COURT FILE NO.: CR-16-1825 DATE: 2019 02 22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – PARVEEN SHARMA

G. Gill, for the Crown S. Skurka and V. Ruscitto for the Accused

HEARD: October 22-26, 29, 2018

REASONS FOR JUDGMENT

PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

J.M. Woollcombe J.

Overview

[1] The accused, Parveen Sharma, is charged with two counts of sexual assault alleged to have taken place on October 2 and 3, 2015. He pleaded not guilty to both counts and had a six day trial before me.

[2] The 25 year old complainant met the accused through her Temple. She was looking for an apartment to rent. He was the much older President of the Temple. He became her landlord in August 2015 when she moved into the basement apartment of the home in which he lived with his wife. She remained a tenant until October 4, 2015, the day after the second sexual assault allegation.

[3] There are two issues to be decided. The first is whether the Crown has proven beyond a reasonable doubt that there was non-consensual sexual activity between the complainant and the accused on October 2, 2015. The second is whether the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity that is acknowledged to have taken place between them on October 3, 2015.

[4] At trial, the Crown adduced evidence from the complainant and her cousin, to whom she first disclosed allegations against the accused.

[5] The accused did not testify. On his behalf, the defence adduced evidence from his wife, from the head priest at his Temple, and from one police officer.

Brief Factual Backdrop

[6] The complainant, H.G. was 29 at the time of trial, having been 25 years old at the time of the allegations. In late 2014 or early 2015, she met the accused, Parveen Sharma, through her Temple, Hindu Sabha. He was the Temple President and she was told that he might be able to help her in her search for an apartment to rent. They met and then began to exchange text messages. Many of those messages, beginning on April 7, 2015, were on an app called “What’s App” and were entered into evidence as Exhibit 3. The pattern of communications between the complainant and accused over the next four months related largely to her search for both work and an apartment.

[7] For instance, in May, 2015, Mr. Sharma tried to assist the complainant with her resume and getting a job. He asked about her legal status in Canada and whether she had a work permit. He told her that he might have a job at the Temple. She testified that she was comfortable, during this period, sharing with him details about her personal life and that she appreciated his help.

[8] By the end of July, 2015 the accused suggested to the complainant that she could rent his basement apartment. Arrangements were made through his wife, Kiran Sharma, for her to do so. On August 9, 2015, Ms. G. moved into that apartment, a separate unit in the accused’s home. The accused, his wife of 34 years and their 26 year old son lived upstairs in the house.

[9] Throughout the period leading up to the sexual assault allegations, Ms. G. agreed that she regarded Mr. Sharma as very nice to her and as a kind, generous and helpful man.

[10] Friendly communications between the accused and complainant continued in text messages in August and September, 2015. After August 22, 2015, the complainant had obtained a new iPhone. Their communications after this point were recorded as regular text messages. These have also been entered into evidence as Exhibit 4.

[11] On September 25, 2015, the accused told the complainant in a text message that he had fallen off a ladder at the Temple the night before. He told her that he had injured his foot and wrist. In other messages around that time, they discussed the complainant borrowing a screwdriver in order to assemble her bed. On September 28, 2015, the accused’s wife, Kiran Sharma, travelled to India.

[12] The complainant and accused continued to exchange text messages. In the afternoon of September 29, 2015, after an exchange of messages, the accused provided the complainant with some take-out food, which she ate alone in the basement. At 7:30 p.m. that night, she sent a text message to the accused in which she sought his advice about the fact that her parents were angry with her and her feelings of abandonment. She testified that she felt that the accused and his family were very nice to her, and said that she was comfortable seeking the accused’s advice. He did not respond by text that night, but she thought he had telephoned her after this message.

[13] On September 30, 2015, the accused texted the complainant at 8:06 p.m. indicating that he needed the screwdriver back and asking if she had fixed the bed. She said she had not yet started and asked him how his foot was. He indicated that it was better and that his hand was improving as well. She said that she would see him “tomorrow” which she testified was so that she could give him his screwdriver back.

[14] On October 1, 2015, the complainant and accused had a lengthier text exchange beginning at 10:02 p.m. It began with her asking him how he was. In one text, she said “Do dorm message”, as she thought it would help. She then corrected the text to say, “Do some massage”. The accused asked her what “dorm message” was, and she explained that her message had autocorrected. She then joked that she was the only specialist in Toronto for “dorm massage”, and that it was her new creation. He said he needed to ask her to do it, and she responded that she would give him a discount. He asked about the charge and if it was free. They continued joking about coupons and discounts and times for the service. In her testimony, she explained that in this exchange of short texts, between 10:02 p.m. and 10:33 p.m. she was kidding around with the accused and laughing and making fun of the typing error she had made.

[15] After a 20 minute break, the text messages continued, with the complainant telling the accused that it was freezing and him asking if she had closed the window. She then asked him for the wifi password, as she said she had re-set her phone. She subsequently informed him that the password worked, and their texts stopped at 11:24 p.m.

[16] The following day, on October 2, 2015, the complainant first sent a text to the accused at 5:28 p.m. asking if he was still off from work. He told her that he was, and she indicated that she had worked and was coming home. She commented that the weather had changed drastically within a week. The accused asked if it was cold downstairs and she responded that she could not wear shorts anymore, and included an emogi. She texted that it was sort of cold downstairs, but better than the day before. He texted that he would check the temperature when he got home.

[17] There are no further text messages between the accused and complainant over the rest of October 2, or on October 3, the dates of the allegations.

[18] The final recorded text message between them was on October the 4, 2015, after the time of the allegations. Mr. Sharma asked the complainant when she was finished with the screwdriver as he said he may need it. The complainant never responded to this.

The Complainant’s Allegations

[19] The complainant testified about sexual assaults alleged to have taken place on October 2 and 3, 2015.

[20] Ms. G. said that on Friday, October 2, she was at home and Mr. Sharma came downstairs. He knocked at her apartment door and asked her if she could massage his feet. She said that she could do that. She was wearing shorts and a sweatshirt, with underwear and a bra underneath. He went upstairs and then came back down with oil. She said that she asked him to lie on the mattress in the lobby area of her apartment, with his feet on the floor so that the oil would not drip.

[21] She explained that he lay on his back and she applied oil to his left foot, which was the injured one. She was sitting on the floor facing him, with his left foot in front of her. She massaged his foot for two to three minutes.

[22] She said that while she was doing this, Mr. Sharma started rubbing his feet on her right thigh. At first she thought nothing was wrong, but she said that he then got up and grabbed her shoulders. She said that she was really uncomfortable. He tried to kiss her on the lips. She said that she was injured from his teeth on her bottom lip, but that she did not think the accused had been able to actually kiss her. She asked him to stop.

[23] She said that he also put his hand in her top from the back and tried to open her bra. He was able to unhook her bra and moved it to the side so he could touch her breasts from the front. She was not sure if he had touched one or both breasts. She said that he also kissed her breast and tried to suck on it, but that she had been able to push him away after his mouth had contact with her breast. She described the force he used as “very hard” and “very strongly”.

[24] The complainant said that she pushed Mr. Sharma with both hands against his shoulder, chest and head. After she had asked him to stop two or three times, he did so. She said that he told her he was sorry and left. She explained that she felt shocked and confused and did not know how he could have done this to her. She testified that she was not sure if she could go to the police with this.

[25] During cross-examination, counsel put to Ms. G. the defence theory as to what happened on October 2. It was suggested that when she and Mr. Sharma met in the garage that evening, she was wearing a sports bra and sports shorts. She could not recall. It was suggested to her that the accused had said that it was not appropriate to dress that way, which she did not recall. It was suggested that she told him that she dressed like a “white girl”. She testified that she had never said that. It was suggested that later, he had come down to the apartment and that when he was going to check out the vent in the second bedroom, she had hugged him from behind and wrapped her arms around him. She denied this. She also denied that during the massage, she had provided a cream that she had used and was unequivocal that the accused brought oil from upstairs. It was suggested that she had massaged both his legs to his thighs and moved to have her head close to his face. She did not agree. She denied that when he got up to leave after the massage, she had asked him to stay and to put her bed together.

[26] According to Ms. G., on Saturday, October 3, the accused came downstairs to her apartment at between 4:00 p.m. and 5:00 pm. He knocked on her door. She was lying on the bed in the lobby area of her apartment, wearing a hoodie sweatshirt and sports shorts. Underneath, she wore a bra and underwear. He told her that he had come to check the heating system and if the windows were closed.

[27] Ms. G. said that as they were walking through what she described as the lobby area of the apartment, Mr. Sharma was beside her and pulled her right arm. He tried to put his hand into her shirt on her back and to unhook her bra. She said not to. She said that he started kissing her neck. She pushed him and told him to stop, that it was not right and that he could not do that. She said that his response was that he was “not going to leave this body” and that he started kissing her and tried to pull her pants down. She explained that the kissing had been on her face and lips, and that he started on her breasts over her sweatshirt.

[28] She said that he was trying to take her clothes off as she struggled to keep her clothes on. He was trying to put his hands into her underpants, and to touch her vaginal area, which he did. He pulled her shorts and underpants part way down.

[29] The complainant said that she told him that she was not going to let him touch her and that they needed to talk. She said that Mr. Sharma told her that he was going upstairs and that they would go to Tim Horton’s to talk. She agreed.

[30] H.G. said that Mr. Sharma went upstairs and that he drove them to Tim Horton’s. They parked and she told him that she was not comfortable with what he had been doing. She testified that she had recently broken up with her boyfriend, that she was not feeling comfortable talking about it with her parents and that she did not want to make her life messier. She explained that she had been trying to fix her relationship with her boyfriend. She told Mr. Sharma that she had no one. She also told him that he was too old for her and that she was not interested in him. She said that he apologized and said that he would not do it again and began asking her about her career and hobbies. They talked for five to seven minutes and then left.

[31] Ms. G. said that Mr. Sharma then drove to Shopper’s Drug Mart and that she waited in the car for five to ten minutes while he went in. They then drove home. It is an agreed fact that the accused purchased condoms at Shoppers Drug Mart on October 3, 2015 at 7:50 p.m.

[32] Between 7:00 p.m. and 8:00 p.m., ten or fifteen minutes after they arrived home, the accused came back downstairs to the complainant’s apartment.

[33] Ms. G. said that she was shocked and asked him why he was there. He grabbed her from the waist and shoulders and pulled her towards him. She said that he started kissing her, pushing her and trying to remove her clothes. He tried to put his hands on her and to pull up her nightgown. She said he was able to take it off over her head, though she was struggling to push him away.

[34] The complainant testified that Mr. Sharma pushed her onto her back on the couch and that he was holding her shoulders and the upper part of her body with both his hands. She said he was on top of her. He was wearing pyjamas and a t-shirt and she said that he had one leg on the ground and one on the couch. She said that she was pushing him with her chest and shoulders and was telling at him to leave her.

[35] Ms. G said that the accused lowered his pyjamas, but that she did not think he had taken them off. She felt the weight of his whole body on her and said that he inserted his penis into her vagina. She said she was trying to stop him verbally, by telling him to stop, and that she was pushing him as well. It was her evidence that she recalled him saying words to the effect that he was not going to leave this body and who is going to leave this body.

[36] H.G. also recalled seeing the accused take a condom from his pocket. He did not say anything about it. She said that she asked him to stop and not to use it because she was allergic. She explained that she said this because when she saw the condom, she was scared and was afraid that he was about to have sex with her and she wanted him to leave. She did not know if he had used it or not. Asked if the accused had ejaculated, Ms. G. said that she thought so.

[37] Ms. G. said that Mr. Sharma then left. She was crying. She put her clothes back on and went to the washroom. She said that he came back down and asked if she was OK and how she felt. She told him to leave and never to show her his face. She went to Shopper’s Drug Mart for medication, both medication for flu and Plan B as birth control.

[38] Mr. Skurka put the defence theory of what happened to Ms. G. It was suggested that when the accused came home at about 5:30 p.m., she was waiting on the porch for him and talking on the phone. That did not seem to be her recollection. She did not agree that the accused had said he would come downstairs in a few minutes. She disagreed that he had knocked at her door and that she had permitted him to enter, insisting that he had not asked her if he could come in.

[39] The complainant denied that on the way to the bedroom, she had hugged Mr. Sharma from behind. She denied that she had asked him to go for coffee and that he had said he was there to do the bed and that he was going to do it. She denied that he tried to put her bed together. She also denied that as he left to get his shoes upstairs, that she had pulled him towards her, said she was bored, and that the two of them had then begun hugging and kissing each other. The complainant denied suggesting that they should have some fun together because his wife was away. She denied having grabbed the accused’s hand and put it between her thighs. She denied saying that she was a “white girl tonight” and “let’s do it”. She denied that he had told her that he needed to buy condoms.

[40] The complainant agreed that they had gone in the accused’s minivan to Tim Horton’s, but denied suggesting that the two of them could go to Blue Mountain for a weekend and have a good time. She agreed that after coffee they went to the Shopper’s Drug Mart, but denied knowing that the accused was going to buy condoms.

[41] The complainant agreed that she was wearing a nightie when Mr. Sharma came downstairs after their return home. She denied removing it. She denied starting to kiss the accused or moving his hand to her vagina. She was adamant that she had not agreed to any of the sexual acts between them and said that she had not wanted the sexual acts with him.

The Complainant’s Disclosure

[42] Ms. G. said that the next morning, October 4, 2015, she was upset and did not know what to do. She described herself as having been “emotionally broken”. She went to Home Depot and called a person she described as one of her cousins, but later clarified that he is really one of her boyfriend’s cousins. His name was Sandeep Brar.

[43] She said that Mr. Brar picked her up. She testified that she did not give him all of the details as to what had happened. She did tell him that Mr. Sharma was trying to be intimate with her and that she was not comfortable. He told her that she should report what had happened to the police.

[44] Mr. Brar testified that the complainant called her around noon on October 4 and that she was crying and upset. At first, she said only that her landlord upstairs had been bothering for her for last two days. He picked her up, and ended up taking her to the police after she told him that the landlord was trying to forcefully have sex with her. He said that she appeared scared and afraid to him.

[45] Mr. Brar was cross-examined on what were said to be a number of inconsistencies in his evidence. Among those that seemed to be the most significant was the fact that in his evidence he had said that the complainant said her landlord had been bothering her for a couple of days and had tried to have sex forcefully, but that in his statement to police, he had said that the landlord raped her. He explained that he may have had a problem with English.

[46] It was Ms. G.’s evidence that the first person to whom she gave details about what had happened was the police.

[47] Ms. G. and Mr. Brar went to his home and he told her that they should obtain the clothing she had been wearing from her apartment. They then attended at the police station, arriving at about 7:00 p.m. on October 4, 2015.

[48] At the police station, the complainant spoke first with Constable Keivan Campbell. She then gave a videotaped statement to Constable Stephanie Melo-Franchino. The complainant testified at the preliminary inquiry on August 31, 2016. She provided a further videotaped statement to police on January 23, 2018.

Post Allegation Events

[49] Ms. G. said that after the night of October 3, she had no further contact with Mr. Sharma.

[50] The complainant did testify, however, that she later received an anonymous call from a private number. She spoke to a male who did not identify himself and who asked if she needed help. There was a second call a couple of days later from someone who sounded like the same person. Ms. G. was told that she could contact the Temple if she needed help. There was no further conversation and she hung up and told the police about having received these calls.

[51] Under cross-examination, it was suggested to the complainant that she attended a meeting at the home of Harbhwan Makkar. She explained that Mr. Makkar was a friend of her father’s, and that she had been friends with his son Paul, who died in October 2016. After the funeral, she would visit Paul’s parents, whom she referred to as an aunt and uncle.

[52] The complainant testified that Paul’s mother told her more than once that there were people from the Temple who had approached them over and over who wanted to talk to her about the sexual assault. She said that Mr. Makkar told her that people from the Temple, on both sides, were approaching him. Some wanted to know if she would take money and take the charges back. Others wanted to know if she would take money and have the charges proceed.

[53] There is no issue that between June and September, 2017, a short meeting took place at the Makkar’s home between the complainant and Adhay Dev Sharma, a priest at Temple Hindu Sabah. The meeting was not initiated by the complainant, and was organized by the Makkars. Both the complainant and Mr. Dev Sharma testified about their private meeting.

[54] The complainant did not recognize Mr. Dev Sharma when she saw him in court, but agreed that the person at the meeting had been dressed like a Temple priest. She said he told her that what had happened to her was wrong, and that they could help her. She was told that if she wanted to step back from the case, that she could take the charges back and that they could ask for Mr. Sharma, or the Temple, to compensate her. She thought the priest was offering to talk to Mr. Sharma.

[55] She said that she had not suggested that she take a payment of $50,000 and that she would never have agreed to something like that. She explicitly denied the suggestion put to her in cross-examination that when she was asked what she wanted, she had said that if she was paid $50,000 plus her expenses, she would take the charges away. Ms. G. was clear that she walked out of the meeting and said that she had not been interested in a payment and would never have agreed to anything like that.

[56] While she did tell the police about the phone calls, Ms. G. did not tell the police about this meeting. From her perspective, it did not affect the case.

[57] Abhay Dev Sharma, the head priest at the Temple Hindu Sabha, was called by the defence. He had known the accused for 30 years and said that the accused’s current role is as President of the Temple, a role he had held for 8-10 years. Under cross-examination, he agreed that he was paid a salary by the management of the Temple, which includes the accused as President of the Temple. He said he had known the accused for a long time, but did not agree that they were friends.

[58] Mr. Dev Sharma testified about the same meeting. Asked why he had wanted to speak with the complainant, he said that she was known at the Temple and that people had been bringing flyers to the Temple saying that Mr. Sharma had been charged. People asked him what was going on and what they were about. They said that they came to the Temple for peace. I understood his evidence to be that he wanted to talk to the complainant for peace.

[59] Copies of two of these flyers were entered into evidence as Exhibit 8. One alleges that the accused is a “Rapist”, and that “The Temple fested with sex scandles [sic]”. It continues, “Community leaders come forward, save community honour”. It provides a court date of August 31, 2016. The other refers to allegations of the complainant in court and provides a court date of September 30, 2016 to find out more details.

[60] Mr. Dev Sharma said that in the meeting, he told the complainant that all he wanted was peace in the Temple and that she could help him in obtaining that peace. He agreed that he had no real plan for accomplishing peace. He said that Ms. G. told him that if whatever expenses she had were re-paid, she could think about it. Asked if she had given a figure, he said $50,000. She said to pay it in India or in Canada and that after getting the money, she would think about the case and what she could do. He said that after this, he told the accused about the meeting. The accused told him that he would let him know his response after speaking to his lawyer. The accused never got back to him about this.

[61] Mr. Dev Sharma testified that he did not know who was distributing the flyers at the Temple. He said he learned about the charges from the flyers and said that he never had any discussion with the accused about the charges until after his discussion with the complainant. He then said he was not sure when the accused told him he had been charged. He initially said that they never discussed the flyers, though he subsequently seemed to testify that they may have and that he did not recall. But, he agreed that the flyers were causing a problem in the Temple. He denied knowing if they were causing problems for the accused, but then seemed to agree that people in the Temple were upset that the accused was still the President despite the allegations.

[62] Mr. Dev Sharma was asked how meeting with the complainant could bring peace to the Temple when he did not know if she was the one distributing the flyers. He said that people had told him that she was the one distributing the flyers, although he then agreed that he did not know whether she was or not.

[63] Mr. Dev Sharma denied that he had gone to Mr. Makkar after discussing the case with the accused and that he wanted to offer the complainant money to buy her silence. Asked whether he was willing to give the complainant money for her silence, he said that he did not have money. When it was suggested that money could have been given through him, he said he had not said that to her and that he just prayed for peace. When it was suggested to Mr. Dev Sharma that he knew that the case was in the courts, he said that he came to know later. He eventually agreed that he had known of the charges before the meeting with Ms. G. because he had seen the flyers and that they refer to court dates. Ultimately, he seemed to agree that he was aware that the matter was in court. Asked if it had been appropriate to have this meeting when the matter was before the court, his response was that he just wanted peace and that he did not know why he had gone to the meeting.

Relevant Legal Principles

[64] The accused is presumed innocent of the offences charged.

[65] It is for the Crown to prove beyond a reasonable doubt that non-consensual sexual activity took place between the complainant and the accused on October 2, 2015. In relation to the sexual activity on October 3, 2018, it is for the Crown to prove beyond a reasonable doubt that complainant did not consent to the sexual activity that is agreed took place between the complainant and the accused. There is no onus on the accused to prove anything.

[66] The standard of proof beyond a reasonable doubt is an exacting standard. It is not enough to believe that the accused is probably or likely guilty. That is not proof beyond a reasonable doubt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. In the end, I can find the accused guilty only if I am sure that he committed the offences alleged.

[67] The accused did not testify. He was not required to do so and I draw no inference from his failure to testify. To do so would be to reverse the onus of proof. It is for the Crown to prove his guilt beyond a reasonable doubt and not for Mr. Sharma to prove anything.

[68] This case turns on an assessment of the credibility and reliability of the complainant. There are differences between these two concepts. Credibility relates to the complainant’s sincerity and whether she testifies to what she believes. Reliability relates to whether what she has said is accurate.

[69] The complainant has testified that she was sexually assaulted by the accused on two successive evenings. She has not wavered in her allegations. I remind myself that in assessing her credibility, I must carefully scrutinize her evidence. This is not because of the nature of the allegations. Indeed, there is no legal requirement for corroboration in cases of sexual assault. Similarly, any historical perception that complainants in sexual assault cases are not reliable is long gone. As Mr. Skurka suggests, I specifically disavow any reliance on such pernicious myths.

[70] But, I remind myself that assessing credibility is a case specific, multi-faceted exercise.

[71] To begin with, I must be cautious about reliance on the complainant’s demeanour alone in the witness stand. Demeanour alone cannot support a conviction if there are significant inconsistencies and conflicting evidence on the record.

[72] I must consider whether the complainant’s credibility has been undermined by her having given inconsistent statements and evidence about material issues. Her reliability and credibility can only be determined after considering the nature and extent of alleged inconsistencies. As the Court of Appeal observed in R. v. M.G., [1994] O.J. No. 2086 at para. 23:

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

[73] See also R. v. Gostick, [1999] OJ No. 2357 at para. 18.

[74] I have also reviewed with care the analysis of Blair J.A. in R. v. Sanichar 2012 ONCA 117 at paras. 30-45 in which he discussed the proper manner in which to assess the reliability of a witness’s evidence and the manner in which this determination differs from assessing credibility.

Positions of the Parties

[75] The Crown’s position is that H.G. is a credible and reliable witness. While there are some inconsistencies in her evidence, the Crown submits that it is generally plausible and makes sense. The complainant was a vulnerable young woman who, at the age of 25, moved into the basement of the accused’s home. She knew him as the head of the Temple and as a person whom she trusted. She was vulnerable and naïve. She trusted the accused and sought his assistance in putting her bed together. This trust also led her to communicate with him via text messages.

[76] The Crown says that when the accused came to the basement on October 2, 2015, the complainant agreed to provide him with a massage, but that he then engaged in sexual activity without her consent.

[77] The Crown says that the complainant’s account of the sexual assault on October 3, 2015 was credible and reliable. The complainant did not consent to having sexual intercourse with the accused.

[78] Generally, it is the defence position that H.G. is neither a credible nor reliable witness. Counsel points to numerous aspects of her evidence which he submits demonstrate that she has been untruthful or provided false or misleading evidence. I am urged not to rely on her evidence.

[79] The defence points to the electronic communications between the complainant and accused as evidence that it was the complainant who pursued a relationship with the accused, and that she escalated things after she learned that his wife had left for India. The defence says her evidence explaining her text messages is not credible, and that it is telling against her that she delayed providing these messages to the police.

[80] In respect of the allegations of October 2, 2015, the defence position is that the complainant offered the accused a massage and that when he attended at her apartment, she provided him with a massage and that no further sexual activity took place.

[81] In respect of the October 3 allegations, it is the defence position that the complainant initiated the sexual activity between them and that she consented to having sexual intercourse with him.

Findings of Fact and Credibility

[82] There is no question that there was sexual activity between the accused and complainant on October 3, 2015. Indeed, it is agreed that the accused’s DNA was found on swabs of the complainant’s vaginal and external genitalia. The issues are whether or not the Crown has proven beyond a reasonable doubt that H.G. did not consent to the sexual activity on both dates and whether there was sexual activity at all on October 2, 2015.

[83] For the following reasons, I accept the evidence of the complainant in relation to both counts. I accept that there was sexual activity to which she did not consent on October 2, 2015 and I accept that she did not consent to having sexual intercourse with the accused on October 3, 2015.

[84] Generally, I found the complainant to be a credible and reliable witness. She testified in a manner that was clear, compelling and persuasive. I found she did not seek to embellish her evidence. In fact, she took responsibility for the events of October 3, saying that she should have done something after what happened on October 2.

[85] In addition, there are a number of respects in which the complainant’s evidence was confirmed by other evidence, making it more reliable. For instance:

• As set out below, it is my conclusion that the text messages confirm the complainant’s evidence and support her credibility and the reliability of her evidence. I reject any suggestion that in any of these messages, she was inviting Mr. Sharma to her apartment with any offer of a massage, or that she was making any sort of sexual advance towards him.
• The Agreed Statement of Facts makes clear that Constable Melo-Franchino observed the complainant’s lip when she interviewed her on October 4 and noted that the skin looked a little different, but that it was hard to see. This is consistent with the complainant’s evidence that the accused injured her lip during the October 2 incident. While there was no injury recorded in the Trillium Health forms, the fact that the officer noted an injury is still significant, and is some confirmation of her evidence about the nature of her injury.
• The evidence of Mr. Brar confirmed the complainant’s state of mind after the sexual assault on October 3. He testified that on October 4, she was scared and reluctant to tell him the details of what had happened. According to him, she was reluctant to report what had happened to police. I find both his evidence as to her demeanour, and as to her reluctance to talk about what happened and to report to police, to be consistent with her evidence and to confirm her evidence. I found Mr. Brar, despite his criminal record, to be a reliable witness. I am not concerned about what I find were minor inconsistencies between his evidence and what he told police. Not only were the inconsistencies minor, but it is of some significance that Mr. Brar may well have had a language difficulty when he spoke with the police. I observe that he testified with an interpreter and no interpreter was provided when he spoke with the police.
• The evidence of Mr. Dev Sharma seemed to me to confirm that Ms. G.’s allegations caused dissent at the Temple. He confirmed that it was members of the Temple who pursued a discussion with the complainant about payment to her for the allegations to go away, and not she who pursued anything. It is clear that Mr. Dev Sharma was the one who was seeking some “peace” at the Temple, and not Ms. G. who was seeking any payment of $50,000 or of any other amount. I rely on Ms. G.’s evidence as to what happened at her meeting with Mr. Dev Sharma, over his evidence. By way of summary, I found the evidence of Mr. Dev Sharma to be incredible. He was not forthcoming. Repeatedly, he had to be asked questions multiple times before he would respond honestly. His explanation for having the meeting at Mr. Makkar’s defies any logic. He agreed that the flyers were causing division at the Temple, but denied that he ever even discussed the sexual assault allegations with the accused. This seems unlikely, when the flyers were about Mr. Sharma. He also purported to have no plan other than obtaining “peace” for the meeting. Yet, he is the one who instigated the meeting, clearly prepared to discuss payment to the complainant. It seems to me that the only conclusion to reach from his evidence is that he wanted to explore whether or not the complainant was open to taking a payment to make the charges go away. Yet, he refused to acknowledge this. In the end, little turns on this as Mr. Skurka does not ask me to rely on his witness for any purpose. As much as one might reasonably suspect that the accused had some involvement in this meeting, there is no evidence of this. Accordingly, I draw no adverse inference against the accused from anything that happened at Mr. Makkar’s. At the same time, I do think that the evidence can be relied upon to reject any suggestion that the complainant had any intention of using the charges to extract a cash payment.
• I found the evidence of the accused’s wife, Kiran Sharma, to confirm some of Ms. G.’s evidence about peripheral details. It is clear that she is the one who really organized the tenancy. She met Ms. G. to show her the apartment and when the lease was signed. She appears to have had little to do with the complainant, as seems to have been her custom with earlier tenants. She, of course, has no evidence to provide respecting the allegations as she was in India at the time they are said to have taken place.

[86] I turn now to the cross-examination of the complainant.

[87] There are many areas in which the complainant was cross-examined. Indeed, it is fair to say that she underwent a wide ranging and comprehensive cross-examination by a skilled and experienced defence counsel. As I will set out, there was little in that cross-examination that led me to have concerns about the reliability or credibility of her evidence. I will not specifically address every point that was made by counsel in either that cross-examination or in his submissions. I will, however, deal with what I find to be the most significant submissions made by defence counsel about the complainant’s credibility and reliability:

• The defence suggested to Ms. G. that although she appreciated the importance of record keeping, something she acknowledged, she had failed to provide the police with her text exchanges with the accused when she gave her statement to them on October 4, 2015. She agreed that she had not told the police about the many messages between them. It was her evidence that while she knew that she had the text messages, she was not aware at the time that the police needed them, and she was never asked for them that day. I found the complainant’s evidence about this to be believable. There is no evidence that she was specifically asked for her text messages when she gave that statement. I am not prepared to find, as I am urged to, that the complainant deliberately withheld these messages because she did not want the police to have them.
• Similarly, the complainant agreed that she had not given the police her text messages with the accused by the time of the preliminary inquiry on October 31, 2016. She agreed that she had not turned over the “What’s App” messages to the police until after the preliminary inquiry, when the police had requested them. She agreed that it was the defence, through Mr. Sharma, who requested these messages and any other messages that she had between her and Mr. Sharma. It was only after the preliminary inquiry that she provided those “What’s App” messages and that she never provided the text messages.
• Ultimately, the complainant agreed that it was only as a result of Mr. Sharma asking for the messages that the “What’s App” messages were provided, and as a result of Mr. Sharma providing the iMessages that they were provided. She also agreed that she had them when she went to the police station on October 4, 2015. But, I cannot conclude that there was anything nefarious about the complainant not having handed over to the police these messages.
• In summary, respecting the various electronic communications between the complainant and Mr. Sharma, I do not accept the defence position that the complainant wanted to hide the messages because she wanted to conceal their content. Having carefully reviewed all of these communications, I do not find the content of these messages undermines her credibility in any of the various ways identified by defence counsel. I accept that they show a degree of frequency of contact, but I do not think it goes much further than that. What is important is the content of the messages. While I accept that there is no particular messages that the complainant can point to as indicating that the accused was anything other than kind and generous to her, she accepts that he was. Notwithstanding this, I just do not see in any of these messages the complainant communicating to the accused that she had any sexual interest in him at all.
• With respect to the complainant’s relationship with Mr. Brar, the defence made much of the fact that she has been inconsistent in how she describes her relationship to Mr. Brar. Mr. Brar is not her cousin, but is the cousin of her boyfriend. She explained that she knew him from India, that their fathers were friends, but that the blood relationship was with her boyfriend, and not her. She was challenged on why she had told the police that he was her cousin and had maintained this at the preliminary inquiry. She explained that she had always called him a cousin, and agreed that she had always referred to him as her cousin in these proceedings. In my view, the complainant’s explanation is reasonable and makes sense. I draw no negative inference against her for the fact that she always referred to Mr. Brar as her cousin, as opposed to saying that he was her boyfriend’s cousin.
• Ms. G. was also cross-examined about what details relating to Mr. Sharma’s behaviour she had shared with Mr. Brar. She agreed that she had not told him details. A passage of her statement of October 4 was put to her in which she said that she told her cousin “everything”. It was suggested to her that this was different from her evidence that she had not shared the details with Mr. Brar. Her testimony was that when she said “everything”, she meant that Mr. Sharma was “misbehaving” and that he was trying to be intimate with her, not the details. She agreed that she had not, in fact, told Mr. Brar “everything”, but did not accept that her evidence had changed. All she meant when she told police that she had told her cousin “everything” was that she had been sexually assaulted. Under re-examination, she further clarified that what she had told Mr. Brar was that the accused had “misbehaved” and was “trying to get physical”. She said that she did not tell Mr. Brar about the details of the sexual offence as she was not comfortable discussing them with him. She had not intended to mislead the police as to whether she told Mr. Brar everything. In my view, having reviewed the complainant’s evidence about this issue as a whole, she has explained adequately, fairly and reasonably the various alleged inconsistencies about what she shared with Mr. Brar and what she told the police she had shared with Mr. Brar. I make no credibility findings against her in respect of this issue. I accept that when she told the police that she had told her cousin “everything”, she had shared some, but not all details with Mr. Brar.
• In respect of her immigration status, the complainant agreed that she told Mr. Sharma that she came to Canada in December 2009 with a student visa, that it had expired, and that she was in the process of applying for an extension. This is evident from her “What’s App” messages to him of May 21, 2015. She agreed that she had been comfortable sharing information with him about her visa. She testified that she never sought his advice on immigration matters. She also agreed with counsel’s suggestion that she had told the police, in her statement of October 4, 2015, that she had told Mr. Sharma about her status, and that she had lied to him and told him that she had everything when she did not. It was suggested to her that she had not been truthful with the police because she had, in fact, told Mr. Sharma the truth about her status. At one point during cross-examination, she seemed to agree with Mr. Skurka’s suggestion that she had lied to police when she told them that she had lied to Mr. Sharma. Under re-examination, the complainant clarified that she had told the officer the truth when she said that she lied to Mr. Sharma. In fact, she had told Mr. Sharma that she had received her work permit, even though she had not. She explained the reason for her lie to the accused was that she was not comfortable discussing her status with him. She denied that she had lied to the officer. Having heard this evidence in court and listened to it on the digital recording, and having considered her evidence on this issue as a whole, bearing in mind the fact that it was clear to me that the complainant occasionally experiences some difficulty with English, I have no concerns about the complainant’s credibility arising from her evidence on this issue. Initially, she told Mr. Sharma the truth, which was that she was awaiting her work permit. Subsequently, she told him that she had it, even though she did not. She offered what I view as a reasonable explanation for having told him this lie, and I find that she was honest with the police about what she had said to him. Mr. Skurka urges me to find that the complainant admitted having lied to the police about this issue. While she seems to have done so at one point during cross-examination, when this is viewed in light of her re-examination, I do not accept that there is anything significant to be drawn from it and decline to make the adverse credibility finding I am invited to make. I accept the explanation given by the complainant. I find it very plausible and reasonable that at one point she felt comfortable sharing information about her immigration with Mr. Sharma, but at a subsequent point she decided not to do so.
• The complainant was cross-examined about her evidence that she had been looking for an apartment because she did not want to tell her parents about her problems with her boyfriend. She said that this was true and that her parents did not know about her relationship difficulties. It was put to her that in her October 4 statement to police, she had said that she and her parents had decided to give her relationship time, and that this was inconsistent with her evidence that her parents were unaware of her relationship difficulties. She explained that in her statement, she was referring to her boyfriend’s parents, not her own, and that she considered them her parents. In re-examination, she clarified that in her culture, even though they were not her biological parents, she considered her boyfriend’s parents to be her parents and that she called them Mum and Dad. She agreed that her evidence appeared inconsistent, but explained why that was. I found the complainant’s explanation for this inconsistency to be reasonable and to make sense. I accept her evidence and make no adverse credibility finding against her from this inconsistency in her evidence.
• The complainant was cross-examined at length about her evidence respecting the plan for her cousin to move into the basement apartment with her and whether and when this had happened. She testified that the lease started on August 8 and that she moved in on August 9. She had been living previously with her cousin and her stuff was at the cousin’s place. The plan had been for her and her cousin to live together in the apartment, which had two bedrooms. Her cousin did not sign the lease. During her examination in chief, she said that her cousin moved in and brought some stuff to the apartment, but did not start living there immediately and that she then planned to move back to India. Her cousin rarely came to the apartment because it was a distance from her work. Ms. G. thought that she had slept there two or three times. She was asked about her evidence at the preliminary inquiry in which said had said that she moved in alone. She said that this was accurate as her cousin had not been physically present when she moved in, but had stayed there after, though she had never really moved in to live there for a longer period. It was put to the complainant that she had testified falsely about this. In my view, there was nothing in the complainant’s evidence, viewed as a whole, that is at all concerning. She explained what was said to be an inconsistency as to whether her cousin had moved in or not. In re-examination, the complainant clarified that her cousin was a student at Sheridan College, that she had been supposed to finish in April, but had failed a course both then and again in August. She was working and was staying with friends, but was unable to extend her time in Canada and so had left. She had only stayed in the apartment for 2-3 nights. Asked to explain why she had said that her cousin moved in, Ms. G. said that she had stayed as a guest for about 3 nights and had initially moved some of her clothes in, but that he had never really moved in as a resident. I found counsel was splitting hairs during the cross-examination, and that any apparent inconsistency is explained by the complainant’s relatively loose use of the expression “moved in”. While I accept that the complainant’s words can be parsed in order to create what might appear to be an inconsistency, I found her evidence in this area to be credible and to make sense. I do not accept the defence suggestion that she made up the existence of her cousin. First, it is hard to imagine how that would serve her interests. Second, this suggestion seems particularly unlikely when Ms. Sharma seemed to accept entirely that there had been a cousin. The existence and living situation of the cousin adds nothing to the allegations and, in my view, is largely irrelevant to the complainant’s credibility and to the issues to be decided. I observe that it may well be that the alleged inconsistency flowed from the complainant’s proficiency and use of English. It was clear to me during the trial that while her English is very strong, it is not the complainant’s first language and that occasionally, she uses what might be seen as a slightly incorrect expression, and that she sometimes misses the finer nuances in language.
• In her examination in chief, the complainant testified about the locks on the apartment. She explained that there was an entrance to the apartment from the garage and that there was also an entrance directly from the house into the lobby of the apartment. She said that she could not lock that door from inside the apartment, but that the landlord could lock it from inside the house. She said it was locked when she moved in and that she did not have a key to it. Mr. Skurka cross-examined the complainant on her evidence about her ability to lock the apartment. She agreed that she had a key to the bedrooms and could lock them, and that she had the ability to lock the landlords out of them. Her statement of October 4, in which she had told police she could not have locked the landlord out if she wanted to, was put to her. She said that this was true because she could not lock the door to the apartment. It was put to her that had she moved the mattress to one of the bedrooms, she could have locked the bedroom, with which she agreed. Counsel then suggested that her evidence that she could not lock them out was incorrect. She said that she would have had to move the king size mattress and that it was heavy. In my view, this is another example of counsel trying, without success, to suggest that the complainant has given inconsistent evidence. I see her evidence in this area as completely consistent and logical and draw no adverse finding against her.
• Ms. G. was asked about the fact that she asked Mr. Sharma for the wifi password more than once. The implicit suggestion was that there was something nefarious about the complainant having re-asked for the password in late September, at a time when she knew that his wife, Ms. Sharma, had gone to India. I took the suggestion to be that the complainant was creating unnecessary reasons to contact Mr. Sharma, which fueled the defence position that she was the one who initiated the sexual relationship. The complainant agreed that she used the internet daily. She agreed that she asked for the wifi password on August 11, 2015, two days after she moved in. She also agreed that she had asked for the password again on October 1, seven weeks after she moved in and that it was the same password she had been given earlier. Counsel suggested to her that she would have known the password by then, implicitly suggesting that she had no valid reason to ask for it again. She explained that she had re-set her device, had not written the password down and that she had not been entering it daily as it was programmed into her phone. I found the complainant’s evidence to make sense. She had the password on her devices. It was set to automatically allow her to log into the wifi daily. When she re-set her devices, she needed to input the password again. There is nothing the least but concerning about her evidence in this area.
• It was suggested to the complainant that she knew that Ms. Sharma had gone to India by September 28, 2015. She agreed. She agreed that there were 57 messages from her to him between August 22 and September 26, a period of five weeks. It was then suggested that after Ms. Sharma left, there 119 texts over a period of 5 days, which she accepted. Counsel asked why there was the dramatic increase in the number of texts after Ms. Sharma left, again implicitly suggesting that there was something forward or nefarious about the increase in the volume of communications. Ms. G. said that they were just continuing their conversations and messaging back and forth and that she trusted him and felt comfortable with him. I have carefully reviewed these messages. There is no basis, in my view, to infer from the mere increase in the number of messages that Ms. G. was initiating a sexual relationship with Mr. Sharma. First, this is not a numbers game. Numbers can be misleading, especially when many of the text messages are only a word or two. One must look at the content of the messages, many of which are only a very few words. Second, it is noteworthy that there is a similar increase in the number of messages that the accused sent to the complainant, rebutting a suggestion that she was the one initiating the relationship. Third and most importantly, I do not find the content of these messages reflects any intention on the complainant’s part for there to be anything other than a landlord-tenant relationship.
• The complainant was cross-examined about whose idea the massage of the accused’s foot had been, and when the idea had first come up. The defence suggests that before the texts were produced, the complainant was able to maintain a story that the accused came up with the suggestion of a massage, when it had really been her idea. Under cross-examination, the complainant agreed that in her statement and at the preliminary inquiry, she had said that the idea of a foot massage was the accused’s, and that it came up first on Friday, October 2. It was suggested to the complainant that this was not true because she had introduced the idea of massaging his foot in her texts of October 1. Under this cross-examination, the complainant agreed that the subject of “Dorm massage” had been introduced by her in the text messages on October 1. But, critically, when counsel suggested that she had not told the truth when she said that the accused introduced the massage idea on October 2, she disagreed. She explained that her messages were kidding around and joking and that she had not thought Mr. Sharma would take them seriously. She was clear that she never intended, in those joking emails, to offer him a massage. Her evidence was that she was never suggesting that she would perform a massage for the accused. I found the complainant very believable in this area as it makes sense that they both were joking around. I do not accept the defence position that she was offering Mr. Sharma a foot massage in those text messages of October 1. I accept her explanation that she was joking and kidding around and that the first time the idea of her actually giving him a foot massage was introduced was when the accused came downstairs to her apartment on October 2 and asked for one.
• The complainant was cross-examined at length about whether she had previously said in her videotaped statement of January 23, 2018 that she had offered Mr. Sharma a massage in relation to his ankle. She testified that she had offered to help him, not that she had offered a massage. She was played a passage of her statement in which she was asked whether she had offered him a massage. It was put to her that she had responded, “I can’t see”. She said that what she had said was, “I can’t say”. Having reviewed the audiotape of this evidence, I am not persuaded that she said, “I can’t see”. It is hard to understand. But, in any event, I cannot conclude from this interview that she ever told the police that she had offered Mr. Sharma a massage. I accept her evidence that he was the one who requested the massage, and that she had never made an express offer to him to massage his sore ankle. I reject Mr. Skurka’s argument that this is an important contradiction against the complainant. I disagree with counsel that it is fair to infer from what the complainant said in this statement that she was offering him a massage.
• Ms. G. was cross-examined on her statement to Constable Campbell who, on October 4, conducted a short interview of her that was not videotaped. This took place prior to her statement to Constable Melo-Franchino. Ms. G. agreed that she had told Constable Campbell that on October 2, between 9:00 p.m. and 9:30 p.m., Mr. Sharma came to the basement advising he had fallen at the Temple and asked her for a massage. It was put to her that she had already agreed that he had told her about falling at the Temple in a text on September 25. Counsel suggested that he could not have been advising her for the first time about the fall if she had already been told about it on October 2. In my view, the complainant adequately explained her evidence about this issue. I do not think it is fair to infer from what she told the officer that she was saying that she learned of the fall for the first time that evening. Rather, it seems that she was trying to put into context for the officer why it was that the accused was seeking the massage. I see nothing inconsistent between what she told the officer and her evidence about having been aware of the fall from the earlier text messages. Accordingly, I reject the defence suggestion that the complainant hid the texts so that she could claim to Constable Campbell that she first learned of the fall on the evening of October 2.
• Ms. G. was also cross-examined on whether she had told Constable Campbell the details of the allegations of sexual assault on October 2. She testified that it was a brief interview, that she gave a more detailed interview later, and that she did not recall exactly what she had said, although she did say that he had sex with her. Under cross-examination, Mr. Skurka read the officer’s notes to the complainant and suggested to her that there were a number of things that were different about the account of the sexual assault on October 2 that she had given to the officer and her account during her evidence in chief. Most significantly, counsel says that she did not recall telling the officer that on the Friday evening, the accused had touched her vagina over her pants. She testified that she did not recall if he had done that.
• During his evidence, Constable Campbell testified that the complainant had said to him that the accused had asked for a foot massage and that when she gave it to him, he had forcefully kissed her and then removed her bra, touched her bare breasts and touched her vagina over her pants. However, he also agreed that his notes were not verbatim, and that his notes of their conversation were relatively brief, considering that their conversation had been 20 to 30 minutes. He agreed that the complainant had never seen the notes and had never reviewed them for accuracy. While he thought his notes were accurate, he said that they were not made verbatim or immediately and that he would do better now.
• Counsel suggests that while Constable Campbell might have missed details, it is significant that the complainant told him that the accused touched her vagina over her clothes and in her evidence, she said that this did not happen. He says that she related to the officer something that did not happen. While I accept that there is an inconsistency in that the officer recorded something that the complainant now says did not happen or which she says she does not now recall, I would not characterize this as the sort of “major inconsistency” that the defence describes it as. What the complainant said to the officer was not recorded verbatim, or contemporaneously, and was not reviewed by her. She did not know if she had said this. In these circumstances, I cannot make a finding that she necessarily said what the officer believes she said. While I am confident that he was trying to be accurate, he agrees that he could have done better, and that he would do better now. His notes are a short summary. There may well be small details like this that he recorded inaccurately. I just cannot say.
• The complainant was also cross-examined about what she had told Constable Campbell about the events of October 3. Again, she testified that she did not recall exactly what she had said. It was put to her that she had said that the accused returned to the basement 2-3 times before they went to Tim Horton’s. She said that this was not true and that he came down once. Constable Campbell testified that she had told him that the accused came down 2-3 times asking her to go out. I accept that there appears to be a discrepancy between what the officer recorded the complainant saying and what she says happened. Again, however, I cannot determine whether the mistake is in the officer’s recording or in what the complainant said. In any event, I view this is as very minor detail and not as the sort of material inconsistency the defence suggests.
• The complainant was cross-examined about the emoji she texted to the accused on October 2, 2015 at 6:28 p.m. and agreed that it was a smiley face. She agreed that she used a slightly different emoji at 6:26 p.m. It was suggested to her that the emoji she used when she said that she could not wear shorts anymore because of the change in temperature was an emoji that signifies “delicious” or “tasty”. She disagreed that this is what it meant. She agreed that the emoji with the tongue meant to her “surprise” or “shocking” and that it was “kind of naughty”. When counsel followed up and suggested that the accused had not sent to her anything that could be characterized as “kind of naughty” before she sent this to him, knowing that his wife was away, Ms. G. explained, “I’m sorry I think you took me wrong here” and clarified for her it was a “kind of naughty surprising emogi”. Under re-examination, the complainant clarified that by “naughty” and “surprising”, she meant that the emoji was kind of funny. She said that for her, the term “naughty” did not mean sexual. The defence position is that this evidence is critical as it casts real doubt on the complainant’s assertion that there was a sexual assault. Counsel says that it goes to the complainant’s credibility as it undermines her assertion that she was joking around. It is argued that she tried and failed to distance herself from having sent a sexual message. I accept that for the complainant, whose first language, as I have indicated, is not English, she had no intention ever of sending a sexually provocative, “naughty” message. Her evidence, perhaps less clear than it might have been because of her imperfect English, unequivocally conveyed to me that while she understood that others might perceive her use of the word “naughty” to mean sexual, that was never her intent. I reject the defence characterization of the evidence and its significance in undermining the complainant’s credibility.
• In respect of whether the accused wore a condom during the October 3 incident of sexual intercourse, the complainant agreed under cross-examination with her evidence in chief that she did not recall whether he had. Her evidence from the preliminary inquiry, in which she had said that he was not wearing a condom, was put to her. She agreed that this was her earlier evidence and that it was different from her trial evidence. Asked which was correct, she testified that she was pretty sure that he was not wearing condom. I am not persuaded that this is a material inconsistency. She acknowledged that she had given conflicting evidence and persuaded me in her testimony that she was just genuinely unsure now about whether a condom was used.
• The complainant was cross-examined about the events after she and the accused went to Tim Horton’s on October 3rd. It was suggested to her that in her police statement on October 4th, she had said that the accused asked her to please not tell anyone that she had given him a massage. I understand the defence position to be that it is illogical that she would highlight this. I do not agree. There is no evidence that the accused did not say this. I am not persuaded that there is anything concerning about the complainant saying that the accused said this to her.
• Ms. Sharma was called as a defence witness to undermine the credibility of the complainant. Surprisingly, Ms. Sharma does not seem to know much about the allegations against her husband. He has told her that he went downstairs and that the complainant put allegations against him. She was not told that the accused engaged in consensual sex with the complainant, which is the position the accused advances at trial. She says that she believes in her husband. I accept that this is so, but it appears to me that this may well have led her to be willing to say whatever she thinks will assist her husband, even though she has limited personal knowledge of what is alleged.
• While Ms. Sharma’s evidence certainly contradicted the complainant in some respects, I found that she seemed was quite unaware of the ongoing communications and relationship between the complainant and the accused. He did not tell her that the complainant was looking to assemble her bed. He did not tell her that she wanted to borrow a screwdriver. He did not tell her that he had offered to assist with the bed assembly. He did not tell her that he continued to communicate with Ms. G. about seeing the basement and about issues in the basement apartment, such as the wifi and heat, after Ms. G. moved in. In short, while Ms. Sharma purported to have said that all concerns were dealt with by her, this is clearly not what happened with Ms. G. Yet, she would not acknowledge that she was surprised to learn that Ms. G. and the accused were texting and that he had offered to assist her.
• Ms. Sharma’s evidence about the fallout of these allegations in the Temple further demonstrated to me that she is not a very reliable witness. She agreed that her husband is involved in the Temple and said that she is not as involved, but that she goes on special occasions and sometimes on weekdays. She agreed that her husband had a prestigious position at the Temple. Yet, when it was suggested to her that his being charged had created some difficulties at the Temple, she was unwilling to agree that it had. She said that things remained pretty much normal and that she was not sure if there were tensions between members of the Temple. Her evidence was that the other Board members were supporting the accused. She purported to be unaware of any posters about the allegations at the Temple. The difficulty with Ms. Sharma’s evidence about the effect that the allegations had on the Temple is that it is undermined by the evidence of Mr. Dev Sharma, the head priest at the Temple, who spoke about the difficulties caused by the allegations against the accused. Mr. Dev Sharma’s evidence casts real doubt on Ms. Sharma’s credibility. In the end, I find Ms. Sharma’s evidence to be of little assistance to the defence in undermining the credibility or reliability of the complainant and conclude that she was a largely unreliable witness herself.

Conclusion

[88] I have considered in detail the reliability and credibility of the complainant’s evidence respecting the allegations. I found that she withstood rigorous cross-examination. I do not accept the defence position that alleged inconsistencies in her evidence made her incredible. To the contrary, I thought that the defence positions respecting her credibility were often unsupported by the evidence or unfair to the complainant. I found her evidence to be extremely believable and persuasive. Her reliability is bolstered by the fact that in some respects, her evidence was supported by other witnesses. It was certainly not effectively challenged by the evidence of defence witnesses Mr. Dev Sharma and the accused’s wife.

[89] I accept the complainant’s evidence as to what took place on October 2 in the basement. I accept that while she massaged the accused’s feet, he touched her sexually without her consent. He tried to kiss her and hurt her bottom lip. He touched her breast and tried to kiss it. She was able to push him away. I am satisfied beyond a reasonable doubt that the Crown has proven that Mr. Sharma committed a sexual assault.

[90] On October 3, I accept that the accused went to the basement and again made non-consensual sexual advances towards the complainant. He tried to unhook her bra, to kiss her and began to pull her pants down. He was able to do so and touched her vagina. She told him to stop and he did.

[91] After their trip to Tim Horton’s, I find that the accused returned to the basement apartment. He kissed the complainant without her consent, removed her nightgown and had non-consensual sexual intercourse with her. I am satisfied beyond a reasonable doubt that the accused committed the offence of sexual assault.

[92] On the basis of my findings, the accused will be found guilty on both counts.

Woollcombe J.

Released: February 22, 2019