 st events so compelling and reliable. In the end, I am left in reasonable doubt concerning the historic allegations. I find Mr. Yousufzay not guilty on counts 5, 6, and 7. Released: June 10, 2019

Signed: Justice I. Jaffe