Court File and Parties

COURT FILE NO.: CR-16-50000587-0000 DATE: 20181101 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – R.G., S.G. and V.G.

Counsel: Kelly Simpson for the Crown George Tsimiklis for the Accused R.G. Lakhwinder Sandhu for the Accuseds S.G. and V.G.

HEARD: April 9, 10, 11, 12, 16, 17, 20, 23, 24, 26, 27, 2018; May 1, 28, 29, 30, 31, 2018; June 4, 5, 6, 7, 8, 11, 12, 2018; and August 8, 2018

REASONS FOR JUDGMENT

DIAMOND J. :

Overview

[1] Pursuant to a traditional Punjabi arranged marriage, the complainant and the accused R.G. were married on April 19, 2015 until the complainant left the marriage on July 13, 2015. During the marriage, the complainant, originally from Montreal, Quebec, resided with R.G. and his parents, the co-accuseds S.G. (R.G.’s mother) and V.G. (R.G.’s father) at 1793 Martin Grove Road, Townhouse 108, (the “property”) a residential property apparently owned by all three accuseds (although no ownership or title documentation were produced at trial).

[2] R.G. stands charged with ten counts of sexual assault, three counts of assault, and one count of uttering a threat to cause death.

[3] S.G. is charged with one count of assault and one count of uttering a threat to cause death.

[4] V.G. is charged with one count of uttering a threat to cause death.

[5] All of these charges relate to incidents which occurred during the three month marriage between the complainant and R.G.

[6] Each separate count of sexual assault against R.G. relates to a distinct incident between R.G. and the complainant. I will address each of those ten incidents separately in these Reasons by referring to them as described and named by counsel during the trial.

[7] The complainant testified as did her father S.P.

[8] Both R.G. and S.G. testified in their defence. V.G. did not testify.

General Legal Principles

[9] There is no more fundamental principle in the criminal justice system than the accused being presumed innocent and the Crown needing to discharge its burden to prove an accused’s guilt beyond a reasonable doubt. As recently held by my colleague Justice Roger in R. v. C., 2018 ONSC 4986:

“Proof beyond a reasonable doubt is a fundamental principle of our justice system. It is a doubt based on reason and common sense that logically arises from the evidence or absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt, which is often impossible. On the other hand, it is not enough for the Crown to prove that the accused is probably guilty; probable or likely guilt is not proof beyond a reasonable doubt.”

[10] Corroboration of a complainant’s evidence is not needed for a conviction. Credible and reliable evidence of a complainant can meet the standard of proof beyond a reasonable doubt. The credibility of a witness relates to his/her veracity, whereas the reliability of a witness is concerned with the accuracy of his/her testimony. There is little doubt that the credibility and reliability of a witness mandates a careful assessment by the Court, as a witness may believe his/her evidence to be true, yet that evidence may still not be reliable. Of course, and as held by Justice Grace in R. v. B.F., 2018 ONSC 2240, credibility and reliability is not an all or nothing proposition, as the Court may believe some, none or all of the testimony of any witness, including the complainant and the accused.

[11] As held by the Court of Appeal for Ontario in R. v. B.D., 2011 ONCA 51, the Court must relate the concept of reasonable doubt to its credibility findings; to have doubt, it is not necessary “to believe the defence evidence on that vital issue…rather it is sufficient if - viewed in the context of all the evidence - the conflicting evidence leaves the Court in a state of a reasonable doubt as to the accused’s guilt.”

Similar Fact Evidence Application

[12] At the opening of trial, the Crown brought an application to rely upon similar fact evidence, and in particular an Order permitting the evidence on each count to be admitted as similar fact evidence in relation to the other counts. The Crown sought to rely upon discreditable conduct that is the subject of each count in the Indictment to support findings of guilt on the other counts in the Indictment.

[13] As held by the Court of Appeal for Ontario in R. v. Moo, 2009 ONCA 645, the test for the use of “count to count” similar fact evidence is the same as the test for receiving discreditable evidence about the accuseds on occasions which are not charged, namely “whether in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs the potential prejudice and thereby justifies its reception.”

[14] As set out by the Supreme Court of Canada in R. v. Handy, [2002] 2 S.C.R. 908, the probative value and potential prejudicial effect of similar fact evidence is to be assessed by considering the following factors:

(a) the strength of the evidence; (b) the live issue(s) at trial to which the evidence relates; (c) the similarity of the evidence and the extent to which the evidence tends to prove the proposition being asserted; and, (d) if the evidence is capable of supporting the inferences for which the Crown seeks to tender it, potential prejudice to the defendant must be assessed.

[15] I rely upon the recent comments of my colleague Justice McArthur in R. v. J.T., 2018 ONSC 446:

“In assessing the risk of prejudice caused by the evidence, the court should look at the risk of both moral prejudice and reasoning prejudice. The former relates to the risk that the verdict will be based on a forbidden chain of propensity reasoning, that is, that the defendant is the type of bad person likely to commit the alleged offence. The latter refers to risks that the trier of fact will be distracted or confused, or that the trial will focus disproportionately on the similar fact evidence. (Handy, paras. 31, 139, 144-146)

While the test is the same, the balance may operate differently in multi-count prosecutions than in single event prosecutions. This is particularly so when the matter is before a judge alone. As noted by Watt. J.A. in R. v. MacCormack, 2009 ONCA 72, at para 69

‘In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument at the end of the trial.’

Similarly, moral prejudice is not a significant risk in a judge alone trial. Moreover, to the extent that moral prejudice can arise in a judge alone trial, that prejudice is reduced if none of the underlying incidents are more reprehensible than the others. (R. v. T.B., 2009 ONCA 177, at para. 33).”

[16] This was a judge alone trial. Generally, the risk of prejudice is reduced in a judge alone trial. As held by Justice Paciocco (as he then was) in R. v. J.V., 2015 ONCJ 815, the information being offered by the Crown as similar fact evidence “is already necessarily being heard because the similar fact evidence incidents are charged incidents, and the Crown is entitled to attempt to lead the evidence to prove the charges to which that evidence directly relates. Simply put, the evidence relied on as similar fact in this case is admissible in its own right, and is going to be heard whether used as similar fact evidence or not.”

[17] The Crown submits that after viewing the evidence across all counts, there is a pattern of conduct that shows a consistent set of circumstances, namely that R.G. was abusive and controlling, and sexually assaulted the complainant on numerous occasions. As well, the Crown submits that since the complainant was threatened with death by S.G. and V.G. (and assaulted by S.G. as well), the similar fact evidence will assist the Court in understanding the narrative and the nature of the relationship between all parties.

[18] Dealing briefly with the Handy factors, the evidence is strong and certainly probative in value. As held by Justice Copeland (as she then was) in R. v. Babbar, 2017 ONCJ 862, the possible issues with the credibility of the complainant (and her father S.P.) “do not rise to the level that they render the proposed similar fact evidence so lacking in probative value that it should be excluded.”

[19] I also have little concern with respect to any potential issue of collusion. The record does not support any finding of actual collusion between the complainant and S.P. so as to weaken the evidence such that the prejudicial effect of using that evidence on a count to count basis outweighs the probative value.

[20] The evidence is capable of supporting the inferences for which the Crown seeks to tender it. The risk of prejudice in this case, and in particular the risk that admitting the similar fact evidence could lead the Court to convict based on reasoning that the accuseds are all of bad character, is minimal at best.

[21] Accordingly, I grant the Crown’s application for the evidence on each count to be admissible as similar fact evidence in relation to the other counts.

General Background

[22] This was the second arranged marriage for each of R.G. and the complainant. Through the website www.shaadi.com, the complainant’s parents together with V.G. and S.G. arranged a meeting between their children at the property.

[23] The complainant lived with her parents in Montreal at that time. She drove with her parents to the property in the early spring of 2015. R.G. and the complainant then met each other for the first time, and spent time alone separate from their parents that day. They were both agreeable to getting married and it was decided that the wedding would take place in Toronto on April 15, 2015, despite the complainant’s family suggesting that it take place in Montreal given the fact that most of their relatives lived there.

[24] During the weeks that followed, the complainant and R.G. spoke on the phone several times. They were married in a traditional Hindu temple, and thereafter started living together at the property with R.G.’s parents.

[25] R.G., V.G. and S.G. all worked at their respective jobs; on many days they were out of the house for long shifts, and this required them to wake up early and/or stay out working late. The complainant had experience working for her sister’s restaurant in Montreal, and was always interested in continuing to work in that industry. Ultimately, she got a job at a factory and was typically driven to and from her shift by R.G.

A] SEXUAL ASSAULT CHARGES

[26] With respect to the offence of sexual assault, the Crown must prove the following actus reus elements beyond a reasonable doubt:

(a) there was touching; (b) the sexual nature of the contact; and, (c) the absence of consent.

[27] With respect to the mens rea elements of the offence, the Crown must prove the following beyond a reasonable doubt:

(a) the accused intended to touch the complainant; and, (b) knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched

[28] As set out hereinafter, the complainant and R.G. have different accounts of the events giving rise to the ten counts of sexual assault. In essence, the complainant testified that she never provided her consent to any of the sexual encounters with R.G. forming the basis of the ten counts of sexual assault.

[29] Conversely, R.G. testified that the complainant gave her consent on each and every occasion when the two of them participated in any sexual activity. In addition, R.G. testified that the complainant’s account of certain events was exaggerated, overstated and/or did not happen the way she described.

[30] Dealing with the charges of sexual assault, since R.G. testified, I must decide whether I believe his evidence. As held by the Supreme Court of Canada in R. v. W.(D), [1991] 1 S.C.R. 742, if I believe R.G. or I am left in a state of a reasonable doubt by R.G.’s evidence, then I must acquit him of the charges of sexual assault. Even if I do not accept R.G.’s evidence and I am not left in a state of reasonable doubt, I still must determine whether I am satisfied of his guilt beyond a reasonable doubt on the evidence that I do accept.

[31] I rely upon the following comments of Justice Code in R. v. Thomas, 2012 ONSC 653:

“The first aspect of this argument is based on a literalist reading of the model jury charge in W.D., as if it sets out three sequential steps that the trier of fact must take, one at a time. Mr. Gold submits that the trial judge erred in his timing because he accepted the Crown’s evidence (“step 3”) before he even considered Thomas’ evidence (“step 1” and “step 2”). Mr. Gold concedes that the trier of fact must take all the evidence into account, at “step 1” and at “step 2”, but that it is an error to actually accept the credibility and reliability of the Crown’s witnesses when undertaking the first two temporal stages of this complex analytical exercise.

In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). See: R. v. Edwards, 2012 ONSC 3373 at paras. 13-25 (S.C.J.), where the authorities on this point are discussed at some length.

Mr. Gold’s approach is unworkable in practice. A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.”

[32] As found in certain post-W.D. cases, examining R.G.’s evidence first, followed by an assessment of the complainant’s evidence, is not an ideal way to proceed. The burden rests and remains on the Crown throughout this proceeding to prove R.G.’s guilt beyond a reasonable doubt, and it is never a matter of simply deciding which version is the more believable and making factual findings accordingly. As Justice Harris recently held in R. v. J.M., 2018 ONSC 344, fact finding is often a “binary process” and the Court must not “mistake the factual analysis – which has two options – for the legal analysis – which has three.”

The Fallout from the Section 276(1) Order

[33] Before I embark upon my assessment of the evidence relating to the various charges of sexual assault, I wish to comment upon a theory of the defence raised by counsel for R.G. at the outset of the trial but decreasingly pursued as the trial continued.

[34] On April 12, 2018, I released my Reasons for Decision granting R.G.’s application under section 276(1) of the Criminal Code, R.S.C. 1985, c. C-46 permitting him to cross-examine the complainant with respect to the consummation of her prior annulled marriage in India. During the complainant’s cross-examination, it was suggested to her on several occasions that she did in fact consummate her previous marriage, and that the grounds listed in support of her request for a divorce (ie. non-consummation) were fabricated and untrue.

[35] This was being suggested to the complainant in support of a theory that she has and will lie in court proceedings in order to extricate herself from an unsuccessful marriage. As the trial proceeded, it became more apparent to me that such questions related to issues which were clearly collateral in nature, especially given the fact that the complainant’s first husband was never called as a witness (despite indications from counsel for R.G. that he would in fact be testifying), and no court documents from the Indian divorce proceedings were ever tendered as exhibits in this trial.

[36] Counsel for R.G. attempted to portray the complainant as someone motivated to leave her marriage to R.G. “with honour” by fabricating her evidence so that she would still be looked at as “pure” in her community, having been the victim of alleged sexual assaults. No expert evidence was called or tendered in this regard. To the extent that such questions were put to the complainant or her father S.P. in cross-examination, neither of them agreed with the suggestions and there was essentially no other evidence in the record for me to make any determination as to whether the complainant consummated her first marriage, or lied about anything in her divorce proceedings.

[37] To the extent that counsel for R.G. intended to use the alleged consummation of her first Indian marriage as part of some motive to fabricate evidence in this trial, I reject such a theory and it played no role in my determination of the factual and legal issues raised at trial.

Credibility and Reliability

[38] I begin with the evidence of R.G. For the reasons which follow, I do not believe R.G.’s evidence and his account of each incident. I do not come to this conclusion lightly, and have carefully reviewed the evidence and my notes taken during the trial. Like each witness, I paid close attention to R.G.’s testimony, and drawing upon the following facts and conclusions, I am not able to believe him:

a) despite his testimony that he wanted his marriage to work, and was interested in making it a successful relationship, during most of his testimony R.G. seemed dismissive, nonchalant, aloof, arrogant and not genuine. Not only did he show little interest for the complainant, his testimony confirmed that little interest in her existed throughout the course of their marriage.

b) for me to believe R.G.’s version of events at trial means that he was not truthful to the police when he gave his initial statement, which of course was much closer to the time of the actual events giving rise to the criminal charges. While I will have more to say about this in my assessment of each count of sexual assault on the Indictment, R.G.’s account to the police of his attempts to have anal intercourse was completely different than what he said at trial. He told the police that he and the complainant never had any fights whatsoever between them, physical or otherwise, minor or major. He told the police that the complainant was always happy and never cried as no problems ever arose. He told a completely different story at trial, and in fact relied upon their deteriorating relationship (which included many fights, arguments and crying) as support for his decision to “let the complainant walk away from the marriage”.

c) there was objective evidence filed at trial with respect to the complainant’s poor health during the marriage, resulting in trips to the doctor and one trip to the hospital when she was tested for meningitis and ultimately diagnosed with a urinary tract infection. There was no expert evidence to link the urinary tract infection to any sexual activity with R.G. and I make no such finding. That said, his evidence surrounding his wife’s health and hospital attendance was disconcerting and bordering on unsettling. He denied knowing very much if anything about her symptoms, despite being her husband and living with her in the same room every day and night. Despite R.G. and his mother S.G. accompanying the complainant at the doctor’s office and the hospital, neither R.G. nor S.G. were able to give any evidence as to the details of the complainant’s physical condition. R.G. played down the extent of the complainant’s physical symptoms, denying that she had pain in her abdomen or lightheadedness. After receiving the urinary tract infection diagnosis, he never called the complainant’s parents to let them know that they were even at the hospital, or that everything would be alright. At trial, R.G. denied remembering anything about that diagnosis, yet told the police previously that he knew she had “an infection in her washroom part”. R.G. was more interested in having the complainant return to work as soon as possible than her recovery from any illness.

d) R.G.’s attitude towards the complainant, and towards their marriage, was unilateral and domineering. He testified that he was confident and hopeful that the complainant “would listen to him and be a good wife”. He forbid her from wearing makeup in public or at work. He forbid her from working at Tim Horton’s, as he wanted the complainant to have a job where “she had to work every single day and not have it easy…working properly means a factory job.” Despite the complainant telling R.G. that she found factory work hard and preferred to work in a restaurant setting (an industry with which she had experience), he maintained his demand that she continue to work at the factory job every day. He would swear at her, calling her a “sister fucker” when he became jealous and suspected her of seeing other men due to her wearing makeup to work.

e) at trial, R.G. spoke about the complainant commenting about his “tiny penis” when he was first naked before her on their wedding night. He said it made him feel ashamed and self-conscious, but it was never an issue in the marriage. Later in his testimony, he essentially confirmed that his small penis was the reason the complainant was allegedly never satisfied with sexual intercourse with him, and ultimately led the complainant to leave the marriage for that reason. This has no air of reality, is internally inconsistent, and not credible.

f) when the complainant’s parents came to visit after they learned she was ill, the complainant testified that she wanted to return to Montreal with them to recover for a few days with her family. The complainant said that R.G. and S.G. refused her request. R.G. testified that it was the complainant who did not want to go back and join her own parents in Montreal, and wanted to remain in Toronto with him. Again, this has no air of reality, and appeared rehearsed in an attempt to explain why the complainant ended up not going to spend time with her parents.

g) R.G. offered no plausible or believable evidence to support how the complainant received numerous bruises, contusions and what appear to be bite marks on her body as documented by the photographs taken on July 14, 2015 after she reported the various incidents to the police.

[39] Notwithstanding the submissions of counsel for the accuseds, I found the complainant to be a credible witness when testifying about most of the incidents. As stated, there are photographs documenting her physical injuries present when she left the marriage on July 13, 2015. She presented as a truthful and sincere witness. It is my view that the complainant has been through quite a lot in her relationship with R.G., and I believe her characterization of their marriage as being controlled and dominated by R.G. and his parents.

[40] There were some inconsistencies in her testimony, and some of those inconsistencies were arguably more than minor in nature, causing her evidence in some aspects to be not reliable. While she did her best to tell the truth, and I believe she was honest, the lack of reliability in some parts of her evidence will be dealt with later in these Reasons.

[41] Revisiting the (already rejected) theory that the complainant was motivated to fabricate evidence in order to exit her failed marriage, and leave her marriage to R.G. with “sufficient honour” so that she could remarry if possible, I find that to the extent a spouse would want to exit a marriage for the reasons proposed, there is no objective reason why that spouse would fabricate so many allegations over a three month period. If one allegation of sexual assault would be sufficient to “exit a marriage with honour” (and again, I make no finding on that issue), to allegedly fabricate enough evidence to support ten counts of sexual assault would not just seem like “overkill”, but run counterproductive to the original intention.

[42] I find that the complainant held off on reporting the events giving rise to the charges to her parents, friends or the police for several months because she had a sincere and honest belief, or perhaps hope, that things would change and placed her faith in the marriage arranged by her parents. She already endured one failed marriage, and very likely had no desire to see her second marriage fail as well.

[43] Of course, my findings with respect to the complainant’s credibility does not end the analysis in this proceeding. I must assess the totality of the evidence, mindful of the criminal onus of proof at all times.

[44] I shall now proceed with each separate count of sexual assault against R.G. on an incident by incident basis. These counts do not match the enumerated counts on the Indictment, a task I will complete in the Summary at the end of these Reasons.

Counts #1 and #2 - The Wedding Night Incidents

[45] The complainant gave evidence about two separate incidents which allegedly occurred on her and R.G.’s wedding night. After the ceremony ended, the complainant and R.G. returned to the property by approximately 7:30 pm. She stated that R.G. began kissing her in their bedroom, first on her cheek and then her lips, and thereafter began touching her breasts. R.G. said “I want to have sex with you” (or words to that effect), and began to remove the complainant’s clothing.

[46] The complainant testified that as she was being pushed towards their bed, she told R.G. that she was scared and was not interested in sex that evening. She then testified that R.G. “started having sex with her forcefully, holding both her arms while on top of her and putting his penis between her legs”. He then inserted his penis into her vagina while she was telling him not to do it. The complainant testified that after his penis penetrated her vagina, she felt “a pain in her tummy” and started to effectively pass out. She kept her eyes closed during intercourse, and when it was over she told R.G. that she was feeling a lot of pain during sex with him. She was thereafter invited by V.G. to come down and have something to eat in the kitchen, but she said she was not able to sit or walk properly due to pain in her lower abdomen.

[47] In cross-examination, the complainant agreed that during her police interview (given on or about July 15-16, 2015), she did not tell the police that sex with R.G. during this first wedding night incident was done forcefully or that he had opened her legs with his own legs. She further stated that while her clothes were being removed she did anticipate consummating her marriage to R.G., but she thought he would stop if she told him “no”.

[48] With respect to the second wedding night incident, the complainant testified that when she later returned that evening to their bedroom, after changing her clothes in the adjacent guest room, R.G. advised that he wanted to have sex with her again. He began kissing her lips and cheeks and pressing her breasts “with excessive force”, squeezing his fingers together. The complainant testified that she told him “she did not want to do it again now” because the previous intercourse was causing her to experience pain. R.G. then proceeded to have sex with her “forcefully” like the first incident. R.G. had sex with her the same way he did the first time, holding her arms down and opening her legs with his legs. The complainant testified that sex this time was even more painful, and R.G. responded by stating “don’t worry…let it happen…let the pain happen.”

[49] For his part, R.G. testified that the complainant was always sexually active, and expressed disappointment with the size of R.G.’s penis when he first took off his clothes on their wedding night. R.G. agreed that they had sex twice that night, but according to him, at no time did the complainant ever express any desire not to have sex with him. R.G. stated that he never once forced her to have sex during their entire three month marriage, and any sexual activity proceeded with her consent. He stated that it was the complainant who took off her clothes on their wedding night, and she agreed to have sex with him both times at his suggestion.

[50] R.G. testified that he was insulted and upset when the complainant made fun of the size of his penis, but he never responded to that comment and did not ask her any questions as “the sex went well and everything was fine”. R.G. further testified that the complainant voluntarily performed oral sex on him on their wedding night.

[51] While I have significant difficulty in believing R.G.’s account of the two wedding night incidents, I am not satisfied that these two counts of sexual assault have been proven beyond a reasonable doubt. Throughout her lengthy testimony, on some occasions the complainant was steadfast that she never, ever provided her consent to sex in the manner performed by R.G. On other occasions, the complainant gave evidence that during the first (approximate) two weeks of their marriage, i.e. leading up to their honeymoon day trip to Niagara Falls, “everything was okay” and she did agree to having sex with R.G. (albeit on some occasions only because she says she felt compelled to do so).

[52] I am drawn to the following lengthy exchange during her cross-examination on April 20, 2018:

“Q. Let’s go back now in terms of my question about whether or not you would agree to have sex with him when he would ask you. You gave evidence at the preliminary hearing on July 11th, 2016, and these were questions the crown attorney asked you, page ten, starting at line 30 – oh, [indiscernible] transcripts. Question was posed to you by the crown attorney as follows:

“Okay. How often would, would that type of behaviour happen, having sex when you didn’t want to?”

Your answer was, “Most of the time I didn’t want to have it.”

So you said most of the time, therefore there was some of the time that you wanted to have sex with him

A. When he started forcing me and I’m telling you, telling you that before going to Niagara Falls in that week I used to agree, and the week of marriage when he used to say that I want to have sex and I agreed.

Q. The question wasn’t about Niagara Falls or a certain time, it was about the course of your marriage.

A. That was part of marriage, that’s why I was agreeing.

Q. The next question was:

“Okay. And sometimes did you want to have sex?”

And your answer was, “Yes, when he would compel me I would say okay.”

Next question, “Oh, I see, okay. And how, how about per week? Can you give us a guess as to how many times a week he was having sex with you when you didn’t want to?”

And your answer was: “Most of the time in a week I would say no, but maybe one or two times I would say okay.”

The next question was, “Okay. And how many times would, would you say no and he would have sex with you during the week?”

And your answer was, “One or two times I would say no, I don’t want it, and he would say no, he does want it. Then he would compel me. He would force …”

And the next question was, “Okay.”

And you say, “…me.” You completed your sentence.

And the next question is, “All right. So he was compelling you to have sex once or twice a week?”

And your answer was, “Yes, he would do sex for the whole week, but one or two times he would compel me that I have to do it.”

And the next question was, “All right. So the rest of the time you wanted to do it. Is that what I’m understanding?”

And your answer was, “Yes, I would say okay.”

Next question, “I see, okay. And when you would say okay, did that mean you wanted to? Or you were just saying okay?”

And your answer was, “Just for his sake I would say okay.”

A. Just, just, just to make him happy I would say okay. But I didn’t want to do the way he was playing.

Q. I under – you might – you agreed to his requests.

A. Yes, when whenever he used to say that I want to jump, then at that time I said, okay, do it.

Q. Go ahead.

A. That is the next week after going to Niagara Falls, and I had no idea that they asked about whole marriage.”

[53] In re-examination, the complainant testified that the time period referred to in her above preliminary inquiry testimony related to the first two weeks of their marriage, and not throughout the entire marriage. I accept that evidence. I find her evidence at the preliminary inquiry being perhaps “lost in translation” and that she was referring to the first two week period when answering the questions posed to her. That said, her evidence at the preliminary inquiry, and on occasion during the trial of this proceeding, confirmed that she did consent to some sexual activity during those first two weeks.

[54] While I find the complainant to be credible, I cannot find her evidence surrounding the first two counts to be reliable. I am not convinced that the Crown has satisfied its obligation to prove these first two counts on the standard of beyond a reasonable doubt.

[55] As the Crown has not met its onus, I find R.G. not guilty of these two charges.

Count #3 – The Niagara Falls Hotel Incident

[56] Approximately two weeks after their wedding, the complainant and R.G. decided to celebrate their honeymoon with a day trip to Niagara Falls, Ontario. On April 26, 2015, they drove together to Niagara Falls and rented a day room at a hotel. The complainant testified that when they arrived at the hotel room, R.G. asked her to look at the beautiful view from the window, and then stated that he wanted to have sex with her. At the time, the complainant was menstruating. In cross-examination, the complainant agreed that she had discussed getting pregnant with R.G., and was interested in trying to have a baby at that time. However, she testified that she never consented to having sex in the Niagara Falls hotel room while she was menstruating. There was some confusing evidence from both the complainant and R.G. that they may have collectively believed that the chances of the complainant getting pregnant were increased if sex occurred during menstruation. There was no expert medical evidence called on this issue, and while it may be tempting to conclude that one or both the complainant and R.G. were naïvely mistaken, I make no such finding on the record before me. In any event, the two of them did discuss having a baby in Toronto in the time leading up to their honeymoon.

[57] After telling R.G. that she did not want to have sex, the complainant says that R.G. pushed her on the bed with his left hand on her shoulder, forcefully removed her clothes, took off his own clothes and forcefully inserted his penis into her vagina. The complainant testified that she was having significant pain during intercourse and crying, all the while telling R.G. to stop. When he finally did stop having sex with her, he ran to the washroom to clean up his genitals, returning shortly thereafter and telling the complainant to go clean all the blood from her legs, thighs and vagina. She was on the bed crying. She says that R.G. stopped having intercourse with her when he realized there was simply excessive bleeding. Her evidence at the preliminary inquiry seemed to suggest that her main concern during this entire incident was the mess it created. After intercourse, they both went to see Niagara Falls, and then ate at a McDonald’s restaurant. The complainant said she was in persistent pain and wanted to return home.

[58] R.G. testified that they did have sex when they arrived at the Niagara Falls hotel room, but they stopped because her menstruation began during sex and she started to bleed. R.G. testified that the complainant told him on the way to Niagara Falls that she was going to get her period imminently. He stopped having sex with her on his own, and the complainant never asked him to stop.

[59] After they left the hotel and visited Niagara Falls, R.G. took various pictures of them to document their honeymoon day trip. Those photographs were filed as exhibits in the trial, and show the two of them kissing each other’s cheeks, together with at least one or two photographs of the complainant smiling. When it was suggested to her in cross-examination that she appeared happy in those photographs despite being allegedly sexually assaulted less than an hour earlier, the complainant stated that she smiled in the pictures because R.G. told her to, as the photographs were being sent to their respective families. She was still very sad “on the inside”.

[60] I do not find R.G.’s account of that day’s events to be credible or reliable. In his cross-examination, he initially denied having sex with the complainant at all that day, but then changed his evidence to admit starting sex but stopping it once the complainant began menstruating, insisting that the complainant wanted to continue. This was not believable. In fact, on several occasions during his testimony R.G. attempted to paint the complainant as someone whose sexual desires could never be satisfied by him, right up until the day the complainant ultimately left the marriage. R.G. displayed a sense of “nonchalant arrogance” when describing this entire Niagara Falls incident. If the mess caused by the complainant menstruating allegedly caused him to stop having sex on his own, and he knew that the complainant’s menstruation was imminent mere hours earlier, R.G.’s version of events strains the limits of credibility.

[61] When describing the Niagara Falls incident, I found the complainant to be credible. Counsel for R.G. complained that the plaintiff shed “crocodile tears” during this part of her testimony. To the extent that the complainant did break down and cry during her testimony, I found those tears to be real and caused by counsel for R.G. persistently revisiting the same questions over and over, as if the complainant had been expected to keep a daily diary of all events which took place during the marriage. While some questions and answers may have been lost in translation during this trial, thereby permitting counsel for R.G. to revisit certain questions or topics on occasion, the complainant did not shed any crocodile tears. During her testimony, the complainant was generally comfortable in the witness stand, but understandably uncomfortable revisiting the events put to her numerous times. When she understood the questions, she was responsive, and her flashes of emotion appeared spontaneous, and more importantly genuine. Her description of the Niagara Falls incident was detailed and relayed with emotion that was real and natural.

[62] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As such, I find R.G. guilty of this charge.

Count #4 - Home from Niagara Falls

[63] The complainant testified that she asked R.G. to drive them back to Toronto from Niagara Falls as she was having serious pain post-intercourse. When they returned to the property, she went into the adjacent guest room to change her clothes. R.G. followed her into the room, and grabbed and squeezed her breasts forcefully, asking her to go to their bedroom. She told him to leave her alone. When she went into their bedroom, R.G. repeated his desire to have sex with her, and she refused as she was in significant pain. She was still menstruating at the time, but R.G. insisted on having sex in any event because he told her “if they have sex while she is on her period they will have a baby”.

[64] They did not have intercourse that evening, but the complainant testified that R.G. bit her on both sides of her breasts, her right shoulder, and her thighs. She saw blood on his clothes when he hugged her afterwards, and the blood came from her nipples after they hugged. Once again, R.G. responded with “it’s okay…let the pain happen”. He stopped biting when she finally pushed him away, but when they laid down in bed to sleep R.G. still held her breasts “with force” while she cried herself to sleep.

[65] The complainant agreed in cross-examination that at no time did R.G. force her to have sex that evening, but she never agreed or consented to her breasts and other body parts being touched, squeezed and grabbed. She most certainly did not agree to her body and breasts being bitten. In cross-examination, she admitted that she was mistaken by originally testifying that R.G. had bitten her arms and breasts in addition to her nipples and thighs, as the day upon which he bit her nipples, arms and breasts was a different incident.

[66] For his part, R.G. denied that the entire episode ever occurred, and that he never bit her anywhere on that day or another day.

[67] Similar to Count #3 and the events which took place earlier that same day, I find the complainant’s evidence relating to this incident to be credible and reliable. She was not shaken in cross-examination relating to this incident. Photographs taken after the complainant reported these matters to the police show bruising and similar marks over her body. While those photographs may not necessarily show the results of R.G. biting her nipples and thighs in April 2015, they are evidence of her body being bitten and squeezed right up until the end of the marriage.

[68] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As a result, I find R.G. guilty of this charge.

Count #5 – Four Fingers/Anal Sex Attempt Incident

[69] The complainant testified that several days after returning from Niagara Falls, R.G. inserted four of his fingers into her vagina without her consent. Up to that point, R.G. had only inserted one finger into her vagina during previous sexual incidents between them. On this occasion, when R.G. had asked to have sex with the complainant, she told him she had just returned from work and was too tired. In response, R.G. told her that they would not have sex “in that way” and inserted four fingers into her vagina, twisting them around in a circular motion. R.G. never asked for her consent, but the complainant testified that while she did not want the four fingers inserted into her vagina, she never said this out loud to R.G. However, the complainant began crying from pain, and R.G. asked her to stop crying or his parents would wake up. The complainant then testified that R.G. tried to insert his penis into her vagina again without her consent. She told him she did not want to have sex because she was in pain from his four fingers. He proceeded to have sex with her anyway with the complainant lying on her back.

[70] R.G. then advised the complainant that he wanted to have sex with her “from the back side”, which meant anal sex. R.G. got upset when she refused to have anal sex with him, and she turned her back to him facing the wall of the room. She testified that R.G. then came from behind her and started squeezing her breasts, telling her that if she did not allow him to have sex with her then he would “go to other girls”. The complainant testified that she cried herself to sleep.

[71] In cross-examination, the complainant testified that R.G. in fact said “if you don’t allow me to do it from the backside, it is better that I should die…I’ll jump from the window”. At no time did she consent to the four fingers being inserted into her vagina, or the sex that she once again described as being done “forcefully”.

[72] Counsel for R.G. questioned the reliability of the complainant’s evidence describing this incident, and in particular whether or not she consented to the digital penetration and intercourse. During her cross-examination, the plaintiff gave the following evidence about the events of that day:

“A. Yes, when he was threatening like that, at that time I agreed.

Q. When he was threatening to go to another women, you mean?

A. Oh he was saying I will jump from this window. I was not agreeing from the backside, I was agreeing from the front side.

Q. So you had consensual vaginal sex first before this argument started about wanting to have anal sex, is that right?

A. When he was saying that I will die and then said okay, if you want, you can do it from the front side”.

[73] Consent to sexual activity or intercourse involves the complainant’s state of mind. It is her voluntary agreement that R.G. could do what he did, in the way in which he did it, and when he did it. Put simply, to find that the complainant consented means that she wanted R.G. to do what he did, of her own free will. Her decision must be voluntary and without the influence of force, threats or fear.

[74] While the complainant’s evidence confirms that R.G. certainly acted in an emotionally manipulative manner, I am not satisfied beyond a reasonable doubt that she did not consent to the sexual activity on that day. When she refused to have anal sex with R.G., she also allowed him to have vaginal intercourse with her. Counsel for R.G. submitted that there are occasions when an individual may agree to have sex with his/her spouse just to please that spouse even if the individual may not be “in the mood”. While I make no finding that this is in fact what occurred that day, the cumulative effect of the complainant’s evidence leaves me with sufficient concerns about the reliability of her evidence, and leaves me with a reasonable doubt.

[75] As the Crown has not met its onus, I find R.G. not guilty of this charge.

Count #6 - Couch then Upstairs Incident

[76] The complainant described an incident that occurred on or about June 27, 2015 when S.G. and V.G. were in their bedroom, and she was watching a movie in the living room with R.G. The complainant testified that R.G. wanted sex “in the back side” and he pulled her toward him on the couch. She told him that they should go to the bedroom but he refused. He inserted his penis into her vagina by laying on top of her and pulling her legs back. She described this intercourse as forceful, and in trying to free herself she damaged the leather couch when jewellery that she wore on her leg/ankle area sliced a hole in the couch material.

[77] She eventually freed herself, and then R.G. suggested they go upstairs. She refused. Ultimately they went upstairs and without her consent he had intercourse with her again, biting her breasts and arms in the process. During this bedroom incident, R.G. used four fingers inside her vagina, telling her again to “let the pain happen.” The complainant remembers bleeding from her vagina when R.G. used his four fingers.

[78] For his part, R.G. did not really give much evidence around this incident other than his position that he never had intercourse with the complainant in the absence of her providing him with consent.

[79] In her cross-examination, the complainant testified that she was originally agreeable to having sex with R.G. in their bedroom, but not on the couch as he was persistently suggesting. She never consented to sex on the couch, and once R.G. proceeded to insert his penis into her vagina forcefully, she never consented to any sexual intercourse or activity that day, be it on the couch or upstairs in their bedroom. I believe the complainant’s evidence. To the extent that she was ever agreeable to having sex with R.G., I find that she most certainly would not have wanted to do it openly on the living room couch with S.G. and V.G. home upstairs. Her consent to have sex upstairs was in the face of R.G.’s demands to have anal sex downstairs on the living room couch. Once R.G. began having sex with her forcefully on the living room couch, any form of consent (if it existed at all given R.G.’s persistent requests to have anal intercourse) evaporated.

[80] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As such, I find R.G. guilty of this charge.

Count #7 – The Bindi Incident

[81] A bindi is a coloured, religious dot placed or worn on the center of a woman’s forehead. A woman wears a bindi in order to let others know that she is married. According to R.G., he required the complainant to wear a bindi whenever she was at work or happened to be out alone (which according to the complainant was not very often). She did not have to wear the bindi when she was with R.G.

[82] The complainant gave evidence about an occasion when R.G. picked her up from work, but was upset that she was wearing a bindi, as they had not been “officially or legally” married as of that date (as the marriage had yet to be registered), and only religiously married. As such, R.G. did not want others to know that he and the complainant were married.

[83] According to R.G., he acknowledges being upset with the complainant that day, but it was due to the fact that when he picked her up from work she was not wearing a bindi but was wearing makeup, something he tried to forbid her from doing because he did not “want her looking attractive when she was at work.”

[84] In any event, both the complainant and R.G. testified that an argument ensued as a result of this bindi issue (whatever it was). The complainant testified that when they got home, she went upstairs to change in the guest bedroom. R.G. entered the room, grabbed her by her hair, threw her on the bed, slapped her and caused her to hit the table next to the bed bruising her arm. The complainant began to cry, and R.G. forbid her from wearing makeup or a bindi ever again. He then advised that he wanted to have sex with her, to which the complainant refused. R.G. then squeezed the complainant’s breasts. The complainant then testified that R.G. forced his penis into her mouth over her strenuous objections, and the entire experience caused the complainant to nearly vomit. She testified that she never consented to any oral sex with R.G.

[85] R.G. testified that when they returned home and were arguing about the bindi, he threatened to tell the complainant’s father that she was wearing suggestive clothing and makeup, something which R.G. believed her father would disapprove of without hesitation. He denied never having consent for oral sex with the complainant, and testified that the complainant performed oral sex on him on several occasions.

[86] In reviewing the complainant’s evidence on cross-examination, I found the reliability of her evidence surrounding the bindi incident to be problematic. The complainant testified in cross-examination that despite her evidence in chief, the incident when R.G. forced his penis into her mouth was in fact a completely different incident than the bindi incident. She then changed her evidence again to draw a connection between the bindi incident and when R.G. forced his penis into her mouth, and then she finally conceded that she simply did not remember.

[87] In her police statement given on July 15-16, 2015, she never mentioned that she bruised her arm on any bedroom furniture in relation to the bindi incident. While I have already mentioned that the complainant is obviously not expected to testify as if she kept a diary of every event that occurred during her three month marriage, I view the inconsistencies in the complainant’s evidence surrounding this specific charge to be significant enough to raise a reasonable doubt. The inconsistencies in the complainant’s testimony went beyond simply matters of timing; the narrative of the entire incident, including the context and setting for the alleged actions of R.G., ranged from being described in detail, to completely forgotten. I am therefore left with a reasonable doubt.

[88] As the Crown has not met its onus, I find R.G. not guilty of this charge.

Count #8 – The Pillow Incident (Anal Sex #1)

[89] According to the complainant, one day after work she was with R.G. in the kitchen and he told her that he wanted to “do sex from the back side.” She then advised R.G. that she had no intention of having sex from the back side, but told him that she would consider having sex from the front side. When they were later in the living room together, R.G. repeated his request to have anal sex, to which the complainant repeated her response that she would consider vaginal sex only. The complainant testified that R.G. then grabbed her by her pony-tail and pulled her up the stairs to their bedroom. She said she was trying to make noise so that R.G.’s parents would hear, but he cupped his hand over her mouth and told her to be quiet.

[90] The complainant then testified that R.G. took off her clothes and got her to bend down on all fours with her face shoved in a pillow. He then proceeded to have vaginal sex with her while kneeling from behind her. During vaginal sex, he removed his penis from her vagina and then inserted it into her anus without any warning. The complainant said that she screamed from the pain, and R.G. held her down by her neck pushing her face further into the pillow. She had difficulty breathing and started concentrating on trying to remove R.G.’s hand from her neck. She told him that she was in pain and asked him to stop, but R.G. continued having anal sex with her until he was finished.

[91] In cross-examination, the complainant agreed that during this anal intercourse incident, she repeatedly told R.G. that “it hurts”, but that was all she actually said (i.e. she did not advise him that she didn’t like it, etc.). This was her evidence from the preliminary inquiry which she adopted at trial. I draw no inference from this evidence, as the fact that she may not have said anything other than “it hurts” during anal intercourse does not obviously translate into providing R.G. with her consent.

[92] R.G. testified that the complainant agreed to try anal sex on that occasion, and once she told him that it hurt and asked him to stop, he withdrew his penis from her anus and stopped. This evidence flies in the face of what R.G. told the police in his statement. When asked by the police about this incident, R.G. stated that the complainant never told him that anal sex hurt, and even went so far to tell the police that “everything with anal sex was okay…she would say I want it”. He never mentioned to the police that he was asked to stop during anal intercourse, nor did he mention that he in fact did stop during anal intercourse.

[93] I accept the complainant’s evidence on this point. Her recollection was particularly detailed, even though she was understandably very emotional giving her account of this incident. The complainant was sincere and truthful, and articulated the circumstances around the events leading to this charge. Her evidence alone was sufficiently convincing to support a conviction.

[94] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As such, I find R.G. guilty of this charge.

Count #9 - Anal Sex #2

[95] The complainant testified that on another occasion, R.G. lost his ring and they went to the bank to see if it was in a safety deposit box, as all of the ornaments they received as wedding gifts were apparently located in that safety deposit box. The complainant recalls that on the night before they went to the bank, she agreed to have vaginal sex with R.G. They did have sex with her lying on her back, and then R.G. told her he wanted to have anal sex again. The complainant refused, prompting R.G. to grab her arm, turn her over onto her stomach and insert his penis into her anus. The complainant testified that this anal intercourse was very painful, and she pleaded with him to stop. R.G. then forced his fingers into her mouth, attempting to fit his entire hands inside, so she could not scream.

[96] In his testimony, R.G. agreed that he suggested using lubrication a second time to ensure that the complainant did not experience the pain that she did on the first occasion. He completely denied the story of the lost ring leading up to this incident.

[97] There was diverging evidence from the complainant on whether she consented to having anal intercourse that evening. In cross-examination, she confirmed that during this incident, R.G. used lubrication (described by her as “lotion”), to try and avoid or lessen any potential pain. However, her testimony suggested that she initially consented to having anal sex a second time. I focus on the following evidence from her cross-examination:

“Q. Okay. So there was never an occasion ever during any day of your marriage where you said, okay, I will allow it and then he started to have anal intercourse with you after you said okay?

A. When the ring was lost, at that occasion I said okay, I can do that, but later on I refused.

Q. So you did?

A. Yes, I said it that time and later on I said no I don’t want you to have that.

Q. No, my, my question though to you just before was, was there any time where he asked, you said yes and you went and started to have anal intercourse and you said no.

A. Yes, I said that, and later on I refused to have that, and that was the occasion when his ring was lost.

Q. And with regards to the incidents of anal intercourse, I’m going to suggest to you that the only thing you’ve ever said to your husband during those two occasions, one consensual and one not, was that it hurts.

A. Yes, for the first time when he did that I was having pain. He did that with force. At that time, I told him that I’m having pain, I don’t want to do that. At that time, he pressed my face against the pillow.

Q. You told us that on the ring – the day of the ring incident that you agreed to anal sex?

A. Yes, I agreed you can do. However, I did not let him do because I had experienced it on two past occasions that it – I felt in pain and that’s why I did not want him to do that.”

[98] The complainant gave evidence that when she asked him to stop, R.G. did stop during this second attempt at anal sex. As set out above, she also testified on a few occasions that, at least at the beginning of the incident, she did agree to try anal sex again. There was little evidence to suggest that her consent to try anal sex again was procured through threats, fear, or duress on this occasion.

[99] There is evidence from both the complainant and R.G. that after she complained about the pain during this second attempt, he ceased doing it and withdrew his penis from her anus. It may be that she provided her consent to this second attempt at anal sex, but then subsequently withdrew it at some point. I do not find the complainant’s evidence to be reliable enough to support a conviction on this count, and I am left with a reasonable doubt.

[100] As the Crown has not met its onus, I find R.G. not guilty of this charge.

Count #10 - July 13, 2015

[101] In choosing to prosecute R.G. by way of separate counts relating to separate incidents, I have attempted to review all of the evidence at this trial with a view to understanding and assessing that evidence to support each separate count of sexual assault on the Indictment.

[102] While I believe some form of incident occurred on the morning that she left the marriage (and RG agreed that they had intercourse that morning), most of the complainant‘s evidence surrounding this count related to the fight she and RG had that morning, and how fearful she was of what would happen to her when she returned home from work that evening. Simply put, I find the balance of the complainant’s evidence relating to that morning to be too sparse and scarce to form the basis of a conviction for sexual assault.

[103] As the Crown has not met its onus, I find R.G. not guilty of this charge.

B] ASSAULT CHARGES

[104] The constituent elements of an assault are:

(a) the intentional application of force by an accused on a complainant; (b) the application of force was without the consent of the complainant; and (c) the accused knew that the complainant did not consent to that application of force.

[105] Both S.G. and R.G. are charged with assaulting the complainant arising from three separate incidents. The first incident occurred when S.G. allegedly slapped the complainant at the property on an unknown date. R.G. is charged with two counts of assault arising from two different incidents (July 1, 2015 and July 12, 2015).

Count Against S.G.

[106] In or around early July 2015, the complainant testified that she received a phone call at home from her sister-in-law in Montreal, and during that phone call she asked her sister-in-law to take her away from Toronto because of how she was being treated at the property. R.G. was not home at the time, but phoned home shortly thereafter to speak with his mother S.G. While S.G. was on the phone with R.G., she walked up the stairs and told the complainant to give S.G. the complainant’s cell phone. The complainant testified that as she told S.G. that she would give her the phone, S.G. took the phone from her and slapped the complainant very hard across the cheek with her hand. S.G. then took the complainant’s cell phone and gave her the home phone to speak with R.G.

[107] In cross-examination, the complainant’s evidence from the preliminary inquiry was put to her, and specifically her prior evidence that she was talking to R.G. on the home phone when S.G. slapped her across the face. The complainant said that R.G. had actually phoned her cell phone while she was talking to her sister-in-law before R.G. called the home phone (as the complainant apparently did not answer R.G.’s call). The complainant further testified that she was sitting on the stairs between their bedroom and the upper floor containing the bedroom of S.G. and V.G., and it was at this point when S.G. slapped her. She followed S.G. down the stairs after the alleged assault. The complainant clarified that when she was slapped by S.G., S.G. was holding the home phone that R.G. was calling on, and the complainant did not have the home phone in her hand.

[108] S.G. testified. She completely denied ever slapping or otherwise striking or assaulting the complainant then or at any other time. I did not find her to be a credible witness. Any suggestions of evidence against her interest were instantly minimized. Her evidence was internally inconsistent, and some of her responses strained the limits of common sense. She testified that more people from the complainant’s family came from Montreal to the wedding than her own family. This was simply not true. In cross-examination, she significantly downplayed the complainant’s health issues, completely forgetting or choosing to forget how many times the complainant went to the doctor even though S.G. accompanied her. S.G. testified that she only remembered the complainant suffering from a headache, and had no memory or knowledge of any urinary tract infection or other pains in the complainant’s abdomen. S.G. completely denied the existence of any problems in her son’s marriage to the complainant. She supposedly saw both children happy all the time, and never heard a sound out of their bedroom – using her words, “no talking and no movement”. This has no air of reality, and is in fact inconsistent with R.G.’s evidence, who testified after S.G. completed her testimony.

[109] Counsel for S.G. relies upon internal, temporal inconsistencies in the complainant’s evidence relating to the date she was slapped by S.G. In cross-examination, the complainant confirmed that S.G.’s slap occurred on the same day that both S.G. and V.G. threatened her (and I will address those additional charges later in these Reasons). The date was approximately two weeks before July 13, 2015 which was the day the complainant left the marriage. The complainant’s best estimate was that S.G.’s slap occurred on or about June 30, 2015. Counsel for S.G. points to the complainant’s evidence in chief when she stated that her vacation period from work was supposed to begin at the end of June to the first week of July. According to counsel for S.G., this is important because during her phone call with her sister-in-law, she was discussing her “upcoming vacation time”, and this vacation time supposedly had already begun before June 30, 2015. In fact, counsel for S.G. suggested to the complainant in her cross-examination that she altered her evidence to now state that her vacation time was to commence in the end of July 2015. As such, counsel for S.G. submits that the entire episode was an invention on the part of the complainant.

[110] I agree that the timing of the alleged slap by S.G. was not consistently described in the complainant’s evidence. I do not find this to be a major inconsistency, and certainly not an inconsistency capable of supporting the suggestion that the events were fabricated. It could very well be that the timing of the complainant’s phone call with her sister-in-law was approximately a week earlier than she remembers. I would not expect the complainant to be able to point to the specific day when she was slapped by S.G., especially in light of everything she was experiencing on a day to day basis. While the timing of the assault did apparently change in her evidence, the substantive details and narrative of the events did not.

[111] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As such, I find S.G. guilty of this charge.

First Count Against R.G.

[112] The first assault allegedly committed by R.G. against the complainant occurred on July 1, 2015. The complainant testified that after she finished work (which ended early due to the statutory holiday), she spent time with work colleagues and then took the bus home. She says she called R.G. to pick her up early but she did not think he would come as he and his family were watching fireworks. When she arrived home, R.G.’s car was missing and she called his cell phone. He told her that he went to the factory to pick her up and she was not there. R.G. then told her to wait outside the house and not go inside until he returned. She went into the house while she was on the phone with R.G., who heard her do so and told her he would speak to her when he got home.

[113] The complainant testified that when R.G. came home, he walked into the kitchen, grabbed her by the front of her neck and her left forearm and told her to get out of his property. He pushed her towards the stairs. She walked down the stairs and out of the house where she sat outside for 10-15 minutes. R.G. then came outside and told her to come back in and that was her “last warning” and that she should “not do it again.”

[114] R.G. testified that he in fact left early to pick her up from the factory as it was raining on Canada Day. When he arrived, nobody was there and according to a security employee with whom R.G. spoke that day, nobody had been there for at least two and a half hours. R.G. was very clear in his evidence in chief that he believed the complainant was lying about when she left work as she had attended a holiday party with friends that day. He seemed to be suggesting that the complainant was unfaithful to him. He was also apparently finished with the whole relationship, telling her “get lost…go where you want to go…anywhere you want to go you can go as I don’t have no problem with it.”

[115] R.G. further testified that he did threaten to throw her outside the house that day, but he never did. In cross-examination, R.G. admitted that he was “very very angry” when he returned home after not finding the complainant at work. He admitted using bad language and calling her a “sister fucker”. He accused her of lying and was very suspicious of the complainant, but denies making her sit outside for 15 minutes.

[116] When asked whether the complainant had previously taken the bus home (as opposed to R.G. consistently picking her up), he did say that she took the bus home on several occasions. The complainant told him that she had in fact been at a holiday party, but R.G. thought that she was making an excuse and he did not believe her.

[117] In cross-examination, his story changed and he testified that the complainant did in fact call him and told him not to come to pick her up from the factory that day. This was a completely different account of the events leading up to his attendance at the factory. He says he was willing to end the marriage that very day due to their argument, and from that day forward the relationship changed as his suspicion never waned.

[118] R.G.’s evidence was internally inconsistent and seemed to change with a view to admitting his palpable anger and frustration, but not the assault. The version of events described by the complainant is consistent with how she was treated by R.G. during their marriage. R.G. exerted dominance and unilateral control over the complainant, and if he did suspect her of being unfaithful, his actions and reactions that day were entirely consistent with how he saw the complainant’s role and place in their marriage.

[119] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As such, I find R.G. guilty of this charge.

Second Count Against R.G.

[120] Dealing with the second alleged assault by R.G. against the complainant, she testified that R.G. asked her to have sex that morning and she said no. The complainant went to perform her morning prayers and then take a shower. R.G. then squeezed and held on to her legs in an effort to pin her down and have sex with her. R.G. hit the complainant with his knee on her leg near her hip.

[121] According to R.G., he had sex with the complainant that morning, as she was begging him for it and “convinced him that everything was fine in their marriage”. She then wanted to have sex a second time that same morning and advised him that he never satisfied her. An argument ensued and from his perspective the marriage was done.

[122] With respect to this assault charge, I am left with a reasonable doubt. It was unclear whether the complainant agreed that they had sex that morning. At the preliminary inquiry, she seemed to indicate that she had sex with him “in the morning time” that day, and that was the same day he hit her with his knee. In cross-examination at trial, she did not appear sure that the incident where he hit her with his knee occurred that day. I am simply not convinced on the requisite standard that the assault occurred that day.

[123] As the Crown has not met its onus, I find R.G. not guilty of this charge.

C] UTTERING A THREAT TO CAUSE DEATH CHARGES

[124] There are two essential elements to the offence of uttering a threat to cause death. First, the Crown must establish that an accused made a threat to cause an individual’s death. Second, the Crown must establish that an accused made the threat knowing that the threat would be taken seriously.

[125] Each of R.G., S.G. and V.G. are charged with uttering a threat to cause death. Each alleged threat arose from separate, isolated events. I shall assess the evidence relating to each incident separately.

Count Against R.G.

[126] In her examination-in-chief, the complainant testified that near the end of the marriage, perhaps 7-10 days before she left on July 13, 2015, R.G. came to pick her up from work and during the car ride home they had an argument resulting from R.G.’s disappointment that she wore a tight t-shirt and makeup to work. The complainant expressed to R.G. that he had ruined her life. As they were driving, R.G. slowed the car down near a bridge and told her that she should “jump from it and kill yourself.”

[127] In cross-examination, the complainant stated as follows:

“Yeah, because before that, three o’clock, I went to work and then like, I took the phone from him, like ah, like I just took it without his knowledge. So that time, he phoned me and he said either you die or I’m going to kill you. Night time I was praying a lot and I said you ruined my life. He said, yeah, you jump from the bridge and then you die. So then he was bringing me in the car from work. Even that time, I was crying. He slowed down the vehicle and he said, okay, you go and jump from here.”

[128] The complainant testified that R.G. told her multiple times “you die or I’m going to kill you.” He further stated that when she heard him say this in the car, she first assumed he was joking, but then took his comments as they slowed down to the bridge to mean that R.G. was actually “way more serious about it.”

[129] R.G. testified that during the car ride, he threatened to tell the complainant’s father about her clothing and makeup and she begged him not to because her father would “kill her.” During that same ride, R.G. said “if you want to…go ahead, you could jump.” This was in reference to the bridge coming up in view, and R.G. testified that his comments were following up with the complainant’s feelings about her own father killing her. This allegedly occurred days before he told the complainant that their marriage was over, which prompted the complainant to allegedly beg R.G. to stay with her.

[130] In cross-examination, R.G. admitted that, at that point, he did not want to stay married to the complainant any longer. He admitted that he told her to jump off the bridge and kill herself, but he said those words in the context of what the complainant said about her dad killing her if he knew what she wore to work.

[131] I am guided by the Court of Appeal for Ontario’s decision in R. v. Batista, 2008 ONCA 804, namely that in considering whether words constitute a threat, the Crown must prove that, when viewed objectively, an ordinary reasonable person would consider the words amounting to a threat to cause death. All of the circumstances, including the manner in which the words were communicated, the audience to whom it was addressed and the relationship between the accused and the subject of the threat, must be taken into account.

[132] During the trial, the incident giving rise to the charge against R.G. of uttering a death threat was always related to words spoken during the car ride home from work. On the record before me, I do not find that the Crown has met its onus that R.G. made an actual threat to cause the complainant’s death.

[133] In her examination-in-chief, the complainant was focused upon R.G. advising her to jump off the bridge and kill herself. These words do not constitute a threat to cause the complainant’s death. There was obviously an argument between the two, and the complainant herself testified that, at least initially, she did not take R.G.’s words seriously. While the context of the relationship between R.G. and the complainant is an important factor to consider, and their relationship at that time was certainly deteriorating, the words complained of by the complainant in the car do not satisfy the first element of the charge, and I am not satisfied beyond a reasonable doubt that R.G. uttered those words, even if they were a threat, knowing that they would be taken seriously.

[134] As the Crown has not met its onus, I find R.G. not guilty of this charge.

Count Against S.G.

[135] The complainant testified that sometime after the first anal intercourse incident, she went downstairs to find R.G. complaining to his mother S.G. that the complainant would not let him have sex with her from the back side. While this conversation was happening, a news story appeared on the television about a daughter-in-law being killed in India. The complainant testified that S.G. asked her to listen to the news story because, according to S.G., “these types of daughter-in-laws should be killed.”

[136] The complainant further testified that S.G. told her she had overheard arguments between R.G. and the complainant’s bedroom almost every day, and because the complainant was not making her son happy, the complainant “should be killed…and S.G. would use a spice crushing stick to beat her.” The complainant stated that S.G. was very angry when she uttered those words.

[137] S.G. denied ever threatening the complainant at all. She also testified that R.G. never told her anything about his sexual life with the complainant. S.G. also denied ever seeing or watching any news story about a daughter-in-law being killed in India.

[138] I have already commented upon S.G.’s credibility and reliability. I believe that words were uttered after the news story was shown on the television. Using the criteria and approach in Batista, I am satisfied that a reasonable person, fully informed of the circumstances and considering the matter objectively, would consider S.G.’s words to be a threat. I am also satisfied that S.G. uttered those words knowing that they would be taken seriously by the complainant. While S.G. initially tried to speak highly of the complainant (referring to her as a “lovely girl but not totally quiet”), as her testimony continued it became apparent to me that S.G. was solely interested in the complainant “falling in line” with both the rules of the house, and her son R.G.’s needs and wants.

[139] I find that S.G. was essentially disapproving of the complainant, and did not allow the complainant to be on her own (i.e. in the absence of either her or R.G.) for substantive periods of time. The complainant was criticized for her cooking, her desire to work at a restaurant, her “overselling” of her medical condition to the doctor and hospital, and, in a general sense, her independence.

[140] The subject words uttered by S.G. were consistent with the above themes, and intended to be taken seriously so that the complainant would fall in line as desired.

[141] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As such, I find S.G. guilty of this charge.

Count Against V.G.

[142] The evidence supporting the Crown’s position against V.G. comes from both the complainant and her father S.P.

[143] S.P. testified that during one of two visits by him and his wife to the property from Montreal, V.G. demanded that the complainant’s parents give him $20,000.00. S.P. stated that V.G. repeatedly spoke about the complainant’s parents trying to kick V.G., S.G. and R.G. out of the property. S.P. testified that at no time had he and his wife ever shown any interest or expressed a desire to kick them out of their property, and/or commence residing at the property.

[144] It was very difficult for me to understand the context in which V.G.’s words (described below) were allegedly uttered. I kept waiting for some evidence, be it from the witnesses who were called, other witnesses, or perhaps expert witnesses, to explain how the complainant’s parents could possibly displace V.G., S.G. and R.G. from their home. There is no legal basis for such a displacement. Perhaps there was or is a cultural or religious basis that the witnesses understood or had experienced. Unfortunately, I found the context impossible to discern and it was difficult to understand why V.G. would have been so angry before he uttered the impugned words.

[145] In any event, the complainant testified that V.G. accused her parents of coming to live in the property with the intention of kicking them out of the house. The complainant testified that V.G. stated that he would “shred them into pieces”, and that the complainant should call her father so he could “kill him and hang him.” V.G. then stated that he would hang the complainant’s family upside down and cut them into pieces. In cross examination, the complainant agreed that she did not specifically mention the words “cut into pieces” as part of the threat in her police statement, but after replaying a portion of the police interview video tape at trial, it was determined that the complainant did tell the police that V.G. stated he would “cut him.”

[146] S.P.’s testimony and recollection were slightly different. He had a general recollection of V.G. saying something like “we will hang them upside down”. S.P. recalls V.G. thumping his hands on the table when he was asking for $20,000.00, but did not have a clear recollection of V.G. threatening to hang them upside down at that point. He later testified that he recalls V.G. saying “I can make it happen to hang someone.”

[147] For her part, S.G. testified that V.G. never threatened to hang anyone upside down or cut anyone at all. However, S.G. did give evidence that they were told by the complainant’s parents that they should relocate to India. S.G. denied that V.G. banged his hand on the table. She did admit that V.G. was angry, and that he told the complainant’s parents that he would never allow them to kick them out of their own property.

[148] R.G. testified that V.G. was indeed angry in response to the complainant’s parents threatening to evict them. He denied that V.G. banged his fist on the table, and repeated his mother’s evidence that all V.G. said was that he would not allow the complainant’s parents to kick them out of the house.

[149] Regardless of the fact that I did not understand the context for V.G. to have been so infuriated by a fear of being displaced from his home by the complainant’s parents, V.G. was nevertheless very angry that day, as confirmed by his wife and son. I do not believe the version of events as described by R.G. or S.G. I find that V.G., in an angered state, delivered a threat causing death to the complainant’s family. The only record of the words uttered by V.G. is tendered through the evidence of the complainant and her father. On the material facts in support of this count, they were both credible and reliable. While they may not have been able to recall the exact words uttered by V.G., they both testified that there was a threat to hang the family members upside down and cut or shred them into pieces.

[150] The words used by V.G. constituted a threat to cause death. Again, while I may not understand the context in which the words were uttered, I nevertheless find that context to have caused V.G. to become quite angry, and I find that V.G. uttered those words knowing and intending them to be taken seriously. V.G. had no interest in being evicted from his property, and obviously felt that the complainant’s parents had no right to make any such demands. Using an objective approach to this count, and appreciating the situation at the property that day, I find the subject words would convey a threat of death to a reasonable person.

[151] Based on the totality of the evidence, the Crown has established its case beyond a reasonable doubt. As such, I find V.G. guilty of this charge.

Summary

[152] In summary, and following the charges enumerated on the Indictment:

• I find R.G. guilty of committing a sexual assault as per counts #3, 4, 5 and 10.
• I find R.G. not guilty of committing a sexual assault as per counts #1, 2, 9, 11, 15 and 16.
• I find R.G. guilty of committing an assault as per count #12.
• I find R.G. not guilty of committing an assault as per counts #14 and 17.
• I find R.G. not guilty of uttering a threat to cause death as per count #13.
• I find S.G. guilty of committing an assault as per count #7.
• I find S.G. guilty of uttering a threat to cause death as per count #6.
• I find V.G. guilty of uttering a threat to cause death as per count #8.

Diamond J.

Released: November 1, 2018

COURT FILE NO.: CR-16-50000587-0000 DATE: 20181101 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – R.G., S.G. and V.G. REASONS FOR JUDGMENT Diamond J. Released: November 1, 2018