ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
G.C.
Before Justice G.P. Renwick
Heard on 06 and 07 May 2025
Reasons for Judgment released on 07 May 2025
S. Gerdun counsel for the prosecution
D. Pledge counsel for the Defendant G.C.
REASONS FOR JUDGMENT FOLLOWING A TRIAL
INTRODUCTION
1The Defendant is charged on a five-count Information alleging assaults and one threat to his wife, S.K. The prosecution proceeded summarily.
2The prosecution called one witness, the complainant. Some photographs and an affidavit made by the complainant were also introduced into evidence during this brief trial. The Defendant did not call any evidence.
3The sole issue for determination is whether the prosecution has met its burden of proof in respect of the allegations.
GOVERNING LEGAL PRINCIPLES
4The Supreme Court of Canada has recently reiterated the legal principles that govern the fact-finding process engaged during a trial.1
5The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed any assault or threat, he will be acquitted of the charges.
6A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities.2 If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.
7This case involves credibility and reliability assessments. In assessing credibility and reliability I have considered the general capacity of the witness to make her observations, to remember what she perceived, and her ability to accurately testify and communicate her recollections. It is also important to determine whether the witness was trying to tell the truth and whether the witness was sincere, candid, biased, reticent, or evasive. A court may accept some, none, or all of what a witness says while testifying.
8A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said throughout their testimony. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
9Admissibility and the weight attached to evidence are two distinct considerations. In addition to the testimony received, there are photographs and an affidavit to consider. The probative value of evidence is not presumed. In all cases, a trier of fact must determine the appropriate weight to give each piece of evidence and what, if anything, is established or proven and to what degree.
10Triers of fact must consider both credibility and reliability in determining the facts in a given case. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which one evaluates the accuracy of evidence. Trial judges must be careful not to conflate credibility with reliability otherwise the fact-finding net might entangle even the least reliable piece of evidence.
11It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns govern the analysis because credibility does not guarantee accuracy. Credible witnesses can be mistaken or otherwise inaccurate. Thus, credibility is not a proxy for reliability.3
12Where witness testimony is highly credible, consistent, plausible, not inconsistent with other evidence, not found to be the product of bias or motive, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, truth and accuracy are likely established.
13Assessments of credibility and reliability can be the most important and challenging judicial determinations in a criminal trial. Our highest court has reminded us:
Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’.” With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’ testimony.4
14Judicial fact-finding is often based on inductive reasoning and evaluations of “probable interpretations of the evidence.”5 It necessarily depends on common-sense inference-drawing.6 To again quote the Supreme Court:
Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.7
THE EVIDENCE
15In this part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what the witness said, I listened to the witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, motive, and the witness’ ability to recall and communicate.
16I will not recapitulate all of the evidence received during this trial. Suffice it to note that I have used several opportunities during the trial and subsequent to the completion of the submissions to review my notes and to listen to parts of the digital audio recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, despite any verbal exchanges during the evidentiary phase of the trial or submissions, I came to no conclusions about any of the evidence received until all of the closing submissions were made and my review of the evidence, submissions, and the law was complete.
The Testimony of the Complainant
17The complainant testified about her marriage to the Defendant. Initially, things were smooth. They married abroad and she came to Canada in April 2021, before her spouse. The Defendant arrived in September 2022. Things in the marriage began to deteriorate within months of his arrival. Within six months of the Defendant’s arrival, the complainant attended the police station on 30 January 2023 and made the allegations before the court.
18The complainant first testified about the incident that gave rise to her attendance at the police station. On 30 January 2023, the couple were headed to their local Temple for religious observance. At a bus stop, the complainant told the court about the Defendant “pushing and pulling” her because she only had one ear bud to listen to music, not two (apparently, the other was inadvertently left at home). She also said that the Defendant had “pushed” her on her face, he punched her on her face, and he tried “pushing” on her neck. The complainant also used the word, “abusing” to describe how the Defendant had been blaming her and her parents for her behaviour.
19It was obvious that the complainant spoke English as a second language. She did not wish to use a court interpreter to testify, and this may explain her use of the word “push” to mean several things: to push, to punch or to grab (as in around her neck).
20The complainant testified that the Defendant first “beat” her at the bus stop, on their way to the Temple. As a result, the complainant returned home, to their basement apartment. The Defendant presumably went to the Temple and returned home later that evening.
21The arguing and physical violence continued, according to the complainant. The Defendant confronted the complainant in the kitchen and the complainant testified that during this argument, the Defendant punched her on the right side of her face. Exhibit 1A and 1B are photographs taken that night by the upstairs tenants. The right side of the complainant appears red in Ex. 1B. Interestingly, when the complainant demonstrated this assault, she held a closed fist up to the left side of her face. The Defendant also allegedly grabbed the complainant by the throat and held onto her for either one or two minutes or two to three minutes, depending on the which account she gave during her evidence in chief. At this point, the complainant had “a little bit, not that much” trouble breathing and she began shouting. This gained the attention of the upstairs neighbours and when they came downstairs the violence ended.
22The complainant was uncertain when she called police. She believed it was about an hour after she had gone to sleep. When the complainant called the police, the Defendant was not present.
23The complainant also testified about a threat that the Defendant made about 10-15 days before the assaults of 30 January 2023. On that occasion, the Defendant told her that he was not afraid of the police. The complainant had mentioned that she would call the police, because the arguments were happening every two or three days. She was clear that there was no violence in these interactions, only arguments. In that context, the Defendant said that he would kill the complainant and then he would go to jail.
24Cross examination of the complainant was fruitful.
25The complainant confirmed that 30 January had been the only time when things became physically violent.
26The complainant became uncertain that the Defendant had left their home after the punch to the face and neck grab. When asked if they slept together that night, the complainant answered, “I didn’t remember, maybe.” It was put to her that they slept together and when the Defendant left for work, she called the police. To this suggestion, the complainant responded, “Maybe, I’m not sure.”
27The complainant was also cross examined about the photographs from that time period. Interestingly, photo 1A shows redness on the complainant’s face, but when the police took the photograph that became Exhibit 1C, the redness was gone and two small scratches were present. The complainant had no explanation for this.
28Cross examination also covered an affidavit that the complainant swore on 27 July 2023, some six months after making her statement to the police. This became Exhibit 2. The affidavit contradicts much of the complainant’s testimony. She explained that she felt pressured to write it because after he was charged, the Defendant’s family kept calling her and her family every 15-20 minutes.
29Lastly, there was another incident at a bus stop that the complainant mentioned in her statement to the police, that she claimed not to remember when she was testifying in chief. During that incident, the Defendant allegedly threw the complainant’s cap into the road and he was pulling her “hairs.”
ANALYSIS
30The complainant was a poor witness, overall. I found her evidence to be shifting and inconsistent, internally. I was troubled by her apparent willingness to lie in a sworn affidavit and her poor memory on the whole. Several examples of the difficulties I had in the evidence follow.
31When asked in chief how hard she was pushed into the mirrors at the bus stop, she said, “not that much, just a little bit.” Apparently, it did not hurt her. She also described being pushed on her shoulders. This is a stark contrast from the “beating” she initially said had happened at the bus stop.
32I do not find that the exhibits support the complainant’s version of events. If anything, the photographs undermine the complainant’s testimony, because the redness on the complainant’s cheek/upper jaw line conflicted with the side of her face she used to demonstrate the closed fist punch while testifying. Also, the redness in photograph 1B is not visible in 1A. Lastly, the redness on the complainant’s neck in 1A is replaced with scratches, without any apparent redness, in photograph 1C. I have some doubt about the lack of a police photo of the complainant’s face. The complainant testified that her pain lasted one to two days, but one strong inference is that there was no mark on her right (or left) cheek) when she spoke to the police.
33I am not as perplexed by the complainant’s affidavit. I understand why victims of intimate partner violence may be coerced into recanting their statements. I would say, however, that the complainant is not believable when she said that the Defendant’s family members called her and her family every 15-20 minutes. There was no period of time given for this apparent pressure, but even if this lasted for one day, it is excessive and incomprehensible. There was no evidence that the complainant went to the police about this pressure. Instead, she resiled from her police statement. None of which explains why she testified that she told the lawyer drafting the affidavit to include that she did not want to resume cohabitation with the Defendant. This is the one detail she wanted to see included and it is not; the end of paragraph 5 suggests she wanted to resume cohabitation.
34In the end, even if I believed the complainant, which is difficult in the circumstances of the totality of her testimony and all of the other evidence, she is completely unreliable as a witness for several reasons:
i. She was inconsistent in her testimony;
ii. She has a poor memory in significant areas (did the Defendant sleep at their home after the assaults on 30 January 2023; when did the complainant call and go to police to report the assaults);
iii. Was the threat made in person or on the telephone as alleged;
iv. Was there a history of physical violence as alleged, or merely a history of arguments and possibly a threat;
v. Why did the complainant swear to a false affidavit; and
vi. Why was the complainant’s one wish about the affidavit (the reason she was willing to sign it) missing.
35Where, as here, there are significant indicators that undermine a witness’ reliability, the court must exercise caution before accepting the uncorroborated testimony of a single witness.
CONCLUSION
36I find that I have a reasonable doubt about what happened on 30 January 2023 and in the month or so leading up to that date.
37In the circumstances, it would be unsafe to rely upon the complainant’s testimony.
38For these reasons, the charges are not proven beyond a reasonable doubt and G.C. is acquitted of all counts.
Released: 07 May 2025
Justice G. Paul Renwick
Footnotes
- R. v. Kruk, 2024 SCC 7 at paras. 59-62.
- R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.
- R. v. H.C., 2009 ONCA 56 at para. 41.
- R. v. Kruk, 2024 SCC 7 at para. 81.
- Kruk, supra, at paras. 71 and 75.
- Ibid.
- Kruk, supra, at para. 72.