WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Mountjoy, for the Crown
- and -
A.H.
R. MacDonald for A.H.
HEARD: September 27, 28, 29, October 16, 17, 18, 19, 20, December 1, 2017
REASONS FOR JUDGMENT
Justice Joseph M. Fragomeni
The Indictment
1A.H. stands charged:
That he, within a period of 31 days, last past and ending on or about the 31st day of December 2014, at the City of Mississauga, in the Central West Region, did unlawfully in committing an assault on B.M. use a weapon, to wit: a chair, contrary to section 267 (a) of the Criminal Code of Canada;
That he, within a period of 31 days, last past and ending on or about the 31st day of December, 2014, at the City of Mississauga, in the Central West Region, did unlawfully commit a sexual assault on B.M., contrary to section 271 of the Criminal Code of Canada.
That he, within a period of 31 days, last past and ending on or about the 31st day of January, 2015, at the City of Mississauga, in the Central West Region, did unlawfully in committing an assault on B.M., use a weapon, to wit: a basket, contrary to section 267 (a) of the Criminal Code of Canada.
That he, within a period of 31 days, last past and ending on or about the 31st day of January, 2015, at the City of Mississauga, in the Central West Region, did unlawfully commit a sexual assault on B.M., contrary to section 271 of the Criminal Code of Canada.
That he, within a period of 28 days, last past and ending on or about the 28th day of February, 2015, at the City of Mississauga, in the Central West Region, did unlawfully commit a sexual assault on B.M. contrary to section 271 of the Criminal Code of Canada.
That he, within a period of 28 days, last past and ending on or about the 28th day of February, 2015, at the City of Mississauga, in the Central West Region, did unlawfully assault B.M. contrary to section 266 of the Criminal Code of Canada.
That he, within a period of 28 days, last past and ending on or about the 28th day of February, 2015,, at the City of Mississauga, in the Central West Region, did unlawfully in committing an assault on B.M. did use a weapon, to wit: a cell phone, contrary to section 267 (a) of the Criminal Code of Canada.
Overview
2A.H. and B.M. were married on September 19, 2014. They had met in 2009/2010 and according to B.M., they had become romantically involved almost eight to ten months before they were married. B.M. is now 30 years of age.
3Prior to their marriage the parties were living with their respective families.
4B.M. moved in with A.H. after the wedding reception on September 21, 2014. She moved in with A.H., his parents, his sister, and his niece.
5B.M. testified that soon after they were married, A.H. changed dramatically.
6As a result of the allegations which I will now review, B.M. left the matrimonial home the morning of February 27, 2015.
Trial Testimony of B.M. for each of the Seven Counts:
Count 1 - December 2014 – Assault with a Plastic Chair
7B.M. testified that this incident took place in December, before Christmas. She was not sure of the exact date. On this day, A.H. was talking to his mother in Punjabi. B.M. does not understand Punjabi. B.M. was watching T.V. on her phone. A.H. asked B.M. to engage in the conversation he was having with his mother. B.M. said to him, “I don’t understand what you guys are talking about.” B.M. asked A.H. to speak in Urdu or English so she could engage with them in the conversation. It was at this point that he took the plastic chair that was on the floor and threw it at her. It hit her forehead and the wall. She described it as a child’s plastic chair. At this point, A.H. called her a name and hit her with a plastic chair. This incident took place in the family room on the main floor.
8A.H.’s mother was present and witnessed the incident. His mother was sitting next to B.M. on another sofa.
9After he threw the chair at her he said, “Good. Now pay attention.”
10B.M. left the room and went upstairs to the bedroom she shared with A.H. Later, A.H. came up to their bedroom. They had no discussion about what had happened with the chair.
11With respect to injuries, she stated that her forehead was red but there was no bleeding.
12B.M. did not contact the police. She was very shocked at what happened and it was the first time he hit her with anything.
Count 2 - December 2014 Sexual Assault
13This incident occurred in December, shortly after the chair-throwing incident. It occurred before New Year’s Eve. On this night, A.H. forced himself on her while she was sleeping in their bedroom. This occurred on a weekday. She was wearing nightwear.
14B.M. testified that she was sleeping and she woke up when A.H. was on top of her. A.H. said nothing to her. When she realized he wanted to have sexual intercourse she told him, “A, I don’t want to do this. I – I’m not in the mood.”
15A.H. then forced himself on her. She described what happened as follows:
Q. So, you had indicated that you were wearing some sort of bottoms.
How did this forced intercourse come about if you were wearing clothing?
A. He, he pulled off – he pulled off my shorts and, and forced it.
Q. And did you at all try to prevent him from removing your clothing?
A. I couldn’t. He had my wrists locked.
Q. And do you know if he had your wrists locked with, with what part of – how did he have your wrists locked?
A. With his, with his hands.
Q. Okay. And so, if he had your wrists locked, do you know how he was able to remove your bottoms?
A. It happened too fast. He, he pulled down my shorts and as I resisted, he locked my wrist and pulled it down with his legs, like, my shorts completely off me with his legs.
Q. Do you know if he pulled your shorts off with one hand or two?
A. I’m sorry. I don’t remember that.
Q. And other than telling him you didn’t want to do this did you do or say anything else to let him know that you didn’t want to?
A. I said, I said I didn’t want him. I resisted at first, but then I had to give in.
Q. While he had your hands locked, do you know where in relation to your body, your hands were being locked?
A. To the side of my body.
16The forced intercourse lasted eight to ten minutes and A.H. ejaculated inside of her. He was not wearing a condom.
17B.M. was very shocked and she had no discussions with him that night about what happened.
18After this incident, B.M. left the room and went to the bathroom. She then returned to the bedroom. She explained returning to the bedroom as follows:
B.M.: Because at that time I was very, very shocked and I just went, out of habit, I just went back to the same bedroom.
19With respect to injuries, her private parts were sore for a few days but no medical attention was required. B.M. did not report this incident to the police. The following exchange is relevant on this point:
Q. Why would you continue to have a sexual relationship with A.?
A. I didn’t realize what had happened. We were married so it was – we were married, we continued to have sexual relationship. I didn’t realize that he’s forcing me for something. I, I was completely shocked.
Count 3 - January 2015 – Assault with a laundry basket
20This third incident took place sometime in January 2015 when he hit her with a laundry basket. On this occasion they were in the basement. A.H.’s mom and his sister were also in the basement. B.M. described this incident as follows:
A. So, his mom was helping [his sister] with packing because they were leaving the country soon. So, it started with me and him. His head was hurting and he wanted me to massage his head. So, he came and sat next to me. Then he didn’t feel like I had massaged him enough. So, he asked his mom. Then, his mom came and sat here, on the other sofa and then he was – she was massaging his head. So, that’s where – I don’t know if I may be able to explain myself, but that’s where A. was. That’s where his mom was and that’s where I was.
MS. MOUNTJOY: Q. So, you mentioned that you had been massaging his head, do you know how long you massaged his head for?
A. For more than ten minutes.
Q. Okay. And what happened after you stopped massaging his head?
A. He said it was still hurting and I wasn’t massaging the way he likes it.
Q. And so, what did he do then?
A. He, he called over his mom to show me how he’s used to being massaged and his mom demonstrated how to do it.
Q. And then once his mom was done demonstrating, what happened after that?
A. So – she, she – as she was demonstrating, like, when she finished massaging him, he, he, he said, “this is” – “this is how you do it”.
Q. Did you ever continue massaging his head?
A. I asked him, I would bring him Advil if it’s still hurting because people has been massaging his head. And, and then – and I was looking at the T.V. after and then next thing I knew, he threw the laundry basket at me.
Q. Do you recall if the laundry basket hit you?
A. Yes, it did.
Q. Okay. And where did it hit you?
A. It hit me, like, it hit me in the face.
21After this incident, B.M. went upstairs to their bedroom. She cried and then fell asleep.
22B.M. did not report this incident to the police. She explained this by saying she was married to him and was scared to tell anyone.
Count 4 - January 2015 Sexual Assault
23This incident of forced intercourse occurred in their bedroom in the middle of the night around 3:00 a.m. to 4:00 a.m. A.H. was on top of her and woke her up. He wanted to have sex and she said, “A., I don’t want to do this.”
24A.H. did not listen to her and had forced intercourse with her. After it was over she went to the bathroom and then returned to bed with A.H. B.M. stated:
“I came back to the bed out of habit. Where else – where would I go? People like, his parents would ask me, “Why are you guys not sleeping together?” out of shame and out of fear I came – I went back to the same room.”
25B.M. did not report this incident to the police. She continued to have sexual relations with A.H. on and off. She testified she was trying to work on the marriage, hoping he would change.
Count 5 - February 2015 Sexual Assault
26The next incident took place in February 2015. B.M. initially testified that this incident occurred before Valentine’s Day. It took place in the middle of the night in their bedroom while she was sleeping. B.M. recalled that it was a weekday because she had to work the next day.
27On this occasion she was woken up to find A.H. on top of her, fully erect with his penis close to her face. At one point his penis touched her, “around her mouth area.”
28She told him, “A., I don’t want to do this. I’m not in the mood.”
29A.H. became more aggressive and she eventually pushed him off on the side and he kicked her legs saying “what a bitch.”
30B.M. did not report this incident to the police. After this incident they were not having sex. B.M. continued with the marriage. She did not want a divorce. She was working on the marriage. She was hoping things would work out between them.
31B.M. was asked to explain the timing and circumstances of this incident further in her examination-in-chief and to do so with reference to certain text messages that were exchanged between the parties. It is informative to reproduce the exchange she had with the Crown in this area:
Q. So we left off yesterday talking about the February incident when you woke up and A. was on top of you with his private parts in your face.
A. Yes.
Q. You said yesterday that this happened, you think, before Valentine's Day. What makes you say before Valentine's Day?
A. Sorry, I don't, I can't, I can't remember if I said before, it was after, because it was before — just soon after I had left the marital house. So it was after the Valentine's Day.
Q. And do you know what this document is?
A. Looks like a copy of text messages.
Q. And do you know who would have sent that text message?
It's all — looks like white, so it would have been the sender, so....
THE COURT: I'm sorry, I can't, I can't hear, could you just speak up?
Yeah, so it's all white and it has my name, so it must have been me.
MS. MOUNTJOY: Q. And the message, there's a date midway through, February 11th, 2015, 10:19 a.m. and then a message following that.
A. Yeah.
Q. Okay. And the message reads, "Last night felt amazing, I wish we can do it like that more often." Do you know what you're referring to there?
A. I, I obviously complemented him and just to make sure our marriage survives so that definitely sounds like something I would have texted him. But in my response, he would never compliment me in any way, so that would have been — I can't remember exactly what happened that night, but I always consciously — like, I wanted to compliment or you know, let him know how I — you know, just to compliment so he — hoping in return he would compliment me too.
Q. And compliment him about what?
A. This particular incident is — definitely seems like, about the sexual activity we would have had the night before.
Q. And does this text message and the date just above it, does that assist you in determining or putting a reference when the incident where you woke up with him, with his private parts in your face? Do you know if that incident happened before or after this?
A. After this. After this text message.
THE COURT: All right. So I think we left off that the third incident was after this text message.
MS. MOUNTJOY: Yes, thank you.
20 Q. And I'm going to show you one more document. If you can take a look at that.
A. Okay.
Q. And do you know what this document is?
A. Looks like a screen shot of a text message.
25 Q. Sent by who?
A. The wording seems to be have sent by me because they are like, coloured, but I'm not sure, this image or whatever in that image.
Q. And the message portion of it, "Well then don't complain at night, I'd like to go for full 160 minute." Do you know what that's in reference to?
A. Yes, I do. As far as I can recall, he, he would — we wouldn't have — it was majority of our sexual activities were when he's done, it's over. So this is in that reference where I said, we need more time. So you know, it's pleasurable for me as well.
Q. And the date, just before the image, it says February 13th, 2015, 1:05 p.m., would that message in reference to the full 160 minutes, is that before or after that time stamp?
A. It's not clear and I'm sorry, I don't remember the timing of these text messages, like, with the, with what I see, I just see a picture with a date. I don't see when that message was sent.
Q. And in relation to the third incident that we've been talking about, where you woke up with him in your face, do you know if this message would have been sent before or after that incident?
A. Before. Before.
Count 6 - February 2015 Assault
32The sixth incident B.M. testified about also occurred in February 2015. This alleged assault took place on a Sunday. B.M. had made A.H. an English breakfast of an omelet and toast. When A.H. came down for breakfast, he criticized her for not making him a traditional breakfast and told her that she is not “worthy of a wife”. He then punched her with his fist and asked her to make him a traditional breakfast.
33This incident took place in the family room. They were sitting on the same sofa. He punched her left arm with his right fist. He had been sitting on her right side. B.M. stated she sustained a very big bruise as a result of this punch.
34B.M. testified that she was in pain and very shocked because “they woke up just fine…”
35B.M. did not go to the police as a result of this incident. She explained it this way:
Because at that time it was hurting and it hadn’t had bruised so in my – I was emotionally very – I was not in the mindset to ask for help or go – like go to people and tell what had happened. I was trying to work on the marriage. I really wanted this marriage to work.
Count 7 - February 2015 Assault with a Weapon Cell Phone
36The last incident B.M. testified about occurred soon after the punch to the arm incident. It was a Thursday night. A.H. refused to listen to her and did not allow her to say anything. He kept yelling at her and threw a stack of flyers at her. In his rage he said, “You think I’m scared of the cops? Here’s the phone.” A.H. threw his cell phone at her saying, “You think I’m scared of the cops, call the cops.”
37The cell phone hit her in the chest. He then pushed her to the floor while yelling at her.
38B.M. was scared and ran upstairs to her bedroom. She emailed her boss that she would not go into work the next morning. The next morning, February 27, 2015, she left the matrimonial home and went to her parent’s home to live with them.
39After this date she did attend to see her doctor, Dr. Saima Sajid. B.M. wanted to see if she was pregnant. A couple of weeks later, she decided to consult a divorce lawyer and file for divorce. She decided she did not want to continue with the marriage. She was afraid to go back to A.H. and the bruise to her arm constantly reminded her of what the marriage had become.
40B.M. testified that after she left the matrimonial home, A.H. kept calling her, texting her and messaging her on WhatsApp. Exhibit 4 is the WhatsApp Chat History between A.H. and B.M. At page 20 of this chat history A.H. states:
2015/03/18 5:59:13
A. “I apologize for everything.”
41B.M. interpreted this message as an apology for the conduct she testified about on each of the counts on the indictment, that is everything from hitting her, threatening her, and being sexually violent with her.
42At page 3 of the chat history, A.H. states, “I told you I ….. the mistakes I made and it will never be repeated.”
43At page 32 he writes:
I’m stupid… I messed but I’m yours, or I am yours… I swear I know the mistakes I I made and I’ll never put us in that situation… I want to live with you on top of the world… Even if you don’t love me as much…. I know you love me. I will make you fall in love with me. But you need to give me a second chance.
44B.M. testified that the only person she disclosed the assaults and sexual assault to was a co-worker, M.I.
45B.M. testified that she first told the police about these allegations on April 13, 2015, when she gave them a videotaped KGB 1993 116 (SCC), [1993] 1 S.C.R. 740 statement.
Cross-examination
46In cross-examination by counsel for A.H., B.M. acknowledged or confirmed the following:
Other than the allegations she described that took place in December, 2014; January 2015; and February 2015, there were no other times when A.H. asked her for something sexual or tried to make a sexual advance and she said no.
B.M. told M.I. about the forced intercourse in December, 2014, i.e., the same month that the first incident of forced sex happened.
With respect to the February 2015 Valentine’s Day timeline and when the forced sex occurred the following exchange took place:
Q. So that's your first Valentine's together as a married couple, correct?
A. Yes.
Q. And as a result, it's probably a pretty big deal to you, fair enough?
A. Yes.
Q. And you said yesterday — well, first of all, do you remember the very first question that my friend asked you this morning when you got to court? Do you remember the very first question? And if you don't, you don't, but I'm going to suggest to you the very first thing, when you sat down today, the very first question my friend said to you was whether or not this sexual, this — the — one of the incidents of forced sex, whether it was before or after Valentine's Day. Do you remember that being my friend's first question?
A. That was one of the questions, yes.
Q. It wasn't one of them though, it was the first question.
A. I'm sorry, I don't remember if that was the first question, but I do remember her asking.
Q. Okay. And I'm going to suggest to you that you said to us yesterday very clearly that when it came to that incident of forced sex, that you said it was before Valentine's Day, it was before — it would have been before Valentine's Day. You said that to my friend yesterday.
A. I was very nervous, I — in my head I meant to say — 'cause it was closer to the date I had left, left the house.
Q. Right.
A. Until now she pointed out this morning, I had not realized that I had said before Valentine's Day.
Q. It was not until she asked you in court this morning?
A. Correct.
Q. Well, I'm going to suggest to you that that's — that you actually had an opportunity to review some of these text messages, they've been entered as Exhibits. I can put them in front of you again if you like, but these are the text messages from February 11th and February 13th. The one on the 11th is the one about last night felt amazing, and the one on the February 13th is I want to go — something about wanting to go for 160 minutes. Do you see those text messages?
A. I just saw them this morning, yes.
Q. And when you saw them this morning in court, is that the very first time you ever saw them?
A. Well, he, he — it was a conversation between me and him, so as printed on paper I seen it this morning.
Q. But you had an opportunity to meet with the Crown attorney before court this morning?
A. She — no, not this morning. I was waiting and I was just waiting in the room.
Q. And what about last night after you left, when you finished in court, did you have an opportunity to meet the Crown attorney then?
A. She just mentioned to meet me here in the morning and I left.
Q. Okay. But did you discuss these text messages before ever with the Crown attorney or the police before coming to court today?
A. Today? No.
Q. So the very first time you saw these text messages or even knew about them was when they were shown to you in court today?
A. She — before I started to, started testifying, the Crown had mentioned that there are some text messages.
Q. Right.
A. And there was a book and then she says she was preparing me this, you know, you're going to start testing, witnessing now. So I did not see these text messages today. I was just waiting outside.
Q. But when you had this book of text messages, that was in your preparations, right?
A. This — I just saw them yesterday.
Q. Right.
A. Correct.
Q. You saw them yesterday.
A. Yes.
Q. And so when you were actually talking about them in court today, that wasn't the first time you'd seen them, correct? You saw them
yesterday?
A. Yes.
Q. And when you saw them yesterday, you would have seen that it wouldn't make sense for your evidence to be that this forced sexual incident happened before Valentine's Day when there's text messages like that on the 13th of February, correct?
A. I was very nervous. I didn't pay attention to all the text messages the Crown was mentioning 'cause there, there was like a book.
Q. But I'm going to suggest to you that the reason why that was the first question and the first answer today was because you had an opportunity to review those texts in advance, and you recognized it made no sense, this allegation that you were forced into sex before Valentine's day, when you're writing suggestive sexual messages on February 13th, correct?
A. I saw these messages at a glance before starting the testimony, and this morning I — she brought it up to me when I was in the courtroom.
After the marriage from December 2014 into February 2015, they would argue. The frequency of the arguments got worse. He kept bringing up issues such as gold jewellery, finances, cooking, and how she dressed.
When asked why it took her so long to realize that these assaults or sexual assaults happening she stated:
Because I was – he had made me believe that this was normal I, I was so confused, I didn’t realize what was happened.
- With respect to the first incident, B.M. confirmed that only A.H.’s mother was present to witness what happened. The fight was over the fact that he wanted her to pay attention and listen to him. She told him, “I can’t understand what you guys are talking about.” A.H. and his mother were talking in Punjabi.
B.M.’s KGB statement to the police was made on April 13, 2015. In her KGB statement, she described the reason for the argument and A.H. throwing the chair differently. She told the police the following:
Well, he started, he started abusing me, verbally, like, he’s cussing at me, swearing at me and threatening he will leave me soon after we got married and then, and then in back in December because there is this child in this space, right, so there’s a there’s a – there’s a plastic chair and he said get me water, and I said, I’ll not right now, like I was watching TV or something and he threw the chair at me and his mom said that was the first incident.
In cross-examination at trial she explained herself this way:
Q. And it seems to me that when you gave this statement to the police, you gave them an entirely different reason for why the fight started. You said, and I said — sorry,
There was a plastic chair and he said, get me water, and I said I'll not right now, like, I was watching TV or something, and he threw the chair at me and his mom said that was the first incident.
So, what I'm suggesting to you is that you've told the Court today that the reason — I asked you to describe how the fight started, why the fight started, you said that you weren't understanding Punjabi, he wanted you to pay attention and then he threw the chair at you. But when you're giving that description to the police, you told them that this was over you not getting him a glass of water.
A. I don't recall. This was fairly recent when I had left the marriage. Today I recall him asking me to pay attention, and that's what I said.
However, later in her KGB statement she does say to the police that he threw the chair “to grab my attention to listen to what the mom was saying because they were talking Punjabi that I don’t understand.”
B.M. recalled a couple of nights where she slept in another room in the house apart from A.H. due to some fighting. However, on each of the occasions relating to the charges before the court, that is, the chair throw, the laundry basket throw, and each of the allegations of forced sex, she slept in the same bed with A.H.
After the chair incident, A.H.’s mother reprimanded him. B.M. understood his mom because she was reprimanding him in Urdu. B.M. confirmed that A.H.’s household language with his mom is Punjabi. B.M. testified that she did not remember if she heard any of it yet somehow she knows it was in Urdu. B.M. testified that his mother always spoke to her in Urdu.
With respect to the laundry basket incident, after he threw it she went up to their bedroom. He came to the bedroom and blamed her. He said because of her his parents talk to him that way. At her preliminary inquiry, she could not remember having a discussion with him in the bedroom that night. After further cross-examination on this point, she indicated she could not remember having a discussion with him.
At page 37 of the WhatsApp messages, she wrote to A.H. as follows:
April 6 at 9:11:26 “Maybe you should let the world know too that you’re a married man.”
B.M. explained why she said this. It was because “since March to April he did apologize many times that he was sorry for his mistakes and that I should return back to him and I was, I was thinking what to do with the marriage, should I go back, would I be safe to go back and then he said sorry, then his tones of the messages will change again, so I was in between that decision making time.”
She had consulted a divorce lawyer in March and yet in April, she is telling A.H. that maybe he should tell the world he’s a married man.
- B.M. acknowledged sending A.H. the following text on December 30, 2014 at 10:10 a.m. from work:
You don’t have to reply. But I have to say this to you coz its upsetting me… the comment you made last night you know what I’m talking about it was not something you should have said… please keep respectful limits between us.
A.H. would normally criticize her physical body and he was not happy that she was tall. He never complimented her. As such, the comment referred to in the text could be any comment. Throughout the marriage he cursed her and called her a whore and a bitch.
This December 30, 2014 text is her calling him out. She was not afraid to call him out when he did something that upset her in this instance, and she did this by way of a text message.
B.M. acknowledged that the majority of the text messages filed as Exhibits were from her to A.H. She also acknowledged that nowhere in pages 168 to 282 of the texts was there any discussion by either of them relating to sexual or physical assaults. B.M. admitted that she never confronted him about those incidents over text messages. She did confront him about the assaults and sexual assaults verbally. Text messages were not their only manner of communication.
With respect to the incident relating to the attempted forced fellatio, B.M. testified it took place in February after Valentine’s Day on a weekday. On Valentine’s Day they did not have sex. A.H. was very, very mad that day. They had arguments that day. They had been sexually active up to Valentine’s Day.
At trial she stated he was on top of her and his penis just touched her mouth. In her police statement she stated he put his penis in her mouth. At trial she testified that he never did put his penis in her mouth.
B.M. indicated to the police in her KGB statement that up to the incident of the attempted fellatio, she and A.H. had not had sex for the two weeks prior. However, she had sent a text to A.H. dated February 11, 2015 which said:
Last night felt amazing… I wish we can do it like that more often…
B.M. agreed with the defence suggestion that if the punch incident was on Sunday February 22 and the attempted forced fellatio was on a weekday prior to February 22, there really was not a two week sexual hiatus leading up to the date of the attempted forced fellatio. The February 11 text confirmed that, in fact, they had sexual interaction on February 10.
- B.M. stated they did not have sex on Valentine's Day and that A.H. told her “you don’t deserve a good Valentine's Day.” She could not recall having sex with him after Valentine's Day. B.M. would not accept the defence position regarding her sending a text message to him on February 18. The following exchange is relevant on this point:
Q. Right. I'm - I'm going to suggest to you, ma'am, that it was the 18th and that when you say "On the menu tonight", with a smiling monkey face, that's because you were suggesting on the 18th that you engage in consensual sexual activity with your husband.
A. I did not.
Q. You did not, what?
A. I did not engage in any sexual activity with him and I don't know if this text message is - when is it from.
Q. Well, I'm going to suggest to you that it was on the 18th and contrary to what you told the police that there was this two week period where you didn't have any sex, that in fact, you were engaging in consensual sex on the 18th, and in fact, you were the one suggesting it, "On the menu tonight", with a smiling monkey.
A. I did send him some sexual positions, because he was not happy with my body. So - and he didn't think I - he - according to him, I wasn't pleasing him enough, so I - yes, there were some sexual content exchanged between us. He sent me some and I sent him some. But with what I see on page 268 there is no way that I can recall having this kind of conversation on - that close to February 18th. So I'm not going to accept this is from February 18th.
Q. Okay. We're going to come back to this after the break, but what I'm going to suggest to, ma’am, is that this, if it did happen on the 18th, completely detracts from your version of events that you didn't want to be around him, that you didn't - that you weren't attracted to him, and you didn't want to - and you had a two-week period of no sexual contact. If this was on the 18th that would certainly detract from your version of events, correct?
A. It's not that I was not attracted to him, we were married and he - we - we were having - we were married and I did love him at that point. This message is not clear when it is from, but for sure the last time - third time he had forced himself upon me, there - we didn't have sex consensually.
After further cross-examination on the February 18 text, B.M. finally acknowledged it was possible the text was sent by her on February 18, 2015.
Q. I’m just confirming that – that you were clearly sending him sexual imagery on February the 18th and you were saying to him, “On the menu tonight.” My question for you is, that was you implying to him that you would engage in those sexual acts that night, isn’t that true?
A. The intentions, yes, because I was working on my marriage throughout the course when I was living with him.
B.M. maintained, however, that they did not have sex that night, February 18, which was a Wednesday.
- On February 14, Valentine's Day, she and A.H. went to a restaurant and then to her parent’s house to watch a cricket match. The photos of B.M. and A.H. at her parents’ depict them posing close together smiling. She sent him those photos from her phone. They are smiling and wearing the jerseys of Pakistan’s cricket team. B.M. explained Valentine’s Day further:
MR. MacDONALD: Q. So I guess - what I'm going to suggest to you defies common sense is the fact that your - your - according to you, your husband was just a - a tyrant all day. He was a - he was cussing you, verbally abusive, angry about the socks and the chocolates. Why would someone so angry, A) send you these photos of his niece and the - a lovely breakfast in the middle of this day of anger, and B) go to your parent's house that night and pose with you on the couch wearing Pakistani cricket shirts? Why would someone so angry and mean and abusive do that in the middle of Valentine's Day?
A. That picture, what we have seen - what I've seen is - is - yes, the picture for breakfast. I don't recall that being the - the Valentine's Day breakfast. It could be, it could not be. And the pictures that you showed me from my parent's place, yes, we - we are posing as a couple because my I did not want to tell my parents what was going on. So we I had to - I had to smile. Like, I - like, I had to pose and portray a picture that there's nothing wrong.
B.M. denied the suggestion that in the month of March, 2015, A.H. attended at her father’s house, with her present, to discuss the dispute over gold and that A.H. brought over a bag of gold.
B.M. left the matrimonial home on February 27. She returned in the evening to pick up her passport only.
B.M. saw her doctor on March 3. As of that date, she had not yet seen her divorce lawyer.
Exhibit 10 is the Divorce Application. At para. 3 it notes: “the physical assault began in October 2014 and escalated from that point onwards… and became more frequent when the respondent’s parents, who were living with the parties in the matrimonial home, left the country on February 10, 2014.”
At para. 4 it states:
“During the marriage, the respondent would force the applicant to have intercourse. When she would refuse, he would assault her. This occurred approximately five times throughout the course of the marriage.”
B.M. acknowledged, however, that in her trial testimony she stated the first time he ever assaulted her was in December with the chair throwing incident.
The court document is dated April 10, 2015. Her KGB statement is dated April 13, 2015, three days later.
B.M. explained the difference by stating that something must have happened in October because “every day was walking on egg shells.”
B.M. testified that even though she had never once denied him sex when he requested it, on the three occasions she described to the court she did in fact say no to him.
B.M. stated that the reason she did not tell her brother, father, or cousin about the physical and sexual assaults was out of respect and the shame associated with what happened.
B.M. denied the suggestion that on March 23, A.H. came to her father’s house and brought all the gold that was in his locker and that she was present with them for a two-hour conversation. She testified that never happened.
The reason she went to court to get a restraining order on April 10, 2015 was because she saw an Instagram photo of A.H. at a shooting range (and his friend owned a gun). He also had messaged her to come back to him as he had made plans for them for the weekend. She was scared and did not feel safe.
B.M. testified that she left the matrimonial home the morning of February 27. She initially stated she returned that evening to retrieve only her passport. Then she stated she also retrieved her birth control pills. She never talked to A.H. that morning – she just woke up and left the home. In her Affidavit sworn April 10, she stated, “When the respondent threw me out of the matrimonial home I did not have a chance to retrieve any of my belongings, including my clothes and valuables.”
B.M. acknowledges this inconsistency. She explains it by stating that her application for a restraining order was urgent and her lawyer was preparing it quickly and she really did not read her Affidavit carefully. She left the affidavit to her lawyer to draft properly.
- B.M. stated that she does not recall ever cutting her name short on Facebook:
Q. Are you — this isn’t the first time that I’ve shown you things that you initially tried to say, oh, that wasn’t me or I don’t think that was me, that was impossible, and then later you sort of accepted it was you. Isn’t this just yet another example, Ma’am, of a time where you tried to deny that this was you and now you’ve had to basically admit that it was you?
A. No, because all these text messages that you’ve shown me I haven’t seen them in years.
Q. Right. But you’re coming around to the notion that sure enough, that was your photo and that was you writing those messages to your husband, aren’t you?
A. But I, I never said this was not my picture. I just am saying my — well, I don’t know what to say ‘cause I never, I don’t recall cutting my name short. Is this my picture? Yes, it is my picture. Are these my Facebook messages? Maybe. I don’t recall them, but this is the kind of information we shared on social media.
- On April 8 at 12:39 A.H. writes to B.M. on WhatsApp the following message:
Q. So I’m going to draw your attention to the WhatsApp chat on April the 8th, 2015, at 12:39. He writes:
So how does this sound to you? You took all the valuable stuff, watches, colognes, clothes, camera, even the gold which you asked me to put in the locker and made me drop it off to you. All that never meant anything to me, only if you knew. If it did I wouldn’t bring the gold to your place. You don’t message me. Your family never called to see even if I’m alive.
B.M. acknowledges receiving it but never responded to it to deny his accusations regarding her taking those items.
- B.M. acknowledged that on February 22, she and A.H. attended a wedding together. At one point A.H. texts her and says, “We’re going to leave at 6:30.” B.M. responds, “Why did you leave me? I’m sitting here alone. Come back, come back, A. why would you leave me here alone?”
B.M. testified that she did not know anyone at the wedding and she was sitting there alone, so she asked A.H. to come and sit with her.
- Counsel took B.M. through the Amicable Correspondence Chart, an aide memoire prepared by A.H. It sets out the various contacts the parties had throughout the relevant time period for the months of December 2014 to February 2015. B.M. indicated that she did not recall a time when they stopped talking or texting each other. They were living together and she never said they stopped talking for days. In her KGB statement, she stated that after the chair throw they did not talk for a week. The following exchange is relevant regarding the December contacts:
THE COURT: Okay. I think those ones would be with file, preliminary hearing transcripts.
MR. MACDONALD: Q. Let me impress — I’ll just move on. Ma’am, I’ll show you a copy of the transcript from the preliminary hearing, this is from April the 6th, if you can please turn to page 24, and you’re asked this question on page 24 at line 11, and — sorry, Your Honour, these are the copies I have provided the Court with.
THE COURT: Yes.
MR. MACDONALD: Q. “Okay. So, this forced intercourse incident, you’re saying that several days after the chair throwing incident”, your answer was “yes”, “So this is also in December?” you say, “correct”. “Do you happen to know, like, the week, like mid to late December?”, and your answer is, “it was well before the Christmas because he was very sick during that time, so mid December I would say”. And you were asked, “where did this incident happen?” “In the bedroom. It was late at night”. And you’re — so, you’re talking about two incidents. The chair throwing incident happening in the middle of December, and the sexual assault happening in the middle of December. But, again, if you look back at this amicable correspondence chart, you see that, basically, on December 12th, you’re saying, “guess what? Movies tonight :-) finally”. December 13th, “There are 15 of us, I don’t want to go out without you”, couples’ dinner you had organized. On December 13th you also send him a photo of your friend that’s at 26-29, the 14th you sent a sexual joke, the 15th, you’re saying getting waxing done behind the house. December 19th, you’re sending pictures of sexual positions. December 20th, you’re saying I don’t want pictures, I want you in bed. That’s on December 20th. And really, if you look at this chart, there’s basically amicable correspondence from you to him every day or every other day throughout that timeframe. So, my question is if that’s the case, why would you be writing him these jokes, these sexual positions, telling him you’re getting waxing done, all these things in the days, like, immediately after you were assaulted or sexually assaulted?
A. These are every day or regular conversations when we had — we lived together, we had face to face — we had face to face conversations as well, and I have always said throughout the marriage I was working on the marriage, and December, yes, there is conversations, because we were talking. I never wanted to break off the marriage, instead I always — I always was trying to find a solution, so, you calling me the days that I was out with my friends, yes, because, you know, I had not seen them after we got married, and everybody wanted to come together, so this was not the dinner that I had organized, but everybody wanted to come together, so that’s was that day and this is just general conversation that occurred between me and him in December.
After the forced intercourse in December they did continue to talk but not about the incident. The next day he acted like nothing ever happened. The discussion they had was just basic home conversations among other family members.
With respect to the month of January, she wrote something friendly, flirtatious or nice on each day except for January 24, 25 and 31. The laundry basket incident happened on a Friday soon after New Year’s.
The reason she continued to send him sexy messages and jokes and being flirtatious by text was because she was trying to work on the marriage. She was trying to make things better. At this same time she was reaching out for counseling provided through her employment.
Despite the allegations of the laundry basket incident and the forced sexual intercourse, she continued to send sexual, flirtatious and friendly messages throughout the month of January 2015. Again she explained this by stating she was always working on the marriage and she was always respectful to him. They lived together and these were just text messages between them.
- With respect to her taking birth control pills, A.H. encouraged her to take birth control. Because of the stress in their relationship she had acne on her face and the pills helped with that as well as preventing a pregnancy. They had an agreement that she would be on birth control pills. In her police statement she stated:
…he’s like the only solution to our marriage is to have a kid and I was like that’s not right, you, the problems we are having, the kids not going to resolve that.
And that’s why he forced himself a few nights before. To make sure we ended up having a kid.
At trial B.M. stated that soon after they were married, she was not on birth control. A.H. was forcing himself on her because he wanted a kid. At that time she was taking Plan B. In October, she was breaking out with acne and that is when she started taking birth control pills.
The defence pointed out to B.M. that there was an inconsistency between A.H.’s encouragement for her taking birth control and him forcing himself on her so she could get pregnant. She explained this inconsistency by stating that at first he wanted to have a child, and then he wanted her to take birth control to fix her acne. When her acne was better, she should stop taking birth control so they could have a child again.
At this time, B.M. was taking Accutane as well as birth control. The dermatologist recommended Accutane as her acne was getting worse. One of the side effects of taking Accutane is that if she ever did get pregnant, the child would be born with massive birth defects. A.H. wanted her to stop taking both Accutane and birth control.
- Although she had initially told the Officer in her statement that A.H. forced himself on her so they could have a kid, she later tells the Officer that in December, the first time he forced intercourse on her, she was in fact already taking birth control pills. A.H. was well aware of the fact that by December she was on birth control.
This confusion is illustrated in the following exchange with the Officer during her KGB statement, as demonstrated by the defence in cross-examination:
Q. Let’s just continue on the same page, on 61. The officer, again, continues to seem confused. So, he says, Samuel says, “okay, so the first time he forced himself on you, you were already on birth control?” Answer: “Yes”. “And he didn’t ejaculate into you, because you were—" Answer: “He knew I didn’t want — we can’t have a baby”. Officer: “Okay, so why not?” Your answer: “Why do it?” Officer: “So, why not ejaculate in you if he knows you can’t get pregnant because you’re on the pill?” Your answer: “That’s his control, that’s not mine”. There’s that page, and then where you’re saying he knew you were on the pill, he knew that you couldn’t get pregnant, and then if you just go back in the same police interview, this is I’m sure this is what lead to the officer’s confusion, where, on page 28, if you’ll turn to 28, you say the whole reason he forced himself on you — let’s get back to it — that this is at the bottom of 28, “and he’s like that’s what his parents kept enforcing, you need to have a child. And I’m like no, like, this — this cannot happen to me. If I do not want to have a kid, we cannot have a kid. And that’s why he forced himself on me a few nights before, to ensure that we have a kid”. So, you’re basically telling the officer that he raped you to impregnate you, but in the same interview, hence the officer’s clear bewilderment, you’re telling the officer he knew you were on the pill, and right in the first time he ever forced himself on you, he knew you were on the pill, he knew you couldn’t get pregnant.
- B.M. confirmed that the first time she ever reported any physical abuse to her doctor was on March 3, 2105. B.M. also acknowledged that she had attended at a doctor’s office on numerous occasions between December 1, 2014 and February 27, 2015. She denied the suggestion that her March 3 attendance with the doctor was only for the purpose of planning her divorce. Divorce was not on her mind at that time. However, she also acknowledged that she told the Officer the following in her KGB statement:
SAMUEL: And what day did you go see the doctor?
B.M. After I came to my parents’ place. Um, a Tuesday after I came back to my parents’ place. I do -, March 2nd or 3rd. I have the doctor’s report it says, uh, exactly.
SAMUEL: And where is it?
B.M. It’s with me right now.
SAMUEL: Can I see it?
B.M. Sure. Its, um -, everything is in the, is in the court paperwork so I just have to find it. This is the, uh-well, these are the notes when I saw the doctor and then I asked him to give me a letter so I can put it in my divorce file.
She maintained her position at trial that her intention to go to the doctor had nothing to do with her divorce.
- The March 11, 2015 letter from her doctor states in part, “I am writing this on B.’s request to support whatever legal purpose this may serve.” B.M. maintained again she only went to the doctor to get a pap test done.
She later asked for a letter for her divorce file. However, when she saw the doctor, the doctor saw the bruise and told her she should go for partner counselling and if she wanted a letter she would give it to her for whatever purpose. B.M. again maintained however, as of March 3, she had no legal purpose in mind, especially not a divorce.
The reason B.M. only reached out to M.I. is because she was a co-worker and she saw her every day. They worked on projects together.
B.M. initially testified that she did not visit her parents during the relevant time period. However she then acknowledged the numerous times she did visit her parents:
Q. There’s too many, for me, to go through all of them, but let’s go to 214, though. Going to gym or coming home? I’m eating at momma, poppa. Momma made her yani (?) :-)” Do you see that?
A. 214?
Q. 214.
A. Yes.
Q. So, I’m go — just for references, there’s 211, 226, 236, 240, 247, 248.I could keep going through all of these examples, but what is clear is that there’s the image that you’re trying to project to the Court; whether it be we had a terrible relationship, I was walking on eggshells. And thank goodness that A.H. has all these text messages which show complete opposite, that you had a loving, very sexual relationship. You would also have this court believe that you never saw your parents. There’s dozens and dozens of examples of you hanging out with your parents by yourself. How do you explain that?
A. So, unfortunately, I don’t have the text messages to give the full history of text messages. All of these times where you point out that I was at my parents’ place, yes, because my parents would invite both of us to come and have spend some time with them, but he would normally never go, so I would go for 15-20 minutes, and my mom would have the meal ready just so I could eat with them. As a parents, that’s just what they did, because they knew I was losing so much weight, and there was something wrong, but I had — despite of them trying to respectfully ask them what was wrong, I never shared anything with them.
Re-examination by the Crown
- B.M. confirmed that divorce is frowned upon in her culture. She also stated that testifying in court is a bigger sin in her community than actually getting a divorce. B.M. stated that by March 11, 2015, the date of the doctor’s letter, she had not yet consulted a lawyer.
Doctor Saima Sajid
47Dr. Sajid is B.M.’s family physician. She has been working at the Glenn Huron Clinic in Mississauga for the past five years. She also works at the Postmasters Medical Centre at the walk-in clinic once per week. She has been a doctor for 15 years.
48B.M. was Dr. Sajid’s patient in March 2015. She saw B.M. on March 3, 2015. The notes of this visit were electronically recorded. B.M. was upset and crying. She was upset about her marriage. It was abusive. Exhibit 26 consists of the medical notes made during this visit. Dr. Sajid recorded what B.M. told her and also made notes of her impressions.
49During the visit B.M. looked very upset, she was tearful and crying a lot almost throughout the whole visit. Dr. Sajid observed a bruise on her left arm.
50The March 11, 2015 letter was not drafted by Dr. Sajid. It was drafted by one of her staff. Dr. Sajid did, however, sign the letter. Dr. Sajid does not remember when the letter was requested, however, she knows it was not requested on March 3, the date of the visit.
51The March 11 letter states that it is: “to support whatever legal purpose this may serve.” Dr. Sajid stated that she must have thought that it was for a lawyer, but did not know what kind of lawyer or what kind of purpose it would serve. She only understood that it was for something legal.
Cross-Examination
52Dr. Sajid acknowledged that B.M. had been her patient for some time prior to March 2015. Dr. Sajid comes from Pakistan, as does B.M.
53Dr. Sajid testified that in February 2015, she saw B.M. once. In December 2014 she saw her maybe once or twice. In each of those occasions there was never any discussion of abuse. There was never any indication from B.M. that there was any kind of abuse, whether it be physical or sexual. B.M. never mentioned anything like that.
54Dr. Sajid did acknowledge that she might have a closer relationship with B.M. than some of her other patients. Dr. Sajid testified that B.M. always seemed forthcoming and usually to the point, not like she was trying to keep anything from her or reluctant to tell her things. B.M. was always open and honest with her.
55Dr. Sajid said it was possible that B.M. requested a letter during the March 3 visit before she left.
56The focal point of the March 3 visit appeared to be the abuse. Dr. Sajid also did a pap test and tested for STI. These tests were secondary to the primary focus of the abuse.
57Dr. Sajid was quite certain that the bruise on B.M. was indeed a bruise. With respect to the bruise, Dr. Sajid had no notation of how big it was, its colour, what it looked like, or what stage it was in. On any prior visits with B.M., Dr. Sajid never saw any marks on her forehead or face.
58Dr. Sajid’s notes state that “patient wanted to see Dr. Amjed”. This did not strike her as an odd request as it happens all the time. Although Dr. Amjed and Dr. Sajid work as a team, Dr. Sajid’s patients, if enrolled with her, would usually ask for her. Dr. Sajid did also say that B.M. was probably closer to Dr. Amjed.
M.I.
59M.I., B.M.’s co-worker is 35 years of age and currently employed at GS1 Canada. She is now a senior manager within the industry engagement team. The work relates to health and beauty, pharmaceutical, and account management.
60M.I. met B.M. at work in 2014. Their groups worked together. B.M. was a manager of pharmacy implementation. At this point, they rarely saw each other outside of work. As time went on they would interact briefly after work sometimes, but mostly at lunchtime.
61M.I. attended A.H.’s wedding in September 2014.
62After the wedding, M.I. had discussions with B.M. about her relationship with A.H. B.M. mentioned that A.H. controlled her on financial issues were mentioned by B.M. and these issues were controlled by A.H.
63B.M. also discussed issues relating to sexual intercourse. B.M. stated it was difficult for her. It was painful for her because there was force involved. These discussions started after the wedding, in October 2014, up until the New Year.
64B.M. told M.I. about the forceful intercourse after the Staff Appreciation Party in January 2015. She told M.I. that she was bruised. M.I. testified “there were factors of assault, as well forceful intercourse that was extremely, excruciatingly painful.”
65At work M.I. noticed B.M. to be unfocused and very distracted. M.I. would generally ask her if she was okay and B.M. broke down and was crying on one occasion.
66B.M. told her about the bruise but M.I. never actually saw it. Around mid to end of February 2015, she gave B.M. the number for the crisis helpline.
Cross-examination
67In cross-examination by the defence M.I. acknowledged or confirmed the following:
M.I. never asked B.M. how the bruise came about. M.I. does not remember when in February she had the conversation about the bruise with B.M.
The following exchange is relevant regarding the timeline of M.I.’s concerns:
Q. Okay. So, if I could break it down, the type of reporting, into different categories, initially there’s talk of him being a little bit of micromanager, there’s some financial concerns? That’s one phase of the reporting, right?
A. Yes.
Q. And then there’s another phase of the reporting where there is aggressive sex, where it might lead to some pain, correct?
A. Correct.
Q. And then there is this third stage, where she’s actually saying wait there is a bruise, and that’s what triggers you, and you get very concerned. The next day you, you learn that at least by the next day she’s out of the house, right?
A. Yes.
Q. And certainly, as a caring and perceptive person, if she told you back in, in you know before that, before this, this day that alerts you, and you get shocked because there’s a bruise, if she told you before that, look he actually raped me. He, he fully raped, that would’ve been shocking? You, you would’ve — that would’ve triggered you to, to be concerned, right?
A. Yeah. Human nature, definitely I would make...
Q. Correct.
A. ...I would be there to support her.
B.M. mentioned to M.I. how he opened cabinets forcefully over her leg, which caused her pain
B.M. never mentioned to M.I. that A.H. threw things at her, such as a laundry basket or a chair
B.M. never told her A.H. raped her – B.M. mentioned forceful intercourse M.I.’s impression was that it was aggressive sex.
Re-Examination
68In examination-in-chief M.I. stated:
Q. And what about sexual intercourse?
A. There were times where she mentioned that it was difficult for her. There was severity of pain that was involved. Aspect about her being a little frazzled about you know aren’t you wanting to have sexual intercourse, and it was painful for her, because there was force involved.
69In cross-examination M.I. stated this:
Q. Ma’am, it was when you — I just want to go back to some of the wording you used, in terms of her being frazzled. And I think you said that, “There were aspects of the sexual intercourse that was difficult, and sometimes there was, there was pain.” Do you recall saying that to my friend when she was just asking you questions?
A. Yes, there was pain.
Q. And I think you said at the time that your impression was that when she was having these aspects of sexual intercourse that were, had caused a bit pain, that she was a bit frazzled by it, right?
A. No. What I said was she was frazzled at work.
Q. Okay.
A. Unfocused at work.
Q. Okay.
A. That was not related to the sexual intercourse.
70In re-examination M.I. defined forceful intercourse as “when you are in an intimate situation having sex and it is not out of your own will.” She defined aggressive intercourse as when “someone is being aggressive to a point where you cannot tolerate the pain.
71M.I. then expanded her answer to say that B.M. said that sex with A.H. was forceful, aggressive, and “against what she wanted.”
Defence
A.H.
72A.H. testified on his own behalf regarding each of the allegations before the court.
Examination-in-Chief
73A.H. is 35 years old. He is from Pakistan. He has a law degree from Pakistan and is looking to write his equivalency exams for Ontario. He is currently a paralegal licenced with the Law Society of Upper Canada.
74A.H. confirmed that he married B.M. in September 2014.
75A.H. first met B.M. December 1, 2009 when she was a client of his on a HTA matter. They started dating in 2010 after the HTA matter was concluded. A.H. disagreed with B.M.’s testimony that they only started dating 10 months prior to the date of marriage.
76After the marriage, financial issues became a concern for A.H as it related to a debt she never told him about. B.M. also told him she had $35,000 to $40,000 in her account but at the time of the wedding she said she did not have any money. She only told him about the debt she had in December.
77Other marriage issues included B.M.’s assertions that A.H. did not respect her and where they would go on their honeymoon.
78The wedding the gifts they received included jewellery to be used by both of them. This jewellery was to be used on a rainy day to assist in buying a home in the future or in case of an emergency if someone lost their job. The jewellery was initially kept at A.H.’s home, but after his parents left he put it in a safety deposit locker. They had an argument about this as well.
79They also had arguments about lifestyle. B.M. wanted to live a lavish lifestyle. She said, “Oh, I thought you were a businessman, you make lots of money…” She was not happy that he wanted to be more conservative with their spending.
80A.H. was also supporting his family. His father was retired and his mother was not working. He was also supporting his sister, his niece, and his younger brother who was studying at university and was in medical school. A.H.’s financial support for his family also led to arguments between him and B.M. She was also not happy about the fact that they were living with his family.
81On February 26, 2015 they had an argument about her debt. He also suggested to B.M. that she was being unfaithful. She, in turn, asked him if he was still seeing his ex. The main argument, however, related to the debt.
82On February 26 or 27 there was no discussion of a divorce. B.M. misunderstood that he was giving her a verbal divorce, which is the practice in the Muslim religion.
83After the February 26 argument B.M. went upstairs and he slept on the couch in the family room. At around 5:00 a.m. she came down to A.H. and said:
“yeah, you know what, its stupid for arguing for something so stupid, it does even matter.”
84She wanted to lie next to him. He said no but she did anyway. She stayed there until the morning and then went to work.
85When asked what he is apologizing for in the WhatsApp messages, A.H. explained it as follows:
A. I want her back in the house. So I wanted my wife to be back in life. I'm apologizing for maybe not being the best husband like her friends are, because she kept on comparing me to her friend's husbands that buy her flowers, and I wasn't the kind of guy who bought flowers. My life, you know, maybe, here and there, but no. You know, I wasn't the kind of the husband who took her trips after trips, and I was apologizing for that sort of stuff. Saying, well, maybe I wasn't the nicest guy in terms of that. But no way these assaults, these were shocks to me. I was shocked on the day when I was arrested. That's the first time I come to learn about this, is from her.
86On the evening of February 27, B.M. returned to the matrimonial home. A.H. was there with his friend, Mohammad Salim. B.M. stayed in the house. A.H. left with Salim. He learned later that she had taken more than just her passport and birth control pills.
87The documentary evidence filed, according to A.H., supports his testimony that he had arranged to bring the jewellery from his locker to B.M.’s father. He did this on March 23. B.M. was present at this meeting at her father’s house.
88After this two hour meeting B.M. told A.H. that she would return home to him in a few days.
89A.H. was arrested on April 13. This was the first time he heard of these allegations. He was shocked.
90The text messages and Facebook messages filed as Exhibits come from A.H.’s phone. He took screenshots of them and then printed them through his computer. All of the relevant messages have been included. They only ones not included are innocuous things such as groceries.
91A.H. described his sex life with B.M. as good and healthy with no problems. Sex was never an issue. A.H. set out the dates he specifically recalls having sexual relations with B.M.:
December 2 - he received a text message from B.M. that stated, “We will do night workout – more effective if you know what I mean.”
December 15, 19, 23
January 12, 13, 14, 22
February 10, 11, 13, 14, 15, 18, 22
92On February 14, Valentine's Day, B.M. came down in a white robe gifted to him by the Mansfield Hotel and Spa. This took place in the middle of the afternoon in their family room. His family had left the home to travel to Pakistan at this point in time.
93Valentine's Day was not as B.M. characterized it. They went for dinner first and then to her parents. They were wearing Pakistani cricket jerseys. The photos of them were taken by her because they were having a great time. There was a Pakistani match on that day and it was a big deal in their culture. The day was great and they were happy.
94At the March 23 meeting with B.M.’s father when she was also present, there were never any discussions about assaults or sexual assault.
95A.H. testified that whenever B.M. sent sexually suggestive texts with photos, it signified that they would be having sex that night. In fact, they did so. A.H. testified:
A. Well, look, these messages speak for itself too. She sent me positions. Those are positions we're going to try. Not the picture she painted afterward. Thank God I have these messages to show. If I didn't God know what I would've been - how I would've been proving myself here in Court.
96A.H. denied that any of the allegations occurred. They did have normal relationship arguments and disagreements.
97They never denied sex to each other. There was not one single day throughout their relationship where B.M. said, “no, I don’t want to have sex.”
98Further, A.H. explained why they would not have sex in the middle of the night. The bed squeaked, they would have to go to the bathroom afterwards and his parents prayed at around 3:00 a.m. to 4:00 a.m.
99A.H. was well aware of the fact that B.M. was on birth control in the months of December 2014, January 2015 and February 2015.
100A.H. testified that B.M. never accused him of sexually assaulting her or forcing sex on her, either verbally or via text.
101A.H. stated that B.M. did speak Punjabi. They associated with the majority of his friends who are Punjabi. They spoke in Punjabi. A.H. and everyone in his family also speak Urdu.
102A.H. confirmed that he was arrested on April 13, 2015 and served with the divorce application. On April 6, she was telling him to change his Facebook profile to tell the world he was married.
103When his mother and sister returned from Pakistan they learned that their personal belongings had been stolen by B.M. according to A.H. They returned to Canada on May 5, 2015.
Cross-examination by Crown:
104As I did with B.M., I will set out the areas reviewed by the Crown throughout her cross-examination wherein A.H. confirmed or acknowledged the following:
He stated that none of these allegations ever happened
Overall their relationship was a good one – they had normal relationship arguments on and off
He first met B.M. December 1, 2009 in his capacity as a paralegal with respect to a traffic ticket. Between 2010 and 2013 they had a good relationship.
He confirmed that they were married on September 19, 2014
After the marriage they had a healthy sex life
With respect to wanting children, they both wanted children at one point. He was indifferent initially – if they had a child that was good – if they didn’t they was okay as well. They were not actively trying to have a baby. His family was not pressuring them to have children.
A.H. started supporting his family right after he started working – he had no difficulty doing this
With respect to B.M.’s debt, he did not find out until after the marriage how much her debt was. The amount kept going up. It started at $5,000 and ended up at $25,000. B.M. had indicated to him she had 35,000-40,000 sitting in her account.
He and B.M. took many trips to Niagara Falls. The receipts A.H. filed do not tell us who the guests are. A.H. confirmed he went on those trips with B.M. B.M. enjoyed going there and wanted to go on those trips with him.
B.M. would also send him messages about taking other trips. They had arguments or discussions about trips as it added to the expense associated with going on so many trips. He would answer that they would go and would find dates in order to avoid an argument with her. By January and February, B.M.’s desire to go on more trips was bothersome to him. On this point:
Q. And despite the fact that you're going to be the one footing the bill you're just agreeing to go just to avoid arguments?
A. Look, I'm trying to live a married life, yes. How do I tell you? I mean, I wanted to go on trips too but if the money was there - if I won the lottery, yes, I want to go travel the world. Don't get me wrong. But it has to make sense.
A.H. did acknowledge that sometimes reading a text message alone does not give a full picture of what is going on.
With respect to the trips once they decided to go on a trip he was okay with going. He wanted to get the best price. He was excited about going as well.
A.H. once again confirmed that they had a healthy sex life. They never said no to each other. For them sex was for pleasure. They had sex on a regular basis.
B.M. texted A.H. as follows:
“We will do night workout” more effective if you know what I mean – don’t cut too short.”
A.H. responded,
“What the point? You on meds dog?”
The Crown suggested that this response sounded like sex was not just for pleasure, it was for having a child. A.H. explained the response as follows:
A. I'm just explaining myself to you what I meant there. I think that the, the, the message reads itself. I just don't want to expend too much on it. "You on meds, dog." Like it gives you an explanation. It's just a funny thing between couple. If I'm going to say, "No" I'd be, like, "No. I don't want to have sex with you. I don’t want to live with you. I don’t want to be in the bedroom.”
Q. Okay. So then what's the point of making this joke as you say, "What's the point? You on meds, dog."
A. Conversation in that moment. I don't know how we were feeling both of us in the way I sent it. Kind of - I think it kind of explains what I remember and what I recall, kind of the message tells you I'm saying it as a joke. It's not something, you know - don't you think I would have said it, "No. I don't want to have sex. No, I don't want to do this tonight"? I think it's leading to the seduction, "Yeah, we'll have sex but what's the point, dog." I, I don't know how to put it.
As far as he remembers, B.M. would send the sexual positions to him while she was at work. He was a little put off that she was doing this from her workplace. A.H. stated that whenever these sexual positions were sent to him, they would definitely try them out that night and for days to follow.
A.H. denied that any of his testimony is designed to make B.M. look bad. He was attempting to show the actual picture and the nature of their relationship. He was not trying to paint her out to be his sex-crazed ex-wife.
A.H. confirmed that other than the jewellery that remained in the house, it was put in his locker. B.M. and her mother had initially put the jewellery in a locker they had, however, it was then moved to a locker in A.H.’s name. The jewellery that remained at the house was worth thousands of dollars. Not everything was put in that locker at the bank.
A.H. testified that B.M. stole his camera, and jewellery at his house. A.H. referenced one of the WhatsApp messages in this regard.
B.M. took over $10,000 worth of items from the house.
This theft by B.M. was never reported to the police. He explained this as follows:
Q. And even after you were charged you never reported it?
A. No. Entire police force is against me at that point. Her cousin works in that same division. Do I really want to go there? No.
Q. The entire police force was against you that's why you didn't report it?
A. Well, I'm not gonna go there and try to report these things. I got bigger things to worry about. Look where I have landed. Do you think I'm really worried about that? I'm sure you have an idea how much I have spent over the years, what this has done to me. It's not something I've run after or focus on, no. So to answer your question no, it wasn't reported, Madam Crown.
Q. And part of the reason for gifting jewellery on a wedding it's for a rainy day or hard times, right?
A. For both, yes.
Q. For both. Okay. And so despite you supporting your whole family when $10,000 worth of valuables are stolen you still don't report this to the police?
A. I don't. I made that choice I guess.
Q. Sir, I'm going to suggest that doesn't make any sense.
A. To you maybe. You haven't been in my shoes.
- With respect to February 26, they did have an argument but he never did give her a verbal divorce. He messaged her in March regarding her misunderstanding of the verbal divorce.
She did come down to see him at 5:00 a.m. and tried to lay on the couch with him and he said no.
A.H. clearly stated that he never demanded a divorce from B.M., not even once.
- A.H. had no idea about any of these allegations until he was arrested on April 13. He was “hit by, like a bullet train.” When taken to the WhatsApp messages he sent, he testified that they are not in reference to the allegations.
He agreed that the WhatsApp messages sounded like she was making up stories and accusing him of something. However, not in reference to the allegations. He was referring to her saying he was a stingy husband, he did not support her; didn’t give her money; painting a picture he did not respect her and he cusses at her.
- A.H. does acknowledge that the apologies throughout the WhatsApp chat history refer to the fact that he was not necessarily the best husband. He was not always the nicest guy.
Q. But you’re certainly not apologizing for any assault or sexual assault?
A. Madam Crown, let me say it one more time to you. Because it never happened. She responds to me about the clothes but she doesn't say once, "Hey, you know what? You punched me, [A.H.]." She just says, "Don't contact me." Think about one thing. Very easy to block a person. She could have blocked me. She produces only these messages to you? Doesn't give you the entire three months when she's capable of printing - look at the way she printed it? She knows what she's doing. Everyone can see. Mine are screen shots and what I'm told look *** (12:14) as this. She had over a year. When you met her or Mr. Dorsey, the *** (12:14) met her. They knew. She had gone over everything, all the pictures, all the messages. She could have produced it saying, "Look. This is an actual picture." There were also naked pictures in there which were taken out because they were not in these three months. You are very well aware of it.
In the WhatsApp messages, A.H. does not know what B.M. was upset about so he is really apologizing for everything. He just wanted to know what the issues are so he can realize his mistakes and never do it again. He wanted her to come back to him. He did not want a divorce.
A.H., as a paralegal, is bound by the Rules of Professional Conduct. Turning his attention to Rule 3.03, “Confidentially and disclosure of confidential information”, the Crown asked him about disclosing that B.M. was his client for a Careless Driving Charge. A.H. responded by explaining this fact was not being provided to the general public. It was being disclosed for the purpose of this trial. It was only provided to the Crown’s office.
The Crown also asked about the rule relating to conflict of interests as they relate to his representation of B.M. and then dating her. He explained it this way:
A. And I could explain that to you, Madam Crown, instead of going further. And what I had done was I had started her file. We'd gotten into a relationship. I took the file even on that day I was doing other paperwork in Court. If there was going to be a trial one of my colleagues were going to run the trial. I wasn't doing the case at that point. So I had prepared the file, had done what I could. My understanding was it's okay if another person appears. I appeared on this matter. From as far as I can recall, I can go back and check if I even got my colleague to make an appearance because the case wasn't going to proceed further. It didn't go into a trial. So if there was going to be a trial I would've gotten one of my colleagues who I had called and who was going to do the case there.
Q. Okay. So you never ended up doing [B.M.’s] trial is what you're saying?
A. Right. The trial didn't happen. The matter got withdrawn. So if the matter has been withdrawn there is no conflict from what I understood. But I appreciate that you have brought that up as well and I have learned from it. Now for future I won't even do that. So I thought as long as it wasn't a conflict it would be fine. And it wasn't a conflict because the matter was just withdrawn. The Crown didn't have a case.
Z.H.
105Z.H. testified with the assistance of an interpreter. Z.H. is A.H.’s mother. She confirmed that back in December 2014, January 2015, and February 2015, her son and his wife, B.M., lived with her and her family.
106They were happy and everything was fine. Her relationship with B.M. was fine. Z.H. was shown a photo of Exhibit 12(a), the upper floor area where the bedrooms are located, and identified her bedroom, her daughter’s bedroom, and A.H.’s and B.M.’s bedroom.
107She and her husband would get up in the morning to pray. They did not hear voices. She never heard A.H. and B.M. fighting or struggling with each other.
108B.M. never told her that A.H. was physically or sexually abusive towards her. She never saw A.H. physically assault B.M. She never saw A.H. throw anything at B.M. Her children are not like that. She never saw A.H. throw a laundry basket at B.M. She never saw A.H. throw a plastic chair at her either.
109She, her husband, and her daughter left Canada on February 10, 2015. They returned May 5, 2015. When she returned she discovered the following items were missing:
$5,000 CAN and $3,000 U.S. Funds
Gold in the drawer
Fabrics
Her daughter’s ring
Two purses
Cross-examination by the Crown
110Z.H. loves her son and does not want to see him in any trouble.
111She confirmed that her husband gets a pension and A.H. also assists them financially. If A.H. could not assist them, that would not be a problem. Their other son could help supplement her husband’s pension. In addition, her daughter started working about three years ago.
112When A.H. and B.M. got married, she did not discuss with them having a child. They had not been married for long ─ so it was a time for them to enjoy themselves. She never had any conversations with them about having children.
113Z.H. and her husband get up to pray at 3:00 a.m. or 3:15 a.m. and would pray until 7:00 a.m. or 7:30 a.m. It is silent prayer. B.M. knows they would get up and pray every day.
114Z.H. noticed the items missing the next day after they returned from Pakistan. The jewellery was worth about $7,000.
115Z.H. never reported this to the police.
Analysis and Conclusion
Governing Legal Principles
116The charges in this case relate to three provisions of the Criminal Code:
Assault with a weapon, in this case, a plastic chair, a laundry basket and a cell phone
Sexual assault - two incidents of forced intercourse and one incident of attempted forced fellatio
Simple assault - related to a punch to the complainant’s arm.
117The fundamental framework of analysis in a criminal trial requires the court to consider the following fundamental principles:
The Presumption of Innocence
118The presumption of innocence is the starting point of any analysis relating to a criminal trial. Every person charged with an offence is presumed to be innocent, unless and until Crown counsel proves their guilt beyond a reasonable doubt. This presumption of innocence is only defeated if and when Crown counsel satisfies the court of an accused’s guilt by proving every essential element of an offence beyond a reasonable doubt.
Burden of Proof
119The obligation to prove the accused’s guilt falls on the Crown. The accused is not burdened with any obligation to prove anything let alone that he is innocent.
Reasonable Doubt
120The standard of proof in a criminal trial is proof beyond a reasonable doubt. Juries are instructed on this statement in the following way:
A reasonable doubt is not an imaginary doubt or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320
121Probable or likely guilt is not enough. The court must be sure, based on all of the evidence that the accused is guilty. If at the end of the case, based on all of the evidence or the absence of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, the court is not sure that the accused committed an offence, he should be found not guilty.
Testimony of the Accused (The W.D. Instruction)
122In this trial, A.H. testified on his own behalf. In such circumstances the court must consider his evidence when assessing the burden of proof on the Crown. The court must consider A.H.’s testimony in the following manner:
First - if I believe A.H.’s evidence that he did not commit the offences charged, then I must find him not guilty.
Second - if, after careful consideration of all the evidence, I am unable to decide whom to believe, I must find A.H. not guilty because Crown counsel would have failed to prove his guilt beyond a reasonable doubt.
Third - even if I do not believe A.H.’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.
Fourth - even if A.H.’s evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt: R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742
Denial of Conduct Alleged
123The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place.
124Crown counsel must prove beyond a reasonable doubt that the events alleged in fact occurred. It is not for the accused to prove that the events never happened.
125To decide whether something happened is not to be determined by simply comparing one version of events with another and choosing one of them. All of the evidence has to be considered within the context of the Crown’s burden of proof beyond a reasonable doubt.
126It is very important to articulate at the outset that courts must not rely on impermissible stereotypes or myths about what kind of behaviour was expected from the complainant in this case and whether the absence of this expected behaviour negatively impacts on the complainant’s credibility. The court cannot assume that there is a normal conduct that will be exhibited by a complainant. People react differently in situations relating to sexual assaults and how they would behave or respond following an alleged sexual assault: R. v. D.D., 2000 SCC 43, 2000 SCC 93, [2000] 2 SCR 275, at para 63; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121.
127A complainant’s credibility cannot be assessed on what would be expected of a complainant after the alleged assaults: R. v. G.(A.D.), 2015 ABCA 149, 25 Alta. L.R. (6th) 379, at para. 33. In R. v. T., 2017 ABQB 753, deWit J. set out the following at para. 15:
A trier of fact must be even more vigilant that the myths and stereotypes discussed above are not used in assessing the credibility of a child sexual assault complainant. In R. v. A.R.D., 2017 ABCA 237 (Alta. CA. .), the Alberta Court of Appeal considered evidence that a child complainant did not attempt to avoid the accused during and after the alleged sexual assaults and concluded that such evidence was irrelevant and should not be used in assessing credibility. The court in A.R.D. stated at para 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 M. (T.E.)’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.
128This principle was also articulated in R. v. Shields, 2017 BCPC 395 at para 66:
I should add that by requiring A.S. to explain why she delayed in reporting the sexual assault and why she was friendly to Mr. Shields after the assault runs afoul of law which prohibits courts from relying on myths and stereotypes as to how sexual assault complainants should behave following an assault. In the circumstances of this case it would be improper to take such evidence into account in deciding the issue of non-consent of A.S.: See R. v. A.R.D.J., 2017 ABCA 237, at paras. 41 – 42, 48, 50, 55-56. Also, R. v. D.(D.), 2000 SCC 43, at para 65.
129I have considered as well the decision of Horkins W.B., J. in R. v. Ghomeshi, 2016 ONCJ 155, 27 C.R. (7th) 17, and I find the comments he makes at paras. 135 and 136 informative:
As I have stated more than once, the courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases. Courts must guard against applying false stereotypes concerning the expected conduct of complainants. I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.
Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.
130This caution is especially important in this case as the parties were married to each other and were living together. This caution is also significant in light of the evidentiary record containing the text messages, Facebook messages, WhatsApp chat history and all of the documentary evidence filed in this case. The Crown argued in her submissions that everyone responds differently in these situations. B.M. testified that she was working on the marriage. She did not want a divorce. A.H. submitted to the court that none of these incidents occurred and the documentary evidence demonstrates that the allegations before the court are fabricated. The law already recognizes that sexual assault can take place between married couples and that the issue of consent must still be considered by the court. The court cannot draw adverse inferences from the documentary evidence filed in this case against the complainant with respect to these allegations.
131B.M. is entitled to consent to sexual relations with A.H. and despite consenting to sexual relations with him on any number of occasions she can still say no on any given occasion which means she has not consented. The fact that B.M. consented to sexual relations and followed this with sexually charged texts or Facebook messages does not mean that she could not or would not have said no to sex on other occasions. The court cannot draw an adverse inference from the documentary evidence filed due to the fact that it contains sexually charged messages. However, as I review the evidence, it will become clear that the credibility and reliability of B.M.’s testimony is troubling and it causes me considerable difficulty in accepting her evidence with respect to the alleged criminal activity. The references to the messages are not made for an impermissible reasons.
February Incidents – Valentine’s Day
132I want to first set out what B.M. outlined in her Divorce Application and how she framed the allegations relating to these charges. In her Case Conference Brief dated February 11, 2016, that she signed, it states, in part:
The marriage broke down very quickly due to the Respondent’s physical and emotional abuse of the Applicant.
The physical assaults began in October 2014 and became more frequent after the Respondent’s parents left the country on February 10, 2015.
On approximately five occasions during the marriage the Respondent forced himself on the Applicant sexually after she refused her consent to sexual intercourse.
133In her Form 8 Application for Divorce, she sets out the following at paras. 1 to 5:
The parties were married on September 19, 2014 and separated on February 26, 2015. The marriage began to break down very quickly, due to the Respondent’s abusive behavior.
During the marriage, the Respondent forced the Applicant to place her jewellery into his safety deposit box. He also demanded access to her bank accounts, which she did not give. Whenever the Applicant would not capitulate to the Respondent’s demands, he would assault her verbally and physically.
The physical assaults began in October, 2014, and escalated from that point onwards. The abuse escalated became more frequent when the Respondent’s parents, who were living with the parties in the Matrimonial Home, left the country on February 10, 2014.
During the marriage, the Respondent would force the Applicant to have intercourse. When she would refuse, he would assault her. This occurred approximately five times throughout the course of the marriage.
On February 26, 2015, the Respondent demanded access to the Applicant’s bank accounts; the Applicant refused. The Respondent threw his phone at the Applicant, and began verbally berating her. The Respondent physically grabbed the Applicant and forced her out of the home.
134In her Affidavit sworn April 10, 2015 in support of her ex parte restraining order she states the following at paras. 1 to 6:
The Respondent and I were married on September 19, 2014 and separated on February 26, 2015. The marriage began to break down very quickly, due to the Respondent’s abusive behavior.
During the marriage, the Applicant constantly assaulted me and abused me verbally and physically.
The physical assaults began in October, 2014, and escalated from that point onwards. The abuse escalated became more frequent when the Respondent’s parents, who were living with us in the Matrimonial Home, left the country on February 10, 2015.
During the marriage, the Respondent would force me to have intercourse. When I would refuse, he would assault me. This occurred approximately five times throughout the course of the marriage.
On February 26, 2015, the Respondent demanded access to my bank accounts. When I refused, the Respondent threw his phone at me, and began verbally berating me. The Respondent physically grabbed me and forced me out of the home.
Since February 26, 2015, I have been living at the home of my parents. When the Respondent threw me out of the matrimonial home, I did not have a chance to retrieve any of my belongings, including my clothes and valuables.
135In her trial testimony B.M. provides inconsistent details about what happened and when. At trial she stated the first time he ever assaulted her was in December 2014. She did not say that there were any physical assaults commencing in October 2014. Her explanation for this inconsistency is troubling. She stated that “there must have been something” that happened in October because “every day was walking on egg shells.”
136At no time during this trial did B.M. testify about assaultive behaviour in October.
137In her Divorce document, B.M. set out that A.H. had forced sexual intercourse with her on five occasions. At trial, she testified to only two incidents of forced sexual intercourse. The third incident of a sexual nature related to her allegation of attempted forced fellatio.
138In her Divorce documents, B.M. indicates that the abuse escalated after A.H.’s parents left for Pakistan on February 10, 2015. However, the documentary evidence filed does not support B.M.’s characterization of this escalation of abuse. The depiction by her that the abuse escalated is, in my view, contradicted by what transpires in their relationship following the departure of his parents. The following evidence is relevant on this point:
- February 11, 2015 text:
“Last night felt amazing … I wish we can do like that more often.”
A.H. testified that since his family had left the day before for Pakistan they had the benefit of being in the home alone and B.M.’s text was within that context.
- February 13, 2015 text:
“don’t complain at night. I’d like to go for full 160 minutes.”
B.M. also sent him a sexually suggestive photo. B.M. sent A.H. a romantic Bollywood love song on WhatsApp.
- On Valentine’s Day, B.M. and A.H. went out for dinner. They then attended at her parent’s home to watch a Pakistani cricket match. They were wearing Pakistan’s jerseys and photos filed show them together looking happy and smiling. None of this supports her characterization of the day as one filled with anger and cussing. I do not accept B.M.’s testimony that she was behaving in this way as an act of diversion from her parents knowing what was going on in their relationship. B.M. was the one who took the selfies and sent them to A.H. It is possible of course that there was anger and cussing exhibited by A.H. in the absence of her parents, however, in light of photos and the circumstances surrounding that day, I cannot find that to be the case.
139In addition to these concerns, B.M.’s testimony is uncertain about the timing of the incident around Valentine’s Day. At first, in examination-in-chief, she said the incident occurred before Valentine’s Day and that it was on a weekday. The next morning when her examination-in-chief continued, she corrected herself and stated that this incident happened after Valentine’s Day. It is a reasonable inference that B.M. changed that timeline after reviewing the February 11 and February 13 text messages.
Chair Incident
140B.M. provided inconsistent versions of why A.H. threw the child’s plastic chair at her. Initially, in her KGB Statement, she stated the argument started because he demanded that she get him water and she said not right now. However, later in her KGB Statement, she stated he threw the chair because she was not paying attention to the conversation he was having with his mother in Punjabi. This second version is consistent with what she testified to at trial.
141On this point as well, although she testified she did not remember if she heard any of the conversation wherein A.H.’s mother was reprimanding him, she was able to confirm his mother was reprimanding him in Urdu. It is difficult to accept B.M.’s evidence on this point. A.H. and his mother speak predominantly in Punjabi. The household language is Punjabi. According to B.M. the argument leading to the chair throw is because A.H. and his mother are speaking Punjabi and she is, therefore, disengaged in the conversation. Yet, for some reason, the mother suddenly reverts to Urdu to reprimand her son. It is possible that the mother reverted to Urdu to let B.M. know she, the mother, did not approve of A.H.’s conduct, however, that would be speculative to find that. The point here is B.M. testified she did not remember if she heard the conversation wherein A.H.’s mother was reprimanding him so how would she know it was in Urdu.
Forced Sexual Intercourse/Pregnancy
142B.M.’s testimony in this area is confusing and illogical.
143The first incident of forced intercourse took place in December before Christmas, but B.M. could not remember the date. By December, B.M. was taking birth control pills. A.H. knew she was taking birth control pills. As such, her assertion then that he was forcing sexual intercourse on her so that she would get pregnant is not reasonable. According to B.M. there were numerous other times in December that they had consensual sexual intercourse. She clearly acknowledged that other than the allegations she testified to there were no other times when A.H. asked her for something sexual and she said no. It makes no sense, then, that he would force himself on her for the purpose of her getting pregnant.
144Further on this point, it is inconsistent to assert that he was aware of the fact that she was on birth control pills yet forcing himself on her so they could have a child. On pages 28 and 29 of her KGB Statement she states:
B.M.: Yes. Yes. ‘Cause he want-, he wanted to-, he’s like, we need-, the only-, to him he was like, the only way-, the solution to our marriage is to have a kid. And I was like that’s not right. You-, the, the, the problems we were
18:44 having the kid’s not going to resolve that.
SAMUEL: Mm-hmm.
B.M.: And he’s like but the-, and that’s what his parents kept enforcing, you need to have a child. And I, and I’m like, no this is-, this cannot happen to me. If I don’t want to have a kid, we cannot have a kid. And that’s why he forced himself a few nights before to make sure we ended up have a kid and I…
SAMUEL: Stop right there.
B.M.: Okay.
SAMUEL: So this force himself-, this incident where he forced himself on you, this is before the doctor’s appointment?
B.M.: This is before. He did it two, three times in total from December to February.
SAMUEL: Okay. Okay. Let’s stop right there. The first time this happened, when was it?
B.M.: It was in December.
145On page 61 of the KGB statement this point relating to pregnancy is raised by Officer Samuel again:
SAMUEL: Okay. So the first time he forced himself on you, you were already on birth control?
B.M.: Yes.
SAMUEL: And he didn’t ejaculate in you because…
B.M.: He knew I didn’t want a-, we can’t have a baby.
SAMUEL: Okay. So why not…
B.M.: Why do it?
SAMUEL: …just, why not just ejaculate in you then if he knows that you can’t get pregnant because you’re on the pill?
B.M.: That’s his control, that’s not mine.
The confusion and illogical explanation for her assertion that A.H. forced sex on her to have a child was clearly demonstrated by the defence as set out at paragraph [46] 32 of these reasons.
Visiting Her Parents
146B.M. stated that she did not visit her parents from December to February. However, as the defence pointed out in cross-examination, the documentary evidence does not support that statement. The following text messages are relevant on this point:
January 13: I’m eating at Mamma Pappa.
Mamma made me biryani
January 27: After gym I’m gonna go see mamma papa
January 30: I’m going to gym and will go to see mamma papa after. I’ll be home late.
February 6: Dropped off your papers.
U going home?
Yes
Going to mamma papa.
No sex for two weeks prior to the attempted forced fellatio
147B.M.’s description relating to the details of the forced fellatio are inconsistent. In her KGB statement she states:
Like he, he puts his private parts in my mouth and uh while I was asleep. And I got up, I pushed him back…
148She also stated to Officer Samuel that they had not had sex for almost two weeks. She stated: “We had no intercourse ‘cause I’m like this is – what you’re doing to me is wrong.”
149When asked to clarify this incident in relation to Valentine’s Day, (i.e. February 14, 2015) she first said it happened before Valentine’s Day, and then she said it happened after Valentine’s Day during the week. They had been sexually active up to Valentine’s Day, so her KGB statement that they did not have sexual intercourse for two weeks prior is inconsistent. In light of the February 11, 13 and 18 texts the KGB statement cannot be true.
150Further, with respect to this incident, at trial she testified A.H. never did put his penis in her mouth.
151Finally, B.M. agreed with the defence suggestion that, as she stated, the punch to the arm took place on Sunday February 22 and if the forced fellatio took place on a weekday prior to February 22 then contrary to what she told Officer Samuels, there was not a two-week period when they did not engage in sexual intercourse. In fact, B.M. acknowledged that the February 11 text confirmed that they had engaged in sexual intercourse on February 10. Her February 11 text reads:
“Last night felt amazing … I wish we can do like that more often.”
B.M. acknowledged this text confirmed that fact.
March 23 Meeting with B.M.’s Father re: Jewellery
152B.M. denied that A.H. ever attended at her father’s home to discuss the issues relating to the jewellery. In support of his testimony that such a meeting did take place, A.H. points to the locker check out page at the Bank, a telephone call with B.M.’s father, and the WhatsApp messages of March 21 and April 8 which state:
2015-03-21 10:40:25 p.m.
A.H. to B.M.: A: I spoke to uncle and he said to come on Monday…
I swear to god I never took gold from U … All I did was put it in the locker bc it’s free and what m I gonna do with it??
2015-04-08 12:39:46 a.m.
A.H. to B.M.: So how does this sound to U? U took all the valuable stuff, watches, clones, clothes, camera … Even the gold watch U asked me to put in the locker and made me drop it off to U … All that never meant anything to me only if U knew… if it did wouldn’t bring the gold to ur place … U don’t message me…
153B.M. did not respond to this message and as a result she did not admit or deny these statements made by A.H.
154The inconsistencies I have reviewed are not matters of minor detail.
155Inconsistencies relating to minor details generally do not diminish the strength of a witnesses’ core testimony on material aspects of an allegation. In this case, however, the circumstances surrounding these incidents occur in December, January and February. The divorce documents are prepared on April 10, 2015, and the KGB statement is made on April 13, 2015, both less than two months from her departure from the matrimonial home.
156I will review A.H.’s testimony shortly but before I do I wish to comment on the testimony of Dr. Sajid, M.J. and A.H.’s mother, Z.H., first.
157A.H.’s mother was asked about the relationship between her son and B.M. She said they were happy. She stated that she never saw A.H. physically assault B.M. and she never saw him throw a chair or a laundry basket at her. Z.H.’s testimony supports the testimony of her son. Is it truly independent? Is she testifying in this way simply to protect her son? That may be a possibility. Nonetheless, her evidence is sufficient to establish reasonable doubt with respect to those two incidents.
158More generally, Z.H. testified that she and her husband would get up every morning and go downstairs to pray. They would get up at 3:00 a.m. or 3:15 a.m. and pray until 7:00 or 7:30 a.m. Their bedroom is down the hall from A.H. and B.M.’s bedroom. At no time did she hear voices, nor did she hear A.H. and B.M. fighting or struggling. B.M. had testified that the sexual assaults took place around these times.
159M.I. was called by the Crown to support B.M.’s allegations of forced sexual intercourse. M.I. was the only person B.H. disclosed to. M.I. was called to reject any suggestion of recent fabrication.
160The difficulty I have with M.I.’s testimony relates to the shifting and expanding explanation about what B.M. told her. In the end I am left with only M.I.’s opinion or interpretation of what she thinks B.M. meant.
161In examination-in-chief she stated the following:
Q. And did you ever discuss anything else other than financial, or control, or jewellery?
A. There was an aspect also of sexual intercourse.
Q. And….
A. That was mentioned.
Q. And what about sexual intercourse?
A. There were times where she mentioned that it was difficult for her. There was severity of pain that was involved. Aspect about her being a little frazzled about you know, aren’t you wanting to have sexual intercourse, and it was painful for her, because there was forced involved.
Q. And when, when did these conversations about intercourse and forceful intercourse, when did these happen?
A. It was all after the wedding.
Q. And do you know if these conversations about forceful intercourse, would that have been before or after the staff appreciation party?
A. The forceful intercourse was before.
162In cross-examination M.I. agreed that B.M. never told her that A.H. raped her and if she did that would have been shocking to her.
163It is clear in her examination-in-chief that the term frazzled related to the sexual intercourse. M.I. stated:
…There was severity of pain that was involved. Aspects about her being a little frazzled about you know aren’t you wanting to have sexual intercourse…
164However, in cross-examination, she distances herself from attaching the word frazzled to the sexual intercourse and testified that she said B.M. was frazzled at work:
Q. And I think you said at the time that your impression was that when she was having these aspects of sexual intercourse that were, had caused a bit of panic, that she was a bit frazzled by it right?
A. No. What I said was she was frazzled at work.
165But that is not what she said in examination-in-chief.
166M.I. then expands her answer on this point further, in re-examination, by stating that B.M. said that the sex was not only forceful and aggressive, but “against what B.M. wanted.”
167M.I. was asked by the Crown to define forceful intercourse. M.I. then said it was having sex and it is not out of your own will.
168M.I.’s testimony as to what B.M. told her evolved from sex that was aggressive to sex that left her frazzled to sex that was unwanted and not consensual. At no time, however, does M.I. say that B.M. told her she was raped. Had she told her that, M.I. testified that she would have been shocked.
169With respect to Dr. Sajid’s testimony, it is important to note that the letter she prepared was based on what B.M. told her. She acknowledged observing that B.M. was upset and crying as a result of the deterioration of her relationship with A.H. This alone of course does not support the allegations of assault and sexual assault.
170Dr. Sajid did observe a bruise on B.M.’s arm but was unable to say how big it was, its colour, or what stage it was at.
171It is important to note that despite the fact that Dr. Sajid stated that she was closer to B.M. than some of her other patients, at no time did B.M. tell her about the assaults or sexual assaults. Dr. Sajid saw B.M. in December and in February and there was never any discussion of a physically abusive relationship. On this point B.M. always seemed forthcoming with her and not like she would try to keep anything from her or reluctant to tell her things. B.M. was always open and honest with Dr. Sajid.
172Further, Dr. Sajid stated that the primary focus of the visit appeared to be the abuse. However, B.M. testified that the focal point of the visit was to conduct a pap test to determine if she was pregnant.
173Finally, I wish to deal with A.H.’s testimony. As I indicated earlier, his evidence must be considered pursuant to W.D. and within the context of the total body of evidence called at trial. In R. v. Hoohing, 2007 ONCA 577, Feldman J.A. stated the following at paras. 14 and 15:
The trial judge properly told the jury that they are not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused on essential matters because the burden is on the Crown to prove guilt beyond a reasonable doubt.
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 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.
174A.H. acknowledged in cross-examination that the documentary evidence filed does not capture each and every communication the parties had with each other. After all, and B.M. also agreed to this, the parties were married to each other and lived in the matrimonial home together. Not every communication or argument for that matter would have been reduced to a text, Facebook message or WhatsApp message.
175A.H. also acknowledged that overall, their relationship was a good one with a healthy sex life. No doubt, as with all relationships, they did have arguments. I accept A.H.’s testimony on these points and when the documentary evidence showcasing the messages exchanged are considered as a whole, I am satisfied that they support the A.H.’s testimony with respect to the overall positive nature of their relationship.
176The cross-examination of A.H. did not reveal significant inconsistencies or unreasonable versions of what transpired throughout the relationship on the various issues raised by the Crown.
177I accept A.H.’s testimony that he was indifferent about having children. They both wanted children at one point but they were not actively trying to have a child. B.M. was on birth control pills and he was aware of this. B.M.’s evidence that he forced sexual intercourse on her to have a child makes no sense in these circumstances.
178There were significant arguments surrounding B.M.’s debt, A.H. having to support his family and what kind of lifestyle the parties could afford, tension relating to trips they could take, including their honeymoon: I am satisfied these issues led to arguments and disagreements.
179The Crown explored this area significantly, however, this case is not about whether these arguments took place. This case is about allegations of assault and sexual assault.
180This case is also not about whether A.H. did or did not breach any of the rules of the Law Society with respect to his handling a careless driving charge for B.M. under the HTA. A.H. explained that he did not believe he was in a conflict of interest as the matter was withdrawn. None of the Crown’s cross-examination in this area assists me in determining the issues at this trial.
181The Crown did, however, spend a considerable amount of time taking A.H. through the WhatsApp chat history filed as Exhibit 4. A.H. denied that he was apologizing for any of the assaults or sexual assaults alleged by B.M. He denied that any of the allegations ever took place. A.H. readily acknowledged that his apologies related to the fact that he was not necessarily the best husband, and because he was not always the nicest guy. A.H. explained himself further on this point by stating that he did not know what her issues were so he was essentially apologizing for everything. He did not want a divorce. He wanted her to come back home to him.
182A.H. was cross-examined about the items he says B.M. took from the home and why he did not report this alleged theft to the police. Again, this case is not about theft of jewellery, a camera, or money. It is not necessary for me to resolve that issue, although I do find support for A.H.’s position in the WhatsApp messages I referred to earlier. In addition to that, the property issues between the parties were eventually resolved in the family law proceedings.
183The Crown submits that A.H.’s mother’s evidence is not independent as she loves her son and does not want to see any harm come to him. However, her testimony points in the direction of creating a reasonable doubt, especially with the concerns I have about the reliability and credibility of B.M.’s testimony.
184The Crown suggested to A.H. that his testimony was designed to make B.M. and her family look bad. He wanted to portray to this court that B.M. was a sex-crazed wife. In support of that suggestion the Crown points to the following testimony of A.H.:
A.H. attempts to undermine B.M.’s truthfulness by commenting that she may not have always told her parents where she would be when she was supposed to be attending class.
A.H. comments on B.M.’s need to show off to her friends that she can afford to go to high class places.
A.H. would go out of his way to bring up B.M.’s ex-boyfriend, suggesting she may have been unfaithful to him.
“I don’t know where she was finding this stuff”, suggesting disapproval with B.M.’s sexually suggestive text messages.
A.H. stating B.M. wanted sex all the time.
A.H. suggesting B.M. and her family have an elaborate ruse to obtain money.
B.M. was only interested in living a lavish lifestyle.
185I do not accept the Crown’s characterization of A.H.’s testimony as an attempt to malign B.M.’s character or the character of her family. B.M. readily acknowledged in her testimony the accuracy of most of the text messages.
186Many of the text messages already referred to in these reasons do speak for themselves. B.M. also acknowledged and confirmed that such sexually charged text messages, some with explicit sexual photos and some without, were part of the mosaic of their life together. A.H. was not fabricating such things to make B.M. look bad. The messages are what they are and B.M. gave an explanation for why she communicated with her husband in this way.
187The defence submits that B.M. had a motive to lie about these incidents as a way to save face in the Muslim community ─ namely, that she was leaving her husband for good reasons and not simply because she did not want to be married to him anymore. The defence suggests that B.M. realized after she was married that A.H. was not able to provide her with the lavish lifestyle she wanted. In short, the defence argues that B.M. wanted out of this marriage.
188With respect to a motive to lie, Nordheimer J.A. made the following comments in R. v. Sanchez, 2017 ONCA 994, [2017] O.J. No. 6559, at paras. 25 and 38:
25It is recognized that whether a person does or does not have a motive to lie is not generally a reliable basis upon which to assess credibility. Certainly the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility. Consequently, it is generally an unhelpful factor in assessing credibility: R. v. L. (L.) (2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413, at para. 44.
38I would also note on this point that the trial judge again used the lack of a motive to lie to enhance the credibility of both L.C. and her mother.
189With these legal principles in mind I do not find it necessary or helpful to determine whether B.M. did or did not have a motive to lie.
190With respect to the issue relating to prior consistent statements and credibility, Molloy, J. noted the following in R. v. Neff, 2012 ONSC 6587, 104 W.C.B. (2d) 433, at paras. 13 and 14:
The fact that a witness has made a prior statement consistent with her testimony at trial is not a factor that constitutes corroboration of her testimony. A prior inconsistent statement may be relevant to credibility, but a prior consistent statement is not. The fact that a witness has told the same story a number of times does not mean it is true; it merely means that she has told the same story a number of times.
In the past, a prior consistent statement was considered admissible and relevant to support the credibility of a witness;[4] however, this is no longer the case. This evidence is now largely excluded due to its self-serving nature and lack of probative value.[5] As one court described the rationale, “consistency is a quality just as agreeable to lies as to the truth.”[6] While prior consistent statements generally lend no support to credibility, there are limited exceptions where they may be deemed useful. Prior consistent statements may be admitted to negate an inference or allegation of recent fabrication, to confirm that the present version of events is not new but was in fact stated in the same manner in the past.[7] Also, these statements may be admitted to rebut an allegation that the complainant failed to make a timely complaint.[8] In both of these exceptions, the prior consistent statement is admitted not for the truth of its contents, but merely for the fact that it was made.
191In R. v. Neff, 2012 ONSC 6587, Molloy J. stated the following at paras. 108 and 109:
For me, the crux of the problem is how much or how little can I believe of what Ms McCaw has said. Mr. Neff did not testify and I only have Ms McCaw’s version of what happened. As I have detailed in these reasons, I have concerns about Ms McCaw’s credibility. I am unable to find sufficient comfort from the potentially corroborative evidence to allay my concerns. Ms Hourigan’s evidence is somewhat persuasive. However, even that evidence points to Ms McCaw not having told the whole truth about the incident that occurred on March 12/13, 2009. Her evidence is not sufficient to bolster Ms McCaw’s credibility to the point that I can base a criminal conviction on her version of the central event. I am satisfied that something happened between her and Mr. Neff; I just cannot be sure what that was.
Articulating reasons for why a witness is believed or disbelieved is one of the most difficult tasks facing a trial judge. That task has been particularly difficult for me in this case. I wish to make it clear that I am making no finding that Ms. McCaw actually fabricated these allegations about Mr. Neff. My discomfort in relying on her evidence does not reach that point. However, this is one of those cases where I have a gnawing feeling in the pit of my stomach that there is much more to this story than I have heard. I cannot say with any certainty that Mr. Neff did any of the things of which he is accused. It is possible these things occurred, but I am not able to say I am satisfied of that beyond a reasonable doubt.
I am similarly situated in the case at bar. The evidentiary records is insufficient to establish guilt beyond a reasonable doubt.
Conclusion
192It is important to re-iterate once again that A.H.’s testimony must be assessed within the context of the W.D. framework. I accept some of A.H.’s testimony.
193I am satisfied that his testimony, supported by the testimony of his mother and viewed within the context of the entirety of the trial evidence, at the very least it leaves me with a reasonable doubt.
194The testimony of B.M. is internally inconsistent and is inconsistent with prior statements made on critical and relevant details. The reliability and credibility of her testimony cannot anchor a finding of guilt on any of the counts before the court.
195When I consider the inconsistencies cumulatively, I am not satisfied that sufficient credibility or reliability can attach to the complainant’s testimony. I cannot find and conclude that any of the allegations have been proven beyond a reasonable doubt. It would be unsafe to convict based on B.M.’s evidence. Is there sufficient other confirmatory or probative evidence to provide the court with confidence that what she testified to is credible and reliable? I cannot conclude that there is. I have already reviewed the testimony of Dr. Sajid and M.I. I cannot find that their testimony supports the testimony of B.M. relating to the allegations before the court. I have already explained my reasons for this. The WhatsApp chat history is relevant, however, even if I do not accept A.H.’s explanation for what he meant in these messages it at least leaves me with reasonable doubt. I cannot find that within those messages are admissions that he assaulted or sexually assaulted B.M. The WhatsApp messages are equally consistent with A.H. trying to find out why she left and desperately trying to have her come back to him.
196Considering the totality of the evidence called at this trial, I am not sure that A.H. committed any of these offences. As mandated by the analysis in W.D., if after a careful consideration of all the evidence I am unable to decide whom to believe, I must find A.H. not guilty because Crown counsel would have not met its onus to prove his guilt beyond a reasonable doubt. In such circumstances, therefore, there will be findings of not guilty on all counts.
Justice Joseph M. Fragomeni
Released: February 8, 2018
COURT FILE NO.: CR-16-1569
DATE: 20180208
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
A.H.
REASONS FOR JUDGMENT
Justice Fragomeni
Released: February 8, 2018