WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court Information

Court File No.: Halton 10-878

Date: 2012-05-09

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

R.H.

Before: Justice R. Zisman

Heard on: August 19, March 23, December 13, December 15, 2011 and March 14, 2012

Reasons for Judgment released on: May 9, 2012

Counsel:

T. McKinnon and A. Stevenson for the Crown

B. Hundal for the accused R.H.

Judgment

Zisman J.:

Introduction

[1] The defendant faces three charges all related to his wife, J.H.

[2] He is charged with the following offences:

i) Between July 1 to July 31, 2008 he assaulted J.H. contrary to section 266 of the Criminal Code;

ii) On August 18, 2008 he assaulted J.H. causing her bodily harm contrary to section 267(b) of the Criminal Code; and

iii) Between September to December 2008 he sexually assaulted J.H. contrary to section 271 of the Criminal Code.

[3] The only Crown witness was the complainant. The defendant testified on his own behalf and called as a witness his mother, J.H.2 who testified with the assistance of an interpreter. The trial unfortunately was prolonged over almost seven months not due to the fault of counsel or the court. I have carefully reviewed my notes and a transcript that was prepared of the evidence. I am mindful of the burden upon the Crown to prove the charges beyond a reasonable doubt. I must weigh the evidence and credibility of the witnesses in making my decision. This is essentially a "she said/he said" assault and sexual assault case. Credibility is the main issue in this case because the complainant and the defendant each gave diametrically opposed evidence about the essential facts relating to the charges before the court.

Background

[4] Although the complainant was born and raised in British Columbia, when she was about 20 years old, her parents took her to India and arranged a marriage for her to the defendant who was 22 years old. She sponsored him to come to Canada and he arrived in Canada a few years later. They lived with the complainant's parents in British Columbia for a couple of years and then moved to Malton, Ontario and subsequently bought their own home in Milton.

[5] They have two children who are eight and four years old. The complainant's mother came to live with them after the birth of their first child and then they sponsored the defendant's mother to come from India and she has lived with them since November 2006.

[6] The complainant works as a receptionist at a medical office and the defendant works as a long distance truck driver.

[7] Initially the relationship between the parties was quite good but became strained for a variety of reasons including the complainant's infidelity, the alleged assaultive behaviour by the defendant, their financial circumstances and the fact that the defendant's mother was residing with them.

[8] In January 2010 the defendant told the complainant that they needed to sell their home to pay off their debts. She agreed. Unbeknownst to the defendant, she rented an apartment for her and the children, opened her own bank account and ordered her own cheques.

[9] On March 14, 2010 the police were called to the home. The defendant had discovered she had ordered her own cheques and they were fighting about the proposed division of the proceeds of the sale of their home that was due to be sold at the end of March. The complainant told the defendant she wanted half of the proceeds, she knew she was entitled to half and did not want to discuss it further. The defendant persisted in arguing with her and her mother-in-law also intervened and told her that it was not a big deal if the defendant received all of the money. The complainant became angry and felt she was losing control. She threw a cup of milk she was holding into the sink and called the police. She advised the police that the defendant was being verbally abusive. She testified that it was not her intention to tell the police about the past incidents but the defendant kept insulting her, calling her obscene names and she told him if he did not stop she would tell the police what he had done to her in the past.

[10] The defendant testified that the police came within a few minutes of the call. He initially testified that the complainant told the police he was abusing her but then he testified that he did not hear everything she said.

[11] The defendant testified that the complainant told him that she couldn't breathe in the house and was taking the children and leaving. He told her that he was tired of this life because she "has been screwing me from all sides. She was cheating on me. She was spending too much money…She is doing everything she want to do…she never took my advice."

[12] The complainant was interviewed by the police and provided a video statement to them. The defendant was arrested and charged.

[13] The parties separated and retained counsel to assist in resolving their marital issues.

Evidence Regarding July 1 to 31, 2008 Assault

[14] The complainant testified that in about the third week of July 2008, the defendant confronted her about having an affair which she initially denied and then confessed to. The defendant had discovered that she had been having an affair with a former neighbour, Mr. G., for about eight years.

[15] The complainant testified that the children were at the park with their grandmother when the defendant confronted her about the affair. She was sitting outside on the patio and told the defendant she did not love him and he asked her to come inside the house to talk. She stood by the door in case she needed to escape, the defendant kept asking her to give him more details about her affair which she refused to give him. She followed the defendant into the living room where he proceeded to close the blinds. The defendant began to hit her on the head and accused her of having affairs with other men. He hit her with a closed fist about seven times everywhere randomly on her head for about five minutes. She was screaming. He then grabbed her by the ankles and pulled her down the 14 or 15 steps to the basement and continued to beat her, hit and punched her anywhere he could. The defendant had her on her knees and hit her again in the head. The defendant told her he needed to finish this off and was not going to go to work. She begged him that she needed more time with her youngest son, who was not quite a year at the time. He agreed that the children needed their mother and he would let her go this time. She estimated they were in the basement for 20 minutes. Either she followed him upstairs or he followed her to the front door, he then kicked her again. The defendant asked her what she wanted to do as he knew she could call the police and told her she should go ahead and that he did not care.

[16] The complainant testified that she did not report the incident to the police or tell anyone as she felt guilty about having an affair and felt the defendant was doing the right thing because she had hurt him emotionally. She hoped that after a few beatings it would be over.

[17] The complainant testified that the defendant would hit her on and off after this incident. She testified that he would never hit her in the face or anywhere anyone could see a mark, that he would kick her, push and throw her into walls and grab her hair. She testified that he would do this when his mother took the children to the park at the end of the day or sometime he would call her to come home for lunch, take her upstairs and assault her. He would tell her he was hitting her because of the affair, then mix it up and say it was not because of the affair but because she was treating his mother badly and not talking to his mother.

[18] The defendant denied this incident happened at all or that he ever assaulted his wife. He testified that if they got into an argument he would leave the house and go for a jog.

[19] He testified that in 2004 he was walking on his street when someone told him about a telephone booth that he could make free long distances calls. The person asked him where he lived and when he told him, he said that a girl named J. lives on that street and "she is really good and hanging around with guys", that she is hanging around with a guy who lives on that street and they call the street "J. Crescent." When the defendant asked his wife (whose nickname was J.) if she was seeing someone she denied it. He told her she could leave the relationship if she was unhappy. He could never confirm if she was seeing someone else as all of her telephone bills went to her friend's house.

[20] The defendant testified that sometime in July 2008, he borrowed his wife's cellphone as his was broken, she told him that if the phone rang not to answer it. He was suspicious and so he went through her telephone numbers. He testified that he recognized one of the numbers that was an American number used by truck drivers. It took him about 15 or 20 days to figure out that the number belonged to a male who use to live on their street. He found out that the person was the neighbour, Mr. G. who had lived on their street and had moved to Vancouver about three years. As there was no reason for his wife to have this man's telephone number he confronted her. Initially she denied the affair and then confessed that she had had a relationship with him about three years ago, she was sorry, she still loved him and asked him to forget about it.

[21] The defendant testified that he left for work as he wanted time to think and he believed he was gone for three to five days. He testified that his wife called him and said she was sorry. He told her to relax and take some time to think about what she wanted to do. He told her that, "humans make mistakes, gods don't".

[22] In cross-examination, he testified that it took him two to three weeks to figure out what was going on and he did not say anything to the complainant because he wanted to make sure what was going on and then talk to her "gently".

[23] He wanted to leave the marriage but was worried about his children would think. He also testified that he could forgive her but not trust her since she had been cheating on him for 12 years. He explained that he had figured out that the affair had been going on that long from the telephone records and the fact that she told him she had been with someone before they were married.

[24] In cross-examination, the defendant denied that he became angry or assaulted the complainant as punishment. He testified that he understood and told her it was her decision if she wanted to stay with him but if she did then she needed to end the relationship.

[25] In direct examination the defendant testified that after he confronted the complainant about her affair, he did not talk to her on the phone as he was away driving for several days and then when he returned they did not talk for over a month about anything important.

[26] However, in cross-examination, he testified that a few weeks later he found more telephone numbers and the complainant confessed that she had other affairs and gave him 16 or 17 other names. He testified that, "It doesn't matter to me if 2 guys or 200 guys; 1 guy, 100 or a thousand guys…it is the same thing." When questioned about why he had not testified about this in direct examination, the defendant replied that, "Today I am saying this...I meant she was having sex with them. The issue was her cheating, not the number of guys so I didn't mention it in-chief." The defendant further explained that he heard these things before (that is, in 2003 or 2004 when he testified about meeting the men in the street and telling them about a woman who lived on "J. Crescent"), he was calm then and it was all in the past and it did not bother him all he wanted was all of the information.

[27] When cross-examined about the sleeping arrangements after he found out about his wife's affair, he testified that they were "normal". There had been some evidence about how the children sometimes slept in their room as at one time there were two queen size beds in the room. He then testified that the complainant sometimes moved the beds around by herself and he then testified that he could not recall what the sleeping arrangement were after he found out about the affair.

Evidence Regarding the Assault Causing Bodily Harm on August 18, 2008

[28] The complainant testified that she returned home from work at about 5:00 or 5:30 p.m. the defendant was standing at the door and was intoxicated. After she was in the house, he locked the front door. The defendant followed her from the living room to the kitchen and then she went into the backyard and he continued to follow her. He demanded she come into the house which she did. When they were in the living room, he closed the blinds and began to hit her. He kicked her, punched her in the arm and pulled and bashed her into the wall. At some point she was on the floor between the coffee table and sofa, when she tried to get up the defendant kicked her into the table. She testified that the defendant kicked her for at least 11 minutes. She told him to stop as she couldn't get up but he did not take her seriously. He pulled her hair, picked her up by the hair and threw her against the wall.

[29] She testified that this assault went on for 45 minutes before his mother and the children walked in. She testified that his mother told him to stop and that they needed to work things out.

[30] The complainant testified that she had gone for a walk with her mother-in-law about two weeks prior and confided in her about how her son was beating her.

[31] The complainant testified that she stayed in the house that evening but the next morning she dragged herself to the shower and could not walk. The defendant drove her to the hospital. She told the hospital staff that she had fallen down the stairs because she felt guilty and did not want the defendant to be arrested. The defendant told her she could tell the staff anything she wanted that he did not care.

[32] She was examined at the hospital but it was not until several weeks later when she was still in pain, that she was diagnosed with a fracture at the back of her spine. She testified that following the injury it was difficult for her to sit and stand at work, that she couldn't drive a car without a lot of pain and that she still cannot sit for more than two hours without being in a lot of pain.

[33] Both the defendant and his mother denied this incident ever happened.

[34] The complainant was asked in cross-examination if she had not slipped down the basement stairs because she was carrying a bag of onions or potatoes which she denied. Neither the defendant nor his mother ever testified that the complainant told them this.

[35] The defendant testified that he asked his mother why his wife was not up in the morning and she told him that his wife had slipped on the stairs the day before. He then went upstairs and she was lying in bed and he saw a purple bruise. He testified that she told him she slipped on the basement stairs, "from the second step or something like that and she went right to the floor. I said, "Honey we should go the hospital." He explained that usually they all slip on the upstairs stairs that has a carpet but she told him that she slipped on the basement stairs and because there is no carpet she hit a sharp corner and that is why she had bruises.

[36] The defendant testified that the complainant had x-rays at the hospital; she was given painkillers and told to rest. He specifically recalled that while waiting at the hospital he called his mother to prepare some food that his wife liked and went home and returned with the food for her. He did not recall that she told him she had a fracture but she did tell him that she hurt her tailbone. She went to work the next day.

[37] The defendant testified that several years before the complainant hurt her tailbone when she fell in the kitchen and couldn't get up. She has had to use a heating pad since then because of the pain.

[38] J.H.2, the defendant's mother denied that the complainant had ever confided in her about her extramarital affair or told her that the defendant hit her. However, in cross-examination, she then testified that the complainant had told her that she had been cheating but did not tell her about any beatings.

[39] In direct examination, Ms. H. testified that one day when she was not home, the complainant fell or slipped on the stairs. She testified that everyone slipped on the stairs with the "cloth" on them. Then in cross-examination, she testified that the complainant had not told her where she fell. She also could not recall if she told the defendant when he returned home from work that the complainant had fallen down the stairs. She also denied knowing the complainant had gone to the hospital. But then testified that her son had called her to make some food for the complainant and that her son came home to pick it up and take it back to the hospital for the complainant.

[40] She testified that that after the hospital the complainant was fine; she went to work the next day where she sits all day. She was not aware the complainant went for more x-rays or that she had a fractured tailbone.

Evidence Regarding the Sexual Assault Between October to December 2008

[41] The complainant testified that the defendant forced her to have anal sex a few times but that she had never consented. They had discussed it at some time during their marriage and she told him that she was not going to do it. But now he felt he had the upper hand with her and told her that if she did not do it he would beat her up. She started to put the children to bed in their grandmother's room because she knew whenever he was home, something would happen.

[42] She testified about a specific incident that occurred sometime between October to December 2008. She recalled this incident because on this particular night, the children were sleeping in the other bed in their room and they never had sex before with the children in their bedroom. The defendant told her he wanted sex and she agreed as long as he did not do anything that would cause her discomfort. The defendant turned her around, her face was in the pillow and she was on her knees and he forced her to have anal sex. She did not scream or yell because her children were there. It was very uncomfortable and she was bleeding. She went into the bathroom and told the defendant that she was bleeding and told him to look at what he did to her. She went into the shower for an hour and a half and was crying. She was not sure where the defendant slept afterwards but she slept in her son's bed.

[43] The complainant also testified that there was another time when the defendant had forced her to drink alcohol. She had not eaten that day and never drinks and he again forced her to have anal sex. She testified that her mother-in-law knocked on their bedroom door asking what was wrong.

[44] The defendant denied that he ever forced the complainant to have sex against her will. He testified that he recalled having anal sex on one occasion. He testified that it was about 5:00 p.m. and he was lying down in the bedroom. The children had gone to the park with his mother. The complainant came into the room smiling and they had a little conversation and she lay down in the bed next to him on the right side. She began to tickle him, rub him and told him to get on his right side. They started to touch each other and she went into his pants and he went into her pants. She was only wearing a shirt and no bra. At some point they both removed their own clothing. After about 10 to 15 minutes the defendant testified that she wanted him to digitally penetrate her until she had an orgasm and then when he started to get on top of her as usual but before he put his penis in her vagina, she told him that she had a yeast infection. He then told her that they should not continue but she said they should try something different and do it backwards if he was comfortable with that. The defendant testified that he told her it was a "little weird" but if it would give her pleasure he would do it. He testified that they had seen it in movies. The defendant testified that after it was over he told the complainant that it was dirty and he did not like it. He ran to the washroom and took a shower and then the complainant cleaned herself with a tissue and took a shower. Afterwards, the complainant returned to bed and was joking around with him and asked how he liked it. He told her that he couldn't do it again, he did not enjoy it and they never had anal sex again.

[45] In cross-examination, when the defendant was asked when this incident happened, he stated that it was not in July 2008 as he did not talk to the complainant for about a month or so, and then he stated that it was probably not until September so he probably would agree with the complainant that it happened sometime between October and December 2008.

[46] The defendant testified that they had seen anal sex in the movies and it never seemed painful and that the complainant had not complained that it was painful. He testified that it was never mentioned in gay marriages as being painful. He then testified that they took their time and used lubrication. When asked why he had not mentioned the use of lubrication in his direct evidence despite all of the details he gave, he responded that no one asked him.

[47] In cross-examination the defendant denied that he used anal sex to control the complainant. He denied that the complainant told him she was in pain, bleeding or that she took an hour and half shower after the incident. He maintained that it was her idea to have anal sex despite the fact that this would have been within a couple of months of fracturing her tailbone, having a pre-existing back injury and within about a year of the birth of their youngest son.

[48] When the defendant's mother testified she denied that she ever banged on their bedroom door and asking them what they were doing. She then testified that she "did not see such things" but never explained what she did not see.

[49] When she was cross-examined about the sleeping arrangements she testified that the children usually slept with her in her room or their parents' room. She testified that she was not aware of the defendant moving out of the bedroom but then stated that when the complainant told the defendant not to touch her, they slept separately but she did not know when this happened. She testified that she did not know why the defendant moved out of their bedroom but then stated that he told her that the complainant told him not to touch her.

The Law

[50] As in any criminal case, the defendant is presumed innocent until proven guilty. The defendant does need to prove anything. The Crown must prove the essential elements of the offence beyond a reasonable doubt. It is not enough for me to believe that it probably or likely happened the way the Crown said it did. Proof of probable or likely guilt is not proof beyond a reasonable doubt. Conversely the Crown is not required to prove its case with absolute certainty. However "the reasonable doubt standard …falls much closer to absolute certainty than to proof on a balance of probabilities." (R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at p. 545).

[51] This is a very high standard and for good reason. As Cory J. said in R. v. Lifchus, 118 C.C.C. (3d) 1 S.C.C. at p. 6: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt…is one of the principal safeguards which seeks to ensure that no innocent person is convicted."

[52] The rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it does not leave me with a reasonable doubt, I must consider whether or not the evidence I do accept convinces me of the guilt of the defendant beyond a reasonable doubt. (See R. v. W.(D.), [1991] 1 S.C.R. 742).

[53] I recognize that this is not a civil case where the result may be determined on the basis of which of the two competing versions of events I prefer, or which is more probable, or which of the two essential witness appears more credible. As the Ontario Court of Appeal explained in R. v. Hull, [2006] O.J. No. 311 at para. 5:

W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[54] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[55] I have also reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness's testimony.

[56] In applying these principles to this case, I must assess the evidence of the defendant in light of the totality of the evidence, including the evidence of the complainant. As I previously indicated this is basically a he said/she said case.

[57] In R. v. Jaura, [2006] O.J. No. 4157 (Ont. C.J.), Justice Duncan, thoughtfully applied this reasoning and these authorities in cases pitting a complainant against an accused, he concluded that, "a trial judge can reject the evidence of an accused and convict solely on the basis of his or her acceptance of the evidence of the complainant, provided that the judge also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence."

Position of the Parties

[58] The defence submits that the defendant and his mother gave credible and reliable testimony that should be accepted by the court. It is submitted that the precision in which the complainant gave her evidence for example, giving very specific times as to how long the assaults lasted, the number of times the defendant hit her, or how long she was in the shower after the alleged sexual assault raised issues as to her truthfulness and should be scrutinized as the complainant had carefully tailored her evidence and that it defied common sense.

[59] The defendant also submits that since the complainant was born in Canada her evidence about the cultural pressure on her to stay in the relationship or why she did not report the alleged assaultive behaviour of the defendant should not be believed.

[60] It is also submitted that the complainant fabricated the allegations and had a motive to lie in order to gain an advantage in their marital dispute.

[61] It is also submitted that the defendant's mother corroborated the defendant's version of events and contradicted the complainant's version. At the very least the defendant submits that the defendant's evidence and the evidence of his mother should raise a reasonable doubt as to his guilt and he should be acquitted on all charges.

[62] The Crown submits that the defendant was very angry when he found out that his wife had a long standing affair and as a result he assaulted her and exerted his power over her and humiliated her by forcing her to have anal sex. It is submitted that the complainant gave her evidence in a straightforward and reliable manner. The Crown conceded that there were three areas of concern in the complainant's evidence namely, her character in deceiving the defendant about her extramarital affair, the historical nature of the offences and the fact that she lied to the hospital staff about how she sustained her injuries and reported that she hurt her tailbone falling down the stairs. However, the Crown submits that based on the totality of the evidence none of these concerns raise any doubt about the weight to be placed on her overall credibility. The Crown submits that it has met its burden of proof on all of the charges and that the defendant should be convicted.

Analysis

[63] Although I found the complainant to have testified in a straightforward manner and to be sincere, nevertheless I must carefully scrutinize her evidence carefully. As a matter of convenience I intend to examine the concerns, conceded by the Crown, regarding the complainant's evidence.

[64] The complainant had an extramarital affair and deceived the defendant for about eight years. I have considered that in her evidence the complainant although admitting she had an affair then tried to justify the affair by stating that she fell in love. But this contradiction must be seen in the context of the guilt and shame she felt for betraying her husband.

[65] The defendant testified that he met someone at a phone booth who knew about the complainant's reputation and who called their street "J. Crescent" the implication being that she was a woman of loose character. When confronted by the defendant the complainant admitted she denied having an affair. When confronted again in July 2008, she finally admitted the affair. However, although it appears that the affair went on for a considerable amount of time, on closer scrutiny the complainant testified that she only saw Mr. G. once a month or so for about four years, that she never saw him in her home and that mostly it was an over the telephone relationship. When his family found out about the affair he moved to Vancouver. The complainant also testified that she did not have a great deal of time to see Mr. G. as she worked and once the children were born either her mother or mother-in-law lived with them. Nevertheless, even if the relationship was not as long or as intimate as it would at first appear, the complainant still deceived the defendant.

[66] The defendant grossly exaggerated the extent of the complainant's extramarital affairs. In his direct examination he spoke about her affair with their neighbour Mr. G. He then he testified that she confessed to him about having affairs with 16 or 17 other men. The complainant was only cross-examined about meeting a police officer she over the internet. She agreed she met someone one time for an orange juice by denied having any other affairs. She was never cross-examined about this so-called confession about having affairs with 16 or 17 men and the manner in which it came out in cross-examination suggested it was a complete fabrication.

[67] The defendant also testified that the complainant had an affair for 12 years but then when cross-examined about the basis for this belief, he could only reply that he thought this because she told him she met someone before they were married.

[68] The defendant testified that it did not matter to him if the complainant slept with one or two thousand men. He denied feeling humiliated by the complainant's affair. He took every possible opportunity to disparage and discredit the complainant's character as a woman of loose sexual behaviour. There were also contradictions in his evidence about when and how he found out about the affairs. Initially he testified that once he found out about the affair he did not speak to her for over a month and a half but then he said once he obtained the telephone bills he confronted about the affair but then he said he did not confront her and it did not matter to him that she had the affair. The defendant maintained that he never became angry but was only sad and wanted to give the complainant time to consider if she wanted to stay in the relationship and all he wanted was to know all of the details.

[69] I do not find that the fact that the complainant had an affair and deceived the defendant bears on the reliability of her evidence about the assaultive behaviour of the defendant.

[70] The fact that the complainant did not tell anyone about the defendant's alleged assaults against her must also be considered. The complainant testified that she felt a lot of guilt and believed she deserved to be beaten. It was not until she called the police because the parties were having a verbal dispute about splitting the proceeds of the sale of their home that she reported the historic incidents. The complainant testified that even then she did not intend to tell the police about had happened but the defendant wouldn't stop berating her and when asked by the police she spontaneously told them what had happened in the past. The complainant was not cross-examined about the statement she made to the police or any inconsistencies in that statement as compared to her testimony in court. I therefore draw the inference that her in court testimony was consistent with the statement she gave to the police.

[71] It is the defendant's position that the complainant made up all of the allegations as she wished to enhance her position to receive her half a share of the proceeds of the sale of the matrimonial home and to gain an advantage in the family court proceedings. However, the complainant testified that she was aware of her rights to receive half of the share of the proceeds before the police were called and this is essentially what they were arguing about. If the complainant wished to gain an advantage in some future family law proceedings then it would have been expected that she would have arranged to simply go the police and make a statement not that these historical allegations would be disclosed after the police attended at the home as a result of a verbal argument.

[72] Based on the defence theory, the complainant would have to have been able to make up all of the details of the various incidents on the spur of the moment as she was interviewed and gave her statement to the police almost immediately after they attended at the home. This version of events would then also require her to be consistent with recalling the events almost a year later. The complainant's version of the events regarding all of the charges was never seriously contradicted in cross-examination.

[73] It is submitted by the defendant that the complainant could have left the marriage at any time and that her evidence that she had a lot of family pressure to stay in the relationship should be disregarded as untruthful.

[74] I have also considered that the complainant contradicted herself several times about her inability to leave the defendant. By March 2010 when they were arguing about the proceeds of the sale of the house, she had already secured a place for herself and the children whereas previously she testified that she could not leave the defendant. At times she testified that he told her she could leave the relationship but not take the children with her and then at other times she testified that he wouldn't let her leave. The complainant was never cross-examined as to the sequence of events and if these discussions took place at different times.

[75] I have considered these inconsistencies in the complainant's evidence but in my view they run the gamut of natural human reactions and emotions that both the defendant and the complainant felt. In addition to the cultural pressures to stay together as a family unit it is not surprising that the defendant told the complainant to stay and then to leave at different times. It is also understandable that the complainant would have taken time to make the serious decision to leave the defendant and take the children with her.

[76] Although the complainant was born in Canada, this was an arranged marriage and the complainant testified that she could not have easily left the marriage. When the complainant finally told her parents what was happening and that she was separating from the defendant, she became estranged from her parents and in particular her relationship with her father broke down. Although she is still estranged from her father, the defendant and his mother are still on good terms with both of her parents.

[77] The complainant testified that when she told the defendant's mother about the beatings from the defendant, her mother-in-law wanted to keep it in the family and try to help them stay together. Although the defendant's mother denied that the complainant ever confided in her about the beatings and denied witnessing them, nevertheless she did confirm that the complainant had brought shame to the family.

[78] The defendant's mother was quite adamant about the shame the complainant brought to the defendant as she described it, "He could no longer sit among the boys". She testified about how a woman could raise the stature of a man and conversely she could bring shame to her husband and that essentially, the complainant had humiliated the defendant because of the affair she had.

[79] The cultural pressure on not only the complainant but the defendant to stay in the relationship and work out their differences was therefore corroborated by the defendant's mother's testimony. I find that the complainant's evidence about how she felt she deserved to be beaten and how shameful she felt about having an affair is a truthful and believable explanation as to why she did not report the assaultive behaviour of the defendant. I also rely on the fact that it is not unusual in domestic violence cases for there to be delayed disclosure by a complainant.

[80] In assessing the complainant's credibility I have also considered the fact that when the complainant attended at the hospital on August 18, 2008 she told the hospital staff that she fell down the stairs and not that the defendant assaulted her. The defendant and his mother's evidence regarding this incident were inconsistent with each other. Although they both testified that the complainant sustained the injury to her tailbone by falling down the stairs. Their evidence contradicted each other regarding what or how this happened.

[81] In summary, although there were some internal inconsistencies in the complainant's evidence regarding the details of her extramarital affairs and why she did not leave the defendant, I do not find that these inconsistencies detract from her overall credibility or provide a motive for her to exaggerate the incidents. Similarly the delay in reporting the alleged assaults and the sexual assault to the police do not detract from her credibility when seen in the context of domestic violence in general and in the context of the cultural background of the complainant.

[82] Overall, in assessing the defendant's evidence, I did not find him to be a believable witness. His evidence was both internally and externally inconsistent. At times he seemed to be making up the evidence as he went along. His evidence about his reaction to finding out about his wife's affair and her desire to have anal sex shortly thereafter did not make any logical sense. His denial of being humiliated by his wife having an affair was contradicted by both the complainant and his mother. There were inconsistencies between what he said in direct and then what he said in cross-examination and embellishments he added when it was clear that his evidence made no sense.

[83] I also found the evidence of Ms J.H.2, the defendant's mother to be very problematic. It was clear that she would say anything to protect her son. The only time I found her testimony to be truthful was when she spoke of the shame the complainant's behaviour had brought to her son and their family. She would not even concede facts that her son admitted. For example, she said her son never drank alcohol and that they never kept any alcohol in the home. The defendant himself admitted that not only was there alcohol in the home but that there was a time when he drank to excess when he found out about his wife's affair. She denied knowing if the complainant went to the hospital and then when confronted in cross-examination, admitted not only was she aware she went but she had even made food for her that the defendant picked up and took to the complainant. J.H.2's evidence was heard over two days and it changed remarkably between those two days. Her evidence regarding how the complainant sustained injuries on August 18, 2008 was evasive and contradictory. Initially she testified that the complainant told her she fell on the stairs with the carpet, being the stairs to the second floor, as everyone in the family slipped on those stairs. The next day she testified that the complainant never told her how she fell. She then testified that she could not recall if she told the defendant about where the complainant fell but the previous day she had testified she told the defendant. Defendant had testified that his mother told him the complainant slipped on the stairs when he asked the next morning why she was not up.

[84] In assessing J.H.2's evidence I have also taken into consideration that her testimony was given with the assistance of an interpreter and whether or not this in some way affected her testimony. However, the interpreter was very carefully in this case and several times indicated to the court that he was giving a literal translation of what J.H.2 said and at other times the interpreter asked her to repeat her answer to make sure that he understood what she was saying. No issue was raised by the defendant as to any concerns about the quality of the interpretation or that the witness had any problems in understanding the interpreter.

[85] I turn now to my findings on the specific charges before the court. I have previously referred to my credibility findings regarding the complainant and the inconsistencies in the testimony of the defendant and his mother, J.H.2 and the complainant and do not intend to repeat those in detail again with respect to the specific charges before the court.

Count 1: Assault Between July 1 to 31, 2008

[86] The defendant's evidence is an outright denial that this assault ever happened. According to the evidence of the defendant and the complainant the defendant confronted the complainant about her affair during this time period. The defendant's explanation that he was sad, calm and when he confronting her about the affair he spoke to the complainant "gently" and that it did not matter to him if she had affairs with one or a thousand men was totally unbelievable. His denial of being angry or humiliated by her betrayal defied common sense. He would not even admit to arguing with the complainant. His mother was very emotional when she testified about how that the complainant's behaviour brought shame to her son. The defendant's feigned forgiveness and understanding of the complainant's affair did not have the ring of truth to it especially since he testified about how he spent weeks trying to find out the name of the male whose telephone number she had in her phone. I do not accept his evidence nor does it raise a reasonable doubt that the assault did not happen.

[87] The circumstances surrounding the complainant's disclosure, the detailed contents of that disclosure and the manner in which she related the assaultive behaviour of the defendant convinced me of the reliability of her testimony. The complainant's evidence that the defendant was angry and hit, pushed and punched her was not shaken on cross-examination. As previously indicated I have considered the frailties in her evidence but they do not detract from her overall credibility.

[88] I have also considered why the complainant would concoct such a detailed story. While the defence is not required to advance a theory as to why the complainant would have concocted this incident, the theory that she made it up to gain some advantage in the marital dispute did not make any sense nor was there any evidence as what advantage she could have gained or did gain. I find that there is absolutely no evidence before me to suggest why the complainant would have made up such a story if it were not true.

[89] I am satisfied, beyond a reasonable doubt, that the defendant assaulted the complainant between July 1 to 31, 2008 and that the Crown has met its burden of proof.

Count 2: Assault Causing Bodily Harm on August 18, 2008

[90] There was no dispute that the complainant sustained bodily harm on August 18, 2008. The issue again is one of denial. The defendant denied that he assaulted the complainant and caused her to suffer a fractured tailbone. It is his position that she injured her spine when she accidentally fell down the stairs.

[91] The defendant's denial of this assault is not believable nor does it raise any reasonable doubt. The defendant's mother denied that she saw the defendant beating the complainant and told him to stop. They both gave different versions of their understanding of how the complainant sustained this injury. They both contradicted each other on almost every detail.

[92] The complainant's evidence was again straightforward and detailed with respect to how the defendant assaulted her and caused the injuries. Her evidence was not shaken in cross-examination. The defendant submitted that her version should be questioned because she was very precise as to how long the various components of the assault lasted. But I do not find that this detracted from the complainant's testimony, she was trying her best to be exact and recall as many of the details of the assault as possible.

[93] I have also considered the contradiction in the evidence of the complainant and J.H.2 regarding this incident. The complainant testified that her mother-in-law walked into the house when the defendant was assaulting her and told him to stop and that a few weeks before she had gone for a walk with her mother-in-law and told her about the defendant assaulting her. J.H.2 denied that the complainant ever told her that her son was assaulting her. But I have considered that initially J.H.2 even denied that the complainant walked with her. She denied that the complainant ever confided in her about anything and then admitted that the complainant told her about her affair. J.H.2 said she knew the law in Canada and would have reported her son to the police if she ever saw him hitting the complainant. But then spoke of keeping things in the family and working them out and spoke about the shame the complainant brought to the family and how she had rendered her son "a zero". She denied seeing any injuries or that the complainant was in pain after the incident. The defendant contradicted her as he saw the bruises and as a result of the complainant's injuries and her pain and took her to the hospital. I reject her evidence about this incident as it was clear she would say anything to protect her son.

[94] I find the Crown has met its burden of proof with respect to this charge and that the defendant is guilty of assaulting the complainant and causing bodily harm to her on August 18, 2008.

Count 3: Sexual Assault Between September and December 2008

[95] The defendant submits that the parties engaged in consensual anal sex on one occasion between these dates. It was further his evidence that they had anal sex only once at the initiation of the complainant. Based on the defendant's version of events, the complainant, within several months of being confronted with and admitting to having a long standing affair and being in pain because of a fractured tailbone initiated sexual intercourse with him and then told him she had a yeast infection and suggested they try anal sex. The defendant gave a very detailed description of this event in his direct evidence. But then when cross-examined about the pain anal sex would have caused the complainant especially because of her recent fractured tailbone and her pre existing back injury, he spontaneously testified that they used lubricant. It was patently obvious that the defendant realized his version was improbable and then added the detail about using lubricant. He then tried to explain why he had not mentioned this in his direct testimony by saying no one asked him. I find defendant's evidence regarding this charge was totally unbelievable and defied common sense and his evidence does not raise a reasonable doubt.

[96] The complainant's evidence was again not shaken or seriously challenged in cross-examination. The complainant testified that the defendant had forced her to have anal sex more than once but she gave a very detailed version of one incident that occurred while the children were sleeping in the other bed in their bedroom. She described how she could not scream out because her children were in the next bed. The physical pain she endured and the emotional trauma of the event were palpable as she recalled and testified about the event.

[97] I am satisfied on the facts that I have found, that this was not consensual and that the defendant forced the complainant to have anal sex with him. The Crown has met its burden of proof beyond a reasonable doubt on this charge.

Verdict

[98] In the result, the defendant R.H. is found guilty on all three counts.

Released: May 9, 2012

Signed: "Justice R. Zisman"

Footnotes

[1] Dates on the Information amended to conform to the evidence.

[2] This was the literal translation and assumed by the court and counsel to mean "carpet".