Court File and Parties
Date: 2016-05-05 Ontario Superior Court of Justice
Between:
HER MAJESTY THE QUEEN Soula Olver, for the Crown
- and -
SRINIVASAN VENKATA GADAM Baqa Rashdi, for the Defendant
Reasons for Judgement Trafford J.
THIS IS AN OFFICIAL COPY OF THE REASONS FOR JUDGEMENT THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.
Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.
A. Introduction
On November 7, 2013, A.D. ("A.") attended at No. 31 Division of the TPS with her husband, K.R.K. ("K."), to make a complaint that A. was sexually assaulted by Srinivasan Venkata Gadam ("Srini") between April 2013 and August 2013 at Srini's condominium located at 60 Brian Harrison Way, Scarborough. Detective Handsor and Detective Fox conducted a videorecorded interview of A. with the assistance of a Telugu interpreter. The interview was in compliance with the requirements for substantive admissibility under KGB (SCC). A., K. and Srini were all born and raised in India, where they developed a fluency in the Telugu language, and subsequently came to Canada. As a result of the investigation of the complaint by Detective Constable Sawyer, Srini was arrested on December 26, 2013 and charged on January 20, 2014 with sexual assault. The complainant testified at the preliminary hearing. The defendant was ordered to stand trial on June 2, 2015. He elected trial by judge alone in this court.
These are the reasons for judgement at trial.
B. The Circumstances of the Case
B.1 Introduction
Let me begin with the circumstances of the case, as found by the court. These circumstances are the foundation, and the context, of the alleged sexual assault, which occurred between April 2013 and August 2013. Once I have described these circumstances, I will comment upon and determine the credibility of the complainant and the reliability of her evidence. This will lead to the legal analysis of the case and the verdict.
B.2 The Background of A.
A. was born and raised in India. She completed Grade 10 and graduated from an intermediate school after two more years of formal education. She went to a college for 3 years, and graduated with a Bachelor of Science in Mathematics, Physics and Chemistry. She then attended a university where, after 2 years of study, she obtained a Masters of Environmental Science. She taught at the Vishwa Bharti College of Pharmaceutical Sciences for 2 years.
A.'s mother lives in India. She cares for a son, A.'s brother, who is autistic.
B.3 The Emigration to Canada
A. married K. in India in February 2009. By then, he was a permanent resident of Canada, who emigrated 4 or 5 years earlier. K. sponsored A. She arrived in November 2009. They have two children, a daughter who was born in October 2010 and a son who was born in November 2014. A. was also pregnant in the summer of 2013 but lost the child by miscarriage. Both A. and K. speak Telugu fluently. It is one of the many languages spoken in India.
B.4 The Relations with Other People from India
As of November 2009, K. and A. resided in a rented apartment in a building on Lawrence Avenue West. They met some other people in the building who also spoke Telugu, and socialized with them. One of those people was a woman named Prasoona. Through her, K. and A. met Srini and his wife, Bindu, and their daughter, Medha. Srini, Bindu and Prasoona were employed by various firms in connection with their skills with software. Srini was a Business Analyst with Telus. Bindu was a dot net developer at Telus. Prasoona obtained a job at the CIBC with Srini's help. A. was interested in a career in the software industry but did not have any specific training for it.
B.5 The Wedding in 2011
In 2011, K. and A. went to India with their daughter to attend the wedding of K.'s brother. A. took a course in software, for about 4 months. She stayed about 6 months and then returned to Canada. She left her daughter with her mother. K. returned to Canada by himself after about 4 months. They resumed their relationship in the apartment on Lawrence Avenue West, and associated with other people in the Telugu community.
B.6 The Desire to Learn Computer Skills
When A. returned, she wanted to improve her skills with computers. She wanted a better job. K. was supportive of her desire. Prasoona helped her. She expressed to A. her belief that A. needed more training and a resume. Prasoona also cautioned A. that it was difficult to get a job in the software industry in Canada.
B.7 The Arrangement with Gadam
In those circumstances, Prasoona directed A. to the defendant. K. spoke to Srini. The three of them negotiated an arrangement whereby the defendant was to train A., prepare a resume and help her obtain some related experience in the field. K. agreed to pay Srini $1,000 as a fee and, upon employment, 20% of each month's cheque. The defendant told K. that the resume would be false in that it would falsely represent A. was employed by Telus, Monday to Friday, for 6 months. Srini was a Business Analyst with Telus. He arranged for a false verification of A.'s purported employment status at Telus by his immediate supervisor. In furtherance of this dishonesty, Srini helped Bindu obtain a job at the RBC. She worked there without terminating her employment with Telus. Her laptop at Telus was used by A., who would falsely represent herself to be Bindu by logging on to Bindu's computer and following some prompts. Telus continued to pay $5,000 per month to Bindu, for no services rendered. The defendant apparently received that $5,000 each month, paid A. around $1,000 to $1,200, paid the supervisor for the verification of the false resume for A. and kept the rest, including 20% of the purported income of A. She was only paid once over the course of this arrangement through August 2013.
The arrangement with the defendant began in 2012, and continued through August 2013. Initially, A. attended Srini's condominium in the evening hours, Monday to Friday. Bindu and Mehda were there, as was K. from time-to-time. Later, some of the training was during the day, when Bindu was at the RBC and Medha was at school.
B.8 The Social Relationship of the Families
Meanwhile, the Telugu speaking families continued to socialize with one another. The social occasions included birthday parties, visits to shopping malls and participation in child-oriented events. There were four such families, including Prasoona's family, K. and A. and the defendant's family, including Bindu and Medha.
B.9 The Interview by Wind Mobile
The defendant arranged an interview of A. by Wind Mobile for a managerial position in April 2012. The resume prepared by the defendant for this interview was false. A. was very nervous, and frightened, during the interview. She did not get the job.
K. discussed this interview with the defendant because, in his view, A. was not well-suited for any managerial position in the software industry. She lacked the required training and experience. The arrangement with the defendant continued into the spring of 2013.
B.10 The Attitude of A. in April 2013
A.'s attitude towards the arrangement changed noticeably in April 2013. She told K. she did not want to go to work. Sometimes the defendant called K. and asked about A., in particular, whether or not she had left for work. K. spoke to A. on those occasions. Typically, she said "…I am not feeling good… I don't want to go…". K. attempted to encourage her. He assured her she was in the final stages of the training. He urged her to complete it. However, she did not want to go, but did, and returned home very upset. K. expressed his concern about her distress. She merely said, in essence, that it was work related.
These developments led to a change in the arrangement with the defendant. Under the modified arrangement, A. was to go to Srini's condominium on Wednesdays and Fridays, and work from home on Mondays, Tuesdays and Thursdays. This arrangement continued through August 2013, with the exception of July 2013.
B.11 The Long Weekend of May 2013
Meanwhile, the social relationships of the Telugu community, including K., A., Srini, Bindu and some other people continued. K. did not notice anything unusual about A. in those social settings, including any contact between A. and Srini.
However, there was an incident during the long weekend in May 2013, in the Muskokas. Srini told K. that Sundar was "…looking at…" A. The defendant told K. that he could not tolerate it, but asked K. not to make an issue of it with Sundar or A. K. was angry. He approached Sundar and said "…why are you looking at my wife?" Sundar denied any wrongdoing and said "What are you talking about?" It was a heated argument. A. and the defendant were present. Srini attempted to stop the argument. A. was very frightened and nervous. Despite Sundar's denial, K. believed Srini. He trusted the defendant because he had a respected job and was the son of a respected family in India. Later, the defendant spoke to A. privately about the argument. He said "…is it enough, what happened now… should I show more about you?...". This frightened A. She felt threatened by the defendant. Nevertheless, the modified arrangement with the defendant continued throughout June 2013. A. went to the condominium Wednesdays and Fridays.
B.12 The Visit to India in July 2013
In July 2013, A. went to India, with Bindu and Medha, to bring her daughter back to Canada. She visited her mother and brother for about 4 weeks. She returned with her daughter around the end of July 2013. K. met them at the airport. He was excited, particularly because he was with his daughter. He took them to their new home, a condominium near Sheppard Avenue and Allen Road, that he rented with the defendant's assistance. Srini helped K. prepare the application to rent, by falsifying the information about A.'s employment at Telus and by providing some financial help, about $2,000, for the first and last months' rent, $3,000. Srini was K.'s best friend. He trusted and respected him. Throughout July 2013 they frequently met, for meals or evenings at the casino. Srini lost about $20,000. K. felt responsible for part of the loss. Those losses followed upon earlier similar losses, which led K. to pay Srini $10,000 in May 2013, through A.'s credit card. She was angry with K. about such losses. However, their marriage was a good one. They loved one another. There were no problems of any real significance between them. A., as I said, returned to Toronto with their daughter around the end of July 2013. She continued to attend the defendant's condominium on Wednesdays and Fridays, for training and job related tasks.
B.13 The Complaint by A. on August 28, 2013
On August 28, 2013 the defendant called K. and asked for A. to come to work. K. was at work. He called A., and went home to speak with her. She said she did not want to go to the job. They went to a nearby park and had a conversation, as K. held her hand:
K.: Why are you not willing to go? Is there anything in your heart you want to tell me?
K. was suspicious about the defendant because he was very forceful in some of the calls:
K.: Please tell me why you don't want to go to the job. You are suffering.
A. cried. She was quiet. This made K. curious.
K.: Is he harassing you? Is he doing anything to you?
A. was quiet for a few seconds.
A.: He is not such a good person as you think. He is sexually harassing me.
To K., sexual harassment means Srini wanted something from A.'s body, without her permission. K. broke into tears. He felt betrayed by his best friend. He was very angry.
Consequently, around 10 am, K. called Srini. He angrily accused Srini of sexually harassing A. He denied it. This made K. more angry. He was also frightened because A. previously told him that Srini told her that he stabbed someone in India when he was 14 years old. K. believed that such an act of violence by Srini might lead to such violence against his family, here or in India. K. did not know what to do. He and A. decided to leave Canada immediately. A. was frightened because she did not want anyone in India to know what Srini did to her. She believed that women in India who complain of a sexual assault are rejected by the community, including those whom they are closest to, and otherwise dishonoured. K. could not afford the flights to India. He approached his employer and obtained some cash in lieu of some employee benefits he was entitled to. He purchased three tickets to India, one way, departing on August 29, 2013. He declined to purchase return tickets, as suggested by the travel agent, because they had no intention of returning to Canada. K. and A. decided to abandon their lives in Toronto. K. called the landlord from the airport. He told him an emergency in India required them to leave Canada, terminated the lease and asked him to apply the last month's rent to cover the notice of termination.
B.14 The Conversation on the Flight to India
During the flight to India, K. and A. talked about the sexual harassment. She told him Srini forced her to have sexual intercourse and threatened her with harm if she told anyone about it. This information added to K.'s anger – "...I do not know what I would have done if I had stayed… I may have caused him serious harm…".
B.15 The Call to Srini during the Stopover
The flight to India was not a direct flight. During a stopover, K. called Srini and accused him, once again, of sexually harassing A. The defendant denied that he had any sexual relationship with A. at all. K. did not believe him.
B.16 The Conversations with Bindu from India
K., A. and their daughter arrived in India. They stayed with A.'s mother, until November 6, 2013 when they decided to return to Canada.
No one in India has been told about the matters before this court. A. does not want to disclose it to anyone. In India, the disclosure by a woman of a sexual assault may, and often does, lead her family, relatives and other members of the public to disrespect her. She is usually disbelieved and rejected by the community. Most women do not complain of a sexual assault in India.
K.'s anger did not subside. He believed that the entire series of events relating to the sexual harassment of A. was planned by Srini. K. wanted to correct what he considered to be serious misconduct by Srini. Thus, he spoke to the defendant's wife, Bindu, during several telephone conversations while he was in India.
The first conversation was 2 or 3 days after they arrived in India. K. told Bindu that Srini had sexually assaulted A. Bindu was shocked. The conversation continued:
Bindu: K., this is not new for me.
K.: What?
Bindu: He did this before, to another woman, an ex-student named Smita, in 2009. He met her through a computer chat. I caught him.
K.: Why didn't you tell me before we went to him? We could have rejected this, or been very careful.
There was another call to Bindu a few days later. The call was on speaker. K. and Bindu were both present.
Bindu: K., please let me talk to A. I want to confirm this with her. You had an argument with Sundar in Muskoka because of my husband's information. I want to be careful.
A. then spoke with Bindu.
A.: He ruined my life. He harassed me. He wants my body. There is no job. There is no training.
Bindu accepted this information as true. The conversation lasted for 2-3 minutes. A. cried.
Later, Bindu called K. She told him she would send the emails relating to Srini's relationship with Smita, which she did. She also asked K. why he was leaving his life in Canada behind. She urged him to return to Canada. She also told him that A. could complain to the police, if she wanted to. Before this conversation with Bindu, K. and A. had no intention of going to the police, in Canada or elsewhere.
B.17 The Decision to Return to Canada
However, K. spoke to A. about Bindu's remarks. A. decided to make a complaint to the police. She said, in effect"…he destroyed my life… I want to go forward… but do not tell anyone in India about this…". A. decided that what happened to her was wrong and she had to fight back.
Consequently, K. purchased three one-way tickets to Toronto, for about $4,000. They had no place to live. K. did not have a job. They prepared for their departure.
Shortly before the scheduled flight, Bindu called K. She told him she was suspicious about Srini. She believed he was attempting to sell the condominium so that he could leave Canada. She advised K. to return as soon as they could – "…if you come later, you may miss him…". K. arranged for an earlier flight, because he believed that if the defendant returned to India it would be difficult to locate him.
B.18 The Arrival in Toronto
On November 6, 2013, K. and A. arrived at the airport in Toronto. Because they were convinced the defendant was about to leave Canada, they approached the PRPS at the airport and disclosed the alleged sexual assault by the defendant and the possibility he may leave. The PRPS redirected them to the TPS and assured them they would be safe in a hotel. After they registered at a nearby hotel, A. called the TPS and made a complaint of sexual assault by the defendant. Arrangements were made for a videorecorded interview of A. with the assistance of a Telugu interpreter the next day. A. was interviewed by Detective Handsor and Detective Fox on November 7, 2013.
B.19 The Other Steps Taken by K.
K. and A. have decided to stay in Canada. Their daughter has rejoined them here.
However, K.'s desire to hold the defendant fully accountable for what he did to A. led him to take some further steps.
In November 2013, K. sent some emails to Telus advising of the defendant's dishonesty in connection with Bindu's purported employment at Telus. A. helped him prepare the emails because she had some information that was required by Telus for its own investigation. That investigation led to the termination of the defendant's employment.
Similarly, later in November 2013, K. and A. wrote a letter to Rogers advising of the alleged dishonesty by the defendant at Telus and disclosing the alleged sexual assault of A. by the defendant. The investigation by Rogers led to the termination of his contractual arrangement with Rogers.
B.20 The Last Conversation with Srini
K. had one other conversation with the defendant. He called Bindu and said "…let me talk with Srini…". The defendant came on to the phone and said, in essence"…you are making false allegations… I had no relations with A… if you make false allegations, I will cut you in pieces…".
B.21 Conclusion
That completes the circumstances of the case as found by the Court, insofar as they are the foundation, and context, of the alleged sexual assaults.
C. The Legal Analysis of the Case
C.1 Introduction
Let me begin the legal analysis of the case with a summary of the testimony of the complainant in its material aspects.
Then, I will state the position of the defence.
Then, I will state the position of the Crown.
Then, I will comment on A.'s credibility and the reliability of her evidence.
C.2 The Summary of the Testimony
C.2.1 Introduction
The complainant testified about several incidents with the defendant that occurred between April 2013 and August 2013, aside from July 2013 when she was in India.
All of them occurred in the defendant's condominium.
No one else was present in the condominium during any of them, with the exception of the first one in August 2013 when her daughter, then about 2½ to 3 years old, was asleep in the living room while the incident occurred in the adjacent bedroom.
All of them included threats by the defendant to harm A. or her loved ones if she disclosed the incident to anyone.
Some of them included vaginal intercourse that included ejaculation by the defendant.
All of them, until June 2013, included some effort by A. to resist the defendant physically, but she did not succeed.
None of them caused any injuries to the complainant, cuts, bruises, scratches or anything else.
None of the clothing she wore at the time of these incidents was damaged when it was forcefully removed by the defendant.
No complaints of sexual assault were made by A. to K. or anyone else until August 28, 2013.
At no time did A. present herself at a hospital and request an examination because she had been sexually assaulted.
She did not expressly consent to any of the sexual activity by the defendant.
No training of any significance was provided to her by the defendant.
No job experience, with Telus or anyone else, of any significance was provided to her by the defendant.
C.2.2 The First Incident – April 2013
The complainant testified about a sexual assault by the defendant in April 2013. This was the first incident. She went to the condominium. Bindu was not there. She did some work on the laptop. All of a sudden, the defendant grabbed her hands and said "…why are you staying with your husband… I like you very much…". He pulled her into the bedroom and put her on the bed. She tried to escape, unsuccessfully. He hit her. He kissed her. He fell on her and said "…I like you very much… why don't you understand... why do you stay with him… my wife is cheating on me…". He tried to remove her clothing. She hit him in an effort to escape. He tried to kiss her. Again, he tried to remove her clothing, her pants and top. She grabbed an iron located near the bed, but he took it from her before she could use it against him. She tried to break his finger. He put his hands in the area of her vagina. She kept her legs together. He pulled her pants down. He touched her vagina over her underwear. He squeezed her breast. He pulled his penis out – she did not see it, but felt it. It was hard. His penis did not enter her vagina. She felt some wetness, sperm, on her legs. It was on her pants too. She pushed him away and tried to get out of the bedroom. He did not let her go. She said "…I will tell people about this…". He replied "…I like you very much… if you tell anyone what has happened, I will say you did this… people will believe me, not you… that you are after me… …I can kill your mother… I have a lot of influence… I know everything… I can do anything to your mom and brother... I can do something to your husband… if you tell outsiders, you will be dishonored, not me… I can escape…". A. was frightened, and said "…I'm going to tell everyone… I don't want to see you…". He said "…I like you very much… my wife cheated… I don't have anyone…". He cried. She felt like crying. A. left when his daughter came home from school, around 3:30 pm. Srini approached her outside and said "…if you want to do anything, think well, and then do it…". She was angry.
A. also testified she did not give the defendant permission to do any of this to her. She tried to pull his hair. She used her nails to scratch him.
K. was not at home when A. arrived. He came later. She did not tell him about the first incident. She was frightened because Srini threatened her, with harm to her husband and parents. He told her he knew her parent's circumstances. He also said she would be dishonoured. All of this caused A. to remain silent at that time, even though she was not concerned about her husband's reaction to any complaint she might make to him.
However, A. did not want to return to the condominium, and did not for 2 to 3 weeks. When K. asked her why she was not going to work, she told him, falsely, that she was not feeling well and did not want to go. During that interval, the complainant came into contact with the defendant in some social settings. She testified that the defendant said "…he will dishonor you… you will have to come… think well… why are you not coming to the job…". A. regarded these remarks as threats. The defendant kept calling. Eventually, because of her husband, she returned to the condominium.
C.2.3 The Second Incident a Few Weeks Later
The second incident occurred as soon as she returned to the condominium. She went because of the job. He said "...why are you not coming? Are you doing some mad things? Why don't you understand?...". She felt threatened. He shouted at her. She cried. He took her to the bedroom. She tried to resist. She hit herself, on the wall. He pulled her hair. He slapped her face. He pushed her towards the bed and said "…if you don't do it, I'm going to cut your mother and brother…". He tried to hug her, and to hold her breast. He hit her. He pulled her pants down, kissed her and put his penis into her vagina. He pulled her hair. He held her hands tightly. A. felt like dying. She cried at times. She felt disgusted, and helpless - "…I felt like I left my body…". She shouted at him. He said "…do not scream… that's good for you… it's not my problem, I can escape…". She tried to leave. Srini said "…I will see you have no career, no life in Toronto…". The incident lasted for about 1 to 1½ hours. She stayed in the condominium until Medha came home from school in the afternoon. A. went home. She cried when she arrived. Her husband was not there. She did not tell him about the second incident when he came home. She did tell him she was not feeling well "…so I came home early…". She testified that she would have told him the truth if he asked her.
C.2.4 The Other Incidents in May 2013
There were several other incidents in May 2013. The complainant described them in less detail. She had to go for the job, but she did not work and she was not trained. Sometimes they did not have sex. Whenever they did, it was forced intercourse. Sometimes she said "…I can't…", and cried. She told him "…I can tell everyone what happened…". She did not consent - "…I had to do it… I used to leave my body and let it happen… I felt I was dead… I did not know what to do… I let my body go…".
C.2.5 The Incidents in June 2013
A. also testified there were several other incidents in June 2013 when they had intercourse. They were alone. He did not wear a condom. She shouted at him. He threatened her. He tried to create problems between A. and her husband. She was frightened - "…I used to leave my body and let it happen…". She did not give him permission - "…I had to do it because he said '…I won't let you go…'… I couldn't see hope anywhere…". She wanted to tell someone about this situation.
C.2.6 The Incidents in August 2013
The complainant testified that there were two incidents in August 2013.
On the first occasion, she went to the condominium for the job. She brought her daughter because there was no one else to care for her. Her daughter fell asleep on the sofa. The defendant then told her to come to the bedroom - "…if you don't listen, I'll see the end of you… if you talk, I'll kill your mother and brother in India… I will dishonor you in front of everyone… I am a man, I will be believed…". A. was 3 to 4 months pregnant then. She felt she had no choice. She could not scream, because it would likely awaken her daughter. He told her to remove her pants. She said "No, I am pregnant". He said "I want… bend over…". A. complied. Srini penetrated her vagina from behind, and ejaculated. She felt she had no choice. The intercourse lasted for about 20 minutes. A. then took care of her daughter, who slept through the incident, until they left, around 3:30 to 4 pm. A. did not tell her husband, but she decided she did not want the job.
There was a second incident in August 2013. Again, as described by A., she took her daughter to the condominium, for the job. Srini's daughter, Medha, was there. She was about 6 to 7 years old. The two daughters played normally. A woman who lived in another condominium called and asked if the two daughters could come to her place and play with her children. A. was content with that arrangement because she knew the woman and respected her ability to care for all of the children. It was around 11:30 am when the two daughters left. Immediately, Srini said "…you have to come to the bedroom…". Threats like the ones uttered on other occasions were repeated by the defendant. A. did not move. He said "…you have to come…". She felt helpless. She did not know what to do. She believed he "…would not let me go, even if I fought him, without having sex… I gave my body, and kept quiet…". The intercourse lasted for about 20 minutes. He let her go. It was after 12 noon. The woman from upstairs called and asked if A.'s daughter had any food allergies. A. went upstairs to help with the children. She returned to the condominium, and left with her daughter. She did not disclose this incident to her husband when she arrived home.
C.2.7 Conclusion
That completes my summary of the material aspects of the complainant's testimony relating to the alleged sexual assaults by the defendant.
C.3 The Position of the Crown
The position of the Crown is that the complainant is a credible and truthful witness. Her testimony was detailed. It is internally consistent. Parts of it are confirmed by K.'s testimony. What may seem to be rambling, incoherent testimony, shows that she was, and still is, a frightened woman. The threats by the defendant, in the context of A.'s belief about how women in India are treated when they complain of a sexual assault, continue to frighten A. They explain her delay in making the complaint, to K. and the TPS. None of the inconsistencies with prior statements, individually or collectively, are material. The court should accept A. as a credible witness whose testimony is reliable, in the submission of the Crown.
C.4 The Position of the Defence
On the other hand, the position of the defence is that the complainant's testimony is false or otherwise unreliable in most of its material aspects. The defendant's denials of any sexual relationship with A., as tended by the Crown, are substantively admissible. A.'s testimony was frequently rambling and not responsive to the questions asked by counsel. The court instructed her to listen to the questions and answer them truthfully. The similarity between K.'s testimony and A.'s testimony suggests they may have spoken during the trial. Both K. and A. are implicated in the dishonesty of the defendant relating to the affairs of Telus. Several of the inconsistencies between the complainant's testimony and the videorecorded interview or the testimony at the preliminary hearing are significant. The lack of detail in A.'s description of the alleged sexual assaults in May 2013 and June 2013 tends to show they did not happen. She repeatedly went to the condominium where she received no training and had no job where, if she is to be believed, she was sexually assaulted. Such a course of action defies common sense. The complaint of "sexual harassment" is to be distinguished from a complaint of "sexual assault". The failure of A. to complain to her husband until August 28, 2013, coupled with the defendant's denial of any sexual relationship with A., is some evidence that she has fabricated the complaint, perhaps because she is jealous of all the other women in Srini's life and perhaps because she wants to re-establish her marriage to K. Her testimony may be the result of a conspiracy between K., Bindu and A. formed in India to frame the defendant, each for their own reasons - A. to regain her husband's love, Bindu to seek revenge for Srini's infidelity over the years and K. to seek revenge for Srini's sexual harassment of A., which he equated with sexual assault. For these reasons, A.'s testimony should be rejected as false or otherwise unreliable in most of its material aspects, in the submission of the defence.
C.5 The Comments of the Court on A.'s Credibility
C.5.1 Introduction
Let me now comment on A.'s credibility and the reliability of her testimony. Through my assessment of her testimony, I have determined the verdict in this trial. My assessment is in accordance with the presumption of innocence and the burden on the Crown to prove its case beyond a reasonable doubt. It is not necessary, as a matter of law, for me to define that presumption and that burden, but I will so the complainant, the defendant and the other persons interested in, or affected by, the verdict, including the people in the Indian community, may understand this trial and comment on it with that understanding in mind.
C.5.2 The Presumption of Innocence
The presumption of innocence is one of the fundamental principles in our system of justice. It means that any person in this country who is accused of a crime is presumed to be innocent until the Crown has satisfied the court beyond a reasonable doubt of his guilt. It is a presumption which remains with any person accused of a crime throughout the trial. The presumption of innocence remains with a defendant for his benefit from the beginning of the case until the end. It is only defeated if and when the Crown Attorney has satisfied the court beyond a reasonable doubt that the defendant is guilty of the offence charged.
The presumption of innocence also means that a defendant does not have to testify, present evidence or prove anything in this case. It is the Crown Attorney who must prove the guilt of a defendant beyond a reasonable doubt, not the defendant who must prove his innocence. The court must find a defendant "Not Guilty" of an offence unless the Crown Attorney satisfies the court beyond a reasonable doubt that he is guilty of it.
The fact that a person has been arrested or charged with a crime is in no way suggestive or indicative of guilt.
The defendant has a constitutional right not to testify and is presumed to be innocent. The decision of a defendant not to testify is not, in effect, an item of circumstantial evidence that incriminates him. The failure of a defendant to testify is not to be placed on the evidentiary scales. These standards, the presumption of innocence and the right to silence, are important values we hold as Canadians in the administration of criminal justice. Everyone in Canada is entitled to the protection of them. These important legal principles, in their letter and spirit, have been respected throughout my deliberations.
C.5.3 The Burden of Proof / The Definition of Proof Beyond a Reasonable Doubt
Another fundamental principle of our system of justice relates to the burden of proof. The onus and burden of proving the guilt of a defendant beyond a reasonable doubt rests upon the Crown. It never shifts. There is no burden on a defendant to prove his innocence. The Crown must prove beyond a reasonable doubt that a defendant is guilty of the offence with which he is charged before a conviction is proper as a matter of law. If the court has a reasonable doubt, after weighing the evidence as a whole as to whether the defendant committed the offence with which he is charged, sexual assault, it is my duty to give him the benefit of the doubt and find him not guilty of the offence, sexual assault.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or the absence of evidence.
Even if the court believes a defendant is probably guilty or likely guilty, that is not sufficient. In those circumstances the court must give the benefit of the doubt to the defendant and acquit him because the Crown has failed to satisfy the court of the guilt beyond a reasonable doubt.
On the other hand, it is virtually impossible to prove anything to an absolute, that is, a mathematical or scientific, certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.
The requirement of proof beyond a reasonable doubt applies to each and every one of the elements of the offence allegedly committed by the defendant. Individual facts need not be proven beyond a reasonable doubt.
All of the evidence is to be weighed cumulatively. The court is not to consider one part of the evidence individually or in isolation from the others.
It is improper for a court to indulge in conjecture or speculation about matters which have no evidentiary foundation. For matters which do have an evidentiary foundation, the court may only draw reasonable and natural inferences and may do so only after weighing the evidence as a whole. Inferences should be rational and logical, not conjectural or speculative. Speculation has no part in the judicial function.
How should the court apply the principles of reasonable doubt to this case? Clearly, there is conflicting evidence in this case. It is obvious that the evidence favouring the Crown and the evidence favouring the defendant cannot stand together. The versions of the events are at odds with one another. Since each version cannot be factually true, I must assess the credibility and reliability of the witnesses and any other evidence tending to support or detract from each version. I have approached the case this way in my deliberations.
FIRST, assess the reliability of all of the evidence and the credibility of all of the witnesses as a whole.
SECOND, if I accept the evidence favouring the defendant, including the defendant's denial, and find it to be true when weighed against the contradictory evidence favouring the Crown, I must acquit the defendant.
THIRD, even if I do not find the evidence favouring the defendant, including the defendant's denial, is true, but am left in a reasonable doubt by it, I must also acquit him.
FOURTH, even if I do not have a reasonable doubt as a result of the evidence favouring the defendant, including the defendant's denial, I must then determine whether the Crown has satisfied me of the guilt of the defendant beyond a reasonable doubt on the basis of the evidence which I do not reject and which I do find to be true.
This approach is to be applied in relation to each and every one of the elements of the alleged offence, sexual assault.
I have kept in mind that I am not compelled to choose between the evidence favouring the Crown and the evidence favouring the defendant, particularly if each version appears to be credible in the sense that I am unable, after reasonable and thorough deliberation, to determine which witnesses are truthful and reliable. Rather, the Crown bears the burden of proving the guilt of the defendant beyond a reasonable doubt. If, after such deliberation, I am unable to decide whom to believe, I must acquit the defendant. Of course, I am required to do my best to determine who is telling the truth and who is not, and which inferences are reasonable and which inferences are not, because my duty is to render a true verdict based solely on the evidence. I may believe all, part or none of the testimony of any witness, including A. and K.
C.5.4 The Air of Reality to the Defence
The assessment of the complainant's credibility is to be done in the context of the evidence favouring the defendant. There are two aspects of the defence that complement its attack on A.'s credibility. There is an air of reality to both of them.
First, the defendant's denials of any sexual relationship with A., during the conversations with K. on August 28, 2013, on August 29, 2013 when the flight to India was at an intermediate destination in a stopover, and in November 2013, are substantively admissible. They were elicited by the Crown as part of its case. The defence may rely upon them even through the Crown regards them as proven lies, in the submission of the defence.
Second, there is some evidence of a consensual sexual relationship with A. It consists of parts of her evidence. A. repeatedly returned to the condominium when, contrary to her stated purpose of going there for the job and the training, there was no job and no training, and no salary. The initial sexual encounter, as described by A., included some remarks by the defendant in which he urged her to leave her husband, because he found her attractive and his wife was cheating on him. He was, when compared to K., more prosperous and yet was part of the Telugu community. There were, contrary to her evidence, some problems in her marriage arising from K.'s gambling debts, as described by K. Other parts of her evidence could be discounted on the basis that A. eventually regretted her affair and fabricated the allegation of sexual assault in an effort to re-establish her marriage, in the submission of the defence.
Although the denials of any sexual relationship and the defence of consent are inconsistent, the defendant is entitled to have the court consider and determine both of them. There is an air of reality to both of them.
C.5.5 The Analysis of the Case
Looking at the evidence as a whole, I am satisfied beyond a reasonable doubt that the defendant sexually assaulted A. between April 2013 and August, 2013, as alleged by the Crown.
There are two aspects of the evidence that are of critical significance to my application of the principles of reasonable doubt to the case – the treatment of women in India who complain of a sexual assault and the threats of harm uttered by the defendant. Each of them, by themselves, and both of them, together, are powerful evidence in this case. This evidence is the foundation of the rest of my legal analysis of the case.
A. and K. both testified about the treatment in India of women who allege they were sexually assaulted by a man. Such a complaint may, and often does, lead to the rejection of the complainant by her family, relatives and others in the community at large, the public. They disrespect and otherwise dishonor her. She is usually disbelieved and ostracized by the community. Most women do not complain of a sexual assault in India. As people who were raised in India through their formative years to their early adult years, A. and K. may testify about such culture without being qualified as expert witnesses. See R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (Ont. C.A.) at para. 157. I accept their testimony on this point. It is admissible to prove the complainant's state of mind at all material times in the history of this case, which bears upon the assessment of her credibility. It explains the delay in the complaint. It offers insight into her motivation, in connection with the regular attendances at the condominium, the participation in the social gatherings of friends in the Telugu community, the crying in conversations with the defendant, K., and Bindu and the decision to return to Toronto to make a formal complaint to the TPS. It also offers some insight into the defendant's state of mind insofar as A. described remarks by him that show a knowledge of such culture and a willingness to exploit that culture in his relationship with A. He, too, is a member of the Telugu community.
A. has testified about the threats of harm to herself and to her family that were uttered by the defendant throughout their relationship. Some were expressed – "…I can kill your mother… I can do anything to your mom and brother… I can do something to your husband…". Others were implied – "…people will believe me, not you… I have a lot of influence… you will be dishonoured, not me… I will see you have no career, no life in Toronto… if you don't listen, I'll see the end of you…". She described the frequency of such, and other like, threats, from April 2013 to August 2013. They occurred in the condominium, during some telephone conversations with the defendant and at social gatherings. I accept A.'s testimony on these points, because of the detail in the description of the threats, the nature of the threats, including the reference to the cultural treatment in Indian of complainants and the tears one might reasonably expect of a woman who was sexually assaulted. This evidence tends to explain the delay in the complaint. It undermines the denials of any sexual relationship with A. and the defence of consent. The threat by A. to tell outsiders about these incidents was made in the context of a forced sexual encounter with the defendant; it is not a remark she would make during an ongoing, gratifying affair. Srini had a sexual relationship with A. that was not consensual.
The defence raised a number of other themes, by cross-examination or through submissions.
Let me summarize those themes, and comment on them. Some of them I have rejected completely. Others are of some merit but, looking at the evidence as a whole, are not sufficient to raise a reasonable doubt in my view, individually or collectively.
First, the delay in the complaint tends to undermine A.'s credibility, in the submission of the defence.
Respectfully, I disagree.
A.'s knowledge of the treatment in India of women who complain of sexual assault led to a concern that her fate may be the same here, especially in the Telugu community. This was a frightening prospect for A. She was living in a small community of people from India. Otherwise, she is a stranger in the city. That fear was augmented by the fear the defendant created through the threats of harm to A. and her loved ones, in India and Canada. Different women react differently to crimes of sexual assault. Some act more promptly in making a complaint than others. Those women, like A., who delay the complaint because of fear arising from cultural forces and threats of harm are not by reason of such delay less believable in my view. That is what happened in this case.
Second, there were problems in A.'s marriage to K. that may have led to an affair with Srini, in the submission of the defence.
Respectfully, I disagree.
Contrary to the position of the defence, A.'s marriage to K. was not in such turmoil. They loved one another. He supported her effort to develop a career in software. They came to Canada to establish a new life, and were apparently making good progress. Both admitted there were some arguments, but those arguments were rather minor. A. was angry about K.'s $10,000 gambling debt owed to the defendant. But she paid it, at K.'s request, and expressed her disapproval of such behaviour. The defendant's declaration about the marriage during the first incident in April 2013 was false and part of an otherwise unsuccessful effort to seduce her. His attempt during the long weekend in May 2013 to cause K. to believe that Sundar had a sexual interest in A., whether or not it was encouraged or reciprocated by A., did not cause any problems in the marriage. There is no evidence that A. had a sexual interest in Sundar. Rather, Srini's attempt may have been in furtherance of the defendant's efforts to cause a rift between K. and A. that could have led her to have to an affair. A. was not motivated to have an affair with the defendant because of problems in her marriage.
Third, A.'s return to the condominium when, on the evidence, there was, in essence, no training, no job and no income, tends to show there may have been an affair, in the submission of the defence.
Respectfully, I disagree.
Looking at the evidence as a whole, that pattern is not indicative of a return to further an affair with Srini. Rather, A. did hope to advance her career in the software industry through the defendant as recommended by Prasoona and as arranged by K. with the defendant. That hope, unreasonable though it was, led to such returns to the condominium, in the context of the fears she experienced because of the defendant's threats in April 2013 to harm her and her loved ones and the treatment in India of women who complain of sexual assault. The defendant's threats were not only repeated but they had a continuing effect, each one adding to the effect of the preceding ones. A. felt helpless and overwhelmed by these circumstances. She was attempting to establish a new career in a new country.
Fourth, A. made a false complaint, in part, because the defendant stopped providing financial support to K. and A., in the submission of the defence.
Respectfully, I disagree.
Contrary to the position of the defence, there is no evidence that the defendant stopped providing financial help to K. and A. He did help them to some extent, such as through the arrangement of flights to India, the loan to K. for gambling at the casinos and the rental of a condominium near the end of July 2013. All of that financial help was interim help which was paid off by A. She was credit worthy; K. was not. There is no evidence of a financial dependence on the defendant or of a discontinuation of any such support to the detriment of K. and A.
Fifth, A. continued to socialize with the defendant after the first incident in April 2013 when, if she was sexually assaulted by him, she would not have done so, in the submission of the defence.
Respectfully, I disagree.
A. did continue to have some contact with the defendant socially. However, that occurred in family-oriented contexts, occasions of importance to K. and some other people in the Telugu community. They were not occasions when A. was alone with the defendant, planned and in the nature of a date. The defendant, Bindu and Medha were a part of that community. K. and A. wanted to be a part of it too. Such participation is not indicative of a sexual interest in, or relationship with, the defendant. Nor, in my view, does it otherwise detract from A.'s credibility.
Sixth, A.'s description of the alleged sexual assaults in May 2013 and June 2013 lacked the details one may reasonably expect from a truthful, reliable witness, in the submission of the defence.
Respectfully, I disagree.
More detail of an alleged sexual assault may indicate a higher degree of reliability, in that it may be more difficult to fabricate a detailed version of the incident and testify to it consistently over time. The detail she provided of the first incident in April 2013 and the two incidents in August 2013 are good examples of detail that tend towards reliability. However, there is an explanation for the absence of a similar amount of detail for the other alleged offences. A. was traumatized. She felt "…out of my body…" at times. She just let Srini do what he wanted, more or less to get through the trauma of the incident, not having firmly decided to make a complaint. A. was not focusing on all of the details of what the defendant did to her. What she did not perceive cannot be truthfully or reliably recalled, or narrated. In that sense, the lack of detail is consistent with her description of the effect of the assault on her. A detailed account of those other incidents could undermine A.'s credibility, given the traumatic effect on her.
Seventh, A. took her daughter to the condominium in August 2013 when, if she is truthful, she would not have done so knowing, or believing, that another sexual assault was reasonably foreseeable. A loving mother would not take her young daughter to a dangerous situation. A. took her daughter because she believed the presence of the child would not likely interfere with the affair. All was harmonious with the defendant, in the submission of the defence.
Respectfully, I disagree.
A. took her daughter to the condominium because there was no one else to care for her at home. She permitted the woman in the other condominium to take care of the child because she knew and trusted the woman. A. was not facilitating an affair with the defendant by letting her daughter play with some other children. Nor did she bring the child to the condominium on the basis that the presence of the daughter would not likely interfere with an affair. Child care was important to A. in August 2013. It was an aspect of her life that was of prime importance then because she was pregnant.
Eighth, A. babysat Srini's daughter to further an affair with him, and to establish a loving relationship with Medha in anticipation of the affair developing into a more permanent and exclusive relationship, in the submission of the defence.
Respectfully, I disagree.
A. did babysit Medha at times and in circumstances not proven in any detail. It was done in the context of the training and employment regime agreed upon by K. and Srini. A. was a part of the Telugu community, as were Srini and Bindu. The babysitting was in the nature of inter-family harmony. No doubt, A. also wanted a good business relationship with Srini, whom she trusted to develop her new career in software. This circumstance does not advance the defence, looking at the evidence as a whole.
Ninth, at no time did A. attend a hospital for the purposes of obtaining a medical examination after the alleged sexual assault. Such a failure may indicate a consensual sexual relationship, in the submission of the defence.
Respectfully, I disagree.
A. was not physically injured in any of the incidents with the defendant, and she did not believe she sustained any such injuries. Such an examination may have proven intercourse, and may have led to the identity of the alleged perpetrator, but it would not be probative on the issue of consent. A. did not know about the probative value of the administration of a sexual assault kit to a complainant, or the failure to seek one. In this case, I place little or no weight on this evidence, in the context of the evidence as a whole.
Tenth, A. did not leave the condominium immediately after the alleged offences as one might reasonably expect of a victim of a sexual assault. The failure to do so, in the context of the estimated duration of some of the incidents, about 2 hours, may indicate consent, in the submission of the defence.
Respectfully, I disagree.
These circumstances do assist the defence but not to the extent of raising a reasonable doubt in my view. A. was affected by the defendant's threats and her concern about the treatment of women who complain of sexual assault. Her conduct at all material times was affected by those threats and those concerns. She was a frightened woman.
Eleventh, the defendant terminated the affair to A.'s disappointment and, when K. found out about the affair, A. fabricated the complaint, with the assistance of Bindu and K., in an effort to re-establish her marriage, in the submission of the defence.
Respectfully, I disagree.
There is no evidence that the defendant terminated a relationship with A., direct or circumstantial. A.'s initial complaint of sexual harassment was reasonably interpreted by K. as a complaint of sexual assault. While, as a matter of law, there may be some forms of sexual harassment that are not sexual assault, that distinction was not a live one to A. or K. Indeed, her subsequent conversations with K. added information in the nature of an assault. The flight to India was undertaken by them in fear, but in any event, served to re-establish the marriage, if that was A.'s purpose following an affair – she had her husband back, away from Srini with little or no possibility of the discovery in India of an affair, if that was the truth. Similarly, if that was A.'s mindset, she would not have decided to return to Canada to make the complaint. A return would have placed her marriage at risk one more time. Bindu merely urged K. to reconsider their decision to leave Canada. She did otherwise help in the formulation of a false complaint. A. had already complained to K. Bindu's declarations in the calls from India, as described by K., about Srini's prior affairs with some other women are not substantively admissible. Rather, they merely show the state of A.'s mind. A. merely decided to return to Canada and make the complaint to the police; she had already made the complaint to K. Her decision was to stand up publicly and correct, through the administration of justice, the wrongs done to her and K. by the defendant – the sexual assault and the dishonesty connected to the software training and the employment by Telus. This was a courageous step by A., given her cultural upbringing in India. The efforts of K. and A. to terminate Srini's employment with Telus and Rogers were reasonably open to them as a matter of law in the circumstances of this case. They may have acted with some revenge but, looking at the evidence as a whole, any such revenge does not in my view tend against their credibility. Both of them felt betrayed by the defendant. As A. testified"…he ruined my life…". K. supported her throughout this case, as one would expect of a husband whose marriage to the complainant was without any significant problems.
Twelfth, the Telus business records show the extent of A.'s relationship with Srini. Victims of sexual assault do not engage in hundreds of phone calls with the perpetrator of the assault, in the submission of the defence.
Respectfully, I disagree.
Those records were marked as exhibits subject to further evidence to establish the conditions precedent to admissibility. No such evidence was tendered by the defence, either in the cross-examination of A. or through a witness from Telus. Similarly, there is no evidence of the content of any such calls. For these reasons, I have disregarded Exhibit 3, and the related chart of its content, Exhibit 4.
Thirteenth, the sexual videos on the complainant's ipad tend to undermine her credibility or raise a reasonable doubt in the issue of consent, in the submission of the defence.
Respectfully, I disagree.
The videos were discovered by K. in July 2013 when A. was in India, and brought to her attention during the flight to India on August 29, 2013. There is no evidence of who downloaded them, or in what circumstances. A. and K. denied they were used in their sexual relationship. A. also testified that they were not a part of the sexual encounters with the defendant. In those circumstances, I place no weight on this evidence.
Fourteenth, the complainant's testimony at trial was inconsistent with the videorecorded statement to the TPS and the testimony at the preliminary hearing on several points. Those inconsistencies undermine her credibility, in the submission of the defence.
Respectfully, I disagree.
Those inconsistencies related to:
- the use of the iron, whether it was in the first or second incident;
- the injuries A. caused to the defendant, whether she scratched or attempted to scratch him;
- the degree of penetration of the vagina in the first incident, none as opposed to a partial penetration;
- the nature of the force applied to A. by the defendant at the beginning of the second incident, whether he "pulled" or "took" her into the bedroom;
- the nature of the use of the iron, whether she tried to, or did, put the cord around Srini's neck;
- the frequency of the sexual assaults"every time", as opposed to "90%" of the time, she went to the condominium; and
- the extent to which Srini interrupted the first sexual incident in August 2013, whether he looked from the bedroom into the living room to check on A.'s daughter who was sleeping on the sofa or left the bedroom to click on his computer which was in the living room near the sofa.
There were some other inconsistencies too. Having regard for the evidence as a whole, these inconsistencies, individually and collectively, do not significantly undermine A.'s credibility or the reliability of her evidence in my view. The iron was used in the first incident. She tried to put the cord around Srini's neck, but failed. He took the iron from her. He did not penetrate her vagina in the first incident. He dragged her into the bedroom for the second incident. She was not sexually assaulted every time she went to the condominium, only about 90% of the time. Srini went into the living room to click on his computer. These inconsistencies are not material to me. They are the result of A.'s fear during the incident, and her nervousness during the statement, the preliminary hearing and the trial. They have been satisfactorily explained in my view, looking at the evidence as a whole.
Fifteenth, although K. is not an independent witness from A., although K. and A. had an opportunity to collaborate with one another to fabricate a false complaint against the defendant and although K. and A. are implicated in the defendant's dishonesty with Telus, some of their evidence is consistent on important aspects of this case. A. was upset in April 2013. She did not want to return to the job. K. urged her to complete the training offered by Srini. She returned to the condominium for that purpose. Women in India who complain of sexual assault are rejected and otherwise dishonoured by people close to them and by the community. A.'s conduct was affected by it, and still is. She is a frightened woman. She cried during the complaint on August 28, 2013, in India and at times when she testified. They left Canada frightened, with the intention of never returning. They returned to Canada, after A. decided to proceed with the complaint to the TPS, and did so without a residence, a job or much money. K. and A. testified on these points, more or less consistently with one another. I am satisfied their evidence on these points is truthful and reliable. It was not fabricated to wrongfully convict the defendant as a man who merely had an affair with A.
Sixteenth, the defendant denied any sexual relationship with A. when he was confronted by K. on August 28, 2013, during the stopover to India on August 29, 2013 and in November 2013 after K. and A. returned to Toronto. Given the frailty of the Crown's case, those denials are sufficient to raise a reasonable doubt, in the submission of the defence.
Respectfully, I disagree.
For all of my reasons, looking at the evidence as a whole, I reject those denials as false or otherwise unreliable evidence, that is not sufficient to raise a reasonable doubt under R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (SCC). I have not used the falsehood of these declarations as an item of circumstantial evidence that adds to the Crown's case.
Seventeenth, the evidence of the defendant's dishonesty relating to Telus, Bindu's job and A.'s resume, as falsely supported by his immediate supervisor, may not be used for any purpose other than narrative, in the submission of the defence.
Respectfully, I agree.
This evidence was merely evidence of the context within which the alleged sexual assaults occurred. That evidence is not evidence of the defendant's character that made the commission of the alleged sexual assaults more likely. Nor have I used it in my determination of the weight to be given to the various denials, even though, in my view it is legally permissible for me to do so.
C.5.6 Conclusion
That completes my comments on A.'s credibility.
C.6 Conclusion
In conclusion, given my acceptance of A.'s testimony concerning the treatment of women in India who complain of a sexual assault and the threats of harm to A. and her loved ones uttered by the defendant from April 2013 to August 2013 and, further, given my comments about the various themes raised by the defence including:
- the delay in the complaint;
- the problems in A.'s marriage to K.;
- the implausibility of returning to the condominium for any reason short of an affair, given the absence of training and the absence of a job;
- the termination by Srini of some financial support to A. and K.;
- the continuation of a social relationship between A. and Srini;
- the absence of detail in A.'s description of many of the alleged sexual assaults;
- the bringing by A. of her young daughter to the dangerous situation in the condominium in August 2013;
- the babysitting of the defendant's daughter by A. after some of the alleged sexual assaults;
- the failure of A. to obtain a medical examination after any of the alleged sexual assaults;
- the failure of A. to leave the condominium more or less immediately after the alleged sexual assaults;
- the collaboration of A., K. and Bindu to fabricate the complaint of sexual assaults, each for their own reason;
- the prior inconsistent statements by A.;
- the denials by the defendant of any sexual relationship with A.; and
- the defendant's dishonesty in his dealings with Telus.
I am satisfied beyond a reasonable doubt that the defendant sexually assaulted A. between April 2013 and September 2013, as alleged by the Crown. She did not "consent" to any of the sexual contact with the defendant, as defined under s. 265(3) and s. 273.1(2) of the Criminal Code.
D. Conclusion
That completes my reasons for judgement.
May 5, 2016 Trafford J.
THIS IS AN OFFICIAL COPY OF THE REASONS FOR JUDGEMENT THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.