COURT FILE NO.: 1232/11

DATE: 20121022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

N.R.

M. Ward, for the Crown

D. Taheri, for Mr. N.R.

HEARD: September 11, 12, 13 and 21, 2012

REASONS FOR JUDGMENT

HOURIGAN J.

Introduction

[1] The defendant, N.R., is charged with one count of sexual assault. He is alleged to have sexually assaulted his then wife L.R. on or about September 28, 2010.

[2] Mr. N.R. pleaded not guilty to the charge and testified at trial.

[3] For the reasons that follow, I find Mr. N.R. not guilty.

Evidence

(i) Agreed Statement of Facts

[4] The parties filed an agreed statement of facts as follows.

[5] On September 28, 2010 at 4:02 a.m. police received a radio call about a domestic abuse situation from the complainant L.R.. Police arrived at the R. residence at 4:07 a.m. The first officers on the scene spoke with Ms. L.R. and noted that she was “visibly upset”. She told the officers that she had been raped by her husband Mr. N.R. in the children’s bedroom. Police went into the children’s bedroom and saw a comforter on the floor in the middle of the room. They also noted that the room was somewhat messy with children’s clothes located by the desk, children’s clothes folded on one of the two beds, and that there were no obvious signs of struggle in terms of broken or knocked over furniture. Police contacted Mr. N.R. by telephone who advised that he had just arrived at a hotel. Police asked him to return to the residence to meet with them. He did. He was arrested upon arrival. Police noted that neither Mr. nor Ms. L.R. had visible signs of injury.

[6] Ms. L.R. was taken from the residence to Chantal’s Place where her breasts, abdomen, and external genitalia were swabbed for the detection of blood, semen, and/or D.N.A. The samples were sent to the Centre of Forensic Sciences and assessed by biologists. Semen was not detected on the vaginal swab from Ms. L.R. but blood was detected. Mr. N.R.’s D.N.A. was detected on Ms. L.R.’s breasts, abdomen, and external genitalia. It is not known what cell type deposited Mr. N.R.’s D.N.A. on Ms. L.R.’s body (epithelial from touching or saliva, blood, sperm, tears, etc.).

(ii) Evidence of L.R.

[7] L.R. is 34 years old and is the wife of the defendant. She was married to the defendant in Pakistan on March 29, 1999. The marriage was arranged through her family, Mr. N.R. and his sister. She came to Canada in November of 2009. There are two daughters of the marriage. The first was born […], 2000, and the second on […], 2002. Currently she is separated from the defendant.

[8] When she came to Canada, Ms. L.R. had no family or friends. She worked for a time before she became pregnant with her first child and she stayed home to raise her children for five years. Later she attended school to train as a hairstylist and took a course in make-up application. In March of 2010 her parents and a brother moved to Canada.

[9] Ms. L.R. is approximately 5’3” tall and weighs approximately 120 lbs. Her height and weight are similar to her status in September 2010. She estimates that Mr. N.R. is 6’ tall and that he has lost weight since September 2010.

[10] Ms. L.R. testified that in the beginning of their marriage things were not bad but the couple had issues right from the start. She testified that her husband changed over time and became more controlling and insecure and was very inflexible. He told her what to do and what to wear. Ms. L.R. described occasions when she says Mr. N.R. physically assaulted her.

[11] The first incident occurred when she was six to seven months pregnant with their second child. Ms. L.R. testified that he slapped her on that occasion two times in the neck, back or head area. She did not report the matter to police because she was working on her marriage and she had a young daughter and a second one on the way. She also felt that she had no support and did not know where she would go.

[12] The second incident occurred in 2005 as she and Mr. N.R. and their children were driving to the C.N.E. They began arguing and he punched her a few times in the left eye and she passed out. She asked later to go to the hospital for help and he kept telling her that she was fine. He blamed her for the assault, telling her that she had made him upset. Shortly thereafter she attended the hospital and had her eye checked out and was told that it would get better. Ms. L.R. did not tell the attending physician that she had been hit. She lied to him and told him that she had fallen and hit her eye on a rock. She testified that at this point she had no intention to separate.

[13] The third alleged assault occurred in 2007. She testified that during arguments he would make her angry by calling her parents, relatives or friends and indicating to them that she was not a good wife. On this occasion he picked up the phone. She told him not to make the call. She attempted to grab the phone and he pushed her. Ms. L.R. then tried to disconnect the phone and Mr. N.R. hit her in the forehead. She fainted and got up and eventually fell to the floor. She testified that at this point she did not feel that she had any family or other support to assist her.

[14] Ms. L.R. testified that the relationship in the year or two leading up to September 2010 incident was not good. Mr N.R. was more controlling, insecure and jealous. They had arguments about money, how she dressed and her work. Still she was not sure about separating because she did not want her kids to suffer. She was also not sure if she would be able to support them on her own emotionally or financially. Culturally she felt that her parents would not accept a separation. However, approximately one year before September 28, 2010 she concluded that she wanted to separate and had decided that she did not care what the reaction was from her parents.

[15] Ms. L.R. testified that she discussed separation with Mr. N.R. on a couple of occasions and told him that it was not working out. He responded that he was not agreeable to separating and that things would work out and would change. However, things never changed. During arguments there were occasions when she would ask him to leave or he would ask her to leave. She testified that she never demanded that he leave.

[16] In September 2010 Ms. L.R. was working as a hairstylist in a salon on a part-time basis. Her husband was working as a delivery person for a pizza restaurant. They resided in an apartment in a high rise building at […] Road.

[17] In the days leading up to the incident she would only speak to him when necessary, usually two or three words at a time. She told him that she did not want to be with him and when he came close she told him not to touch her. At the time, she felt that her parents and brother would not support her leaving her husband.

[18] There was an argument a couple of days before the incident where Mr. N.R. asked him to leave and he said that he would but wanted time to think about it. He took no steps to leave. She testified that she was remaining there for the sake of the kids only. She told Mr. N.R. that if he would not leave she would need to find a way “to get out here”.

[19] In terms of sleeping arrangements in the apartment, she used to sleep in the master bedroom in the queen size bed in that room. Mr. N.R. slept in the kids’ room, the living room and the master bedroom. She said that he was always moving around because of his back pain, headaches and neck pain. As of the date of the incident, they had not shared a bed for six months.

[20] On September 28, 2010 she worked till approximately 8:00 p.m. She went to pick up her children at her sister-in-law’s and it was suggested to her by her sister-in-law that the children stay overnight because they did not have school the next day. She initially refused and waited for her brother-in-law to bring the children home. Eventually she agreed at the insistence of the children and her brother-in-law that the children could stay overnight there. She arrived home to her apartment at approximately 9:00 p.m. At this point Mr. N.R. was working.

[21] Once she arrived home, she sat on the bed working on her laptop in the master bedroom. She described her attire as being underwear, elastic band pyjamas bottoms and a t-shirt with a bra underneath.

[22] Mr. N.R. came home at approximately 2:00 a.m. When he arrived she was still awake and in the bedroom and using the computer. There were lights on in the bedroom but no television and the bedroom door was open. Mr. N.R. popped his head in and said hello. At some point Mr. N.R. changed into pyjamas, consisting of a t-shirt and elastic band pyjama bottoms. She testified he kept his clothes in the kids’ bedroom and normally would change in the washroom or in the kids’ bedroom.

[23] After he said hello she did not pay any attention to him or what he did as she was busy with the laptop. She did note that he was in the living room watching television for about 15 to 20 minutes. She also noted that he went to the kids’ room and she assumed it was to go to sleep. Approximately 15 to 20 minutes later, she went to the washroom and saw that the lights were off in the children’s bedroom and thought that Mr. N.R. was sleeping. She prepped for bed and brushed her teeth.

[24] As she left the washroom he called to her. She estimates this was approximately 2:25 to 2:30 in the morning. He requested that she come into the room and she said no. He repeatedly asked her to come and said he wanted to talk to her. She said no and then he asked her to rub his back. She initially said it was late and she wanted to go to bed but he kept insisting and eventually she agreed to rub his back to get it over with. At this point he was sitting on his knees on a blanket on the floor.

[25] When she entered the room she did not think anything sexual was going to happen and she had no intention of having sex with him. She had her back to the closet and they were facing each other and she was bending to reach his back. She described rubbing pretty hard and rubbed to the mid-part of his back. He was not touching her at the time that she was rubbing nor was he talking to her.

[26] As she finished rubbing she tried to stand up to go. He grabbed her left hand and then released it and then grabbed around her waist using his left arm. He did not say anything to her but pulled her down onto the floor. While he was doing this she was asking him what he was doing and telling him to let her go and leave her alone.

[27] She ended up on the floor, landing on her knees. He pushed her to the floor on her stomach. She testified she was pushing back and struggling. Ms L.R. is not sure of his position when she was on her stomach as she could not turn and see what he was doing. She was trying to sit up or stand up but could not.

[28] Ms. L.R. testified that he was holding her hands and would let go and then hold her legs. She was very tired and struggling with him the whole time. She believes that he was using all of his strength because she was not able to get up. At some point he was pressing her arms. Eventually he rolled her from her stomach to her back.

[29] Ms. L.R. testified that she is not sure of the order of everything that happened that evening but she knows that she was struggling as he was trying to roll her over.

[30] Once she was one her back he tried to take off her clothes. He pulled down her pants. Mr. N.R. did not remove her shirt and bra but did pull the shirt from the top and the bottom. He had access to her breasts and kissed her face and breasts. Once her pyjamas and underwear were removed she was naked on the bottom.

[31] She testified that he took off his pants and that while he was taking off her pants he was naked on the bottom.

[32] She testified that he kissed her on her stomach and eventually went down lower and performed oral sex. She kept pushing him and telling him to stop and that she did not want to. He rolled her over on her stomach and inserted his penis in her vagina. She testified at this point she was screaming and crying and asking him to let her go and to stop.

[33] During the vaginal sex she testified she was trying to turn herself and that possibly she punched him. She was using her hand to try to get up and he was holding her hands so she could not move behind her back. She testified that they never moved from the blanket and never moved to the bed.

[34] It is not clear to her the order of how things happened but she knows for sure that he performed oral sex and that he inserted his penis in her vagina. She estimated that the vaginal intercourse lasted a few minutes, three to five minutes approximately, and that the oral sex lasted a couple of minutes. She does not know how many times she was flipped over but estimated it to be three or four times.

[35] Ms. L.R. estimated that from the moment the back rub started to the end of the encounter approximately one hour elapsed. At one point she stopped resisting because she could not do anything but she testified that that only lasted for approximately 30 seconds and then she struggled again. During their encounter she asked what he was doing and he told her that he loved her and wanted her. She cannot recall what he was doing immediately before stopping the encounter.

[36] After it stopped she got up and tried to get dressed and left the room. She told him to leave right away repeatedly. He asked why. Ms. L.R. said he had to leave, that it was over and said if he would not leave she would call the police. He told her not to call the police and that he was leaving. He left but came back a few minutes later looking for a coat. Ms. L.R. told him to leave immediately or she would call the police.

[37] After he left the second time Ms. L.R. locked the door and called 911. She was scared that he might come back and assault her again or harm her. That is why she locked the door. When she called 911 she did not say that she had been sexually assaulted. She was more concerned regarding her safety and that he might come back and harm her.

[38] She testified that the police attended at the apartment about 6 or 7 minutes after her phone call. She was crying and shaking and remembers being very upset and angry.

[39] Ms. L.R. could not be certain but she did not believe she was menstruating at the time of the encounter. She also testified that there was no other reason for blood in her vagina.

[40] The defendant did not tear her clothes and he did not do anything that resulted in marks to her body. She had pain in her upper arms and wrists. Ms. L.R. also felt some pain as a result of the vaginal penetration.

[41] Mr. and Mrs. L.R. separated that night. They eventually resolved all of their issues in family court, although they are not yet divorced. They both have joint custody of the children.

[42] In cross-examination, she admitted that she wanted to end the relationship for roughly the year and a half before the incident and that she had told her husband the relationship should end but nothing happened. When she would raise the issue of ending the relationship her husband, he would ignore her and take the position that he knew more than her and that he would guide her.

[43] In her police interview, which was made under oath, she stated that she wanted to end the marriage for a long time. In cross-examination, she agreed that there were impediments to ending the marriage. She did not want the kids to blame her later for the breakup and putting her happiness above their happiness. Also she did not believe that she had sufficient support and that her family would not be supportive. However, she denied the suggestion that the only way to get out of the marriage and to satisfy her parents and children was to make an allegation of sexual assault.

[44] In cross-examination, Ms. L.R. stated that when the defendant removed her pants and underwear she was on her back but she is not certain of that fact. However at the preliminary inquiry she testified that she was on her stomach when he took off her pants and underwear.

[45] Ms. L.R. testified she has difficulty remembering the order of things as she was not keeping track of what was happening when. In her preliminary inquiry transcript she stated that he performed oral sex then intercourse. However, she stated later at the preliminary inquiry that the intercourse preceded the oral sex. She also testified at the preliminary inquiry regarding a subsequent unsuccessful attempt at vaginal intercourse at the preliminary hearing.

[46] She does not recall telling the police that her husband told her she wanted sex as he pulled her to the ground. She does not believe she made that statement however she says that it is possible that she told the police that. She denied ever telling the police officers that the struggle started outside of the kids’ room.

[47] Ms L.R. denied ever trying to ruin the relationship between her husband and the children and stated that the relationship is currently okay. She also denied telling the children anything about the alleged sexual assault or any other issue arising from the night of September 28, 2010.

(iii) Evidence of N.R.

[48] Mr. N.R. is 46 years old. He has resided in Canada for 19 years. He has a high school education and studied medicine for four years in Afghanistan. He worked for one year in the medical field in a province in Afghanistan. Since coming to Canada he has worked at S[…] and has been employed by the same pizza restaurant for seven or eight years.

[49] Mr. N.R. was married to the complainant for 10 years. It was an arranged marriage which took place in Pakistan. He sponsored his wife’s immigration to Canada in 2000.

[50] Mr. N.R. described their marriage as of September 2010 as not being very pleasant. Right from the beginning the couple had problems which he attributed to them not knowing each other. He stated that they had small problems which gradually increased in scope. He testified that there was a lack of trust on his part and it appeared to him that his wife was not truthful with him.

[51] According to Mr. N.R., they were sometimes happy and sometimes not up until two years prior to the incident. He testified that things escalated at that point. There was tension because she dumped all of the responsibilities for taking the children to school and making their lunches on him. They argued two to three times a week but he denied any physical altercations with her and denied ever assaulting her.

[52] With respect to the 2005 C.N.E. incident, he testified that there was an argument but no physical altercation. He said that they decided to go to the C.N.E. for a couple of hours but his wife insisted that they see a show and he explained to her that he had to work at 4:00 p.m. and it was already 2:00 p.m. They returned home that afternoon and on the way she got upset and began arguing. He testified that the children were in the car and were awake during this argument. He dropped his wife and children home between 3:15 p.m. and 3:30 p.m. and proceeded to work.

[53] When he left his wife he did not note any injury but when he returned home at 1:30 a.m. he noticed an eye injury which she explained was a result of a fall off a bike. He asked her if anyone had punched her or hurt her. He testified that he told her to go to the hospital and she told him later that she attended the hospital. He denied that his wife ever asked him to take her to the hospital. He also denied the alleged assault in the summer of 2007.

[54] As of September 28, 2010 the family was residing at […] Road. He described the apartment building as being 14 to 15 stories with a straight hallway and an elevator in the middle. There are approximately five apartments on his side of the elevator. He slept nights with his wife but sometimes when he would get a headache he would go to the living room or the kids’ room. He testified that his wife always slept in the master bedroom.

[55] On September 27, 2010 he took the kids to school, went to the gym and then returned home. He picked up the kids from school between 3:15 p.m. and 3:45 p.m. He called his wife to ask where the kids should go because she was working. She told him to take them to her mother’s but the kids asked to go to his sister’s home. He testified that he asked his wife her opinion and she said it was okay for the children to go to his sister’s and that she would pick them up after work. He went to work at the pizza restaurant and had no further conversations with his wife that evening.

[56] Mr. N.R. finished work at approximately 1:10 a.m. and was home at 1:30 a.m. When he arrived home he passed by their bedroom and his wife was sitting up. He said hi to her but she did not reply. Mr. N.R. then went to the kids’ room because his closet is in that room and changed his clothing. He changed into a t-shirt and pyjama bottoms and then went to the living room to watch television.

[57] Mr. N.R. was in the living room watching television for 8 to 10 minutes. He wanted to go to sleep and went to the kids’ room to go to bed. Mr. N.R. put a mattress or blanket on the floor. He was sitting in the middle of the room on his knees. His wife left the bedroom and he saw her go into the bathroom approximately four or five minutes after he entered the kids’ bedroom.

[58] Mr. N.R. wanted to rest but his back was aching. He called his wife and asked her for a massage. She did not respond but came in the room. Mr. N.R. testified it was a usual thing to give each other massages.

[59] Mr. N.R. testified that his wife came to him and stood next to him and massaged his shoulders and back. When she came in he was sitting on his knees facing the closet and the entrance to the room was to his right. She stood on his left side next to him and then eventually moved behind him. While she was massaging him under his t-shirt he did not say anything. She massaged him for two or three minutes.

[60] After she gave him a massage she left a hand on his shoulder. He reached for her hand and asked her if she was tired and whether she wanted a massage. She did not say anything and turned her back to him. When she turned around she was facing the wall and they were both facing the same direction. They were both on their knees and he began massaging her. This continued for approximately four minutes.

[61] Mr. N.R. stated that Ms. L.R. then brought her face closer to him. He got the impression that she expected him to kiss her. He kissed her lips and neck. They removed their shirts. He was massaging her body and she took her bra off and was rubbing his head. He testified that she was holding his head in her chest and stomach.

[62] Mr. N.R. testified that he was on his knees when they were kissing. She removed her pants but not her underwear. He removed his pants. She was still massaging his head and she pushed his head in different directions and downward. He testified that she pushed his head toward her underwear and she lay down on her back and she took off her underwear.

[63] Mr. N.R. testified that he performed oral sex for one to three minutes. He said that she did not say or do anything to indicate she did not want to have oral sex.

[64] After oral sex, they had intercourse. He testified she was lying on her back at this point and he was lying on top of her. Mr. N.R. testified there was nothing to indicate that she wanted to stop. He knew she wanted him to continue because she was showing interest, caressing, rubbing him, kissing him and pulling him up.

[65] Mr. N.R. testified that the intercourse went on for three to five minutes. After that she rolled over onto her front. She raised her buttocks and after one or two minutes of sex in that position he heard a noise like a voice but he could not make out what was being said. He heard the voice again and he discerned that she was telling him to stop. He stopped having sex. He estimated that approximately 15 seconds elapsed between the first and second time that she spoke to him.

[66] At this point Mr. N.R. was behind Ms. L.R. on his knees. He testified that she rolled herself over by making a gesture with her leg meaning she wanted to roll over and he gave her a chance to do so. He was upset because everything was going all right; both wanted sex and were enjoying it. Mr. N.R. was surprised and he had no idea why she asked him to stop. He testified he did not like the situation and had to leave.

[67] Mr. N.R. testified that he became incensed and asked if she loved someone else and asked “don’t you want me”. He testified that she did not say anything and that he kept raising his voice and used foul language and lost his temper. He was upset, got dressed and said he was going to leave but did not leave at that moment. Mr. N.R. told her that she was not a good wife or mother because she did not take care of the children. She got upset and told him to get lost. Mr. N.R. testified that he accused her of using him.

[68] According to Mr. N.R., at that point he and his wife both used foul language and were upset and having an argument. They were using profanities regarding each other’s parents. He testified that the conversation took place in the hallway outside the bedroom. He eventually left the apartment.

[69] Mr. N.R. denied ever sexually assaulting his wife. He testified that he never had sex with her when she was not a willing participant.

[70] On September 30, 2012 Mr. N.R. was interviewed by a police officer, Constable Terence MacNeil, in the parking lot of his apartment building when he went to pick up his belongings. Mr. N.R. testified that he “approximately” understood what the questions were about but he did not give complete answers because it was night and he did not want to disclose private information to the police officer in the parking lot.

[71] Mr. N.R. confirmed that when the officer asked if he had sex that night he said he did not remember. He testified that he was tired when he met with the police officer. With respect to his statement to the officer that “in my culture we don’t talk about sex” he meant by that that he was reluctant to discuss with a stranger his private affairs with his wife and that he only responded to Officer MacNeil out of respect for him being a police officer.

[72] In cross-examination, he agreed that they had problems in their marriage but not to the extent that they assaulted each other. One of the problems arose from the fact that his wife kept pushing him to sponsor her family and he did not have sufficient income. He detailed problems with her during the marriage including her friends and her smoking.

[73] He testified that in the year leading up to the separation she did tell him that she was not happy and that they should separate. He admitted that he knew she was unhappy.

[74] In the week leading up to the incident he testified that things were “cold” and they barely talked and when they did talk it was only about the kids. He testified that she was spending a great deal of time with her parents at their residence. She would come home late at night and leave him to take care of the children.

[75] In cross-examination he admitted that a question had been created in his mind earlier about whether she was involved with other men because she was keeping her phone under the pillow and there were a number of men’s names in the phone.

[76] Mr. N.R. testified that he never had to spend a night in a hotel before as a result of arguing but he might have left during altercations to stop the altercation from escalating. According to him, she never kicked him out of the apartment previously.

[77] In cross-examination, Mr. N.R. denied thinking after the sexual relations were stopped that evening that his wife was having an affair. He was more upset because the sex was incomplete. He testified that he did not think that she was having an affair at the time but he was asking her about an affair to insult her.

[78] Mr. N.R. testified that he left the apartment that evening because he did not want the situation to escalate. He denied that he did not voluntarily leave the apartment. Mr. N.R. agreed that if he told the officer that his wife kicked him out of the house that statement was accurate. However, he insisted that he could not remember whether he said that to the officer.

[79] Mr. N.R. explained his reluctance to speak to the police officer on September 30, 2010. He said that he was tired and scared. He denied lying to the officer. Mr. N.R. said that if he told the officer that he did not remember having sex that could be because in his culture he is not comfortable discussing sex or because he was in shock. In re-examination he testified that he was taken to the hospital on two occasions between the time of his arrest and the time that he made the statement to Officer MacNeil. He testified that he had not slept for two nights before the statement was made.

(iv) Testimony of Constable Terence MacNeil

[80] Officer MacNeil testified in reply regarding his interview of Mr. N.R..

[81] He stated that he did not have any concerns regarding Mr N.R.’s mental health when he interviewed him. The officer also did not recall Mr. N.R. making any complaints about his physical or mental wellbeing.

[82] Officer MacNeil’s notes of his conversation were accurate to the best of his ability. They were recorded in his notebook after the interview when he returned to the police station. Officer MacNeil estimated that the notes were made approximately four minutes after the interview concluded.

Positions of the Parties

[83] The defence argues that the complainant was motivated to lie about the alleged sexual assault because she wanted to find a way to end the marriage which would allow her to maintain a good relationship with her parents and children.

[84] The defence also submits that there are inconsistencies in Ms. L.R.’s testimony. For example, the defence notes that she did not report a sexual assault to the 911 operator and that initially she did not tell the police officers who arrived at the scene that she had been sexually assaulted.

[85] Defence counsel asserts that there are also inconsistencies in how she described being brought down to the ground and what, if anything, was said by Mr. N.R. at that point. He argues that Ms. L.R. gave varying accounts of the sequence of the sex acts and regarding the precise details of how she was held by her husband during the encounter.

[86] In addition to Ms. L.R.’s alleged motivation to lie and the alleged inconsistencies in her story, the defence argues that there are several points which render her story implausible. First, is that fact that no one came to her aid despite the fact that she was screaming for approximately an hour during the middle of the night. Second, there was no damage to her clothing and neither she nor the accused suffered any injury. Third, the accused was able to perform oral sex for two to three minutes while she was struggling with him. Fourth was the fact that nothing in the room was disturbed. Finally, the defence argues that it is not plausible that the accused simply stopped the sexual assault because he was tired.

[87] The Crown submits that the only inconsistency in the complaint’s testimony was the sequence of the sex acts and argues that it is not reasonable to expect that the complainant would have a precise recollection of the sequence of all of the events.

[88] The Crown submits that I should reject Mr. N.R.’s evidence in its entirety. She submits that his evidence included tangents on irrelevant matters and lengthy pauses. The Crown argues that he was not a truthful witness and cites as an example his story regarding the C.N.E. which she submits did not make sense. She also points to his evidence regarding his statement to Officer Mac Neil which she says clearly showed that his testimony regarding about leaving the house of his own volition was not truthful. In addition, she says that his statements to the officer demonstrate selective memory loss. Finally she points to the change in his testimony regarding whether he suspected that Ms. L.R. was having an affair.

[89] The Crown submits that Ms. L.R. was not shaken on cross-examination and was a candid and truthful witness. She argues that Ms. L.R. had no motive to fabricate her evidence and stated that if she wanted to falsely accuse her husband of sexual assault she would have said so in her 9-1-1 call.

Analysis

[90] Mr. N.R. is charged with sexual assault. The essential elements of the offence, to be proven by the Crown beyond a reasonable doubt, are:

(a) Mr. N.R. applied force to Ms. L.R.;

(b) Ms. L.R. did not consent to the force that Mr. N.R. applied;

(c) Mr. N.R. knew that Ms. L.R. did not consent to the force that Mr. N.R. applied; and

(d) The force that Mr. N.R. applied took place in circumstances of a sexual nature.

[91] Given that the accused testified, as required by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, I must apply the following principles:

(a) If I accept Mr. N.R.’s evidence, I must acquit him;

(b) Even if I do not accept Mr. N.R.’s evidence, I must acquit him if I am left in reasonable doubt by it; and

(c) Even if I am not left in doubt by the evidence of Mr. N.R., I must acquit if I am not convinced beyond a reasonable doubt of Mr. N.R.’s guilt by the evidence I do accept.

[92] As noted by Justice McMahon in R. v. Gowans, unreported, (S.C.J.), the role of the trial judge is to assess whether the essential elements of the offence have been proven beyond a reasonable doubt, not to choose between competing versions of events:

A criminal trial is not a credibility contest. It is not my duty to simply choose which version is more likely to be true. It is my duty to assess whether the Crown has proven the essential elements of each of these offences beyond a reasonable doubt.

The role of the trial judge, in such cases, is best summarized in the decision of R. v. Nimchuk (1977) 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.). Mr. Justice G. Arthur Martin summarized the law, as follows, at page 210:

The trial judge appeared to think that he was confronted with a choice between two alternatives: either accepting the evidence of the accused and finding that Mrs. Vranka framed him, or accepting the evidence of Mrs. Vranka, which would require a conviction. There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony as to exactly where the truth of the matter lay, it would of course require, in law, an acquittal.

[93] I reject the suggestion that Mr. N.R.’s evidence regarding the C.N.E. incident was incredible. In my view, there was nothing in Mr. N.R.’s evidence regarding the encounter which struck me as unbelievable and he was not shaken from his position on cross-examination.

[94] Despite the foregoing, I do agree with the submission of the Crown that there were troubling aspects of Mr. N.R.’s testimony.

[95] In particular, he gave two completely different and incompatible answers regarding whether he suspected that his wife was having an affair.

[96] His statement at trial that he left the home that evening of his own will is also at odds with what Officer MacNeil recorded in his notes. I accept that the officer accurately recorded what Mr. N.R. told him doing that interview.

[97] These statements raise significant credibility concerns for me.

[98] I have concluded that I cannot accept as a matter of fact Mr. N.R.’s version of events. Therefore, I conclude that I cannot acquit the accused on the basis of the first prong of the W. (D.) formula.

[99] Given this finding, the next consideration in the W. (D.) analysis is whether, even though I do not accept Mr. N.R.’s evidence, I am left in reasonable doubt by it.

[100] The second stage of the formula does not involve a simple consideration of Mr. N.R.’s evidence in isolation. Rather this analysis must be undertaken in the context of all of the evidence as was stated by Justice Feldman. in R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) at paragraph 15:

... A jury does not consider an accused's version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W. (D.), they are deciding whether they accept the accused's version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused's evidence and the other evidence that favours the accused in the context of all the evidence. See R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

[101] See also R v. D (J.J.R.), (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) and Gowans, supra.

[102] In the second stage of the formula, the trier of fact may well conclude that they cannot determine whom to believe. This issue was considered by Justice Binnie in R. v. S.(J.H.), 2008 SCC 30, 2008 S.C.C. 30:

[10] The precise formulation of the W. (D.) questions has been criticized. As to the first question, the jury may believe inculpatory elements of the statements of an accused but reject the exculpatory explanation. In R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, 2001 SCC 1, the accused did not testify, but his description of the killing of his daughter was put into evidence by way of statements to the police. His description of the event itself was obviously believed. The exculpatory explanation did not amount to a defence at law. He was convicted. The principle that a jury may believe some, none, or all of the testimony of any witness, including that of an accused, suggests to some critics that the first W. (D.) question is something of an oversimplification.

[11] As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.

[12] The third question, again, is taken by some critics as failing to contemplate a jury’s acceptance of inculpatory bits of the evidence of an accused but not the exculpatory elements. In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested an additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [p. 155]

[13] In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. W. (D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance…

[103] The decision of Justice Morden in R v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), which was relied upon by Justice Cory in constructing the W.(D.) formula is to similar effect. In that case Justice Morden held that jury instructions must not exclude “the legitimate possibility of being unable to resolve conflicting evidence and, accordingly, being left in a state of reasonable doubt” ( at page 556). See also the comments of Justice Martin in R. v. Nimchuk (1977) 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.) as cited in Gowans, supra.

[104] I will now consider the credibility of Ms. L.R.. In assessing her evidence I find that there are some inconsistencies regarding the particulars of the alleged sexual assault. The details of the precise nature of how the alleged assault occurred are not troubling. In my view, the particulars of how she was brought down to the floor and where her hands were at various points are not matters which I would expect her to remember in detail.

[105] More troubling were the inconsistencies in her description of the sequence of sexual acts. Again, I do not expect her to remember the alleged assault in perfect detail, but I would have thought that she would be able to remember whether the oral sex occurred before or after the intercourse. It was also concerning that the reference to a second attempt at intercourse was not referred to in her examination in-chief.

[106] There were two other areas of Ms L.R.’s testimony that particularly concerned me. The first was with respect to the details of her 9-1-1 call and the motivation behind the call. The relevant portions from her examination in-chief are as follows:

Q. At the moment when you called 9-1-1, what was the foremost thought in your head? What were you thinking, at that time, when you called 9-1-1?

A. I was, like, scared. I was really scared that he might come back and he might assault me again, or harm me in any way. So that’s why I locked the door, because - because I got really scared. And then I called because, like, an incident like that happened before. So I was kind of scared that, what if he comes back and then starts arguing or maybe hurt me or harm me somehow? I was pretty scared, at the time.

Q. When you called 9-1-1, did you tell them that there had been a sexual problem or a…

A. No.

Q. …dispute between the two of you? Incident?

A. Yeah. No, I didn’t say anything.

Q. What were you most concerned about when you were on….

The Court: Sorry. I missed her answer.

Ms. Ward: Oh, sorry.

The Court: What did you - what was your….

A. I didn’t say it was a sexual assault, but I - I was more concerned about the - my safety. And I was like, he might get back and, you know, harm me, or beat me, or stuff like that.

Ms. Ward: Q. I want to break down, please, the source of your fear. So what are all the factors that had gone on in your life that made you have this fear that he was going to come back and harm you?

A. Because he - he wasn’t - he wasn’t listening to me, and I kept telling him to leave. We had this discussion before that he should leave and he would say yes, but he wouldn’t - wouldn’t do anything. So it was just like talking, talking, talking and no action. And because he, like, he harmed me before and he has beaten me up before. That’s - that - that was the reason that I was scared that, what if he comes back? That, you know, I was fighting with him the whole time and I didn’t like him to, you know, touch me or do anything with me. That was - that was the main thing that I was scared from, that, okay, he might come back and he might start the assault again. I guess that was - that was the main thing in my mind.

Q. Okay. So then why did you call 9-1-1?

A. I called because, like I said, I was scared that he might come back. He might harm me. And - yeah, that - that was.…

Q. Was you call to 9-1-1 just a way of getting him to leave and get out of house and get out of this marriage?

A. I think, yeah, because I asked him so many times that this is not working out. We discussed it a few times that he said he’s going to leave, but he never left. And, basically, I thought that, like, he was - he was doing whatever he wanted to do. It was not that I called 9-1-1 because I wanted him out of the house, or anything like that. But the thing, to my mind, at that time, was that I was - I was scared for my safety. That was something that came to my mind first, that I want him out of there because I can’t take it anymore. I don’t want to get, you know, get abused again, get assaulted again. I think that was the main thing to my mind at that point of time. That was the only….

[107] The relevant portions of her evidence in cross-examination on this subject are as follows:

Q. And I also suggest to you that’s the reason why when you called 9-1-1 you made absolutely no mention of sexual assault during that call, the entire call?

A. I was more concerned about my safety than anything else.

Q. Yes.

A. That was - in my mind, at that time, that was the only reason that I called 9-1-1.

Q. I suggest to you the reason why you may have been concerned about your safety was because you knew and you saw and you observed your husband being angry when he walked out of the apartment, and - and following the heated argument between the two of you, that’s why?

A. Yes, but that doesn’t mean that he’s mad or he’s upset and he can come and assault me and abuse me.

Q. Well, were you afraid or not?

A. I was afraid.

Q. Yes.

A. Just for my safety. I didn’t want to get harmed because we happens to me like that before. That’s - that was the only reason I called 9-1-1.

Q. I suggest to you that it makes more sense if someone is - is concerned about her safety, that the person would have been showing some sign of anger or upset or something that would convey to you that he might harm you. And I suggest to you that’s consistent with Mr. N.R.’s version saying that there was a heated argument, at that point. He was angry when he left. And you knew that he was angry, you saw he was angry and that’s why you called 9-1-1 because you felt scared?

A. That was not the reason. That was not the reason.

Q. And you felt that your safety would be at risk.

A. No, that’s not true.

Mr. Taheri: Q. So you would agree with me that it is more consistent for you to be at fear of risk to your safety if Mr. N.R. was upset and angry when he left, correct?

A. I was always concerned about my safety, but because it was just for the sake of the kids I was tolerating. But, at a point, I’m not - like I realize that I can’t take it anymore. So I think that - that time was the time that he had to - he had to go, he had to leave. And it was like over for me.

Q. In the course of that telephone call to 9-1-1, you are specifically, at what point - at one point, asked, what did he do? Did you at all mention sexual assault? No.

A. I didn’t mention sexual assault because like I said I was more concerned about my safety. And that was the only reason because he left and he came back. That - that was something that scared me the most, that he might come back later or maybe next day or in a week or so.

Q. Yes.

A. He could be mad, I - I can’t deny that he could be mad because he - like whatever he was trying to do, he didn’t get it at the - at the way he wanted it, but like he - he - he could be mad, at that time. That’s why like I was concerned that he might come back and he might start arguing and we - we might have more problems and stuff like so that was the only reason, I guess.

Q. But you would agree with me that - and that when the 9-1-1 call taker asks you what happened after identifying who the alleged perpetrator is and you - your basically response is, my husband is abusive?

A. Yes.

Q. Correct?

A. Yes.

Q. You don’t say that I was raped? You don’t say that I was just sexually assaulted? You don’t say one of those things?

A. Like there are points that - like as I said before, the set of words could be different, but, at that point, because of the state of my emotions and I was scared, like I was just more concerned about my safety. And that’s why I said, he left, he’s abusive, he could come back or he - he might harm me. That was the main thing, at that point.

Q. In fact, you say in the - in the call, that you had an argument and you’re afraid of your husband because he’s abusive?

A. Yes…

Q. Yeah.

A. …that’s true.

Q. And earlier you were saying that there was no argument?

A. I said that we had like a small conversation. I could name that an argument ‘cause it was always back and forth and I was - I, I kept asking him to leave and he was like, why, why I should leave and like it was actually leading to a like big argument. That’s why I was - I was just trying to avoid it and ask him to leave.

Q. I’m still not clear, was there an argument or not?

A. There wasn’t an argument but because I said at the point that I called, I was so scared and I was crying at the time. I might have said that there was an argument, but maybe ‘cause sometimes it’s - it’s - it’s hard to explain yourself, you know what I mean. I could have said there was an argument or we had a small conversation. Like I would deem that argument because we were not talking to each other and something like that happened and I would say that that was like a small conversation that could lead to an argument.

Q. I suggest to you, madam, that there was an argument and that’s why when you called 9-1-1 told them so, right?

A. No, that’s not true.

Q. Unless you lied when you called 9-1-1?

A. Pardon?

Q. Unless you lied when you called 9-1-1.

A. Lied about what?

Q. About the argument, ‘cause now you’re saying….

A. I was just explaining myself that we had a small conversation, it could lead to a big argument or fight, but because I was scared that’s why I called 9-1-1. Especially when he came back, that was the only reason that I called.

[108] The evidence on this point is very troubling. At one point in her examination in- chief she agrees that the purpose of the call was to get her husband out of the apartment. That statement was quickly contradicted in her testimony.

[109] It is also not clear to me why, if her concern was about her safety, she would not have told the 9-1-1 operator what had just happened to her and not make a rather vague allegation that her husband is abusive.

[110] I accept the suggestion made by the defence that the statement made to the 9-1-1 operator is more consistent with the defendant’s version of events, i.e. that she was afraid because they had an argument and he was very angry when he left.

[111] Moreover, I found her evidence regarding whether there had in fact been an argument with her husband to be confusing. The only aspect of her testimony that was clear on this point was that she told the 9-1-1 operator that there had been an argument.

[112] The other area of concern for me was her testimony regarding what she said to the police officers when they arrived at her home. The relevant portions of her testimony in cross-examination are as follows:

Mr. Taheri: Q. Now, you do agree, madam, that when the officer first asked you, your first impression or first statement that you provided to the police was that your husband came home, argued and he pushed you and then knocked you to the ground, to the floor?

A. I can’t exactly remember what I told the police. But what I meant to tell them was that, that what I’m saying right now what I told before, that it was a sort of argument I would say and - or a struggled back and forth.

Q. But you agree with me that there was no argument before you were pulled, allegedly, by your husband?

A. No.

Q. Right?

A. Yes.

Q. And reading the statement from the police, appears to me that what you, at the time, conveyed to the police says that your husband came and there was an argument?

A. I can’t recall.

[113] Again, the information that she initially provided to police was consistent with what she told the 9-1-1 operator and is also consistent with the notion that there had been an argument with the accused.

[114] Ms. L.R.’s testimony on these very important matters leaves me with significant concerns about her credibility. I find based on the foregoing that it would be unsafe to convict on the evidence of Ms. L.R..

[115] I conclude that it is not possible to resolve the conflicting evidence as to what happened that evening and I am left in a state of reasonable doubt.

[116] I would acquit on the basis of the second prong of the W. (D.) formula. I would also acquit pursuant to the third prong of the W. (D.) analysis because based on the evidence which I do accept, I am not convinced beyond a reasonable doubt of the guilt of the accused.

Disposition

[117] I find the accused not guilty.

HOURIGAN J.

Released: October 22, 2012

COURT FILE NO.: 1232/11

DATE: 20121022

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

N.R.

REASONS FOR JUDGMENT

HOURIGAN J.

Released: October 22, 2012