PROVINCIAL COURT OF NOVA SCOTIA
Citation: R.v. Al Khatib, 2014 NSPC 62
Date: 2014-07-24
Docket: 2593601; 2593602
Registry: Dartmouth
Between:
Her Majesty the Queen
v.
Omran Al Khatib
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Judge: |
The Honourable Judge Theodore K Tax, |
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Heard: |
November 13, 2013; November 29, 2013; February 7, 2014; February 24, 2014; March 5, 2014; April 29, 2014; May 7, 2014, in Dartmouth, Nova Scotia |
|
Decision |
July 24, 2014 |
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Charge: |
CC 145(3); CC 145(3) |
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Counsel: |
Glen Scheuer, for the Crown John O’Neill, for the Defence |
By the Court:
INTRODUCTION
[1] Mr. Omran Al Khatib faces a charge that he failed to comply, without lawful excuse, with the condition in an undertaking made on May 7, 2013 by a Justice which required him to not to have any direct or indirect contact or communication with Ms. Enas Abualqumhan, Zainab Al Khatib, Atta Al Khatib or Faisal Al Khatib, contrary to section 145(3) of the Criminal Code. Mr. Al Khatib, was also charged under that same undertaking issued on May 7, 2013 that he failed to comply, without lawful excuse, with the condition in that undertaking which required him to “keep the peace and be of good behaviour”, contrary to section 145(3) of the Criminal Code. The Crown proceeded summarily. Trial evidence was heard over several days.
[2] The issue before the Court is whether the Crown has established, beyond a reasonable doubt, all of the essential elements that Mr. Al Khatib committed the actus reus and mens rea of this offence. If so, then the further legal issue is whether the Defence met an evidentiary burden with respect to a “lawful excuse” for the actions of Mr. Al Khatib.
SUBMISSIONS OF COUNSEL:
[3] Both Counsel acknowledge that the factual context under which this case arises is that Ms. Enas Abualqumhan and Mr. Al Khatib were married about 12 years ago and they separated approximately three years ago. Since their separation, their relationship has disintegrated and both of them acknowledge that the separation has been difficult, and since then, their relationship has been “bitter”.
[4] It is the position of the Crown that Mr. Al Khatib followed Ms. Abualqumhan for short period of time between 2:30 PM and 3:00 PM on May 7, 2013. Then, while there was a red traffic light at the corner of the Dartmouth Road and Ridgevale Drive, Mr. Al Khatib pulled up beside Ms. Abualqumhan and used his cell phone camera to photograph her car and the car in front of her. Shortly after the traffic light on Dartmouth Road turned green, Mr. Al Khatib used his cell phone camera to make a short video recording of their two vehicles proceeding up the hill on the Dartmouth Road. The Crown Attorney submits that Mr. Al Khatib was certainly aware of the court order to not have any direct or indirect contact or communication with Ms. Abualqumhan as the order had only been made a few hours earlier on May 7, 2013. In these circumstances, it is the position of the Crown that all of the essential elements of this general intent offence contrary to section 145(3) of the Criminal Code have been established beyond a reasonable doubt and that Mr. Al Khatib has not satisfied any evidential burden to establish a “lawful excuse” for his actions.
[5] It is the position of the Defence that the evidence of Ms. Abualqumhan is not credible and that much of it was colored by the “extremely bitter” relationship that she has had with Mr. Al Khatib since their separation. Defence Counsel submits that Ms. Abualqumhan’s reluctance to answer questions about her business or any personal relationship with Mr. Joseph Dib is an example of her complete lack of candor and truthfulness and therefore, her evidence should be given little, if any, weight. In addition, Defence Counsel submits that when Mr. Al Khatib took the cell phone photographs and video recording of Ms. Abualqumhan’s vehicle, they were not intended to be in contravention of the court order made on May 7, 2013, but rather, to document his “escape” out of a concern that every time Ms. Abualqumhan is near him, he can see “trouble coming” from her “fabricated complaints”. As such, it is the position of the Defence that the taking of the photographs and video were only intended as a “lawful justification or excuse” to document his efforts to extricate himself from the situation or to have proof of her wrongdoing and were not intended to breach the terms of the court order.
TRIAL EVIDENCE & FINDINGS OF FACT:
[6] As I indicated previously, the trial evidence in this case was heard over several days. There is no doubt in my mind that this case, in large measure, comes before this court as a result of and in the context of a “bitter” breakdown of the marital relationship between Ms. Enas Abualqumhan [hereafter referred to as “Enas”] and the accused, Mr. Omran Al Khatib [hereafter referred to as “Omran”].
[7] Having had the opportunity to review my notes in detail as well as the exhibits which were filed by both the Crown Attorney and Defence Counsel, it is apparent that there are several essential elements which are not in dispute and for that matter, there are several key factual findings that are not in dispute.
[8] First, with respect to the essential elements of a charge contrary to section 145(3) of the Criminal Code for a failure to comply with a condition in an undertaking or recognizance issued by a Justice or Judge, the following essential elements are not in dispute:
1. The date, time and place of the alleged direct or indirect contact or communication was May 7, 2013, between 2:30 PM and 3PM, on the Dartmouth Road at or near Dartmouth, Nova Scotia;
2. The identity of the accused – Mr. Omran Al Khatib acknowledged that he and the complainant, Ms. Enas Abualqumhan have been married for 12 years, but during the last three years, they have been in the midst of a “bitter” separation before the courts;
3. At all relevant times in this prosecution, Mr. Omran Al Khatib was subject to the conditions of a court order “Undertaking Given to a Justice or a Judge” dated May 7, 2013, a certified copy of which was filed as Exhibit 7 in these proceedings, in relation to an allegation of uttering threats to cause death or bodily harm on or about May 6, 2013, at or near Bedford, Nova Scotia, contrary to section 264.1(1)(a) of the Criminal Code;
4. Mr. Al Khatib was released on terms and conditions of that court ordered Undertaking around 12 noon on May 7, 2013 which included, among other things, a term or condition in clause (d) to “have no direct or indirect contact or communication with Enas Abualqumhan, Zainab Al Khatib, Atta Al Khatib and Faisal Al Khatib, except through a lawyer;
5. The certified copy of the Undertaking made on May 7, 2013 [Exhibit 7] confirms that Mr. Al Khatib reviewed the order with a Justice of the Peace [M. Kelly] and placed his initials to confirm that he was aware of all of the contents of the order;
[9] In addition to the foregoing facts which establish several of the essential elements of the charges beyond a reasonable doubt, I also find that there are other facts which are not in dispute between the parties;
(a) The vehicles being operated by Enas and Omran were on the Dartmouth Road between 2:30 and 3:00 PM, both proceeding outbound from Bedford in the direction of Dartmouth as they were approaching the traffic lights at the corner of the Dartmouth Road and Ridgevale Drive. At that point in time, Omran’s vehicle was behind the Enas’ vehicle;
(b) Enas was driving a red Buick Rendezvous and Omran was driving a GMC Trailblazer SUV, which was dark gray in color. From their marital relationship, they knew the color, make and model of each other’s vehicles;
(c) Enas was in the only occupant in her vehicle and Omran was the only occupant in his vehicle;
(d) Between 2:30 and 3:00 PM on May 7, 2013, Enas was on her way to work at the Pizza Girls restaurant location on Portland Street in Dartmouth, Nova Scotia when she stopped at the red traffic light at the corner of Dartmouth Road and Ridgevale Drive;
(e) After his release from custody on the terms of the undertaking around 12 noon on May 7, 2013, Omran stopped at the hotel where he was staying since the separation to have a shower, freshen up and change clothes. Then, between 1:30 and 2:00 PM, he went to the restaurant that he owns in Sackville, Nova Scotia, which used to be known as a Pizza Girls location, but is now called Mom’s Pizza. There was a problem with the deep fryer at the restaurant so he contacted a restaurant supply company in Dartmouth, to purchase a used deep fryer for the store;
(f) Prior to going to Dartmouth to purchase the deep fryer, Omran decided to go to the Starbucks location near the corner of the Bedford Highway and the Hammonds Plains Road to have a cup of coffee. From there, he drove down the Bedford Highway, turned right at the Dartmouth Road and saw Enas driving her vehicle in front of him on the Dartmouth Road.
(g) From the foregoing facts, it is reasonable to infer that, at the very least, Omran was only a few seconds behind Enas on the Dartmouth Road as their evidence established that they both approached the intersection at Ridgevale Drive at about the same time, and then they both stopped for the same red traffic signal at that intersection for a short period until their traffic signal turned green.
(h) In addition, Enas had testified that she had proceeded from her residence in Southgate area of Bedford to the Bedford Highway, passed by the Hammonds Plains Road and continued on the Bedford Highway until she turned right onto the Dartmouth Road and continued outbound in the direction of Dartmouth. Therefore, I find from those proven facts and also assuming that both Enas and Omran were both proceeding at the speed limit on the Bedford Highway and on Dartmouth Road as they stated during the trial, that it is reasonable to infer that Enas was in front of Omran and that he was in close proximity to her on the Bedford Highway as well as the Dartmouth Road in order for them to arrive at the same red light at Ridgevale Drive, at about the same time.
(i) Omran and Enas had been partners with Mr. Joseph Dib in the Pizza Girls restaurants located in Sackville, Bedford, and Dartmouth, Nova Scotia, run under the business name GRM Restaurants. The business relationship broke down and Omran took over the Sackville location and renamed it Mom’s Pizza, while Mr. Dib operated the other two restaurants under the Pizza Girls name. Enas worked at the Pizza Girls restaurant located on Portland Street in Dartmouth, Nova Scotia.
(j) Mr. Joseph Dib was operating a silver colored Mitsubishi Outlander SUV which also happened to be stopped at the same time and for the same red light on the Dartmouth Road at the corner of Ridgevale Drive as the one for which Omran and Enas stopped, with Mr. Dib stopped directly in front of her in the same lane of traffic (proceeding straight) as her.
(k) As he approached the red traffic signal on the Dartmouth Road at the corner of Ridgevale Drive, Omran did not stay in the same lane of traffic as Enas, but instead, he pulled into a lane designated for left turns onto Ridgevale Drive and positioned his vehicle beside the vehicle being driven by Enas. While in that location, only a few meters from the vehicles being driven by Enas and by Mr. Joseph Dib, Omran used his cell phone camera to take photographs of their vehicles. A few moments later, Omran began filming a video clip of about 45 seconds in duration on his cell phone camera, just after the traffic light turned green and he and Enas proceeded outbound on the Dartmouth Road in the direction of Dartmouth, Nova Scotia. [See Exhibits 8 (video), 9, 10, 11 (photographs)].
(l) The video clip of approximately 45 seconds shows Omran holding the cell phone camera filming the red SUV being driven by Enas behind him through his rear window while he is driving his vehicle. Then, a few seconds later, the red SUV being driven by Enas pulls out and passes Omran and he turns the camera to show the red SUV going around him on his left as they proceed up the hill past a flashing yellow light above the road. At this point, there are two lanes proceeding up the hill and the red SUV being driven by Enas pulls back into the lane in front of Omran, slows down and moves over to the side of the road. When Enas slows and pulls over to the side, Omran moves into the left lane as his car apparently downshifts, making a noticeable engine noise to maintain its speed up Magazine Hill until the video clip ends.
(m) On the traffic signal on Dartmouth Road at the intersection of Ridgevale Drive, for the vehicles going in the same outbound direction from Bedford as Enas and Omran were going on May 7, 2013, the photographs [Exhibit 10 and 11] clearly establish that there is a green left turn arrow to allow vehicles to make a left turn onto Ridgevale Drive before vehicles going in the other direction towards Bedford, Nova Scotia are allowed to proceed with a green light.
(n) Const. Matthew Guest of the Halifax Regional Police stated that he was on duty on May 7, 2013 and that the dispatch had directed him to go to the Pizza Girls location on Portland Street to obtain a statement from Enas regarding her complaint. He also confirmed that Omran had called the police as well, but he did not meet him or arrest him.
TRIAL EVIDENCE RELATING TO THE TAKING OF PHOTOGRAPHS/VIDEO RECORDING:
[10] As I have indicated above, there is no doubt that Omran took photographs of Enas in her vehicle at the intersection of the Dartmouth Road and Ridgevale Drive on May 7, 2013 and then he used his cell phone’s camera to record a short video shortly after their vehicles proceeded through that intersection. As a result, the real factual and legal differences between the parties relate to those photographs and the video and the reaction of Enas to what she believed Omran was doing versus what Omran stated to be his intentions for taking those photographs and the video during his testimony.
[11] Briefly stated, Enas said that since their separation, Omran has taken pictures of her and their children and posted those images on the internet and “You Tube” to say that she is not a good mother. In the past, she said that Omran has followed her to work and yelled at her. On this occasion, he made no attempt to speak to her, he simply took pictures of her when they were stopped at the red light and also took the video after the light turned green. Enas said that she was stopping for the red light, in the lane to proceed straight towards Dartmouth, and there was one car between her and Omran, but then he pulled up directly beside her in lane to turn left onto Ridgevale Drive. Enas testified that Omran took the pictures of her while he was only 2 or 3 metres away in the left turn lane, when they were both stopped at the red light on Dartmouth Road. Enas stated that there were no obstructions to her view of Omran as he was taking pictures of her and that it was a clear sunny day and he was only a short distance away.
[12] When the traffic signal light turned green, Enas did not move forward immediately, as it appeared to her that Omran was planning to go ahead of her and she was concerned about the cars approaching them from the other direction since there is only one outbound lane for traffic on the other side of the traffic signals. In addition, she was concerned about proceeding because there were schoolchildren on the right-hand side of the road. As a result, she did not immediately move forward when the light turned green in order to allow Omran to pull back to the right and into the same traffic lane as her to go straight or turn right. After he had pulled in front of her and began driving up the hill, he slowed down and then, she sped up and passed him in the passing lane going up the hill.
[13] On May 7, 2013, between 2:30 and 3:00 PM, Enas believed that she first saw Omran in Bedford on Bedford Highway, driving his car in opposite direction, approaching her and she believed that he made a U-turn and then followed her. She did not call the police then because she was not sure if he had done that intentionally or he had some reason to be going towards Dartmouth. However, after Omran took the pictures and video of her, she pulled over to the side of the road and immediately called 911 to report the incident to the police because she was afraid for her safety and she knew that he was under a court order not to have any contact or communication with her.
[14] For his part, Omran stated that he was proceeding to Dartmouth in order to purchase a deep fryer for the Sackville restaurant. As such, he just happened to be proceeding on the Dartmouth Road in the same direction as Enas at the same time. However, when he saw a red vehicle that looked like the SUV belonging to Enas stopped for the red traffic signal on Dartmouth Road at Ridgevale Drive, he confirmed that it was her vehicle and then he moved into the left turn lane for Ridgevale Drive so he could get away from her, because he “knew trouble was coming”. At that point, he also recognized that Mr. Joe Dib was in the SUV in front of Enas and when Enas did not move forward, he then felt that “big trouble was coming” because the car in front of him had not yet turned left and Enas was still beside him. It was at this point that he took the photographs of the vehicle being operated by Enas and the one operated by Mr. Dib.
[15] Since Enas did not immediately move forward, but Mr. Dib had proceeded forward, Omran moved back into the right lane and proceeded straight on the Dartmouth Road, with Mr. Dib now being in front of him. Shortly after he went through the green light, Enas was now behind him proceeding up the Magazine Hill and it was at this point that he started using his cell phone video camera. He said that he kept driving at the speed limit, but then she raced by him in passing lane, and immediately moved over to the right side of his lane and slowed down. When she did that, his car downshifted, and he moved to the left and passed her vehicle in the passing lane as he approached the top of the hill.
[16] Omran stated that he had to pass her at that point on the Dartmouth Road because again, he saw “trouble coming”. He added that after they both got to the top of Magazine Hill, she passed him again and they continued down the road until the lights at Akerley Boulevard when he slowed down and she proceeded at the same rate of speed. When asked what he meant by “trouble coming”, Omran stated that Enas has called the police on several occasions to complain about his actions and he wanted to document that he did not do anything. He added that he has complained to the police on many occasions about the actions of Enas, but the police have not taken any action against her. However, Omran said that the police had told him that he should take photographs or video if he wanted them to follow up on his allegations.
[17] On cross examination, he stated that he took pictures of Enas when she was stopped beside him, because he was not sure “what she was planning”. He denied the photographs of Enas were intended to intimidate her, and reiterated that he only took them for “self-protection” because when she stopped, he felt that “trouble was coming”. He added that he did not really know what to do and only had a few seconds to decide to “run away”, but then she followed him.
[18] On further cross examination, Omran stated that he believes Enas and Mr. Joseph Dib were in a relationship, but added that it was known for some time and he was not upset by that fact. He denied ever putting photographs of her on “You Tube”, Facebook or on Google. He also stated that he had never taken any photographs of Enas in her vehicle before or after May 7, 2013.
ANALYSIS:
[19] In a criminal trial, the Crown must prove all of the essential elements of the offence beyond a reasonable doubt. Reasonable doubt has been defined by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320 and in R. v. Starr, [2000] 2 SCR 144. In Starr, supra, the Court indicated that the burden of proof on the Crown lies “much closer to absolute certainty than to a balance of probabilities”. Whether there is a reasonable doubt must normally be decided on the basis of the totality of the evidence. A reasonable doubt can arise solely on the consideration of the Crown’s evidence or the absence of the Crown’s evidence, or it can arise from the consideration of Defence evidence.
[20] In R. v. Mah, 2002 NSCA 99 at para. 41, Cromwell J.A. (as he then was) reminded trial Judges that they are not to choose between alternate versions and convict if the complainant’s version is preferred. In a criminal trial, the trial Judge is not trying to resolve the broad factual question of what happened. The Judge’s function is to decide whether all of the essential elements of the charge(s) have been proved beyond a reasonable doubt.
[21] Where credibility is the key issue of the case, then reasonable doubt will also apply to that issue. In R. v. W.(D.), [1991] 1 SCR 742, the Court formulated a three step analysis for the trier of fact regarding the issue of reasonable doubt. If the trial Judge believes the evidence of the accused, then the accused must be acquitted. If the trial Judge does not believe the testimony of the accused, but is left in reasonable doubt by it, then the accused must be acquitted. Finally, even if the trial Judge is not left in doubt by the evidence of the accused, the Judge must still determine, on the basis of the evidence which has been accepted, whether the Judge is convinced beyond a reasonable doubt by that evidence of the guilt of the accused person.
[22] In this case, the identification of the accused was not an issue, nor was the date, time, and place of events. The issues do, however, require an assessment of the credibility of testimony, taken in the context of all of the evidence adduced at trial, as well as reasonable inferences from proven facts to determine whether I am convinced beyond a reasonable doubt of the guilt of the accused person. In considering the evidence adduced at trial, I may believe all, some or none of the evidence of a witness or accept parts of a witness’s evidence and reject other parts.
[23] There are many tools for assessing credibility of testimony. First, there is the ability to consider inconsistencies or weaknesses in the evidence of witnesses, including internal inconsistencies (that is, whether the testimony changed while on the stand), prior inconsistent statements, and external inconsistencies (that is whether the evidence of the witness is inconsistent with independent evidence which has been accepted by me). Second, I can assess the attitude and demeanour of the witness, for example, were they evasive, sincere or belligerent and also assess their ability to observe and recall events in responding to questions. Third, I can assess whether the witness has a motive to fabricate evidence or to mislead the Court, but I disregard this factor if an accused person testifies as it affects every accused in an obvious way. Finally, I can consider the overall sense of the evidence and when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highly improbable.
Did the Crown Establish the Actus Reus and Mens Rea of the Breach of the Undertaking charges contrary to Section 145(3) of the Criminal Code?
[24] In R. v. Custance, 2005 MBCA23, leave to appeal refused (2005) 346 N.R. 195n (SCC), Steel J.A. speaking for the Court, at paragraph 10, said:
10. The required elements of an offence under s. 145(3) are:
(1) that the Crown must prove that the accused was bound by an undertaking
or recognizance;
(2) that the accused committed an act which was prohibited by that
undertaking or recognizance or that the accused failed to perform an act
required to be performed by that undertaking or recognizance; and
(3) that the accused had the appropriate mens rea, which is to say that the
accused knowingly and voluntarily performed or failed to perform the act or
omission which constitutes the actus reus of the offence.
[25] Madam Justice Steel also discussed the requisite mens rea, in Custance, supra, at paragraphs 12 and 13:
12. Gary T. Trotter, in his text The Law of Bail in Canada, 2nd edition (Toronto: Carswell, 1999) at 449, states that in order to have the requisite mens rea, the accused must knowingly or recklessly infringe the conditions of the undertaking. The Crown does not have to prove that the accused intended to breach the recognizance, but rather only that the accused intended to commit the actus reus. While recklessness (the conduct of one who sees the risk and nonetheless who takes the chance) will fulfill the mens rea requirement, mere carelessness or negligence will not. See, Sansregret v. The Queen, [1985] 1 SCR 570 at 581 – 82, per McIntyre J. and R. v. Legere (1985), 95 CCC (3rd) 555 (Ont. CA) at 565.
13. The test for mens rea is primarily subjective, and in applying the subjective test, the Court looks to the accused’s intention and the facts as the accused believed them to be. See R. v. Theroux, [1993] SCR 5.
[26] In terms of the actus reus, I have found that the Crown has established that Mr. Omran Al Khatib was subject to and bound by the terms of the Undertaking entered into before a Judge on May 7, 2013. I find that Exhibit 7, a certified true copy of the Undertaking, establishes that the terms and conditions were read and explained to Mr. Al Khatib by a Justice of the Peace. Furthermore, I find that Mr. Al Khatib placed his initials beside each and every one of the conditions in the Undertaking which signified that he was aware of those conditions and that he understood those conditions.
[27] I also find based on Custance, supra, that the breach of a condition in a recognizance or undertaking contrary to section 145(3) of the Criminal Code is a general intent offence and that the Crown does not have to prove any ulterior motive or that the accused actually knew that his actions would constitute a breach of the undertaking or recognizance. As such, I find that the Crown does not have to prove that the accused intended to breach the undertaking or the recognizance, rather, only that he intended to commit the actus reus.
[28] Given the facts and circumstances of this case, which are largely not in dispute, the following issues must be addressed:
1. Has the Crown established, beyond a reasonable doubt, the actus reus for this offence, that is, that Mr. Al Khatib had direct or indirect contact or communication with Ms. Abualqumhan on May 7, 2013?
2. Has the Crown established the appropriate mens rea beyond a reasonable doubt, that is, that Mr. Al Khatib knowingly and voluntarily committed the act or omission which constitutes the actus reus of the offence?
3. If the Crown has established both the actus reus and the mens rea for this offence, has the Defence met an evidentiary burden to establish that Mr. Al Khatib only did so with a “lawful excuse” for his actions?
[29] In order to determine whether the Crown has established that Omran committed the actus reus in relation to the section 145(3) Criminal Code charges which alleged direct or indirect “contact” with Enas, it is necessary to determine the meaning of “contact” in the context of the release conditions contained in the Undertaking. In cases, such as R. v. Legere, supra; R. v. J.F., [2001] O.J. No. 2054 (Ont. SCJ) per Hill J. and in R. v. H.B.T., 2004 NSSC 56 per Hall J. and R. v. Downey, 2012 NSPC 74 courts have adopted the dictionary definitions of “contact” to determine whether the actus reus was established.
[30] Hill J. of the Ontario Superior Court of Justice referred to a number of dictionary definitions in R. v. J.F., supra, at paragraph 23 which defined “contact” as including “to bring or come into or be in contact”; “a state or condition of touching” or “ establishing of communication with someone, and observing or receiving of a significant signal from a person…” or “ to enter or be in contact with… or get in communication with”. After noting that the words “communication” and “contact” do not have the same meaning, Hill J. concluded at paragraph 24:
24. While there is clearly some overlap between the commonly understood interpretations of communicate and contact, neither is ambiguous or vague. Contact may, it seems to me, include intrusion into the privacy of another person, a disruption of individual security, for example by sending an item to an individual or acquiring physical proximity to another person in such a way for that presence to become known to the other person, even though in each example it may be said that there is no overt communicative aspect to the conduct.
[31] On the other hand, Hall J. of the Nova Scotia Supreme Court in H.B.T., supra, said at paragraph 19 that, in his view, the term “contact” signifies some interaction between the two individuals, in the sense that there must have been some communication between them. He accepted the dictionary definition of “communicate” to mean “to give, or to give and receive information, signals, or messages in any way, as by talk, gestures, writings, etc.”
[32] In H.B.T. supra, Hall J. noted the definition of the word “contact” adopted by Hill J. in R. v. J.F., supra, but he was not prepared to accept that definition in the context of the charge of a breach of probation for contact or attempted contact with another individual. Justice Hall stated at paragraph 22:
In my respectful opinion that is far too broad a definition. According to this definition, merely passing each other on the sidewalk, or being present in a restaurant, or a church, or on a bus, in view of each other would be considered contact, attracting penal consequences. The condition in question is analogous to a penal provision in a statue and it should be given a narrower interpretation, rather than such a broad interpretation.
[33] In my view, this difference of opinion between the Ontario case and the Nova Scotia case with respect to the interpretation of “contact” can be resolved by having regard to the mens rea or mental element which must be established by the Crown beyond a reasonable doubt. In essence, I conclude that Hill J. in the J.F. case was, in actuality, referring to those situations where the Crown has established that the “contact” was intentional or voluntary or reckless and without lawful excuse. On the other hand, I find that Hall J. in the H.B.T. case, through the examples that he had cited, was essentially referring to those situations where one would regard the “contact” as being accidental or incidental to the day-to-day activities of living in a community, in that case dealing with a town versus a large city. In those situations where the “contact” was accidental or incidental to the normal day-to-day activities in the community, the Crown would have to establish, beyond a reasonable doubt, the essential mental element of the offence of “direct or indirect contact” through direct evidence or reasonable inferences that the accused had the requisite intention to contact the other person and did so knowingly and voluntarily or recklessly.
[34] In my view, from the two cases cited above, it is evident that there is overlap between the concept of “contact” and “communication”. In light of the definitions advanced in those cases, it appears that any instance of “communicating” with someone will also always have some form of “contact” involved. However, I find that the concept of “contact” is broader than that of “communication” as there can be contact without communication. In this case, there is no evidence that Omran communicated with Enas in a direct or indirect manner, and therefore, the only issue is whether the Crown has established beyond a reasonable doubt that Omran’s actions constituted the actus reus with the requisite mens rea for the charge contrary to section 145(3) of the Criminal Code that he had direct or indirect contact with Enas on May 7, 2013, without lawful excuse.
[35] Furthermore, based upon my review of the relevant case law with respect to the issue of whether the Crown has established the requisite mens rea beyond a reasonable doubt, if the Court was to conclude that the accused’s actions were done voluntarily and deliberately or recklessly and there was “contact”, then in my opinion, those circumstances would fulfill the mens rea requirement for this offence. If, however, the Court was to conclude that the accused’s “contact” was the result of mere carelessness on his part or it was the result of some accidental or incidental contact in the accused person’s normal day-to-day activities in the community, those circumstances would not, in my opinion, fulfill the mens rea requirement.
[36] With respect to the analysis of whether the actus reus for the section 145(3) Criminal Code charge has been established beyond a reasonable doubt, I find that Omran moved his vehicle from a position about one car length behind the vehicle of Enas in the same lane of outbound traffic from Bedford, to go into a designated left turn lane for turns onto Ridgevale Drive and then stopped in close physical proximity beside her vehicle while they were both stopped for the same red traffic signal on the Dartmouth Road at the intersection with Ridgevale Drive.
[37] Furthermore, I find that the evidence of Omran and Enas, established that when Omran moved his vehicle beside the vehicle of Enas he immediately took a series of photographs with his cell phone camera of her vehicle and the vehicle of Mr. Joseph Dib. In these circumstances, I am satisfied beyond a reasonable doubt that Omran’s actions constituted the actus reus of direct “contact” as I find that he knew that Enas was driving her vehicle in front of him and in the same lane as him and despite that knowledge, he intentionally moved his vehicle into the turning lane in order to stop his vehicle in close proximity to her for the purpose of making his presence known to her and also for the purpose of photographing her vehicle and the vehicle of Mr. Dib.
[38] In addition, I find that Omran’s taking of photographs of Enas which was observed by Enas from her vehicle in an unobstructed view at a very short distance, constituted an intrusion into her personal privacy and represented an intentional disruption of her individual personal security. Therefore, looking at the definition of “contact” and the essential elements of establishing the actus reus, I am satisfied that the Crown has established the actus reus beyond a reasonable doubt by virtue of the fact that Omran intentionally placed himself in close physical proximity to Enas at the red traffic signal on Dartmouth Road and by his taking of the photographs of her in her car, in contravention of the conditions of the Undertaking that had been ordered within the preceding two to three hours.
[39] In terms of whether the Crown has established the appropriate mens rea beyond a reasonable doubt, I find that Omran knowingly, voluntarily and intentionally moved his vehicle into the left turn lane in order to place himself in close physical proximity with the vehicle being driven by Enas to have “direct contact” with her so that his presence would be known by her and for him to be in a position to take photographs of her in her vehicle which also constituted a further intentional act of “direct contact” with Enas.
[40] After the traffic signal turned green and Omran moved to the right and back into the lane of traffic to proceed outbound on the Dartmouth Road, instead of turning on to Ridgevale Drive, he made further “contact” with Enas by operating his cell phone video camera while he was driving his vehicle in order to film the movements of her vehicle after the traffic signal turned green. In these circumstances, I find that Omran’s direct “contact” with Enas was done knowingly and intentionally and as such, I am satisfied beyond a reasonable doubt that the Crown has established the appropriate mens rea for this offence in that the accused knowingly, voluntarily and intentionally performed an act which constituted the actus reus of the offence. Furthermore, I am satisfied beyond a reasonable doubt that Omran intended to commit the actus reus and as such, I am satisfied that the subjective mens rea has been established by the Crown.
Did Omran have a “lawful excuse” for his Actions?
[41] As I indicated above, the issue advanced by the Defence was that if I was to conclude that the Crown had established, beyond a reasonable doubt, both the actus reus and the mens rea for the offence, then, did Mr. Al Khatib meet an evidentiary burden that he only did so because he had a “lawful excuse” or there was “a legal justification” for his actions?
[42] With respect to the question of “lawful excuse”, Omran testified that he only took the photographs and the video recording of Enas because when he saw her on the road in front of him, he knew “trouble was coming”. Furthermore, he stated that when she did not immediately proceed forward when the traffic signal turned green, he felt that “big trouble was coming”, he took the photographs and the video to show his attempts to get away from Enas and not have contact with her.
[43] In analyzing Omran’s evidence on these points, I do not accept his evidence that the photographs and the video were designed to show that he was attempting to avoid contact with Enas. First, he was operating his vehicle about one or two car lengths behind Enas when he realized that it was her car in front of him and instead of taking steps to avoid any possible “contact”, he moved into a designated left turn lane and situated his vehicle in a position beside her in very close proximity to her and began taking photographs. If Mr. Al Khatib was seriously interested in avoiding contact with Enas at that point in time, I find that he could have easily done so by remaining in the position behind her, pulling over to the side of the road for a few moments and letting her continue on her way to her destination, which, given the time of day, he probably knew was the Pizza Girls restaurant in Dartmouth where she worked. However, Omran did not utilize the obvious opportunities to avoid any direct contact with Enas, but instead, he decided to move into the left turn lane for Ridgevale Drive and he stopped his vehicle in close proximity to the driver’s side of the vehicle being driven by Enas.
[44] In addition, since there was a green left turn arrow [clearly shown in exhibits 10 and 11] for the left turn onto Ridgevale Drive, once again, I find that if he was seriously interested in avoiding any direct contact with her, he could have stopped his vehicle well back of Enas, then waited for the car in front of him to turn left and when it did not move immediately, he could have either honked his horn to alert the driver to the left turn arrow signal and turned left onto Ridgevale Drive or stayed in that lane well behind Enas, which would have allowed Enas to continue on her way in the other lane of traffic which already had a green traffic signal for a period of time. Once again, I find that it would have been very easy for Omran to avoid direct contact with Enas at that point in time, if that is what he really intended to do, however, I find that the evidence established that he deliberately chose the one option that actually placed him in close proximity to Enas, which definitely made his presence or direct “contact” known to her and then he began taking photographs and, a few moments later, the video recording of her operating her car on the road.
[45] As I have indicated, Omran testified that he only took the photographs and the video recording to document his efforts to escape from Enas when he saw “trouble coming”. In response to questions being posed by both Defence Counsel and the Crown Attorney as to what Omran meant by the notion of “trouble coming”, his replies centered on his belief that when he was around Enas, she would make a complaint to the police about his actions and there would be “trouble” when he was doing nothing wrong. On the other hand, Omran’s complaints to the police about what he believed to be her wrongdoing fell on deaf ears and after receiving some advice, he believed that he had to document her wrongdoing through photographs or video recordings or, in the alternative, to use the photographs or video recordings to demonstrate that he had done nothing in contravention of any court orders. As a result, he claimed that he had a “lawful excuse” for his actions on May 7, 2013.
[46] In examining this claim of a “lawful excuse” for his direct contact with Enas by placing himself in close proximity to her and then photographing her in her vehicle as well as videotaping her driving her vehicle, I first note that there was no evidence whatsoever that Enas had done anything on May 7, 2013 that might have formed any reasonable basis for a complaint to the police by Omran. On May 7, 2013, between 2:30 and 3:00 PM, Enas was simply driving her vehicle on the Bedford Highway and then on the Dartmouth Road on her way to her workplace in Dartmouth. As it turned out, at some point possibly on the Bedford Highway, but certainly soon after she turned onto the Dartmouth Road, she was driving her vehicle with Omran behind her, being separated by one car or two cars. In this regard, it is interesting to note that while she said that she had seen Omran, earlier on the Bedford Highway make a U-turn and then follow her, she did not phone the police as she did not regard that maneuver [which Omran denied making although his own evidence placed him at the corner of Hammonds Plains Road and the Bedford Highway around that time] as contact in contravention of the court order as he was also travelling on a public highway and for all she knew, he may have been coincidentally, going in the same direction as her.
[47] However, when Enas saw Omran move his vehicle into close proximity to and beside her vehicle by moving into the left turn lane to Ridgevale Drive and then start taking photographs, she felt a sense of fear because he had followed her and photographed her on previous occasions and she believed that he had posted those photographs on the various sites on the internet. It was only after Omran took those actions that, a few moment later, Enas pulled over to the side of the road and made the 911 call to the police to complain about his actions which she believed to be in contravention of the court order made that morning.
[48] It bears repeating here that Omran was under a court order not to have any direct or indirect contact or communication with Enas or his children. Enas was not under any court order to not have any direct or indirect contact or communication with Omran. Furthermore, given the context of the bitterness of the family law matters, the criminal allegations before this court and the wording of the Undertaking itself made only a few hours before the relevant incidents before the Court, I find that it is reasonable to infer that Enas had no interest whatsoever in having any direct or indirect contact or communication with Omran.
[49] It is in this context, that Omran’s claim that he had “lawful excuse” for his actions because “trouble was coming” as a result of the fact that Enas was driving along a public highway in front of him, must be examined. First, there is no evidence whatsoever that, at any time, Enas operated her vehicle in any aggressive or threatening manner towards Omran. There is no evidence whatsoever that she rolled down her window and yelled anything at him, let alone something which could, in any way, be perceived as criminal wrongdoing which required him to take the so-called “defensive action” of photographing or videotaping her. Moreover, there was no evidence whatsoever that she rolled down her window or for that matter, left her window up and ever made any type of threatening gestures towards Omran while he was situated just behind her, beside her or just in front of her in his car. The fact is, based on the evidence of both Omran and Enas, I find that she did not do anything while she was operating her vehicle which could, in any way on the basis of any reasonable interpretation, be perceived as any legal and actionable wrongdoing.
[50] In these circumstances, I find that Omran’s claim that he had to take photographs to document his “escape” to get away from Enas simply defies credulity and must be rejected in its entirety. When I consider the overall sense of the evidence and when common sense is applied to his testimony, I find that there was no “lawful excuse” or any legal justification for Omran to have intentionally moved his vehicle in close proximity beside the vehicle of Enas and then take pictures of her and the vehicle of Mr. Dib in the manner that he did. In fact, I find that the pictures of the vehicle of Mr. Dib’s vehicle which also happened to be on the Dartmouth Road at the same time, are completely irrelevant to his so-called efforts to “document his escape” from Enas. However, given Omran’s stated suspicions of Mr. Dib’s role in the breakdown of his marriage, I find that the photographs of Mr. Dib’s car on the road are consistent with the bitterness of the relationship between him and Enas as well as consistent with the testimony of Enas that Omran had previously posted pictures of her on the internet in an effort to portray her in a negative light to family and friends.
[51] In light of all the proven facts in this case, I do not accept Omran’s claim that he had a “lawful excuse” for taking the photographs and the video recording when Enas was traveling behind him and then in front of him, because he wished to document that she was chasing him. Given all of the facts and circumstances of this case, including the context of a very bitter separation and family law proceedings, and the fact that Omran had just been placed under a court order to stay away from Enas, I find that his suggestion that Enas was chasing him completely defies credulity. I find that there is absolutely no basis on any proven facts or any reasonable inferences based upon the proven facts from which any reasonable person, fully apprised of all of the facts and circumstances of this case could reasonably infer that Enas was chasing Omran or that she was intentionally creating a situation which might get him in “trouble”. It bears repeating the very obvious fact – Enas was simply driving her vehicle on the date and time in question on a public highway to go to her workplace!
[52] In addition, although there was some evidence relating to Omran following Enas as they drove down Magazine Hill and then they continued towards Dartmouth in the Burnside area, I find that the evidence in relation to that aspect of the charge before the Court was equivocal since they both had a legitimate reason to continue going in that direction at that time on a public highway. As a result, I cannot conclude beyond a reasonable doubt that Omran’s actions as he and Enas continued along the Dartmouth Road to the intersection with Akerley Boulevard resulted in another occasion where he contravened the terms and conditions of the Undertaking ordered on May 7, 2013. While I do not necessarily accept Omran’s evidence relating to his actions as he and Enas continued to drive their vehicles along the public highway into the Burnside area of Dartmouth, I cannot conclude beyond a reasonable doubt that the Crown also established the actus reus or the requisite mens rea to contravene the Undertaking during that portion of this incident on May 7, 2013.
[53] In conclusion, based on my detailed review of the facts and circumstances of the this case, and looking at the totality of the evidence that I have accepted and the reasonable inferences from those proven facts, I am satisfied beyond a reasonable doubt that the Crown has established all of the essential elements as well as the actus reus and the mens rea of the offence contrary to section 145(3) of the Criminal Code in the 2nd count of the Information which related to Mr. Al Khatib’s contravention of the condition in the Undertaking to have no direct or indirect contact or communication with Ms. Enas Abualqumhan, and as such, I find him guilty of that offence.
[54] Finally, in terms of the first count in the Information which also relates to a charge under section 145(3) of the Criminal Code for failing to comply with condition in the Undertaking made on May 7, 2013, “to keep the peace and be of good behaviour”, since that delict is based upon the same facts as the count for which I have found Mr. Al Khatib guilty, based on the Kienapple principle, I hereby enter a conditional stay in respect of that charge.
Theodore K. Tax, JPC