WARNING

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

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

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

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

Court Information

Ontario Court of Justice

Date: 2020-09-22

Court File No.: Newmarket 19 03118

Between:

Her Majesty the Queen

— and —

S.K.

Before: Justice David S. Rose

Heard on: January 15 – 17, 23, 30, March 5, 2020

Reasons for Judgment released on: September 22, 2020

Counsel:

• Mr. B. McCallion — counsel for the Crown
• Mr. S. Sarbazevatan — counsel for the accused S.K.

Reasons for Judgment

Rose J.:

Introduction

[1] S.K. is charged with two counts of sexual assault against his wife N.K. The charges allege incidents on April 9 and 14, 2019. The defence admitted identification and jurisdiction at the commencement of the trial.

Evidence – N.K.

[2] N.K. testified that she married S.K. in Iran 6 years ago, when she was 14. They came to Canada on March 11 of 2019. Neither she, nor her husband have any other family here. I heard no evidence about children. The evidence established that N.K. and S.K. are not just married but cousins too. As N.K. said, their families were close. Hers was a "family marriage".

[3] The couple moved into the basement of a house on […] Street in Richmond Hill. That apartment had a bedroom and living room but not much else.

[4] N.K. testified that by mid-April of 2019 she wasn't communicating with her husband. This had been going on for two weeks. There were two reasons for this. The first was family tension, and the second was S.K. himself. By April 15 N.K. was sleeping sometimes in the living room.

[5] On April 15 she had a tooth ache and her landlady had taken her to the dentist. In her evidence when she was brought home her husband questioned her about why she went to the dentist, and asked her to go into the basement. He then spoke to the landlady and said that she had no right to take N.K. to the dentist. As N.K. put it her husband told the landlady that she shouldn't have taken his wife to the dentist even if she happened to die. She had no right to take his wife from him, and that if she pays too much attention to her horrible things will happen. N.K. testified that she heard her husband say that.

[6] N.K. testified that she had been in severe pain and her husband knew that, but he took no steps to remedy it. As she testified "I was crying because of the tooth pain but he wasn't paying attention".

[7] After the verbal altercation with the landlady, S.K. asked her to sit down and then spoke with her. N.K. testified that her husband outlined two options. The first was that she could stay with him and have a child. The second was that he would take her back to Iran and damage her reputation such that she would be killed. N.K. testified that she then told him that she wanted to separate from him, but that she wanted to stay friends. According to N.K. her husband said that she didn't get the point. She had a choice and if she didn't choose to stay and have a child with him, he would send her back to Iran. An argument then started about family tension. That argument continued for about 15 or 20 minutes until the police came. N.K. testified that she didn't call the police, and she didn't expect them to come.

[8] N.K. testified about the day before the police arrived. She had been in the living room tidying up and cleaning. S.K. was in the bedroom, and he called her in, saying that he had important things to discuss. She said "I'm not coming" and he replied that he had important things to discuss. She then went into the bedroom. All of a sudden he came forward and hugged her. N.K. testified that she had no interest in him. It was about 6 – 7 pm.

[9] When S.K. went into the bedroom her husband told her that they should stay together and talk about it. He then pushed her over the bed. She asked him to go away but he pushed himself closer to kiss her on the lips. She told him she would scream but he said it wouldn't matter, so she could do what she liked. At that point she had her back on the bed with a top and shorts on.

[10] N.K. testified that her husband was all over her at this point, holding her with one hand and with the second "doing things I don't want to say". It was clear in N.K.'s testimony that she felt extremely uncomfortable and embarrassed talking about this to male strangers in a Courtroom.

[11] N.K. told S.K. to go away, but, in her evidence he was mocking her, not taking her seriously. He said "you are my wife, I can do whatever I like". S.K. kissed her on the lips forcefully. She tried to keep her lips from him but couldn't. N.K. testified that he had one hand under head, and the other hand was free. S.K. then had intercourse with her. He took off his shirt and partially took off her shorts while he was on top of her. Her shorts were pulled underneath her. Intercourse didn't last very long, 10 – 15 minutes. The incident left her with bruising on her thigh which was confirmed by medical staff who examined her two days later. In cross-examination she denied that the incident was consensual, and similarly denied that after the incident they took a shower together.

[12] N.K. testified that she had no feelings towards him and did not want the contact.

[13] After the incident S.K. went to the bathroom and took a shower. N.K. then went to the other room, and then upstairs where she stayed until about midnight. It was the next day that she went to the dentist with the landlady.

[14] N.K. testified that about a week or 10 days before the incident on the 14th she was sleeping on the bed when her husband woke her up, and said that he needed her. She testified that she told him that she didn't want him to hurt her.

[15] N.K.'s evidence was that S.K. had intercourse with her but "she didn't pay attention". It happened quickly, about 4 – 5 minutes. She felt pressure on her waist and woke up. He ejaculated on her back. She said that she didn't want to have sex but he came close and had sex with her. She didn't want that.

[16] In cross-examination N.K. testified that she had stopped talking to her husband by late March or early April. Generally they didn't want anything to do with each other but it had gotten serious around the time of the incidents. She described it as a complete marital breakdown. She wasn't speaking with S.K. for the two weeks before April 15. The reasons for the breakdown were her mistreatment by his family and the accused himself. She admitted to being quite angry at Mr. K's family.

[17] N.K. elaborated about the first incident, which she estimated happened between April 4 – 7. She confirmed that by April 1 the relationship had completely broken down, and she wanted to be separate from her husband and get divorced.

[18] In late March she had purchased a sim card for a phone with the help of the landlady. She texted S.K. A screen shot of a text message was put to her in evidence from April 5, 2019 which said:

"Hi [S], this is my new namber"(sic)

Hi there, Sorry who are you?

Your love

OK

[19] In cross-examination N.K. testified that the text message was "…such an unimportant matter that I really don't remember much about it".

[20] N.K. testified that after her husband was released from jail she saw him and spoke with him. As she said in cross-examination "he called every member of our family in Iran" with the intention of provoking her family against her.

[21] N.K. spoke of her husband's contact with her in unflattering terms. She said that he was following her while he was on bail, but she told him to get out of her life. She got her religious divorce from him on August 9.

[22] N.K. initially said that her husband would show up on her doorstep after his release but was later confronted with pictures of the two of them together at Harbourfront in late July. She did not want to see him but he was the one who approached her. Initially she said that she did not see him anywhere other than her doorstep, but later in cross-examination she was confronted with pictures of her self with S.K. at a public park at Harbourfront in downtown Toronto.

[23] Cross-examination also revealed that N.K. had thrown a makeshift birthday party for the accused at a Tim Horton's store. A video taken at the time was put into evidence which has the complainant singing a birthday song to the accused.

[24] N.K. elaborated on the events during cross-examination. She denied that the first incident was consensual, and that she initiated the intimacy while she and the accused were in bed. She denied that the incident commenced with her performing oral sex on him but agreed that at the end of the incident the accused ejaculated on her back.

Evidence – Sexual Assault Nurse

[25] Karaley Potter, a sexual assault nurse at McKenzie Health testified that she saw N.K. on April 15, 2019. In that interview N.K. disclosed two sexual assault. One was on April 14 around 4pm, and another on April 9. Nurse Potter noted three bruises to her right thigh.

Evidence – PC Russo

[26] The last Crown witness was PC Russo who arrived at the residence of the N.K. on April 15, 2019 at 4:33 pm. He was met by the landlady Tahrerianpour, who translated for N.K. He received a complaint about domestic violence. He noted N.K. to be quite upset.

[27] The Crown closed its case by filing an Agreed Statement of Facts which outlines the interview given by N.K. to Det. Kolarsky on April 16, 2019. In that interview N.K. describes two sexual assaults, one on April 14 and another on April 9, 2019.

Evidence – S.K.

[28] S.K. testified that he married N.K. 6 years ago, and that the couple came to Canada in early March of 2019. They came to Canada as refugees because of their religious beliefs. He described his marriage to N.K. as having ups and down, but in general they loved each other. After they arrived in Canada, from mid March to Mid April of 2019 they were struggling, and life was difficult. They had financial difficulties, but they still loved each other. One of the difficulties they had was with his family, and one of his sisters in particular, R. N.K. and R didn't get along, to the point where they had a physical encounter, which interrupted her marriage to S.K. They had lived apart in Iran before they came to Canada. N.K. had asked S.K. to disconnect himself from his sister R. Despite that S.K. was intent on having hidden communications with R while he was in Canada, which he did.

[29] N.K. found out about S.K.'s communication with R, and this lead to a confrontation with N.K. in which she announced that their marriage was over. As S.K. put it, N.K. told him that "It's over with you because you lied to me, I gave you an opportunity and you are not ready to step on your sister because of me". That happened on April 14, 2019.

[30] On the morning of the 14th of April he testified to getting up with N.K. and going to church with N.K. and then to Loblaws to buy food. They got back home around 2pm, and had lunch together. They rested a bit in the evening. He was sitting in the hallway watching a soccer game on TV. S.K. was in the bedroom, and he walked in. S.K. was applying bright red lipstick in front of a mirror. She turned around commenced romantic contact which progressed from kissing her on her chest, breasts and genitals. This progressed to intercourse, which ended when he ejaculated on her belly button.

[31] S.K. testified that after sexual contact the two had a shower together. The entire encounter, was, in his testimony, not only consensual but romantic. After they finished the shower N.K. went upstairs, but they still had dinner together.

[32] After dinner N.K. again went upstairs and it was at 10:30pm that his sister called. S.K. went into the bedroom and shut the door. While S.K. was on the phone with his sister N.K. showed up, and began screaming and yelling at him. She began to call him less than a man. S.K. tried to calm her but she went upstairs and told him to stay downstairs. He stayed downstairs, and went to sleep. At some point N.K. came back downstairs and slept.

[33] The next day they had an appointment at the Ontario Service Office about social assistance. The appointment was for 9 am. According to S.K. he softly woke up N.K. and prepared her breakfast. N.K. wasn't speaking to S.K. until she told him that she wasn't coming to the welfare office. She said that instead she had a dentist appointment, which had a $100 cancellation charge.

[34] S.K. testified that he went to the welfare office alone but had to re-schedule because his wife was not there. When he got home N.K. was not there. He called the landlady Ms. T to ask about his wife, and was told that she was at the dentist and would be back after that. He had lunch and waited for them. S.K. testified in unflattering terms about Ms. T.

[35] That discussion with the landlady was around 4 or 5pm. It was not clear from S.K.'s testimonial description of that time whether his conversation with the landlady was in person or by phone. At one point N.K. entered the conversation, apparently in person, but again his evidence was not clear on the point: she told him that he was incompetent; had lied to her; he didn't want her; and had sold her to his sister. She then told him to leave the house. N.K. by then came downstairs. He started to collect his things into a knapsack, and told his wife that he loved her but that she had to understand the situation. The police then arrived while he was on the stairs.

[36] S.K. also testified to intimate contact with N.K. the week before April 14, 2019. He described that incident happening late at night in bed. He layed down on his back and N.K. had her back to him. She got close to him. She was dressed in pink underwear, "the colours that I liked". He started touching and then kissing her. N.K. then put her left hand over his underwear and started playing with his genitals. They kissed intimately, which lead to her taking her clothes off and intercourse. The intercourse ended quickly. He ejaculated on her back. N.K. cleaned herself up with a Kleenex. The encounter was, in his evidence, consensual.

[37] S.K. was asked about bruising on N.K.'s leg. He testified that he never saw that, and had no information about it.

[38] S.K. was also asked about his general relationship with N.K. He said that the two were talking to one another in person, via WhatsApp and texting. There were times when they didn't talk but in April of 2019 they were talking. He adopted the text message he received from N.K. described earlier in paragraph 18.

[39] After S.K. had been arrested and released from custody, he met her on June 14. N.K. set up that meeting. She met him in a park called Sheppard Park. According to S.K. when they met it was pleasantly emotional. As S.K. testified, the two were in love and wanted to get back together. They went many places together. He identified the pictures which were put into evidence showing him and N.K. together at Harbourfront. He described it in romantic terms.

[40] S.K. also confirmed that on his birthday in late July N.K. congratulated him by taking him to a Tim Horton's on Sheppard Avenue and surprising him with a cake. He also testified that, by August 11 N.K. wanted a divorce and threatened that if he didn't agree to that, then she would harm him. After that he did not see N.K. until the month before the trial, when they spent a romantic evening together at a night club. He saw her the day after, when to his surprise she told him that she wanted to marry another man.

[41] In cross-examination S.K. agreed that he was released on bail on May 8, 2019, and by seeing N.K. in the months that followed he was in violation of his release terms. He admitted that he is still married to N.K.

[42] S.K. admitted in cross-examination that on the day N.K. went to the dentist he was not aware she had a tooth ache. When he got home from the welfare office she was not there. He denied being angry at N.K. but admitted that he was upset. He denied being upset with the landlady at taking N.K. to the dentist but admitted to being upset with her because he felt she was interfering with his marriage. When pressed by the Crown he said that dentists cost money and he had spent all his budget on his wife's teeth.

[43] Once N.K. returned home and he saw her he admitted that he did not ask her about her visit to the dentist. He didn't ask her if was in pain, or had been described any medication or if she required follow up treatment.

[44] S.K. also gave a somewhat different version in cross-examination of the moments leading up to the police being called. In his evidence it was a tender moment, where he and N.K. ate lunch, he rubbed his hand on her face, kissed her hand, and asked her why she was upset. She didn't reply but got up to leave and went upstairs.

[45] S.K. denied that his sexual contact with N.K. was non-consensual. In cross-examination he elaborated that on the first of the two encounters in issue at this trial in fact he didn't want to have sex that night. It was N.K. who provoked her. He was tired and didn't want it that night.

[46] In re-examination S.K. offered a recording of a voice mail message which had N.K. saying that she wanted S.K.'s sister killed or she would pay someone to kill her. The voice mail also had N.K. saying that S.K.'s mother was a whore and his sister was a whore and various swear words. The tenor of the voice mail message was extremely upset.

Browne v. Dunn Issue

[47] S.K. testified to a number of things that were never put to N.K. when she testified. Because of that Mr. McCallion advised that Court that this was a situation where the long standing rule in Browne v. Dunn applied, see R. v. Quansah 2015 ONCA 237. In other words, the defence put into evidence as part of its case things which N.K. never had a chance to respond to. After hearing from both parties, I ruled that the defence had indeed put into evidence facts which N.K. was not asked about. I found that N.K. was a vulnerable witness and because of that I would not compel her to come back to Court to reply to the new evidence, but that she would be asked if she would come back on her own. She did. There is therefore no adverse inference to be drawn from the defence's failure to cross-examine N.K. completely on the facts testified to by S.K.

[48] When N.K. testified on the next day she was asked about 4 things which came up in S.K.'s evidence for the first time. The first was his evidence that she and S.K. met at a park when he was released on bail. She agreed that the meeting happened and that he kissed her and she kissed him back. She remembered that he had lost weight in jail but nothing more about the meeting.

[49] N.K. was also asked about communication which she knew about her mother and S.K. to the effect that N.K. was remorseful for having complained to the police. She denied knowing what her mother and S.K. were talking about rejected the suggestion that she was remorseful for having gone to the police. She said that was laughable.

[50] N.K. was asked about whether she had invited S.K. to her home to tell him that she wanted to marry another man. She rejected that. She testified that he came over on his own to attempt to repair the marriage but she told him that she wanted nothing more from the marriage and it her personal life was no longer his business. That meeting she said was not in August but December 2019.

[51] N.K. was confronted with the audio message played in Court and she agreed that it was her voice. She thought that the message was from 2 years ago. She denied that she threated to kill S.K.'s sister in the message but agreed that she bore real animus toward her. She said that in the message she was emptying herself, which I took to mean emotionally venting. She testified in the follow up testimony that when she had contact with S.K. in the months after he was released on bail she told him that "this is what you did", meaning the sexual assaults.

[52] The defence called one last witness, Mr. S. He knew S.K. and N.K. from when they arrived in Canada through their church. He gave evidence about his observations of the nature of their marriage.

Issues

[53] It is common ground between the Crown and Defence that N.K. and S.K. engaged in sexual contact on the days alleged by the Crown. The difference between the parties, and the key issue in this trial, is whether that contact was consensual, as the defence claims, or non-consensual, as the Crown alleges. The defendant himself testified that the sexual contact was consensual. The analysis prescribed by the Supreme Court in R. v. W.D., [1991] 1 S.C.R. 742 requires a three tiered review of the evidence.

Relationship Evidence

[54] Before making any findings of credibility the evidence heard at trial requires a preliminary analysis. Both Crown and Defence called evidence about the relationship between N.K. and S.K. N.K.'s evidence was that her marriage to S.K. was effectively over by the time of the sexual contact. S.K. testified that the marriage had its ups and downs but was otherwise healthy. The relationship evidence went beyond the date of the incidents and reached into the contact between the couple after the incident - right up to the time of trial. The defence claims that the evidence of post offence contact showed that N.K. was still in love with S.K. N.K. rather, testified that her contact with S.K. was because he had insisted on contacting her and made efforts to get her to recant her allegations.

[55] I pause to observe that neither N.K. or S.K. testified about sexual contact other than the two incidents alleged on the Information. The relationship evidence, rather, forms a context in which the Court is being asked to find consent or lack of consent during the sexual contact. In R. v. R.V. 2019 S at par. 41 the Supreme Court observed that the connection between sexual inactivity, akin to lack of sexual relationship and s. 276 has not been authoritatively determined. The Court in R. v. R.V. framed the issue in terms of the statement "I am a virgin", and whether that engaged s. 276. As Professor Dufraimont observed in "R. v. Goldfinch and the Problem of Relationship Evidence" (2019), 55 C.R. (7th) 282, triers of fact must not misinterpret interactions between the accused and complainant. Relationship evidence must be treated with caution so that the twin myths regarding consent in sexual assault cases remain inoperative in the reasoning process.

[56] There is a second and distinct form of relationship evidence in this trial, namely the state of the relationship between N.K. and S.K. after S.K.'s release on bail on these charges and before the trial. The defence lead evidence during cross-examination that N.K. had a loving relationship with the accused, including defence lead evidence of photographs of the two seemingly enjoying each others company at a park and a video taken at a birthday party thrown by N.K. for S.K. post arrest.

[57] Counsel made written submissions on how the relationship evidence should be treated.

[58] With this established I would make the following legal findings. The relationship evidence during the time of the allegations is relevant to the issue of lack of consent. There is little by the way of appellate guidance on the issue. I do, however, find that the relationship between complainant and accused can be relevant to the issue of consent. To take an extreme hypothetical example, if the allegations involve an attack by a stranger on the complainant in the bushes while the complainant is walking home it is surely relevant to the issue of consent that the accused was unknown to the complainant who was on her way home to have dinner with her family.

[59] In this case the relationship evidence by Crown and defence during the incidents is not so extreme..ant's evidence was an emphatic rejection of the suggestion, and therefore testimony by S.K., that their relationship lent itself to the romantic encounter alleged by the defence. It follows that if I find that the marriage was not a healthy one it supports a finding that the defence evidence is not believable. If I find that the marriage was in fact a healthy one, then the complainant's evidence about the state of her marriage suffers from credibility concerns. In this case, the inference being sought by the Crown does not engage s. 276 issues, and the Defence amply responded to the claim that the marriage was over in the evidence.

[60] As regards the second form of relationship evidence in this trial, namely the contact between the accused and complainant after his release on bail, I have no difficulty in finding that there is no standard which can be applied to how a complainant behaves after an assault. As the Court of Appeal put it in R. v. Lacombe 2019 ONCA 938 at par. 45, there is no rule about how victims of sexual assault are apt to behave, see also R. v. Kiss 2018 ONCA 184. That N.K. and S.K. met at Harbourfront and were hand in hand in the summer after the charges, and that she threw an informal birthday party for him at a Tim Horton's restaurant is not relevant to the issue of whether she did or did not consent to the sexual contact.

Credibility Findings

[61] S.K.'s evidence suffers from various frailties.

[62] The first is that S.K. admitted in cross-examination that on the day N.K. went to the dentist he was not aware she had a tooth ache. His evidence that he cared about N.K. doesn't square with his admission that when N.K. announced that she was going to dentist he apparently couldn't have cared enough to ask her why.

[63] The second is that he was, by his own admission, upset with Ms. T's assisting his wife but apparently this did not extend to her help getting N.K. to the dentist, even though in his evidence he complained that he had spent too much money on N.K.'s teeth. Therefore, on one hand he didn't like Ms. T supporting his wife, but on the other hand was indifferent to her helping her go to a dentist despite his complaint that he had spent all his budget on her teeth. Part of this frailty is evasiveness about how much he knew about his wife going to the dentist. When pressed, he said only that he knew about her going to the dentist "based on what she said".

[64] The third frailty is that S.K. denied that his sexual contact with N.K. was non-consensual. In cross-examination he elaborated that on the first of the two encounters in issue at this trial in fact he didn't want to have sex that night. It was N.K. who provoked him. He was tired and didn't want it that night. That is internally inconsistent with his description of the encounter that he gave during examination-in-chief where he had no reluctance to respond to N.K.'s sexual overtures. In chief he described kissing her neck, licking her ears which lead to oral sex. His initial description of the event made no mention of any reluctance on his part. That was only added when he was pressed in cross-examination. That is a pivotal point, given that consent to the sexual contact in that incident albeit on the part of N.K. is the issue in this trial. It bears poorly on his credibility. His evidence in chief was that the incident was consensual, but in cross-examination he turned it into him being a reluctant party.

[65] A fourth frailty involved S.K.'s evidence that once N.K. returned home and he saw her he admitted that he did not ask her about her visit to the dentist. He didn't ask her if she was in pain, if she had been prescribed any medication, or if she required follow up treatment. This evidence was tantamount to a lack of caring about his wife, despite his evidence that his marriage was a loving one. When pressed about his lack of inquiry about N.K.'s visit to the dentist I observed S.K. to become quite upset in the witness box, replying angrily that he loved his wife so much. Mr. McCallion asked a fair question, which was that by not asking about the visit to the dentist it sounded like he expressed no concern for her. That is when he angrily reacted in the witness box that he was a bit upset with her but had thrown his life at her feet, fought for her, borrowed money for her, taken her to a skin specialist in Iran and that she had blood spots on her skin and rashes. His response to Mr. McCallion's question was in my finding a response to being confronted with the fact that despite his professed love and sacrifice for N.K. in fact he didn't care the slightest about her visit to the dentist. This is an important issue because he would have me believe that he had a loving relationship N.K., but the fact is he didn't even care that she had been in pain and seen the dentist. His reaction in the witness stand was such an extreme over reaction to a simple question that I have no difficulty in finding that he was extremely evasive about an important issue in this trial, namely the state of his marriage. This bears poorly on his credibility, and supports a finding that, contrary to his assertion that he had a loving relationship with his wife, he knew that he was in a loveless marriage, and crafted his testimony to deny the truth of that.

[66] I also find his evidence that his marriage was on whole a good one contradicted by the voice recording of N.K. which the defence put into evidence. That recording was in Farsi, and I had to rely on interpretation to understand it. S.K. said that the recording was made proximate to the last incident. N.K. said that it was recorded some time before. I cannot resolve that discrepancy, but in my finding it is only necessary to find that the tenor and content of the message underscores a level of anger and emotion on the part of N.K. toward S.K. that there is no way they had a healthy marriage. I found the tenor of the message to be shocking, and evidence of extreme hostility on the part of N.K. toward her husband. This was evidence of a very unhealthy marriage, contrary to S.K.'s testimony.

[67] Lastly, it bears poorly on his credibility that he easily contacted N.K. after his release on bail, and admitted that he had a bail term prohibiting just that. I temper this finding with the observation that S.K. has no prior criminal record. He was not convicted of breaching his bail, although I heard no evidence that he was ever charged or that the contact even came to the attention of the police. Put bluntly, he agreed that he was bound by a bail term not to contact N.K. and he agreed that he violated that agreement. I heard no evidence which might provide an excuse which might explain this.

[68] For these reasons I do not believe S.K.'s evidence. He lied to me about the state of his marriage and was caught in another outright lie about being reluctant to have sex with his wife on the first incident. I accept only those portions of his evidence which are independently confirmed, such as his contact with N.K. at Harbourfront and the Tim Horton's birthday party.

[69] Furthermore, there is nothing in his evidence which leads to a reasonable doubt.

[70] Having rejected S.K.'s evidence on the first two limbs of the W.D. analysis I must now considered whether the evidence that I do accept proves the charges against him to the standard of beyond a reasonable doubt. There is no confirmation of N.K.'s evidence, so this part of the analysis comes down to whether I accept her evidence to that standard. If I do then S.K. is guilty of the charges. If I don't then he is entitled to be acquitted.

[71] I was impressed with N.K. She showed great courage in testifying about matters which were clearly private. The presence of some in the body of the court made her quite uncomfortable but she carried on with her evidence despite her discomfort. It is also to her credit that she voluntarily returned to testify about things which were not put to her during her evidence but which came out when S.K. testified.

[72] With that said there was one frailty in her evidence. When questioned about her relationship with S.K. she was clear initially in her evidence that a) she did not see him after the second incident and S.K.'s arrest, and b) she bore considerable animus toward him.

[73] She was asked early in cross-examination if she saw S.K. after April 14:

Q. So your evidence is that it was against your wish and against your will to see him anymore after April 14, however you saw him and you spoke with him, correct?

A. What did I do?

Q. You saw him and you spoke with him?

A. I didn't see him. He was like a leech. He came to my home. He was on the other side of the street, wherever I was going he was following me.

And later,

Q. And you said he came to your doorstep, correct?

A. Yes.

Q. Did you see him anywhere other than your doorstep?

A. No, but whomever I made contact with he would make contact with that person as well.

Q. Ma'am, again, that's not my question. Did you see him anywhere other than in your doorstep?

A. No.

[74] That evidence was flatly contradicted by the pictures and video evidence lead by the defence. When confronted with pictures of N.K. and S.K. at Harbourfront in the summer of 2019 she admitted that she had gone to that park for a day together. The pictures do not show her to be in distress. She has an expression on her face which is inconsistent with her evidence that S.K. was behaving like a leech.

[75] So too does the evidence of the birthday party that she threw for him that summer at Tim Horton's complete with a birthday cake and her singing happy birthday to him.

[76] N.K also gave evidence that her marriage to S.K. before the allegations. She testified in stark terms.

Q. And you also said that 15 days before April 14th you stopped speaking with Mr. K, correct?

A. Something around that, yes.

Q. And you also said that 15 days before April 14th you stopped speaking with Mr. K, correct?

A. No. Generally we didn't have anything to do with each other but at that time it was – became quite serious.

Q. so as of April 1st you're saying that your relationship was completely broken down and you definitely wanted to be separate from Mr. K, and you wanted a divorce, correct?

A. Yes.

[77] Cross-examination revealed that on April 4 she had sent a text message to S.K. That message was from her brand new phone line, in which she refers to him as her love.

[78] As I have found earlier, victims of sexual assault are not expected to behave in any particular way. The issue is not why N.K. met up with S.K. at Harbourfront or held a birthday party for him. Rather, the issue is that her evidence was initially that there was no such contact at all, and later when confronted with pictures and a video of that contact agreed that she did in fact have contact.

[79] I would treat the text message from April 4 differently. That message shows a playfulness as between N.K. and S.K. which is inconsistent with her evidence that the marriage was completely broken down at the time.

[80] Neither of these testimonial inconsistencies cut to the core of the allegations, namely the sexual contact between herself and S.K. on the two dates alleged by the Crown. But having reflected on my findings above about relationship evidence and my specific findings of testimonial inconsistencies on that point by S.K. I would not apply an uneven standard. I found that S.K. lied to me about the state of his relationship with N.K., and while her testimonial inconsistencies do not approach that level, I must find that her evidence has similar frailties and that the frailties are as important to the issues in this trial as S.K.'s frailties. Put plainly, her testimony about the state of her marriage to S.K. was not completely candid.

[81] For this reason, I cannot accept her testimonial credibility to the standard of proof beyond a reasonable doubt. Again, there is no independent evidence about what happened during the sexual contact. As I have indicated, I reject S.K.'s evidence, and I have concerns about N.K.'s credibility too. Having reflected on whether the Crown has met its burden of proof I find that it would be unsafe to convict S.K. This is a very close case but I have a reasonable doubt, and S.K. will be found not guilty of both counts.

[82] The release of this Judgment was delayed because of the Coronavirus epidemic.

Released: September 22, 2020

Signed: Justice David S. Rose