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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: 2016-11-17

Court File No.: Brampton 15-6179

Between:

Her Majesty the Queen

— AND —

S.T.

Before: Justice J.M. Copeland

Heard on: June 16, 17 and September 20, 2016

Reasons for Judgment released on: November 17, 2016

Counsel

S. Stackhouse — counsel for the Crown

R. Rota — counsel for the defendant S.T.

COPELAND J.:

Introduction

[1] S.T. is charged with two counts of uttering a threat to cause death, and one count of sexual assault. The complainant is his wife, M.T.. The two were separated at the time of the trial. It is alleged that Mr. S.T. uttered threats to Ms M.T. on or about May 18, 2015 to kill her and to kill their son, who was a little over one year old at the time. The sexual assault count involves an allegation of forced sexual intercourse on or about April 4, 2015.

[2] The only witness for the Crown was the complainant. Mr. S.T. testified in his defence. Thus, the assessment of whether the Crown has proven the charges turns on a consideration of the credibility and reliability of the evidence of the complainant and of Mr. S.T., assessed against the reasonable doubt standard.

The Complainant's Evidence

Examination-in-chief

[3] Ms M.T. testified that her marriage to Mr. S.T. was arranged by her parents and his uncle. She was living in Canada and was a Canadian citizen. Mr. S.T. was living in Sri Lanka and was a citizen of Sri Lanka. She first met him in November 2011 in Sri Lanka.

[4] Mr. S.T. came to Canada to live in November 2012. They initially lived at her sister's house in Markham. The relationship with Mr. S.T. was good when he first arrived.

[5] Subsequently, Ms M.T. bought a condo in Scarborough, and she and Mr. S.T. moved into it on February 1, 2013. Ms M.T. testified that they were starting to have difficulties in their relationship by that time. Mr. S.T. was becoming suspicious, and commenting on her appearance and suspecting that she was having relationships with other men. When he would come and pick her up at the subway from work, he would come in and see who she was coming out with and who she was talking to. She told the defendant that she trusted him, and he had to trust her, and that she would not cheat on him.

[6] The complainant testified that it was around this time that the defendant started to hit her. He had hit her once when they were living at her sister's home. He hit her on February 1, 2013, the day they moved into the condo. He hit her other times, but she did not remember the exact dates. She said he would slap her in the face, or hit her with his legs when she was in bed, or throw things at her, like a plate or a baby bottle or his cell phone. This happened during her pregnancy and after. It would happen when the defendant was angry. The complainant would not fight back, would tell him to move away from her, or later if she had her son with her she would go into the washroom with him.

[7] Their son was born on […], 2014. Because of some medical issues, he was in the NICU for 22 days. She was discharged from hospital after 2 days, but then because of pain from having a C-section, which caused her difficulty travelling to see her son in hospital, the complainant went back into hospital after 2 days home, and stayed in hospital until their son was discharged. When she and their son left the hospital, they went and stayed with her parents for a month, and then moved back to the condo in Scarborough.

[8] Her relationship with the defendant continued to deteriorate. He was critical of her physical appearance. She had to pump breast milk because their son was "tongue-tied" and could not breast feed. The defendant would accuse her of showing off her breasts when she pumped breast milk for their son, and tell her she should be ashamed because she was unable to breastfeed their son. The defendant continued to hit her during this time. She never called the police during this time. On one occasion a neighbour called police when they were arguing. The police attended. She told them he was being aggressive, but did not give them all the details. She was afraid to make a report to police because if he was arrested, there would be no-one to take care of his family back home, because he was the only person working and sending money to his family in Sri Lanka. The police gave him a warning and no charges were laid.

[9] In October 2014, the complainant moved out of the condo she shared with the defendant. She testified that the reason she moved out was that he had threatened to poison their son. In their culture, it is tradition for an uncle (her brother) to feed a son his first solid food in a rice feeding ceremony. The complainant was not on good terms with her brother and did not want to have the ceremony. The defendant planned the feeding ceremony without her knowledge. She testified that the defendant threatened to poison their son in the feeding ceremony and then blame it on her brother so her brother would get charged. The complainant testified that she moved out of the condo with their son in order to protect her son's safety, and went to a shelter. She testified that she did not call police at that time because she was scared and did not know what to do.

[10] Ms M.T. stayed in the shelter for 5 days, and then went to stay with her parents, and later moved to Guelph with her son. She sold the condominium in Scarborough in February 2015.

[11] She next had contact with Mr. S.T. in February 2015. He wanted a second chance, and had contacted her family members, particularly her father. He said he would not harm her and her son again, and that he had grown up without a dad and wanted his son to have a dad. The defendant promised her father (in her presence) that he would take good care of her and their son, if only her father could continue to have contact with them, but not her mother or siblings. Ms M.T. decided to return to the relationship for her son's sake, and because her father was pressuring her to go back.

[12] She moved in with the defendant at his apartment in Brampton in early March 2015. She was working in Guelph at the time, and found a daycare for their son in Brampton.

[13] About a week after she moved in the defendant started calling her names, saying she was a bad mother because she let her son sleep in a different room alone. He threatened to hire a hit man to kill her and her son, and said he would be out of the country so the police would not blame him. He also said she was not a good wife because she did not want to have sex with him. He began throwing things again. He would hit her on the leg with his leg when she was sitting down. He would push her. Once he tried to punch her.

[14] Ms M.T. testified that she wanted to leave, but she did not want her son to be without a father. So she stayed for her son.

[15] Since she had moved back in with the defendant, the issue of sex had been an ongoing problem, with the defendant asking for sex, and the complainant saying no. She did not want to have sex with him because she did not want to have another baby then, and wanted her son to grow up a little first. So, she slept in the bedroom of the apartment alone and with the bedroom door locked. The defendant slept in the living room. She testified that the day before the sexual assault, Friday evening, the defendant had wanted to have sex, and she said no, She went into the bedroom and locked the door. He forced the door and broke the lock.

[16] Ms M.T. testified that the defendant sexually assaulted her on April 4, 2015, the Saturday of Easter weekend. They were in the apartment in Brampton in the bedroom around 7:30 in the morning. She was lying on the bed, waiting for their son to wake up. He said he wanted to have sex. She said she did not want to and that she pushed him away. She was wearing a T-shirt and pyjama pants and a bra and underwear. He was wearing a T-shirt and sweat pants. When she said no to sex, he said: "you have to do it, it's a wife's duty to make a husband happy. You got to do it." He held her down with one hand on her chest, and removed her pants and her underwear with his other hand. Then he held her down with two hands at her wrists with both her hands on the bed at shoulder height. She was on her back. He got on top of her, and lifted her feet and began to have vaginal intercourse. She told him it to stop and that it was painful. He would not listen and he continued having intercourse. He did not use a condom. The intercourse lasted about five minutes. He ejaculated, some inside her and some on the bed. He left and went to the washroom. She lay on the bed because she was in pain. Then she got dressed and dressed her son. She had previous plans to go to her parent's for lunch that day, so she left and went to her parents' home.

[17] The complainant testified that she was in pain and stayed in bed for most of the next two days, and also had vaginal bleeding for two days.

[18] She did not tell her parents what had happened at that time. But she told her sister in an email after a couple of days. She testified that she did not tell her parents about the sexual assault because her she was concerned that her father would feel guilty because he forced her to go back to the marriage so people would not say bad things about their family. She testified that in Tamil culture, if a woman separates from her husband, the community will think bad things and not have respect for the woman or for her family.

[19] Ms M.T. testified that on May 18, 2015, Mr. S.T. threatened to kill her and their son with an iron rod and throw them in the dumpster. The threat was made after he had wanted to have sexual relations. They were in the bedroom in the apartment. It was 11 or 11:30 in the morning. She said no to sexual relations. He came close to her. She pushed him away. He got mad and came to punch her, bringing his fist up to her face, but she moved out of the way and he ended up punching the bed frame. Then he said he was going to go away, and then come back and kill her and their son with an iron rod and throw them in the dumpster. She knew that the threat happened on the Victoria Day weekend.

[20] The defendant got dressed and went out. Ms M.T. was scared by the threat because the defendant's tone was very forceful, and she was scared he would actually carry out the threat. That time and the time involving the feeding ceremony in October 2014 were the only times the defendant had threatened their son. She called the defendant's aunt and uncle to let them know what had happened, and she took their son and left the apartment.

[21] Ms M.T. went to her sister's home in Markham. She did not call the police. She had called her father, and he told her to go to her sister's, and not to call the police, and they would discuss it later.

[22] Ms M.T. did not have contact with Mr. S.T. after leaving the apartment. He texted her several times, but she did not return his texts or call him.

[23] On May 24, 2015, Ms M.T. contacted the police. She went to the police station because Mr. S.T. had sent her a text to get her stuff out of the apartment, or else he would throw her stuff out, and to come alone. She was scared, so she contacted police to attend with her to get her things from the apartment. She was not planning to tell the police about the things Mr. S.T. had done. The police asked why she needed assistance removing her things from the apartment. That was when she told them about the threat and the sexual assault, and said she could not go and get her things alone for safety reasons.

[24] At the time of the trial the complainant and the defendant were separated. Family court custody proceedings involving their son were ongoing, but at the time she had full custody and he had supervised access to their son.

Cross-examination

[25] In cross-examination the complainant agreed that arranged marriages are an important Sri Lankan cultural tradition. She agreed that she first met the defendant in May 2011 in Sri Lanka on her birthday, at a temple and then at the home of one of her relatives. She met with the defendant again in June 2011, still in Sri Lanka. After she returned to Canada, they spoke on the phone.

[26] She agreed that the marriage was arranged to take place on November 13, 2011. When she arrived in Sri Lanka for the wedding, she cleared customs initially, but then a second customs officer stopped her outside of the airport terminal, and asked her where she was coming from. The defendant spoke to the customs officer and assisted her in clearing customs. The complainant denied that the reason she had a problem at customs was because someone else had previously travelled using her passport. She said that customs was looking for a person who had similar features to her.

[27] After the wedding, the complainant returned to Canada. The defendant stayed in Sri Lanka to wait for his Canadian visa. During this time they communicated by phone, Skype and Facebook.

[28] The defendant obtained his visa in November 2012. He told the complainant over the phone that he had got his visa. The complainant denied the suggestion put to her in cross-examination that in that telephone call she asked the defendant when he was going to pay her the $50,000. However, she said that later when they were living in Brampton around May 2015, they were having an argument, and he was calling her names and saying he wanted to make her watch him having sex with another woman. She said to him that she had sponsored him, and worked two jobs to support him, and now he was giving her trouble. She said to him it would have cost him $50,000 to come to Canada if she had not sponsored him. But she testified that she never asked him for $50,000.

[29] The complainant testified that the defendant arrived in Canada on November 16, 2012. Her father and sisters and brother went to pick him up at the airport. The complainant had tried to get the day off work to go to the airport. She only got a half day off, and then was too late to go to the airport. She met the defendant at her sister's house when he arrived there, and they went to temple that evening.

[30] Initially when the defendant came to Canada they lived at the complainant's sister's house. The complainant then bought a condo. She got the keys on January 31, 2013, and they had a housewarming ceremony on February 1, 2013, which the defendant arranged.

[31] The complainant testified that she and the defendant began having arguments when they were still living with her sister. She testified that she believed he began hitting her when they were living with her sister, but she could not recall for certain. She was certain he hit her when they lived in the condo in Scarborough. She denied the suggestion that the defendant never struck her.

[32] Their son was born on […], 2014. Because he had some medical issues, he had to stay in hospital for 22 days. She agreed that she stayed in hospital in order to be close to their son and take care of him.

[33] The complainant agreed that typically in Sri Lankan culture when a baby comes home there is a ceremony where the baby is put in its cot. Typically the baby's uncle is involved in that ceremony. The defendant invited her brother for this ceremony without her knowledge. But then she was told that her brother would not come because his wife wanted to complainant to apologize to her for some reason. She denied the suggestion that she did not want her brother at the ceremony. She said she did not talk to her brother, but they got along.

[34] The complainant denied that family was a source of tension between herself and the defendant. She denied that she was upset at him for inviting her brother. She denied that she locked the defendant out of their home. She denied that she threatened the defendant with a knife, and asked him for $50,000. She denied that when he came home she threw his clothes in the hallway and told him to leave and sleep in his car. She denied that the defendant called her father to intervene and get her to open the door. However, she did say that on a different occasion, she called her father in the middle of the night around 1:00 a.m., because there was banging at her door (of the condo in Scarborough). Whoever was banging put their hand over the peephole so she could not see who it was. She called out and asked who it was. When the person did not reply, she called her father and asked him to come over because she was scared.

[35] The complainant agreed that she moved out of the condo in Scarborough in October 2014. She denied that she moved out because of family tension in relation to the feeding ceremony for their son. Rather, she said she moved out because the defendant had threatened to poison their son. She said she did not know about the feeding ceremony because the defendant had planned it. She first heard of the planned ceremony when the defendant told her it was going to happen in a week, and he threatened to poison their son at the ceremony and blame it on her brother. She also denied that suggestion that when they were arguing, she threatened to tear her clothes and tell the police that the defendant did it. She denied they argued that day. Rather, he told her about the ceremony, and threatened to poison their son. Then the defendant went to sleep, and she took their son and left the house.

[36] The complainant went to a shelter with their son. She was later told by her parents that the defendant had moved out of the condo in Scarborough.

[37] The complainant sold the Scarborough condo in February 2015. She agreed that to close the sale of the condo she needed the defendant to sign the paperwork. She took him to sign the paperwork with her lawyer. She was at her parents' home. The defendant came over to see their son. He said he wanted a second chance. She said she wanted to sell the condo. Then they went to the lawyer's office and he signed the paperwork.

[38] She testified that she did not remember taking his wallet and copying his driver's licence. She agreed that before going to the lawyer's they went to Tim Horton's for tea. She denied that while at Tim Horton's she threatened to tear her dress and tell two police officers there that he had assaulted her if he did not sign the papers for the house. She denied she ever threatened him. She also denied that he was unwilling to sign the paperwork for the sale of the condo. She agreed that it was at the lawyer's house that they signed the paperwork for the sale of the condo. She agreed that it was true that the lawyer would not release the funds from the sale of the condo without the defendant's signature.

[39] The complainant agreed that she moved back in with the defendant on […], 2015, in his apartment in Brampton. The complainant agreed that she moved back in despite the defendant's earlier assaultive behaviour. She agreed that between October 2014 and March 2015, she did not make any report to the police alleging that the defendant had assaulted her. She disagreed with the suggestion that the defendant never assaulted her prior to when she moved back in with him in March 2015.

[40] When she moved back in with the defendant in March 2015, she slept in the bedroom, the defendant slept in the living room, and their son slept in the den. There was a lock on the bedroom door. The complainant testified that she did not install the lock, but that it was already there when she moved in.

[41] Crown had examined the complainant about an incident the evening before the alleged sexual assault where the complainant said the defendant wanted sex, and she had said no and locked herself in the bedroom, and then he tried to force the door and broke the lock. I allowed the defence to cross-examine the complainant about his version of the events of the night before the sexual assault, although it involved questions about whether there was sexual contact that night. I gave brief oral reasons for that ruling under s. 276 of the Criminal Code, which I will not repeat here. The complainant denied that they had any sexual relations the night before the sexual assault.

[42] In relation to the day the complainant said she was sexually assaulted, she denied the suggestion that she approached the defendant in the bathroom. She denied that she took pictures of the defendant without his clothes on. She denied that she instigated sexual contact with the defendant in the bathroom. She denied that the defendant stopped and said she needed to bathe, and she did so. She denied that after starting things in the bathroom, they went into the bedroom and continued foreplay and then had consensual sex. She maintained her evidence that the defendant had tried to punch her in the bed. She maintained her evidence that the defendant had broken the lock on the bedroom door the evening before, and denied that she was the one who broke the lock.

[43] She maintained that the defendant sexually assaulted her that day. She agreed that afterwards she left with their son for the pre-planned family event of her grandmother's death anniversary, and the defendant went to work. She agreed that she did not tell anyone at the family event that the defendant had sexually assaulted her. She denied that she did not tell anyone because the sex had been consensual. Rather, she said she did not tell anyone because she was scared. She told them she was not feeling well and lay down upstairs. People came in and asked if she was okay, and she told them she had stomach pain. Her sisters watched her son and he played with her nieces. She returned home to Brampton that evening.

[44] In relation to the events of May 18, 2015, the complainant denied that the defendant did not threaten her that day. She denied that they had an argument because she hit him on the head with her foot while she was on the bed and he was playing on the floor with their son. She denied that she grabbed a broken piece of wood off the bed and hit the defendant with it. She denied that the defendant said he was going to throw the stick into the dumpster. She maintained that the defendant threatened to kill her and her son with an iron rod and throw them in the dumpster, and denied that she hit him.

[45] The complainant agreed that around May 4, 2015 she spoke to the defendant's uncle. She denied that she demanded that he pay her $50,000 to $100,000. Rather she said she told the defendant's uncle that the defendant was pressuring her to have sexual relations, and he was planning to bring a woman into the house and force her to watch him have sex with the woman. She said to the uncle that she had sponsored the defendant, and he did not know the value of being sponsored, and that if the defendant had come as an immigrant, it would have cost him that much money. She denied that she demanded to be paid money.

[46] In re-examination, the complainant explained that she never asked the defendant or his family for money. She said to the defendant:

"I sponsored you, you know I married you for love and we wanted to have a family. If you have came as an immigrant you have – he came – he said he came – married me because he wanted to come to Canada. I said if you have – be – came as immigrant, this is what – how much should you have. I sponsored you, you should give – be a nice husband, I gave you a life, peaceful life here in Canada. So he – that's why I mentioned to him this is how much – if you came as immigrant, this is how much it would have cost you, but I never demanded him any money."

Mr. S.T.'s Evidence

Examination in Chief

[47] Mr. S.T. testified that his marriage to Ms M.T. was arranged by his uncle and her uncle and parents. He first met the complainant in May 2011 at a temple in Sri Lanka, and then went to her home with his mother as it was the complainant's birthday. Prior to meeting her in person, he and the complainant had communicated by email and by phone when he was working in Oman.

[48] The marriage was fixed for November 13, 2011. Ms M.T. came to Sri Lanka on October 17, 2011. Mr. S.T. went to meet her at the airport. She was with customs at the airport for more than an hour. After that customs staff came out with a photograph to inquire about some things. Since he spoke to language, he spoke to the customs staff and told them she was not coming to send anyone abroad, and they let Ms M.T. leave.

[49] The marriage took place as planned on November 13, 2011. Ms M.T. returned to Canada on November 29, 2011. Mr. S.T. and Ms M.T. continued to communicate by email and by phone.

[50] Ms M.T. applied to sponsor Mr. S.T. to come to Canada. Mr. S.T. testified that he found out from checking the Immigration Canada website that the sponsorship application was delayed because Ms M.T. had said she lost her passport in 2005. When he asked her about this, she told him that her mother had wanted to bring her sister on a trip and during that time the sister was caught in Malaysia (the implication being that Ms M.T. had allowed her sister to travel on her passport).

[51] Mr. S.T. received his visa to come to Canada on November 12, 2012. He told the complainant over the phone that day that he had received the visa. Mr. S.T. testified that when he told Ms M.T. about the visa, she told him to give her $50,000 because she had married him. He testified that he thought she was joking.

[52] Mr. S.T. came to Canada on November 16, 2012. He testified that Ms M.T. did not come and pick him up at the airport because she had asked him for $50,000. Her sister, brother and father picked him up at the airport. They went to the home of one of the complainant's sisters. The complainant came home around 5:00 in the evening. When he first came to Canada they lived with the complainant's sister.

[53] Mr. S.T. testified that they bought a condo in Scarborough. He testified that the complainant said she was single when she bought the condo, that she was hiding from CRA that she was married, and that she told the lawyer she was single when she bought the condo.

[54] They moved into the condo on February 1, 2013. They had a housewarming when the moved in. Mr. S.T. testified that during that time he loved the complainant, but that her motive was money.

[55] Mr. S.T. testified that at some point Ms M.T. told him she was pregnant. Their son was born on […], 2014. There were some medical issues when he was born, and he had to stay in the hospital. Ms M.T. stayed in the hospital with their son. He would take care of her before work and visit after work. He had two jobs and worked seven days a week at that time.

[56] In Sri Lankan culture there is a ceremony 31 days after a child is born. Normally the child's uncle is involved in the ceremony. Mr. S.T. organized a ceremony. But Ms M.T.'s brother said he would only attend if she invited him personally. Ms M.T. did not want to invite her older brother, and invited another male relative instead. Mr. S.T. testified that after that his relationship with Ms M.T. was not good, and there were a lot of arguments.

[57] Mr. S.T. testified that there were times that Ms M.T. threatened him that she would call the police. He testified that on one occasion she took a spoon and heated it up to red hot in the oven and then put it on his face. Mr. S.T. also testified that around that time she told him that he had to give her $50,000, and she threatened to stab him with a knife. He also testified that she locked him out of the house around October 9, 2014, and threw his bags outside, and kept him locked out for five days. He testified that when he knocked on the door to come back, the complainant came and said: "oh, you are still alive and I thought you are dead and gone." And then she went back to bed. She then went and called her father. Her father then called Mr. S.T.'s phone. The father came to the apartment, and then Ms M.T. let Mr. S.T. into the condo.

[58] Mr. S.T. testified that on October 15, 2014 the Toronto Police came to their home. He said the complainant was screaming. He testified that the police told him to go out for two hours and then come back.

[59] Shortly after that time there was supposed to be a rice feeding ceremony for their son according to Hindu tradition. Mr. S.T. had spoken to the complainant's father, uncle and brother about the ceremony, and they wanted to have the ceremony on October 19, 2014. Mr. S.T. testified that he came home from working overnight at the gas station, and told her that he was going to have this ceremony. He testified that the complainant does not have a relationship with her older brother. When he told her about the planned ceremony, the complainant asked him whether he was going to feed her child by her older brother to kill her child. Mr. S.T. denied that he ever threated to harm his son. He said that Ms M.T. was "freaking out" when he told her about the planned ceremony, and he was tired from work, so he went to bed.

[60] Later that day, her father came and knocked on the door and asked where the complainant was. Mr. S.T. said he did not know. Her father said that the complainant had called him and told him she had moved out. That was how he came to learn she had moved out with their son.

[61] Mr. S.T. moved out of the condo on October 21, 2014, initially to another home nearby. On October 26, 2014 he attended at the condo he had shared with the complainant, and she was there moving some items out of the condo. He testified that the complainant said to him that if he came inside the house she would tear her clothes off and call the police. Her sister was present and told her not to call police. Mr. S.T. took one or two items from the home, and held his son for a while, and then left.

[62] On February 6, 2015, Mr. S.T. was at the complainant's father's home to see his son. Ms M.T. told him she wanted to buy diapers for their son. She came in his car with him. She asked him to go to Shopper's Drug Mart. They went into the drug store. She said she wanted to buy Tempra for their son. She asked him for $15. When he took the money out of his pocket, she asked where his wallet was, and asked to see his wallet. When he took it out, she grabbed his wallet. She pulled out his driver's license and made a photo copy of it with the photocopier in the drug store, and put the copy in her bag, and gave him back his driver's licence. The she said that diapers were expensive there and they had to go to Walmart.

[63] When they were driving to Walmart, she asked him to stop at Tim Horton's to get tea. She said she wanted to go inside. She used her phone to call someone. He because suspicious. She then said that if he did not sign she would tear her clothes off any call the police and he would be arrested. He suspected she had called the lawyer about selling the condo. After they got tea, she said her sister had called and their son was crying, so they were going to return to her father's home. But then she asked him to turn in a different direction. They stopped at her lawyer's house. The lawyer asked him to sign some papers in the attached garage. The papers related to selling the condo in Scarborough. Mr. S.T. testified that he signed the papers because the complainant had threatened him. He testified that his English was not good enough for him to read what he was signing. He testified that the lawyer told him: "This is regarding the house matter and if you have any problems you come to the office and you cannot talk here." The next day he went to see the lawyer. The lawyer told him that the matter was over, and if he wanted he could go to the courts.

[64] On February 26, 2015, Mr. S.T. moved to an apartment in Brampton. He was in touch with the complainant then because she needed him to sign the cheque related to the sale of the condo. This was between February 26 and […], 2015. He testified that he did not get any money from the sale of the condo, but that the complainant gave the money to her siblings. However, he said that the complainant told him she would put 50 percent of the money in an account for their son.

[65] Mr. S.T. testified that Ms M.T. moved back in with him on […], 2015, into his apartment in Brampton. It was the day before their son's first birthday. He testified that they moved back in for the sake of their son.

[66] Mr. S.T. testified that in the Brampton apartment they both slept in the bedroom when the complainant was not angry, but that when she was angry he slept in the living room. Their son slept in the den.

[67] Mr. S.T. testified that on the morning of April 4, 2015, he had come home from work at the gas station around 11 pm the evening before and gone to sleep. In the morning, he went to shave in the bathroom. He was undressed. He testified that the complainant said she needed to come in to go pee. He said he was naked and asked her to wait. She opened the door, and photographed his penis with her cell phone, and she made comments about whether he was a man, and that he could not get an erection. After that she was rubbing his shoulders with her face, and squeezing and rubbing his chest, and he squeezed her breasts. They were kissing between the bathroom and the bedroom. They went into the bedroom. She removed her pants and underwear and asked him to have intercourse. He told her there was a smell and she needed to wash. She said he was spoiling her mood, but she went and washed. After that they had intercourse. The intercourse was consensual. After that the complainant left for the family event for the anniversary of her grandmother's death. It was around 7:30 in the morning when she left.

[68] On May 4, 2015 in the evening, Mr. S.T. and the complainant had an argument. She called his uncle on speaker phone in Mr. S.T.'s presence. She said to his uncle that she had spent more than $50,000 and she wanted $100,000. Mr. S.T. said he had a record of the conversation (no record was produced at trial). After she phoned his uncle, Mr. S.T. went to bed.

[69] On May 18, 2015, the Victoria Day weekend, the complainant was in bed and Mr. S.T. was sitting on the floor next to the bed rocking their son to sleep. It was early in the morning. Mr. S.T.'s head was resting on the bed. The complainant kicked him in the head with her right foot. He asked why she did that. She did not respond, but took a broken piece of wood from the bed and hit him with it. He said that the stick hurt, and that he was going to throw it in the dumpster because it was sharp. In the commotion, their son woke up.

[70] He told her to go and clean the den where their son sleeps because it was messy. She put her fingers in her ears (so not to hear him). He went closer to her and said in a louder voice to clean the den. Then she hit him in the right eye with her right elbow. He then left the apartment. He had to get the tires changed on his car, so he did that, and then he went to work. Mr. S.T. denied that he threatened the complainant or their son in any way.

[71] When he arrived home from work at 11:00 p.m. that night, the complainant was not there. Later her father called him and said she had left and she would not be coming home.

[72] He did not speak to the complainant again after that. But on May 24, 2015 he sent her a text asking for her key to the apartment back. He sent the text sometime prior to when he started work at 2:00 p.m. He was arrested at 7:00 p.m. that evening at the gas station where he worked.

[73] Mr. S.T. testified that on May 17, 2015, the day before the complainant left, he had told her that he was going to go to family court for the money from the sale of the condo, because she had told him that she was going to deposit 50 percent in an account for their son, but she had only deposited $3,000.

Cross-examination

[74] In cross-examination Mr. S.T. testified that his uncle and the parents of Ms M.T. arranged their marriage. Between the time of the wedding in November 2011 and when he received his visa in November 2012, he and Ms M.T. communicated by phone and over the internet, discussing their plans for a life together.

[75] He testified that Ms M.T. did not ask him for money before he received his visa, but first asked for it on the night he told her he had obtained his visa. He agreed that he was excited when he called to tell her about the visa. He told her about the visa and then she asked when he was going to give her $50,000. It was a shock to him that she asked this, but he took it as a joke.

[76] Mr. S.T. testified that whenever the complainant got angry, she would bring up the $50,000, and say that she had sponsored him and ask for money. He testified that initially he did not take it seriously.

[77] Crown counsel cross-examined Mr. S.T. suggesting that if the complainant had really asked for money in return for sponsoring him, she would have asked for it before he she sponsored him, and suggested that she did not ask him for $50,000 when he called to tell her about the visa. He maintained that she had asked for $50,000 when he called to tell her about the visa. He also said that he would not have come to Canada if she had asked for the money earlier.

[78] Mr. S.T. testified that their relationship was good when he first came to Canada, but problems started after their son was born. Their first argument was about the ceremony that happens 31 days after a child is born. He said they also had an argument about the feeding ceremony in October 2014. Between those two time periods, he said that there were problems, and the complainant was asking him for money and she threatened to call the police. On October 12, 2014 she asked him for money and threatened him with a knife that she would stab him if he did not give her money.

[79] Mr. S.T. testified that the relationship had problems in October 2014. He claimed that the complainant called his mother in Sri Lanka and said she would put her son (Mr. S.T.) in jail and that she would never show her her grandson.

[80] Mr. S.T. said the complainant was very concerned about money. He said she would take money from his wallet if he left it out, and she took money from his credit card from an ATM without his knowledge.

[81] Mr. S.T. testified that the complainant kicked him out of their apartment on October 9, 2014 for five days. He said the cause of the argument was that the complainant had decided to sell the condo, and wanted to send him out of the house. He told her that she could not do that without a family court order. After that, she threw his bag outside. He could not get back into the condo because she locked it from the inside. On October 12, 2014, the door to the apartment was open, so he came in and spent some time with their son. On that occasion that complainant threatened him with a knife and asked for money. He testified that on October 14, 2014, he called the complainant's father, and her father attended at the apartment to get her to let Mr. S.T. back in. Mr. S.T. claimed that he slept in his car for the five nights he was locked out of the apartment and used the washroom at Tim Horton's.

[82] After he returned home, he made plans for the feeding ceremony for their son. He spoke to the complainant's father, uncle and her older brother on October 18, 2014. Mr. S.T. denied that he was angry at the complainant for having locked him out of the house for five days. When the complainant found out that he was organizing a feeding ceremony involving her brother, she got upset and asked him whether he was going to have their son killed by her brother. This argument happened on the morning of October 19, 2014, when he had come home from work. He testified that she wanted to have a feeding ceremony, but did not want to have her brother involved in it.

[83] Mr. S.T. testified that after the argument with the complainant in the morning of October 19, he went to bed. He learned that the complainant had moved out on the evening of October 19, when her father came and told him. He thought she left because he had spoken to her father about holding the feeding ceremony. He denied that he had threatened their son or that there was any other reason for her to leave.

[84] When Crown counsel cross-examined Mr. S.T. about his evidence that according to him, the only things that happened on October 19, 2014 to make the complainant move out was an argument about the feeding ceremony, he said there was not an argument, just that when he told her about his plans for the feeding ceremony, she said she did not like it, and she asked if he was going to have her son killed by her brother. After that he went to bed and slept.

[85] Mr. S.T. agreed that the feeding ceremony did not take place because the complainant did not want it to happen and because she left their home.

[86] He agreed that the condo that the complainant left in October 2014 was in her name, although he said he did not know that at the time.

[87] Mr. S.T. moved out of the condo on October 21, 2014. The complainant moved some of her things out on October 26, 2014. He testified that she did not move back in with their son when he left because she had already planned to sell the condo, and created the incident about the feeding ceremony to make him leave.

[88] Between October 26, 2014 and early February 2015 he would see the complainant from time to time at her parents when he went to see their son.

[89] In relation signing the papers for the sale of the house in February 2015, Mr. S.T. testified in cross-examination that he signed the papers because the complainant had threatened at Tim Horton's to tear her clothes and yell for help to the police. Mr. S.T. testified that he told the lawyer that he was not proficient in English, and told the lawyer that the complainant had threatened him to get him to sign the papers. He testified that the lawyer still told him to sign, or he could come to the office tomorrow, or he could go to court in three months. Mr. S.T. did not go to the courts or file a complaint against the lawyer. He denied the suggestion that he did not go to the courts because none of the threats in relation to signing the paperwork for the sale of the condo happened.

[90] Mr. S.T. testified that the complainant moved back in with him in March 2015 in order to get his signature on a cheque for the proceeds from the sale of the condo. When she got his signature on the cheque, she said she would put half of the proceeds from the sale of the condo into an account for their son. He testified that she did not follow through on this. When he asked about it, she made the criminal allegations that are the subject of this trial and moved out of his apartment.

[91] Mr. S.T. testified that when Ms M.T. moved into the apartment in Brampton, she put a lock on the bedroom door. He denied that he wanted to have a second child at that time.

[92] Mr. S.T. denied the complainant's version of events about the alleged sexual assault. He also denied that he threatened the complainant and his son on May 18, 2015.

[93] Mr. S.T. agreed that the complainant voluntarily had a baby with him. When asked why she would have a baby with him if she was only in the marriage for money, Mr. S.T. said that after the baby was born, she no longer needed him.

The Applicable Law

[94] The starting point in a criminal trial is that the defendant is presumed innocent. The Crown bears the burden to prove the charges beyond a reasonable doubt. The reasonable doubt standard applies to the assessment of credibility of evidence. Thus, the court must not approach the assessment of credibility as a contest of whose evidence the court believes more. To do so would be inconsistent with the Crown's burden to prove the charges beyond a reasonable doubt. Rather, the court should follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. If the court believes the defendant's evidence, he must be found not guilty. If the court does not believe the defendant's evidence, but it leaves the court with a reasonable doubt, he must be found not guilty. Finally, even if the defendant's evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown's case proves the charges beyond a reasonable doubt.

[95] In assessing the evidence, the Court should consider all of the evidence together, rather than assessing individual pieces of evidence in isolation. The court can accept some, none or all of any witness' testimony. For example, if some parts of the testimony of a defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at para. 11.

[96] The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

[97] If, after careful consideration of all of the evidence, the court does not know who to believe, this constitutes a reasonable doubt and the court must acquit: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 10-12.

[98] Pursuant to s. 274 of the Criminal Code, corroboration is not required in order to find an allegation of sexual assault proven beyond a reasonable doubt. The complainant's evidence alone can be the basis to find an allegation of sexual assault (or another offence) proven, if found to be sufficiently credible and reliable to meet the reasonable doubt standard of proof.

Assessment of the Evidence

[99] As noted earlier, this case turns on the court's assessment of the credibility and reliability of the complainant's and defendant's evidence, measured against the reasonable doubt standard. I note that in relation to the sexual assault count, the only live issue is consent. There may be rare cases where even though the complainant and defendant give very different versions of events, honest but mistaken belief in consent is still a live issue: R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Park, [1995] 2 S.C.R. 836; R. v. Esau, [1997] 2 S.C.R. 777. But this is not one of those cases.

Mr. S.T.'s Evidence

[100] Counsel for Mr. S.T. argued that Mr. S.T. was consistent in his evidence, and unwavering in his version of events. Counsel argues that I should believe his evidence, or in any event, be left in a reasonable doubt by it.

[101] Crown counsel argues that the court should not believe Mr. S.T.'s evidence, and that it should not leave the court with a reasonable doubt. Crown counsel argues that aspects of Mr. S.T.'s evidence defy logic, that he was evasive and non-responsive at times during cross-examination, and that his narrative of events does not make logical sense.

[102] There are a number of areas of Mr. S.T.'s evidence that raise concerns for me with respect to his credibility. In general, these concerns are concerns that a number of aspects of his evidence are illogical and unbelievable, and his narrative of events does not provide a logical explanation for why certain events occurred.

[103] First, I find that Mr. S.T.'s evidence about the complainant only marrying him for money that she could get for sponsoring him to come to Canada, and his evidence that once she had a baby with him she no longer needed him to be unbelievable for a number of reasons. In his evidence he tried to paint their marriage as the complainant just wanting money in return for bringing him to Canada. I find the fact that the complainant had a child with the defendant renders this evidence unbelievable. If the complainant only married the defendant with the goal of getting money from him for sponsoring him to Canada, having a baby with him seems an awfully long way to go to accomplish that monetary goal, especially in light of the fact that he had never given her any of the $50,000 he alleges she demanded.

[104] Further, the defendant's evidence about the complainant only being in the marriage for money and repeatedly demanding money seems inconsistent with his evidence that the complainant first asked for $50,000 only after his visa had been approved in November 2012, and that she never demanded that he give her any money up front. If the complainant was really in the marriage for the money, one would expect she would demand some money up front, before the sponsorship was approved. I do not believe this aspect of the defendant's evidence. Rather, I find that he was attempting to attack the complainant's character with the goal that the court would not believe her evidence.

[105] Second, on the defendant's evidence, there is no logical explanation for why the complainant moved out of their home with their son in October 2014 and again in May 2015. In relation to October 2014, on his evidence, there was a disagreement about the feeding ceremony, but he played down the level of the disagreement. In his examination in chief he said the complainant was very upset, but in cross-examination he said that it was not really even an argument. Further, his evidence was that shortly before the complainant moved out in October 2014, she had locked him out of the house for five days, and that she was regularly threatening him (which she denied). If the complainant had just locked the defendant out of the house for five days, and if she was the one threatening him, it does not make any logical sense that she would then feel the need to move out over what the defendant claims was a minor disagreement about the feeding ceremony. On his version of events, there was no reason for her to move out of the home with their son in October 2014, if the dispute was so minor. By contrast, on the complainant's evidence there was a logical explanation for her leaving the home with their son in October 2014 – because the defendant had just threatened to kill their son, and she was scared.

[106] Similarly, on Mr. S.T.'s evidence, on May 18, 2015, the complainant assaulted him and she then left the home while he was at work. On his evidence, it is difficult to see why the complainant would have moved out of the home in May 2015. On his evidence it was the complainant who had just assaulted him, and it was the complainant who had been regularly threatening him. By contrast, on the complainant's evidence she left the apartment in Brampton with their son on May 18, 2015 because the defendant had threatened to kill her and her son, and she was afraid he would carry through on the threat. Thus, I have concerns about the defendant's credibility because his explanation for the events leading to the complainant moving out in October 2014 and again in May 2015 does not provide a logical explanation for why she would leave at those times.

[107] I note, in referring to the complainant's evidence as providing a logical explanation for why she moved out of the home in October 2014 and in May 2015, and noting that the defendant's evidence lacks that logic, I am mindful of applying the reasonable doubt standard to assessing credibility, and that I must not simply compare the version of the defendant and that of the complainant and ask who is more believable. But the fact that the defendant's version of events does not provide any logical reason why the complainant moved out in October 2014 and again in May 2015 is a factor that I consider as adversely affecting the credibility of his evidence.

[108] A final point that raises concerns for me with respect to the defendant's credibility is his evidence regarding the signing of the paperwork for the sale of the condo. I do not accept his evidence that he told the lawyer that he could not speak English well enough to understand the documents, and that he told the lawyer that his wife had threatened him to get him to sign the documents, but that the lawyer nonetheless told him to sign the documents. I do not accept that the lawyer would have continued telling Mr. S.T. to sign the paperwork if Mr. S.T. told the lawyer that he could not understand the documents and also told him that his wife had threatened him to make him sign the papers.

[109] I note that counsel for Mr. S.T. referred to the fact that Mr. S.T. was emotional at times during his evidence as a factor supporting his evidence. I find this factor not to be of particular assistance in assessing credibility. Ms M.T. was also emotional at times in her evidence. Our Court of Appeal has cautioned against overreliance on demeanour in assessing the credibility of a witness. For this reason, in my assessment of the credibility of both Mr. S.T. and Ms M.T., I focus on the substance of their evidence, rather than their demeanour.

[110] I acknowledge that Mr. S.T.'s evidence was generally consistent, in the sense that it did not change significantly between his examination in chief and his cross-examination. I have carefully considered this in assessing the credibility of his evidence in the context of the evidence as a whole. However, the logical gaps and implausibility of a number of aspects of his evidence which I have outlined lead me not to believe Mr. S.T.'s evidence, and not to be left with a reasonable doubt based on his evidence.

[111] I must then consider if Ms M.T.'s evidence persuades me beyond a reasonable doubt of his guilt of the offences charged.

The Complainant's Evidence

[112] Counsel for Mr. S.T. argued that the complainant's evidence was inconsistent. In terms of the general circumstances leading to the allegations, defence counsel argued that the evidence is clear that there were difficulties in the relationship between Mr. S.T. and Ms M.T.. The implicit thrust of the defence position both in cross-examination of the complainant and in submissions was that the court should have concerns that the complainant may have made the allegations in order to extricate herself from her marriage to the defendant.

[113] Crown counsel argued that the complainant was a credible witness, that her narrative of events was logical, and that she was consistent in her evidence.

[114] In the course of the complainant's evidence, she described several events of violence and verbal abuse by the defendant which were not within the counts charged. There was no objection to the admissibility of this evidence. I instruct myself not to use this evidence of other acts of discreditable conduct allegedly committed by the defendant to draw any inferences of bad character or propensity to commit the offences with which he was charged. However I can consider that evidence as part of the contextual narrative in which the alleged incidents occurred: R. v. D.S.F..

[115] I found the complainant's evidence to be consistent. She gave her evidence in a measured way. She was consistent in her evidence, including in cross-examination. She was not evasive in cross-examination. She was forthright in cross-examination about issues which were not entirely positive in terms of her own actions, for example, the discussion about $50,000, which I will address further below. Overall, I find that her narrative of events is logical, and is believable.

[116] In terms of the narrative of events, there was no dispute between the evidence of the defendant and of the complainant that the complainant moved out of their home with their son in October 2014, that she moved back in with the defendant at his apartment in March 2015, and that she moved out again with their son on May 18, 2015. The complainant's evidence that she moved out on both occasions because the defendant had threatened her son (and also herself on the second occasion) provides a logical explanation for why she left. I note that I consider this evidence in the context that the complainant testified that there had been other difficulties in her relationship with the defendant, but she had tried to continue in the relationship, and indeed, on her evidence she did not leave even after he had sexually assaulted her. It was the threats to her son that caused her to leave on those two occasions.

[117] The reality of assaults and threats that take place in the context of a domestic relationship is that the parties are involved in a relationship. As a result of the connection of the relationship, it can be difficult for one party, often the woman, to make the decision to leave the relationship, particularly if there is a child in the family. It is not unusual for individuals in a situation such as the complainant describes, even if they make a decision to leave the relationship, to later decide to come back and give it another try.

[118] I accept the complainant's evidence that she left her home with the defendant in October 2014 and again in May 2015 because of the threats to her and her son. I accept her evidence that it was a difficult decision for her to leave the defendant, because in their culture a person is supposed to marry only once, because her choice to leave caused her and her family to be disrespected in the community, and because her father pressured her to return to Mr. S.T.. I accept her evidence that although it was difficult for her to leave the marriage for these reasons, she did so because she had the best interests of her son at heart. This evidence is consistent with her evidence that she moved back in with the defendant in March 2015 (after having left in October 2014), because she felt bad about her son growing up without a father. This evidence was logical, and the complainant was consistent and measured on these issues.

[119] I note as well that the complainant does not appear to have been motivated to bring criminal charges against the defendant when she went to the police on May 24, 2015. Her evidence on the circumstances which led to the police report, which was not challenged in cross-examination, was that she went to the police for assistance in retrieving some of her belongings from the defendant's apartment. Only when the police asked her various questions to inquire into her safety did she disclose the threats by the defendant and the sexual assault. This sequence of events leading up to the disclosure to police speaks to a lack of animus on the part of the complainant to have criminal charges laid.

[120] I have carefully considered the complainant's evidence in relation to statements she admitted making in May 2015 to the defendant and his uncle in relation to $50,000 when they were arguing. Her evidence was consistent that she made these statements out of anger and frustration about the defendant's behaviour towards her, because he was calling her names and saying he wanted to make her watch him have sex with another woman. She was consistent in her evidence that she was not demanding money, but rather was saying, in effect, that the defendant should be more grateful for her sponsorship of him, because it would have cost him $50,000 or $100,000 to come to Canada if she had not married him. I believe the complainant's evidence of the nature of these statements and that they were not a demand for money. The complainant was forthright and not evasive when questioned about this area for the first time in cross-examination. I find her evidence and explanation for these statements believable.

[121] I find the complainant's evidence to be credible, and to be sufficiently credible to persuade me of her version of events beyond a reasonable doubt.

Findings on Each Count

[122] For the reasons outlined above, I do not believe Mr. S.T.'s evidence, and it does not leave me with a reasonable doubt. I believe Ms M.T.'s evidence, and it is sufficient to persuade me beyond a reasonable doubt of all three counts.

[123] I find Mr. S.T. guilty of two counts of uttering a threat to cause death, and of one count of sexual assault.

Released: November 17, 2016

Justice J.M. Copeland