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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.

486.4 (2.1 ) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

Ontario Court of Justice

Date: 2022 09 26 Court File No.: Central East Region: Oshawa Courthouse: File # 20-27027

Between:

HIS MAJESTY THE KING

— AND —

S.S.

Before: Justice Peter C. West

Evidence Heard: January 19, 20 and 21, 2022 and June 15 and 23, 2022 Reasons for Judgment: September 26, 2022

Counsel: Ms. T. D’Eri .................................................................... counsel for the Crown Mr. E. Chan ...................................................... counsel for the defendant S.S.

WEST J.

[1] S.S. married M.G. in 2003 in Toronto, as a result of an arranged marriage that was organized by Ms. G.’s brother and sister and Mr. S.’s parents. Ms. G.’s father died when she was 5 years old and her mother was in a nursing home and her brother and sister became her parents as she was growing up. Ms. G. testified she was not interested in an arranged marriage, but she had no choice in the circumstances.

[2] Initially after their marriage she and her husband lived in Springfield Illinois, United States (from 2003 to 2010) where he was working but at some point they moved back to the Toronto area. Ms. G. had completed her Bachelor of Sciences degree from University of Toronto before she got married and was working at St. George’s Hospital in London England in the cardiology department in 2001.

[3] Their oldest son, Sa., was born on […], 2006, in the United States and their youngest son, A. was born on […], 2012, in Toronto.

[4] In July 2020, Ms. G. and her husband were separated, and the family home was at M. Crescent in Ajax. Ms. G. testified about three incidents where she alleged her husband assaulted her (July 12, 2020; June 23, 2020, and between January 11, 2019, and December 31, 2019). Ms. G. and Mr. S. separated as of June 24, 2020, when Mr. S. moved out of the family home after the June 23, 2020, incident.

[5] Mr. S. is facing five charges: (1) Assault on M.G. on July 12, 2020; (2) Assault on Sa. on July 12, 2020; (3) Assault on M.G. on June 23, 2020; (4) Threaten Death to M.G. on June 23, 2020; and Assault on M.G. between January 11, 2019, and December 31, 2019. Mr. S. pleaded not guilty to all charges. The defence admitted jurisdiction and identity. The Crown called two witnesses: Sa. and M.G. and the defence called three witnesses: S.S., P.C. Hasan Shafiq, police officer who was dispatched to M. Crescent on June 23, 2022, and Sha.: Mr. S.’s sister.

[6] As in any criminal case, Mr. S. is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[7] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[8] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.

[9] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted:

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

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

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

[11] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant’s evidence but still not being sufficiently satisfied by the complainant’s evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus.

The July 12, 2020, Incident

[12] On July 12, 2020, Mr. S. came to M. Crescent where Ms. G. was living with their two sons. He had advised Sa. he was coming to pick up a few things. She could not recall when he arrived, but he was picking up things and putting them in black garbage bags. He had asked the kids if they wanted food and they told him no. He was asking for the roof bill because Ms. G. had paid for this repair. She had put the bill on the dining room table, and he wanted to take it with him. She told him to take a picture but to leave the bill. He became upset that she would not let him take the bill. He had previously taken the mortgage papers for the house, and she had been asking him for them.

[13] He went upstairs and Ms. G. and her son followed him into A.’s room, where he kept some of his clothes in the closet. He was upset about the roofing bill. She was concerned he was going to take the roofing bill and told him to take a picture of it. Previously he had taken Sa.’s phone, which upset Sa. and she testified she was concerned her husband would take the car keys, as the car was in his name, and then she would not have a car.

[14] At one point Ms. G. asked her husband if he was recording their conversations. Ms. G. noticed there was something in his pocket and she reached for it. Mr. S. pushed her back against the wall. This was when they were in the hallway by the front door. After he pushed her, Mr. S. then choked her with one hand very tightly. He squeezed her very hard, and she was out of breath. She did not know how long and testified when she was asked, maybe a few minutes. She could not breathe. It was hard but she did not faint. Sa. was there and was trying to push his father to make him let go of her. He pushed Sa. away but at some point, because of Sa., her husband let go of her throat. She believed that her husband punched Sa. but did not see where he hit him. She never touched her husband, but she came close to him to try to check and see what he had in his pocket. Her husband left the house at this point.

[15] She called 911 as a result of what happened. The police came and she was taken to the hospital by ambulance.

[16] In cross-examination Ms. G. testified she and her husband were sleeping in separate rooms as of 2016 and they advised both of their families of this. They decided to remain in the same house, living separate and apart for the sake of their children. There was no legal separation or Family Court proceedings commenced. The first time she became aware of her husband filing legal papers was around July 6, 2020, when she found out from her son. She then received an email from his lawyer on July 6, 2020. She agreed part of the legal separation was that she had to disclose her finances although they had been paying all of the expenses 50/50 since they were living separate and apart.

[17] On July 12, 2020, she agreed when Mr. S. arrived at the house both boys were there. Mr. Chan then produced an audio recording and a transcript. The audio recording was purportedly made by Mr. S. when he attended M. Crescent on July 12, 2020.

[18] Ms. G. identified her voice and her son Sa.’s voice as well as her husband’s voice on the recording that was played. It would appear from the recording that there was initially a conversation in the dining room/living room between Mr. S. and Ms. G. concerning the roofing bill. Ms. G. testified the recording did not make sense because Mr. S. went up and downstairs a few times, but the recording did not indicate this. He was getting clothes from A.’s room and had a black bag to put the clothes in. There was also a nonstop sound that did not make sense to her on the recording. She did not believe the transcript or recording was accurate because her husband was up and down several times and he was asking repeatedly about the roof bill and that is not on the recording. It was this behaviour that caused her to believe he was not acting normally and led her to believe he was recording their conversation.

[19] Ms. G. testified she was talking to her husband through Sa. because of what had happened on June 23. The recording was not accurate because it did not reflect that he wanted to remove the roofing receipt from her house. It was not in the transcript, and she did not hear it on the recording as well. She told him he could take a picture of the roofing bill.

[20] At one point Ms. G. heard him say on the recording, “We aren’t here to build any cases here.” It was her evidence that Mr. S. said that date he was there to do just that and that is missing from the recording and transcript. On the recording she can be heard asking Sa. to ask his father what the balance on the mortgage was because she did not know, and he would not provide the papers he had taken. She agreed on the recording she could be heard saying the house was a matrimonial house despite him saying the title was in his name and he believed it belonged to him. She agreed she kept asking him for the mortgage papers. She agreed she was upset he had taken the deed out of the house as well. During the conversation Mr. S. told Ms. G. he had renewed the mortgage. She testified she was not aware of this, which was why she kept asking for the mortgage papers.

[21] Ms. G. further advised Mr. Chan there is another part of the recording missing where Mr. S. left the living room and went back up to A.’s room. This is not on the recording. When he was in A.’s room and is packing clothes into a black bag she is asking him if he is moving out of the house. This was when she observed her husband had a phone in his hand and she asked Sa. to check it to see if he was recording. Sa. checked the phone his father had in his hand.

[22] Ms. G. heard Tamil words spoken, just as Sa. testified he heard, that were not included in the transcript. As they were coming downstairs, she saw that there appeared to be something in her husband’s pocket, and she asked Sa. to check what he had in it. Mr. S. can be heard to say to Sa. not to touch him. Ms. G. testified this was when she told Mr. S. not to touch her and this was not in the transcript or the recording. She agreed she was moving close to him because she believed he had something in his pocket he was taking from the house. She testified she heard herself say, “I’m not touching you, you’re touching me.” He was pushing her against the wall when he can be heard saying he wasn’t touching her. This was when he was choking her with one hand. Ms. G. testified the part where her husband is choking her, and she is telling him to “Stop doing this” is missing from the recording. Ms. G. also testified her son telling his father, “Stop dad” is also missing from the recording. Sa. was screaming at his father when his father grabbed her by the throat.

[23] Sa. testified during the trial respecting the July 12, 2020, incident. On July 12, 2020, his father came to the house to pick up some clothes because his were dirty. He was getting clothes and putting them into a black garbage bag from A.’s room. Then he was downstairs, and he was asking his mom for the roofing bill and when he was asking for it “he looked a little mad,” like he was “pissed off.” His father went back upstairs, and he was getting clothes and then when he was coming back downstairs his father started arguing with his mom. Sa. did not remember exactly what he was upset about but it might have been the roofing bill. Sa. was coming down the stairs as well as his mom and dad. He was 14 at the time. They were arguing and his dad “was walking towards the door and then that’s when he turned around and started choking my mom.” This was by the front door. Before this there was no physical touching of any kind before the choking. His father dropped the black bag he was carrying and then started choking his mom. His mom had not touched his dad. He “turned around and then with one hand he grabbed my mom’s throat and started squeezing it.” He did this first. When his hand was on his mother’s throat she was trying to push it away.

[24] He testified he tried pulling his father’s arm or shoulder and punched the same area. His father pushed and punched Sa. in the area of his elbow to his shoulder, in that area, of either arm. Sa. cannot recall which of his arms his father pushed and punched. The push was more forced and the punch was a little less forced. His father punched him with a closed fist. He was pushed and punched by his father when he was trying to separate them and he was punched when he was grabbing his father’s arm. “It happened pretty quick.” His mother was “kind of gasping for air.” He did not feel good about what his father was doing. This was why he tried to separate them. After his father let go and he had punched S. was when his mother said she was calling the police. After his mom was gasping for air and she had to take a seat. The police came and he provided a statement to an officer that day.

[25] When his dad was doing those things he appeared to be mad. He was yelling and from his facial expressions Sa. believed his father was “pissed off.”.

[26] In cross-examination Sa. testified he did not recall if his brother A. was at home. He agreed his dad was packing up clothes. He asked him specifically, “Are you moving out?” His dad had called him and told him he had served his mom with separation papers. Sa. testified his father had said things about intending to take he and A. 50% or he said he was going to take all of it not even 50. He agreed he was concerned about his parent’s separating and did not want that to happen.

[27] The only thing he remembered them arguing about was the roofing bill but they were discussing other things. He agreed he thought the roofing bill was something like $10,000. He was not really paying attention until they started arguing. He did not know if his mom was upset.

[28] Mr. Chan played the audio recording for Sa., which was recorded surreptitiously by his father during his time in the house on July 12, 2020. He identified his mother’s voice asking his father if he was moving out. As he was listening to the recording Sa. testified he heard Tamil words being spoken that were not translated correctly in the transcript he had been provided by Mr. Chan. At one point he testified he heard his father saying, “You will see it’s not recording you idiot” and he could tell his father was “pissed off” because “he’s swearing but it wasn’t translated correctly” in the transcript. In my view the recording was of very poor quality and it was difficult to follow along with the transcript. Further, it was extremely difficult to make out what words were being said. On a number of occasions this was confirmed by Sa. who testified he could not make out the words purported to being spoken. I will discuss this audio recording in more detail when I am dealing with Mr. S.’s evidence on what he testified took place on July 12, 2020.

[29] Sa. agreed he could hear his mom asking him to “check it as he may be recording” but he did not agree his mother was saying she wanted him to check it because she wanted to talk. He did hear his father saying, “No, no, I mean you know you can’t touch me, right? No, no.” At one point the transcript indicated Sa. was speaking but it was “inaudible”; however, after listening to this portion of the recording again Sa. testified he was not speaking it was just his mom and dad.

[30] Sa. agreed at one point he was checking a Samsung phone his father gave him to see if he was recording and it was not recording but he had asked for his father’s other phone and not the one his dad gave him. Sa. agreed up to this point there was no physical altercation, it happened later by the front door.

[31] Sa. agreed he overheard his mother asking his father if he had something in his pocket. He was there when she was asking his father this. In my view this portion of the recording corroborates Ms. G.’s evidence she believed her husband had taken something when he was in the house, like the car keys, and she was concerned so she asked Sa. to check.

[32] At one point on the recording, when Sa. believed they were upstairs in A.’s bedroom, he heard his father say to his mother, “I, I, don’t…Hey, don’t touch my friend.” Sa. testified when his father said this his mother was not touching him. He denied his mother was trying to reach for his father’s pocket. In my view this evidence is significant, as Mr. S. knew he was recording the conversation as he purchased a digital recorder prior to coming to the house with the intention of recording what was said. As I will discuss further, it is my view in listening to this recording, apart from its poor quality and sound, that there are a number of occasions that Mr. S. was saying things that were inaccurate or not occurring, in what I believe was an attempt to create evidence or to create the impression or inference that Ms. G. was behaving in a certain way, when she was not. This is an example of Mr. S. fabricating evidence to portray Ms. G. in a negative light. Sa. testified this was said by his father as they were walking downstairs just before he went to the front door.

[33] On the recording Sa. agreed his father said, “Don’t touch it please,” yet his mother was not touching his father. His mother then says on the recording, “No, I’m not touching, you’re touching me.” Sa. said this is when it happened. They were at the front door in the hallway. His parents were arguing and it looked as if he was going to leave. His father went to the front door first. Sa. disagreed that he remained upstairs when his parents were at the front door. He was right there by them at the front door. His father choked his mom and then pushed Sa. and punched him when he tried to intervene. Sa. was not paying attention to what his father was saying he just wanted him to stop what he was doing.

[34] Sa. was asked about his being interviewed by the police officer who came to his house. He was interviewed in the officer’s car. The officer was typing on a computer as Sa. was providing his answers. He was not given a copy of his statement. He reviewed it with the Crown the day before testifying. When he reviewed his statement there was one thing that was inaccurate. The statement indicated his father pushed him and slapped him together but his father did not slap him. It was a punch with a closed fist, his hand was not open so it was not a slap. His explanation was he was still in shock by what happened, He told the officer he could not understand why his father was so upset.

[35] Sa. testified he intervened by grabbing his father’s arm after his father was choking his mother. This was why she was able to get away as he told the officer. He testified he was asking his dad, “What are you doing?’ This was when his father pushed and punched him. Everything happened at the same time. His father grabbed his mother by the neck and he went into separate them and his father pushed him and punched him. He let go of my mother when he started to focus on me, which was how she got away. While all this was happening Sa. testified he asked his father what he was doing. This is what he told the officer on July 12, 2020, during his interview. In my view there is no inconsistency between Sa.’s statement to the police and his testimony in court. He did not sign the officer’s typed record of what Sa. was saying to the officer and there was no evidence that the officer read what Sa. had told him. His description of the interaction between his father and his mother and with himself in my view logically makes sense and is reasonable and internally consistent as between his statement and his testimony in court. As I will discuss further, Mr. S.’s evidence that Sa. was in the living room at least 20 feet from the front door does not accord with common sense given Sa.’s evidence he had followed his parents upstairs to his brother’s bedroom and then back downstairs as a result of what he described as his father’s unexplained upset towards his mother. Further, both Sa. and Ms. G. testified there were interactions and conversation missing from the digital audio recording made surreptitiously by Mr. S. when everyone was standing by the front door and the assaultive behaviour is alleged to have occurred. I will discuss this issue further when I set out Mr. S.’s evidence.

[36] Mr. S. has a Bachelor of Science degree from DeVry University in California. He worked in Springfield, Illinois from 2002 to 2010 in IT consulting. Currently he is working for the Bank [name removed] as a Senior Project Manager for the past 4 years. After moving out of the family home in July 2020, he has been residing with his parents. His only record is an impaired driving offence in 2021 for which he was fined and his license was suspended. He has a younger sister, Sha., who testified, and an older sister, Shar.

[37] Mr. S. agreed he and his wife, M.G. were living separate and apart in the same home, M. Crescent, from the end of 2015 to June/July 2020. After June 23, 2020, until July 12, 2020, he was staying overnight at his parents’ home in Scarborough and only returning to M. Crescent on occasion. After June 23 he hired a family lawyer who sent his wife an email. He told his son, Sa., on July 6 that he and Sa.’s mother were separating. He met with his wife and Sa. on July 7 and then the next day went back to his parents. He did not return again to M. Crescent until July 12, 2020, when he arrived unexpectedly.

[38] Mr. S. testified he had purchased a digital recorder prior to coming to the house on July 12. He bought this recorder with his brother-in-law, R.K., from Best Buy with the intention to record any conversations he had with his wife when he attended the house or spoke with her.

[39] On July 12, 2020, Mr. S. attended M. Crescent and had the digital recorder in his pocket. When he came into the house he spoke with his sons first and asked if they wanted him to get them some food for lunch, yet both of his sons indicated they had food already. It is my view Mr. S. repeated this offer several times despite his sons advising they did not want McDonald’s or some other fast food. Mr. S. testified there were words spoken in Tamil throughout the recording. These words according to Mr. S. were either translated or the transcript was marked “inaudible.” It was Mr. S.’s position any time a Tamil word was translated the translation to English it was accurate. However, it was Sa. who first pointed out there were Tamil words and phrases said throughout the recording and it was his position that the translation was often not accurate or he was able to make out some of the “inaudible” portions. This, in my view, creates a significant and unresolved issue concerning the recording, Exhibit 1. The defence did not call any evidence by a qualified interpreter as to what these Tamil words and phrases are in English. A further difficulty is related to the poor quality of the recording itself, where it was difficult to verify the transcript as being accurate as the words spoken were impossible to make out. There was also background noise on the recording, “scratching sounds,” perhaps caused by the recorder rubbing inside Mr. S.’s pocket that interfered with being able to make out what was being said.

[40] A final significant issue, raised by the Crown, was the authenticity of the actual digital recording, Exhibit 1, played in court. As I have indicated, both Ms. G. and her son, Sa., testified there were a number of conversations that were missing from the digital recording played in court. The digital recorder was not provided to the court or to the Crown to be examined. This was an area in cross-examination where I believe Mr. S. was particularly evasive in providing answers. Exhibit 1 was only a copy, on a data stick, with no evidence as to how it was created or by who, although Mr. S. finally testified when he was challenged on this issue that it was his brother-in-law who copied the digital recording from the recorder to a computer. Mr. S. initially testified he does not do coding and has not taken courses involving computers. He brother-in-law knows how to get information from the recorder and put it on a computer. Eventually he agreed he could have done it but he did not do it, although he agreed an electronic file can be edited. Even after both Sa. and Ms. G. alleged there were a number of occasions where conversations were missing the original digital recorder was not provided to the Crown for its authenticity to be verified and no evidence was led as to how the data stick was created.

[41] I find Mr. S. was not truthful when he was questioned about this issue by the Crown. He testified he did not understand how digital recordings work and he did not have the technical knowledge to be able to edit what was recorded, yet he worked as an IT consultant in the United States for 8 years and was currently working as a Senior Product Manager for the Bank [name removed]. Initially he testified he would not know how to edit a digital recording but ultimately conceded he could have. He described his brother-in-law, who went with him to purchase the digital recorder, as being “high tech,” although during cross-examination he referred to “meta data,” which in my view demonstrates Mr. S. was being less than forthright and truthful. It was my opinion he was being evasive during the Crown’s cross-examination on this issue.

[42] Mr. S.’s evidence is completely different from Ms. G.’s and Sa.’s evidence as to the interactions and conversations that occurred after Mr. S. arrived at M. Crescent on July 12, 2020. Ms. G. testified she began to suspect her husband was taping the conversations occurring while he was in the house. She came to this conclusion because of how he was acting and she believed he was using something he was hiding in his pocket. Mr. S. denied he was recording anything in answer to Ms. G.’s accusation. In fact, at one point during the recording played in court Ms. G. accused her husband of recording and in response he provided a Samsung cell phone to Sa. to prove he was not recording. Sa. testified he asked his father for another cell phone he knew his father had but his father would not give it to him. Mr. S. admitted he was lying to his wife and son because he was recording the conversations through the digital recorder he had brought to the house and he was doing this surreptitiously.

[43] It is my view when listening to Mr. S. speaking to his two sons and in his conversations with his wife that he is speaking for the benefit of the recording being played at some point in the future. It is my view all of his conversations are couched with this knowledge as he is speaking to his wife and son, knowing he is recording their conversations and intending to use them to support his position. This raises in my view serious concerns about the reliability of his comments and interactions, both with his sons and with Ms. G.. He testified he had retained a family lawyer, who sent Ms. G. an email on July 6, and that he told Sa. he intended to obtain a legal separation on the same day, July 6. He then purchased the digital recorder and went to the matrimonial home unannounced with the specific purpose of recording his comments and conversation with Ms. G. and his sons.

[44] Both Sa. and his mother, Ms. G., testified there were portions of what occurred when Mr. S. was in the house that were missing from the digital recording played in court. It is my view that Mr. S. deliberately coordinated and planned out the sequence of interactions he had with his children and later with his Ms. G. It was clear that Ms. G. also believed her husband was orchestrating something and asked him if he was recording them because she began to suspect he was recording because of how he was acting and by what he was doing in the house. This was when she first asked Sa. to check his father’s pocket.

[45] One area where Mr. S.’s evidence did not accord with what was said on Exhibit 1 related to the roof repair bill that Ms. G. had paid for and was looking for her husband to provide payment for half, related to who suggested Mr. S. take a picture of the roofing bill. Mr. S. testified his wife would not let him look at it and all he wanted to do was to take a picture of it with his phone, yet the recording clearly indicated it was Ms. G. who told her husband he could take a picture of it but he could not remove it from the house. She made reference to mortgage papers that her husband had taken from the house and this was why she did not want him to take the roof repair invoice. Both Ms. G. and Sa. made reference to this disagreement and indicated there were portions missing from the recording respecting this interaction.

[46] The most significant portion both Sa. and Ms. G. testified had portions missing related to the final period of time when they were all standing by the front door. This was where both Sa. and Ms. G. testified Mr. S. became very upset and grabbed Ms. G. by her throat with one hand and choked her. Sa. testified he was right there when this happened and yelled, “Dad what are you doing.” This cannot be heard on the recording presented by the defence. Sa. and Ms. G. both indicated that Sa. said this and it was missing from the recording. Mr. S. maintained Sa. was not present at the front door but was 20 feet away in the living room. This does not make sense for Sa. to move 20 feet away given his father agreed in cross that Sa. was coming down the stairs with he and Ms. G., Sa. had been following his parents throughout their interactions in the house and it was at this point, when they are all at the front door that both Mr. S. and Ms. G.’s voices became raised and Mr. S. was becoming upset as described by Sa. in his testimony.

[47] As I have indicated I do not accept Mr. S.’s evidence on this issue. Sa. testified he followed his father upstairs and downstairs. It was Ms. G.’s evidence she was using Sa. to question and check her husband as to what he was taking, if anything, from the house. I find Sa. was right there by the front door and he intervened when his father grabbed his mother by her throat and choked her. He testified his mother could not breath and he grabbed his father’s arm, which caused his father to let go of his mother because he pushed Sa. hard and then punched him with his closed fist. Sa. testified he told the officer the same thing he testified to in court about his father punching him. Sa. testified he was still in shock when he was interviewed by the police officer and if he said a slap to the officer that was incorrect as his father’s fist was closed. There was no evidence the officer read back what he had recorded in the police cruiser on his computer to Sa. Mr. Chan put to Sa. he said the following to the officer when he was being interviewed: “He hit me, it was a good push and a slapped together. He hit my arm/shoulder area and he left the house. He was yelling something but I can’t remember.” Sa. agreed he said what was in the officer’s report but he forgot to tell the officer that it was a push and then a punch. It wasn’t a slap because his father’s fist was closed, so it was a punch technically. I find Sa.’s evidence accords with common sense and logic and he was not evasive at any point when he was being cross-examined. His answers were responsive to the questions asked by Mr. Chan. I accept his evidence respecting what occurred at the front door of the family home as his father was leaving. He testified his father was very upset and “pissed off” and he did not really understand what caused this but it resulted in his father choking his mother and when he intervened it resulted in his father forcefully pushing him and punching him in the shoulder area, which resulted in his father letting go of Sa.’s mother’s throat. In my view Mr. S.’s upset was caused by Ms. G. not allowing him to take the roofing bill out of the house and her attempting to get Sa. to check his pocket to see if he was recording their conversations. He did not want to be caught surreptitiously recording everyone’s conversations.

[48] It is interesting that Mr. S. testified that the final thing he said on the recording, “Guys” was said by him to cause his wife to think he had some friends outside the house so she would not follow him outside. This makes no sense whatsoever. I do not believe Mr. S.’s explanation for his saying this one word, “Guys” and it is my view this does not accord with common sense or everyday interactions given it is clear from the final portion of the recording played in court that Mr. S. was becoming quite upset and it was Ms. G. who responded to her husband when he told her not to touch him that she wasn’t touching him, rather he was touching her. The last thing on the recording Ms. G. says is “Stop doing this, stop doing this” and she is clearly distraught. Both Sa. and Ms. G. testified that Sa. told his father to stop what he was doing but this is not on the recording. Further, both Sa. and his mother testified after this occurred and just before Mr. S. left the house, Ms. G. told him she was calling the police, which she did. It is my view there are portions of the recording missing throughout the interactions as described by Sa. and Ms. G. and the most important portion just prior to Mr. S. leaving the house through the front door. In my view Mr. S. said, “Guys” after he was outside the house and the front door had already closed.

[49] Considering the totality of the evidence respecting this incident, I do not accept Mr. S.’s testimony respecting the July 12, 2020, incident and it does not raise a reasonable doubt when I consider it in the context of the evidence as a whole. I found him to be evasive in answering questions in cross-examination, particularly in respecting of his knowledge and understanding of the digital recorder he purchased. Ultimately he admitted having the necessary expertise but denied transferring the audio recording from the digital recorder to his computer. He was not forthright or truthful respecting what occurred at the front door. In my view Sa.’s description of his father becoming more upset the longer he was in the house and “pissed off” is corroborated by the recording, where Mr. S.’s voice is raised and demonstrates his upset. He attempted to deflect this by saying he wouldn’t say it was a “heated” interaction at the front door. I do not agree with his characterization or his attempt to minimize just how upset he was. Later in cross he admitted his voice was raised as he was upset. I accept the evidence of Sa. and Ms. G. respecting their evidence that portions of the recording are missing. I find Mr. S. has tampered with the digital recording and this significantly diminishes his credibility and reliability. He had complete and sole control of the digital recording. I accept Sa.’s evidence and where Ms. G.’s evidence is corroborated by Sa.’s evidence I accept her evidence.

[50] Based on the totality of the evidence led by Crown and defence respecting the allegations from July 12, 2020, I find Mr. S. guilty of assaulting M.G. and assaulting his son, Sa. In my view the Crown has met its high onus of proof beyond a reasonable doubt.

The June 23, 2020, Incident

[51] This was the date of Sa.’s graduation and Ms. G. had gone with her sons to Sa.’s friend E.’s home with his family. After the graduation they went to E.’s family’s house to celebrate. While they were there, her son A. had an allergic reaction where his face became swollen, which she believed was caused by the dogs in the house. Ms. G. brought A. home to have him rest in bed and to take the Benadryl. When she arrived home she saw Mr. S. was sitting on the porch drinking what she believed was alcohol from an LCBO bag. Ms. G. testified she discovered she did not have any Benadryl, so she called E.’s mother, J., and found out she had some. She had A. lay down in the master bedroom, which was her room as she and her husband were separated but living in the same house. She then went and got the Benadryl. Sa. was planning to have E. come to the house for a sleepover so he had come home and was cleaning his room. After picking up the Benadryl from E.’s mother she discovered it was expired.

[52] She testified she went up to check on A. in the master bedroom with her son Sa. before going to the pharmacy to get some Benadryl. When she went into the bedroom she found that her husband was now laying on the bed beside A. What she observed made her very angry and she began to yell and swear at her husband and she testified she dragged him out of the bed. [1] Ms. G. testified Sa. was with her when she went into the bedroom. She tried to pull her husband off the bed and he started pushing her back, which pushed her into a dresser. Her husband was now punching her with a closed fist and hitting her and Sa. tried to block him but her husband began to hit Sa. Her husband was punching her all over. She testified she usually would back away but on this occasion she was so upset by what she saw him doing she was “repelling him” this time. Sa. got in between them and her husband was hitting and pushing him away when he tried to intervene.

[53] Ms. G. grabbed her phone and told her husband she was calling the police but instead she called his sister, Sha., as his sister had told her previously if she ever had any issues with her husband she should call Sha. and not the police. Sha. told her to call and she would come and help Ms. G. So she called Sha. instead of the police. Ms. G. told her husband she had called his sister, Sha., and he got very angry with her and continued hitting her. He also was pulling her hair when he was trying to take her phone. Ms. G. testified she told Sha. that she needed help and needed Sha. to come and get her brother. She needed her husband to be out of the house. She testified she told Sha., “I need help. Your brother is hitting and doing things and I need your help.”

[54] Ms. G. told her husband she had called his sister to come to take him away. She testified when she told her husband she was taking A. to get the Benadryl, he said, “So, you’re leaving right now and taking A. and going to the police.” She told him, “No, but I will call the police and I will turn you in.” It was during this conversation before she left that he threatened her by saying, “I will kill you if you open your mouth. I’ll make sure you come to the street. You won’t have the children, I will take them away, you won’t have this house.” It was at this point the doorbell rang and Sa. opened it and his friend E. was there for the sleepover that they had planned.

[55] This was when Ms. G. testified she had taken out her phone, they were upstairs in Sa.’s room and she began recording her husband. On the recording he asked her where she was gone for three hours but she had not left yet. She testified the video demonstrated how drunk her husband was. This very brief video recording was played by the Crown during her cross-examination of Mr. S. and it was marked as Exhibit 5. I have watched the video, which is about one minute, several times, and in my view it is too short to be able to assess whether Mr. S. is under the influence of alcohol. What it demonstrates is that when Ms. G. began to record her husband with her phone, he pulled out his phone and said he was recording her too. Then the video abruptly ended. Sa. can be seen in the room where they are while this recording was made. Sa. was not questioned about this.

[56] It was at this point that Ms. G. testified she left to get the Benadryl with A. because she did not want to leave him in the house. It was Ms. G.’s evidence that she never asked her husband to get Benadryl and there was no argument between them concerning Benadryl. Sa. and E. stayed in Sa.’s room and Mr. S. stayed in the house. When she got back Sha. was outside the house. She told Ms. G. she was there for her brother and that she had called 911. Ms. G. parked her car in the garage and she brought A. into the house, gave him Benadryl and had him lie down.

[57] At some point the doorbell rang again but neither she nor her husband opened the door. She testified she was afraid to open the door because of the threat her husband made towards her. The garage was still open and a police officer came into the house through the garage door. Ms. G. testified the police had to tell her husband to calm down and to sit down as he kept trying to interfere with the officer who was speaking to her. However P.C. Shafiq testified that Mr. S. was calm and he did not detect any odour of alcohol when he was speaking to him. He also testified another officer went with Ms. G. into another part of the house and that the two parties were spoken to separately. According to P.C. Shafiq, Mr. S. was prepared to go stay with his sister but it was decided by both parties that he would remain at the house. Ms. G. testified she decided not to tell the police officer anything and kept her mouth closed. She did not disclose any assaults by her husband that night. She testified she was “really scared of her ex-husband and because he had threatened her” she decided to remain silent and did not tell the police what she observed her husband had done to A. or that he had assaulted her and threatened her. Ms. G. testified she had bruising from the punches and hits by her husband on her chest and the top of her left shoulder area but she did not seek medical attention.

[58] Mr. S. indicated the argument between he and his wife was over the fact he would not go out to get Benadryl. He testified Ms. G. called his sister to come to their house because he would not get the Benadryl and they were arguing. He testified the previous day he had been at Walmart and called his wife to see if she wanted him to buy Benadryl because A. had been swimming and had a red eye but she said she needed to ask the doctor if Benadryl was the correct medication. Mr. S. testified when his wife came home he was sitting on the porch, she had A. in her arms carrying him and she told him they needed to give A. Benadryl. She asked him to go to Walmart to get it but he said no because he was there the previous day. According to Mr. S. this led to their argument and his wife said she was going to call his sister, Sha. When she called his sister he could hear Sha. on the phone, so he told his sister to come and get him, to help diffuse the situation. He did not have the phone but said this and Sha. testified she heard her brother say for her to come. Mr. S. testified he also told his sister to call M.G.’s family members as well to come to their house because of this argument over the Benadryl. Mr. S. testified his son, Sa., was in his room and not present when he was with M. and they were arguing. Nobody else was with Sa. in the house, referring to E. He testified A. was in the master bedroom lying on the bed.

[59] Mr. S. denied assaulting or threatening his wife on June 23, 2020. He also denied assaulting Sa. on this date. He initially denied drinking any alcohol and said he was sure about that, although in cross-examination when he was confronted with what his sister, Sha., told the 911 operator and the police officer who came into the house that her brother had been drinking, he ultimately said he could not remember if he had been drinking. In my opinion this change in his testimony was completely contrary and inconsistent with his initial testimony in chief and I find this reflected detrimentally on his credibility and reliability. Mr. S. testified he had tried to go for his son’s graduation but missed it because of a meeting, so he stayed at home. After finishing his work he sat on the front porch of their house and watched people walk on the street or spoke to people on the street. He initially testified he was not sure whether his wife and son A. had come home but then indicated he saw her carrying A. into the house while he was sitting on the porch. He thought A. looked tired and sleepy.

[60] Sha. testified in court that M.G. called her and asked her to come to her house as she and her brother were having an argument about whether he would go get Benadryl for their son A. who was having an allergic reaction. This was not what Sha. told the 911 operator. The 911 call was played and a transcript was filed (Exhibit 6 and 6a) during Sha.’s cross-examination. In the 911 call Sha. said Ms. G. was not allowing her to see her brother, told her she was trespassing and was threatening to have the police put her in jail. M. was also would not allow her to take her brother, Mr. S., to her home. Sha. at the time of her call told the operator she was sitting in her car parked outside the house. The operator told Sha. this was not a threat as Ms. G. was not threatening to hurt Sha. Sha. responded M. would make it up as she was very manipulative. Sha. agreed she would stay in her car and her brother could get his things and they would leave to go to her house. At one point on the 911 call she can be heard speaking to her brother and telling him to get his stuff and his office laptop to do his work before going to her home.

[61] Mr. S. initially denied consuming any alcohol on June 23, yet Sha. told the 911 operator that her brother had taken a bit of alcohol because he was really upset with the situation. Although Sha. also assured the operator that her brother was fine. She also told the 911 operator that M. was concerned about her brother’s drinking and that M. did not drink herself. However, in her evidence Sha. testified she never said her brother had consumed alcohol, this was something M. had told her. It was my view that Sha. was very evasive in her answers in cross-examination on this issue, her evidence changed when she was confronted by the 911 call put to her by the Crown. It was my opinion Sha. was making up her evidence as she was testifying in court when she was confronted by the inconsistencies demonstrated by the 911 call. It is my view she was attempting to put her brother, Mr. S., in the best light. There is nothing in the 911 call about an argument over Benadryl caused by an allergic reaction of their son. It was clear from the 911 call that Sha. wanted her brother to come with her to her home but Ms. G. was preventing her from doing that. I do not believe on the evidence that Ms. G. was trying to prevent her husband from going to Sha.’s home. At one point in the 911 call Sha. told the operator her brother was outside speaking to her and the operator said then “why can’t he go to your address right now?” Sha. responded she could not take him as M. was threatening to call the police and say Sha. was trespassing. I do not believe Sha.’s evidence in court.

[62] Finally, in her evidence Sha. testified everything happening at the house was over her brother’s refusal to go to the store to get Benadryl for A. yet, as I have already indicated, in her 911 call there is no mention of Benadryl at all. Further, Sha. testified she knew M. had just returned from the store to the house and was upset with her husband about something. It is unclear from Sha.’s evidence whether M. called her or her brother called her but during Sha.’s phone call with either M. or her brother, she heard him tell her to get the whole family to the house, as well as M.’s family, which she did. From the evidence it appears that Sha.’s parents and Sha.’s friend and a best friend of her brother’s and M.’s family were all outside the residence when the police arrived.

[63] It is my view the seriousness of this alleged argument respecting Benadryl, referred to by both Mr. S. and his sister in almost identical terms, was fabricated by them. Further, in my view it does not accord with logic or common sense that an argument over Benadryl would be sufficiently serious to result in two entire families and close friends rushing to and attending a residence with the police being called. Ms. G. made reference to observing something that greatly upset her involving her husband and A., which caused her to pull or drag her husband off the master bedroom bed. This was where she described being assaulted and threatened by Mr. S. It is my view whatever she believed she observed ultimately led to the various family members and friends being contacted and arriving at the residence and Sha. calling 911 and the police arriving on scene. M. also described her son, Sa., being assaulted by his father on June 23, yet when Sa. testified as the first witness, no questions were asked of him concerning a physical altercation between his parents, or whether he intervened in this altercation or whether anything happened to him by way of assaultive behaviour by his father. It is difficult to understand why the Crown did not question Sa. about the June 23 altercation between his parents. As I have already found, Sa. was a very credible and reliable witness, whose evidence respecting the July 12 incident I accepted.

[64] It is my view that Mr. S. and his sister, Sha., fabricated the argument between Ms. G. and Mr. S. respecting his refusal to get the Benadryl. I find there never was a request for Mr. S. to purchase Benadryl by Ms. G. The evidence is clear Ms. G. left the house to get the Benadryl (on the brief video, Exhibit 5, Mr. S. accuses his wife of being gone for three (3) hours, which could not possibly have been accurate as she left and returned to the house just after all the family members and friends arrived). Further, it was after she returned and was in the house that the police arrived on scene. I do not believe that a disagreement about Benadryl led to Ms. G. calling Sha. to come to get her brother out of the house. Ms. G. testified she called Sha. because of what she observed respecting her husband and A. Whatever Ms. G. believes she observed in the master bedroom is not before me and is not part of this trial. I am not taking that into account whatsoever. I certainly have suspicions there was an assault by Mr. S. of Ms. G. in the master bedroom and that he also threatened her; however, there are gaps in the evidence that cause me to be unable to be satisfied beyond a reasonable doubt of his guilt. Perhaps the primary and most significant gap in the evidence is the failure to ask Sa. about what he observed and whether anything happened to him in terms of his being assaulted on June 23, 2020, as well. As a result I am dismissing the charges of assault and threatening facing Mr. S. alleged on that date.

The November 2019 Incident

[65] Ms. G. testified that on November 26, 2019 she was at a builder’s event in downtown Toronto. She is a real estate agent working with [name removed] and his company specializes in pre-construction and when builders release their condo projects she will receive invitations to the launch events, which happened on this occasion. She went to the dinner at a place called Sophia Restaurant and was dressed very nicely. The builder was Lanterra Developments Limited. When she returned home he was sitting on the sofa drinking, watching TV and he asked her where she had been dressed like she was. She told him he knew where she had been and he began to make derogatory remarks to her, calling her “bitch” and asking if she was sleeping around. She believed he was drunk so she told him to be quiet as he would wake up the kids who were asleep. He came close to her and punched her on her face, her eyes, her cheek and jawbone and it swelled up really bad. When he came towards her she knew he always ended up punching her, so she tried to push him back. He is very strong so he just punched her in the eye and jaw. She could not recall how many punches he did.

[66] She saw herself in the mirror and knew she had to go to the hospital so she left. She testified she considered going to Ajax/Pickering Hospital emergency; however, she believed if she went to Ajax hospital he would come there as he had done this once before. She drove to a local parking lot, left her car and called a taxi and went to Toronto General Hospital where she was seen by an Emergency doctor. The doctor asked if someone had hurt her but she said, “No.” She had an injury to her jaw, TMJ and a black eye. She did not tell the emergency doctor what had happened because her husband always told her “he would put her on the street and take the children away.” She took two photos of her face. Photo #1, marked as Exhibit 2, shows a big bubble just above her left eyebrow, which looks like it will burst and a swollen jaw. This injury was caused by his punch and she took the picture before she went to the hospital in her car or in the taxi. Photo #2, Exhibit 3, she believed this photo was taken a couple of days later and shows there is now swelling under her left eye and there is now a bruise above the left eye where the bubble was. She took both of these photos. She provided both of these photos to the officer in charge when she reported the assault on July 12, 2020.

[67] She testified she continues to have a clicking in her jaw. She was referred by her dentist to an orthodontist specialist. She was referred to a physiotherapist by the specialist.

[68] In cross-examination she testified she did not recall when the event concluded. Her husband assaulted her after she arrived home. Before she left Sa. came downstairs and she told him to go back to bed. Her husband remained in the house. She did not drive to the Ajax Hospital, which would be the closest hospital because that would be where he would follow her. She parked her car in the Goodlife Plaza, which is at Westney and Taunton. She did not see her husband following her. She called a taxi to take her to Toronto General Hospital.

[69] She testified that in the past when she has been hurt by him and she told him she was going to the hospital he followed her. This was why she went to Toronto General Hospital. She did not recall how long it took her to get there. She agreed if the hospital record indicated she was assessed around 1:30 a.m. on November 27, 2019, then that would be the correct time. She did not recall how long she had to wait before seeing the doctor. Ms. G. testified she did not return to her home after finishing in the hospital emergency and she slept in her car. She was concerned if she went home there would be a further incident and she knew her husband had a trip planned to go to the US to visit friends on November 27.

[70] Ms. G. agreed the cell phone number provided by Mr. Chan was her cell phone. Mr. Chan then produced a text message exchange between Ms. G. and Mr. S., marked as Exhibit 4. The texts were commenced by Ms. G. at 3:08 a.m.

Ms. G.: ........ Please wake up the kids at 7 am and give bread with fried egg for lunch (3:08 am) Ms. G.: Plz make sure they wear boots to school as it will rain (3:33 am) Ms. G.: Confirm you got my text??? ?? (6:33 am) Ms. G.: Wake them up at 7 (6:34 am) Mr. S.: Where are you ((6:34 am) Mr. S.: Where are you??? (6:41 am) Mr. S.: Sa. said you’re at the ER. Is everything OK? What happened? (11:41 am) Ms. G.: Which suitcase are you takinh (sic) (12:58 pm) Mr. S.: Taking mine Mr. S.: Are you avoiding respond to my questions? Ms. G.: I will tell you in person What time you leaving (1:03 pm) Mr. S.: around 2ish Ms. G.: I will be home in 1 hr I will call you shortly (1:22 pm) Mr. S.: ok. 8 made the shake for the kids and left it on the table (1:47 pm)

[71] Ms. G. agreed she sent text messages in Exhibit 4. Her husband was going to Springfield, Illinois where he used to live in the US to see his friends for Thanksgiving, which he did every year. She denied going to the Toronto General Hospital from the Sophia Restaurant.

[72] Mr. Chan referred Ms. G. to her video statement to the police on July 12, 2020, where D.C. Sitaram made reference to two dates of December 20 and 25, when he was referring to the two photos, Exhibits 2 and 3 when Ms. G. showed the officer from her phone. Ms. G. testified she did not know what the officer was referring to but she took the first photo (Ex. 2) in her car or the taxi before arriving at Toronto General on November 26 and the second photo (Ex. 3) was taken by her a couple of days after that. She made reference to the fact that the photographs were still on her phone and the date they were taken was reflected in the information about the photo. During re-examination it was agreed by counsel that a recess be taken to allow both counsel to examine Ms. G.’s cell phone to examine the photos and the data associated with each. After examining these photos counsel presented an Agreed Statement of Fact indicating Exhibit 2 was taken on November 27, 2019, at 12:46 a.m. and Exhibit 3 was taken on November 28, 2019, at 2:05 p.m. This evidence corroborated Ms. G.’s evidence as to when the photos were taken by her.

[73] Ms. G. explained in re-examination why she did not confront her husband about the assaults from the previous night in the texts they exchanged on November 27, 2019. Ms. G. testified a similar incident occurred previously where her husband showed the kids texts they had exchanged and they had become scared and worried about her. It was her view he was pretending that he did not know where she was but he knew exactly where she had gone. She knew he was leaving for the US the next day so she was waiting in her car for two reasons, first by morning he would have sobered up and then he is a completely different person and second she decided to just wait until he left so there would not be a further incident. In my view this accords with common sense.

[74] Mr. S. agreed he knew that his wife was going to a builder’s award dinner in Toronto. She left to go in the afternoon before 4 or 5 p.m. and he stayed home with his sons. He could not recall what he did with his kids that night. He denied M. came home after the dinner. He denied assaulting her. He testified it did not concern him at all that she had not come home when he was going to bed at 11 p.m. He woke up at 6:30 a.m. and saw her texts and responded to her. In cross-examination he said he was not alarmed or concerned she had not come home the next morning.

[75] Ms. G. agreed she told Sa. when she was telling him to go back to sleep that she was going to the hospital. This was after her husband had assaulted her and injured her left eye and jaw. She knew her husband knew she was going to the hospital because she told him she was going there but he would not know which one she went to. The reason she did not drive herself because she was in so much pain from the assault.

[76] It is my view the text exchange from the early morning hours until just before Mr. S. left for the US demonstrates that he when he asked his wife where she was he already knew. His text at 11:41 a.m. in my view proves this, as five hours after asking “Where are you???” he states in a text that Sa. had told him that M. was at the ER, but by that time Sa. was already at school and was not speaking to his father at 11:41. He testified in chief M. had called Sa. and told him something but did not indicate what she told him or when this occurred. It was not put to Ms. G. in cross-examination that she called Sa. at some point on November 27. If Ms. G. called Sa. it would have been before he went to school, long before 11:41. It is my view Mr. S. fabricated learning from Sa. around the time of his text that M. had gone to the hospital. If Sa. had told this to his father it would have been when he got up in the morning based on his mother telling him she was going there when she told him to go back to sleep, which puts a lie to Mr. S.’s evidence that she never came home the night before. In my view this leads to a reasonable inference that Mr. S. is doing exactly what Ms. G. testified he had done previously in creating text messages that would later show the children.

[77] Further, if Sa. had told his father this why was he not asked by Mr. Chan about his conversation with his father when he testified as the first witness on this trial. Mr. S. clearly had the text exchange from the morning of November 27, 2019, as counsel put this to Ms. G. in cross and filed it as Exhibit 4. The Crown submitted if Mr. S. had been told by Sa. in the morning before going to school that his mother was at the hospital why wasn’t Mr. S. calling Ms. G. on her phone much earlier than 11:41, to find out what had happened to her that caused her to have to go to the hospital. The Crown submitted he did not call her on her cell phone because he knew exactly where she was because of what happened just before or after midnight on November 26 or 27, 2019, when he assaulted her by punching her in the face after she came how from the builders’ awards dinner.

[78] There is no doubt that Ms. G. sustained serious injuries to her face as reflected in the two photographs filed as Exhibits 2 and 3. Mr. Chan attempted to use her video statement to suggest the photographs were not taken on November 27, 2019, and a day or so later, yet when both counsel examined Ms. G.’s cell phone the data relating to the photographs corroborated her evidence as to when the photos were taken by her. When Ms. G. was challenged in cross examination respecting the date the photos were taken she maintained her phone would reflect the dates she testified to. It is my view Ms. G.’s answers were responsive to the questions put to her, she provided her answers calmly, without anger or upset and maintained her position. I found her to be a credible and reliable witness. Her evidence that Exhibit 2 was taken on November 27, 2020, just after midnight, as she maintained and Exhibit 3 was taken a day later, as she maintained, despite a vigorous cross-examination by Mr. Chan utilizing comments made by D.C. Sitaram about the dates of the photographs being in December 2020, from the video statement, in my view clearly demonstrated and enhanced her credibility and reliability.

[79] It is also my view that the timing of the first photo, which shows it was taken at 12:46 a.m., supports Ms. G.’s evidence of her taking that photograph in her car, when she was in the parking lot, as you can see from the driver’s headrest behind her head. The timing of the photograph also fits with her coming home after this awards event in downtown Toronto late in the evening, where she is berated by her husband and during the ensuing altercation she is assaulted by him, after which she leaves in her car to go to the emergency. It was put to her by Mr. Chan from the medical records that she was first seen at the emergency (Toronto General) at 1:30 a.m.

[80] Mr. Chan alleged that the injuries occurred in downtown Toronto, around the Sophia Restaurant in Yorkville and this explained why Ms. G. went to Toronto General Hospital emergency as opposed to Ajax/Pickering Hospital. There was no evidence to support this allegation and Ms. G. denied this. In my view this suggestion does not make sense, if Ms. G. was attacked by a stranger in Yorkville, given the seriousness of her injuries, the police would have been called and investigated what had occurred. She would have been taken to the emergency by EMS. From the questioning I draw the inference that by both counsel accepted Ms. G. had, in fact, gone to the Toronto General Hospital emergency and there were no suggestions or documentation put to her in cross that she had not. It is my view Ms. G.’s explanation for attending the Toronto General Hospital because her husband had followed her on a previous occasion makes perfect sense and her explanation for not driving her own car and taking a taxi also made sense. Toronto General Hospital is one of the GTA’s best hospitals and given Ms. G.’s description of her injuries, the fact she believed this bubble would break and bleed and the nature of the injuries depicted in the photos, Ms. G. choosing to take a taxi to Toronto General Hospital is not inconsistent or incompatible with her explanations for doing so. She explained she did not return home after finishing in the emergency because she did not want her children to see in the morning how she looked because of the bubble on her forehead, which was moving to below her left eye and how her eye was turning black. Further, in Ms. G.’s testimony she described having worked at Princess Margaret and Toronto General was just across the street. Her evidence was given in a straightforward manner, she was not evasive and the photographs of her injuries to her left eye, above and below it, support her evidence of where the injuries occurred. I accept her evidence as being credible and reliable and it is supported and corroborated by the two photographs.

[81] Mr. S.’s evidence respecting his being unconcerned and unaware of where she was or why she did not come home after the builder’s awards event does not make any sense given he was leaving that day to go on an extended trip to the US for the American Thanksgiving. It was described as a dinner. She left in the afternoon to go to this event and had not come home by 11 p.m. according to Mr. S. and he knew she would be the sole parent caring for their two sons while he was gone. I do not accept his evidence as it does not accord with what a responsible parent would do to ensure the safety of his sons when he is going away for several days.

[82] Mr. S.’s reference to being advised by his son Sa., which could only have occurred, if in fact it did, when Mr. S. woke him up for school and before Sa. left to go. Mr. S.’s evidence that Ms. G. called Sa. (no time provided) was never put to Ms. G.. If Sa. told his father because his mother told him the previous night or early morning when he woke up that she was going to the hospital would put a lie to Mr. S.’s evidence that she never came home.

[83] Considering the totality of the evidence respecting this incident it is my view having accepted the evidence of Ms. G. that her husband assaulted her on the late evening of November 26, 2019 or early morning of November 27, 2019, and caused the injuries depicted in Exhibits 2 and 3 that the Crown has proven the charge of assault beyond a reasonable doubt. I do not accept the evidence of Mr. S. for the reasons I have indicated and his evidence has not raised a reasonable doubt. I must assess Mr. S.’s evidence in the context of the evidence as a whole. It is in that respect for the reasons I have indicated above that I have come to the conclusion I do not accept Mr. S.’s denial of assaulting his wife. As a result there will be a finding of guilt on that charge.

Released: September 26, 2022 Signed: Justice Peter C. West

[1] The Crown attempted to prevent and limit Ms. G. from providing details of what she observed in the master bedroom between her husband and her son A. However, in cross-examination Mr. Chan’s questioning brought out from Ms. G. that A. had been telling her for two years of his father sexually abusing him. At one point I excused Ms. G. and discussed this issue with counsel. Counsel and the witness were cautioned that the only charges in the court related to an alleged assault and threatening on June 23, 20200, of Ms. G. by Mr. S.