CITATION: R. v. H.P. 2016 ONSC 2342

COURT FILE NO.: CR-12-08009G

DATE: 20160406

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.P.

Defendant

Jeanaha Kim, for the Crown

Djawid A. Taheri, for the Defendant

HEARD: February 1, 2, 4, 5, 8-12, 17-18, 2016

REASONS FOR JUDGMENT

GILMORE J.:

Overview

[1] The accused, Mr. H.P., is charged with one count of sexual assault, one count of sexual assault causing bodily harm, one count of unlawful confinement and one count of administering a noxious substance. All of the offences are alleged to have been perpetrated against the accused’s estranged wife, Ms. F.P. (F.P.), between February 1, 2007 and June 30, 2012.

[2] The accused was also charged with human trafficking in relation to F.P.. However, after all the evidence had been presented, the Crown requested that that count be dismissed. As such, these reasons relate only to counts one through four on the indictment dated July 29, 2014.

[3] The Crown called F.P. as their only witness in this case. The defence called the accused and one other witness, Ms. R.H.

[4] The trial was quite lengthy, given the allegations, for several reasons. First, F.P. gave all of her evidence by video link. Equipment failures and malfunctions resulted in many hours of lost court time. As well, both defence witnesses required translation of the evidence, as they are from Afghanistan and speak Dari (a variety of Persian along with Pashto). Quite rightly, they were concerned that their level of English was not sufficient to make themselves understood or to understand counsel, the court or F.P. (who did not use an interpreter).

[5] All of the witnesses in this trial were born in Afghanistan and came to Canada as adults at various times. The traditions and cultures of that country, including those incorporated into the Muslim faith, played a large part in this trial.

[6] This trial was factually, but not substantively, complex. Both sides told plausible but drastically different versions of the events. As such, a detailed analysis of the credibility and reliability of each witness’ testimony will be necessary. An overview of the facts and the main contradictions thereof is required to conduct such an analysis.

FACTUAL OVERVIEW

The Arranged Marriage

[7] It is not unusual in Afghan culture for the families of young persons to arrange their marriage. Pictures and information are exchanged and elders in the family are involved to ensure the new family is acceptable. This is what happened in the case of the accused and F.P..

[8] The accused was born in […] 1966. He immigrated to Canada in 2002 and became a Canadian citizen. At some point in 2005, when the accused was approaching 40, he decided (with input from his family) that it was time to marry. He was living with his older brother A.H. (“A.H.”), his wife F.H.1 (“F.H.1”) and their children at 17 S[…] Street in Richmond Hill. He and his mother both lived in bedrooms in the basement of that home. He was working a full-time and a part-time job in the grocery business.

[9] F.P.’s age is in dispute in this trial. She testified she was 17 when the first ceremony took place in 2006. However, her passport and marriage records show she was 24. This discrepancy will be discussed later in the judgment.

[10] F.P. lived with her family in the city of M.S. (“M.S.”). She was home-schooled by her mother and earned a Grade 12 equivalency. She speaks Dari and Hindi. She described her family circumstances as poor. She lived with her mother, four sisters and brother in a one-room house in very humble circumstances. The accused disagreed, testifying that F.P.’s mother had a good government job and her brother owned his own trucking business.

[11] F.P.’s evidence was that she was told that the accused was educated as an engineer, worked in real estate and had a house and a good life in Canada. The accused disagreed and suggested that F.P. had confused him with his brother, who was a successful real estate agent.

[12] The marriage was brokered by the accused’s brother A.H. and F.P.’s uncle. F.P. was insistent that the “deal” was that in exchange for the marriage, the accused would support her and her family during the process of her sponsorship to Canada and then the accused’s brother A.H. would sponsor her entire family once she was settled. F.P. testified that her uncle told her that marriage was the best thing for her and her family. F.P. felt a sense of obligation to benefit her family by marrying in accordance with her uncle’s wishes.

[13] The accused testified that no such promises were made. He financially supported his wife after the first ceremony in 2006 and paid for and arranged her sponsorship to Canada, but at no time did he, or his family, agree to support or sponsor his wife’s family.

The First Ceremony

[14] There is a central factual dispute in this case as to whether the ceremony the parties attended in March 2006 was an engagement party or their actual wedding.

[15] F.P. testified that it was an engagement party. A religious official was there to perform a “Nikah,” which F.P. said allowed her and her fiancé to talk to one another, hold hands and get to know one another pending the completion of her sponsorship to Canada. Without such a ceremony, she would not have been able to see or talk to her fiancé according to Muslim customs and beliefs. Prior to this ceremony, F.P. testified she had neither seen nor spoken to the accused. She had only seen his picture, which was all that was allowed prior to performance of the Nikah.

[16] F.P. referred to Exhibits 1 and 2 at trial. These were photographs of what she says was the engagement ceremony. Approximately 40 people attended. She was asked why there would be a tiered wedding cake at an engagement party. She responded it was not unusual to have cake at an engagement party. She was asked why she was wearing what looked like a bridal dress and veil. She responded that this was not a white dress, but a blue dress, and that the pure white dress was reserved for the wedding ceremony, which took place in 2007. She was candid with the court that there were aspects of this party that were meant to look like a wedding for sponsorship purposes. The accused arranged and paid for everything. She assumed he knew what was needed for Canadian sponsorship and did not question him.

[17] After the ceremony, the accused and his sister-in-law F.H.1 left for Peshawar in Pakistan. F.P. and her brother travelled there a few days later. She and her brother stayed in Pakistan for a few days while F.P. underwent medical testing and was fitted for braces for her teeth. She also attended at the passport office and a lawyer’s office to sign immigration documents for her sponsorship. She returned home accompanied by her brother, who was about 14 years old at the time. During this period, F.P. and the accused went out for dinners and walks together but they did not have sexual relations or sleep in the same room because they were not yet married. The accused stayed in a separate hotel.

[18] F.P. was asked why her marriage certificate indicates that she was born in 1982, making her 24 or 25 at the date of the first ceremony, and not 17, as she testified. She responded that her identification was changed in Afghanistan so the age difference between her and the accused would not appear as large. She testified that there are people in Afghanistan who will do such things for a price and that many people in Afghanistan use fake documents. Her evidence was that this was not her idea. She was only doing what her fiancé and his brother told her to do. She advised the court that she still uses this “fake” birth certificate and has not made any attempt to change it.

[19] The accused gives quite a different account of this period. He testified that he came to Pakistan on April 26, 2006, and returned to Canada on May 28, 2006. When he arrived in M.S., he met his fiancée with her mother and they all went shopping for wedding clothes and had lunch. Later that day, he was invited to the home of his fiancée’s brother-in-law for a party and dinner. The accused had purchased jewelry and gifts for his intended bride in Dubai on his way to Pakistan.

[20] The next day, a Mullah officiated over the Nikah wedding ceremony., About 175 people attended. There was music and dancing. The accused had rented a room at the banquet hall, to which they retired after the celebrations. They slept together in the room but did not have sexual relations, as F.P. did not feel well. They travelled to Kabul the next day, spent a night there and then went on to Peshawar. They did not have sexual relations the night they were in Kabul, as F.P. was still unwell. Once in Peshawar, F.P. underwent certain medical tests and obtained a passport. The marriage documentation from the Nikah ceremony was registered to obtain an official marriage certificate. The certificate was necessary as formal evidence of the marriage for the sponsorship application and passport.

[21] The accused testified that he and his wife shared a bedroom in Peshawar. Her brother slept in a separate room. On the first night in Peshawar, the marriage was consummated. In the morning, his wife showed him her bloodstained clothes, which she sought to keep as proof of her virginity. During the following weeks the accused and his wife went to appointments as necessary, but they also ate out in restaurants and went places together. They had consensual sex on multiple occasions. The accused testified that both of them enjoyed and wanted their sexual relations. Only on the first occasion was it painful for his wife. After that, she did not complain and often initiated sexual contact. They stayed in Pakistan together for about 17 or 18 days.

[22] The accused left Pakistan on May 28, 2006. While waiting for the sponsorship application to be processed, the couple spoke on the phone several times per week. The accused sent his wife money so she could take driving lessons and learn English. He also paid for her to return to Kabul for adjustments to her braces as needed.

The Second Ceremony

[23] F.P.’s evidence was that the parties’ actual marriage was performed in 2007 at the second ceremony. At that time, the accused gave her the gold jewelry depicted in Exhibit 4. A Mullah was present and a second Nikah ceremony took place. About 200 people were present, including those who had been unable to attend the engagement party. She pointed out during her testimony that she was clearly wearing a wedding dress in the photograph at Exhibit 4. Further, she posed the question: why would anyone get married twice? Clearly, the second ceremony was the real wedding.

[24] After the ceremony, F.P. went to her husband’s hotel room where she and a cousin stayed up all night and packed for her trip to Canada. She did not have sexual relations with the accused that evening. The accused’s brother A.H. had told her the accused was not to touch her until she arrived in Canada, and the accused respected his brother’s wish.

[25] The next day she and her husband travelled to Pakistan and then left for Canada. They stayed one more night in a hotel and did not have sexual relations.

[26] The accused testified that the ceremony in March 2007 was a going away party. He agreed to help arrange and pay for the party at his wife’s mother’s request. His mother-in-law was concerned that some people had not been able to attend the first ceremony in 2006 because of her mother’s death and funeral, and she wanted a proper going away party for her daughter.

[27] When the accused arrived in Afghanistan, he met with his wife and her mother. The party was held and he and his wife had sexual relations that evening in the hotel room he had rented. They travelled to Kabul the next day and stayed overnight together in Kabul. His wife did not have a fever. She consented to sexual relations and made no complaint. They then travelled to Pakistan and flew to Canada without incident.

[28] The accused denied that A.H. insisted that he and his wife not have sexual relations prior to coming to Canada. The accused stated that he has his own life and his brother would not have the right to make such a request.

17 S[...] Street Crescent, Richmond Hill

[29] When the parties arrived in Canada, they lived in the basement of A.H.’s home on 17 S[…] Crescent (“S[...] Street”). F.P. testified that it was a very long flight and she was still not feeling well when she arrived in Toronto. A.H., his wife F.H.1, and the accused’s sister, M.1, met her and her husband at the airport. When they arrived at S[...] Street, she was introduced to A.H.’s children and the accused’s mother and younger brother, along with his wife and children. She spent a few hours with them, and then was taken to her bedroom in the basement.

[30] F.P. described the basement as having two bedrooms, a bathroom, a living room and a kitchen. There was no entrance into the bathroom from the bedroom, only the hall. There was no television, radio or books. F.P.’s mother-in-law lived in the other bedroom.

[31] The bridal bedroom was right next to the furnace room. The furnace was next to the bedroom wall and kept F.P. up at night. The bedroom contained only a mattress on the floor with two sheets and a pillow. Later, F.P. agreed that the mattress had a box spring under it as it was slightly elevated. Her mother-in-law brought her a blanket for the bed. F.P. was left alone in the room for about an hour. She sat on the floor and cried while she looked through her family pictures. She missed her family already.

[32] At some point, the accused came into the bedroom and brought F.P. over to the bed. She suspected he might want to have sexual relations at that point but she resisted, saying she was still not well and very much missed her family. However, the accused insisted and removed her clothing and began to have vaginal sex with her. F.P. again complained and said she did not want to have sex. When she cried out, the accused put a pillow over her face for a few seconds so she could not breathe. At that point, she promised not to cry out if he removed the pillow. The accused removed the pillow, but F.P. bit on a corner of it because of the pain. F.P. complained that the sexual act was painful because she was a virgin. She tried to push her husband off but she was unsuccessful.

[33] F.P. could not remember how long this went on, but when it was over, the accused took a shower and then fell asleep. She remained in pain and could not fall asleep. She showered three times because she felt dirty. She then put her clothes back on and tried to sit on the floor. However, the pain was such that she could not sit right down, she had to sit on her feet.

[34] A few hours later, the accused woke up and asked her to come to the bed again. He pulled her towards him and removed her clothes. She again resisted, told him to stop and pushed on his chest. He said nothing but continued to have sex with her as before; vaginal sex in the “missionary” position. At one point, he turned her over and had vaginal sex with her from behind. This sexual encounter was even more painful than the first time. After it was over, the accused took a shower and left for work. F.P. showered three times again and fell asleep.

[35] The next morning, F.P.’s sister-in-law brought her breakfast and talked with her briefly. F.P. was then left on her own in the basement, where she spent time looking at her family pictures. When the accused arrived home from work, he wanted his wife to have a shower with him. She was still in pain and refused. However, when she began taking a shower on her own, the accused came into the shower and began having sex with her against her will. She tried to stop him and told him she was in pain. They struggled but the accused was stronger. He held her in the corner of the shower and continued to have sex. When it was over F.P. requested that they not have sex for several days due to her pain. The accused responded by saying that he had paid thousands of dollars for their wedding and it was not for her to say no.

[36] After that, F.P. became very nervous around the accused and did not like him to touch her. Despite this, her husband insisted on having sex once or twice each night during their first week in Canada. She was afraid of him and did not want to have sexual relations. The accused told her he already had a mother to cook and clean for him but he could not have sex with her so he needed to have sex with his wife.

[37] The accused worked shifts and was not often at home during the day. F.P. filled her days by cleaning and cooking. She only went out if she had a doctor’s appointment and spoke to no one other than her husband, her sister-in-law and her mother-in-law. She did not discuss the unwanted sexual encounters with anyone, as she was ashamed and did not understand that she had been sexually assaulted. She was not able to call her family and felt like a prisoner in the basement of S[...] Street. While she was not actually locked in the basement, she perceived that she was not allowed to leave or even go upstairs. The accused told her it was best that she not go upstairs too often, as F.H.1 and A.H. needed to be with their family.

[38] A short time after arriving in Canada, and in the presence of the accused, F.H.1, came down to the basement and requested that F.P. give back all of the gold wedding jewelry. She explained that the jewelry actually belonged to her and had been loaned to the accused for the wedding. F.P. gave back all of the jewelry as requested. She did not know the jewelry had been loaned to the accused. Until that point, she understood that the jewelry had been gifted to her on her wedding.

[39] F.P. first learned she was pregnant from F.H.1. F.H.1 and the accused asked her to take home pregnancy tests within days of her arriving in Canada. Sometimes her sister-in-law checked the results of the test and sometimes her husband. This continued until she became pregnant. When she was pregnant, her husband still wanted to have sex, despite her resistance. They would struggle and he would pull her hair and hold her hands to force her to the bed.

[40] F.P. was clear during the trial that when she used the word “struggle” it did not mean “fight.” The accused never beat her. Her meaning of the word “struggle” was that her husband would push himself on her and she would resist by trying to push him away.

[41] The accused’s evidence was he had been living at S[...] Street for some time before his wife came to Canada. They were greeted with flowers and gifts at the airport by his two brothers, his sister, his sister-in-law and many other relatives and friends. Once they arrived at S[...] Street, his wife was given a $500 pre-paid Visa card from his brother A.H. and $500 cash from his brother Bashir. His sister gave her clothing and his mother’s present had been the large gold necklace seen on his wife in the photo in Exhibit 3. The accused denied that his sister-in-law ever asked for the return of any jewelry.

[42] The accused described the basement at S[...] Street as consisting of two large bedrooms, a large kitchen and dining area and a hall with a TV. Each bedroom had an ensuite washroom. His mother lived in one of the bedrooms and he lived in the other. Exhibit 6 contained photographs for the listing of S[...] Street prior to its sale several years later. The photographs confirm the accused’s description of the basement, although there is no actual photograph of his bedroom. The accused testified that the bathroom was very large and had an entrance to it from their bedroom. His evidence was that there had always been a television in the basement.

[43] In preparation for his wife’s arrival, he had purchased a queen size bed and box spring, a vanity set with a mirror and drawers for cosmetics and a side table. The bed was fully made up with sheets, pillowcases and blankets. The room had a window that could be opened. The accused presented a receipt from The Brick dated December 30, 2006 (Exhibit 7), which showed the purchase of a queen size mattress, box spring and rails, a mirror, a night table and a dresser.

[44] After they arrived at S[...] Street, the accused showed his wife around the basement and asked if she wanted to shower before dinner after their long journey. They then went upstairs and had dinner with his family. When they came downstairs after dinner they went to bed and had consensual sex. His wife never cried out or complained and he never placed a pillow over her face. When they were finished, they got up and talked for a while, ate a snack and then went to sleep. They awoke the next morning at 8:00 or 9:00 a.m. and had sex again. His wife did not complain or refuse. She appeared happy. They both showered separately and then went upstairs and had breakfast with A.H., F.H.1 and his mother. Later that day, the accused, his wife, A.H. and F.H.1 went to Hillcrest Mall, where he purchased several items of clothing and other necessities for his wife. They then went out for coffee, returned home and ate dinner together upstairs as a family.

[45] The accused denied that his wife was left alone in the basement after their arrival to Canada. He testified that he had arranged to take two or three days off work so he could be with his wife and they could both acclimatize to the time change. The accused also denied that this wife was precluded from going upstairs or going out. A telephone was available in the basement and his mother and sister-in-law were always there if she wanted someone to talk to.

[46] The accused testified that neither he nor his sister-in-law had ever demanded that his wife take a home pregnancy test and questioned why his sister-in-law would ever be involved. His evidence was that he did not want children right away but his wife did, so they engaged in unprotected sex.

[47] The accused said that he never forced his wife to have sex with him in the shower. It would have been awkward to do so, as there was no stand up shower in their bathroom. It was a bathtub with a shower curtain. The accused denied telling his wife that she was obliged to have sex with him because of what he had paid for their wedding. He was certain that she enjoyed having sex with him and she did not complain about any pain or about the act itself. There was never any physical struggle before sex, nor would he have forced himself on his wife had she indicated any unwillingness.

[48] During the month that they stayed at S[...] Street, F.P. started English lessons. Her evidence was that although she was allowed to go to the lessons, she was driven there and back and someone at the lessons “kept an eye” on her to ensure she did not go anywhere. The accused denied this was the case. He drove her to lessons in the morning when he worked the afternoon shift.

595 M[…], Richmond Hill

[49] After a month at S[...] Street, the parties moved to an apartment on M[…] Drive in Richmond Hill. F.P. described it as a dark two bedroom basement apartment that she was obliged to share with the accused’s nephews M.2, M.3 and M.4. F.P. was not consulted about sharing the apartment with her husband’s nephews.

[50] Around this time, F.P. learned she was pregnant with their first child. While she was happy to learn of the pregnancy, she suffered from health issues. F.P. was diagnosed with Thalassemia, a rare genetic blood disorder that often results in anemia. She felt dizzy and sometimes passed out. She required blood transfusions every 25 days during her pregnancy.

[51] F.P. told the court that she was required to cook all of the meals for her husband and his nephews. Cooking was a hardship for her because her pregnancy and her Thalassemia made her sensitive to cooking smells. When she complained to her husband, she was told to put a cloth over her nose. In addition to her cooking duties, F.P. was expected to clean the apartment and wash dishes. This was also a hardship, as F.P. had difficulty walking during her pregnancy due to swollen ankles. She also suffered from migraine headaches almost daily.

[52] F.P. had no friends or other women she could talk to. She was allowed to talk to her family once a month when her husband dialed the number for her. She was not allowed to go outside unless accompanied.

[53] The apartment was very dark with only one bathroom. Two of the nephews shared the second bedroom and the other slept on the couch. F.P. was left alone in the apartment during the day with no television, no radio and no one to talk to. Her husband refused to buy her a television because he told her he was still paying back the loan he took out to pay for the wedding. Even their furniture was old and dirty; it had been retrieved from the dump and F.P. cleaned it as best she could. F.P. stopped going to English classes when she became pregnant, as she was too ill.

[54] When F.P. was eight months pregnant, her husband forced her to have anal sex. The pain was excruciating. The nephews were sleeping in the next bedroom, so F.P. stuffed something in her mouth so that she would not scream. She told her husband it hurt and to stop but he would not. When it was over, the pain prevented her from sitting down or going to the bathroom. She experienced bleeding in the anal area. She did not see a doctor about this until after the birth of her second child, and even then she was instructed by her husband to tell the doctor she was suffering from constipation. She was too shy and ashamed to tell anyone else about the cause of her pain.

[55] The accused testified that they moved to the M[…] apartment at his wife’s insistence. It was also her idea to invite his nephews to live with them so she would not be alone and to save on rent. Before they moved, they bought a couch, a dining table, some kitchen items and a second-hand TV. His nephew M.4 also brought some items with him. It was not necessary to, nor did he ever, furnish any place they lived with items from the dump. The accused denied that the apartment was dark. It was not a basement apartment, but was located first floor of an apartment building and had normal windows.

[56] The accused was clear that his wife was never required to stay in the apartment. She was free to take the bus wherever she wanted. She was able to go shopping or go to her English classes. There were no restrictions on her mobility.

[57] They had sex as a normal married couple. Either one of them would willingly initiate sexual activity. They also had sexual relations during her pregnancy, but never anal sex and never against F.P.’s will. Anal sex is not permitted in the Muslim faith and for that reason the accused would not have engaged in it.

[58] By chance, the accused noticed blood in his wife’s stool and asked her about it. She told him the problem had existed since she lived in Afghanistan and she was embarrassed about it. He took her to the doctor who prescribed creams and certain items for her diet.

[59] During her pregnancy, the accused took his wife to doctor’s appointments and for blood transfusions as needed.

33 F[…] Crescent, Richmond Hill

[60] In the fall of 2007, the parties moved to a basement apartment at 33 F[…] Crescent because their landlord had discovered that five people were living in a two bedroom apartment with a baby on the way and insisted they vacate. The nephews came with them. The F[...] Crescent apartment was in the basement of the home owned by A.H.’s first wife F.H.2.

[61] The parties moved to 33 F[...] Crescent (“F[...]”) with the nephews when F.P. was about nine months pregnant with her first child. The accused purchased a crib and some clothes in preparation for the baby’s arrival. The furniture in F.H.2’s basement was available for their use.

[62] F.P. required a C-section for the birth of their first son A.1, who was born in […] 2008. F.P. testified that when she returned from the hospital, her relatives all came to visit the baby. After that she was left alone to care for the child. She had no experience with babies and no one to ask for help.

[63] When A.1 was two months old, F.P. got a job at Tim Hortons. She would put her son to bed, make dinner for everyone, wash all the dishes and then go to work. She was picked up at 5:30 a.m. and was then expected to make breakfast and pack lunches for all four men. She got little sleep because the baby required care and feeding during the day. This routine continued for two or three months until she became pregnant with their second child. F.P. testified that she did not want a second child; she wanted to use birth control but her husband would not allow it. She had to quit her job at Tim Hortons because she could not tolerate the food smells in the restaurant once she became pregnant.

[64] F.P. was not permitted to keep the money she earned at Tim Hortons. She was required to give it all to her husband, who put small amounts on a debit card for her so she could buy the occasional tea. If she needed clothes, her husband would take her to Value Village. The baby’s clothes were all hand-me-downs from her sister-in-law.

[65] While F.P. did not want to have sex after A.1’s birth, her husband persisted. He would grab her and overpower her. After sex, she would sit on the toilet for half an hour and push, hoping to prevent pregnancy, since she was not able to use birth control and did not understand that such efforts would not prevent pregnancy.

[66] On one occasion after A.1’s birth, the accused gave his wife an energy drink at a family gathering. Afterwards, she felt very tired. She had never tasted anything like it before. Her husband took her home and she recalled him taking off her clothes. She woke up naked and felt pain between her legs. She asked her husband what had happened and he told her that she had been drinking alcohol at the party. He told her he had had sex with her three or four times that evening. It was shortly after this F.P. discovered she was pregnant with her second child. She was certain that her husband had had sex with her while she was under the influence of the energy drink or alcohol.

[67] F.P. suffered again during her second pregnancy. Her Thalassemia made her dizzy if she did any physical activity. She was swollen and unable to walk. Her husband and nephews were at work during the day, so she was left alone to care for A.1 and deal with her difficult pregnancy. She was still in pain from her C-section and her doctors forbade her from carrying A.1 for fear her stitches would come out.

[68] During the latter part of her second pregnancy, her husband forced her to have anal sex, just as he had when she was pregnant with A.1. It was extremely painful. F.P. resisted, but in the end she was overcome by her husband’s insistence and strength.

[69] F.P. also required a C-section for the birth of their second son, A.2, in […] 2009. A.H. and a woman named R.H. (“R.H.”) were present during her labour. F.P. knew R.H. as a cousin of her husband’s. She was grateful and friendly to her, as R.H. had helped her husband look after A.1 during the night while she was working at Tim Hortons.

[70] After A.2 was born, F.P. and her husband went to A.H.’s home for a family gathering so everyone could meet the new baby. At that point, she was told that R.H. was in fact her husband’s first wife, to whom he had been married some 16 years. A.H. informed her that she would have to give up her baby to R.H., who was unable to have children. The family then removed A.2 and gave him to R.H.. R.H. told F.P. she was also unhappy as she had not wanted the accused to marry F.P. but A.H. told her it was necessary because of her inability to have children.

[71] A.H. told F.P. that giving up A.2 should not matter to her because it did not matter which wife A.2 was living with. A.H. then announced that F.P., the accused and R.H. would all live together in the same house, and the accused would spend one night with R.H. and the next night with F.P.. F.P. was understandably taken aback by this news and devastated to lose her child. He needed to be breastfed and F.P. felt desperate. Although her husband’s family told her never to deal with the police or government for fear of deportation, F.P. told A.H. that if A.2 was not returned to her she would go to the police. A.H. agreed after two or three days that A.2 would be returned to F.P., but only until he was weaned. F.P. breastfed A.2 for many months. R.H. returned to Pakistan for a year and when she came back to Canada, F.P. went to Afghanistan to visit her family and took A.2 with her to keep him away from R.H..

[72] F.P. agreed that after the birth of her second child, she was afforded much more freedom. She was able to go to the gym, drive on her own and do household errands. She was no longer followed or forced to stay at home. F.P. was shown 40 photographs depicting her life while married to the accused (Exhibit 9). It was suggested to F.P. that she appeared happy, well-dressed and even flirtatious in these photographs. Further, most of the photographs were taken at family events in which she was included. F.P. did not deny that she looked happy in the photos. However, she testified that they were all taken after A.2 was born, when she was given much more freedom. She added that it is normal for one to smile and appear happy in a photo; however, that does not mean one’s life is as the photo shows.

[73] The accused testified that during their time at the F[...] apartment, his wife worked at Tim Hortons from 10:00 p.m. to 6:00 a.m. for a few months until she became pregnant with A.2. He would drive her to and from her job, and he cared for A.1 during the night while she worked. The accused denied that he insisted on receiving her work pay. His wife had her own bank account and was free to spend her money as she wished.

[74] After A.1 was born, they continued to have sexual relations. The accused denied ever giving his wife either an energy drink or alcohol in order to have sex with her. Alcohol was never served at family parties, only tea. His wife remained a consenting and eager sexual partner. After A.2 was born, she began to drink beer occasionally, but he was not aware that she ever drank liquor or wine.

[75] After A.2’s birth, his wife joined a gym and passed her driving test. She wanted to lose weight after the pregnancy. She was able to drive herself to and from the gym. No one followed her or watched her as she alleged.

[76] The accused testified that the idea of giving A.2 to R.H. was preposterous and simply never happened. R.H. was married when she came to Canada, and the two have never been married to each other. R.H. and his wife were close friends and his brother A.H. was not in control of the family in the manner that F.P. suggests. His wife only breastfed A.2 for a couple of months, claiming she wanted to preserve the shape of her breasts.

443 A[…] Street, Richmond Hill and the Separation

[77] After A.2 was born, the parties moved to another basement apartment on T[…] Crescent in Richmond Hill. F.P. testified that she convinced the owner to allow them to use the furniture that was there because they did not have much of their own. F.P. was grateful because it was the first time she had access to a TV. After a short stay in that apartment, the parties moved to a home on A[...] Street that was owned by the accused and other family members.

[78] When the parties moved to A[...] Street, R.H. moved into the basement. The accused would spend one night with R.H. and one night with F.P., as per A.H.’s instructions. Sometimes she could hear them having sex in the bedroom below her. Although F.P. needed help with her two young children after her C-section, R.H. would become upset if her husband did not spent his appointed nights with her.

[79] After A.2 was born, F.P. noticed that A.1 was not meeting developmental milestones. She took him to the doctor and he was diagnosed as seriously autistic. Currently, eight year old A.1 functions at the level of a ten-month-old child. F.P.’s evidence was that her husband and her mother-in-law blamed her for A.1’s autism. The accused was impatient with A.1 and told people he only had one son.

[80] During the time they lived on A[...], F.P. did not want her husband to touch her. She was upset about the arrangement with R.H.. A few times when the children were sleeping, her husband would force her to drink vodka, and then would have sex with her. He told her that if she did not drink the alcohol, he would force her to have anal sex with him.

[81] The house on A[...] was then sold and the parties resided together briefly at 27 P[…] Street in Richmond Hill before they separated. By this point, R.H. and F.P. were estranged and R.H. moved out of the A[...] apartment before the parties moved to P[…].

[82] When F.P. went to Afghanistan for her sister’s wedding in 2011, her husband gave her US $1,000 in cash. He also paid for her excess baggage charges and her airfare. The accused alleged that while in Afghanistan F.P. met with a man named H., whom she had met on the internet. F.P. denied that she met anyone called H. in Kabul or that the two were communicating via the internet. She testified that when she returned from Afghanistan, she realized that nothing would change in her marriage. She had spoken to a social worker who told her what her husband was doing to her was considered rape in Canada. This was the first time she realized that she did not have to tolerate her husband’s brutality. She wanted out of the marriage and she wanted to be alone with her children.

[83] F.P. denied that she had fabricated her allegations in order to bolster her claim for custody or to deflect blame from herself once her infidelity was known.

[84] The accused testified that it was his wife’s idea that R.H. live at A[...] as a tenant. She and R.H. were close friends and it would be convenient for everyone. He never had any form of sexual contact with R.H.. He and his wife continued to have consensual sexual relations. He would even come home from work for lunch to see her. They remained a close and happy couple.

[85] In August 2011, his wife went to Afghanistan for a family wedding. She took A.2 with her. The accused supplied his wife with US $3,000 in cash, airline tickets and gifts worth hundreds of dollars for her family. He paid over $400 in excess baggage fees at the airport. The accused and his mother looked after A.1 while she was gone because A.1’s doctor did not feel that he should travel.

[86] The accused denied that he preferred A.2 over A.1 or that he ever blamed A.1’s autism on his wife. He was in tears as he explained that A.1’s condition must have been what God wanted.

[87] The accused testified that his wife had been seen meeting a man named H. at a hotel in Kabul while she was in Afghanistan. She denied this and said H. was a cousin. This turned out to be false. Upon her return to Canada, the accused told the court that his wife was changed. She spent all her time on Facebook and the internet. The final straw was when he discovered that his wife had sent a text to H. with his work schedule and a suggestion that H. come to the house when the accused was working. He demanded that his wife change her phone number and stop communicating with H.. She refused. She told her husband that he was no longer permitted to come to the house after 8:00 p.m. at night. She wanted a divorce.

[88] The accused was devastated about his wife’s changes and wanted to try to make things work. She had no interest in doing so. He took a few personal possessions and moved in with his nephew M.4. He left all of the household furniture and items at the home for his wife and children.

[89] After the parties separated in April 2012, F.P. remained in the P[…] Street apartment for a period of time. She agreed that her husband began to pay her child support of $500 per month, but only after she spoke to A.H. and told him about her dire financial straits. She denied receiving $6,000 from A.H., as was suggested. When she complained about the difficulty of taking the children to daycare in the winter in a stroller, the accused transferred his car to her. However, she was then responsible for paying for the gas, repairs and insurance. Ultimately, she could not afford the rent and utilities on her own and moved to a shelter.

The Evidence of R.H.

[90] R.H. came to Canada in 2004. At that time, she was married to M.T.. She and M.T. were divorced in 2005. In November 2008, she went to Pakistan and married W.A. by way of an arranged marriage. She remained in Pakistan with her husband until July 2009. They separated shortly after because she did not get along with his children and she has not seen him since 2009.

[91] She explained to the court that the accused’s sister has been married to her brother for over 30 years and that she and the accused have known one another since they were children. She thinks of the accused as a friend and has never been in a romantic relationship with him, nor have they ever been married.

[92] R.H. and F.P. were friends for a period of time when F.P. was married to the accused. They had tea together and talked. However, when F.P. accused R.H. of having an affair with her husband, their friendship ended and she left the basement apartment she was renting from them on A[...] Street. She confirmed that the accused never came to her apartment or had sexual relations with her while she was living on A[...].

[93] She has not seen the accused or F.P. for five years because she was upset about the accusation. However, she recalled that when she was living on A[...] they seemed like a happy, normal couple. F.P. never complained to her about any mistreatment by her husband.

[94] R.H. denied that there was ever any plan to remove A.2 from F.P.’s care and give the child to her. She also denied telling F.P. that she was upset that the accused married her because she could not have children.

[95] R.H. was shown a short video clip in which the accused is feeding her cake in a family party setting. She explained to the court that this party was thrown by F.P. and F.P. encouraged her husband to feed her cake.

The Crown’s Burden of Proof

A: Reasonable Doubt

[96] The onus is on the Crown to prove its case beyond a reasonable doubt to the satisfaction of the trial judge before an accused may be convicted. This onus never shifts to the accused. In R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-58, Cory J. explained the appropriate instruction on reasonable doubt where credibility is in issue:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury [or him or herself] on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[97] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, Iacobucci J. added the following:

In my view, an effective way to define the reasonable doubt standard …is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required… to convict. Both of these alternative standards are fairly and easily comprehensible.

B: Proper Approach to the Evidence

[98] The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 360, per Sopinka J. for the majority.

[99] W.(D.) is not meant to “straightjacket” the court. For example, in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66, the court held that no further explanation for rejecting the accused’s evidence was required, other than that it conflicted with the evidence of the complainant, which was accepted. Similarly, in R. v. D. (J.J.R.), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, leave to appeal to S.C.C. refused, [2007] 1 S.C.R. x (note), the court held, at para. 53, that a rejection of the accused’s evidence based on a reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence can be an acceptable explanation for rejecting the accused’s evidence.

[100] Galligan J.A. (Arbour J.A. concurring) applied these principles in R. v. G. (M.), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347, leave to appeal to S.C.C. refused, 95 C.C.C. (3d) vi (note), at pp. 355-56, as follows:

[W]hen trial judges are assessing credibility it is worthwhile to keep in mind what was said by O’Halloran J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at pp. 356-7, 4 W.W.R. (N.S.) 171 (B.C.C.A.):

…The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…

The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [Emphasis in R. v. G. (M.).]

Assessment of Reliability and Credibility

[101] This case turns on the reliability and credibility of the evidence of the accused and the complainant. With respect to reliability, the court must examine the ability of the parties to accurately recount the various incidents that form the basis of these charges. Vagueness, an inability to recall dates and times and memory gaps on important issues may lend themselves to concerns about reliability.

[102] With respect to credibility, the court must examine any inconsistencies within the parties’ evidence and whether such inconsistencies give rise to a concern about whether that party should be believed. The court may also consider the parties’ demeanour and the evidence of the other witnesses, such as R.H. The court must not only consider the evidence of the accused and complainant individually, but also as a whole. Parsing any individual’s evidence too finely is not permissible, as is failing to consider an individual’s evidence in the context of the entire panoply of events.

[103] Starting with the complainant, I found her account of the events to be generally believable, with certain exceptions. The inconsistencies in her evidence regarding the times, dates and certain details of the sexual encounters is not surprising, given that most of these events took place up to nine years ago. However, some review of these inconsistencies is necessary to highlight their relevance to an overall assessment of her evidence:

(a) F.P. originally described her room in the basement at S[...] Street as a furnace room with a mattress on the floor. By way of a combination of photographs of the basement, proof of purchased furniture and her evidence in cross-examination, it became clear that the basement was spacious and well-appointed and in fact there was a mattress and box spring and some bedroom furniture. The furnace was not actually in the bedroom but next to it. The furnace noise was clearly a problem, as the parties moved to another apartment because of it. I find that F.P. attempted to paint a picture of a basement that was far less amenable than the one at S[...] Street.

(b) F.P. testified that she had obtained a false birth certificate in order to make herself older, apparently for immigration purposes. If she was indeed 17 as she testified, there did not appear to be a reason for the false document. There was no evidence that she was unable to sign marriage or sponsorship documentation as a 17-year-old. In terms of age difference, there was still a 16-year age difference between her and the accused if she was 24. Her reasons for obtaining a false birth certificate seem implausible.

(c) F.P.’s brother, Sabawoon, was a witness to the marriage certificate (Exhibit 11). That document shows that he was born in 1986, which would have made him 20 years of age in 2006. F.P. insisted that he was 12 or 13 at the time and that she shared a hotel room with him and not with the accused when they were in Pakistan after the first ceremony. Given the tenets of Muslim culture and religion as described during the trial, it would have been impossible for F.P. to share a hotel room with her brother if he was 20 years old.

(d) There were some inconsistencies in F.P.’s testimony regarding what she says was the first night of sexual relations and the sexual assaults perpetrated on her that evening. In her evidence in chief, F.P. testified that she and her husband had sex twice on her first night in Canada, both times in the same position, with her on the bottom and her husband on top. At the preliminary inquiry on May 2, 2014, she told the court that the second time they had sex was vaginally, from behind. She clarified that she meant that her husband turned her over and had vaginal sex from behind. As well, there were discrepancies as to the number of showers she took after having sex or whether she took any showers at all. While these are certainly inconsistencies, they are not ones that, in my view, tip the scales with respect to accepting or not accepting F.P.’s evidence. Her evidence was also that she had no prior sexual experience and was traumatized by the evening’s events. She was in pain, in a new country, with new surroundings and was acclimatizing to a significant time change. Such inconsistencies are not surprising in all the circumstances.

(e) There was a concern about the reliability of F.P.’s evidence regarding the rectal bleeding she claimed to suffer after being forced to have anal sex. She allegedly told the accused that this condition pre-dated her coming to Canada. The medical report (Exhibit 10) makes no reference to anything other than a possible hemorrhoid. She refused to be examined by her doctor when he requested to do so. A CT scan was done in 2011, which showed constipation with possible colitis or hepatitis, for which she was prescribed certain creams. There was no evidence of any further complaints or medical diagnosis since 2011. Given all of the above, there is a concern about the credibility of F.P.’s report that her rectal bleeding was caused by anal sex, as opposed to any of the conditions raised in the Exhibit 10 reports.

[104] There were other problems with F.P.’s evidence. It was difficult to accept her evidence that the complainant forced her to drink vodka. First, she could not give an accurate time when this occurred. This was often the case with F.P.’s evidence; she could not give accurate times or dates for many of the critical occurrences. She testified that the vodka was in a glass that her husband forced to her lips while she struggled against him. I agree with the defence that some substantial spillage must have occurred during the course of the struggle. It seems somewhat implausible that whatever small amount of vodka was left in the glass after the struggle would have had the drastic effects described by F.P..

[105] There are also some problems with F.P.’s evidence as it related to R.H.. First, if the accused and R.H. had been married for 16 years at the time of A.2’s birth in August 2009, it would have meant that R.H. was not married to either M.T. or W.A.. The marriage certificate (Exhibit 18) proving R.H.’s marriage to W.A. was not challenged. It seems impossible that while she was married to the accused, R.H. married and divorced M.T. and then married and separated from W.A.. Further, F.P. testified that she felt some assurance that A.2 would not be taken from her after R.H. left for Pakistan and was gone for a year. In fact, Exhibit 19 shows that R.H. had just returned from Pakistan in July 2009 after being away since November 2008. As the defence suggests, even if the accused and R.H. were having an affair or were married in some form of religious ceremony, that does not prove anything about the allegations.

[106] F.P. painted a picture of herself as essentially a prisoner in her own home where she was told not to go out, was unable to socialize, had no TV or radio and given little or no sympathy or understanding of her suffering during her pregnancies. She was forced to cook and clean for her husband and his three nephews and later to live in the same house as her husband’s other wife. Her descriptions of these events were striking. However, in cross-examination it was revealed that during these times F.P. was in fact going to the gym, taking English lessons, driving a car, going to family events and parties, socializing on her own, and working outside the home at various times. While I accept that at first F.P. was shy, introverted and afraid, I also find that as time went on she more easily assimilated into Canadian culture than her husband. The best example of this is her excellent command of the English language. Her husband, after 14 years in Canada, still struggles with English and required translation to and from Dari throughout the trial. By the time A.2 was born, F.P. was acclimatized to Canada and the services offered. She was no longer the naïve young woman who had first come to the basement of S[...] Street.

[107] It is also important to review those parts of F.P.’s evidence that I do accept. It is clear from R. v. Ali, 2007 ONCJ 69, rev’d on other grounds, 2009 ONCA 438, that a promise to marry for both cultural and sponsorship purposes exists in the Afghani culture. In that case, an engagement had taken place some five months before the actual marriage. However, the engagement was treated as a marriage for sponsorship purposes. I accept that such a procedure took place in this case and that the first ceremony was an engagement and the second ceremony was the actual wedding.

[108] A marriage certificate was obtained and registered in Pakistan for the sole purpose of commencing the sponsorship process. While it may seem unusual that the parties did not consummate the marriage until they came to Canada, I accept F.P.’s evidence that the engagement ceremony permitted them to talk, be seen in public together and have some physical contact such as holding hands, but did not permit them to engage in sexual relations. While both F.P. and the accused were somewhat liberal-minded, they came from families that supported strict adherence to such rules.

[109] I find that all of the evidence concerning how long F.P. stayed in Pakistan in 2006, whether she stayed with her brother, whether she was ill on certain nights, whether she stayed up all night packing on the night of her wedding etc. is irrelevant to these allegations. If any sexual assault occurred, I accept F.P.’s evidence that it occurred after she arrived in Canada.

[110] I found the manner in which F.P. gave her evidence to be generally straightforward and credible. I accept that she was frightened and overwhelmed when she came to Canada. I accept that she had no friends and little social interaction, at least at first. Whatever overtures were made by the accused’s family were insufficient to quell the loneliness felt by F.P.. She had no sexual experience and I accept that she felt both ashamed and distressed by her husband’s requests for sexual intercourse. I accept that she was greatly affected by her difficult pregnancies, and by taking on full household responsibilities such as cooking and cleaning and learning a new language. I also accept that she felt she had no choice but to give in to her husband’s demands, whatever they were, and that this made her feel small, unimportant and without a voice.

[111] I do not find that the manner in which she reported the allegations or the timing of her reporting takes away from her credibility. I accept that she did not understand that she could report her allegations because the alleged behaviour was not criminally sanctioned in Afghanistan. Only after learning from a social worker who helped her with her son’s autism that the alleged behavior is a criminal offence in Canada did she fully understand and come to believe she was a victim.

[112] However, there are two main concerns with respect to accepting F.P.’s evidence without reservation. The first is the evidence of the accused, which I will deal with below. The second is the possibility of certain inescapable motivating factors, which cast a pall over F.P.’s overall credibility.

[113] F.P. was clearly upset about what I will call the “R.H. factor.” Whether R.H. was having an affair with her husband or whether they were married, F.P. was greatly affected by R.H.’s presence and the threat of her taking A.2.

[114] However, the evidence of the accused and R.H. herself in this regard cannot be ignored. I accept that at all relevant times, R.H. was married to someone else and not to the accused. The photographs of R.H. and the accused were of no import in my view. F.P. was in all of them. The accused and R.H. were related by marriage and had been friends since childhood. I find that the accusations made by F.P. are exaggerated, false or inaccurate. While none of these findings impact on the actual allegations in this case, they are of importance with respect to how the balance of F.P.’s testimony must be treated.

[115] Further, there is always a concern in cases such as this about motivation-related issues. That is, is there any evidence that F.P. fabricated these allegations to bolster her claim for custody and to ensure that she suffered no family shame because she ended the marriage in order to be with someone else?

[116] F.P. told the court at the end of her evidence that she just wanted to be alone. The tone in which this evidence was given was somewhat troubling. It sounded as if she wanted to simply be rid of the accused without acknowledging his role as a parent. It appears that the accused has not seen his children in some considerable time. This court is concerned that F.P. is motivated to keep matters that way.

[117] Further, I was unconvinced by F.P.’s denials of her affair with H.. I prefer the evidence of the accused that he discovered his wife texting his work schedule to another man and that his wife spent all of her time on the internet and Facebook. It is clear that F.P. felt she did not get what she bargained for. Her fiancé was not an engineer or a successful real estate agent, nor did he live in a palatial home. In fact, he had no post-secondary education and worked in a grocery store. Her disillusionment with the accused may have formed part of her desire for a divorce. I accept that in the culture of the accused and complainant, having an affair outside of marriage would have brought shame to F.P.’s family. The easiest way around that would be for the accused to shoulder all of the blame with a criminal conviction.

[118] Therefore, given all of the above, this court finds that while F.P.’s evidence was cogent and compelling, it contained inconsistencies and raised questions that left this court in some reasonable doubt.

[119] With respect to the accused, his evidence was also believable overall. While he suffered from the same inability to remember exact dates and times as the complainant, I did not find that such inconsistencies tainted his evidence to the point of disbelief.

[120] The accused did well in cross-examination. He spoke of his children and even his estranged wife with affection. To some extent, he appeared to have been under some considerable misapprehension about his marriage. He appeared to think everything was fine until his wife returned from her trip to Afghanistan when he found her remarkably changed. This may well have been as a result of her ongoing tryst with H., or it may well have been the first time he had really noticed his wife’s unhappiness. Neither the accused nor the complainant was combative during cross-examination. They simply told starkly different, but believable versions of the same events.

[121] There was an overall problem with accused being somewhat desensitized to what was going on around him. He did not appear to really understand or care much about his wife’s blood disorder and the real effect it had on her pregnancies. He did not appear overly sympathetic to the hardships his wife suffered when she came to a new country without friends or family. He supported her, but was very busy working two jobs.

[122] I accept the evidence of the accused and R.H. that they were not married. While there remains some suspicion about the exact nature of their relationship, that is of no import with respect to these allegations.

[123] I found the accused’s descriptions of the sexual relationship between him and his wife to be believable. He spoke of their intimacy in an honest and sensitive way. He described them both wanting and enjoying sex and that his wife initiated sex as much as or more often than he did.

[124] I did not find that the accused embellished his testimony. He did not appear angry with the complainant for leaving him or removing his children. He left her everything and simply moved elsewhere when his wife’s demands were no longer bearable. While he was not in favour of the separation and divorce, he went along with it when he understood that his wife was firm in her resolve to end the relationship.

General Comments about the Evidence

[125] Both parties recounted believable and compelling histories of the same set of facts. Overall, this court accepts the complainant’s evidence, but questions the reliability of her evidence with respect to possible motives to lie.

[126] While accepting the accused’s evidence is enough to acquit on its own pursuant to W.D., it should be stated that this court is left with reasonable doubt based on the totality of the evidence. By this I mean that there may have been some incident or incidents which caused the complainant concern, but based on the Crown’s evidence, I am left with a reasonable doubt as to exactly what that was and when. When the evidence of the accused is also considered, I am left with a reasonable doubt with respect to whether any of the offences occurred.

The Charges Before the Court

[127] In order to prove sexual assault, the Crown must prove that the accused touched his wife in a sexual manner, knowing or being willfully blind to her lack of consent.

[128] In this case, I accept the accused’s evidence that he and his wife engaged in consensual sexual relations as a married couple because they loved one another and because they wished to have children. F.P. may have been unsure or ashamed of her own nakedness or that of her husband, given her inexperience. She no doubt felt pain as a virgin bride on her first night with her husband. However, I am left in some reasonable doubt as to whether the alleged sexual assaults began on that first night and continued throughout the entire five year marriage while F.P. said nothing. R.H. testified that they seemed to be a normal couple and that she did not hear or see anything that caused her concern. F.P. had access to a phone and the police. She did not hesitate to threaten to call the police when she said her husband’s family threatened to take her child from her. If F.P. is to be believed, she did not consent to sexual relations with her husband over the entire course of the five-year marriage and both of her children are the product of rape. Given my previous findings with respect to her credibility and what I have accepted from the accused’s testimony, I find that Crown has not met its burden with respect to Count One and there shall be an acquittal on that count.

[129] With respect to the count of assault causing bodily harm, the Crown must prove that in the course of a sexual assault, the accused intended to apply force to his wife which, viewed objectively, would be likely to cause bodily harm.

[130] The accused has already been acquitted of sexual assault. However, it should be mentioned that this court had some concern with the reliability of F.P.’s evidence in relation to the bodily harm alleged to have occurred during anal sex. The medical evidence available did not support F.P.’s version of events. There was no other medical report regarding the specific injury of which F.P. complained. The accused’s evidence was that anal sex was not permitted in the Muslim culture or religion. That fact alone would have been insufficient to acquit the accused on Count Two if the Crown had otherwise produced reliable evidence. The accused was frank that he had had sexual relations with three non-Muslim women before he was married, which is also not permitted in Muslim culture. However his evidence, combined with the lack of any objective evidence of any injury to F.P., leaves this court with reasonable doubt as to whether the accused had the requisite intention to cause harm to F.P., or whether the bleeding was caused by the pre-existing condition mentioned by the accused.

[131] Given all of the above, the accused shall be acquitted on Count Two on the indictment.

[132] With respect to the charge of unlawful confinement, as per R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, “Confinement requires an element of physical restraint, but not necessarily effected by physical means.” Further, unlawful confinement may restrict a person’s liberty but not their ability to escape. The physical restraint need not be total restraint nor restraint to a particular place.

[133] The Crown argues that the accused unlawfully confined F.P. by forbidding her from leaving the basement of 17 S[...] Street. This continued to some extent at the M[…] apartment. The Crown argues F.P. was forcibly confined by fear and intimidation. Unable to speak English, without income, transportation or family, without access to television or radio, unfamiliar with Canadian culture and told to remain at home by herself, she was effectively imprisoned for discreet periods of time.

[134] However, this view of the evidence fails to take into account that F.P. took English lessons, was able to drive a car, went to the gym and at times worked part-time. The accused’s evidence was that his family welcomed F.P. and included her in all of their events. Further, F.P.’s evidence on this issue moved a little when she was shown the photographs in Exhibit 9. She told the court that she had much more freedom after the birth of her second child.

[135] There is no doubt that F.P. suffered when she came to Canada. She became pregnant very quickly and had two difficult pregnancies in close proximity. Her Thalassemia meant she gained a lot of weight and had difficulty walking while she was pregnant. She had no friends, other than members of her husband’s family. She went from living with her four sisters, her mother and her brother to living with virtual strangers. She was exposed to a different climate, culture and food. She had to learn English and get to know her new husband.

[136] However, none of these hardships amount to forcible confinement. The listing details for 17 S[...] Street in Exhibit 6 indicate that there was a separate side entrance for the basement. The accused’s evidence was that there was a telephone in the basement. There was nothing preventing F.P. from leaving the basement, except perhaps for her own self-imposed, and quite understandable, apprehension. The same considerations apply to the M[…] apartment.

[137] As such, I do not find that the Crown has met its burden with respect to this count and the accused shall be acquitted on Count Three.

[138] Finally, with respect to the administration of a noxious substance, whether a substance is noxious is a question of fact and evidence, to be determined by the trial judge: R. v. Leblanc, 1999 CarswellOnt 673 (C.A.), at para. 3.

[139] One of the most cited cases dealing with the definition of “noxious thing” is R. v. Burkholder, 1977 ALTASCAD 8, 2 A.R. 119. The Appellate Division of the Alberta Supreme Court considered a conviction for administering a noxious thing. The Court considered the dictionary definition of “noxious” as “"injurious, hurtful, harmful, unwholesome" (para. 24). It went on to state:

In my opinion there is support for the view … that a substance is a noxious thing if, in the light of all of the circumstances attendant upon its administration, it is capable of effecting, or in the normal course of events will effect, a consequence defined in s.229 [what is now s. 245, ie. the consequences of endangering the life of, causing bodily harm to, aggrieving or annoying that person]. Circumstances that may arise and which have to be considered in determining whether a substance is noxious include its inherent characteristics, the quantity administered, and the manner in which it is administered. Substances which may be innocuous, such as water to drink or an aspirin for a headache, may be found to be a noxious substance in some circumstances; for example, if water is injected into the body of a person by means of a hypodermic syringe or an excessive quantity of aspirin is administered to a person (para. 25).

[140] The Crown argues that requiring F.P. to drink alcohol or an energy drink led to her being unable to resist the accused’s insistence on having sex. Clearly a noxious thing need not be poisonous to be noxious as per Burkholder above. If it is intended to annoy or cause bodily harm, that is sufficient.

[141] Therefore, either alcohol or an energy drink could be a noxious substance if it was intended to stupefy F.P. such that she was unable to consent to sexual activity. The difficulty here is that if indeed an energy drink was administered to F.P., this court can take notice that it would likely produce the opposite effect of alcohol. That is, it would make F.P. more alert, awake and presumably better equipped to make a decision relating to consent.

[142] As for the administration of alcohol as a noxious substance, there are two points. First, if the accused was allegedly forcing a full glass of vodka or some other alcohol down F.P.’s throat and she was “struggling” as she testified, how much did she actually consume? Second, F.P. may not be the stranger to drinking she would have us believe. One of the photos in evidence shows her with a Heineken beer in front of her at a bowling outing. There was also the evidence of the post-separation wedding at which the accused received complaints of her strange behaviour and a request to remove her from the celebration. F.P. countered by saying the beer bottle was “placed” in front of her in the photograph as a joke and that her behaviour at the wedding was related to her blood disorder, which made her feel dizzy and faint.

[143] There was no toxicology evidence at trial or indeed any evidence of what the effects of energy drinks or alcohol may have been in the circumstances. The Crown is not required to call such evidence; however, even if it had chosen to do so, it would have been difficult for any expert to provide a proper report. F.P. could not say how much she was forced to drink, what it was or when. The vagueness of this testimony and the accused’s denials raise a reasonable doubt as to whether F.P. drank the drinks of her own volition or indeed if she drank them at all.

[144] As such, the accused will be acquitted on Count Four.

[145] Given all of the above, there shall be an acquittal on all four counts. H.P., you are free to go.

Madam Justice C.A. Gilmore

Read in open court: April 6, 2016

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.

Released: April 6, 2016

CITATION: R. v. H.P. 2016 ONSC 2342

COURT FILE NO.: CR-12-08009G

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

H.P.

Defendant

REASONS FOR JUDGMENT

Madam Justice C.A. Gilmore

Released: April 6, 2016