Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 05 04 COURT FILE No.: Brampton 3111 998 19 39438

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.K.

Before Justice G.P. Renwick Heard on 02, 03, 04 May 2022 Reasons for Judgment released on 04 May 2022

A. Heath................................................................................................ counsel for the Crown A. Hussain............................................................................ counsel for the Defendant R.K.

An Order prohibiting the publication of information that could identify the complainant has been made pursuant to s. 486.4 of the Criminal Code of Canada.

RENWICK J.:

INTRODUCTION

[1] The Defendant faces six counts of sexual assault upon his former wife, the complainant. The allegations involve six separate instances of sexual intercourse without consent, over a two-week period in August 2017.

[2] The trial was brief and focused. The complainant and her friend testified for the prosecution. The Defendant testified on his own behalf.

[3] The sole issue for my determination is whether it is proven beyond a reasonable doubt that the Defendant sexually assaulted the complainant on one or more occasions.

GOVERNING LEGAL PRINCIPLES

[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven, by admissible evidence, beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1]

[6] If after considering all of the admissible evidence I am sure that a defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[7] This case involves several witnesses and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive.

[8] A trier of fact is entitled to accept some, none, or all of what a witness says while testifying. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of the witness’ role, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.

[9] A valuable means of assessing the credibility and reliability of any witness is to examine the consistency between what the witness said while testifying and what the witness has said or written on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[10] Given that the Defendant testified in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood, to determine whether the allegation is proven beyond a reasonable doubt.

[11] I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31. Justice Paciocco re-constructs the W.(D.) principles into five propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt, and the Defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[12] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[13] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to its completion to review my notes, to review the exhibits, and to listen to parts of the digital recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made, and my review of the evidence was complete.

THE EVIDENCE

The Testimony of the Complainant

[14] The complainant is a gentle, soft-spoken person. She testified about the “trauma” she has suffered due to the “abuse” she received at the hands of the Defendant during a brief period following their marriage the prior year, when they were living together at her family home. She described that the verbal, sexual, and physical violence she suffered caused her to have thoughts of suicide and self-harm. The complainant also explained how these charges and the alleged sexual assaults caused her to lose friends and family.

[15] The complainant testified that in her culture, divorced women suffer ostracism from their community. If a couple divorces, explained the complainant, the wife is always blamed for the failure of the marriage.

[16] Overall, I found the complainant’s evidence compelling, but incredible.

[17] The complainant testified that after her wedding, which had been arranged between her parents and the Defendant’s, she only stayed in India for 2-3 weeks before returning to Canada for her final year of nursing studies. [2] After 11 months, the Defendant came to Canada to join the complainant in her family home. Almost immediately, on the first or second night after his arrival, the Defendant began to sexually assault the complainant.

[18] The complainant only gave details about the initial sexual assault allegation. She awoke with a feeling of heaviness on her and she saw the Defendant above her. He penetrated her vagina with his penis without her consent. He placed his hand over her mouth to prevent her from alerting her family. She clearly had not given consent, she had been sleeping, and she told him that she did not want to have sexual intercourse, but he told her, “you’re my wife.” At that point, the complainant testified that she felt that there was no point resisting and she just wanted to get it over.

[19] The complainant also testified that they had discussed sexual relations either before the wedding or at the start of their marriage, and they had both agreed to get to know each other better before they would become intimate.

[20] The complainant testified that the other occasions, “four or six,” after the first assault, were the same. During these assaults, the Defendant would tell the complainant, “you’re my wife, you have to do it.”

[21] The mechanics of the initial sexual assault were probed during cross-examination. The complainant was always consistent that she had been clothed and when she awoke, she realised that her clothes had been moved to expose her breasts and vagina.

[22] As a result of these sexual assaults, the complainant felt despair. She was humiliated, ashamed, and did not feel that she could share her feelings or experiences with others for fear of being judged or blamed. She had thoughts of self-harm.

[23] The complainant explained why she did not tell even her closest friend the details of what had happened to her. Things only started to come out around the time that the complainant filed for divorce in late 2018 or early 2019.

[24] In cross-examination the complainant testified that she is not comfortable discussing her sexual assaults. The complainant admitted in cross-examination that her answer respecting who she had told about the sexual assaults had changed while testifying.

[25] In cross-examination, the complainant volunteered that she was suing the Defendant. A good deal of time was spent reviewing the allegations from the complainant’s Statement of Claim against the Defendant.

[26] In terms of timing, the complainant’s lawsuit began almost one year after she had received a letter from the Defendant’s lawyer in India, which threatened a lawsuit if she did not live with the Defendant “as a dutiful wife,” abroad.

[27] The complainant testified that she did not know how much money she was suing the Defendant for and money was never discussed with her civil law counsel. I found this somewhat hard to believe.

[28] The complainant’s civil pleadings also alleged physical violence in the brief time (05 August to 28 October 2017) the couple spent together in Canada before the Defendant initially returned to India. When asked to elaborate on the bald allegation, the complainant could only give one example of an argument when the Defendant grabbed her hand or arm. She testified that she could not remember the details given the passage of time. This explanation was unpersuasive.

[29] The complainant explained in cross-examination that her civil suit was to get a court to recognize the “torture and agony that [she] went through.” For her, telling and re-telling her allegations to her counsel, the police, her friend, and her family was like re-living them.

[30] When pressed for details of the physical, psychological, financial, and sexual torture suffered by the complainant, as alleged in her suit against the Defendant, the complainant testified, “I can’t remember. It’s just my brain has blocked a lot of things right now. I’m not misremembering things that happened.”

[31] When it was suggested to the complainant that she had not disclosed any physical assaults to the police, the complainant said that she did not remember “every single detail of what [she] told the police.” She testified that if she had been asked at the time, she would have said exactly what she had told police, but “now I don’t remember every part of it. I focussed on the sexual abuse.”

[32] The complainant’s pleadings alleged that when she awoke during the first sexual assault, all of her clothing had already been removed. This was accepted and agreed to by the complainant, despite her earlier testimony.

[33] In the end, after a careful and considered assessment of all of the complainant’s testimony and a review of all of the evidence in this case, I find that the complainant’s evidence was weak, implausible, and unconvincing. I am left in a state of reasonable doubt by this evidence standing alone.

[34] The prosecutor argued that the complainant’s disclosures are informed by the underlying cultural context. The complainant was initially ashamed and humiliated and this explained the timing of her disclosures. The complainant made efforts to distance herself from the Defendant, initially, by sleeping on the living room sofa. However, the complainant’s parents disapproved, and she was told to sleep with her husband. The prosecutor explained that the context of the marriage in Indian culture was important to note. The complainant would be subject to blame, ridicule, and gossip if her marriage failed. This had happened to the complainant’s cousin, and it was a powerful influence upon the complainant.

[35] These arguments are persuasive, however, they failed to explain the unconvincing manner of the complainant’s testimony, her lack of detail about the subsequent sexual assaults, her lack of memory of the physical “abuse” she suffered despite the claims of physical violence alleged in her lawsuit, and the inconsistency of her disclosure to her friend.

The Testimony of the Complainant’s Friend

[36] The complainant’s friend, Ms. H.R., testified.

[37] Overall, I found this witness believable. Though she was not a neutral witness, HR did not seem to bear any ill-will toward the Defendant. In fact, she testified, and I accept, that she had never before met or even seen the Defendant, prior to trial.

[38] The complainant testified that she had told HR about the Defendant forcing sex upon her. This disclosure occurred approximately one year after the alleged sexual abuse. Given the complainant’s testimony that at the time of the alleged sexual assaults she did not want to have sex because it was her “first time,” it was always understood by the court, that any alleged sexual assault only ever took place in Canada.

[39] Unfortunately for the complainant, HR’s testimony contradicted the prosecution theory that the Defendant had sexually assaulted the complainant in Canada. HR’s understanding was that the sexual assaults had only occurred in India, before the couple lived together in Canada.

[40] As an aside, another aspect of this evidence also raised a doubt about the veracity of the allegations of sexual assault. HR testified that the complainant had confided in her that the Defendant would masturbate while lying in bed next to the complainant. This evidence tended to support the Defendant’s evidence that the couple never had sexual relations in Canada.

The Testimony of the Defendant

[41] The least convincing witness was the Defendant. His evidence was mostly mono-syllabic and devoid of emotional presentation or content. The Defendant categorically denied ever having sexual relations with the complainant or sexually assaulting her.

[42] Suffice it to say, though I did not believe the Defendant, I did not reject his evidence as untruthful or inaccurate. On the basis of this evidence, I simply do not know what did or did not transpire.

ANALYSIS AND FINDINGS

[43] This case raises issues of credibility and reliability. In saying that, I recognize that I cannot decide this case as if it were simply a contest of competing versions of events where I am permitted to prefer one version over the other. That is never permissible for a trier of fact because it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offence charged beyond a reasonable doubt. In fact, even if I totally reject a defendant’s evidence, I must acquit him unless I am not left with a reasonable doubt about his guilt based upon the evidence I do accept.

[44] In considering the overall credibility of each witness, I have considered the following areas:

-general character; -plausibility; and -presentation.

As well, I have considered the overall reliability of each witness, in terms of the following:

-ability to observe; -memory; -motive; and -presentation.

[45] Because credible witnesses can be mistaken or otherwise inaccurate, credibility is not a proxy for reliability. [3]

[46] For several reasons, I find that despite the compelling nature of the complainant’s evidence, she was not a credible witness nor a reliable historian.

[47] First, the complainant has suffered traumas that she admits have plagued her memories. The complainant’s testimony suffered from a lack of precision and level of detail, except for the first sexual assault. That said, the initial allegation did not contain the details of the length of the encounter, how it ended, any description of the Defendant (was he partially clothed for instance), or anything done or said following the sexual assault before the complainant left the bedroom.

[48] Second, at times, while testifying, the complainant appeared impatient with reasonable questions asked by the Defendant. While that may be expected with prolonged examinations of a witness, the complainant’s frustrations were mostly self-generated. Her answers were not always responsive, precise, or detailed.

[49] Third, I find that the complainant had at least one motive to testify against the Defendant. The complainant was about to be blamed for the failure of her marriage. That provided the complainant a strong motive to implicate the Defendant as a means of shifting culpability. Second, the complainant is suing the Defendant for six million dollars. Though the allegations may have been genuine, at least as far as the complainant believed, these possible motives, which are not disproven, reduce the reliability of the complainant’s evidence.

[50] Last, the testimony of the complainant’s friend does nothing to corroborate the allegations. If anything, this evidence contradicted the complainant’s narrative.

[51] In these circumstances, it would be unsafe to convict the Defendant based solely on the complainant’s evidence.

[52] Until now, I have said little about the overall credibility or reliability of the Defendant’s testimony. In terms of credibility, it suffered from a rehearsed quality. There was an implausibility to his affect (the way he presented his evidence) and his claims. This, however, was somewhat understandable in the circumstances. The Defendant is a permanent resident facing charges that carry a maximum penalty of up to 10 years imprisonment. As well, like all of the witnesses, the Defendant testified through an interpreter. This may have added to the rehearsal effect of his presentation.

CONCLUSION

[53] In the end, and despite my concerns about the truth of the Defendant’s testimony, I am not satisfied that it is proven beyond a reasonable doubt that he sexually assaulted the complainant on any occasion.

[54] Given the high burden of proof, the lack of any truly objective evidence, and my inability to ascertain whether the alleged sexual assaults actually took place, the Defendant is acquitted of the charges.

Released: 04 May 2022 Justice G. Paul Renwick

Footnotes

[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[2] Given the complainant’s later testimony, there is some doubt that the complainant completed her final year at university during the 2016-2017 academic year.

[3] R. v. H.C., 2009 ONCA 56 at para. 41.