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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Ontario Court of Justice

Date: June 29, 2022 Court File No.: College Park, Toronto 20-75004274

Between:

HER MAJESTY THE QUEEN

— AND —

KRISHYANTH KUGARAJAH

Judgment

Before: Justice B. Jones

Heard on: June 6-10, 2022

Reasons for Judgment released on: June 29, 2022

Counsel: C. Langdon, counsel for the Crown J. Prince, counsel for K. Kugarajah

Jones J.:

Introduction

1Ms. P.K. arrived in Canada on September 9, 2020. Due to the global pandemic, she was forced into a mandatory quarantine for two weeks. She rented a room at a home being hosted as an Airbnb in downtown Toronto. There she met Krishyanth Kugarajah who inhabited an adjacent room.

2What occurred between them while they were both residents at this address lies at the heart of this trial. P.K. testified that she was the victim of repeated acts of sexual and physical violence. Mr. Kugarajah is charged with two counts of sexual assault, and one count each of assault, forcible entry, forcible confinement, and uttering a death threat with respect to P.K.

3The Crown proceeded by indictment. Mr. Kugarajah elected to have a trial in the Ontario Court of Justice. It was conducted before me on June 6-10, 2022. He pleaded not guilty to all charges. The primary issues in this case were the credibility of the witnesses that testified, and to what extent the independent evidence presented by the Crown confirmed the testimony of the complainant.

Crown Evidence

Testimony of P.K.

4P.K. was 21 years old at the time of the trial. She came to Canada on September 9, 2020, from India, to pursue her education. Her flight landed in Toronto and she was unable to continue directly to her destination city of Montreal due to a mandatory fourteen day quarantine in place at the time.

5P.K. was entirely new to Canada and did not have any friends or family in the city. An acquaintance was able to find her a room to rent at a home being used as an Airbnb located at 10 Fee Place. The residence had two floors and a basement. She had a small room on the upper floor. There was a shared kitchen and bathroom for all the residents.

6P.K.’s mother tongue is Punjabi. She spoke some English when she arrived in Canada.

7Mr. Kugarajah lived in an adjacent room. P.K. first met him when she sought his assistance over a concern about a cat in the building. They spoke for a few minutes. The next day she saw him in the kitchen preparing a meal. They had another brief conversation about their backgrounds. Later that day she agreed to watch a movie with him in his room.

8After she had been residing at this address for about five days he came to her room and asked her to watch a movie again. She agreed. They sat on opposite sides of her bed. He reached out to touch her arm and then began kissing it. He turned on his side and attempted to kiss her forcefully. She refused his advances. She told him to stop. Eventually he placed his entire body weight on her while she was lying on the bed. He was taller and heavier than her.

9He began to kiss her breasts, first over her clothing and then underneath it. He removed her clothes. She tried to keep her pants on but he was able to remove them. He was simply too strong for her. He then kissed her vagina and she told him, “No, please don’t.” He held her legs and then turned her on her side. He attempted to penetrate her anus with his penis. She cried and pleaded with him, “Don’t do this.” After 5-10 seconds he straightened her on the bed and placed himself on top of her before inserting his penis into her vagina. He was very forceful. She kept telling him, “Please don’t do it.” He did not wear a condom. After a short period of time he stopped. She didn’t know if he ejaculated.

10She said she would call the police. He told her she could do whatever she wanted, but it would make no difference. He had the best lawyers in the city and she could not do anything to him. He also said he could have her deported and he would not let anyone from her family come to Canada. She knew nothing about the laws of Canada and was not sure if the police would be able to help her. She did not contact the police at this time. She was concerned what effect the entire situation might have on her status in Canada and her ability to remain. She was alone and isolated and did not know what to do.

11P.K. testified about a second incident of sexual violence that occurred while she was residing at this address. On that day she saw Mr. Kugarajah around noon. She found him in her room and he would not leave. She went downstairs to the backyard for a couple of hours. When she returned to her room, he was still there. She told him to leave.

12He did not leave. Instead, he threw her onto the bed. He removed her clothes very quickly. The clothing she was wearing at the time was visible in a photograph of her room that was made an exhibit. She explained that the waist on her pants was not very restrictive or tight and did not have any buttons or a zipper. He also removed his own clothes.

13She cried and pleaded with him to “not do this.” He used his greater strength and she was again overpowered. He lay down on the bed and began to force vaginal intercourse on her against her will. He did not wear a condom.

14When he was finished, she asked him if he had ejaculated. At first, he did not answer. She was crying profusely and was extremely distraught. She went to the washroom to clean herself up and noticed some discharge on her genitals and wondered if he had in fact ejaculated. He told her, “Don’t you need babies?” and “I will make you pregnant.”

15P.K. was depressed. She had come to Canada for education and instead found herself the victim of repeated acts of sexual violence. She thought of her parents and how they had sent her overseas to improve her life. She testified that she told him she would commit suicide. In response, he slapped her on her cheek.

16Eventually he left and she closed the door to her room. Later that night, around midnight, she was still in her room. Mr. Kugarajah knocked on her door repeatedly with a significant degree of force. He asked that she open the door and offered her beer and weed. She ignored him and hoped he would leave her alone. After some time he left, but then returned, and knocked at the door loudly again. She told him she would not open the door and asked him to leave. But he remained.

17She finally relented and opened the door. She realized she would have to exit her room eventually and was concerned he might become even more enraged the longer he waited. She told him not to come in. He attempted to force his way into her room. She tried to close the door but he pushed back in an effort to open the door. He was too strong and overpowered her. He pushed her with both hands on her upper body. She told him to go and that she did not want anything from him. He said he just wanted to talk to her. She told him she did not want to speak to him and for him to leave her alone.

18He told her he’d ordered food and she repeated herself that she did not want anything from him. She threatened to call the police and held her phone in her hand. He struck her hand and phone with such force that the phone fell to the ground. She told him loudly, “Go away”, and he slapped her hard on the right side of her face near her lower jaw and cheek. He used the palm of his hand.

19He told her he could kill her. He said he will hit her so hard that she will die. If she tried to leave the room, he would pull her back and she felt she could not escape as he stood near the doorway blocking her only path to exit. This caused her pain. She tried to leave several times. Each time he pushed her back into the room by placing his hands on her upper body. She became very angry and upset. She yelled at him that she wanted to go out, and for him to let her out. She was also afraid. This lasted for nearly ten minutes.

20At that time a food delivery person arrived and came upstairs. This distracted Mr. Kugarajah and P.K was able to push him aside and run downstairs. She saw two other male residents of the building and told them to call the police. One of them complied and the police arrived shortly thereafter. Mr. Kugarajah was arrested.

21P.K. spoke to the police officers and agreed to travel to a hospital where she was examined by a nurse. She then provided a statement to the investigating officers.

22She explained that she did not call the police initially because she was depressed and did not know what to do. Back in India she did not get out very often and was not aware of how to claim her rights, especially in a foreign country.

23In cross-examination she stated that there were other men that resided in the building at the time. She barely interacted with them. She was able to communicate with one of the other men in Punjabi. She asked him to call the police, but that was the only time she spoke to him.

24She had access to a computer and a cellphone. The door to her room had a lock but she claimed it did not always operate properly. She was able to speak to her parents on the computer. Sometimes she wanted to speak to her parents privately and would have to ask Mr. Kugarajah to leave her room. This resulted in her speaking to her parents for shorter periods of time as he did not want to leave.

25She admitted she may have been holding pills in her hand when she threatened to commit suicide in front of Mr. Kugarajah. She did not remember. She insisted he slapped her in the face, however.

26She acknowledged that once he prepared a meal and offered her some of it. They would chat a little bit as well from time to time. Most of her time was spent alone or with Mr. Kugarajah. She told him she was in quarantine and intended to travel to Montreal as soon as possible. She shared details about her life including that she was married and her husband remained in India. He took pictures of her on her phone for an Instagram account.

27Ms. Prince suggested to her that her description of how the first sexual assault occurred was illogical. If he was using his body weight to hold her down on the bed, he would not have been able to penetrate her in her anus as she described because of how they were physically positioned. For example, he could not hold her down to control her and also lift her body up to remove her clothing. She explained that she attempted to get off the bed and run away but he would pull her back and use his body weight to hold her down. She did not know if he had to use one of his hands to insert his penis where he desired. She was adamant she remembered what happened to her that night. She accepted she did not remember every detail she was asked about.

28She rejected the suggestion she was not afraid of him because she was able to yell at him to leave her alone. She also rejected any suggestion she had control over him in any meaningful way despite the fact that sometimes he would respect her wishes to be left alone in her room. Ms. Prince asked her if she was intentionally diminishing the extent of the control she had in the relationship in an attempt to portray herself as a victim of his actions. She said she did not have control when dealing with him and certainly had no control over when he forced sex on her.

29She did not experience any bruising or bleeding from the assaults but they were painful. She did not consent to any sexual activity. She explained, succinctly, that when she said no, it meant no, and what he did to her was wrong.

30She did not ask to be moved to another building nor did she ask that Mr. Kugarajah be moved to another building. She did not trust anyone and was fearful that he would harm her. When she finally opened her door after he was incessantly knocking on it that final night, it was because she felt she would have to leave eventually to use the bathroom or eat. It was not really a choice to open the door and confront him. She hoped she could make him leave.

Testimony of Rudransh Talreja

31Mr. Talreja resided at 10 Fee Place in September 2020. He had a room on the main floor with his friend, Dheer Bhambhani. He remembered that a woman and a man, later confirmed to be P.K. and Mr. Kugarajah, resided on the top floor. Each had a private room. He did not know either person very well.

32On September 20, 2020, at some point in the early morning hours he heard a woman yelling or screaming upstairs in the house. He went upstairs to use the bathroom and saw the accused pushing P.K.’s door to her room in an attempt to enter. He was unable to enter however, at least for the time Mr. Talreja witnessed this occurring. P.K. was saying “no” and was pushing back on the door to prevent the accused from entering. When he exited the bathroom, he did not see them anymore. He did not take any further action.

33Sometime after 3 a.m. he was outside in the backyard. A food delivery person arrived and he instructed that person to take the food upstairs as he thought one of the upper floor residents must have ordered it. It was a brief time later that P.K. came down the stairs crying and spoke to him. P.K. told him she had been threatened by the man on her floor. She was visibly upset. He called the police for her. Ultimately, police officers arrived and arrested Mr. Kugarajah.

34In cross-examination he confirmed he did see the man and woman cooking together and they shared at least one meal together. They seemed friendly with one another at that time.

Testimony of Dheer Bhambhani

35Mr. Bhambhani also resided at 10 Fee Place in September 2020. He shared a room with Mr. Talreja. He confirmed that a man and a woman resided on the top floor of the house in separate rooms. He thought the woman had come from India and was subject to a fourteen day quarantine. He didn’t talk to the man. He too saw them cooking together once.

Agreed Statement of Facts

36The Crown and defence jointly submitted an agreed statement of facts. P.K. attended Women’s College Hospital on September 20, 2020 where she participated in the collection of evidence and completion of a Sexual Assault Evidence Kit (SAEK). Registered Nurse M. Bobak collected the evidence from P.K. during the execution of the SAEK.

37Nurse Bobak noted that P.K. had an area of tenderness on palpation on her right lower cheek and jaw line. No bruising was noted.

38Genital swabs were collected during the execution of the SAEK. These swabs were seized from Nurse Bobak by Toronto Police Services. They remained in police custody until they were submitted to the Centre for Forensic Sciences. An expert in biology and DNA analysis and comparison examined the swabs. A male DNA profile was located on an external genitalia swab which was suitable for comparison purposes. It was likely from semen. A male DNA profile was also located on a vaginal swab. It was also suitable for comparison purposes.

39A DNA warrant was executed on Mr. Kugarajah subsequently in 2021 and a sample of his DNA was submitted to the Centre for Forensic Sciences.

40The biology expert examined the DNA profiles taken from the swabs and the known DNA sample provided by Mr. Kugarajah. He could not be excluded as the source of the male DNA profile from either the external genitalia or vaginal swabs from P.K. The DNA results are estimated to be greater than one trillion times more likely if the profile originated from Mr. Kugarajah than if it originated from an unknown person related to him.

Defence Evidence

Testimony of K. Kugarajah

41Mr. Kugarajah was 27 years old when he testified. He finished high school and some college education. He resided at 10 Fee Place in September 2020 on the second floor in a room adjacent to P.K’s room. He arrived after she did.

42The first time they had contact she knocked on his door. She spoke to him in a language he did not understand. He was not sure she even spoke English. His native tongue was Tamil / Sinhalese and he also spoke (and testified in) English. Later in his testimony he stated he didn’t remember what language he spoke to her with, and that he never understood anything she said.

43At first, he denied contacting her in the following days. Then he said that she had been in his room “countless times.” When asked why she was in his room, he replied, “I never asked.” He did clarify that they watched a movie once together there and another time in her room. He denied they did anything else together.

44He was asked if he ever saw P.K. in the kitchen and stated that he barely saw her. He claimed she wore black all the time and “blended into the space.”

45He denied that he was ever in her room when she asked him to leave. When asked if P.K. ever slept in his room, he responded that she could have done that if she wanted to, but he didn’t really pay attention. The question was repeated and he stated that she slept in his room “more than I can count.” He also confirmed he slept in her room “four or five times… six times maybe.” Ms. Prince asked him how he knew she wanted to sleep in his room, and he replied that he didn’t say she wanted to sleep in his room.

46Despite having earlier said that he could not understand P.K., he also testified during his examination in chief that she could understand what he was saying. Following a series of questions intended to have him further explain how he knew she could understand him, he ultimately replied that it was “mostly silence and non-existent contact.” He did not explain what he meant by “non-existent contact.”

47He did not think he and P.K. ever kissed. He denied ever having had sex with her. He said he may have seen her unclothed in the bathroom when he was helping her into the shower. This purported interaction was never suggested to P.K. during her testimony. He could not provide a coherent definition of what sex meant to him. He was asked if he knew what his penis was, and he said, “not really.”

48He was questioned about whether he and P.K. were ever undressed together in her room. He said “maybe” he was undressed in her room but said he “didn’t think that environment ever existed” in reference to them both being undressed in her room at the same time. He also stated he did not pay attention to whether she was undressed or not.

49Mr. Kugarajah recalled that P.K. once held the door to her room in a manner intended to keep him out of her room. They had an argument but he could not remember why they were arguing. He could not explain how they were arguing if, based on his previous answers, he could not communicate with her. He repeated near the end of his testimony in chief that “I never understood what she said.” However, he also said he thinks she once said she was suicidal.

50He did not hit her on her face, threaten her, or warn her he could have her deported. He admitted he slapped a phone out of her hand because he got “pissed off” that she was looking at the phone. Ms. Prince asked him if he ever had anal sex with P.K. and he replied, “Of course not” and then “Did it happen? Let me think about it. I don’t know.” He repeated that he did not have anal sex with her and that he did not consent to any sexual activity.

51He recalled P.K. testifying that he kept her in her room and that he thought he did that for a short period of time. He said it was because she wanted to commit suicide and he understood the seriousness of the situation. He did not remember her screaming and claimed he did not have a great memory of the events as they occurred “too long ago.”

52In cross-examination he continued to maintain he did not understand P.K. when she tried to speak to him. Yet he accepted he understood their initial meeting centered around a cat that was in the building and whether it could harm her. He confirmed they shared food together and watched a movie in his room. A few days later he also confirmed they watched a movie together in her room while sitting on her bed.

53Ms. Langdon put to him that he was in her room once without her consent and she asked him to leave. He agreed this happened, and that he stayed in her room for one or two hours. She came back, asked him to leave again, and was now upset. He was asked more questions about why she was upset and he did not respond to the question clearly or directly, but stated “She could be upset” and “It’s a certain possibility.” Ms. Langdon asked him if he didn’t like that she asked him to leave and he provided an unresponsive answer, referring to his subconscious and that “this is tricky for me.”

54Mr. Kugarajah was also questioned about the number of times he slept in P.K’s room which he estimated to be between four and six but also that he did not want to sleep in her room. He repeated that she slept in his room “countless” times. Yet he also insisted he preferred to sleep alone and that there was nothing special about her that would make him want to spend a night with her. He did not explain the apparent contradictions in these responses.

Position of the Parties

Defence

55Ms. Prince pointed to various features of the complainant’s testimony that negatively impacted her credibility. She submits that she was unable to recall whether certain events occurred. She had to repeat many of her questions multiple times to even get a direct answer. Parts of P.K’s description of the sexual assaults appear implausible, such as whether or not Mr. Kugarajah was able to use his body weight to restrain her movements during the first incident while also having to lift her body up to remove her clothing. She suffered from no bruising or cuts despite describing violent attacks on her person. While she wanted to portray herself as a victim of Mr. Kugarajah’s aggression, she was also able to exert control over their interactions and accepted various examples of that dynamic in cross-examination.

56She had the ability to leave 10 Fee Place if she truly wanted to do so, or could have at least sought help from the other residents of the building. Her explanation for why she did not immediately seek the assistance of the police is not credible. I should not accept her testimony or at least find that it leaves with me a reasonable doubt.

57While Mr. Kugarajah struggled to remember some events, he denied any sexual contact with her and his testimony should similarly leave me with a reasonable doubt. Ms. Prince accepted that neither consent nor honest but mistaken belief in communicated consent were viable defences given Mr. Kugarajah’s insistence that no sexual conduct occurred. She also accepted that his admission that he slapped the phone out of P.K’s hands was technically an assault.

58On the charge of forcible entry, she referred me to the case of R. v. Bohnet, 2017 ABPC 84, where the court held that “real property” under section 72 of the Criminal Code means the whole of a building which someone had in his or her possession, but not an individual room within that residence. As a result, Mr. Kugarajah cannot be found guilty even if I find he interfered with P.K’s peaceable possession of her own rented room. With respect to the charge of forcible confinement, Ms. Prince submits that a fleeting denial of someone’s freedom is insufficient to justify a conviction. Even if I were to find Mr. Kugarajah temporarily prevented P.K. from exiting her room on September 20, 2020, that alone does not necessarily meet the requirements for this offence.

Crown

59Ms. Langdon submits that the Crown has proven each count beyond a reasonable doubt. P.K. was a credible and reliable witness. Her testimony was detailed. She did not exaggerate and she was never impeached on a prior inconsistent statement. Any difficulties in understanding some of her answers and why she required questions to be repeated may have simply been the result of her using an interpreter. Her evidence was both internally and externally consistent. She cautions me against relying on any stereotypes about how a victim of a sexual assault “should” behave, particularly with respect to avoidance behaviour. There was no evidence of a motive to fabricate.

60She points to the confirmatory evidence in this case, including the presence of Mr. Kugarajah’s DNA on intimate parts of P.K’s body, and the observations of the independent witness Mr. Talreja.

61Mr. Kugarajah’s evidence was illogical and at times, nonsensical. It was internally inconsistent and contradicted by the undisputed independent sources of evidence on key points. She asks to me to find that he was deliberately evasive at times in his answers as he would feign confusion or provide answers that seemed unintelligible when he was forced to respond to questioning that revealed the problems with his narrative.

62On the charge of forcible entry, she submits I should reject the position of the Alberta Provincial Court in Bohnet and find that P.K. had a possessory interest in her room which meets the criteria for that offence. On the charge of forcible confinement, she submits Mr. Kugarajah held P.K. in her room against her will in the early morning hours prior to arrest and used force to keep her there. It was for a sufficient period of time that the offence has been made out.

Presumption of Innocence

63Mr. Kugarajah is presumed innocent. The Crown bears the onus of proving the essential elements of each offence he is charged with beyond a reasonable doubt. Reasonable doubt may be derived from the evidence or the absence of evidence: R. v. Lifchus at para. 39. It falls “much closer to absolute certainty than to proof on a balance of probabilities”: see R. v. Starr, 2000 SCC 40, at para. 242.

Assault

64A person commits an assault when “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”: Criminal Code section 265.

Sexual Assault

65Sexual assault is committed where the accused, without the complainant’s prior consent, intentionally applies force to her in circumstances that are, when viewed objectively, of a sexual nature: see R. v. G.F., 2021 SCC 20 at para. 25.

66Consent is defined in the Criminal Code for the purpose of sexual assault in section 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question.” It must be freely given at the time the sexual activity occurs and may be revoked at any time. Lawful consent requires the conscious agreement of the complainant to “every sexual act in a particular encounter”: see R. v. J.A., 2011 SCC 28 at para. 31. Whether or not the complainant consented to the sexual activity in question is focused solely on her subjective state of mind: R. v. Barton, 2019 SCC 33 at para. 89. Where a complainant testifies she did not consent, and this evidence is accepted by the trier of fact, that alone establishes the actus reus. It is important to remember that the complainant need not demonstrate her lack of consent. Rather, the complainant must provide active, communicated consent throughout the entirety of each sexual interaction: J.A., supra at para. 66.

67The mens rea of sexual assault requires the Crown to prove that the accused intentionally touched the complainant and the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: G.F., supra at para. 25; R. v. Ewanchuk at para. 42.

Forcible Entry

68The offence of forcible entry contained in section 72 of the Criminal Code requires the Crown to prove that the accused (1) entered real property that is (2) in the peaceable possession of another person (3) in a manner that caused or was likely to cause a breach of the peace.

69In R. v. D.(J.) the Ontario Court of Appeal held that it is the act of interfering with the peaceable possession of the property in question that forms part of the essential elements of this offence, but the Crown need not prove the accused intends to permanently take over possession of the property: see para. 21. The Court also held that the breach of the peace caused by the interference with the peaceable possession of the property must flow from the manner in which the possession of the real property was taken by the accused: see para. 22.

70It is not a defence for the accused to demonstrate that he was entitled to enter the real property: Criminal Code section 72(1.1). The provision prohibits the manner by which the accused disrupts the peaceable possession of the real property: R v. Pinkerton, 2019 ONSC 2169 at para. 10.

Forcible Confinement

71A victim may be unlawfully confined for the purposes of Criminal Code section 279(2) if for any significant period of time she is “restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire”: R. v. Pritchard, 2008 SCC 59 at para. 24. The form of restraint may be psychological in nature, including through threats (explicit or implied) and the imposition of fear: see R. v. Magoon, 2018 SCC 14 at para. 64; R. v. Kematch, 2010 MBCA 18 at para. 55.

72The confinement must have occurred for a significant period of time, but it need not be prolonged: Pritchard, supra; R. v. Strong, 2021 ONSC 1906 at para. 128. There is no minimum time requirement, and what is “significant” will depend on the nature of the confinement: see R. v. Gervais, 2020 ABCA 221 at para. 36; R. v. White, 2014 ONCA 64 at para. 52; R. v. Bottineau at para. 34.

Threatening Death

73The actus reus of threatening death contrary to Criminal Code section 264.1(1)(a) is established where the Crown has proven that a reasonable person, fully aware of the circumstances in which the words were uttered or conveyed, would have perceived them to be a threat of death or bodily harm: R. v. McRae, 2013 SCC 68 at para. 13. The fault element is made out if it is shown that the threatening words uttered or conveyed “were meant to intimidate or to be taken seriously”: see McRae at para. 17. It is not necessary to prove that the accused intended to carry out the threat: McRae at para. 18.

Credibility and Reliability

74When assessing a witness’ credibility, a court should consider the nature of any inconsistencies contained within a witness’ testimony or between a witness’ testimony and any prior statements made by the same witness: R. v. Tash, 2013 ONCA 380 at paras. 40-41. Inconsistencies on important, significant aspects of a witness’ testimony will carry more weight than those on minor, peripheral matters: see R. v. Mills, 2019 ONCA 940 at para. 220. Furthermore, the court should review any relevant independent evidence and analyze whether that evidence supports or contradicts the claims made by the witness: R. v. Roth, 2020 BCCA 240 at para. 111, R. v. Barton, 2019 SCC 33 at paras. 127-128.

75A Court may accept, some, none or all of a witness’ evidence: R. v. C.P., 2021 SCC 19 at para. 35. A judge can give different weight to different parts of the evidence.

76Where the case for the Crown rests almost exclusively on the testimony of a single witness, as it does in this case, that testimony must be rigorously analyzed in light of all of the evidence presented during the trial. The position of the defence must also factor into this analysis: see R. v. C.(J.) (2000). At the same time, it is vital to remember that a criminal trial where witnesses have been called by both sides is not a “credibility contest where the trier of fact must choose whether to believe one side or another”: R. v. I.W.S., 2017 ONCA 409 at para. 14. Rather, the court must apply the approach to assessing witness’ credibility described in R. v. W. D. (1991), 63 CCC (3d) 397 (SCC):

1. First, if the judge accepts the evidence of the accused, then the accused must be acquitted.
2. Secondly, if I do not believe the testimony of the accused, I could still be left with a reasonable doubt, and again I must acquit the accused.
3. Thirdly, even if the testimony of the accused does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences.

77Cultural awareness plays an important role when assessing witness testimony. In R. v. Chouhan, 2021 SCC 26 Justices Karakatsanis, Martin and Kasirer held that “courts must take active steps to ensure decision-making is free of prejudice, myths and stereotypes”: see para. 110. Such an approach is consistent with substantive equality. A witness’ testimony must be considered from the perspective of the witness’ background, lived experiences, and other individual characteristics, as they have been established through the evidence presented during the course of the trial.

78The Ontario Court of Appeal in R. v. JC, 2021 ONCA 131 articulated two overlapping rules trial courts are to employ when assessing a witness’ evidence in order to protect against stereotypical reasoning:

(1) The rule against “ungrounded common sense assumptions” and

(2) The rule against “stereotypical inferences”

79The first rule demands that judges must avoid “speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice”: see para. 58. The second rule requires that “factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour”: see para. 63; see also R. v. Pastro, 2021 BCCA 149.

Analysis

80P.K. was a young adult, approximately 19 years old at the time of the offences. She was new to Canada, having come here from India to pursue her education. Due to the pandemic, she was subject to a fourteen day quarantine in Toronto upon her arrival. She had no friends or family in the city. She was simply connected to 10 Fee Place through a third party who was only loosely associated to her and her family.

81P.K. testified clearly and directly. Her evidence was very reliable. She met Mr. Kugarajah at 10 Fee Place and their relationship was friendly and cordial at first. He assisted her during their initial meeting and shared at least one meal with her. The first time they watched a movie together was enjoyable.

82She agreed with defence counsel when confronted with suggestions about their relationship she felt were fair and was never needlessly argumentative or difficult. She impressed me with her calm and thoughtful approach to testifying. Despite the barrier of an interpreter, her answers were almost always directly responsive to the questions asked of her and were well-articulated.

83She described the sexual assaults she experienced in detail. The first occurred in her room. He began by touching her arm and then kissing it before attempting to kiss her on the mouth forcefully. Despite telling him to stop he persisted. She recounted in harrowing detail how he continued to remove her clothes even as she told him “No” and “Please, don’t.” He caused her pain when he attempted to penetrate her anus with his penis and then ultimately forced vaginal intercourse upon her.

84When she threatened to call the police, he laughed off her suggestion and threatened to have her deported. This was a particularly menacing suggestion to scare her, given she had no support network and lacked an understanding of the Canadian legal system.

85The second sexual assault was also described in impressive detail. She found him in her room on another date and he would not leave. He waited there for her until she would have to come back. He removed her clothes. She explained that the waistband in her pants was not very tight and there were no buttons or zipper. Despite resisting him as best she could, he simply overpowered her. She cried and pleaded with him but he did not care. He forced vaginal intercourse on her again. Neither time did he wear a condom. This time she noticed something that could have been ejaculate on her body. She asked him if he had ejaculated and he mocked her by suggesting she wanted babies anyway. She explained how distraught she was and could not believe she was experiencing this when she had just come to Canada to try and pursue her education. She explained to the court how she felt suicidal at this point.

86When describing the sexual violence she experienced she became emotional. I appreciate a court must be cautious about giving undue weight to demeanour evidence as it is fallible as a “predictor of the accuracy of a witness’ testimony” and should therefore be approached with significant caution: see R. v. Hemsworth, 2016 ONCA 85, at para. 44. Nevertheless, I found her testimony not only plausible but entirely sincere and convincing. She never exaggerated her allegations against the accused and admitted when she could not recall a detail or was unsure about an aspect of what occurred or when it occurred.

87Her testimony was logical and internally consistent. Despite hours of cross-examination her testimony remained largely free of any inconsistencies whatsoever. She was not sure if she was holding pills in her hand when she threated to commit suicide in front of Mr. Kugarajah. She also agreed with the suggestion put to her in cross-examination that he told her not to commit suicide which she had not explained earlier in her testimony. I do not find these clarifications detract from her credibility whatsoever. I also note she was never impeached on a prior statement during her testimony.

88I appreciate that the absence of exaggeration in her testimony, as with the absence of inconsistency, “cannot be used as a makeweight in favour of a complainant’s credibility”: see R. v. J.L., 2022 ONCA 271 at para. 12; R. v. Jaraar, 2021 ONSC 8277 at para. 38; R. v. Alisaleh, 2020 ONCA 597 at paras. 16-17. Yet these remain relevant factors when assessing her testimony.

89I do not find anything implausible about her description of how Mr. Kugarajah was able to use his larger size to overcome her resistance and remove her clothing. He had her on the bed and was able to manipulate her body as he wished. Both of them would have been re-positioning themselves as they struggled and the assault occurred. Whether he had his body weight against her at all times and whether he lacked the ability to use one of his arms as defence counsel suggested during the first incident because he was on his side for portions of the assault are understandably not the areas P.K. might be able to remember with precision. P.K. was the victim of repeated acts of sexual violence that took a powerful emotional toll on her. In R. v. G.M.C., 2022 ONCA 2 the Ontario Court of Appeal held at para. 38 that

• observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;
• a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility; [and]
• it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events.

Any frailties in P.K.’s evidence must be viewed with these principles in mind.

90Furthermore, her explanations for why she reacted to the abuse in the manner she did and why she did not tell her parents what was happening were plausible. She found herself isolated at this address with no friends or family in Toronto. She knew nothing about Canada, had no meaningful friendships and no family members, and simply did not know what to do. She explained that back in India she normally stayed home and did not get out much. She lacked awareness over how to assert her rights.

91Following the second sexual assault, she became depressed and told Mr. Kugarajah she was considering suicide. She testified she thought about her parents in India and why they had sent her to Canada. She expanded on the importance of her relationship with her parents during re-examination when she testified that she simply could not tell her parents she was sexually active with someone. That was something they would not tolerate. If they knew about what happened to her, having sacrificed so much to send her to Canada, they wouldn’t have let her remain and her dreams of building a future for herself would have been lost. She was also particularly scared of Mr. Kugarajah’s threat that he could have her deported.

92I do not find that how P.K. acted towards the accused was in anyway inconsistent with her being a victim of these crimes. There is no inviolable rule about how someone sexually assaulted will respond. That P.K. may have had seemingly normal daily interactions with Mr. Kugarajah while these events were ongoing does not detract from her credibility. Nor does the fact she did not seek out help from the other men in the residence (who were strangers to her) or that she did not attempt to leave the residence given her very limited options at the time: see R. v. D.R., 2022 NLCA 2 at paras. 39-40; R. v. Kiss, 2018 ONCA 184 at para. 101. The lack of bruises or cuts to her body is similarly immaterial. I heard no medical evidence that suggested injuries of that nature would be expected if these types of assaults occurred.

93I find an absence of evidence of any motive to lie (although I cannot find no motive may exist at all.) This can be relevant evidence when assessing a witness’ credibility: see R. v. Gerrard, 2022 SCC 13; R. v. A.R., 2022 ONCA 33 at para. 7. P.K. had no reason to fabricate these allegations. No one knew what was happening to her at 10 Fee Place but herself and Mr. Kugarajah. While the accused has no burden to prove a motive to lie, the suggestion was put to her in cross-examination that she might have wanted to paint herself as a victim. Defence counsel wisely did not pursue this argument in closing submissions. I caution myself on the limited uses of this evidence as described by the Supreme Court in Gerrard.

94With respect to the other charges stemming from the events that immediately preceded Mr. Kugarajah’s arrest, I also find P.K.’s testimony highly reliable and credible. She described him knocking on her door with considerable force and placing her in the untenable position of ignoring him and fearing that he would become angrier and thus more dangerous, or opening the door as she would eventually have to do. She tried to keep him out of the room and they pushed the door back and forth. Eventually he forced his way inside her room and would not leave. He struck her hand to prevent her from calling the police and then slapped her across her face. He threatened to kill her. He pushed her back inside the room each time she tried to leave.

95While no corroboration is required of a complainant’s testimony in a sexual assault case, independent sources of evidence are often valuable to assessing a witness’ credibility: see R. v. Brown, 2022 ONCA 417 at para. 15. Evidence can be confirmatory in a sexual assault trial even if it does not “directly confirm the key allegations of sexual assault” or “directly implicate the accused”: see R. v. J.B., 2022 ONCA 214 at para. 34. For example, evidence that may be neutral on the central issue of consent can nevertheless be relevant to a trial judge’s assessment of the complainant’s credibility: see Brown at para. 22.

96P.K.’s evidence is confirmed by several sources of independent evidence. First, the observation of Nurse Bobak that she had an area of tenderness on the right side of her face confirmed there had been physical contact in that location. Second, the swabs taken of her external genital area and vaginal area establish the presence of Mr. Kugarajah’s DNA which confirmed that sexual activity occurred: see R. v. Marshall, 2022 ONCA 84 at para. 14. Third, the testimony of Mr. Talreja, which was not seriously challenged, confirms that she was screaming and crying the night of September 20, and that she and Mr. Kugarajah struggled over her door while she stated, “No.” I note that the evidence of her post-event emotional demeanor is a piece of circumstantial evidence that I may consider in support of her version of events: see R. v. J.A. A., 2011 SCC 17 at paras. 40-41.

97Considering all of the evidence presented during the trial, I accept P.K.’s evidence.

98By contrast, Mr. Kugarajah’s testimony was illogical, plagued by internal and external inconsistencies, and large portions of it were simply utterly implausible. Despite describing multiple interactions with P.K., ranging from their initial meeting, to watching a movie, to sharing a bed and finally the events that occurred shortly before his arrest, he insisted he could not communicate with her. Indeed, he insisted that he never understood her, even though she spoke some English. He also testified that she could understand him, and that they had an argument, which is entirely inconsistent with his purported inability to understand her.

99He made statements that were inconsistent with one another regularly. He denied ever being in her room but then said he was in it four to six times. He said he liked to sleep alone yet he also said P.K. slept in his room “countless times.” These internal contradictions arose primarily during his testimony in chief, as Ms. Prince was attempting to guide him through his evidence. In cross-examination they only became more pronounced. When Ms. Langdon had him admit he understood their initial discussion about the cat in the house and they were able to agree on watching a movie together, he would not acknowledge that was inconsistent with his refrain that he could not communicate with her.

100Ms. Langdon also asked him a series of questions about whether or not he stayed in her room without her consent causing her to be upset. He did not respond to her directly and gave vague responses such as “she could be upset” or “it’s a certain possibility.”

101He also made strange remarks that she “blended into the space” and he had mostly “non-existent contact” with her. He said he did not know what his penis was. When asked if he was ever unclothed with P.K. in the same room he was deliberately evasive and gave answers such as “maybe” or he “didn’t think that environment ever existed.” It was clear he was trying to avoid giving specific answers to questions that he felt might reflect poorly on him given the nature of the allegations. He denied several suggestions that he had sexual relations with P.K. without her consent and that he hit her. He was perfectly capable of responding directly when it suited him. He simply did not want to answer questions he found challenged his description of their relationship.

102His testimony was also flatly contradicted by other evidence that I do accept. The agreed statement of facts establishes that his DNA was found on the genital and vaginal areas of P.K. He denied ever having any sexual contact with her. He never saw her crying nor heard her scream but the testimony of both P.K. and Mr. Talreja confirm she was crying and distraught on the night the police were contacted. Mr. Talreja specifically noted he heard a scream which piqued his attention that evening initially.

103While the accused has no burden to prove his innocence, I may only make findings in a trial based on the evidence presented, or the absence of evidence. I cannot speculate. Based on the evidence presented in this trial, there is no innocent explanation for how Mr. Kugarajah’s DNA ended up on P.K.’s genital and vaginal area. Defence counsel conceded during her submissions that consent is not a possible defence in this case to the charges of sexual assault based on her client’s testimony. He simply denied any sexual contact occurred whatsoever. I was presented with no alternative explanation for how his DNA could have been found on P.K. Ms. Prince asked me to consider if his mere presence in her bed could explain the location of the DNA. In my view, that would amount to speculation on my part in the absence of expert testimony respecting DNA transferability: see Marshall, supra. As I have accepted P.K’s testimony, I find that the DNA was located there as a result of the sexual assaults regardless.

104Mr. Kugarajah’s evidence was unreliable and I find him to lack credibility. Furthermore, a trial judge does not assess the accused’s evidence in isolation. As Code J. held in R. v. Thomas, 2012 ONSC 6653 at para. 24, “[a] trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt.” See also R. v. R.A., 2021 ONSC 7044 at para. 39.

105I do not accept Mr. Kugarajah’s evidence and nor do I find it raises a reasonable doubt in my mind on any of the disputed areas between his version of events and P.K.’s.

Findings and Dispositions

106I find that Mr. Kugarajah sexually assaulted P.K. twice while they were both residents at 10 Fee Place in September 2020. For the first incident, I find that he entered her room and sat on her bed. He began to kiss her and she clearly expressed her lack of consent. She told him to stop. He persisted, using his strength and body weight to overpower her. He kissed her breasts, both over and under her clothing, and removed her clothes. She begged him “Please, don’t” but he continued. He attempted to penetrate her anus with his penis causing her pain. This lasted at least five to ten seconds. He then placed himself on top of her and forced vaginal intercourse on her. He did not wear a condom. After the assault, he threatened to have her deported and told her he would not let anyone from her family come to Canada.

107I find him guilty of count 1, sexual assault.

108I further find that with respect to the second incident, Mr. Kugarajah threw P.K. onto her bed and removed her clothing quickly. He then undressed himself. Again, she cried out for him to “not do this.” He used his strength to overpower her again and forced vaginal intercourse on her while she lay on her bed. He did not wear a condom. When she told him she would commit suicide, he slapped her on her cheek.

109I find him guilty of count 2, sexual assault.

110In the early morning hours of September 20, 2020, I find that Mr. Kugarajah came to her room again and knocked on her door. She asked to be left alone but he continued to knock. He left, and then returned some time later. He knocked on the door loudly again. She finally opened the door and he tried to force himself into her room. He pushed on the door while she resisted by pushing it back. Eventually he was able to force his way inside her room.

111P.K. was the lawful tenant of that room and was in peaceable possession of it prior to Mr. Kugarajah forcing his way inside against her will. He interfered with her peaceable possession in a manner that caused a breach of the peace. She was scared and yelled at him to leave. He physically assaulted her while in her room. I disagree with the decision in Bohnet. Mr. Kugarajah’s conduct is akin to the actions of the offender in Starr v. R., 2019 NBCA 41. In that case, the offender went to the office of his girlfriend’s doctor, demanded to see her, and refused multiple demands to leave. The manner by which he entered the doorway of the doctor’s office disrupted and interfered with the doctor’s work environment and was enough to ground a conviction.

112“Real property” has long been understood to include a dwelling-house for criminal law purposes and is a “quantitatively and qualitatively different kind of asset”: see R. v. Craig, 2009 SCC 23 at para. 54. There is no reason that a portion of a dwelling-house cannot constitute “real property” for the purposes of this section. For example, in Her Majesty the Queen v. Pletnev and Pletneva, 2017 ONSC 6304, the Superior Court of Justice accepted that an apartment could constitute real property for this section: see paras. 13-16. As Ms. Langdon correctly submitted, P.K. was a tenant and had a possessory interest in this room. She had every right to enjoy the peaceful possession of her own room and to be free from a violent intrusion by the man who had assaulted her previously and may have been intent on assaulting her again. He had absolutely no right to enter her room without her consent. To accept the defence argument would be to preclude tenants from the safety and protection this section is meant to provide.

113Mr. Kugarajah is found guilty of count 3, forcible entry.

114Once inside her room Mr. Kugarajah was told to leave and refused. After P.K. told him loudly and directly to “Go away”, he slapped her hard across the right side of her face. He is found guilty of count 4, assault.

115She tried to leave her room on several occasions, and he forced her back into the room each time by pushing her upper body and blocking her exit through the only door. When she threatened to call the police and was holding her phone, he slapped her on the hand with enough force that her phone fell to the ground. He then told her he could kill her by hitting her with enough force that she would die. He made these remarks intending to intimidate her into submission. She was concerned he might harm her. He is found guilty of count 6, threatening death.

116P.K. was able to leave her room only after she had been held there for approximately ten minutes against her will by Mr. Kugarajah when the food delivery person arrived. She immediately sought help from the other male residents who contacted the police. She was restrained and could not flee the room as she wished. The confinement was both physical and psychological. Mr. Kugarajah intended to cause her to fear for her safety and knew he was holding her there against her will. This was unquestionably a significant period of time for P.K., especially given she was trapped in the very room where she had been sexually assaulted by Mr. Kugarajah previously. He is found guilty of count 5, forcible confinement.

Released: June 29, 2022 Signed: Justice Brock Jones