R. v. Imamovic, 2011 ONCJ 248

COURT FILE No.: Region of Durham 998 09 22122 Citation: R. v. Imamovic , 2011 ONCJ 248 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Damir Imamovic Before Justice J. De Filippis Heard on: July 7 & November 11, 2010 and April 1, 2011 Reasons for Judgment released on May 10, 2011 Ms Green for the Crown The Defendant represented himself [1] [ 1 ] When a person makes an allegation of domestic assault, the following usually happens: The suspect is arrested and held for bail. Terms of release limit mobility and action and hinder contact with the children of the relationship.

Any concurrent family proceedings are delayed or otherwise affected by the criminal process. All this is the intended or incidental response to the problem of violence in the home. On occasion, this response can take on a life of its own without regard to the actual risk posed by a defendant and oblivious to the personal agenda of a complainant. That is what probably occurred in this case. [ 2 ] The defendant was charged with assaulting Maureen Imamovic and Scott Ladoucier and with committing mischief to the property of Maureen Imamovic.

The three offences are said to have occurred on 17 November 2009 at the Municipality of Clarington. Maureen Imamovic is the defendant’s estranged wife. Scott Ladoucier is her current partner. The defendant and his estranged wife have two children, aged 12 and 10. In addition to this criminal trial, the parties are involved in family court proceedings. [ 3 ] At the conclusion of the trial, the Crown conceded the charge of assault involving Scott Ladoucier should be dismissed.

For the reasons that follow, I dismiss all the charges. [ 4 ] Maureen Imamovic testified that her relationship with the defendant had always been a difficult one. She accused him of lying about his place of birth and entering Canada “with false papers”. About six years ago the defendant sold his T-shirt business and assumed a “horrible debt”. The complainant implied he was unable or unwilling to contribute financially to the family. In the years that followed the relationship deteriorated. She said that at times he was “rough” with her and that she was also rough with him “in defending myself”.

In May 2008, the defendant left his wife and children. He returned in October 2009, evidently with the intention of reconciling. The complainant described the situation as “intolerable”. She stated the defendant never left the house and she had “no personal space”. According to the complainant, the defendant believed she was unfaithful and threatened to kill her. On one occasion, after the complainant and a female co-worker returned from a business trip, the defendant asked them if they had “a good time and acted like sluts”. The complainant was embarrassed and her friend left.

At other times the defendant called her “fat”, “ugly”, “pig” and “bitch”. The children were at home during many of these arguments. Consequently, the complainant began to stay with her parents in Peterborough and, eventually, was there four nights a week. The defendant and children remained together. [ 5 ] On 17 November 2009, the complainant went to the matrimonial home because her daughter needed to be picked up later that evening.

She asked Scott Ladoucier to accompany her; she explained that she was more concerned for her safety in being alone with the defendant, than she was with his reaction at seeing her with a male friend. The sequence of events, according to the complainant, is as follows: They arrived at about 7 PM and went to the kitchen table. The defendant entered the home from the back yard. The defendant knew Mr. Ladoucier as one of his wife’s co-workers. He returned to the yard. About one hour later, the complainant’s son came home and the defendant came inside. The complainant and Mr.

Ladoucier went upstairs to the bedroom previously shared by the defendant and his wife. The complainant explained that “it was the only place to go”. At 8:20 PM, the complainant and Mr. Ladoucier left to pick up the complainant’s daughter. They returned with her about 10 minutes later and went back upstairs to the bedroom. At 9 PM the defendant went to the bedroom and told Mr. Ladoucier to leave. The latter went downstairs, followed by the defendant who was screaming profanities. The complainant told him to stop but he came close to her and shouted that she was “fucking [her] boyfriend”.

The complainant pushed the defendant away and he withdrew to the basement. Mr. Ladoucier suggested the complainant leave and they both sat on the love seat while considering what to do. The defendant came back upstairs screaming at Mr. Ladoucier for having an affair with his wife and told him to “get the fuck out”. Mr. Ladoucier put his coat on but

lingered in the home. The defendant opened the front door and shouted at him to leave. Mr. Ladoucier exited to the front porch but did not proceed further. The defendant grabbed and shook him. Mr. Ladoucier told him to stop or he would retaliate. The defendant “dropped his arms” and Mr. Ladoucier went to his car. The complainant went to the bedroom, locked the door, and began to pack her possessions. The defendant “broke through the door” and entered. He grabbed the complainant by the shoulders and turned her around.

He then put his hands on her neck and began to shake her; however, he immediately dropped his hands and said, “I know what you are trying to do”. The complainant told the children that “Dad and I are out of control” , went outside to where Mr. Ladoucier was waiting, and left with him. [ 6 ] The complainant testified that neither she nor Mr. Ladoucier was injured by the confrontation with the defendant. The next day she learned her daughter was not at school and, concerned, went to the matrimonial home. She and the defendant argued and the complainant left.

Within days, she returned and removed the children to her parents’ home in Peterborough. The defendant went to the police and claimed she had “kidnapped” his children. In addition he repeatedly telephoned the complainant at her parents’ home and at work. The complainant testified that these calls caused her to fear for her safety and go to the police, with the result that the present charges were laid. [ 7 ] The complainant estimated that in the few days before his arrest, the defendant tried to call her “about 180 times” and left many voice mail messages for the complainant.

The complainant did not respond to the numerous attempts to contact her. Over twenty of these messages were played in court. They are similar in tone and content. The defendant always sounds frustrated and makes one or more of the following points; he wants his children back, he threatens to go to a lawyer and take the complainant to court, he demands “fairness”, and says he wants “fifty/fifty”. At no time does the defendant threaten harm to the complainant. The complainant identified pictures of the interior of her home that depict the numbers, “50/50”.

This had been written, in pencil, on a wall in the dining room, bedroom, and a closet. She also stated that in addition to the damage to the bedroom door, the defendant destroyed mother’s day cards and jewelry belonging to her. [ 8 ] The cross-examination of the complainant was conducted by the defendant’s lawyer at the time. Counsel succeeded in showing that in the years preceding the events in question, the complainant thought little of the defendant as a person and provider for his family. During this time, the defendant was a stay at home dad and the complainant worked outside the home.

One incident, in particular, reveals the complainant’s attitude toward her husband: The defendant replaced the cement walkway at the home and while it was drying, the complainant carved the words, “Daddo is an asshole” into the concrete. That inscription remains to this day. The complainant admitted that “Daddo” is the defendant’s nickname and that their children would step over the inscription each time they entered or exited the home. [ 9 ] The complainant acknowledged that she was the first person to use physical force on November 17. She explained that Mr.

Ladoucier accompanied her to the bedroom because there was nowhere else for them to go and he was there to protect her. Nevertheless, she returned the following day without an escort to see the children. The complainant stated that within days of the defendant’s arrest, she began a romantic relationship with Mr. Ladoucier that continues to this day. [ 10 ] Many of the answers given by the complainant to defence counsel are strange in that she claimed not to remember (allegations of) rather startling events. For example: Q: Did you tell Mr.

Armstrong [a neighbour] that you did not fear the defendant but that he was not entitled to anything and you were going to screw him? A: I can’t recall. Q: In 1993 did you hit the defendant in the head while driving? A: I can’t recall. Q: In 1994, did you push the defendant down the stairs? A: I can’t recall. Q: In 1999, did you shove the defendant while he was painting the basement? A: I can’t recall. Q: In 2001, did you pull a knife on the defendant and put it to his throat? A: I can’t recall.

Q: Do you recall an argument in bed in which you pushed the defendant and he hit his head and he said he would call the police and you said go ahead, ‘who will they believe, an 80 thousand dollar a year RN or a loser’? A: I can’t recall. Q: No recall or it didn’t happen? A: No recall [ 11 ] In re-examination, the complainant was asked to clarify these answers; she said she could not really explain her choice of words, but whenever she said “can’t recall”, she meant “it didn’t happen”. [ 12 ] Scott Ladoucier met the complainant 16 years ago at work.

He testified that in the weeks leading up the events in question, the complainant told him the defendant would not agree to a divorce unless another man told him he was interested in her.

About one month before the defendant’s arrest, Mr. Ladoucier told him he was “romantically interested” in the complainant. The defendant shook his hand and said “that’s great”. Mr. Ladoucier interpreted this as an “agreement” and thought the defendant “would finish up what he had to do and bugger off”. The complainant subsequently told him the defendant would not divorce her but might agree to mediation. Mr. Ladoucier said this caused him concern so he accompanied the complainant to her home to “ensure she would be fine”. [ 13 ] Mr.

Ladoucier agreed with much of the complainant’s testimony about the sequence of events on November 17. He witnessed the complainant push the defendant. He said the defendant went to the basement “in a huff” and that the complainant was “highly agitated”. He went to the matrimonial bedroom with her because “there was a T.V. there that the kids were watching”. Later, the defendant told him to get him to “get the fuck out of my house”. Mr. Ladoucier noted that he said this repeatedly, “in a high pitched school girl voice”. Mr.

Ladoucier concedes he lingered at the front door and the defendant pushed him out onto the porch. [ 14 ] The cross examination of Mr. Ladoucier was conducted by the defendant personally. He began by pointing out that Mr. Ladoucier has assumed a father role over his children and asked if he thinks a conviction in this case will help him become their father. Mr. Ladoucier answered that “it will happen anyway”. Later, Mr. Ladoucier objected to the possibility that the defendant would be awarded shared custody of the children and an equal division of property because, “I think you’re a deadbeat”.

The following exchange then occurred: Q: The outcome of this trial helps your future? A: The outcome of this trial is irrelevant, you are irrelevant. Q: Why did you come to visit my wife [prior to November 17]? A: As good friends, to bask in each other’s company. Q: Were you not concerned she would punch me [on November 17]? A: I have never seen her do that unfortunately. Q: Did she [the complainant] not call me a leech and loser and say, ‘this is my house’? A: No, but I agree with all that and I’m sure several people have said this about you. [ 15 ] Mr.

Ladoucier made it clear that he did not believe the defendant had any right to order him out of the house and did not care about his opinion in the matter. He added that as soon as he and the complainant learned of the defendant’s arrest, they had sex in the car. [ 16 ] In her helpful submissions, Crown counsel conceded that the charge of assault against Scott Ladoucier was not viable, having regard to all the evidence and the law of trespass.

Counsel also acknowledged problems with the evidence of Maureen Imamovic and Scott Ladoucier but maintained that the remaining charge of assault and, especially, that of mischief was proven. In this regard, the Crown argued that the “rage” expressed in the defendant’s telephone messages confirm his guilt. [ 17 ] The difficulty with the Crown’s submission is that it requires that I accept the testimony of Maureen Imamovic and Scott Ladoucier. That, I am not prepared to do. On the material facts in issue, their evidence is not credible or reliable. [ 18 ] Ms Imamovic stated she took Mr.

Ladoucier with her to the matrimonial home because she felt unsafe going alone. She did not say why she felt unsafe, apart from the fact that during some previous arguments, they had been equally rough with one another. In any event, the following day, after Ms Imamovic and Mr. Ladoucier were supposedly assaulted by the defendant, she went to the matrimonial home alone. Moreover, given the sequence of events as related by Ms Ladoucier, there was no reason for her to be at home on November 17 th , with or without Mr. Ladoucier.

If she feared for her safety, she could easily have picked up daughter from the extra- curricular activity and dropped her off at home without going inside. The explanation given by both Ms Imamovic and Mr. Ladoucier for going to the matrimonial bedroom is unbelievable. In this regard, I note that although Ms Imamovic testified that before November 17 she and Mr. Ladoucier were “just friends”, he stated that, at her request, he had previously told the defendant he was “romantically interested” in his wife.

Given the history of the matrimonial relationship, to bring that man into that bedroom must be seen for what it is; a deliberate provocation. I reject the explanation that the parties went there because there was nowhere else to go. [ 19 ] Apart from the foregoing comments, it would be unsafe to convict the defendant based on the testimony of Ms Imamovic and Mr. Ladoucier. The “I don’t recall” answers given by the former cannot be dismissed as a matter of style; rather, I interpret them as evasiveness. As for Mr.

Ladoucier, his testimony reflects such obvious contempt for the defendant that he cannot stand as a trustworthy witness. [ 20 ] The defendant is found not guilty. Released: 10 May 2011 Signed: “Justice J. De Filippis”