ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-16-1669

DATE: 2018 03 07

B E T W E E N:

Her Majesty the Queen

R. Levan, Counsel for the Crown

• and -

T.A.

J. Irving , Counsel for T.A.

REASONS FOR JUDGMENT

Bloom, J.

I. INTRODUCTION

[1] The Accused is charged with sexual assault on S.D., contrary to s. 271 of the Criminal Code. The Crown alleges that during the period January 18, 2015 to January 29, 2015 the accused repeatedly sexually assaulted the complainant, who was his wife whom he had brought to Canada from Peru by way of immigration sponsorship.

[2] The only issue raised by the Defence at trial has been whether the alleged conduct took place. The accused denies that this conduct occurred at all. If the Crown has proven beyond a reasonable doubt that the alleged conduct occurred, the accused will be found guilty; otherwise he must be acquitted.

II. THE EVIDENCE

A. Testimony of the Complainant

[3] I will first summarize the testimony of the complainant in examination-in-chief.

[4] Ms. S.D. was 38 years old at the time of her testimony. She had been born in Peru; she testified through a Spanish interpreter.

[5] Prior to her coming to Canada, she had no friends or family in Canada.

[6] She met the accused on April 13, 2007 at the offices of a marriage agency called Matching, in Lima, Peru.

[7] The first time he was in Peru she saw him three times. After he left, they stayed in contact first by e-mail and then by phone. In the e-mail communication he told her that he wanted to see her and know her; and that he loved her.

[8] She saw him again in 2007 or 2008. He returned ten other times to Peru.

[9] They were married in Lima, Peru on November 11, 2011. He had asked her many times to marry him, the first time being in April 2007 on one of the three occasions on which they met in Peru the first time he was there.

[10] She had doubts about marrying him, but eventually she accepted his proposal. She was very afraid but regardless, she loved him.

[11] They broke off their relationship many times. When she left him, he would threaten suicide; he would cry, throw himself to the floor, and kick things.

[12] She wanted to help him, and thought that he would change. Despite everything, she married him because she loved him and thought that he would change. In 2010 she agreed to marry him.

[13] After they married, he would come back to Peru to see her. The ten times he came to Peru included occasions after they married.

[14] On these ten visits to Peru he would stay sometimes 15 days, sometimes a month, and sometimes a month and a half.

[15] Ultimately she came to Canada. She had told him that she wanted to live with him In Peru, but he did not wish to do so.

[16] The accused helped her fill out the forms required for her coming to Canada. He told her that he was going to take care of all of what was required.

[17] The Canadian embassy got in touch with her. She was given a piece of paper, and was told that she had to hand it in when she came to Canada.

[18] The accused came to Peru, and they went to Canada together.

[19] He learned Spanish from her, but she did not learn English from him, because he did not have the patience to teach her. He was an aggressive person.

[20] He came to pick her up in January of 2015. She had understood that they were going to live by themselves in an apartment, were going to be a happy couple, were perhaps going to have children, and were going to work together in business.

[21] When they arrived in Canada on January 18, 2015, everything changed. She stayed on her own locked up without food and without communication with anyone. She spent her time waiting for the accused’s orders.

[22] When they arrived at his apartment , no one was there; but he told her that his mother was living there. He had never before told her that they were going to live with his mother.

[23] The apartment had two bedrooms; she and the accused stayed in one, while his mother stayed in the other.

[24] When they arrived at the apartment, Ms. S.D. entered the bedroom. The accused did not want her to unpack; her suitcases remained packed to the day she left that apartment.

[25] When she met him, he wanted to get married very quickly. She wanted more time to get to know him.

[26] He had no patience, and did not like to talk. He wanted to have sexual relations very early in their relationship. He did not even ask.

[27] He was not respectful of others. They were walking in the park, and he wanted to touch her buttocks. He wanted her to suck his penis in a taxi. She kept telling him to wait until they were in a bedroom, and have respect for other people. He did not care. He touched his penis on the street.

[28] She was disappointed with this behaviour, and he said that she was exaggerating things.

[29] In Peru she was free to eat and go out to work. In Canada he wanted to control her, and for that reason he held her incommunicado in his home and sexually assaulted her.

[30] The entrance door to the apartment was locked. She stayed in the bedroom a good deal of the time. She tried to go into the common areas of the apartment, but he did not want her to do so.

[31] Most of the time during the day he would leave early for work. She did not know where he went. He returned to the apartment between 4:00 p.m. and 5:00 p.m. His mother was in the apartment with her in his absence. The complainant had no telephone until a few days before she left the apartment.

[32] When he was in the apartment, he was aggressive to her. He was abusive towards her. She and he shared a bedroom. He would pull her here and there. He was aggressive with her, and, while she tried to defend herself, she could not. He would abuse her in the bedroom. She was desperate.

[33] He was always aggressive in sexual relations, but it was worse in Canada. These things happened many times. They happened every day when he chose—at 2:00 a.m. or 5:00 a.m. or immediately after he arrived from work.

[34] His abusive conduct was sexual abuse. He forced her into it. He would pull her clothes. He would push her onto the bed. He would have forced sexual relations with her on the floor, if he wanted.

[35] There were times when his full weight was on her, when she felt as if she were being asphyxiated. She was trying to get away. He pulled her by the hair and pulled her into the washroom; he turned on the water. She did not know if he was trying to drown her, but she was very scared.

[36] His sexual abuse began the first day she was at the apartment.

[37] Upon her arrival in Canada she told the accused that she wanted to inform her family that she was fine. He told her that he did not want her to do so, and that she was to do so only when he gave his permission.

[38] The first incident of sexual abuse after her arrival was during the daytime. She was unable to give the number of all of the incidents of sexual abuse.

[39] He would say to her that he was the man in the house, and that she was not to tell him what to do. When he would abuse her sexually, he would ask her why she cried. He would say that in India a husband has his wife whenever he wants, and that this is the way God designed matters.

[40] After abusing her sexually, he would see her crying and would threaten her with going to the immigration authorities to get her expelled from Canada if she complained. He told her that the police were stupid and racist; that they did not like Hispanic people; that they would not believe her complaints about him; and that he was a Canadian.

[41] After being sexually abused by her husband, she would ask him why he was doing those things to her and then shut her mouth.

[42] She experienced physical discomfort as a result of the sexual abuse; she experienced pain in her vagina when he penetrated her—she felt burning.

[43] The accused forced vaginal intercourse on her. He did not wear a condom.

[44] The accused wanted her to suck on his penis. To achieve that result he would pull her by the hair. She did suck his penis. He was stronger than she was, and she could not put up a defence.

[45] She had the feeling of being asphyxiated just a few times.

[46] The accused was lying on top of her each time he forced her to have sex. Sometimes he pulled off all of her clothes. Sometimes he pulled off only her pants. When he was on top of her, he would hold her hands with a lot of strength. He would position them wherever he wanted so that he could have sex with her. She would cry a lot, and would make a moaning sound because she felt burning in her vagina. She would scream when she felt the burning.

[47] She left the apartment on January 29, 2015.

[48] On Saturday, January 24, 2015, a few days before she left her husband’s home, her mother-in-law took her to a flea market. There the complainant met a lady in a store, and told her about the abuse. That lady helped her flee, and helped her to obtain the assistance of a social worker. The woman at the flea market spoke Spanish. The complainant’s mother-in-law had gone to the washroom; the complainant and the lady were left alone. It was then that the complainant told her of the sexual abuse The lady told her to speak to the police. The complainant told her that she was afraid.

[49] That night when she was back at her husband’s home, he yelled at her and asked her what she had discussed with the lady at the flea market. He threatened to have her expelled from Canada. He also told her that he would find her; that he knew dangerous people; and that his family were dangerous, and could hurt her.

[50] Subsequently, she looked at the lady’s card and tried to leave her husband’s home to look for the lady. The complainant’s mother-in-law would not permit her to leave. They struggled physically, her mother-in-law trying to prevent her from leaving .

[51] The complainant arrived at the flea market, and spoke to the lady. The lady told her to talk to the police. She told the lady that she was afraid that her husband would find her. The lady took her to a social worker, and helped her get to a shelter.

[52] It took the complainant perhaps one to one and one half hours to get to the flea market. When she went to see the lady at the flea market, that lady helped her get a cell phone. The lady’s first name is Martha. They spoke Spanish to each other. The complainant was at the flea market this second time for hours.

[53] Her husband showed up at the flea market later that day. She wanted to go to the washroom when she saw him standing close to the entrance of the flea market. He called to her. He said that he wanted her to come home with him. She refused; she wished to continue talking with Martha.

[54] She stayed at the flea market, but then went back to the apartment, the home of her husband. She went back with Martha in Martha’s car.

[55] The complainant saw Martha the next day, the third time she had spoken with her. She had met Martha on the Saturday when she went to the flea market with her mother-in-law; on Sunday she walked to the flea market to see Martha for the second time; on Monday Martha took her to the city centre to see a social worker.

[56] After seeing the social worker, she returned to the apartment. She stayed there until January 29.

[57] When the complainant returned from the flea market on the Sunday, the accused was furious. He was aggressive and desperate. He told her that he had found a lawyer who had advised that she should leave the accused’s home, but should not speak to anyone. The accused told her that she should not speak about the matter to anyone, because, if she did, he would find her and take reprisal. She did not leave the home, because she was afraid.

[58] She told him that he had not told the lawyer the truth, because, if he had, the lawyer would not have advised that she should leave the home.

[59] She feared that he would kill her. When the accused told her to leave, she felt desperate and did not know where to go. She did not have money or identification.

[60] Since she did not leave the home, he called the police to complain about her. She could not communicate with the policeman because of the language barrier. She thought for a moment that the policeman was not a real policeman. She thought that the accused had paid someone to make her disappear. The police officer came to the residence on January 28, 2015.

[61] She left the residence on January 29, 2015.

[62] When the police arrived, she was confused. The next day, January 29, 2015, she spoke to a social worker at the City Centre. She told the social worker that the police had come to the accused’s home. The social worker had already told her that she should speak to the police. The complainant had spoken to the police before speaking to the social worker on January 29. The complainant had spoken to the social worker before the police came to the accused’s home; they spoke a few days before January 29.

[63] The complainant left the accused’s home for good on January 29, 2015.

[64] She went to a shelter. The social worker made the call to the shelter which was for women who had suffered abuse.

[65] The complainant stayed there. She spoke to the police again. The workers at the shelter told her that she should speak to the police regarding the abuse. As a result of that advice she spoke to the police who came to the shelter for that purpose.

[66] When she went to the shelter on January 29, her luggage was still in the bedroom where she had stayed at the accused’s home. The workers at the shelter arranged with the police to have them arrange with the accused to leave her luggage at the reception area in the apartment building in which the accused lived.

[67] Escorted by a police officer the complainant and a worker from the shelter picked up the luggage.

[68] The complainant’s relationship with the accused’s mother was not good. This lady cooked for herself and her son, but the complainant did not eat with them. She stayed in her bedroom; no one cooked for her. She could not eat.

[69] The accused and his mother ate together. Between the time she arrived and when she left the accused’s home on January 29, the complainant only ate with him once; that meal was when she first arrived. Otherwise he never offered her food. After she met with the lady at the flea market, the accused asked the complainant to drink something. She refused because she was afraid that he could put something improper in her drink.

[70] The accused assaulted her every day until the day she left his home.

[71] The accused’s mother was not home on the first day when the complainant arrived, and the accused assaulted her. That assault was in the bedroom and occurred approximately an hour and a half after the complainant’s arrival at the accused’s residence. He raised his voice to her, because she was telling him that she wanted to communicate with her family. He told her to get into the bedroom. At first it was an argument.

[72] He pushed her onto the bed. She tried to get up. She tried to run and open the door. The accused threw himself on her, and pulled off her clothes and his own. He held her back by her hair, trying to prevent her escape. At that point he penetrated her. She told him “no”. She was crying. She could not defend herself. He was stronger than she was. After the incident she remained in the bed, crouched and crying. He had ejaculated on this occasion.

[73] The next incident was late on that same night. She cannot recall the exact time; she was in bed. She felt his full weight on her. She had sex with him against her will. She was afraid.

[74] He was always complaining that she should not be complaining and that what was happening was the way it should be. She could not recall the time of any episode after the second one. Whenever he wanted her, he would take her.

[75] These assaults were sometimes on the carpet in the bedroom. They were twice or three times on the carpet. One of these incidents was when the accused returned from work.

[76] She was sitting on the floor and opening her luggage. He found her and abused her again. He came into the bedroom. Her legs were open, and her knees were apart. She was trying to open the luggage. He saw her sitting on the floor. He went out, returned, and then attacked her.

[77] He kicked the luggage to the side. He tried to pull her by her feet. She tried to get out of there. He held her back, and threw himself on top of her. He pulled her pants off, and pulled his own pants off. He proceeded to penetrate her.

[78] Every time he would assault her in the bedroom, he would try to have her suck his penis. In the incident in which he kicked the luggage, he held her by her hair and tried to get her to suck his penis. When he penetrated her, he pulled out his penis, and tried to get her to suck his penis. She did not do so, because she was crying.

[79] During one of the assaults she tried to talk to him; she asked him why he was doing what he was. His answer hurt her.

[80] After the first assault, his mother would have overheard what he was doing to her. The mother knew, and the complainant would have liked to hear at this trial from her mouth the truth, but she is the accused’s mother and would not say anything favourable to her.

[81] Before she came to Canada , she tied up loose ends. She was employed in Peru, and was living in the home of her parents.

[82] In cross-examination defence counsel put squarely to the complainant that her complaints of sexual abuse by the accused were an elaborate scheme by her planned from the outset by which she would come to Canada and become a permananent resident. I have viewed the cross-examination based on that allegation and will now summarize it.

[83] The complainant admitted that before coming to Canada she received from the Canadian embassy in Peru a piece of paper confirming that she was a permanent resident of Canada; and also admitted that she received that document because the accused sponsored her to come to Canada as his spouse. She stated, however, that she loved her husband and married him, not knowing what a sponsor was.

[84] She further stated that she knew that Canadian law required that she live with her husband, but that she had to leave his home because of his abuse and threats.

[85] She stated that she was at the time of the trial learning English, but before that time did not know English. She stated that in January of 2015 after January 18 and before January 29, she was unable to speak English, read English, or write English. She testified that it was impossible that she spoke English at all, even broken English, to Officer Brown when he interviewed her at her husband’s home.

[86] The Defence counsel put to the complainant and she accepted that, while in examination-in- chief she had testified that the relationship between her and the accused had broken up many times before they married, she did not give that evidence at the preliminary inquiry. She also confirmed in cross-examination that she had not told the police of the break-ups. The complainant explained that she only had answered the questions she was asked, and had not lied about the break-ups having taken place. Nevertheless, she was contentious in her answers to Defence counsel in this area. The Crown and Defence agreed that the break-ups in Peru were neither asked about by the police during her KGB interview nor mentioned by the complainant during it.

[87] The complainant admitted that at trial she had testified that she and the accused had broken up many times at which times he would throw himself on the ground, kick, and flail; but that she did not testify to those multiple break-ups at the preliminary inquiry. She testified that she had not mentioned the break-ups because she had not been allowed to explain matters. In response to Defence counsel’s follow-up question that no one was stopping her from saying things at the preliminary inquiry, the complainant argumentatively answered that the Defence lawyer at the preliminary inquiry interrupted her just as the Defence counsel did at trial.

[88] At the preliminary inquiry the complainant testified that the accused’s mother came home at approximately 11:30 am on Junuary 18, 2015. She was argumentative when challenged by Defence Counsel with her contradiction of that evidence in her trial testimony that on that day the accused assaulted her sexually in the afternoon while his mother was not present in the residence.

[89] The Defence in cross-examination pointed out that the complainant on February 4, 2015 had not told the police that in Peru the accused had touched her buttocks in public and had wanted her to suck his penis in a taxi, whereas she had given this evidence at trial. She explained that she had told the police of the abuses of her by the accused in Peru, but not every item of abuse on every day.

[90] In cross-examination she agreed that she had told the police that the accused had changed his behaviour a little in Canada from the way he had been in Peru. She explained that in Peru, unlike in Canada, the accused had not locked her up as he did in his residence in Canada, and that she was not held starving by him in Peru as she was at his residence in Canada. Moreover, she further stated that he did not threaten her life in Peru, as he did in Canada. She had stated that the threat was a threat to her if she spoke to the police.

[91] In cross-examination she also stated that she had told the police that he had been quiet and romantic in Peru She explained that she had told the police that information because in Peru, when he apologized for his mistakes, he would give her flowers and toys, and kiss her hands. She also noted that he returned to the same behaviours.

[92] In cross-examination she stated that on February 4, 2005 when she had been interviewed under oath by two police officers, she had, in referring to the events in question, used the phrase “When he [(the accused)] threw me out of the house.” She further admitted in cross-examination that she had not told the officers that she had fled. She was further asked by Defence counsel how she could reconcile the comment to the police with her testimony that she had to flee. She responded that, when the accused learned that she had spoken to the lady at the flea market, he became scared, got a lawyer, and wanted her to leave. She continued stating that she thought that he was up to something; and that, when she left, she just left and told him nothing. In further cross-examination on the point, she stated that she had told the police that the accused told her to leave when he had consulted a lawyer; and that she had not told the police that she had fled, but rather that he had thrown her out.

[93] In cross-examination the complainant admitted that she could have told the police on February 4, 2015 that the accused had thrown her out on January 28, 2015. She was not clear in her responses to questioning concerning that date; she stated that that accused could have thrown her out on January 26, 27, or 28, and that the fact was that he followed his lawyer’s advice and threw her out of the house. She stated that the accused did not want her to talk; wanted her to go back to Peru; and wanted her to disappear.

[94] She admitted in cross-examination that she had told this Court that she had fled, but had previously told the police that the accused had thrown her out of the house.

[95] In cross-examination the complainant admitted that she had testified at trial that the accused had touched her buttocks in public and asked her to suck his penis in a taxi; but also admitted that she had not told the police those things in her February 2015 interview. She explained the omission by stating that she had not given many details to the police of her daily life with the accused; but had answered the questions she had been asked, and would have given further details if asked. She gave the same explanation for omitting from her police interview a description of the accused’s taking her by the hair to the washroom where the shower was running, whereas she gave testimony at this trial about the incident.

[96] In cross-examination in response to the allegation that her accusations of sexual assault were part of an elaborate scheme to get to Canada and become a permanent resident, the complainant testified that she had met the accused in 2007, that he wanted to marry her then, that she did not marry him until 2011, and that she would have married him in 2007 if she had just wanted to use him to come to Canada.

[97] The complainant was asked in cross-examination how she reconciled her testimony that she was kept effectively captive at her husband’s residence, with her testimony that his mother took her to the flea market and left her to speak Spanish with Martha while his mother went to the washroom, the complainant not fleeing. The complainant responded that she was scared, did not know what to do, and had been threatened by the accused.

[98] The complainant had no direct answer to the question in cross-examination about the apparent contradiction that, while she had testified that the accused had not wanted her to speak to anyone, his mother let her speak to Martha at the flea market.

[99] The complainant was questioned in cross-examination on the timing of the first alleged assault. She agreed that it occurred on the day of her arrival in Canada, January 18, 2015. She was asked to estimate how much time passed from her entry to the accused’s residence to the time of the assault. She refused to give an estimate.

[100] She was asked to give the details of the first assault. She answered that, as she had told Defence Counsel previously, it was difficult to describe the details of all of the assaults.

[101] She agreed that, whereas in examination-in-chief she had stated that the assault occurred approximately one and one half hours after her arrival, in cross-examination she had stated that it occurred almost immediately after her arrival. She commented that she had experienced hard times in tha residence and could not remember everything.

[102] Further, she responded several times that she could not recall specifically step by step what happened when asked to describe the details of the first assault. She did recall that the accused penetrated her, pulled her hair, and wanted her to suck his penis. She did recall also that she had a burning sensation in her vagina.

[103] She was asked when the third incident of sexual assault occurred and was unable to provide an answer. She said that she could not give details on a minute by minute basis.

[104] In response to the allegation in cross-examination that she had a plan to gain entry to Canada through the marriage and then to make accusations of sexual assault to avoid her obligation to stay in the relationship for two years, she testified that she had met the accused in 2007 and married him four and one half years later, despite his wanting to marry her right away; and that if she had had the plan alleged, she would have married the accused in the first year after meeting him.

[105] In cross-examination the complainant pointed to exhibit 11, an email from the accused to her, as confirming a suicide attempt of the accused as a result of difficulties in the relationship with her, whereas the document does not refer to such an attempt.

[106] The following exchange in cross-examination of the complainant demonstrated her inability to explain a contradiction in her trial testimony:

Q. All right. Your Honour, I'm going to reference the transcript of May 17, 2017, at page 29.

THE COURT: Let me get that myself. Page 29, did you say?

MR. IRVING: Yes. Okay. Yes, Your Honour, page 29. Mr. Levan is kind enough to provide a clean copy for the witness, so I'll go up there. I'll, I'll provide this to the interpreter. It's going to be from here to here, okay? So, Your Honour, what I propose is that I will read the relevant passage and when I'm finished, I'll ask the interpreter to then interpret the passage into Spanish.

THE COURT: thank you.

MR. IRVING: That might be a bit better way to do it.

MR. IRVING: Q. So, we're going to start with Mr. Levan's question that is approximately line 27. Okay, I'm going to read it now -- Madam Interpreter, I will read it in its entirety without interpretation and then when I'm done you can interpreter what I've read. Thank you. The question: "Do you recall what day it was your mother-in-law took you to the flea market?" Answer: "I think it was January 24. It was a Saturday." Question:, "Was this the first time you'd left the apartment since you arrived?" Answer: "Yes." Please translate.

A. Yeah.

Q. So, in that passage, you told His Honour that the first day you left the apartment since you arrived was January 24 when your mother-in-law took you to the flea market.

A. Yes.

Q. And now you're saying that's not the case, it was one of the two days that you went out with your husband in his car.

A. That I went out with my mother-in-law.

Q. Yes.

A. If, if, if you ask me what's the first time that I went out either with my mother-in-law or with my husband....

Q. That's exactly what I asked you.

A. What are you asking me now? Whether I went out with my mother-in-law or either when I went out with my husband?

Q. It's very simple. My question to you was this. What was the first date that you left the apartment building? You indicated to His Honour that it was one of the two dates where you went out with your husband in his car. That's what your evidence was, correct?

A. Yes, that's what I said.

Q. But on May 17th, 2017, you told His Honour that Saturday, January 24th, the first day you went to the flea market, was the first time you had left the apartment since you arrived.

A. Yes.

Q. Right. Well, those two pieces of evidence don't quite match.

A. If you allow me to explain. When I said that I -- I meant that I, I by myself could not. I could not decide to leave. I couldn't do anything. If my husband took me outside it was because he wanted. I was, I was, I was like an animal in his house. What I meant is that I could not make up my mind to go out alone.

Q. Is there anymore you'd like to add to that?

A. I don't know, you ask me.

Q. The point is simple. On the one hand, on May 17th, you told His Honour that January 24, 2015, was the first time you had left the apartment since you arrived. That's your evidence on that day.

A. No, what, what I meant to say is that it was the first time that, that I went out with my mother-in-law.

Q. Well....

A. Because I couldn't go out.

Q. Right and that was the first time you left the apartment since you arrived.

A. With my mother-in-law.

Q. Well, my question was not to do with your mother-in-law. The first time you left the apartment since you arrived. What was it?

A. It was with my mother-in-law.

Q. So it was incorrect this morning when you said it would've been when you left with your husband in his car.

A. I want to clarify this. What I said that I, that I went out of the apartment for first time, it was with my mother-in-law. The other dates that I went out with him, that he took me, I did not decide to leave. I cannot recall the dates.

Q. All right. Anything else you'd like to add to that?

A. No, no I don't know. You ask me.

Q. So there is nothing you'd like to add?

A. No, no.

[107] In cross-examination the complainant testified that sexual abuse is tramautic, and that Defence counsel was asking for so many details about the abuse and there were so many incidents of the abuse that she could be confused in her testimony.

[108] In cross-examination she also refused on a notable occasion to confirm Defence counsel’s summary put to her of a relevant portion of her testimony. This excerpt of the cross-examination follows:

MR. IRVING: Q. So, if I can -- I'm going to provide what I see as a summary of your evidence, so far, with respect to this event and then you tell me if I'm correct. All right?

A. Okay, so you, so you do whatever you think is right.

Q. Okay. You recall being on the floor with your legs half apart. You had opened your luggage. You were taking some family photos. They were on the floor and you were looking at them. At that point, at that point, Mr. T.A. enters the bedroom. He kicked the luggage. He then pulled you by the legs or the feet.

A. Yes.

Q. You were trying, somehow, to get away from him. At some point he removed your pants. He then threw himself on top of you and proceeded to penetrate you. Have I roughly summarized what your evidence is?

A. That's what you're reading.

Q. No, ma'am, I'm not reading it. I'm offering you what I believe is a summary of your evidence on this particular incident. And I'm asking you if it's accurate. Is it?

A. I will not answer about what I think.

MR. IRVING: Well, Your Honour, I'd like you...

THE COURT: Yes.

A. If you want to...

MR. IRVING: ...to direct the witness.

A. ...listen to it....

THE COURT: Now, Ms. S.D., I, I want you -- I'm asking you and I'm ordering that you simply tell Mr. Irving whether -- what he summarized for you as to your evidence about the incident was accurate. That's the question and I'm ordering that you answer it.

A. Yes, sir, I do understand. But if this gentleman is reading from something, it's fine. But if he's asking me about some conclusions that he's arriving at, is very difficult for me to, to, to answer, because he's here just to, to damage me, to, to, to prejudice my, my position, so I cannot believe in what he’s saying.

THE COURT: No, what, what Mr. Irving is doing is he is not reading from the transcript as he has, from time to time. He is summarizing your testimony this morning about, about that incident and asking you whether his summary is correct.

MR. IRVING: And, Your Honour, I respectfully suggest she could say either yes or no.

THE COURT: So, I'm asking -- I'm ordering that you tell him whether or not that summary is, to your knowledge, accurate or inaccurate.

A. I recall saying that to this gentleman.

MR. IRVING: Q. And does that mean that my summary was accurate?

A. I'm saying that what, what he has been saying as a, a summary is what I've been saying to him. Now, I cannot say that what you're saying is correct, sir. I, I can't believe in what you're saying, sir. I'm sorry. You are trying to confuse me with your questions and I don't have the paper in front of me to, to know what you're saying.

[109] In re-examination the complainant stated that she and the accused had had many break- ups of their relationship before being married. She stated that she broke up with him many times because of his bad behaviour.

[110] In re-examination the complainant testified that she and the accused prepared exhibit 5, a Canadian immigration form; she stated that he helped her with the English questions, and she wrote on the form in her handwriting, also handwriting the signature on the last page on July 19, 2012.

[111] She also testified in re-examination that exhibits 4 and 4A were one Canadian immigration document, the Sponsored Spouse Questionnaire; that the accused helped her with the meaning of the document by translating; that they filled it out together; and that it was in her handwriting, she signing it on July 19, 2012.

[112] In re-examination she testified that exhibit 1 was the website of MatchingSys.com which was partly in English and partly in Spanish. She stated that she does not read English. She further stated that she signed up with the agency in person, not using the internet or seeing the webpage.

B. Testimony of Flora Martha Tapia

[113] In examination-in-chief by the Crown the witness testified that in 2015 she had a stall called “Peruvian Corner” at a flea market in Mississauga when the complainant came to her stall on a Saturday in December. The complainant arrived with her mother-in-law who told the complainant that this was a store from Peru.

[114] The witness further testified in chief that the complainant was nervous and her eyes looked like she wanted to cry. The complainant said that she was from Peru and, when the witness extended her hand to shake hands, the complainant grabbed her hand with force. The complainant’s mother-in-law said that the complainant should talk to the witness while she went to the washroom.

[115] The witness continued in chief by stating that the complainant gave her name as S.D. and asked her for help. Her mother-in-law returned in perhaps only 2 minutes. As a result the witness could not talk to the complainant but gave her her business card when she saw the complainant’s mother-in-law returning. The complainant spoke Spanish to her, because the complainant does not speak English; the complainant was shaking mildly because she was afraid .

[116] The witness continued that the complainant returned alone on the next day, Sunday, in the morning. She had walked; it was winter and her hair was frozen. She wore no gloves or hat, and was wearing a winter jacket and shoes.

[117] The witness stated that the complainant could not stop crying. She stayed with the witness until the witness closed up her stall for the day, because the complainant did not know how to get back to where she was staying and had no money for bus fare.

[118] The witness tesified that she purchased a used cell phone from the flea market for the complainant along with a calling card, so that they could communicate; and that the complainant otherwise had no means of communication in the residence in which she was staying. The witness tesfiied that the complainant was hysterical on both the Saturday and the Sunday.

[119] The witness testified that the complainant told her that she was not feeling well in the house of her husband; that his and his mother’s customs were different from those of herself and the witness; that she could not eat her accustomed Peruvian food at the house; that she was not allowed to eat the Peruvian food, but had to eat the food of her husband and mother-in-law; that she was not allowed out of the house; and that she did not have the keys to the outside door of the house. The witness further testified that the complainant stated that her mother-in-law was very strict; that she was not alowed out of the apartment; did not have a key to the apartment; and if she left the apartment could not get back into it.

[120] The witness tesfied also that the complainant told her that there things about her husband which were the problem; she complained that when he wanted sex and she did not wish it, her forced himself on her. The witness testified that she responded that in Canada no one could force her to have sexual relations.

[121] The witness testified that she brought her to a community centre; and that she told her to complain to the police, but that the complainant was afraid to do so. The witness testified that the conversation about the sexual relationship between the complainant and her husband took place a few days after the complainant arrived at the flea market.

[122] The witness tesfied that these events occurred in mid-December and, she believed, two years ago.

[123] The witness tesfied that she took the complainant to the community centre a week or two after meeting her, and had no more communication with her.

[124] The witness testified that she told her to call the police, but she was afraid and did not do so; and that the complainant told the witness that she could not speak English and could, therefore, not provide the police with information. The witness stated that the complainant also told her that the police would believe her husband not her.

[125] In cross-examination the witness stated that she met the complainant in the period around December 15 or 18 and definitely before Christmas. She elaborated that she believed that it was 2015, but it could have been 2014 or 2015.The parties admitted that the witness met with a police officer on June 13, 2016.

[126] In cross-examination the witness testified that the complainant told her that she had to eat the food of her husband and his mother, not that she was not allowed to eat; and that she was in love with her husband, but when she came to Canada, things changed.

C. Testimony of Constable Thomas Brown

[127] In examination-in-chief the witness, who was called by the Defence, testified that he had been a police officer seven years; and that on January 28, 2015 the accused came to him at the front desk of 12 division of the Peel Regional Police. He testified that the accused had marital issues with his wife. The accused told him that since she was in Canada, she no longer showed him the same attention and that they were not getting along. The accused further stated that he came to the police, because his lawyer told him to make a report to the police.

[128] The witness further testified that he went to the accused’s home on January 28, 2015 and spoke to the complainant who told him, in response to his questions about her marital relationship, that she wanted a divorce. He spoke to her in English. He understood her reponses, but had difficulty making himself understood in his questions to her. She had a low level of English, but he was satisfied that she understood what he was saying.

[129] In cross-examination by the Crown the witness testified that he spoke with the complainant about 40 minutes. The complainant and someone else, whose name he could not remember, were in the home when they spoke. However, they spoke privately so that she could be frank with him.

[130] He further testified in cross-examination that she said that she wanted a divorce, but would try counselling. He noted no criminal offense.

[131] She used “yes” and “no” in English or shrugged, because she did not have a high level of English. He used gestures. When he left the premises he believed that she had understood him and that there had been no criminal offense committed. He further testified that he would not have left the home in this type of domestic occurrence unless he was satisfied that she was not being left in danger; and that he would have followed up if she had made allegations of her being struck.

[132] He testified that he relied on her understanding of his pantomiming of hitting and he relied on her saying “yes” and “no” and shrugging. Her low level of English caused the time-consuming nature of the interview.

D. Testimony of the Accused

[133] I will first review the examination-in-chief of the accused. He testified that he was born on […], 1971; and that he was presently employed in a job where he did scanning, shipping, and receiving.

[134] He came to know the complainant through MatchingSys Inc., a matching agency in Peru. He married her on November 11, 2011 in Peru.

[135] When she obtained her Canadian permanent resident’s visa at the Canadian embassy in Peru, he went to Peru and brought her back to Canada.

[136] On the way from the airport, she became distant; her attitude changed.

[137] They had no physical relationship in Canada, because she wanted no romantic or sexual relationship.

[138] She said that she wanted a divorce, and told him not to give her trouble regarding her status as a permanent resident of Canada.

[139] He was advised by a lawyer he consulted to obtain the assistance of the police to evict the complainant from his condominium unit.

[140] The website of the matching agency could be viewed on the internet in both English and Spanish. He found the agency’s website on the internet. His purpose was to find a marriage partner.

[141] He went to Peru to the agency in April of 2007. Through the agency he met 6 ladies; one was the complainant. He had three dates with her on that trip to Peru.

[142] They had a communication problem because she spoke Spanish and he spoke English. However, they wanted to be together.

[143] He went back to Canada, and they communicated by e-mail.

[144] In September of 2007 he returned to Peru to see the complainant. Their relationship was developing because her English was improving and his Spanish was as well.

[145] They communicated by phone and e-mail when he was in Canada. He sent e-mails in Spanish. In the beginning he had them translated online because he was learning Spanish. He also had her Spanish e-mails translated online into English.

[146] In the period Sepetember 2007 to November 11, 2011 they had problems like other couples. She blew up the problems out of proportion. However, they loved each other.

[147] There were two break-ups of the relationship by her early in the relationship. There was then one by him because she was blowing matters out of proportion, but she came back to him and they worked out their problems.

[148] In December of 2009 there was a third break-up and a reconciliation a few days later. Respecting his words in exhibit 10 (an e-mail to the complainant from him) referencing suicide, he stated that he never threatened to commit suicide or tried to do so; the words were an emotion of the moment. Referring to exhibit 11, another e-mail by him to the complainant, he explained that he was emotional and sent that e-mail not as a suicide threat but to tell her that he loved her and wanted her to be with him. He said that there were no other e-mails to her in which he threated to commit suicide. He also denied that he would throw himself to the ground and kick things as he threatened to commit suicide.

[149] He discussed with the complainant before they were married the Canadian immigration regulation requiring a sponsored person to cohabit with the sponsoring spouse for two years after the marriage.

[150] Just before they married she asked him to move to Peru. He replied that he might do so one day when he retired, but not at that time.

[151] On January 18, 2015 he and the complainant arrived at Pearson Airport in Canada. Once she arrived in Canada she was very distant.

[152] January 8, 2015 was his last trip to Peru. There was during this visit a change in her behaviour. She became distant; they spent only about two and a half days of his ten day trip there together; she said that she had things to do to prepare to come to Canada.

[153] The flight arrived at Pearson around 9:00 or 9:30 am and they took a taxi to his residence. She was not communicating at all when they arrived at Pearson.

[154] His mother was not at the residence. She had gone to meet them at the airport, but missed them because the plane landed early. She came back to the residence about forty minutes after their arrival there.

[155] He had told the complainant before they came to Canada that he and she would live with his mother temporaily until she got a job; then they would get a place of their own. She had spoken on the phone in English approximatley seven times with his mother before they arrived in Canada.

[156] In April of 2007 he did not speak much Spanish and she did not speak much English. He took a Spanish course at the Unversity of Guelph, and she studied English in a course for which he paid. By January 18, 2015 his Spanish was reasonably good, and she could speak English.

[157] There were two bedrooms in the condominium unit. Their intention was to stay in one of them. He never told her that she had to stay in the bedroom and not leave it.

[158] During the first week in Canada she was crying a lot. She said repeatedly that she was living in a cemetary and did not want to be here. He did not give her a key to the unit because of her erratic behaviour.

[159] He never told her that she could not go to the areas of the unit other than the bedroom. He gave her an area of a closet for her clothing, not preventing her from unpacking.

[160] She slept in his bed. Neither he nor his mother in his presence told her that she had to eat the food they did or nothing at all.

[161] He has not had sexual relations with the complainant from January 18, 2015 until the time of his testimony.

[162] The complainant ate with his mother, and with him when he was home. She was happy to heat Indian food which his mother prepared. In fact one of the restaurants he and the complainant frequented in Lima, Peru, was an Indian food restaurant.

[163] On January 18, 2015 he offered the complainant his cell phone to call her parents. There was no argument between them about her calling them. She did not call them by her choice.

[164] He did not jump on her and penetrate her in the bedroom. He never sexually assaulted her on the floor in the bedroom. He never pulled her by her hair and put her in the shower and turned on the water.

[165] When she returned from the flea market where she had gone with his mother and told him that she had met Martha, he was happy that she had met someone from Peru.

[166] She was crying her first week in Canada and he asked her if she still loved him. She replied that she did not want to be with him and wanted a divorce. He asked her when she was going to telll him. She replied that she waited until she had her permanent resident status.

[167] She left the unit on her own; he did not tell her to leave. She stormed out, hitting his mother on her side. She said that, if she lost her permanent resident status, she would get even through bad people whom she knew She said to him that she knew where he was, but when she left he would not know where she was.

[168] These events which occurred when she left the condominium unit took place on January 29, 2015 at 11:00 or 11:30 am. There was no struggle at the front door.

[169] The complainant never told him that he was not sincere prior to her coming to Canada.

[170] He is a Sikh but does not believe in religion, but does believe in God. He does eat beef and does drink alcohol socially; he did so in the presence of the complainant and never told her that he did not do so. He never told her that he could not lie.

[171] He never threatened the complainant with death or physical harm.

[172] With respect to exhibit 6, a Canadian immigration document, most of it was completed before he arrived in Peru. The complainant did the simple parts on her own and had a translator help her with the parts she did not understand.

[173] With respect to exhibit 4A, another Canadian immigration document, he helped the complainant with the charts. She did the full page written answers with the help of a translator. The accused helped her fill in the places where they had gone together. The translator was a professional translator.

[174] I will summarize the important points arising from the cross-examination of the accused. He stated that the complainant’s English skills improved over time. As of 2015 she spoke English well but wrote and read English at a lower level.

[175] He stated that in two e-mails to the complainant he had referred to his suicide, but did not intend to commit suicide.

[176] He did not propose marriage to the complainant on his first trip to Peru. He did so for the first time approximately a year later in person in Peru.

[177] The complainant had no family and friends in Canada. She knew only the accused and his mother before she came to Canada with him.

[178] The accused met the complainant on April 12, 2007. He told her that he loved her in September of that year. He asked her to marry him approximately eight times after that time. Those proposals were made roughly from mid-2008 to 2009, although his recollection is not complete on the point. Some of the proposals were made on the phone and some in person. He does not remember when he first proposed, but it was approximately mid-2008 while he was in Peru. The witness was shown to be wrong in asserting that he did not make a proposal by e-mail, only in person or by phone; two e-mail proposals shown to him made that point.

[179] The complainant accepted his marriage proposal on December 10, 2009.

[180] The accused told the complainant just before they were married and in 2012 just before they handed in her immigration papers in October of that year, that she had to remain with him for two years to obtain permanent residence status in Canada.

[181] When she stormed out of the condominium unit, she said that no one should interfere with her permanent resident status. She threatened him with harm from Peruvians in Canada, saying that she knew where he lived but that he would no longer know where she was. Prior to the threat, he believed that she had no friends or family in Canada.

[182] He believes that she was using him to obtain permanent resident status in Canada. He believes that they loved each other, and that she lost love for him before they came together to Canada, but that she did not reveal that fact to him until he asked her.

[183] Regarding the Canadian immigration forms, she translated the simple parts and had the professional translator translate the more complex parts. The accused helped her with a small portion.

[184] On December 10, 2009 he proposed marriage to the complainant and she accepted. The next day he met her family.

[185] Regarding exhibit 4A, the sponsored spouse immigration form, he submitted it on behalf of the complainant but did not check its contents. He assumed it was correct; he only looked at the few parts he included, and did not tell the complainant what to write.

[186] He picked up the complainant in Peru to bring her back to Canada. He was in Peru ten days for that purpose. While he was there he noticed that she was distant and not spending as much time with him as previously. She was very withdrawn, and told him that she was acting differently because she had a lot to do. In the ten days they only spent two and one half together. She went without him to say goodbye to people, whereas in the past they had gone together, both to see friends and shopping.

[187] She was still distant on the plane to Canada. When they arrived, she was crying in the late afternoon and evening of January 18, 2015. She said that she was living in a cemetary and that she was not happy.

[188] He offered her his cell phone to call her family. She said that she wanted to e-mail them from an internet café, refusing to use his laptop computer for that purpose. They did go to an internet café on January 19, 2015 to allow her to e-mail her family; he did not look at what she sent by way of e-mail messages.

[189] She cried later on January 19, 2015 and continually from January 20 to 24; throughout the period from her arrival to January 24 she repeated the statement that she was living in a cemetary. She often stayed in the bedroom where they slept; he tried to console her, but she did not open up to him.

[190] After she spoke to Martha, she changed.

[191] When she came home after meeting Martha on January 24, 2015, she went to sleep. After waking up, she discussed with him her conversation with Martha, but did not mention obtaining Martha’s card. It was when she woke up that she told him that she did not love him, did not want to be with him, and wanted a divorce.

[192] She often used his laptop computer after January 20, 2015.

[193] January 25, 2015, the day after she met Martha, when she was missing, he went to the flea market to look for her, because it was the only place in Canada where she had previously gone.

[194] The complainant left his residence on January 29, 2015. He had told her to leave on January 28, 2015, because the lawyer he had consulted had advised him that she had to leave before she could be served with divorce papers.

[195] He had reported the matter to Officer Brown on January 28, 2015, tellling him that based on immigration fraud he wanted her out of his residence.

[196] The accused was contradicted by his own e-mail after denying first in cross-examination that he often went to the website of the Canadian Immigration Department or otherwise consulted the Canadian immigration authorities after marrying the complainant. That portion of the cross-examination is worthy of reproduction in full:

THE COURT: So, to be clear your position is that you did not know these two exceptions until you spoke with Mr. Sran on January7th?

A. That’s correct.

MR. LEVAN: Q. And you’re saying that after you were married to her and before she comes here, you didn’t peruse on a regular basis the Canada Immigration

website?

A. No, not on a regular basis, no.

Q. You didn’t do it often or frequently or anything like that?

A. Not frequently, not often either. Because my main goal was just to get the paperwork and that was it.

Q. And did you go to the offices of Canada Immigration here or in Peru with any....?

A. In – in Peru but not here.

Q. Not here?

A. Here – here I just had it delivered by courier.

Q. Did you call the offices here very often?

A. No.

Q. No. Did you call them at all?

A. No.

Q. Not here?

A. No.

Q. And I want to be clear, in terms of these contacting them, this is – the period of time that we’re talking about is from the point at which you’re married...

A. Mm-hmm.

Q. ...back in 2011 until she finally arrives here, you’re saying that there was no point during that time where you frequently went on the Canada Immigration

website?

A. No.

Q. Didn’t make calls to them?

A. No calls at all.

Q. Even about paperwork or anything like

that?

A. No, because I understood my paperwork, it

was very straight forward.

Q. It was very straight forward. So, you

didn’t need to check in with them?

A. That’s correct.

Q. Okay.

MR. LEVAN: Your Honour, Exhibit D, sub

exhibit 28.

THE COURT: How far in is it, Mr. Levan?

MR. LEVAN: It’s about two third of the

way...

MR. IRVING: Which exhibit is it?

MR. LEVAN: ...well, actually, half way

through. Twenty-eight.

THE COURT: There it is, yes.

MR. LEVAN: The date of this email, Your Honour, is May the 15th, 2012. I’m going to be showing the witness – I don’t need necessarily to show, I’ll just read it and provide the exhibit to the witness after.

MR. LEVAN: Q. But this is an email to S.D. from you, May the 15th.

MR. LEVAN: I’m quoting the last paragraph on that page, going into the next page, Your Honour. It was side barred already.

MR. LEVAN:

Q: Quote:

“I often visit, call and see the webpage with Canadian Immigration information. When I visit and call the immigration office, they always tell me visit the webpage for information if you need to prepare the papers for your wife. I see the webpage and it does not change things. All the papers you have now are the same as in the web page at the immigration office, but just the same I keep searching for information and asking people at the immigration office”.

MR. LEVAN: You can read it if you like, but

those are the words that are there.

A. Okay, go ahead.

Q. So, when you told us a minute ago that you didn’t often do these things in that period of time,you were wrong?

A. No, I didn’t – I didn’t do these things

often.

Q. In the first line of the....

A. No, I – I see it, I see it.

Q. Mr. T.A., again, please wait until I

finished my question. In the first line of what I just

read to you it says, “I often”, “I often”. That’s you, that’s your email, right?

A. That’s correct.

Q. That’s your language, that’s your choice of words and that’s not what you just told His Honour, is it?

A. Correct.

Q. In these often visits to the website,

you’re saying you never came across the section relating

to these two exceptions?

A. Honestly, no.

Q. And it’s only as of the 27th of January

that you’re aware of these things?

A. Of the exceptions? Yes,

[197] He was at the residence when Officer Brown spoke with the complainant but was not present for their discussion.

[198] He did not know of the exceptions for sexual assault and physical violence to the rule requiring that a person live two years with his or her spouse to maintain permanent resident status, until the lawyer he consulted told him on January 27, 2015. He believed that he told the complainant of those exceptions on January 28, 2015 before he went to the police. In the same conversation they discussed divorce, and she told him that Martha was going to take her into her home.

[199] She stormed out of his residence on January 29, 2015 and left her belongings. He had awakened at approximately 6:30 a.m. and she left at approximately 11:00 a.m. He saw her before she left. She was angry and yelling at him. She said that, if she lost her permanent resident status, she knew people from Peru who could damage him; and that after she left she would know where he was, but he would not know where she was. Their conversation took five to ten minutes.

[200] The threat involving the bad people was made after he told her about the two exceptions to the two year rule.

E. Exhibit 31

[201] It was admitted by the parties that the accused and his mother attended at the office of Mr. Baldwinder Sran, a lawyer, on January 27, 2015 to obtain advice regarding his matrimonial situation. Further, it was admitted that the accused told the lawyer that his wife wanted a divorce; that he had had no physical relationship with her since their arrival in Canada; and that she warned him that there should be no trouble with her permanent resident status or she would give him a hard time.

[202] It was further admitted that Mr. Sran told the accused that his wife was likely aware that under Canadian immigration law she must cohabit in a conjugal relationship with him for a period of two years in order to preserve her permanent resident status, unless he had abused her physically or sexually.

[203] It was also admitted that Mr. Sran advised the accused to seek the help of the police in evicting his wife from his condominium unit.

III. GOVERNING LEGAL PRINCIPLES

A. Credibility and Reliability

[204] In R. v. H.C., 2009 ONCA 56 at para. 41 Justice Watt for the Court distinguished between credibility and reliability:

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

[205] In chapter 27 of McWilliams’ Canadian Criminal Evidence 4^th ed. Edited by the Honourable S. Casey Hill and David Tanovich (Aurora, Ontario: Canada Law Book, 2009) there is a helpful discussion on the assessment of credibility and reliability on which I have drawn.

[206] In R. v. White, 1947 CanLII 1 (SCC), [1947] S.C.J. No. 10, Justice Estey discussed the assessment of both credibility and reliability:

The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law and, in so far as the language of Mr. Justice Beck may be so construed, it cannot be supported upon the authorities. Anglin J. (later Chief Justice) in speaking of credibility stated:

by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge and powers of observation, judgment and memory - in a word, the trustworthiness of their testimony, which may have depended very largely on their demeanour in the witness box and their manner in giving evidence. Reymond v. Township of Bosanquet [(1919) 1919 CanLII 11 (SCC), 59 Can. S.C.R. 452, at 460.].

The foregoing is a general statement and does not purport to be exhaustive. Eminent judges have from time to time indicated certain guides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biassed [sic], reticent and evasive. All these questions and others may be answered from the observation of the witness' general conduct and demeanour in determining the question of credibility.

[207] In R.v. M.G. (Ont.C.A.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 at paras 23 to 26 Justice Galligan for the Court described the importance of inconsistencies in the evidence in assessing credibility and reliability:

23 Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

24 The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the British Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1:

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.

In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.

25 That statement was adopted by Finlayson J.A. speaking for this court in R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 at 519-520.

26 The British Columbia case is different from this one. In it there were a number of inconsistencies while here there was one, but a very serious one. I do not think the principle is different whether there is one or several inconsistencies. What is important is the significance of the inconsistency. If the inconsistency is a significant one then the trial judge must pay careful attention to it when assessing the reliability of the witness's testimony.

[208] In R.v. S.H.P., 2003 NSCA 53, [2003] N.S.J. No. 171 (NSCA) Justice Saunders at paras. 28 to 30 put in context the use of demeanour in the assessment of a witness’s credibility:

28 What is somewhat troubling is the trial judge's persistent reference to the "demeanour" of witnesses as an indicator of their credibility. While demeanour is a legitimate marker in the assessment of the veracity and reliability of someone taking the stand, it is not the only measure and must, I respectfully suggest, always be approached with caution.

29 One is not judging character. The obligation is to ascertain the truthfulness and reliability of a person's testimony. Appearances alone may be very deceptive. A most reprehensible witness may well be telling the truth. A polished, well-mannered individual may prove to be a consummate liar.

30 Reasons of intelligence, upbringing, education, race, culture, social status and a host of other factors may adversely affect a witness's demeanour and yet may have little bearing on that person's truthfulness. Consequently, quite apart from that witness's appearance or mood, his or her testimony must be carefully considered for its consistency or inconsistency with all of the other evidence presented at trial before any decision can be made concerning its acceptance, in whole or in part, or the weight to be attached to it.

[209] In Baker-Warren v. Denault, [2009] N.S.J. No. 209 (N.S.S.C. Family Division) at paras. 18 to 20 Justice Forgeron detailed factors which are relevant to the assessment of credibility and reliability:

18 For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. It is important to note, however, that credibility assessment is not a science. It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:" R. v. Gagnon 2006 SCC 17, para. 20. I further note that "assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:" R. v. R.E.M. 2008 SCC 51, para. 49.

19 With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 2008 NSSC 283 (S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?

20 I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility: R v. Norman, (1993) 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have also adopted the following rule, succinctly paraphrased by Warner J. in Re: Novak Estate, supra, at para 37:

There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 at 93 and R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39, supra).

[210] In matters where credibility is in issue the Supreme Court of Canada and Ontario Court of Appeal have defined the principles regarding which a trial judge is to instruct himself or herself respecting the burden of proof. In R .v. B.D., 2011 ONCA 51, [2011] O.J. No. 198; 2011 ONCA 51 at paras. 102 to 114 Justice Blair for the Ontario Court of Appeal helpfully discussed those principles:

102 In R. v. W.(D.), Cory J. outlined what has now become the classic jury instruction with respect to reasonable doubt in cases. Although familiar, it bears repeating (at pp. 757-58);

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. ...

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 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. [Citations omitted.] [Emphasis in original.]

103 W.(D.) itself, and subsequent authorities, make it clear, however, that W.(D.) does not set out a slavish formula; what is important is that the jury understand the burden and standard of proof and their application. As Cory J. said in W.(D.), at p. 758 :

[T]he failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.

104 In R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, Cory J. reiterated this caveat, emphasizing, at p. 533 that the W.(D.) procedure was not meant to be followed "word for word as some magic incantation". As Abella J. said in R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7, "the key is whether the correct burden and standard of proof were applied, not what words were used in applying them." This principle has been repeated in other subsequent authorities: see, for example, R. v. Do (2003), 2003 CanLII 24750 (ON CA), 175 C.C.C. (3d) 176 (Ont. C.A.) and R. v. Edgar (2010), 2010 ONCA 529, 101 O.R. (3d) 161 (C.A.), at para. 85.

105 There is some uncertainty in the jurisprudence, however, about whether the W.(D.) requirement extends beyond cases where the accused testifies to those where the accused does not but there is other defence evidence called contradicting the Crown's case and/or conflicting evidence favourable to the defence in the Crown's case (for example, an exculpatory remark in a statement put in by the Crown), and the jury must make credibility findings in that context. This Court has not yet squarely decided that issue. For the reasons that follow, I am satisfied that the principles underlying W.(D.) do extend to such circumstances.

114 What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice. In that event, they must acquit.

[211] In R v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224 (ONCA) at para. 15 Justice Feldman for the majority of the Court clarified the manner in which the first two steps of the W.(D.) procedure are to be applied:

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

[212] In R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52 at para. 66 Chief Justice McLachlin provided guidance as to assessing the credibility and reliability of the accused’s evidence:

66 Finally, the trial judge's failure to explain why he rejected the accused's plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge's reasons made it clear that in general, where the complainant's evidence and the accused's evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused's denial. He gave reasons for accepting the complainant's evidence, finding her generally truthful and "a very credible witness", and concluding that her testimony on specific events was "not seriously challenged" (para. 68). It followed of necessity that he rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt.

B. Avoiding the Use of Myths and Stereotyping in Assessing the Credibility of Complainants in Prosecutions for Sexual Assault

[213] In R. v. A.R.J.D., 2017 ABCA 237 at paras. 42 to 64 Justices Paperny and Schutz discussed at length the need to avoid the use of myths and stereotyping in assessing the credibility of a complainant in a prosecution for sexual assault:

42 Second, it has long been recognized that there is "no inviolable rule on how people who are the victims of trauma like a sexual assault will behave": R v D(D) at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour "must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse" [emphasis in original]: R v D(D) at para 63.

43 The most serious problem with the trial judge's comparison-based assessment of the complainant's credibility stems from his impermissible reliance on a myth or stereotype (masquerading as logic and common sense) about how a sexual assault complainant, in general and in this case, is assumed or expected to behave post-sexual assault(s). Put plainly, the trial judge's reliance on his own "logic and common-sense" about how humans react following sexual assault, is itself highly questionable as to relevance and reliability. But it becomes particularly dangerous when reliance on that "logic" overshadows any resort to or assessment of the actual evidence at trial. The trial judge found reasonable doubt because this particular complainant did not exhibit expected predictive, avoidant behaviour. In our view, it is neither logical nor a matter of common sense to expect a child complainant to behave in any particular manner.

44 Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.

45 Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an "absence of evidence", the absence of evidence found here--no evidence of avoidance or change in behaviour--appears to be based solely on the trial judge's impermissible reliance on his own unmet expectation, rather than on a clearly articulated and full assessment of the complainant's police statement or trial testimony. In the result, the trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping, a point ably made by the Manitoba Court of Appeal in R v RGB, 2012 MBCA 5 at para 59, 287 CCC (3d) 396:

To sum up, because credibility findings are questions of fact, the Crown generally has no right to appeal from an acquittal on a ground that alleges an error with respect to such a finding. Similarly, the Crown cannot appeal a judge's conclusion that there exists a reasonable doubt, as that does not raise a question of law. Nevertheless, the credibility of a witness should be judged on the evidence before the judge, not on stereotypical assumptions. A judge would err in law if there is a sound basis to conclude, on appellate review, that a credibility finding was not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping. [Emphasis added]

46 We agree that an evaluation of the "actual evidence" in a given case is the proper means to assess whether the Crown has met its burden of proof beyond a reasonable doubt. Where however, that evidence and its relevance is not clearly identified by the trial judge, and the complainant's credibility is instead assessed solely in comparison to what the trial judge concludes would be "expected" post-sexual assault behaviour by a complainant, in our view that evaluation is fully rooted in reliance on impermissible reasoning based on myths and stereotypes.

49 As with most matters concerning sexual offences, this trial involved only two witnesses, the complainant and the accused. Credibility was the central issue before the trial judge.

50 The Supreme Court of Canada, and this Court, have held that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning that is often, if not always, an error of law. This Court recently said in R v ADG, 2015 ABCA 149 at para 33:

No inference should be drawn regarding a complainant's credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided "without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma": R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v D(D), 2000 SCC 43 at para 65, [2000] 2 SCR 275. It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. Findings of credibility should not be affected by the timing of disclosure alone - that is, affected by a comparison between a complainant's disclosure and the disclosure of a hypothetical 'objectively reasonable' victim.

51 R v ADG concerned the timing of disclosure of the allegations by a complainant. The doctrine of "recent complaint" has long been determined to be based upon an impermissible stereotype that victims are likely to disclose abuse immediately; no presumptive adverse inference may be drawn against a complainant who does not make such a disclosure immediately after being abused (section 275 of the Criminal Code). Similarly, corroboration is not required to prove sexual offences (section 274), evidence of sexual reputation of a complainant is not permitted (section 277), and there are extensive rules and protocols related to the disclosure and admissibility of evidence related to a complainant's sexual activity and medical/therapeutic records (sections 276-276.5, 278.1-278.91). Consent has also been strictly defined (sections 273.1 and 273.2); and the legislation makes clear that spouses may be charged with sexual offences against their husband or wife (section 278). All of these codifications are aimed at, inter alia, prohibiting impermissible judicial reasoning based on myths and stereotypes about sexual assault victims and their behaviours.

57 "Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assault for generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and would thereafter not associate with the perpetrator. In recent years many of the stereotypes . . . have been set aside": R v Caesar, 2015 NWTCA 4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216. To the extent that such stereotypes or myths are relied upon in assessing a complainant's credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327.

58 In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt--because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons. This record speaks to those reasons--the complainant resided in the home of the alleged perpetrator and in her words, it "changes everything . . . [w]hen people know". While it might appear logical to suggest that a victim of sexual assault will choose to run away or distance themselves from an assailant, relying on failure to do so, particularly when dealing with a child complainant, is simply incorrect.

60 "As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634": R v Mills, 1999 CanLII 637. The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning,

62 When, as in this case, the probative nature of the evidence is directly tied to inferences drawn from an expectation or assumption that a sexual assault complainant will predictably and reliably avoid her abuser, the legal rule against credibility assessments based on stereotypes is breached. As said by the Supreme Court of Canada more than 25 years ago, in R v Seaboyer, 1991 CanLII 76 (SCC), [1991] SCJ No 62 (QL) at para 91, [1991] 2 SCR 577: ". . . evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant's credibility or consent . . . [myths] have no place in a rational and just system of law". The same is true for a lack of evidence of avoidance, given that there is "no inviolable rule on how people who are the victims of trauma like a sexual assault will behave": R v D(D), at para 65.

63 R v TEM, 1996 ABCA 312 was issued shortly after the court's exposure to the then new "recent complainant" legislation. Since TEM, more stereotypes have been identified and eradicated, the present case being but one example of how deeply ingrained these myths and stereotypes can be. And, as set out in R v D(D) at paras 63 and 65, the law now is that an assumption or expectation about the post-abuse conduct of a victim, "standing alone, will never give rise to an adverse inference against the credibility of the complainant". …

64 Since there is "no inviolable rule on how people who are victims of trauma like a sexual assault will behave", especially children, a trial judge's perceived lack of avoidant behaviour or lack of change in behaviour, must never be used to draw an adverse inference about a complainant's credibility. It is impermissible to assess a complainant's credibility by looking at consistencies or inconsistencies grounded in a search for "expected" post-sexual assault behaviour. To interpret TEM's dicta as condoning the use of generalizations, stereotypes, myths or expectations about how victims of actual sexual assault ought to behave after victimization as being proper bases for assessing the credibility of a particular sexual assault complainant at trial, especially a child, is overbroad and does not reflect the law.

IV. ANALYSIS

A. Arguments of the Parties

[214] I will now set out the significant elements of the arguments of the parties.

[215] The Crown argues that the case is one to be resolved on the basis of findings of credibility resulting in a finding of guilt. Further, the Crown contends that a reasoned acceptance of the complainant’s evidence can provide a basis for rejection of the accused’s evidence provided that space is left for the raising of a reasonable doubt by the accused’s evidence.

[216] The Crown argues that the complainant’s evidence should be accepted. In addressing her credibility the Crown argues that incremental disclosure by her should not alone give rise to an adverse inference against her credibility. As long as she did not contradict her earlier position, adding new facts does not constitute an inconsistency.

[217] The Crown contends that in assessing her testimony, which was given through an interpreter, the court is not to examine the evidence microscopically for inconsistencies, but must give her the benefit of the doubt.

[218] The Crown addressed certain specific credibility issues regarding the complainant’s evidence. As to her not informing Officer Brown of the alleged sexually assaultive conduct by the accused when the officer interviewed her, the Crown says that she did not understand what he was saying to her, or did not trust him because of her husband’s having described Canadian police as racist and as very likely to believe him, a Canadian, over a Peruvian; she even had concerns that he might not be a real police officer, but rather someone sent by her husband to make her disappear.

[219] In this connection the Crown also contends that the officer’s evidence was weak, since he recollected only what was in his notes, and had not meaningfully conversed with the complainant. The Crown also argues that her not informing the officer of the assaults was inconsistent with the Defence contention that the complainant could speak English and had fabricated the assaults in an effort to maintain permanent resident status. The Crown argues why would she not use the interview with the officer to advance this scheme.

[220] The Crown further contends that common sense should tell me that the complainant was not familiar with Canada, and that circumstance should be borne in mind in assessing her evidence.

[221] Additionally, that the complainant’s evidence was reliable, credible, and consistent internally as well as with other evidence.

[222] Moreover, argues the Crown, while the complainant was combative with Defence Counsel, she simply reacted as one would have expected to the aggressive cross-examination in which she was repeatedly challenged as a liar.

[223] The Crown explains the relatively low level of detail in her testimony about the alleged assaults by asking that the traumatic nature of the events and the frailty of human memory be considered as accounting for this aspect of her evidence. The Crown argues that her acknowledgement of frailties in her recollections is a badge of the honesty of her testimony.

[224] The Crown further contends that Ms. Tapia was trying to be honest in her testimony, but could not correctly recollect the dates of events. The Crown argues that Ms. Tapia’s evidence supports the inference that the complainant informed her of the sexual assaults perpetrated on her by the accused before the complainant learned of the two exceptions to the requirement that she live with her husband for two years to maintain permanent residence status. The Crown explains in that regard that by Ms. Tapia’s account the complainant told her of the accused’s conduct before, according to his testimony, he told the complainant of the two exceptions.

[225] The Crown asserts that the testimony of the accused was incredible, unreliable, internally inconsistent, self-serving, and changing constantly.

[226] The Crown contends that the accused many times during cross-examination interrupted questions before they were completed so as to answer the question he wanted.

[227] The Crown asserts that the accused’s consulting with Mr. Sran, his lawyer, about his difficulties with his wife is evidence which is equally consistent with the accused’s covering up his criminal conduct as with his suffering from the scheme of the complainant alleged by the accused; and, accordingly, is probative of neither inference.

[228] The Defence argues that a finding of not guilty is warranted.

[229] The Defence argues that the complainant fabricated the allegations of sexual assault. These fabrications were part of her plan to induce the accused to bring her to Canada, leave him, and take advantage of the immigration rule permitting her to preserve her permanent resident status without living with him for 2 years if he committed sexual assault upon her.

[230] The Defence argues that I should not take into account the fact that she testified through an interpreter in assessing her credibility and reliability.

[231] In impeaching her credibility the Defence alleges a lack of detail in her testimony, the adding of facts to her story over time, and a combative, argumentative, evasive, overly-defensive and capricious manner throughout her cross-examination. The Defence argues that the Crown never asked her in re-examination whether her manner in cross-examination was a result of her experiences with the justice system in Peru; and that, therefore, I must assess her credibility without making allowances for her coming from a different society.

[232] The Defence contends that the law does not require the court to resolve inconsistencies in her testimony in her favour because she testified through an interpreter where there is no challenge to the performance of the interpreter. The Defence highlights that the situation at bar involves a witness other than the accused.

[233] The Defence argues that the accused testified in a forthright manner and was not argumentative in cross-examination. Further, he was not caught in any credibility traps that destroyed his credibility.

[234] The Defence contends that the accused’s consultation with his lawyer and the police about his wife’s conduct was more consistent with innocence than guilt; consultation with the police would only invite investigation. The Defence points to the fact that the Crown did not put to the accused in cross-examination that his consultation with his lawyer was for the purpose of covering up his criminal conduct.

[235] The Defence argues that Officer Brown’s evidence was significant; that he testified to being an experienced police officer who interviewed the complainant for forty minutes in her very broken English; and that according to his testimony she stated that she wanted a divorce, but did not complain of sexual assault.

[236] The Defence relies on the complainant’s acknowledging knowing basic English in exhibit 47, a Canadian immigration form.

B. Undisputed Facts

[237] It is undisputed that the accused and the complainant met through an agency which finds marriage partners for people; it was located in Lima, Peru.

[238] The accused and the complainant were married in Lima on November 11, 2011.

[239] In January of 2015 after the complainant had obtained the appropriate Canadian immigration approval, the accused attended in Peru where he met her and they travelled together to Canada. They arrived on January 18, 2015 at his apartment in Mississauga.

[240] She left the apartment permanently on January 29, 2015.

C. The Application of the W.(D.) Principles to the Case at Bar

[241] The case before me calls for the application of the W.(D.) principles. The complainant alleges that she was sexually assaulted repeatedly during the time she lived at the Mississauga unit. The accused denies that there was any sexual activity between him and the complainant during that time.

[242] In applying the first two steps in the W.(D.) process I am mindful that I must assess the evidence of the accused in the context of all of the evidence. For that reason I find it necessary to assess the credibility of the accused, and the credibility and reliability of other witnesses in applying the first two steps of the W.(D.) process.

[243] I turn now to that task. In carrying out this assessment I am mindful of the principles I have reviewed above concerning findings of credibility and reliability, the principles also reviewed above concerning the avoiding of stereotyping and the use of myths in assessing the credibility and reliability of a complainant in a sexual assault trial, and the arguments of the parties.

[244] The accused was straightforward in his evidence, and gave reasonable detail. He was not contentious or argumentative even when faced with a contradiction.

[245] I am prevented from accepting the accused’s evidence and acquitting on the application of the first step in the W.(D.) analysis, as a result of contradictions which arose during his cross-examination. One such contradiction is reproduced in a transcript excerpt above relating to the accused’s consulting Canadian immigration authorities. Another related to his denial of making marriage proposals by e-mail to the complainant; he was shown to have made two e-mail proposals.

[246] The Crown argued that the accused repeatedly interrupted questions in cross-examination before they were finished in order to answer the question he wanted. I accept that there were a number of interruptions of questions being put by Crown counsel. One is shown in the transcript excerpt above to which I just made reference. I do not, however, accept that the accused had the motive for the interruptions ascribed to him by the Crown.

[247] The complainant testified through Spanish interpreters. There was no attack made by either party on the quality of the interpretation provided. Moreover, my assessment of the credibility and reliability of the complainant’s testimony does not depend on matters of the nuance of meaning of any of her evidence. Therefore, I am not making any special allowance in my assessment for the fact that she testified through interpreters.

[248] The complainant was combative and argumentative during her cross-examination. I have noted specific examples of this conduct in my summary of her cross-examination. I have also reproduced above the transcript of an example of this conduct in which a summary of her prior testimony was put to her. There is no evidence before me that explains this conduct on the basis of her lack of familiarity with Canada’s court process. I do not see an explanation for it in comments her husband may have made to her regarding the attitudes of Canadian police officers; nor do I find an explanation in the attack on her credibility made in cross-examination.

[249] The complainant was evasive in many of her answers during cross-examination. A good example is the transcript reproduced above relating to when she first left the accused’s apartment.

[250] The complainant’s evidence lacked detail of the events concerning which she testified. I have shown this characteristic in her evidence in my summary of it above; one example related to the timing of the first alleged assault. There are many possible explanations for this lack of detail; I caution myself against an inference based on stereotyping or myths concerning victims of sexual assault. Nevertheless, the lack of detail weakens the evidentiary basis for a finding of guilt because of the absence of convincing evidence.

[251] I am also troubled by the fact that the complainant did not make any allegation of sexual assault to Officer Brown when he questioned her in private for forty minutes. I accept his evidence that she spoke only a low level of English, and responded to his questions by the use of “yes”, “no”, and shrugs. However, she made clear to him that she wanted a divorce, but did not mention allegations of sexual assault.

[252] I accept Officer Brown’s evidence that he would not have left the complainant in the accused’s residence, if he had believed as a result of his interview of her that she was in danger.

[253] These weaknesses I have identified in the complainant’s evidence all go to her credibility, with the possible exception of the lack of detail which may go to the reliability of her evidence, but not her credibility.

[254] In applying the second step in the W.(D.) analysis I have considered the accused’s evidence in the context of all the evidence at trial, and, in particular, the complainant’s testimony and that of Officer Brown. The evidence of the accused has raised a reasonable doubt; I, therefore, acquit him.

Bloom, J.

Released: March 7, 2018

COURT FILE NO.: CR-16-1669

DATE: 2017 03 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

• and –

T.A.

REASONS FOR JUDGMENT

Bloom, J.

Released: March 7, 2018