R. v. H.H., 2024 ONCJ 400

WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 05 10 Court File No.: Brampton 21-0475

BETWEEN:

HIS MAJESTY THE KING

— AND —

H.H.

Before: Justice M.C.T. Lai

Heard on: September 27-28, October 10, and November 9, 2023; January 29, and April 3, 2024 Reasons for Judgment released on: May 10, 2024

Counsel: Emily Beaton....................................................................................... counsel for the Crown Karanvir Sidhu................................................................................. counsel for the accused

LAI J.:

A. Overview

1H.H. is charged with eight counts in respect of three incidents involving his former spouse, A.R., and their daughter, A.:

Incident #1 – November 4, 2020

• Count 1: Sexual Assault, contrary to s. 271 of the Criminal Code;

Incident #2 – November 5, 2020

• Count 2: Assault, contrary to s. 266 of the Criminal Code;
• Count 3: Assault with a Weapon, contrary to s. 267 (a) of the Criminal Code;
• Count 4: Utter Death Threat, contrary to s. 264.1(1) (a) of the Criminal Code;

Incident #3 – December 6, 2020

• Count 5: Mischief Under, contrary to s. 430(4) of the Criminal Code;
• Count 6: Assault, contrary to s. 266 of the Criminal Code;
• Count 7: Assault by Strangling, contrary to s. 267 (c) of the Criminal Code;
• Count 8: Assault, contrary to s. 266 of the Criminal Code.

2The Crown called evidence from A.R. and her brother, Z.R. The defence called evidence from Mr. H.H.; his friend, Attaullah Attaullah; a police officer who responded to A.R.’s complaint, Jeffrey Ekeanyanwu; [1] and the officer-in-charge, Officer Tamas Soos.

3For the following reasons, I find Mr. H.H. guilty of Counts 1, 2, 3, 4, 5, 7 and 8, but not guilty of Count 6.

B. Background

(i) The apartment unit where A.R. and Mr. H.H. lived

4A.R. lived in a detached, split-level house in Mississauga owned by her parents. Her parents, her brothers Z.R., F.R., and S.R., and F.R.’s family also lived there. The house was split into four areas: the upstairs area; the living room area; a separate apartment unit; and a separate basement unit (Exhibit 14). There was an interior entrance to the apartment unit that was capable of being locked.

5A.R. and Mr. H.H. were arranged to be married through their respective families. On June 24, 2017, A.R. and Mr. H.H. were married in Pakistan. At the time, A.R. was studying chemical engineering, and Mr. H.H. was working for Pakistan International Airlines. A.R. stayed in Pakistan with Mr. H.H. for a few weeks before returning to Canada. She visited Mr. H.H. in Pakistan once more later that year.

6A.R. and Mr. H.H. stayed in contact through phone calls, video calls, and messages while they were living separately. A.R. sponsored Mr. H.H. to immigrate to Canada. While his application was pending, their daughter, A., was born on […], 2018.

7On March 30, 2019, Mr. H.H. came to Canada. He and A.R. began living in the apartment unit. Exhibit 5 and Exhibit 6 depict the layout of the apartment unit. Exhibit 9 and Exhibit 10 depict the layout of their bedroom. The bed was in a corner of the bedroom, so that the headboard and the left side of the bed [2] were each against a wall. The headboard was against the wall that separated the bedroom from the hallway. The left side of the bed was against the wall that had a window. The crib where A. slept was to the right of the bed, against the wall opposite to the wall that had a window. A.R. usually slept on the right side (closer to the crib); Mr. H.H. usually slept on the left side (against the wall).

8In Summer 2020, A.R.’s parents went to Pakistan to visit. Mr. H.H. left the house on December 6, 2020, and never returned. A.R.’s parents came back to Canada in January 2021. A.R. reported the allegations to the police on January 13, 2021, after her parents had returned. At the time of trial, A.R. and Mr. H.H. were separated and in the course of family court proceedings (Exhibit 13).

(ii) The nature of their relationship

9There was a great deal of evidence about the dynamic of A.R. and Mr. H.H.’s marriage. In short, A.R. described a relationship in which Mr. H.H. was unpredictable, verbally and physically aggressive, and controlling. In contrast, Mr. H.H. described a relationship that deteriorated after his first two or three months in Canada, after which he was a slave to A.R. and her family, and subject to A.R.’s controlling behaviour. There was also a great deal of evidence called about the financial arrangements between Mr. H.H. and A.R.’s family, both before and after his arrival in Canada.

10It is neither possible nor necessary for me to resolve every factual dispute about this largely tangential background in order to decide the criminal allegations before me (e.g., how much money Mr. H.H. brought with him from Pakistan; whether and when A.R.’s brothers paid rent to their father; how often A.R. hid the car keys from Mr. H.H.; why the car was in A.R.’s name; whether Mr. H.H.’s parents and A.R.’s parents had spoken in Pakistan about A.R. hiding the car keys). The thrust of this evidence – which I accept – is that there was conflict in the marriage, partially but not exclusively due to financial matters; that A.R. has negative feelings towards Mr. H.H. arising from the conflicts during their marriage and its eventual dissolution; and that Mr. H.H. felt and continues to feel that he was wronged and mistreated by A.R. and her family.

C. The November 4, 2020 Incident

(i) The evidence for the Crown

11A.R. testified that there were two parts to the November 4, 2020, incident. A. was sleeping in her crib throughout.

12A.R. testified that she usually put A. to sleep around 9 or 10 p.m. The first part of the incident started after that. A.R. was asleep on her side of the bed. Mr. H.H. woke her up by touching her arm. She “moved’ or “nudged” her arm in a gesture for him not to touch her. Mr. H.H. got on top of her. She told him to stop. She was trying to resist and to push him away. Mr. H.H. tried to move her shirt up and her pants down. A.R. tried to pull her shirt back down and her pants back up. Eventually, Mr. H.H. pinned her arms. A.R. continued to resist, and managed to get Mr. H.H. off of her. Mr. H.H. rolled over. A.R. turned onto her left side so that she was facing away from Mr. H.H.. She was in shock. It took a long time, but she did eventually fall back asleep. She was not sure how long this first part lasted, or how long it took her to fall asleep.

13A.R. testified that, at some point after she had fallen asleep, Mr. H.H. woke her up again. This time, he was aggressive. He pulled her shirt up again, “really hard this time”. A.R. kept resisting. Mr. H.H. got on top of her. He quickly pulled her shirt up and her pants down. He pinned her arms. A.R. told him to stop. She tried to push him away with her legs. At some point her foot hit something – she believed it was the wall – and she felt a lot of pain. A.R. explained that she “had lost the battle”, that she “just had to lose the battle”, and that Mr. H.H. “just completed his task” and “accomplished what he wanted to do”. When asked what Mr. H.H. had accomplished, A.R. said that Mr. H.H. “had sex” and put his “private parts” into hers. A.R. testified that she could tell when Mr. H.H. had finished because he was “relieved” and “seemed relaxed”. Also, it was “wet” around her “private area”. Mr. H.H. had not used a condom.

14Mr. H.H. said, “You’d better not tell anyone, okay”. A.R. was traumatized and shocked. She could not believe what Mr. H.H. had done.

15The next day or the day after, A.R. took a picture of the foot she believed had hit the wall during the sexual assault. She described her foot as “all bruised and swollen”, and having to ice it and take Tylenol for the pain. Exhibit 2 is a picture of a right foot, the top part of which is visibly bruised and swollen, especially near the third, fourth and pinky toes.

16The next or the day after, A.R. also took a picture of her left wrist. Exhibit 3 is a picture of a left wrist. There is a visible mark on the inside of the wrist. A.R. testified that she got this injury while Mr. H.H. was pinning her arms down.

(ii) The evidence for the defence

17Mr. H.H. testified that he finished work around 2:30 p.m. on November 4, 2020. It usually took him about 30 minutes to get home, but he got home a little bit later because he stopped to send money back to his parents in Pakistan (Exhibit 15). He usually went to bed around 10 p.m. or 10:30 p.m. He did not remember whether A.R. went to bed before or after him. Nothing else happened that night.

18Mr. H.H. testified that he saw the bruise depicted in Exhibit 2 at some point in 2020. A.R. told him that it had been caused by a heavy box of knives falling on her foot. He had treated the injury for her when he got home from work. He denied any knowledge of the injury depicted in Exhibit 3.

D. The November 5, 2020 Incident

(i) The evidence for the Crown

19A.R. testified that Mr. H.H. had already left for work when she woke up the next morning. It was difficult for her to get out of bed, but she had to take care of A. She was devastated and in complete shock. Her parents were still in Pakistan. She felt broken and alone. When Mr. H.H. came home from work around 3 p.m., A.R. was sitting on her side of the bed. She was still very upset. A. was initially napping in her crib, but she woke up at some point during this incident.

20A.R. testified that Mr. H.H. confronted her about why she was sitting there when the food was uncooked. He then asked, “Did you tell anyone?” When A.R. did not respond, Mr. H.H. started slapping and hitting her and her arm, face, and left side of her body. He punched her in the left shoulder with his right hand. A.R. was in pain. She was crying. She told him to stop.

21A.R. testified that Mr. H.H. then ran to the kitchen, grabbed a knife, and held it to her throat. A.R. was still sitting on the bed. Mr. H.H. said, “Did you tell anyone about what happened? You better not have told anyone”, “It’ll be shameful for you if you did”. He also threatened, “If you call the police, I’ll kill you before they catch me.” A.R. continued to cry. Mr. H.H. “just stopped then”, got onto the bed, and then sat there.

22Shortly after Mr. H.H. got onto the bed, A.R. stood up. Mr. H.H. was still seated. A.R. took a picture of him with her phone. She did not know whether Mr. H.H. saw her take the picture or not, but he never mentioned anything to her. Exhibit 1 is a picture of Mr. H.H. sitting on a bed. He is looking at the camera. The blade of a knife is resting in his right hand. The handle is resting on his lap.

23The next day or the day after, A.R. took a picture of a “big bruise” on her shoulder caused by the assaults. Exhibit 4 is a picture of an upper left shoulder. There is visible bruising. One area of the bruise stands out as a noticeably red mark. A.R. testified that she believes the red mark was caused by a ring that Mr. H.H. wore on his right hand.

(ii) The evidence for the defence

24Mr. H.H. testified that nothing happened on November 5, 2020, other than an argument about his having sent money to Pakistan on the previous day. [3] He denied any knowledge of the injury depicted in Exhibit 4.

25Mr. H.H. denied that Exhibit 1 was taken on November 5, 2020. He was “confident that this picture was taken [in] December 2019”. Mr. H.H. had gotten a pay raise and wanted to move out of the house. She disagreed, so she took the car keys and said, “okay now try to go or try to leave”. He “was telling her that return my car keys to me or I will slit my wrists”. She was taking a video and said, “okay, go ahead, cut your wrists and I will send this video to your parents”.

26Exhibit 7 is a copy of Mr. H.H.’s health card, which was issued on September 18, 2020. The top of his hair is slicked back, tight to the top of his head. He has a full beard. There are some tendrils of either hair or facial hair on the right-hand side of the photograph, around his left shoulder.

27Exhibit 17 shows a reflection of Mr. H.H. in a mirror, with his hair in a ponytail. The quality of the picture makes it difficult to tell how long his hair would be if it was not tied up, although it seems to be about shoulder-length. Mr. H.H. testified, and I accept, that this picture was taken in September 2020.

28Exhibit 8 shows Mr. H.H. with his hair in a tight ponytail, with some tendrils falling out at the bottom, just above the shoulder. Mr. H.H. testified, and I accept, that this picture was taken in October 2020.

29Exhibit 11 shows a reflection of Mr. H.H. in a mirror, with his hair apparently down. The bottom of his hair falls just above the shoulder. Exhibit 16 is a screenshot of a photo album on a mobile phone. Based on that screenshot, I find that Exhibit 11 was taken on November 18, 2020.

E. The December 6, 2020 Incident

(i) The evidence for the Crown

30A.R. testified that Mr. H.H. did not go to work that day. When Mr. H.H. woke up, he asked A.R. whether his breakfast was ready. A.R. said no, but that she would make it right away. Mr. H.H. became really angry. He was yelling. He started throwing things, including a perfume bottle that he threw at the bedroom mirror. The mirror broke. There was glass on the dresser and on the floor.

31A.R. was standing near the bedroom door. A. was standing in the bedroom and started screaming and crying. Before A.R. could grab A., Mr. H.H. pushed A. aside, grabbed A.R. and started strangling her. They were standing face to face. He had both hands on her neck. When A.R. could not breathe, Mr. H.H. let go and pushed her onto the ground. A.R. fell somewhere in the hallway area between their bedroom and their living area. Mr. H.H. grabbed A.R.’s wrist with one hand and pulled her hair with the other. A.R. was screaming and crying. Then she heard Z.R. yell, “Stop”, “Leave her”, “Let her go”. Mr. H.H. let go. Z.R. came to help her. At some point, Mr. H.H. left the unit.

32Z.R. testified that he was upstairs when he heard “a lot of noise. I couldn’t pinpoint exactly what it was. Like for example, say you’re in your own thoughts and then all of a sudden you hear “dah, dah, dah, dah, right?”, coming from downstairs”. He described it as “a commotion”. In cross-examination, he elaborated that it sounded “like some things were breaking” and “[A.] crying, like, hysterically”.

33Z.R. testified that he went downstairs to check what was happening. As soon as he opened the interior door to the apartment unit, he saw Mr. H.H. “hovering over” A.R., with his right hand around A.R.’s left wrist. Mr. H.H. was “pulling” or “yanking” on her wrist, and A.R. was trying to “fight him off”. They were standing in the hallway between their bedroom and their living room. Z.R. was startled. He advanced towards Mr. H.H. and said, “Leave her”, “Let go of her”. He told Mr. H.H. to let go maybe two or three times. At first, Mr. H.H. did not comply. He just stared at Z.R. He looked like he “couldn’t care less about what he was doing”. It was not until Z.R. got “really close” – about a foot away – “to his face…in close proximity to him without touching”, that Mr. H.H. let go. As soon as Mr. H.H. let go of A.R., she “just plopped to the floor”.

34A.R. and A. were both crying. Z.R. was focussed on helping them. By the time he turned his attention back to Mr. H.H., Mr. H.H. had already left. Z.R. testified that the mirror on the bedroom dresser was shattered, that items were “scattered” in the bedroom, and that glass was “all over the place”.

35A.R. testified that her neck, back, and head hurt as a result of the assault. Z.R. testified that he did not check to see whether A.R. had any injuries, and that he did not remember seeing any marks around her neck.

(ii) The evidence for the defence

36Mr. H.H. testified that he was not feeling well and did not go to work. A.R. woke him and insisted that he make breakfast. When he did not get up, A.R. sprinkled cold water on him. Mr. H.H. got up, made breakfast, and went back to bed. A.R. then demanded that Mr. H.H. clean the kitchen. He said he would do it later. A.R. again sprinkled cold water on him. He became angry and started throwing clothes on the floor. A.R. also started throwing clothes. She then took his laptop and threw it onto the floor, breaking it. Mr. H.H. “cooled down” and “wasn’t angry anymore because I saw that my laptop was broken”.

37Mr. H.H. kept his empty bags in the garage. With F.R.’s help, Mr. H.H. got a bag, brought it to the apartment, and started filling it with clothes. He went to the kitchen table, where the car keys were usually kept. A.R. had taken the car keys. Mr. H.H. “got really angry”. He grabbed his perfume bottle from the dresser, stood in the doorway of the bedroom, and told A.R., who was in the kitchen, that he would smash the mirror with the perfume bottle if she didn’t give him the car keys. She did not reply. He threw the bottle. It made a loud noise. A. was not in the bedroom at the time.

38Mr. H.H. went into the washroom and ran cold water over his head. Z.R. and F.R. had come downstairs and were asking A.R. what happened. Mr. H.H. decided to leave. He packed up the rest of his clothes and a file containing his personal documents. He went to the washroom. When he came back, A.R. had taken the file out of his bag. She tried to run away with it. Mr. H.H. grabbed her wrist. Z.R. grabbed him by the collar. F.R. was also holding Mr. H.H.. Z.R. threatened to hit Mr. H.H. if he didn’t let A.R. go. He let go. A.R. ran upstairs with the folder, and Mr. H.H. left the apartment.

F. General Principles

39Mr. H.H. is presumed to be innocent. That presumption remains with him unless and until the Crown proves that he is guilty of the alleged offences beyond a reasonable doubt. The burden never shifts.

40The Crown’s burden is a heavy one. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. A reasonable doubt is based on reason and common sense; it logically arises from the presence or absence of evidence. It would not be enough for me to believe that Mr. H.H. is probably or likely guilty. Although the Crown is not obliged to establish guilt with absolute certainty, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, I can only find Mr. H.H. guilty of the offences charged if I am sure that he committed them. [4] The paramount question remains whether, on the whole of the evidence, I am left with a reasonable doubt about Mr. H.H.’s guilt. [5]

41I am not permitted to decide this case by “choosing the more believable of the two competing stories”. [6] The Supreme Court of Canada’s decision in W.(D.) sets out the principles governing my assessment of whether the Crown has proven the essential elements of an alleged offence beyond a reasonable doubt. [7] I instruct myself as follows:

(i) First, if I believe the defence evidence or exculpatory evidence arising from the Crown’s case, I must acquit.

(ii) Second, if I do not believe the defence evidence or exculpatory evidence arising from the Crown’s case but I am left in reasonable doubt by it, I must acquit. [8]

(iii) Third, even if I am not left in doubt by the defence evidence or exculpatory evidence arising from the Crown’s case, I must ask myself whether the evidence that I do accept convinces me beyond a reasonable doubt of Mr. H.H.’s guilt.

42I have considered the witnesses’ evidence in a global fashion, and not artificially siloed in relation to the different incidents. [9] However, cross-count reasoning plays no part in my analysis. Although some evidence and some testimonial features are relevant to more than one count, allegations in respect of one count are not admissible propensity or character evidence in respect of any other count.

G. General Credibility and Reliability Findings

43I find that Mr. Attaullah and Officer Soos were credible and reliable witnesses. They both testified in a clear and straightforward manner in response to questions from both counsel. I accept the entirety of their evidence.

44For the following reasons, I find that Mr. H.H. was not a credible witness:

• Mr. H.H. bore animus towards A.R. I find that Mr. H.H. soon became unhappy with his marriage and his life in Canada, that he felt isolated from his family and support system in Pakistan, that he felt that A.R. did not care about him (e.g., “she never asked me during 17 or 18 months, she never even asked me once that why I wasn’t happy and why I never smile”), that he felt that he was unfairly treated relative to other family members (e.g., he had to pay rent although A.R.’s brothers did not, and A.R. did not prior to Mr. H.H.’s arrival; “the rules that were set for me were different for her brothers”), and that he felt that he did not have the control over his household to which he was entitled (e.g., “I did remain with her like a slave…this is my right, I cannot be like that”). This animus gave rise to a motive for him to assert control, including physical control, over A.R.
• In cross-examination, Mr. H.H. denied being unhappy in the marriage, replying, “No, I was happy”. Immediately afterwards, he said, “I wasn’t happy with her, but I was trying to be happy with her”. Later on, he testified that he told A.R.’s father that they were not happy together.
• I find that Mr. H.H. overstated his role in cooking, cleaning, and taking care of A., in an attempt to paint himself in a good light and A.R. in a negative light. His testimony that he did 80% of the cooking, 100% of the cleaning, 40% of the childcare for his infant daughter, [10] and that he took care of his infant daughter by himself about 50-60% of his after-work evenings, is not believable given that he was absent from the house most days between about 5:30 a.m. – 3 p.m., and asleep between about 10 p.m. and 5 a.m., and given that A.R. was at home with A. each and every day. Mr. H.H.’s difficulty describing what he cooked for A. underscores the problem with this aspect of his testimony. [11]
• I find that Mr. H.H. overstated the degree to which A.R. and her family exercised (as opposed to attempted to exercise) control over his actions. The tenor of his testimony in-chief was that he could not do “anything for himself” without permission from A.R., such as going out for groceries, going to the gym, or buying a watch, and that her permission was not forthcoming when it came to sending money to his parents in Pakistan. However, on his own admission, he sent money to his parents in Pakistan without A.R.’s permission “once or twice”, including from their joint account on November 4, 2020, even though he knew that she would see and question the transaction.

45For the following reasons, I find that A.R. is a credible and reliable witness:

• I have considered that A.R. has a motive to fabricate, i.e., to gain an upper-hand in the ongoing family court proceedings, which involve both financial and child custody matters (Exhibit 13); and her animus towards Mr. H.H. arising from the conflicts leading to the eventual dissolution of their marriage. Based on the quality and characteristics of her evidence, elaborated below, I am satisfied that she was not acting on these motives when she testified.
• A.R. gave a detailed, careful, and cogent account of each allegation. Indeed, when defence counsel challenged her about the manner in which certain events unfolded, A.R. elaborated on those points in an organic and logical manner (e.g., why she did not scream during the November 4, 2020 incident; her location and movements on the bed after Mr. H.H. got a knife from the kitchen on November 5, 2020). She candidly acknowledged when she did not remember certain details about the alleged events (e.g., how long it had taken her to fall asleep before, between and after the first and second part of the November 4, 2020, allegations; whether her legs were on or over the edge of the bed when Mr. H.H. came back with a knife during the November 5, 2020 incident). None of those details were material in respect of the allegations, or of a nature that one would reasonably expect A.R. to remember given the circumstances of the allegations.
• Some of A.R.’s allegations were supported by photographic evidence. [12] I have considered that there was no metadata on the photographs that could independently establish when they were taken, such that their probative value is connected to A.R.’s credibility and reliability. I address the specific photographs in the following sections, in the context of the relevant allegation. In short, based on what those photographs depict and A.R.’s cogent explanation of the timing and circumstances of those photographs, I find that all of these photographs were taken as she described, and that they meaningfully support her allegations.
• A.R.’s allegations in respect of the December 6, 2020 incident was supported by Z.R.’s testimony. I address Z.R.’s testimony in the next paragraph.
• A.R. gave equally responsive and straightforward answers to questions from both Crown counsel and defence counsel. I disagree with defence counsel’s submission that A.R. was being evasive when she sought clarification about the phrasing or intent of his questions. I find that those requests were genuine attempts to ensure that she could provide a responsive answer. And her answers following those points of clarification were, in fact, responsive. Indeed, there were points during each of her in-chief, cross-examination and re-examination, when she asked either Crown counsel or defence counsel to clarify their question before she answered.
• A.R.’s testimony was not meaningfully impeached despite a well-prepared and granular cross-examination by defence counsel. For example: [13]
  • A.R. was not inconsistent or evasive about how she had preserved the photographs. She was clear that she no longer had the iPhone on which she had taken the photographs, that she had transferred the photographs from her iPhone to her laptop, and that she had e-mailed the photographs to the police. Her confusion in response to defence counsel’s questions distinguishing between the “original” photographs and a “screenshot” of the photographs is understandable, given that both things would depict the same content. [14] From my vantage point, I understood that defence counsel was intimating that A.R. took a screenshot in order to hide the automatically-generated information/properties about when she took the photograph, but it is understandable that this nuance was not immediately apparent to A.R. during this portion of the exchange. That suggestion squarely emerged at a later point in the cross-examination.
  • A.R. was not inconsistent or evasive about what she had been wearing during the November 4, 2020 incident. She was clear that she did not remember the exact pieces of clothing, but she would have been wearing pajamas.
  • A.R. was not inconsistent or evasive about the relative timing of Mr. H.H. trying to lift up her shirt and pull down her pants during the first part of the November 4, 2020 incident. Read in context and as a whole, it is clear that she interpreted defence counsel’s question, “Was he trying to do it simultaneously”, to mean that everything was happening all at once in a single flurry of activity, as opposed to literally at the same time. I accept her explanation in re-examination to that effect.
  • I take defence counsel’s point that in her police statement about the November 4, 2020 incident, A.R. did not explicitly link the injury to her foot to the cessation of her physical resistance. However, given that A.R. did describe the injury to her foot and describe being unable to push Mr. H.H. off of her, I find that the absence of an additional statement explicitly linking these two events is not material.
  • A.R. was not evasive about the length of Mr. H.H.’s hair as depicted in Exhibit 7. The top of his hair is slicked back, tight to the top of his head. It is not clear how far the bottom of his hair goes. I also could not determine, without the assistance of other evidence, whether the tendrils of hair around his left shoulder were his hair or his facial hair.
  • There was no inconsistency between what A.R. said to Officer Ekeanyanwu and her trial testimony. She was not giving a fulsome statement, but rather a high-level explanation about why she had contacted the police. Even on its face, the explanation she gave Officer Ekeanyanwu, “The two parties got into a heated verbal argument surrounding her not having sex with him. She states that he pinned her down and then it happened, the thing happened. … around the same time…he hit her repeatedly and hard enough to cause bruising” is not inconsistent with her testimony about the November 4, 2020 and November 5, 2020 incidents.

46For the following reasons, I find Z.R. to be a credible and reliable witness, and I accept the entirety of his evidence about what he did and observed on December 6, 2020:

• I have considered that Z.R. was defensive towards the end of his cross-examination (e.g., that he was “possibly” referring to the December 6, 2020 incident during part of his police statement, when he clearly was; his reaction when defence counsel suggested that he “would do anything to protect the interest of your sister”). I have also considered that Z.R. has a motive to fabricate (i.e., to help his sister). Based on the quality and characteristics of his evidence, elaborated below, I am satisfied that his defensiveness was an emotional reaction unrelated to his credibility or reliability, and that he was not acting on his motive to fabricate when he testified.
• If Z.R. had acted on his motive to fabricate, one would expect his testimony to accord perfectly with A.R.’s testimony. Instead, there were minor inconsistencies between Z.R. and A.R. that could reasonably be explained by the human phenomena of two witnesses independently recalling small details differently because of their different vantage points and states of mind (e.g., A.R.’s posture when Z.R. entered the apartment, whether Z.R. had entered the apartment before or after Mr. H.H. let go of A.R.’s hair).
• The substance of Z.R.’s testimony was not meaningfully impeached in cross-examination. For example:
  • I agree with defence counsel that, on its face, Z.R.’s testimony that the December 6, 2020 incident was “a serious incident. Something not easily forgotten” was inconsistent with his police statement that it “wasn’t like an incident which was engraved in my mind, you know, something serious”. However, Z.R. provided a reasonable explanation for that facial inconsistency: when the prior statement is read in context, he was clearly situating the seriousness of the December 6, 2020 incident relative to the seriousness of the other allegations, which he did not know about at the time.
  • There is no meaningful inconsistency between Z.R.’s testimony that he did not see Mr. H.H. holding A.R. for very long – less than a minute or thirty seconds – and his police statement, which he adopted in cross-examination, that it could have been as little as three seconds.
  • There is no meaningful difference between Z.R.’s testimony that he was upstairs when he heard the commotion coming from the apartment, and his statement to the police, while describing the layout of the house, that he was “all the way down in the basement”. He explained that he was not sure whether he was living upstairs or in the basement on December 6, 2020, because he had lived in both parts of the house at various times since 2005. This makes sense. [15] Z.R. also explained that he always had access to upstairs, and that he distinctly remembered being upstairs and going down to the apartment. The latter is the salient point, on which his evidence was unimpeached.

H. The November 4, 2020 Incident

47I disbelieve Mr. H.H.’s testimony about the November 4, 2020 incident, and it does not leave me in a reasonable doubt. In reaching this conclusion, I have considered the reasons set out in paragraph 44, as well as the following:

• Mr. H.H. clearly understood that he could agree or disagree with the Crown’s suggestions. For example, when the Crown suggested that Mr. H.H. was the controlling one in the marriage, Mr. H.H. replied, “No.” When the Crown suggested that Mr. H.H. controlled and had expectations of A.R., Mr. H.H. replied, “No”. Indeed, when the Crown suggested that Mr. H.H. committed specific acts on November 4, 2020, Mr. H.H. replied, “No,” or gave similarly straightforward denials.
• In contrast, when the Crown put to Mr. H.H. that “one of those expectations you had [of A.R.] was that you could have sex with her when you wanted to”, Mr. H.H. replied, “You can say that.” [16] Based on this response, I find that Mr. H.H. believed that he was entitled to sexual intercourse as part of his marriage to A.R. While this is only one factor and cannot attract undue weight, Mr. H.H.’s attitude provides some additional support for A.R.’s allegation, at the heart of which is that Mr. H.H. would not take no for an answer.
• I reject Mr. H.H.’s explanation for the injury depicted in Exhibit 2. It is not realistic that A.R. concocted such a detailed and cogent multi-part sexual assault allegation that dovetailed, in one specific aspect of that narrative and in such a logical way, with an unrelated and innocent injury that she had suffered sometime earlier in the year and of which she just happened to have a picture.

48I would also reject Mr. H.H.’s evidence based on a reasoned acceptance of the entirety of A.R.’s testimony, beyond a reasonable doubt, about the November 4, 2020 incident. [17] In reaching this conclusion, I have considered the reasons set out in paragraph 45, as well as the following:

• I find that A.R. took the photograph in Exhibit 2 the next day or the day after, and that it depicts her right foot, the top part of which is visibly bruised and swollen, especially near the third, fourth and pinky toe.
• A.R.’s testimony provides a logical mechanism for how she would have gotten this injury. She testified that during the second part of the November 4, 2020 incident, Mr. H.H. aggressively pulled her towards him. She was on her back. He was on top of her and pinning her arms. She was physically resisting. The wall would have been on her right-hand side. Although she had been laying on the other side of the bed, it is readily understandable how, as a result of the described struggle, she would have been close enough to the wall for her foot to have struck it, in the area of the bruising, while she was using her legs to push him away.
• I find that A.R. took the photograph in Exhibit 3 the next day or the day after, and that it depicts the inside of A.R.’s left wrist, on which is a visible mark. A.R.’s testimony provides a logical mechanism for how she would have received this injury while Mr. H.H. was on top of her and pinning her arms.

49Based on the entirety of the evidence I accept, I am satisfied beyond a reasonable doubt that Mr. H.H. intentionally touched A.R., that the touching was in circumstances of a sexual nature, that A.R. did not consent, and that Mr. H.H. knew that A.R. did not consent.

50I find Mr. H.H. guilty of Count 1.

I. The November 5, 2020 Incident

51I disbelieve Mr. H.H.’s testimony about the November 5, 2020 incident, and it does not leave me in a reasonable doubt. In reaching this conclusion, I have considered the reasons set out in paragraph 44, as well as the following:

• My conclusion beyond a reasonable doubt that Mr. H.H. sexually assaulted A.R. on November 4, 2020 is admissible evidence on Count 4 (Utter Death Threat) as motive – i.e., the proven fact that he sexually assaulted A.R. is relevant to whether he had a reason to threatened to kill her if she reported that sexual assault. To be clear, it is not admissible on any of the November 5, 2020 allegations, including Count 4, to support any propensity or character-based reasoning.
• I find that Mr. H.H.’s hair went down to approximately his shoulders on November 5, 2020. I base this finding on Exhibit 7, Exhibit 8, Exhibit 11, Exhibit 16, and Exhibit 17, as well as on Mr. Attaullah’s evidence that he could not describe the exact length of style of Mr. H.H.’s hair around December 6, 2020, but it was “approximately shoulder length”, “to the length of his ears” and “combed to the…backside of the head”.
• I find that Mr. H.H.’s hair length depicted in Exhibit 1 is consistent with my finding that Mr. H.H.’s hair went down to approximately his shoulders on November 5, 2020. Mr. H.H.’s hair in Exhibit 7 is slicked back, tight to the top of his head, as though tied in a ponytail or bun behind his head. Mr. H.H.’s hair in Exhibit 1 is untied and rises with significant volume above the top of his head. The bottom of his hair is not visible because of the combination of the dark headboard, his dark clothing, and the shadows. If the hair depicted in Exhibit 1 was slicked back, tight to the top of Mr. H.H.’s head, in the same way as depicted in Exhibit 7, or if it was styled in the same way as depicted in Exhibit 8, Exhibit 11, Exhibit 16, or Exhibit 17, there would be no meaningful difference between them.
• I reject Mr. H.H.’s explanation for the photograph in Exhibit 1. His version of events – that he threatened to slit his wrists or hands because A.R. would not give him the car keys (not to kill himself, only to hurt himself), while A.R. egged him on and video-recorded it – reflects a dramatically disproportionate and obviously ineffective manner of achieving his stated goal.

52I would also reject Mr. H.H.’s evidence based on a reasoned acceptance of the entirety of A.R.’s testimony, beyond a reasonable doubt, about the November 5, 2020 incident. In reaching this conclusion, I have considered the reasons set out in paragraph 45, as well as the following:

• I find that A.R. took the photograph in Exhibit 1 on November 5, 2020, and that it depicts Mr. H.H. sitting on their bed, with the blade of a knife resting in his right hand, and the handle resting on his lap. A.R. gave a logical explanation for how Mr. H.H. got onto the bed and to his seated position (i.e., from lower down than where he had been standing when he held the knife to her throat).
• I disagree with defence counsel’s submission that A.R.’s description about taking the photograph is not believable because Mr. H.H. is looking at the camera. A.R. did not purport to know whether Mr. H.H. was or was not aware that she took his photograph; she said she did not know, but Mr. H.H. did not say anything to her about it. Given that she had just gotten up from the bed and he was still seated, it is readily understandable how A.R. could have held the phone in front of her in a way that did not make it apparent that she was taking a photograph.
• I find that A.R. took the photograph in Exhibit 4 the next day or the day after, and that it depicts her upper left shoulder, on which there is visible bruising. A.R. gave a logical explanation for how she would have gotten this injury from Mr. H.H. hitting and slapping the left side of her body, including punching her with his right hand, on which he wore a ring that correlated to the noticeably red mark in the bruised area.

53Based on the entirety of the evidence I accept, I am satisfied beyond a reasonable doubt that Mr. H.H. intentionally applied force to A.R. without her consent by hitting, slapping, and punching her. I am also satisfied beyond a reasonable doubt that Mr. H.H. held a knife to A.R.’s throat and threatened to kill her if she called the police about the November 4, 2020 sexual assault.

54I find Mr. H.H. guilty of Count 2, Count 3, and Count 4.

J. The December 6, 2020 Incident

55I disbelieve Mr. H.H.’s testimony about the December 6, 2020 incident, and it does not leave me in a reasonable doubt. In reaching this conclusion, I have considered the reasons set out in paragraph 44, as well as the following:

• Mr. H.H. testified that he was angry and throwing clothes immediately before A.R. broke his laptop, but that he “cooled down” and “wasn’t angry anymore because I saw that my laptop was broken”. One would reasonably expect that A.R. breaking his laptop would escalate his emotions, not the opposite.

56I would also reject Mr. H.H.’s evidence based on a reasoned acceptance of the entirety of A.R.’s testimony, beyond a reasonable doubt, about the December 6, 2020 incident. In reaching this conclusion, I have considered the reasons set out in paragraph 45, as well as the following:

• A.R.’s testimony finds some support in Mr. H.H.’s admissions that he threw a bottle of perfume at the mirror (on his version, without breaking the mirror), that Z.R. came downstairs (on his version, with F.R.), and that he grabbed A.R.’s wrist (on his version, to retrieve his documents).
• A.R.’s testimony about how the incident unfolded is supported by Z.R.’s testimony about what he heard that caused him to enter the apartment (e.g., loud noises, screaming, a commotion).
• A.R.’s testimony about Mr. H.H. grabbing her wrist is supported by Z.R.’s testimony about what he observed when he opened the interior door to the apartment. Given the dynamic nature of the events, it is understandable that Z.R. did not observe Mr. H.H. grabbing A.R.’s hair – either because Mr. H.H. had already let go by the time Z.R. entered through the door, or because Z.R. had limited time to observe it after entering.
• A.R.’s testimony that Mr. H.H. damaged the mirror is supported by Z.R.’s testimony that the mirror was broken.

57Based on the entirety of the evidence I accept, I am satisfied beyond a reasonable doubt that Mr. H.H. wilfully damaged the mirror, which was their joint property; [18] that he assaulted her by strangulation, specifically by placing both hands on her neck to the point that she could not breathe; and that he assaulted her by yanking her wrist and pulling her hair.

58I find Mr. H.H. guilty of Count 5, Count 7, and Count 8.

59The wording of Count 6 alleges that Mr. H.H. assaulted a person whose first name is spelled differently than how A.’s first name was spelled by the witnesses and in Exhibit 13. Since both parties conducted this trial on the basis that A. was the alleged victim in that count, I will consider the allegation on its merits.

60I am not satisfied beyond a reasonable doubt that Mr. H.H. intentionally applied force to A. while he was trying to get to A.R. A.R.’s evidence about the December 6, 2020, incident supports the reasonable inference that Mr. H.H. was so focussed on A.R. that he did not see A. in or around his path, and that he accidentally made contact with A. while he was trying to get to A.R. To the extent that a reckless application of force is an available route of liability, [19] these same circumstances raise a reasonable doubt about whether Mr. H.H. was subjectively aware that there was a danger that he could make contact with A. but persisted despite that risk.

61I find Mr. H.H. not guilty of Count 6.

K. Conclusion

62The verdicts are as follows:

• Count 1 (Sexual Assault): Guilty;
• Count 2 (Assault): Guilty;
• Count 3 (Assault with a Weapon): Guilty;
• Count 4 (Utter Death Threat): Guilty;
• Count 5 (Mischief Under): Guilty;
• Count 6 (Assault): Not Guilty;
• Count 7 (Assault by Strangling): Guilty;
• Count 8 (Assault): Guilty.

Released: May 10, 2024 Signed: Justice Mabel Cheuk Ting Lai

Footnotes

1Mr. Ekeanyanwu was no longer a police officer at the time of trial.

2All directions on or relative to the bed are from the perspective of someone standing at the foot of the bed and looking at the headboard.

3A.R. agreed that she found out about this transaction after the fact and that they had argued, but she testified that she did not remember when the argument took place.

4R. v. Lifchus, [1997] 1 S.C.R. 320; R. v. Starr, 2000 SCC 40.

5R. v. C.L.Y., 2008 SCC 2, paras. 6-9.

6C.L.Y., supra, at para. 8.

7R. v. W.(D.), [1991] 1 S.C.R. 742.

8In other words, some elements of that evidence may raise a reasonable doubt, even if I reject the bulk of it. Equally, if I do not know whether to believe that evidence or not, I must acquit: R. v. J.H.S., 2008 SCC 30, at para. 11.

9R. v. R.F., 2022 ONCA 777, at paras. 8-11.

10After being challenged on this number by Crown counsel, Mr. H.H. modified his answer to “like 30 – to 30 percent 40 percent that I would take care of her”.

11To be clear, it is not the content of Mr. H.H.’s answer that is problematic – different cultures and different generations will have different views about what is appropriate to feed one’s children – but rather that Mr. H.H. struggled to come up with an answer at all, or with an explanation for that answer, and ultimately settled on an answer to the effect of, “I just did what I was told.”

12Exhibit 1, Exhibit 2, Exhibit 3, and Exhibit 4.

13To be clear, the lack of material inconsistencies and the fact that she was unshaken in cross-examination is not a makeweight in favour of credibility, but is the absence of features that could have diminished her credibility: R. v. Alisaleh, 2020 ONCA 297, at paras. 16-17; R. v. Gerrard, 2022 SCC 13.

14“I’m not able to understand. Like what’s the difference I – if I took a screenshot or – like what do you mean by – they’re still original…”.

15A.R.’s testimony to the same effect – that she did not recall who was living in the basement on December 6, 2020, given that there had been tenants on and off during the many years that she had lived in the house, also makes sense.

16I note that he gave the same response, “Yes, you can say that”, earlier in his testimony when he was agreeing with the Crown’s suggestion that he worked full-time hours at his various jobs.

17R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 69.

18Section 429(3) (a) of the Criminal Code provides that where it is an offence to destroy or damage anything, “the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage”.

19See R. v. Young, 2021 ABPC 285, at paras. 67-69.