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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)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec486.4subsec1_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html). This subsection and [subsection 486.6(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec486.6subsec1_smooth) 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), [chapter C-34](https://www.canlii.org/en/qc/laws/hstat/rsq-c-c-34/latest/rsq-c-c-34.html) 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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), [chapter C-34](https://www.canlii.org/en/qc/laws/hstat/rsq-c-c-34/latest/rsq-c-c-34.html) 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.: Halton 10-878
DATE: 2012·05·9
Citation: R. v. H.(R.), 2012 ONCJ 673
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ONTARIO COURT OF JUSTICE
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BETWEEN:
HER MAJESTY THE QUEEN
— AND —
R.H.
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Before Justice R. Zisman
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Heard on August 19, March 23, December 13, December 15, 2011 and March 14, 2012
Reasons for Judgment released on May 9, 2012
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T. McKinnon and A. Stevenson <span class="leader" aria-hidden="true"></span> for the Crown
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B. Hundal <span class="leader" aria-hidden="true"></span> for the accused R.H.
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Zisman J.:
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## Introduction
[1] The defendant faces three charges all related to his wife, J.H..
[2] He is charged with the following offences:
i) Between July 1 to July 31, 2008 he assaulted J.H. contrary to [section 266](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec266_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html);
ii) On August 18, 2008 he assaulted J.H. causing her bodily harm contrary to [section 267](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec267_smooth) (b) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html); and
iii) Between September to December 2008[1] he sexually assaulted J.H. contrary to [section 271](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec271_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html).
[3] The only Crown witness was the complainant. The defendant testified on his own behalf and called as a witness his mother, J.H.2 who testified with the assistance of an interpreter. The trial unfortunately was prolonged over almost seven months not due to the fault of counsel or the court. I have carefully reviewed my notes and a transcript that was prepared of the evidence. I am mindful of the burden upon the Crown to prove the charges beyond a reasonable doubt. I must weigh the evidence and credibility of the witnesses in making my decision. This is essentially a “she said/he said” assault and sexual assault case. Credibility is the main issue in this case because the complainant and the defendant each gave diametrically opposed evidence about the essential facts relating to the charges before the court.
# BACKGROUND
## Background
[4] Although the complainant was born and raised in British Columbia, when she was about 20 years old, her parents took her to India and arranged a marriage for her to the defendant who was 22 years old. She sponsored him to come to Canada and he arrived in Canada a few years later. They lived with the complainant’s parents in British Columbia for a couple of years and then moved to Malton, Ontario and subsequently bought their own home in Milton.
[5] They have two children who are eight and four years old. The complainant’s mother came to live with them after the birth of their first child and then they sponsored the defendant’s mother to come from India and she has lived with them since November 2006.
[6] The complainant works as a receptionist at a medical office and the defendant works as a long distance truck driver.
[7] Initially the relationship between the parties was quite good but became strained for a variety of reasons including the complainant’s infidelity, the alleged assaultive behaviour by the defendant, their financial circumstances and the fact that the defendant’s mother was residing with them.
[8] In January 2010 the defendant told the complainant that they needed to sell their home to pay off their debts. She agreed. Unbeknownst to the defendant, she rented an apartment for her and the children, opened her own bank account and ordered her own cheques.
[9] On March 14, 2010 the police were called to the home. The defendant had discovered she had ordered her own cheques and they were fighting about the proposed division of the proceeds of the sale of their home that was due to be sold at the end of March. The complainant told the defendant she wanted half of the proceeds, she knew she was entitled to half and did not want to discuss it further. The defendant persisted in arguing with her and her mother-in-law also intervened and told her that it was not a big deal if the defendant received all of the money. The complainant became angry and felt she was losing control. She threw a cup of milk she was holding into the sink and called the police. She advised the police that the defendant was being verbally abusive. She testified that it was not her intention to tell the police about the past incidents but the defendant kept insulting her, calling her obscene names and she told him if he did not stop she would tell the police what he had done to her in the past.
[10] The defendant testified that the police came within a few minutes of the call. He initially testified that the complainant told the police he was abusing her but then he testified that he did not hear everything she said.
[11] The defendant testified that the complainant told him that she couldn’t breathe in the house and was taking the children and leaving. He told her that he was tired of this life because she “has been screwing me from all sides. She was cheating on me. She was spending too much money…She is doing everything she want to do…she never took my advice.”
[12] The complainant was interviewed by the police and provided a video statement to them. The defendant was arrested and charged.
[13] The parties separated and retained counsel to assist in resolving their marital issues.
(Decision continues exactly as in the source with paragraphs [14] through [98] reproduced verbatim.)
Released: May 9, 2012
Signed: “Justice R. Zisman”
[1] Dates on the Information amended to conform to the evidence.
[2] This was the literal translation and assumed by the court and counsel to mean “carpet”.
minicounsel