COURT FILE NO.: Crim J(P) 1374/11
DATE: 2012-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE QUEEN
A. Calsavara, for the Crown
- and -
M.G.
G. Henderson, for the Accused
HEARD: August 7, 8, 9, 10, 2012
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
[1] M.G., the accused, originally stood before the court facing eight charges. Counts 6 and 7 of the indictment were subsequently dismissed on the motion of the accused, as it was conceded by the Crown that the particulars necessary to substantiate the counts had not been made out.
[2] The outstanding charges are as follows:
That the accused on or about the 14th day of June, 1997 in the city of Etobicoke sexually assaulted his wife, J.G.[1], contrary to section 271 of the Criminal Code of Canada.
That the accused on or about the 19th of January, 2010 in the city of Mississauga did commit an assault on his wife, contrary to section 266 of the Code.
That the accused during a one month period last, past and ending on the 14th day of February, 2010 in Mississauga did commit a sexual assault on his wife, contrary to section 271(10) of the Code.
That the accused, on or about the 14th day of February, 2010, in Mississauga did commit a sexual assault on his wife, contrary to section 271(1) of the Code.
That the accused, on or about the 21st day of February, 2010, at Mississauga did commit an assault on his wife, contrary to section 266 of the Code.
That the accused, on or about the 24th day of February, 2010, at Mississauga, did utter a threat to his wife, contrary to section 264.1(1)(a) of the Code.
THE EVIDENCE
J.G.[1]
[3] This witness was the accused’s wife and the complainant with respect to the remaining counts. While it was clear this witness knew some English, her evidence, as was the evidence of the accused, was provided through Punjabi interpreters. The complainant testified to the following.
[4] She was born in India, on […], 1964. She immigrated to Canada in August 1995 and was sponsored to do so by her brother, M.S..
[5] J.G.[1] and the accused were married in India on March 8, 1996. The marriage was arranged between the parties’ families through the assistance of M.D., who is married to J.G.[1]’s older sister. He is also a maternal uncle of the accused.
[6] The accused immigrated to Canada in April 1997 through the sponsorship of his wife.
[7] The parties are the parents of two children, a son, J., born […], 1998 and a daughter, S., born […]. 1998.
[8] Initially, the accused and J.G.[1] lived in the home of her brother, M.S., in Etobicoke.
[9] For a time thereafter, they lived in a basement apartment. In August 2009, the accused left the apartment advising his wife that he had to go and collect guests that would be coming over to the apartment. He never returned and his wife had no idea of his whereabouts. The police were notified and after three days, a missing person report was filed.
[10] About eight days later, the accused attended at the apartment with a police escort and retrieved his personal things.
[11] At some point months later, the complainant received a telephone call from the accused’s roommate in Montreal, advising of the accused’s whereabouts. Family discussions ensued and it was agreed that the complainant and the children would join the accused in Montreal where they all lived together for an extended period of time.
[12] The parties returned to Ontario when the children were to start school as they wanted their children to be instructed in English. At first, they rented a basement apartment in Mississauga and, in January 2005, they purchased and moved to a new home on Prairie Crescent, Mississauga.
[13] In July 2009, the accused’s parents, J.G.[2] and J.G.[3], immigrated to Canada and took up residence in the parties’ home.
[14] J.G.[1] testified that it was at this time that she and the accused started having a lot of problems. She testified that, until this time, her relationship with the accused was “ok”.
[15] J.G.[1] testified that she has health problems regarding her heart. In 1995 she had heart surgery and continues to have problems.
[16] M.S. is a teacher with the Toronto District School Board. The children were having difficulty at school because of poor English skills and it was arranged that M.S. would come to the house and tutor the children. At some point, the tutoring was terminated as problems seemed to develop between the accused and his brother-in-law, M.S..
[17] J.G.[1] testified that the accused forbid M.S. coming to his house. She was unsure of the reason and, when she could, she took the children to M.S.’s house.
[18] In December 2005, J.G.[1], the accused and their children went to India for a family wedding and returned to Canada in February 2006. They were met at the airport by family, including M.S.. At that time, J.G.[1] told her brother of an altercation in India between her and the accused in which she was struck on the arm with a phone charger.
[19] On February 25, 2010, J.G.[1] went to the police to report an assault on her by the accused as well as to report some threats. She was accompanied by her brother, M.S..
[20] She testified that, on February 21st around 4:00 p.m. to 5:00 p.m., she went into the bedroom to get her son so she could wash his hair. The son was lying on the bed in the master bedroom with the accused. When the son left the room, J.G.[1] was instructed to close the door. She did so and locked it. She then lay down on the bed. The accused then questioned J.G.[1] about calling her brother. She denied doing so and was called a liar by the accused.
[21] At some point, the accused grabbed J.G.[1] by the neck with both hands in a choke hold. She was lying on the bed and he was over her on his knees. She said that he held her neck very tight and that she could breath but with great difficulty. She testified that she was screaming.
[22] She then testified that he released her neck and grabbed her leg and pulled her across the bed. J.G.[1] further testified that both her children and her mother-in-law were outside the door and banging on the door.
[23] It is alleged that the accused said something to the effect that he was not going to spare her now and that he was going to kill her. He allegedly said that he was going to make piles of dead bodies, even if he goes to jail.
[24] J.G.[1] testified that, at some point, she was struck in the ribs on the left side with his knee.
[25] It was J.G.[1]’s evidence that this whole incident was as a result of her brother visiting earlier and that the accused did not want the children tutored by or even talk to, M.S.. He was also upset that M.S. brought other children to the house with him.
[26] The incident of assault related above occurred on a Sunday. On the Monday, J.G.[1] dropped the accused off at work at approximately 7:00 a.m. At the time, the accused was a truck driver. She did not go to the police that day as she was required to stay in the house. If she did go out with the children or even to drop off the accused, her in-laws accompanied her. She would be required to drive straight home. She testified that she was under the constant supervision of her parents-in-law.
[27] J.G.[1] did nothing on the Tuesday. She testified that her mother-in-law was always with her. On the Wednesday, February 24, 2010, J.G.[1] made up an excuse of having to go to the doctor and left the house with her son who was required to travel with his mother so he could later be questioned as to her activities. She drove to M.S.’s and told him what happened the previous Sunday. She testified that she told her brother she wanted to go to the police but was advised not to do so that he would look into it. He also said to her something to the effect of, “Sometimes things happen in the household then they go “ok” on their own.” J.G.[1] was instructed to go home which she did.
[28] Later that evening M.D. called to speak to the accused. In fact, this call was three-way as M.S. was also on the line. From other evidence, it is clear that the purpose of this call was to discuss the complainant’s accusation.
[29] After the call was completed, the accused started scolding J.G.[1] and calling her names. She alleges that he threatened her by saying that “he would cut her up into pieces and put the pieces on the rail tracks.” He said that “he will kill her and that he will face jail.”
[30] J.G.[1] testified that, after those threats, she was not prepared to “go on like this” and the next day she went to her brother’s and he took her to the police station. She had again made an excuse that she had to go the doctor’s. Her son again accompanied her.
[31] J.G.[1] told the police of other incidents. She said that, on January 19, 2010, the accused needed a ride somewhere and it was J.G.[1] who was to take him. There was a dispute as to whether or not their daughter would accompany them.
[32] J.G.[1] testified that the accused grabbed her by the arm and pulled her in such a fashion that her head hit the wall.
[33] J.G.[1] told the police of and testified to an incident that occurred on February 14, 2010. At about 10:00 p.m., she and the accused were in the bedroom. The accused said he wanted sex and J.G.[1] said that she did not want to and that she wasn’t feeling well. She testified that the accused forcibly removed her clothes and had intercourse with her.
[34] J.G.[1] testified that during the forced intercourse she was lying on her back and the accused held her arms over her head. The accused was on top of her. She testified that she made no noise or gave no resistance during the act.
[35] When asked why she did not cry out for help she said that it was not something new, that it had happened many times. She said that no one would help her even though the children and her in-laws were home. She testified that the act finished when he put his material in her. She did not tell anyone or complain because she did not want the family to break up.
[36] The next incident described by the complainant is said to have occurred January 14, 2010 at around 9:00 p.m. to 10:00 p.m. The complainant was in bed trying to go to sleep. The accused said to her that he wanted to have sex. The complainant testified that she told him that she did not feel well, that she was fatigued and that she did not want to do it.
[37] The complainant testified that the accused pulled up her night clothes with force and grabbed her hands and held them over her head. She alleges that he put his penis in her vagina and that the incident ended when he put his material in her body.
[38] Ms. J.G.[1] testified that she did not do anything to stop it. She did not saying anything after she initially said no. She did not cry out for help and afterwards told no one. She said that she said nothing because family problems will start and the family would break up,
[39] It is alleged that another incident of non consensual intercourse occurred in June 1997 when the complainant was pregnant. She testified that the doctor told her not to do “it” ever. At the time, she and the accused were living in her brother’s home in Etobicoke.
[40] The accused was lying on the bed and the complainant went upstairs to bathe. The accused said that he wanted to have sex and the complainant told him that the doctor told her not to do it.
[41] The complainant testified that the accused put oil on her and massaged her even though she did not want a massage. Ms. J.G.[1] testified that the accused used the massage excuse to take off her clothes. She testified that she was lying on the bed and the accused with his weight on his knees put his penis in her vagina.
[42] The complainant testified that she felt something coming inside of her and told the accused she was feeling something. He said no and the complainant said she said it again and exerted force. She testified that the accused stopped when he saw blood coming from her vagina. The accused went running downstairs to get help. Ultimately, an ambulance was called and the complainant was taken to the hospital. The complainant had a medical examination and was released later in the evening. She was told everything was ok.
[43] The complainant testified that she told no one of this sexual assault as she did not want the family to break up. On February 25th, 2010, she did not tell the police of this incident stating that she had forgotten about it.
[44] The complainant testified that she thinks the accused stopped this time because he knew that she was pregnant.
[45] The complainant testified as to another incident which occurred when they were living in Montreal, in November or December 2000. This incident involved forced sexual intercourse after J.G.[1] had said no. Violence was also a factor. No charges were laid with respect to this incident.
[46] The complainant told no one of this incident. She did not seek help as she wanted the family to be “ok”. She put up with it because she believed people change.
[47] The complainant did not tell the police of this incident on February 25th, 2012. When asked why, she answered there were many such incidents and she did not know how many she should tell them (the police).
[48] Ms. J.G.[1] did not tell her brother of the sexual assaults when she confided in him on February 24, 2010. When asked why not, she testified, “How can a sister tell a brother of such a thing”. She said she would have told her mother if she were alive.
[49] Ms. J.G.[1] testified about travelling to India in 2006 for her nephew’s wedding. The accused followed her 20 days later. She testified that the accused was angry about her taking a phone call in private and that he struck her on the left arm with a phone charger, leaving a permanent scar.
[50] Exhibit 1 is two photographs of the scar taken by the police on February 25, 2010.
[51] When the complainant flew home to Canada, she was met at the airport by her brother M.S. and she told him of being beaten in India. She testified that her brother said to her, “It doesn’t matter.”
[52] When asked why her husband would be angry for her being on the phone, the complainant testified that she was not allowed to have private conversations. She said that, when she gets calls, someone else will pick up the second phone (extension phone) and listen to the conversation. However, on this incident the phone in use was a cell phone.
[53] The complainant was cross examined as to her ability to remember specific dates. It would appear that she is, in fact, good with dates and that some of the dates she relates to other happenings such as birthdays. For example, one of the incidents is alleged to have occurred on January 19th, which is her son’s birthday.
[54] The complainant was questioned as to her giving the police a videotaped statement. She was told it was a sworn statement and that she had to be completely truthful. She acknowledged that she had reviewed the statement two or three weeks before testifying at the trial.
[55] It was pointed out to her that during the statement she could not remember the exact date of the February 14th incident but had stated that it happened about 10 days ago.
[56] The complainant was cross examined as to the incident in Montreal. She acknowledged that, in her direct examination, she testified that the accused grabbed her and “pulled” her. It was pointed out to her that, on other recorded occasions, she said that the accused “pushed” her. It was put to her that she told the police she was “pushed” and made no reference to being “pulled”. The complainant answered by saying she was so nervous that she could not figure out what to say.
[57] There was then a discussion if the answers she gave to the police were properly interpreted. The interview was conducted in Punjabi. The complainant testified that there was a problem with the accuracy of the translation as written in the transcript.
[58] After watching and listening to the relevant portion of the videotaped statement, the complainant agreed that she had used the word push and that in her trial testimony she said she was pulled. As this line of questioning continued, she said that her evidence now is that she was pushed and her head struck the wall.
[59] The complainant was allowed to demonstrate what happened and her demonstration suggested she was grabbed by the arm and pushed, striking her head.
[60] With respect to the February 21, 2010 incident, Ms. J.G.[1] was cross-examined as to documents filed in her Superior Court family law application. Exhibit 2 is a copy of the application in that matter. It was signed by the complainant on November 30, 2010. In that document, an incident was described as occurring on February 25, 2010 when she was grabbed by the throat and pushed to the ground. It is also set out that she was pulled onto the bed by her leg.
[61] The complainant agreed that the application did describe the incident in a different manner from her trial testimony but testified that it was drafted by her family law lawyer and that she did not read the application as she could not read English.
[62] She testified that the facts as set out in the application were wrong.
[63] Exhibit 3 was an affidavit signed by Ms. J.G.[1] on November 30, 2010 for the family law proceedings. She testified that she did sign it and that she read a little of it, as much as she could read, and that she didn’t understand much of it. She said that she had told everything to her lawyer.
[64] The complainant denied knowing that she knew the affidavit would be used in the family law proceeding. She said that her lawyer said sign here and she did. She testified that she did not look at the individual papers but just answered her lawyer’s questions. She did not understand that the application requested a restraining order. She did not understand the need of such as the accused was on bail, one of the terms of which was not to have any contact with his wife.
[65] The complainant testified under cross-examination that she knew the accused had been charged but did not know of the kind of charges. She said that she just told the police what had happened. She knew what she alleged the accused did to her was wrong. She could not say that she knew her husband was charged with assault despite all the past procedures such as the preliminary hearing.
[66] The complainant thought it was possible that the accused was charged with sexual assault because of the kind of questions she was asked. Initially, she did not know that a husband, forcing his wife to have intercourse, was guilty of a criminal offence.
[67] Exhibit 4 is the domestic violence supplementary report that was signed by Ms. J.G.[1]. She testified that the officer read it to her and she answered the questions. She was asked if she agreed with the written yes or no answers.
[68] The asking and answering of the Exhibit 4 questions are part of the complainant’s videotaped statement.
[69] The complainant agreed that, when asked if she was assaulted when she was pregnant, she answered no. She testified that, when asked the question, she did not recall that day that she was nervous and scared during the questioning.
[70] Exhibit 5 is another affidavit of the complainant, sworn October 6, 2011, for the family law proceeding. She testified that she understood this was to be used in the family law proceedings. She testified that she did read it before she signed it but that she did not fully comprehend it.
[71] In cross-examination, the complainant was directed to her testimony at the preliminary hearing, on May 6, 2011, page 833. The witness was asked to describe all instances of assault. On that occasion, the complainant did not speak of the assault in India and attributed this omission to being nervous.
[72] With respect to the scar on her left arm, the complainant denied that it was the result of an inoculation that had become infected. She testified that she had an infection from a penicillin inoculation on her upper right arm and that is what she had told her husband.
[73] With respect to the sexual assaults, the complainant agreed that she never really tried to resist or stop them. She testified that, after so many years, she could not do anything, that he was much bigger. She agreed that she did not resist. She agreed that there was no visible injury. She testified that if she resisted he would threaten her or slap her.
[74] The complainant testified on her cross-examination that she never called the police in the past as she was worried about her future life and what would happen to the kids. She agreed that the first time she ever mentioned a sexual assault to anyone was during the police interview on February 25, 2010.
[75] When the complainant was asked why she did not call the police on February 21, 2010, she testified that she did not have private access to a phone but that she was thinking of going to the police. She agreed that she had four days to think of what she would say to the police but that on the 25th she was nervous and could not recall too much. She agreed the police asked for details.
[76] Ms. J.G.[1] acknowledged she did not tell police on February 25, 2010 of the assault in 1997 when she was pregnant, nor did she speak of the incident in Montreal. She did not disclose the 1997 incident until January 2011. She testified that she disclosed it when she recalled it.
[77] The complainant acknowledged that it was not until the preliminary inquiry on May 6, 2011 that she first spoke of the incident of sexual abuse in Montreal even though on March 16, 2011 she gave another videotaped statement to the police. She acknowledged that when she went to the police initially she did not say that she was assaulted as many times as she is saying now.
[78] What she did say during the initial police interview is that she was sexually assaulted three or four times. On cross-examination, Ms. J.G.[1] testified that she did not tell the police of all the incidents because she did not want to break up the family and that she was afraid that the accused would come back and beat her up.
[79] The complainant was hoping that, after February 25, 2010, the accused would learn his lesson, that everything would be fine. She testified that on February 25th it was not her intention to end the relationship. She was then directed to a portion of her preliminary hearing testimony wherein she said the she gave up on the relationship on February 24th and decided to go to the police.
[80] The complainant agreed that was her evidence at the preliminary hearing but testified that the relationship ended when the accused met with her father and brother after the charges were laid. The complainant was told by her brother that the accused told them the complainant should go to court and say everything she said was lies. She testified that he wanted her penalized and she did nothing wrong. It was then she decided the relationship was over.
[81] With respect to the June 14, 1997 incident when she was taken to the hospital, the complainant agreed that she did not tell anyone of the assault and what was happening when the bleeding started. She told the medical staff that the bleeding happened spontaneously.
[82] The complainant agreed that when she went to her brother’s on February 24th she did not tell him or her father of any of the sexual assaults. She agreed she wanted their assistance in going to the police. She agreed that they said they would not assist her in going to the police and that they further said that sometimes things work out and that they will think about it. She agreed that after meeting with her father and brother she returned to her home.
[83] After the accused spoke to M.D. on the evening of February 24th, as a result of threats made to her thereafter, she renewed her desire to go to the police. She went back to her brother’s the next day and insisted.
[84] On cross-examination, the complainant was of the view that the accused only married her to get permanent resident status in Canada. Further, she testified that it was the accused’s ultimate goal to get his parents and sisters to Canada.
[85] The witness would not agree with the suggestion that the accused did not get along with her brother, M.S.. She denied that M.S. was rude to the accused or that he threatened him. She denied any issue about a joint account in which she and her brother withdrew money deposited by the accused.
[86] The complainant agreed that she and the accused moved out of her family’s home at the insistence of the accused. They rented a basement apartment. She denied she wanted to stay in her family’s home.
[87] The complainant denied that the accused moved to Montreal because of the problems with her family. She testified that they did not talk about moving there.
[88] Ms. J.G.[1] disagreed with the suggestion that the accused told her he was going to Montreal. She testified that for seven months she did not know where he was. She said he did come home once with the police and collect his clothes.
[89] With respect to the February 21, 2010 incident, the complainant agreed that her brother had come over unannounced but that he came because her in-laws, on an earlier occasion, had asked him to speak to the children as they were being disrespectful. The witness would not agree that the she knew the visit made her husband unhappy but agrees they had an argument that night during which, she testified, she was assaulted.
[90] On cross-examination, it was put to the witness that she was unhappy with her in-laws living with her and wanted a way out. It was suggested that she could not get out of the situation just by saying she was unhappy. The implication was that the complainant made everything up in order to get out of an unhappy situation. This was denied by the complainant who testified that what she said happened, in fact, happened.
[91] She did agree that her in-laws moved out of the house on February 26, 2010 after their son was charged and arrested.
[92] On re-examination, with respect to her family law proceedings, Ms. J.G.[1] said that when she talked to her lawyer she spoke English. There was no Punjabi interpreter present although sometimes his secretary would interpret.
[93] She also testified that when she was threatened by her husband on the 24th he spoke so loud that it was like an earthquake. With respect to the use of the words, push and pull, she said that the accused reached across her body, grabbed her lower left arm and pushed her into the wall.
M.S.
[94] This witness is the brother of the complainant, Ms. J.G.[1]. He immigrated to Canada in 1989 and is a school teacher with the Toronto District School Board.
[95] Mr. M.S. testified that when the accused’s children started school they were having academic problems primarily as a result of poor English skills. He started helping the children and, before the accused’s family went to India, Mr. M.S. was seeing the children weekly in their home.
[96] This arrangement ceased upon the family’s return from India early in 2006. Mr. M.S. testified that up until that point there were no issues between him and the accused.
[97] Mr. M.S. testified that he drove to the airport to pick up his sister and her family on the day they were returning from India. He testified that his sister sat in his car and told him that the accused beat her up when they were in India. He said she showed him the wound on her left arm and that she was crying and depressed. She told him that she was asked by the accused to talk on the phone to a caller and that she went into the bedroom to do so and closed the door. The accused, she said, was pushing on the door and eventually came into the room.
[98] Mr. M.S. testified that he was told by his sister that the accused was upset because he could not hear what his wife was saying during the telephone conversation and for that reason beat her up.
[99] Mr. M.S. testified that his sister was confused and did not know what to do. He said he gave her options. His sister was worried about her future and that of her children.
[100] Mr. M.S. testified that, after their return from India, the accused did not visit his home or talk to him on the phone. They did not talk about his tutoring of the children. The witness said that he stopped tutoring because he knew that his sister and the accused were having problems in their relationship and that he did not want to create more problems.
[101] Mr. M.S. testified as to an occasion thereafter when his sister called him as she needed his help to get the children to Punjabi school. Her car wouldn’t start. He went to her home and collected his sister and the children and drove them to where they needed to go.
[102] Mr. M.S. also brought his sister and the children back to their home. He decided to go into the home and speak to the accused’s parents. He testified they were happy to see him. At one point, the accused’s parents complained that the children were not listening to them and were not doing well in school. Mr. M.S. testified that the accused’s parents asked him to speak to the children, which he did.
[103] Mr. M.S. went on to testify that the accused’s parents asked him to come over, once in a while, to help the children. Accordingly, on February 21, 2010, he decided to go over to the accused’s house and arrived at about 2:00 p.m. His arrival was without prior notice.
[104] On this occasion, Mr. M.S. testified that everyone was home. He said that he talked to the children about their behaviour. He said there were no problems with respect to this visit.
[105] The witness then testified as to what occurred on February 24, 2010. On that day, his sister arrived at his home with her son. She told her brother that the accused had beaten her up. She told him that the accused had dragged her to the bedroom and put his hands on her throat. She said her husband dragged her by the leg and swore at her.
[106] The witness described his sister as scared, crying and very confused. She told her story not only to him but to their father who resided in the M.S. home. She wanted their advice as to what to do.
[107] Mr. M.S. testified that he was confused as to what to do. He said they considered contacting the police but that his sister was confused. Mr. M.S. testified he told his sister to be humble and not to do anything to create conflict. His sister left his house and returned with her son to her own home.
[108] Mr. M.S. then called M.D. in India to discuss the situation. He wanted Mr. M.D. to talk to his sister and the accused. A three-way telephone call was arranged and a call placed to the accused. Mr. M.D. then spoke to the accused and Mr. M.S. just listened although the accused knew he was on the line.
[109] The witness testified that the accused at first denied what had happened but then admitted to beating his wife. He was asked why he did it and answered that his wife was not listening to him and that things were not going right. The accused said that he would fix the problem. Mr. M.S. testified that the accused handed the phone to his mother who confirmed what had happened and said it would not happen again.
[110] The next day, the 25th, the complainant and her son again arrived at the M.S. home at approximately 6:00 p.m. Mr. M.S. described his sister as scared and depressed. She told him that right after the accused got off the phone with Mr. M.D. he was furious with her and said that there will be a pile of dead bodies and that he would throw people on the railway track. The complainant once again sought her brother’s advice as to what she should do.
[111] It was decided the matter would be reported to the police. Mr. M.S. testified that he, his father and his brother took the complainant along with her son to the police.
[112] Mr. M.S. testified that a week or so later he was contacted by the accused’s father who asked if he could come over and speak to Mr. M.S. and his family. This was agreed to and the accused’s parents and a family friend attended the M.S. home.
[113] Mr. M.S. testified that the accused’s parents were ashamed and felt badly that the incident happened. They wanted to save the family and asked if a compromise could be reached. Mr. M.S. understood that to mean a way in which the charges could be dropped. Mr. M.S. told them that he had to speak to his sister and that he wasn’t sure of what to do.
[114] Sometime after that, Mr. M.S. received another call from the accused’s father asking for another meeting. On this occasion, the accused, together with his parents, attended at the M.S. home. It is alleged that the accused apologized and said he was very sorry. He admitted that he beat his wife up but that he wanted to keep the family together. Mr. M.S. testified that the accused’s exact words were, “I apologize for everything that happened and I shouldn’t have beaten her up.” They again sought a compromise.
[115] Mr. M.S. testified that the accused and his parents proposed a plan that the accused would live in the M.S. household and his parents would stay in the accused’s home with the complainant and her children.
[116] Mr. M.S. told them they would have to think about it and they had to speak to his sister. Ultimately, the plan was unacceptable to the M.S. family although the complainant allowed her in-laws to stay in the home. The compromise suggested by the accused and his family was that the complainant would go to the police and say none of it was true, that she had made it all up. She was not prepared to do this.
[117] Mr. M.S. spoke of another occasion in the parking lot of the Sheik temple in June 2010. All the parties were at the temple that day and Mr. M.S. was asked to meet with the accused and his family in the parking lot. Again, it was proposed that the complainant tell the police that she lied. This again was relayed to the complainant and was unacceptable.
[118] On cross-examination, Mr. M.S. denied that when his sister and her husband, the accused, lived with them, there was a dispute over money. He denied that the accused and his wife moved out when it was suggested that they contribute to the household expenses.
[119] Mr. M.S. acknowledged that he had spoken to Mr. M.D. shortly before he testified. He was concerned about some of the evidence he gave at the preliminary hearing. He said that some answers were wrong because he had guessed. With respect to the time his sister was taken to the hospital, he said that he recalled her being taken down the steps on a stretcher but did not recall anything after that. Further, he did not recall how long she was in the hospital and that he did not recall if he went to the hospital.
[120] Mr. M.S. agreed that he gave a written statement to the police on February 25, 2010 and another statement on March 7, 2010. On that later statement, he told of his sister telling him that she was beaten up in India. He said that he did not include that in his first statement as no one had asked him.
[121] Mr. M.S. was cross-examined on his testimony from the preliminary hearing regarding the India incident. At that time, he told the court that he was told that the accused beat his sister with a stick. On cross-examination, the witness said that his sister had shown him the wound where she had been struck and that using the word stick he meant something, that is, she was struck by something.
[122] Mr. M.S. admitted that it was not correct to reference a stick but that she was hit by something.
[123] Mr. M.S. was then questioned as to his description of the wound. At the preliminary hearing, he described the wound as being as the size of part of his index finger. When it was suggested the wound was the size of a dime he then said something to the effect it was the size of a nickel.
[124] On cross-examination, Mr. M.S. said that it was defence counsel who was forcing him to use the examples of a dime or nickel when the witness was trying to show the size of the wound by using his index finger and showing that the wound was as long as his index finger from the first knuckle to the tip.
[125] With respect to his sister’s attendance at his home on February 24, 2010, Mr. M.S. denied telling his sister that “sometimes things happen and they are ok on their own”. He denied saying, “We will see, it doesn’t matter.” He denied his father said, “You should get beaten and bear it.”
[126] Mr. M.S. confirmed that, when he and Mr. M.D. were on the phone, the accused admitted the assault. He testified that he did not put this fact in his statement because no one asked. He agreed that he did not disclose the phone call and admission and the meetings between families until March 16, 2011.
[127] Mr. M.S. acknowledged that in the preliminary hearing he said that, with respect to the second meeting in his home, the accused did not mention his wife’s neck or leg but said that everything that happened is wrong, that he apologized for that and that he wanted to keep the family together.
[128] It was put to Mr. M.S. that, on March 16, 2011, he did not tell the police that the accused said, “I should not have beaten her up.” To that, Mr. M.S. said that he told what he could recall.
[129] Mr. M.S. acknowledged that, during the second meeting at his home, the accused brought up the example of someone he knew who pleaded guilty to something and was then allowed to go home. Mr. M.S. testified that the accused did not say whether he would plead guilty or not guilty but was just apologizing. Mr. M.S. agreed that the accused showed him his bail papers.
[130] With respect to the meeting in the temple parking lot, Mr. M.S. denied telling the accused that, if he pleaded guilty, he would be allowed to go home and denied that the accused said that he would never plead guilty. Mr. M.S. suggested that the accused said to him that the only way out was for his sister to go to the police and say she was lying.
[131] On re-examination, Mr. M.S. admitted that his use of the word ‘stick’ with respect to the India incident was a mistake and that he was told by his sister that the accused had something in his hand when he struck her causing the wound to her arm.
[132] As to the accused speaking to Mr. M.S. during the second meeting of the families after the charges were laid, the witness said there was no doubt as to what the accused was apologizing for.
M.G.
[133] The only other witness was the accused, M.G., who testified in his own defence through a Punjabi interpreter.
[134] The accused testified as to the arranged marriage and that Mr. M.D., his uncle, was the “go between”. The accused was agreeable to the marriage, acknowledging he knew his wife was ten years older.
[135] After the marriage, the parties spent one month together in India. The accused described the relationship as ok but that his wife did not seem very happy.
[136] After the month, his wife returned to Canada and the accused arrived in Canada in 1997, his entry sponsored by his wife. The accused knew no one else in Canada but his wife and her family and they lived together in her brother’s home. He said that her family wanted him to work and earn money and move out.
[137] The accused testified he had part-time work within a week of coming to Canada and after a month had full-time work. The accused described his relationship with the family as “ok”. He said that his wife seemed much happier in her family home than she did in India. He testified that she was quiet with him.
[138] The accused testified that initially his relationship with M.S. was “ok” but that after the accused got a job there were issues about depositing money. Mr. M.S. wanted the accused to save money in order to be able to sponsor his parents for entry into Canada.
[139] The accused also testified as to a joint account in which he deposited his earnings. He said that his wife and her brother were parties to the account. One day the accused went to withdraw some money and there was only $29.00 in the account whereas, in his opinion, there should have been a few thousand dollars in the account. When he confronted them, they told him they withdrew the money and that it was his wife’s money and she was entitled to do this.
[140] The accused testified that he thought the account was jointly held with his wife only. The accused wanted the money returned as he was saving to get a house of his own. The accused closed the account which he testified angered Mr. M.S.. He wanted continued access to the account as Mr. M.S. said he was the one who brought the accused to Canada.
[141] The accused testified that, after that, his wife’s family started hating him and so he decided to move out. He testified that his wife was not happy to move out but that they moved into a basement apartment. He described his marriage relationship as “ok” when they were living in this apartment. He said that his wife spent a great deal of time talking to her family.
[142] The accused testified that, while in the apartment, M.S. would visit on the weekends with his father and the children. The accused described M.S.’s attitude towards him as poor.
[143] The accused testified that he and his wife discussed their family problems and that it was agreed that they would move to Montreal. He spoke to Mr. M.D. by phone and was given a contact name and number in Montreal. The accused testified that he told his wife that he would go to Montreal first and find a job and a place to live. He said that, at this point, his wife refused to move to Montreal.
[144] The accused went to Montreal and he said that, after the third day, he learned of a missing persons report regarding him. The accused said that he had a job in Montreal and at some point the two families got together and it was agreed that his wife would move to Montreal. The accused admitted that he was alone in Montreal for a number of months.
[145] With respect to the missing person report, the accused testified that he was told about it by the person with whom he was living. The accused came back to Mississauga and told the police he was not missing and then asked for a police escort to get his personal things from the apartment.
[146] With respect to his relationship with his wife while they lived in Montreal, the accused testified that at first she was quiet and that after two weeks it improved and she became very happy. The accused said they lived there until 2003 but returned to Mississauga as the children were about to start school and they wanted their children to be instructed in English.
[147] On their return, they rented a basement apartment. From time to time they would be visited by the M.S. family. He described his relationship with his wife at this time as ok for one or two months and after that she spent a lot of time with her family.
[148] The accused obtained a job as a truck driver and ultimately they were able to buy a house on Prairie Crescent, Mississauga. The accused was also able to sponsor his parents to Canada in 2009. The accused testified that his wife was very happy in their home but that his relationship with her family was just, “ok”.
[149] The accused testified that his wife was happy with his parents living with them. His mother did chores such as cooking and cleaning. His father was able to obtain a job within a few weeks. The accused testified that his wife at some point told him his parent should move to an apartment.
[150] With respect to February 21, 2010, the accused said that during the day Mr. M.S. and a number of children visited unannounced. The accused was home that day which, he said, surprised Mr. M.S..
[151] Later that evening, the accused said he was lying on his bed with his son talking. His wife came into the room and the accused said to her that he does not go to her brother’s home and that he did not invite her brother over to tutor their children. This discussion took place in the bedroom with the door open.
[152] The accused denied choking his wife or pulling her leg. He said that this story was cooked up by his wife. His wife was the mother of his children and he had accepted her into his heart. He denied assaulting her or threatening her.
[153] The accused testified that, on the 22nd, he went to work and that he worked within the city and was able to come home at night. On the 23rd, he took a load to the U.S.A. overnight and then came home. On the 24th, he delivered his load and went home.
[154] On the 24th, the accused said that his wife told him she had a pain and had to go to the doctor. He testified that if she had to go somewhere she would make an excuse of having to go to the doctor. The accused offered to go with her but she said no, she would take their son.
[155] By 9:30 p.m., she had not returned. The accused asked his daughter to call the M.S. home and she was told that her mother would be home and not to worry.
[156] The accused testified that, at about 10:00 p.m., the police attended at his home and arrested him.
[157] The accused agreed that he had received a phone call and spoke to his uncle, M.D.. He testified that he knew that M.S. was also on the line but that M.S. did not say anything. He said this occurred on the evening of the day he came back from the U. S., which would have been the 24th.
[158] The accused testified that Mr. M.D. told him that his wife was not happy with the accused’s parents living in their home. The accused testified that he responded by saying the children were happy and there were no problems. After some small talk, his uncle spoke to the accused’s mother.
[159] The accused denied that his uncle alleged that he had assaulted his wife. The accused denied admitting an assault and testified there was no assault.
[160] The accused testified that, a few weeks after his arrest, his parents and a friend drove to the M.S. home. He said there was a second meeting at the M.S. home and that he, the accused, attended that meeting.
[161] It was the testimony of the accused that, on this second meeting, he said that nothing of this sort had happened and wanted to know what the solution to all of this would be. The accused testified that M.S. told him of a friend who went through a similar thing. He said his friend went to court and offered an apology. The accused testified that it was suggested that he do the same thing.
[162] The accused testified that, in response, he said, “How can I agree to a lie, I didn’t do anything.” The accused denied admitting the assault at this meeting. The accused also testified that, upon their arrival, M.S. laughed and said now you are fixed, you earlier didn’t like coming to our house and now you come.
[163] The accused said he did apologize to his brother-in-law for all of this done to him. He said he apologized, “to what M.S. had in his mind about the accused”. The accused thought he should apologize out of respect to M.S. as he, M.S., was older. The accused said he apologized for the hatred in M.S.’s mind.
[164] The accused testified that a meeting did occur in the temple parking lot. He said that he asked M.S. if there was any solution. It is alleged M.S. told him to admit the charges and to stay out of the house for a while.
[165] The accused testified that he said he could not do this and agree to a lie. He testified that he was told to pay the expenses on the house but by this time he had lost his job.
[166] With respect to the January 19, 2010 allegation, the accused testified that it was his son’s birthday. They celebrated at home. Later that evening, the accused needed a ride to get his truck. He asked his wife to take him and his daughter asked if she could come as well. His wife thought the daughter should stay home and an argument ensued in that regard. Ultimately, the whole family went for a car ride.
[167] The accused testified that he did not assault his wife that evening. He did not push or pull her.
[168] With respect to the alleged assault that occurred in India, the accused testified that she had the scar before marriage. At some point, the accused asked his wife about the scar and was told it was a vaccination that went wrong.
[169] The accused denied the allegation and said that he never hit his wife with a stick or a charger.
[170] With respect to the alleged threat on February 24th, the accused testified that he did not threaten his wife and that the allegation was made up.
[171] In regards to the allegations of sexual intercourse without his wife’s consent, the accused testified that he never forced himself on his wife. He said that when she would say no, he respected that.
[172] The accused denied that he assaulted his wife by attempting to punch her and by pulling her hair and then forced her to have sex against her will, all of which was alleged to have occurred when the parties lived in Montreal. He testified that nothing of this sort happened.
[173] The accused responded to the allegation of forced sex when his wife was pregnant as follows: he understood that the doctor told her not to climb stairs or stand for too long; he said the incident occurred on a Sunday; his wife was complaining of a lot of pain and asked the accused to massage her; she removed all of her clothes for the massage; and the accused massaged her and testified that his wife felt the desire and asked if they could have sex.
[174] The accused testified that the doctor had told them sex was ok as long as penetration was not too deep. The accused and his wife had sexual intercourse and when his wife stood up afterwards, she was bleeding from the vagina.
[175] The accused told his brother-in-law, with whom they were living at the time, to call an ambulance. His wife was taken to the hospital and after a few hours she returned home.
[176] On cross-examination, the accused agreed that the meeting at the temple likely occurred in June 2010. There was some type of celebration taking place relating to M.S.’s younger brother.
[177] The accused denied that his wife had to make up excuses because he tried to control his wife’s freedom. He denied that he only got the second vehicle after his mother started living with them and was available to keep his wife under a constant watch.
[178] The accused testified that he knew of his wife’s heart issues when they married. He knew she was not working and that she was 31. He agreed that part of the arrangements relating to the marriage was that he would be sponsored to come to Canada and would take care of his wife. He agreed that the sponsorship of his parents and two sisters was discussed as part of the arrangements.
[179] When it was suggested to the accused that his wife was his ticket to Canada, the accused replied no, that he considered her his wife “with a truthful heart”. He denied he mistreated his wife once he was in Canada.
[180] The accused denied he wanted out of the marriage and wanted a younger bride. He said if that was the case he would have gotten out earlier. He testified that he worked hard in the marriage for a number of years.
[181] The accused denied he left for Montreal after deciding to end his marriage. He said he left because of M.S.’s harassment of him. The accused testified that he felt he and his family could live better there. He testified that he discussed moving to Montreal with his wife but that she would not agree to move.
[182] The accused acknowledged he left for Montreal without his family. He agreed that, when he found out the police were looking for him, he went to the police before he contacted his wife.
[183] The accused was questioned about his statement that he never forced sex on his wife if she said no. He testified that he never tried to convince her otherwise or tried to talk her into it. The accused testified there were times when his wife wanted to have sexual intercourse and he did not.
[184] The accused denied he ever pinned his wife’s arms above her head. He denied he ever pinned her down for forced intercourse. He said he would never have done such bad behaviour with her.
[185] The accused testified that he always respected her feelings.
[186] With respect to the events which occurred on February 21 and 24, 2010, the accused denied he became angry because of M.S. coming to his house or for receiving the telephone call from M.D..
[187] He denied he angrily confronted his wife after both of these events.
[188] With respect to the alleged forced sex when his wife was pregnant, the accused agreed that his wife told him she was not feeling well but reiterated that is why she asked for the massage. He testified that she had the normal pain she had when pregnant and massage helped. He reiterated that it was his wife who initiated the intimacy.
[189] The accused acknowledged that he went to the home of M.S. after he was charged. He agreed he went to offer an apology but said that he did not do what is alleged. He denied that he went to apologize for the assault in order to have his wife recant her accusations.
[190] The accused also denied he was involved in the meeting in the temple parking lot for the same purpose. He said he had no reason to apologize, “Why should I apologize for something I didn’t do.”
[191] The accused acknowledged that there was an earlier meeting at the M.S. home involving only his parents.
SUBMISSIONS ON BEHALF OF THE ACCUSED
[192] Counsel for the accused submitted that this is a case about credibility and reliability.
[193] It is submitted that there is no reason to reject the evidence of the accused. He was clear in his denials and was unshaken on cross-examination.
[194] Counsel submits there is no principled basis other than to accept his evidence.
[195] Alternatively, it is submitted by defence counsel that the testimony of the accused at least raises a reasonable doubt.
[196] As a further alternative, it is submitted that the Crown’s case is fragile and that the evidence of the complainant wife was problematic.
[197] Counsel referred the court to one case, R. v. M.G., 1994 ONCA 8733, [1994] O.J. No. 2086, a decision of the Ontario Court of Appeal. This case dealt with the issue of material misrepresentations. Counsel asked that I consider such issues when reviewing the evidence of the complainant and how she described the assaults differently at different times.
[198] Counsel submitted that the complainant’s evidence represented carelessness with the truth and argued the court ought not to rely on it.
[199] With respect to the February 21, 2010 incident, counsel for the accused submits that the complainant’s testimony at trial as to what occurred is different from what she deposed to in her family law materials. It is also submitted that the version told to her brother by the complainant was different than her trial testimony.
[200] Counsel for the accused suggested the issue of whether the complainant suffered a push or pull on January 19, 2010 demonstrates a contradiction giving rise to credibility issue.
[201] Counsel for the accused submitted that there were contradictions in the complainant’s evidence relating to the sexual assault in June 1997, which resulted in the vaginal bleeding and a trip to the hospital by the complainant. She told the medical staff that the bleeding was spontaneous and not as a result of an assault.
[202] With respect to this alleged assault, the accused claims that his version of events as the ring of truth, that the sexual intercourse was consensual.
[203] The accused also submits that this assault was not revealed February 25, 2010 when the complainant was interviewed by the police and was asked about sexual assaults. In fact, it is noted that the complainant was asked whether her husband ever beat her when she was pregnant and she answered, “No.” The complainant, when asked about this failure to disclose, said that she forgot.
[204] With respect to the Montreal incident, the accused submitted that at trial the complainant testified that her husband tried to punch her and then pulled her by the hair. At the preliminary hearing, the complainant testified that her hair was pulled and then the punch was attempted. The accused submits that this is an inconsistency that goes to credibility. The complainant testified, when the difference was pointed out, that she was confused.
[205] The incident in India, which allegedly resulted in scarring the accused, pointed to another inconsistency. Mr. M.S. testified that he was told by his sister that she was beaten with a stick. The complainant testified that she was struck by a phone charger. At trial when this issue was put to Mr. M.S., he explained that all he meant was she was hit with something.
[206] It is also suggested that Mr. M.S. was inconsistent in his description of the scar saying at one point that it was the size of a dime or nickel. At trial, he testified that the scar on his sister’s arm was the size of his index finger from the first joint to the tip and that it was defence counsel who brought up the reference to coins.
[207] Counsel for the accused noted that, when the complainant was asked by the police, on February 25, 2010, how many times she was sexually assaulted, she said three or four times. At trial, she testified that she was sexually assaulted many times.
[208] The complainant testified that, when she talked to the police, she deliberately failed to tell them the real number of sexual assaults. It is submitted that this is another example of the complainant lying under oath.
[209] The complainant was the subject of a second videoed statement on March 16, 2011. She added to her allegations. Thereafter, she revealed even more. Counsel points out that the Montreal incident was not disclosed until the preliminary hearing.
[210] Counsel for the accused submitted that, at trial, the complainant testified that she had no idea that forced intercourse was illegal. When interviewed on February 25, 2010, she was asked if she had been sexually abused and she said yes and said that she knew it meant doing it forcibly. The interviewing officer had not previously described sexual assault to the complainant.
[211] Counsel submitted that the complainant downplayed her ability in the English language.
[212] It was submitted that there are many more inconsistencies in the evidence of the complainant than that of the accused.
[213] As to the alleged confession to Mr. M.S. by the accused, it was submitted that this confession was not disclosed until a year later and that it was not until the trial did the witness testify as to the specific confession.
[214] Defence counsel requested that all charges against the accused ought to be dismissed.
SUBMISSIONS OF THE CROWN
[215] It is the theory of the Crown that the accused and his family agreed to the marriage simply to gain the accused residency in Canada. The accused did not see the complainant as a suitable partner, she was 10 years older and had health problems. It was submitted that the accused was unhappy in the marriage and abused his wife physically and sexually.
[216] The Crown attorney argued that, because of what happened on February 21 and 24, 2010, the complainant was so frightened that she sought her brother’s assistance.
[217] It is submitted that, after the charges were laid, the accused and his family arranged three meetings with the complainant’s brother to apologize for the accused’s behaviour and provide assurances that the behaviour in issue would not happen again.
[218] The Crown submitted that the evidence substantiates its theory and that specific details of whether the accused punched first and pulled the complainant’s hair second or vice versa, or whether she was pushed or pulled, are not necessary to determine to make a finding of assault.
[219] The Crown asked me to consider the frailties of the complainant and that, until she went to the police, she did not even know that it was illegal to force your spouse to have sexual intercourse.
[220] The Crown submitted that the evidence of the accused was not to be believed. The Crown submitted that the accused’s version of the June 14, 1997 sexual assault defies common sense; that on a day when the complainant was admittedly not feeling well was overcome by desire and wanted to have sexual intercourse.
[221] It was also suggested that the accused’s description of the post arrest meetings make no sense. The accused would have you believe that he apologized for having bad feelings, but not for committing the assaults.
[222] With respect to the complainant’s family law documents, the Crown submits that the complainant relied on her family law lawyer and that she did not read or fully understand what was attributed to her in those documents and that any inconsistencies arising from those court documents ought to be considered in that context.
[223] The Crown argued that M.S.’s evidence was consistent in its meaning and that, with respect to his description of the scar on his sister’s arm, both in the trial and the preliminary hearing, Mr. M.S. used his index finger in the same manner to describe the size of the scar.
[224] The Crown submitted to this court that the evidence of the complainant was consistent and clear and is to be accepted. The Crown asks for a finding of guilt on each count.
ANALYSIS
[225] I am aware of and guided by the WD approach. If I believe the evidence of the accused, he is entitled to an acquittal on all charges.
[226] If I do not believe the accused, but his evidence does raise a reasonable doubt, he is entitled to an acquittal.
[227] If I do not believe the accused nor does his evidence raise a reasonable doubt, he can only be convicted if the rest of the evidence proves the charges beyond a reasonable doubt.
[228] I do not accept or believe the evidence of the accused, I say this for two major reasons.
[229] The first relates to the accused’s version of the circumstances surrounding his leaving for Montreal. The accused testified that he told his wife that he was going to Montreal to find a place to live and a job. It was his testimony that the plan was his wife and children would then move to Montreal to be together. He also said that it was months before they joined him. He denied it was his intention to leave his wife and their relationship.
[230] This explanation is unbelievable, given the evidence. It is acknowledged that his wife filed a missing persons report with the police. It is illogical to suggest she did so, knowing that he was in Montreal. The accused also acknowledged that he returned to his wife’s home, with a police escort to obtain his personal belongings. If going to Montreal was part of a plan known to his wife, why would a police escort be necessary? He admitted he was living in Montreal for some months before his wife and children moved there. It is more likely that he left for Montreal to get out of the marriage and I accept that he left for Montreal without notice. I consider this evidence of the accused to be a material misrepresentation.
[231] The second reason I disbelieve the accused involves the circumstances surrounding the three meetings with M.S. after the charges were first laid. There is no doubt the meetings took place despite the fact that Mr. M.S. did not initially tell the police about them.
[232] The first meeting was soon after and involved Mr. M.S. and the accused’s parents. I can only conclude that his parent’s were looking for a resolution of the issues between the accused and his wife.
[233] The second meeting involved the same parties and the accused. The accused agreed he apologized to Mr. M.S. but denied it was for assaulting his wife. The accused testified that he apologized “to what M.S. had in his mind” and because “he did so out of respect to M.S. as he was older”.
[234] This explanation is too contrived. It is an attempt to put an exculpatory “spin” on the fact an apology was made. The accused’s alleged purpose for the apology is unbelievable.
[235] I accept that the three meetings were arranged at the request of the accused and/or his family. The purpose of these meetings could only be to find a way out of the criminal charges by having J.G.[1] recant her allegations.
[236] I reject the accused’s version with respect to the second meeting and the apology.
[237] This, too, is a material misrepresentation and, combined with the other, leads me to disbelieve the evidence, denials and explanations of the accused.
[238] Does the evidence of the accused raise a reasonable doubt? The answer to that question is also no. Given the material misrepresentations, I have rejected his evidence outright.
[239] I now need to review the evidence of the accused’s wife and her brother, M.S., to determine if the charges are proven beyond a reasonable doubt. I will do this with respect to each count and I will reference each by the date they are alleged to have occurred.
February 21, 2010 (Count 5)
[240] It was this incident that lead to the complainant attending at the police station four days later. The complainant testified as to how she was choked and pulled by the leg. She testified that the accused was angry that her brother, M.S., was at the house earlier that day. I accept that this incident occurred for the following reasons.
[241] Something significant must have happened to cause the complainant to, after a few days, steal away to her brother’s seeking advice as to what happened. I accept that her ability to leave the house was strictly controlled by the accused and his parents. I accept the complainant’s evidence that it took her till February 24th to be in a position to be able to get out of the house with the excuse of a doctor’s appointment. I accept that the complainant’s access to the telephone was controlled and/or monitored and that her ability to call for help was compromised.
[242] I also accept the evidence of M.S. with respect to his evidence of why his sister attended his home that day and what she told him. Further, I accept that, in a three-way telephone call arranged by M.S. with M.D. and the accused, the accused admitted “beating his wife.” The call itself leads to the February 24th incident.
[243] Any inconsistencies in the evidence of M.S. are not material. The gist of his testimony on this point was unshaken. I also accept that he likely sent his sister back to her husband hoping things would work out or could be worked out and for that reason he enlisted the help of the man who brokered the marriage, M.D..
[244] As for motive, while not necessary, I also accept that the attendance of M.S. at the accused’s home earlier on the 21st was something that angered the accused. The accused admitted that his relationship with M.S. was difficult although his reasons for the problems were different. I can only conclude that the accused did not want his brother-in-law at the house and he took issue with this by confronting his wife which led to the assault. There will be a finding of guilt on Count 5.
February 24, 2010 (Count 8)
[245] The three-way telephone conversation led to this confrontation. I accept that the accused was upset. The accused became aware of why his wife left the home earlier that day and again involved her brother. I accept that the accused, after getting off the phone, threatened her that he would “cut her up in pieces” and that he would “kill her”. In this regard, I accept the evidence of the complainant.
[246] This finding is also logical as to what next happened. The next day the complainant, by excuse, went to her brother’s home and advised him of the threat. As a result of this, the complainant, together with her brother, M.S., and her father, attended at the police station and gave statements.
[247] Both the complainant and her brother testified as to these events and I accept their testimony. Further, I accept the evidence of M.S. as to the subsequent meetings I referenced above. All of this is consistent with the events on February 21 and 24, 2010. There will be a finding of guilt with respect to Count 8.
June 14, 1997 (Count 1)
[248] This date relates to the alleged sexual assault while the complainant was pregnant. With respect to this count, I have a reasonable doubt.
[249] When the complainant attended the police station on February 25, 2010 she was specifically asked if she was ever sexually assaulted when she was pregnant. The complainant answered no. In fact, she did not make this allegation until January 2011, almost a year later. She testified that she did not remember the incident until then. There is no doubt the parties had sexual intercourse, the accused alleging it was consensual. In any event, the complainant started bleeding from her vagina and was taken to hospital by ambulance. Given these facts, it is hard to believe that she would have not remembered this incident when specifically asked about being sexually assaulted when pregnant with her first child. If it happened as the complainant suggested, it would have been memorable.
[250] It is noted that the complainant told the health care providers that the bleeding was spontaneous.
[251] It is also noted that the complainant generally described her relationship with the accused as ok up to the time when his parents came to Canada in July 2009 and moved into the home of the complainant and the accused.
[252] Given all of this, I am left with a reasonable doubt with respect to this allegation.
[253] There will be a finding of not guilty with respect to Count 1.
January 19, 2010 (Count 2)
[254] With respect this allegation, I accept the evidence of the complainant that an assault did occur. This assault occurred as a result of an argument the parties had over whether or not their daughter should accompany them in the car. The accused admitted such a discussion. The accused was upset that his wife, the complainant, would contradict what he said.
[255] Defence counsel noted an inconsistency in the complainant’s testimony. On one occasion, she said she was pulled by the arm, and on another occasion she testified that she was pushed by the arm.
[256] With respect, I disagree with the submission that such an inconsistency is material. I accept that her arm was grabbed by the accused which caused her to hit her head on the wall. It would appear that during her testimony the complainant demonstrated the grabbing action which would suggest she was pushed by the arm into the wall. I accept that explanation. I also note that the difference between a push and a pull may be related to language and translation issues.
[257] There will be a finding of guilt on Count 2.
February 14, 2010 and January 14, 2010 (Counts 3 & 4)
[258] With respect to the February 14th allegation, the complainant testified that the accused forced her to have intercourse one evening in the bedroom when she was not feeling well. She told no one of this until she spoke to the police on February 25, 2010. She testified that she told no one because she did not want the family to “break up”. Further, when she first told the police, she could not recall the exact date, saying it happened about 10 days before, which in fact, was correct.
[259] With respect to the January 14th allegation, the facts are similar, almost identical. The non-consensual intercourse took place in the bedroom. No complaint to anyone was made and the complainant testified that she did not complain as she did not want to break up the family.
[260] It was the testimony of the accused that he would never force his wife to have intercourse and that if she said no that would be the end of it.
[261] The complainant testified that she never tried to fight back or stop the accused from having intercourse with her. She never told her brother of these assaults when confiding in him on the 24th and 25th of February.
[262] On both these counts, I accept the testimony of the complainant. I accept that she said on both occasions that she did not want to have sexual intercourse but that the accused proceeded anyway. The fact that the complainant did not resist does not alter the fact that she did not consent to the intercourse. It is clear to me that the accused dominated his wife both physically and emotionally.
[263] The complainant was cross-examined on the documents she signed to commence and support her family law proceedings. There were inconsistencies with dates and the detail of certain events. However, the gist of what occurred remained consistent. I accept that any inconsistencies were as a result of the drafting of these documents by her family law lawyer and her inability to completely understand and read the English language.
[264] Further, the fact that the complainant did not tell her brother of these assaults does not give rise to any doubt. She went to him initially because of a non sexual assault and then the second time as a result of threats. It was those events that were the catalysts for the complainant to confide in her brother.
[265] These sexual assault accusations were made during the course of police questioning. Further, I accept that sexual abuse would have been a difficult thing for the complainant to admit to her family.
[266] These two incidents were relatively recent and easily recalled by the complainant during her police interview. Her recorded statement makes it clear that, in these circumstances, in matters between husband and wife, she knew being made to do it (sexual intercourse) forcibly was sexual abuse, regardless of whether she knew it was a crime.
[267] There will be findings of guilt made with respect to Counts 3 and 4.
DECISION
[268] Accordingly, the accused, M.G., is found guilty of Counts 2, 3, 4, 5, and 8 on the indictment. A finding of not guilty is made with respect to Count 1 and, as indicated at the outset, Counts 6 and 7 have been dismissed.
Justice Thomas A. Bielby
Released: October 12, 2012
COURT FILE NO.: 1374/11
DATE: 2012-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
M.G.
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
Released: October 12, 2012