Publication Ban Warning

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

DATE: 20211110 DOCKET: C66650

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.G. Appellant

Counsel: Richard Posner and Fiona McNestry, for the appellant Michael Dineen, for the respondent

Heard: October 20, 2021 by video conference

On appeal from the conviction entered on November 1, 2018 and the sentence imposed on March 8, 2019 by Justice James F. Diamond of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals from convictions on four counts of sexual assault and one count of assault upon his wife. He argues that the trial judge erred in his assessment of the complainant’s credibility, erred in rejecting the appellant’s evidence and erred in his use of cross-count similar fact evidence. We do not accept these arguments and dismiss the appeal.

[2] The appellant and the complainant were married on April 19, 2015 in a traditional Punjabi arranged marriage. They had spent about 10 to 15 minutes together before both sets of parents agreed to the marriage. The complainant described an unremitting course of violent sexual and non-sexual assaults. Her every move was controlled and restricted, including the nature of her employment and the clothes she wore. She was not allowed any of the money she earned, her access to food was restricted and she was forbidden to use a cell phone to contact her own family. Police photographed the injuries to her body when she finally went to the police on the day she left the appellant.

[3] In contrast, when questioned by police the appellant said it was a happy marriage and that there were no problems. He denied all of the assaults. At trial, the appellant’s position was that the allegations were ludicrous, that the complainant was lying, and that inconsistencies in her evidence showed that she could not keep her false stories straight. He largely admitted the degree of control exerted over the complainant’s daily activities. He testified at trial that their relationship had deteriorated, describing fights, arguments, and crying, and claimed that he decided to “let the complainant walk away from the marriage.”

Principles governing appeals challenging a trial judge’s assessment of credibility

[4] A trial judge’s findings of credibility are owed deference. As recently noted by the SCC in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375 at para. 81:

…a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon , at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[5] This is particularly so where the trial judge had the advantage of 24 days of trial time and where the complainant was on the stand for over ten days, including 5.5 days of cross-examination. This trial judge was in a far better position to assess the credibility and reliability of the evidence than an appellate court reading a record.

Leaving the marriage with honour

[6] On appeal the appellant submits that the trial judge did not assess the central plank of his defence: that the complainant had a motive to fabricate false allegations of assault, so that she could leave the marriage with honour, in accordance with her traditions. In general, the appellant’s thesis is that according to Punjabi traditions, unless the complainant could establish that the marriage was not consummated or that she had been subjected to physical abuse, she could not leave the marriage with honour, and this would make it difficult for her to remarry within those traditions.

[7] The trial judge questioned trial counsel as to whether he intended to call expert evidence to establish those traditions, and counsel responded that he did not intend to do so, but intended only to establish that the complainant and her own father adhered to those beliefs. The trial judge found that neither the complainant nor her father agreed with trial counsel’s suggestions as put to them in cross examination. This was a fair interpretation of their testimony.

[8] The trial judge found the complainant to be an honest witness, who did her best to tell the truth. He found that she held off reporting the abuse to her family and police for several months because she had a “sincere and honest belief, or perhaps hope, that things would change and placed her faith in the marriage arranged by her parents. She had already endured one failed marriage, and very likely had no desire to see her second marriage fail as well.”

[9] While the thesis of fabrication for the purposes of leaving the marriage with honour is emphasized on appeal, it had little prominence in submissions at trial. Trial counsel devoted only a couple of lines in otherwise lengthy submissions to the issue.

[10] We see no basis to interfere with the trial judge’s conclusion that the complainant was an honest witness. The trial judge did go on to acquit the appellant of a number of the other counts on the indictment, as he was not convinced that the appellant had accurately conveyed the substance of what had occurred on those other occasions. There was some confusion as to what happened during the incidents upon which the appellant was acquitted, in a context, that featured multiple – almost daily – assaults over the course of several months.

[11] The complainant’s evidence was powerfully corroborated by the photographs of her injuries, which she attributed to the appellant. Her evidence was detailed, graphic and compelling.

Did the trial judge err in rejecting the appellant’s evidence?

[12] The appellant argues that the trial judge erred in relying on his controlling behaviour and his attitude towards his wife to reject his testimony that the assaults did not occur. While he may have been a verbally abusive, uncaring and inattentive husband, this does not mean that he assaulted his wife.

[13] The difficulty with this submission is that the ongoing assaults were part of the pattern of domination and control used to keep the complainant under the appellant’s and his parents’ thumbs. [1]

[14] The trial judge noted “despite his testimony that he wanted his marriage to work, and was interested in making it a successful relationship, during most of his testimony R.G. seemed dismissive, nonchalant, aloof, arrogant and not genuine. Not only did he show little interest for the complainant, his testimony confirmed that little interest in her existed throughout the course of their marriage.”

[15] Again, as the trial judge noted, the photographs of the complainant’s injuries, for which there was no other credible explanation, provided good reason to reject the appellant’s evidence. The lies the appellant told police regarding matters inconsistent with his trial testimony also provided a basis to reject his evidence at trial.

[16] That the complainant left after only 12 weeks of marriage, although she had really wanted the marriage to work, supports her evidence about the appellant’s conduct, and also suggests that he was not telling the truth when he denied assaulting her. She would not have left unless the conditions in that household were truly intolerable.

[17] We see no basis to interfere with the trial judge’s assessment that the appellant was not a credible witness. The findings of fact made by the trial judge were reasonably available to him on the evidence, and there was no material misapprehension of the evidence.

[18] Nor did the trial judge reverse the burden of proof. He explicitly referred to the onus upon the Crown and applied the requisite standard of proof to acquit the appellant on some of the counts with which he was charged.

Similar act evidence

[19] The appellant acknowledges that a pattern of abusive conduct towards a single complainant may be admitted as proof of animus or to establish the nature of the relationship between the parties. He submits, however, that the trial judge erred by engaging in prohibited propensity reasoning by concluding that the trial judge reasoned that because the appellant committed one assault, he was likely to have committed another. We are not convinced that the trial judge engaged in this line of reasoning, but in any event, as this court observed in R. v. Batte, 49 O.R. (3d) 321 (C.A.) at para. 102:

For example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue – assault his wife. In such cases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that the accused was disposed to act violently towards his wife and that he had that disposition on the occasion in issue.

[20] Accordingly, the appeal is dismissed.

“ Janet Simmons J.A. ”

“P. Lauwers J.A.”

“G. Pardu J.A.”

Footnotes

[1] The trial judge convicted the appellant’s mother of assaulting the complainant and convicted both of the appellant’s parents of threatening the complainant with death.