R. v. J.(M.), 2011 ONCJ 412

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Central East - Newmarket 4911-998-10-09052-00 DATE: 2011·07·06 Citation: R. v. J.(M.) , 2011 ONCJ 412 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — M.J. Before Justice K.P. Wright Heard on April 20 and June 16, 2011 Reasons for Judgment released on July 6, 2011 K. Hutchinson ............................................................................................................ for the Crown

R. Chartier ...................................................................................................... for the accused M.J. WRIGHT J.: [ 1 ] M.J. comes before this court facing two counts of threaten death and one count of sexual assault.

It is alleged that on September 16th and 17th of 2010, M.J. threatened to kill his wife, M.B. and that in December of 2008 he sexually assaulted her. [ 2 ] The Crown proceeded by indictment in this matter and M.J. elected to have his trial in the Ontario Court of Justice. [ 3 ] The evidence in this matter was heard over the course of two days, April 20 and June 16, 2011. The Crown called two witnesses, M.B., the complainant, and Z.S., the next door neighbour.

M.J. testified on his own behalf. [ 4 ] At the close of the Crowns case, the Crown quite fairly acknowledged that no evidence had been led in support of the threatening charge dated September 16, 2010 and invited the court to dismiss that charge. I agree, count 2 will be marked dismissed. [ 5 ] The remaining counts were put over to today’s date for judgment. [ 6 ] This is my judgment. Overview of the Evidence [ 7 ] I will now give a brief overview of the evidence. I will further develop the evidence when necessary in my analysis. [ 8 ] M.J. and M.B. were wed in Iran approximately 18 years ago.

The couple then migrated to Canada 13 years ago and have two children as a result of their union. [ 9 ] M.B. testified that by September 2010 she and M.J. had been having ongoing marital difficulties. These difficulties had resulted in the couple sleeping separate and apart. M.J. remained in the master bedroom, while M.B. shared a room with her youngest son. [ 10 ] She says on September 16, 2010, the couple were having an argument over the computer. There was one laptop in the home that had been purchased by M.B. but that was used by both of them. She says M.J. took or hid the modem to the computer.

Without the modem she could not access the internet. She testified that she needed to access the internet because she was in the process of looking for a job. [ 11 ] In response to M.J. taking the modem, M.B. hid the computer and told him, “If there is no modem there is no computer.” This dispute continued into the next day. By September 17 she said M.J. was getting increasingly upset and angry about being denied access to the computer.

Ultimately he said to her, “If you don’t bring me the computer I am going to kill you.” He also said to her, “If you don’t bring the computer I’m going to cut your head off and I won’t let your parents see you anymore.” [ 12 ] She testified that M.J. then went upstairs and telephoned her parents in Iran.

She overheard him telling her parents to, “Come and take your daughter away because if you don’t take her away I will kill her – I send you her head.” In his frustration he also called his sister and told her to contact the complainant’s family and, “Tell them to come and take Maryam’s corpse by next week.” [ 13 ] She said once M.J. was off the phone he took a drawer filled with clothing from her wardrobe and threw it on the front lawn. She said she became frightened and that is when she called her neighbour, Z.S., and asked her to come over to her home.

Z.S. attended and while she was speaking with M.J. the complainant called the police. [ 14 ] In the course of providing the police with a statement, M.B. disclosed that M.J. had sexually assaulted her in December of 2008. She testified that she was angry with M.J. for not helping her with the clean up after a kitchen renovation and that as a result she went to sleep on the floor in her youngest son’s room. She said M.J. entered that room and demanded she have sexual intercourse with him. She told him to go away but he did not listen to her.

He laid down on the ground next to her and when she physically resisted him, he grabbed her by the hair and began to bang her head off of the floor. He restrained her hands, removed her pyjamas and had sexual intercourse with her. [ 15 ] M.J.’s testimony is in diametric opposition to M.B.’s in almost every way. [ 16 ] Although, there are some common denominators in this case. They are: that the couple were fighting prior to the police attendance; that M.B. was visibly upset; and that clothing was thrown onto the lawn of their home.

But that is where the commonalities end and the divergence begins. [ 17 ] M.J. testifies that the couple had no marital discord and had a loving relationship prior to this incident in September 2010. He says that on September 16, 2010, he was using the home computer to investigate online dating services. He says his wife came into the room and he closed the computer out of respect for her. She then took the computer, reviewed its history and discovered that he had been on these computer dating sites.

This sparked an argument between the two, in which his wife got increasingly upset and that night did not sleep in the master bedroom. The next morning he wakes up and he goes to the kitchen. His wife is there and she begins to call him a cheater and gets increasingly upset and angry. He explains that he did not intend to cheat and that he was only curious. She continued to yell while he remained silent and he then decided to retreat to the upstairs bedroom. He says she grabs clothing from the main floor coat closet.

He describes the neighbour coming over to the house and interacting with her twice before the police arrived.

[ 18 ] M.J. testifies that he does remember the night the couple were cleaning up after their kitchen renovation in 2008. He says there were no problems and that he was doing his share of the cleaning up. He says that when they were done he took a shower and went to sleep and that his wife slept in another room with the baby because she was still nursing. Findings and Analysis [ 19 ] M.J. testified on his own behalf. I have thoroughly reviewed his evidence and I do not accept it and here is why. [ 20 ] His evidence in examination in-chief was brief and succinct.

However, in cross-examination it became apparent that there were some fundamental inconsistencies in his evidence that in my view are irreconcilable. [ 21 ] For example, he describes a happy, trouble-free marriage up until the incident in September 2010. On this point he is unwavering. Yet, he also says he was on the dating website on this day and that is what triggered the argument between he and his wife. If it were the loving and warm relationship that he testified it was, then why would he be exploring dating websites on the internet?

His explanation of being curious doesn’t make sense unless there were already underlying problems in the relationship. In my view this is a significant inconsistency that impinges on his credibility. [ 22 ] Moreover, I found M.J. was not forthcoming when testifying. He presented as quite dismissive when answering questions in cross-examination, which has led me to conclude that he was deliberately withholding information. [ 23 ] His answers were confusing regarding how his wife came to know he was on the dating websites.

In my view, he was deliberately being evasive and difficult when answering questions in cross-examination about this. He refused to admit that he was hiding information from her. He said he would close the window on the computer so she could not see the website. He said he did this out of respect for her, but insisted that he was not hiding it from her.

In my view it is a distinction without a difference, except that it is a clear demonstration of his inability to provide the court with an honest, accurate and fulsome account of what happened. [ 24 ] In examination in-chief, he said that she took clothes out of the closet and threw them outside. When pushed on details in cross-examination, his evidence became more convoluted, confusing and inconsistent. In cross examination he said it looked like she grabbed clothes. He said he didn’t know exactly whose clothes, and made no mention of what she did with the clothes.

His sequencing also becomes inconsistent in cross-examination. He originally says he saw this while he was going upstairs, in cross he agrees he was in the kitchen when he saw this. At one point he even goes so far as to say that he heard it from the kitchen. [ 25 ] In my view there is a noticeable and troubling pattern in M.J.’s evidence, and that is the more details he was asked the more inconsistent his story became. In my view he was not forthcoming; he was dismissive and deliberately withheld information from the court. After a thorough review of his evidence I find myself unable to place any weight on it.

Z.S. [ 26 ] I will now turn to the evidence of Z.S.. She had been a neighbour to M.J. and M.B. for about five years at the time of this incident. [ 27 ] On the day of this incident she testified that she was called over to the house by M.B. because she and M.J. had been fighting. She said M.B. appeared nervous and visibly upset. She said when she tried to speak to M.J., he was not responsive. [ 28 ] She could offer very little in the way of details. She had no memory of exact conversation, the sequence of events or the time of day that this happened.

She had no interest in refreshing her memory from her police statement. Her demonstrated reluctance and resistance was in my view intentional. She clearly did not want to participate in the process. As a result, her evidence is of very little assistance to the court. Her evidence that the couple was fighting and that she attended is equally consistent with M.J.’s evidence as it is with M.B.’s. M.B. [ 29 ] I will now turn to the evidence of M.B.. She testified with the assistance of a Farsi interpreter. For the most

part I found her to be a very believable witness. Despite being initially hesitant, overall I found her to be forthcoming and fair. [ 30 ] Her evidence however was not perfect, nor does it have to be. Perfection is not the test. But there were some troubling aspects to her testimony that I have found difficult to resolve.

Although much of her evidence was quite detailed, there were two areas where very little in the way of details was offered and they are of concern to the court. [ 31 ] Firstly, as pointed out by defence counsel, she did not mention during her examination in-chief that she knew her husband was on dating websites and that she was fearful he was cheating on her. She did, to her credit, without hesitation, agree to this proposition when it was put to her in cross-examination.

Be that as it may, it does little to alleviate my concern as to why she would not include this in her very detailed account of what led up to the threat. Crown counsel says this was not her focus at the time and that is why she failed to mention it. I find that difficult to accept. It seems to me the possibility of M.J. cheating on her would be equally, if not more significant to her at the time of this incident than him hiding the modem to a computer. Moreover, drawing such a conclusion, without any evidence to support it, would, in my view, would amount to speculation.

I am not prepared, nor am I entitled, to speculate as to why she did not mention it. [ 32 ] In my view, the omission of this detail required an explanation. The absence of a satisfactory explanation impacts the

weight I am prepared to attach to her evidence. [33] The second troubling aspect of her evidence is her explanation for the untimely disclosure of the sexual assault. Shetestified that she was sexually assaulted by M.J. in December 2008. I accept that victims of sexual assault often do not discloseimmediately. It is not uncommon for many years to lapse before a victim feels ready to come forward with such information. Thishowever does not alleviate the necessity of providing a satisfactory explanation as to why a victim did not disclose and what promptsthem to ultimately come forward.

This evidence is crucial to the court’s assessment and directly impacts on a witness’ credibility. [34] In this case, M.B. testified that the reason she did not report the sexual assault when it happened was because she thoughtif she waited her life might change. This is not what I would consider an overly fulsome answer, but it is understandable. [35] When asked why she came forward with this information two years after the fact, she responded as follows: Because I was tired of the situation.

All this time I had been putting up with this and now he was throwing my clothes out and he waskicking me out of the house. [36] The answer is wholly inadequate. There is a complete disconnect between the answer and the reporting of the sexualassault. It left me with the impression that her frustration with the relationship and the prospect of being kicked out of her home was ofgreater concern to her and overshadowed the sexual assault and the threat.

In my view, without further explanation, it left open thepossibility that this threat to kick her out of her home may have motivated the police attendance and the reporting of this incident. Although much of her evidence favours acceptance, this single answer leaves me quite troubled. She also said she was tired of thesituation. But what that situation was, was never explored with her. Again I find myself troubled by the lack of context in which toassess the evidence. [37] There was also paucity of evidence surrounding the circumstances of the disclosure to the police.

I am left without anyinformation about how disclosure was even initiated and by whom. Again, in cases like this one, where disclosure is not immediatelyforthcoming, the context of how and why it came about, directly impact the judge’s ability to fully and accurately assess the credibilityof a witness.

Summary [38] The principles to be applied in this case are the same as those to be applied in any criminal trial. [39] In this case, M.J. is presumed to be innocent, unless and until the Crown has proven each essential element of theseoffences beyond a reasonable doubt. It is not for M.J. to prove his innocence. The burden must at all times remain squarely on theshoulders of the Crown and never shift. [40] In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the SupremeCourt of Canada in R. v.

W. (D.), [1991] C.C.C. (3d) 397: First, if I believe the evidence of Mr. Jafarian I must acquit. Second, if I do not believe the evidence of M.J. but am left in reasonable doubt by it, I must acquit.

Third, even if I am not left in doubt by the evidence of M.J., I must ask myself whether on the basis of the evidence which I do accept, Iam convinced beyond a reasonable doubt by that evidence of his guilt. [41] I have applied those principles to this case and for the aforementioned reasons I do not believe or accept the evidence ofM.J., nor am I left in a reasonable doubt by it. [42] But my analysis does not end there. I must go on to consider the rest of the evidence.

I must determine whether on thebasis of the evidence that I do accept whether the Crown has proven the charges against M.J. beyond a reasonable doubt. [43] In R.v. Minuskin (2003), (ON CA), 181 C.C.C. (3rd) 542 (Ont. C.A.) at p.550 the court made thefollowing comment that has assisted me in my assessment: Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. [44] This is precisely the situation I find myself in as I assess the evidence of M.B..

It is not so much a matter of what she didsay, but what she didn’t say that is of concern to the court. It is the aforementioned identifiable gaps in her evidence that give me pauseand concern. I remind myself that the Crown has an extremely high standard. It is not enough that I think M.J. likely committed theoffences that he is charged with. The Crown must prove the allegations beyond a reasonable doubt. Today, I find that, that onus has notbeen met.

Today I find myself with a reasonable doubt. [45] M.J., our law directs me to give you the benefit of that doubt. [46] As a result, M.J., I find you not guilty of all counts.

Released: July 6, 2011 Signed: “Justice K.P. Wright”