Court File and Parties

COURT FILE NO.: CR-16-DV8097 DATE: 2019/04/01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen – and – A.M.

COUNSEL: J. Fuller for Her Majesty the Queen K. Weinstein for A.M.

HEARD: October 1, 2018 and February 12, 2019

Reasons for Decision

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.

O’Bonsawin J.

Background

[1] A.M. and C.J., the alleged victim, had been in a relationship for a number of years. They have two biological children and have raised four children together in total. C.J. gave birth two male twins in a refugee camp in Eritrea. K, one of the twins, is highly disabled; he is non-verbal, non-ambulatory, and incontinent.

[2] When A.M. and C.J. became a couple, A.M. agreed to raise all of the four children as his own. For cultural reasons, they also agreed not to tell the twins that they were not AM’s biological children.

[3] A.M. often worked out of province and his absence led to difficulties in his relationship with C.J. In two to three years leading up to the incidents that form the charges, A.M. had begun a relationship with another woman, Z; at times, he stayed with her. A.M. and C.J. frequently argued about Z.

[4] In addition, as result of working out of province, A.M. had to advise Ottawa Community Housing that he was not residing with C.J. and not financially supporting her. This led to further conflict between them.

[5] A.M. pled not guilty to the following five charges:

1. On or about the 1st day of November 2016, at the City of Ottawa in the East Region, did commit a sexual assault on C.J., contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”);
2. On or about the 1st day of November 2016, at the City of Ottawa in the East Region, did wilfully damage a home phone, the property of C.J., the value of which did not exceed five thousand dollars, and namely thereby commit mischief, contrary to s. 430(4) of the Code;
3. Between October 1, 2016 and October 31, 2016, at the City of Ottawa in the East Region, did commit a sexual assault on C.J., contrary to s. 271 of the Code;
4. Between January 1, 2015 and December 31, 2015, at the City of Ottawa in the East Region, while committing an assault on C.J., did carry a weapon, to wit, a knife, contrary to s. 267 (a) of the Code; and
5. Between January 1, 2015 and December 31, 2015 at the City of Ottawa in the East Region, did commit an assault on C.J., to wit, strangulation, contrary to s. 266 of the Code.

[6] At the commencement of the trial, the Crown and the Defence agreed to the following:

• that a s. 486.4 Order was required regarding the non-publication of information that could lead to the disclosure of C.J.’s identity;
• the voluntariness of the statement was admitted; and
• that the date, jurisdiction, and identity were admitted.

[7] The Crown called two witnesses to testify: the complainant, C.J., and a paramedic, Mr. Vareta. C.J. testified with the assistance of a Somalian interpreter. The Defence called one witness to testify: Constable Herriot. A.M. did not testify.

[8] At the end of the first day of the trial, concerns arose regarding whether or not C.J.’s testimony was being appropriately translated by one of the Somalian translators. I ordered that the Court Interpretation Unit, Court Services Division audit the recordings/transcript in order to verify the accuracy of the translation. On January 29, 2019, the Crown advised me that the Interpretation Unit confirmed that there were no issues regarding the translation of C.J.’s evidence.

[9] At the end of the trial, the Crown advised me that there was insufficient evidence to support a conviction for charge #2 (mischief) and invited me to acquit A.M. on this charge.

[10] The parties agreed to the following facts:

• on November 15, 2016, Detective St. Amour asked C.J. to bring in the dress that she wore during the alleged sexual assault on November 1, 2016. Det. St. Amour followed up again with C.J. to make the same request on both November 28 and December 16, 2016. C.J. did not provide the dress; and
• with regards to C.J. dropping the charges against A.M., Det. St. Amour’s report states: “I advised the victim that unless she admitted to me that she lied about her allegations and would have to provide a statement” (Defence counsel advised me as he read this sentence into the record that there appeared to be words missing).

Evidence

[11] I will now review the evidence of the witnesses.

[12] C.J.’s evidence is summarized as follows:

• C.J. was born in Somalia. She fled Somalia to Eritrea where she lived in a refugee camp from 2002-2008. At the camp, she gave birth to twin boys. K, one of the twins, is highly disabled; he is non-verbal, non-ambulatory, and incontinent.
• C.J. met A.M. in the refugee camp and they immigrated to Canada in 2008. C.J. testified that A.M. “raised the children with me, he marries me and all of that happened and to give them his name, I was pregnant at that time, he gave them his name, and we were living together very well, the children consider him as their father, he raised them with me very well initially, and when we came to Canada, after while he changed after two yrs and I do not know what happened, not towards the children, only towards me”.
• C.J. does not work and she is on social assistance.
• C.J. and A.M. separated and, at some point, A.M. also married Z. However, he continued to come to the house to help C.J. with the children.
• C.J. lives with her children in a three-floor townhouse. On the main floor, there is a kitchen, living room, and K’s bedroom.
• In May 2015, C.J. and A.M. had a fight about Z. A.M. held C.J.’s arms and she tried to fight him off. In the laundry room in the basement, A.M. choked C.J. with a rope/wire used to hang laundry until she became unconscious. A.M. then called the ambulance. When C.J. woke up, A.M told her to tell the police that she did this to herself.
• During an evening approximately one-month prior to the November 1, 2016 sexual assault, A.M. arrived at C.J.’s house when she was not expecting him. C.J. did not recall all of the details of the event, and stated “It is hard to remember that, I remember the day when I was complaining, I don’t know now if it is I had a lot of problems, I think it was night time, it was not a month after that, not a year after that, it was like that…He used to come for his children, he had a key I did not take it away from him, because the children did not know he lived in another place, I did not want them to feel that, he kept the keys, but he took out of the system that he was not living with me at home, he was not having anything to do with me, if he takes the children out in the night, I would go to bed and he would bring children, give them dinner and then take them to the bed and then he would leave”. C.J. was asleep in her bed where she sleeps with K. A.M. came into the bedroom, took off his jacket and his shirt and stayed there. C.J. asked him what he was doing and he responded that he wanted to sleep with her. C.J. told him that he was not going to sleep with her, and said “go to your wife”. A.M. responded to C.J. that he had fought with Z. C.J. then told A.M. that she would not sleep with him, to which he responded: “I can do whatever I want, I can come and sleep with you or I can go or I can sit, whatever I want to do I do”. A.M. then took off his pants, kissed C.J., and sexually assaulted her. C.J. did not report the sexual assault to police because A.M. later apologized for sexually assaulting her.
• On November 1, 2016, A.M. came over and took three children to the Boys and Girls Club. K stayed behind. At around 4:00 p.m., A.M. returned to C.J.’s house. He changed K’s diaper. C.J. and A.M. had a disagreement. She was wearing a normal robe, full sleeve with two layers, and a hijab showing her face but covering her ears, neck, hair, and shoulders. “You are my wife, something like that, and I said I don’t want you, you hate me, leave me alone, that is what I said...Then there was a forcing, you are my wife, I love you, things like that”. C.J. stated that afterwards, A.M. “forced me, he raped me in the sitting place”. Initially, C.J. was standing in the living room and then A.M. pushed her onto the sofa. A.M. grabbed her arms and legs. According to C.J., A.M. then “pulled my legs and did whatever he wanted to do with me… He wanted to rape me and use me as a woman and he did that, he tried things we used to do when we were [together] but in a bad way.” C.J. did not recall if A.M. said anything to her when he sexually assaulted her. Afterwards, she went upstairs and locked herself in her bedroom and later fell asleep. After she realized that A.M. had left, she went for a shower and then went back to the main level. She was angry at the time.
• Later that evening, A.M. called her to discuss who was going to pick up the children. C.J. testified that “I said why you did that to me, you are saying you will pick children up, you brought them there you pick them up, he said you pick them up and I will not come to you again, so I said you took them there take them back and then I was upset and called the police - when that happened it was 4:00 when I called police it was 7:00”.
• On November 15, 2016, C.J. went to the police station and provided a video statement.
• On December 13, 2016, C.J. signed a letter seeking to have all the charges dropped against A.M. She stated that “He is my husband and he had crime against me, and my children are more important than me, the way he loves his children, and I love him…since the crime happened, I wanted he came out from his side, we asked the government that I waived what I said and he waives what he said and we build the future of our children, and he helps me with my disabled child since he does not have another father, he is his father, so I did not want him to be raised in another way, I signed this letter because of that”.
• A.M. and C.J. had reconciled on and off. When A.M. returned home, C.J. was aware of Z, but did not know that they were also married. At one point before the reported sexual assault, C.J. and Z had a phone conversation filled with insults. Z told C.J. that her children were bastards. Z later called the police on C.J. At times, A.M. gave Z money instead of giving money to C.J. and their children. This made C.J. upset. After November 1, 2016, C.J. became aware that A.M. and Z had a child together.
• After A.M. was charged, M.M., a friend of A.M.’s, called C.J. and told her that A.M. wanted to talk to her. M.M. told her: “you do the right things but he cannot talk to you, he wants that you make an agreement with him and then you raise your children together, he said do you mind that, I said that I want to talk to him, he said to me he cannot talk to you, I said to him I want to hear from him what he wants, that is when I recorded after he talked to me, I recorded what he said to me at the time”. C.J. advised the police that she had recorded their conversation in 30-second snippets, but did not record all of the conversation. At times, the recordings stopped when she was handling the phone or taking care of the children. C.J. made the recordings because A.M. told other community members that she was a liar, and this was her way of showing that she was not lying.
• During the conversation between C.J. and A.M., they discussed getting a divorce.
• During periods of hostility between them, A.M. assaulted C.J. with various things; his hands, an iron, a bar, and other items. On one occasion, he brandished a knife used to spread chocolate and put it to her throat. She did not recall the details of this incident.
• C.J. would like to reconcile with A.M. and testified that: “I always before and if he wants me know I love him, because my children love him and he is my husband and I love him, he did bad thing to me and if he stop the bad thing then his children want him, and I didn’t tell them about the incident and I told you two children not biological father also father, and I always hoping that he will become father for those children, they will not know or become aware of what happened, and that if he avoids what happens between us before if that is possible, and I always liked and before today that he acts as a father with his children and stay with them, I cannot foresee, and I always hoping that he acts as a father for his children, and I already said about that”.
• C.J. does not recall all of the details of all of the events. Her memory “has changed”, and is not very good. At times, the transcript of her testimony at the Preliminary Inquiry assisted in her recollection of events. According to C.J.: “ Everything I said words I said to court was truth and what I said to the police is the truth, there is nothing that I am lying about, I am saying that A.M. has been pushed to all I wanted was the problems the pressure he has on me to be reduced and the problems he has on me, I told police I do not want to take my husband to the court but all I want is that he stops that problem to me but I love my children and he brought the woman and to stop that, and even now I have a hope he comes back to me and the children the way he used to help with the children, but everything that I say even if I forget things or I remember things, all I say is the truth”.

[13] Mr. Vareta’s evidence is summarized as follows:

• On May 31, 2015, Mr. Vareta was called to a suicide/behavioural call at C.J.’s house.
• When Mr. Vareta arrived, according to his notes, C.J. was laying on the floor. There was a language barrier between them and he could not understand what she was telling him. A.M. provided Mr. Vareta with the information of what had occurred, and told him that C.J. had not slept well the night before, that she had walked into basement, and that he had heard a scream. According to A.M., when he went downstairs, he noticed a rope around C.J.’s neck which was tied around a beam. A.M. removed it and returned back upstairs.
• Mr. Vareta went downstairs to look at the scene. He noticed that the rope was “significantly low hanging”. When asked if there was anything noteworthy about what had happened, Mr. Vareta responded: “I thought if you were to attempt to hang yourself with rope that low, you would have to lie down on the floor”.
• Mr. Vareta performed an assessment of C.J. and did not note any trauma to her neck.
• Based on the information that Mr. Vareta was provided, he noted his impression as a “suicide attempt”.

[14] Cst. Herriot’s evidence is summarized as follows:

• Cst. Herriot responded to C.J.’s call to police regarding her alleged sexual assault. C.J. was visibly upset and sobbing when he was dealing with her. Cst. Herriot recalled that she was wearing a full length dress and only her face and neck were visible.
• When Cst. Herriot and his partner arrived at C.J.’s house, paramedics were there and there was translation available. Cst. Harriot’s partner was approached by A.M. when they arrived, and C.J. did not appear to have been physically assaulted
• The alleged sexual assault occurred between 3:00 p.m. and 3:30 p.m.
• When Cst. Herriot looked at C.J.’s telephone, there appeared to have been four telephone calls made between C.J. and A.M. between 6:00 p.m. and 8:00 p.m.
• Cst. Herriot was told that the children were not in the home.

[15] There were four exhibits filed during the trial: C.J.’s letter, dated December 13, 2016, a translated transcript of a recorded telephone conversation between A.M., C.J., and M.M., a video of C.J’s police interview, and an Incident Report dated November 1, 2016.

[16] The Incident Report of the Ottawa Paramedic Service dated November 1, 2016 stated as follows:

ON THE ABOVE DATE AT THE ABOVE ADDRESS …WAS CALLED CODE 4 FOR A DOMESTIC ASSAULT. DISPATCH STATES VIA 10-21 THAT THE FEMALE HAS BEEN RAPED BY HER HUSBAND AND DISPATCH UNSURE IF THE HUSBBAND IS STILL ON SCENE…PARAMEDICS WERE BROUGHT TO THE PT BY OTTAWA POLICE. PT DID NOT WANT TO BE PHYSICALLY TOUCHED BY PARAMEDICS. PT DID NOT SPEAK ENGLISH SO PARAMEDICS GOT AN INTERPRETER ON THE PHONE. FEMALE STATES HUSBAND CAME OVER TO VISIT THE KIDS. HE TOOK THEM TO THE PARK BUT RETURNED LATER ALONE STATING HE FORGOT SOMETHING. PT STATES THE HUSBAND FORCED HIS WAY INTO THE HOUSE. PT STATES HUSBAND THEN HAD INTERCOURSE [WITH] HER AND THEN LEFT. NO VISIBLE SIGNS OF TRAUMA WERE NOTED. THERE WAS 1 MALE CHILD (13 Y/O) WHO WAS HOME WHO IS DISABLED. PARAMEDIC (RICKER) CALLED AND SPOKE TO CAS.

[17] C.J.’s letter, dated December 13, 2016, stated as follows:

I, [C.J.], born in Somalia on […], 1971, landed immigrant residing on [address], would like to inform you that I have dropped all the charges against my husband, [A.M.], born in Somalia on […], 1975. I have made my decision after a fair and honest restorative mediation between us by our community elders and close relatives. I believe my decision on this matter will be excellent choice for our family, especially regarding the future well being of our children. Thank you.

[18] I will summarize the relevant portions of the transcribed conversation between A.M., C.J., and M.M. It must be noted that this transcription is a translation from the Somali to English language. The other male is listed as “M” below.

AM: my lawyer said if the case stays with [C.J.], he can/will defend me, but if it goes to the court it is hard to defeat them. CJ: ok. AM: because they will follow the law and they will say this guy used to do this and that. M: ok. but we can tell them she is lying. CJ: ok. AM: if you want, help me out of this situation. CJ: ok. AM: the only thing you can do is if you go there and say listen guys i was angry, i got jealous, he didn’t do nothing to me, i said all these out of anger i was very angry there will be no case. and they won’t go after you. plus you can not get arrested for that. That is the only way you can cancel the case. If you have any heart for me / care about me as a brother, you go there close the case for me tomorrow and lie, if you do that for me i will do anything you want for you. you telling me I will stop the case and the other side you continuously telling them other story / I did it to you … it won’t do any good for me and you, you know that. CJ: this story that i am saying loud is not making any sense to you, is that what you are saying? AM: ok what else you want to tell them? if you go there are you going to repeat the same story that you told them earlier. CJ: no, I already told them i forgive you. CJ: ok C. what you want to say is, since your case is not closing its better if i take the blame. is that is what you are saying? Or your saying lie and say this never happened and I was jealous is that is what you are telling me to say A.? AM: do you want to stop or keep going on and on for? CJ: is that what you want? Look I already signed the letter to stop, didn’t I? now A.’s story is to tell the court i was jealous and this story was all lie that is what he wants me to say is that true? M: what he meant is now we got advice from a lot of people. There will be no problems coming to you if you tell them that lie. Their will be only 500 dollar fine for you to pay. CJ: (is laughin) did you understand that A. want to put me in a trap, but allah will help me not to fall into this trap. M: A. is not putting you in a trap. CJ: here is the thing when A. said he would divorce me when he made his decision and left me he came back to my house and did whatever he wanted to me. I talk to him before that, time was almost four o’clock after that when I called the police was 7 o’clock M: ok CJ: and that was when we talked over the phone and he was insulting me over the phone and saying whatever he can say to me. Do you understand? M: yes. CJ: when I went there and opened my case, I met these men telling me don’t press charge him, it is matter of life and death please do not proceed this? M: yes. CJ: and now you are telling me i have to go there and say i was jealous and lie. Today is that what your telling me to say? AM: that is the only way you can help me cousin. CJ: that means that there will be nothing else that can help you C. except lying? AM: no that is the only thing, nothing else. you look at the situation and look at mine sweet cousin. what you did to me is like you killed me. CJ: are you saying there will be nothing else that would be good for you? now A. you here to saying lie to the court, is that what you telling me to say? AM: what i am saying to you is we can do better, we can sit with people and solve our problems. people talk to one another when they are mentally stable. CJ: so, you not mentally stable? AM: what you think when man been told next 4 yrs you will be in court in and out, you can not go to work, we have to find you all the time, you can not go out of the country, sit there 24/7 and wait for calls from us. CJ: then am i the one who did this to you or did this to yourself? i want the answer from you did I? AM: I did this to myself but now everything is in your hands. CJ: there is nothing in my hand A.. AM: then if this is out of your hand do you have anything else to tell me? i don’t have anything else to ask you. CJ: you tell me? what i am saying is let me go back to my other meeting with them tomorrow and let me stop what they will ask me to record in that room. AM: tomorrow is your last meeting mine is the 30 th of the month. You need to understand this is your 3 rd meeting you don’t have another one. That one you meeting tomorrow sister, Allah create good and bad you should have heart for all the human kind. CJ: A. i have a heart for you if there is one. i signed a note a legal paper. if I knew you had a wife i wouldn’t sign that paper. AM: that didn’t do any good for me. CJ: that didn’t do any good for you. AM: if that did something for me if that helped me why didn’t let me go. They told me that paper won’t help. CJ: ok. AM: they told us if your story is constant, no change and keep saying i did that to you, i will get charged for that AM: they said that is not law and it doesn’t work like that. Forgiveness doesn’t work in cases like this. If you go there tomorrow they will ask you did this guy did this and that to you. The only answer they want from you is yes he did, and then they will tell you good then go home we will call you. That is the only thing they are planning to get from you. If this guy did this to you or he didn’t? ok after that they tell you go home and the court day will be the 30 th of the month. 8:30 i have a court the only evident they take it to court is what they planned to record tomorrow and they will say here is it our 3 rd meeting with [CJ] here is what she is saying, he did to me but he is my husband, i forgive him, he is father of my kids or we are related is not gonna work. Do you understand? So what i’m saying to you sister is for the sake of Allah and the prayers you make for allah. have a heart for the sake of Allah forgive me and let us finish. CJ: I am not going to say I lied A. AM: than any other thing won’t help my case. CJ: i will never say i lied my whole life i will tell the truth to them. AM: then don’t you ever forgive me. CJ: is that what you want? then what you going to do with my divorce/paper? AM: paper…we will always be here…anytime

Position of the Parties

Defence

[19] The Defence submits that the parties are largely in agreement regarding the elements of the offences. The main issue in this matter is credibility.

[20] With regards to C.J.’s credibility, the Defence argues that she was jealous of Z and fabricated and/or exaggerated the allegations against A.M. out of vengeance. Furthermore, C.J.’s evidence had an extreme lack of detail, she had a lack of memory, there was a lack of precision about her recollections and there were inconsistencies in her evidence.

Crown

[21] The Crown argues that C.J. was a credible and reliable witness and her evidence is significantly corroborated by the transcript of the recording of her conversation with A.M. and another male. The fact that A.M. contacted C.J., in violation of his bail conditions, to discuss her recantation consists of supporting evidence of his guilt.

[22] With regards of the assessment by the paramedics, the Crown submits that C.J. dresses in a very traditional modest way. The paramedics were therefore only able to assess C.J. based on what they could see. In addition, there are cultural barriers within C.J.’s community and this impacts the resolution of this matter through our justice system.

Analysis

[23] I will start with a review of the applicable case law in this matter and general principles. The Court can accept all, a part, or none of a witness’ evidence. Inconsistencies do not automatically lead the Court to dismiss the witness’ evidence. Even if there are inconsistencies in the evidence, the Court can accept the witness’ evidence above all reasonable doubt.

[24] Credibility and reliability are distinct. In R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 33, Doherty J. clarified the concept as follows:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’ sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’ testimony. The accuracy of a witness’ testimony involves considerations of the witness’ ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’ veracity, one speaks of the witness’ credibility. When one is concerned with the accuracy of a witness’ testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

[25] The Court of Appeal has determined that the reliability of the evidence is paramount. In R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), the court confirmed that the assessment of credibility based on demeanour alone is insufficient in a case where there are so many significant inconsistencies. At para. 47, Finlayson J.A. stated: “The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount”.

[26] Moreover, the case law confirms that, while demeanor is a relevant factor in a credibility assessment, demeanor alone is a “notoriously unreliable predictor” of the accuracy of the evidence that a witness provides (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66). In addition, demeanor alone is insufficient to convict where there are significant inconsistencies and conflicting evidence (R. v. S. (W.) (1994), 18 O.R. (3d) 509 (C.A.), at para 19).

[27] In R. v. O. M., 2014 ONCA 503, 321 O.A.C. 312, the Court of Appeal upheld a decision in which the trial judge relied on, in part, the complainant’s tearful demeanor and tone of voice at certain parts of her testimony. The court stated the following at para. 34:

It is well-established that testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility. In this case, the trial judge provided cogent reasons as to why he viewed the demeanour of each witness, at specific points in their testimony, as significant. Moreover, demeanour was only one of many factors considered by him in his assessment of each complainant's credibility and reliability. [Citation omitted.]

[28] In R. v. Nimchuk (1977), 33 C.C.C. (2d) 209, the Court of Appeal concluded that the trial judge had erred when he found the accused guilty of fraud. The trial judge found that in order to acquit the accused, he had to conclude that the complainant “framed him” which led to placing the burden of proof on the accused. The trial judge appeared to think that he was faced with a choice between two alternatives, to accept the testimony of the accused, and to conclude that the complainant had framed him or to accept the complainant’s testimony, which required conviction. The Court of Appeal concluded that there was a third possibility: “if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (Nimchuk, at para. 7).

[29] In sexual assault trials, there is no assumption that the complainant is telling the truth. In R. v. Nyznik, 2017 ONSC 4392, 350 C.R. (7th) 241, at paras. 15, 17, Molloy J. stated:

Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.

[30] The Defence argues that during her testimony, the Crown had to often refresh C.J.’s memory with the preliminary hearing transcript and then she would simply adopt as true what she said at that time. The Defence relies on R. v. Alvarez-Maggiani, 2018 ONSC 4834 in which Campbell J. discussed the applicable legal standard for the adoption of an earlier statement at para. 22:

The jurisprudence is clear that, in order for a witness to “adopt” the contents of an earlier statement as part of their trial testimony, the witness must: (1) acknowledge having made the earlier statement; and (2) agree that the earlier statement is true according to their current recollection of the events. [Citations omitted.]

Assessment of the Evidence

[31] The main issue in this matter is with regards to credibility. I begin by assessing the witnesses’ evidence starting with C.J.’s evidence. C.J. gave her evidence in a forthright manner and was not oppositional during cross-examination. At times, it is true, that her evidence was difficult to follow which may or may not be related to the simultaneous translation. It was clear that she was attempting to protect her husband since she requires his assistance to help her with K and the other three children.

[32] The evidence of the recorded conversation between C.J., A.M., and the other male, M.M. corroborates C.J.’s allegation that A.M. sexually assaulted her on November 1, 2016. The Defence argues that all of the conversation was not tape recorded. That may be so, however, the content of the conversation clearly demonstrates that A.M. tried to pressure C.J. to change her allegation by saying that she was jealous about Z and that she lied to police.

[33] With regards to the Defence’s argument that during most of C.J.’s testimony she simply adopted what she had said previously at the preliminary inquiry, I find that this is not so when she testified about the sexual assaults. She was able to do so from memory. It is true that she did not provide as many details as we would normally see in a sexual assault matter; however, it is clear from the evidence that her religious and cultural beliefs played a role in her way of providing evidence. Her evidence is not to be lessened in strength because of this.

[34] Based on my overall review of C.J.’s testimony and the other evidence tendered as exhibits such as the transcript of her tape recorded conversation with A.M. and her letter where she attempted to “drop all charges against my husband”, I conclude that C.J. was a credible and reliable witness. There were insignificant inconsistencies in her testimony, however, most of these related to peripheral issues and I cannot discount her evidence.

[35] It must be noted that after A.M. called 911, and the paramedics arrived regarding C.J.’s strangulation, only A.M. provided the information to Mr. Vareta about what occurred. In addition, A.M. also approached Cst. Herriot’s partner when he arrived on site after C.J. reported the sexual assault to police on November 1, 2016.

[36] A.M. did not testify.

[37] As for the evidence Mr. Vareta and Cst. Herriot, I find them to be credible and reliable. Their evidence, however, did not provide many additional details.

[38] Lastly, there is no evidence that contradicts C.J.’s allegations that she was sexually assaulted by A.M. on the two occasions.

Conclusion

[39] With regards to Charge #1, there is sufficient evidence in support of this offence. C.J. described that her husband, A.M., “raped” her. According to C.J., he “pulled my legs and did whatever he wanted to do with me… He wanted to rape me and use me as a woman and he did that, he tried things we used to do when we were [together] but in a bad way.” It was clear in C.J.’s testimony that she did not consent to the sexual intercourse. The absence of consent has been established by the Crown. Based on my findings regarding the overall evidence related to Charge #1, I find that A.M. intentionally applied force to C.J., she did not consent to the force that A.M. applied, A.M. knew that C.J. did not consent to the force that he applied, and the force that A.M. applied took place in circumstances of a sexual nature. Consequently, I find that the Crown has met its burden and has proved beyond a reasonable doubt that A.M. is guilty of sexually assaulting C.J. on November 1, 2016.

[40] Based on the invitation by the Crown and a lack of evidence, I find A.M. not guilty of Charge #2.

[41] As for Charge #3, the evidence supports that just before sexually assaulting C.J., A.M. told her: “I can do whatever I want, I can come and sleep with you or I can go or I can sit, whatever I want to do I do”. A.M. then took off his pants, kissed her, and sexually assaulted C.J. She testified that she did not report the sexual assault to police because A.M. later apologized to her for sexually assaulting her. She is not to be faulted for not immediately reporting this sexual assault to police. I find that during this event, A.M. intentionally applied force to C.J., she did not consent to the force that A.M. applied, A.M. knew that C.J. did not consent to the force that he applied, and the force that A.M. applied took place in circumstances of a sexual nature. Consequently, I find that the Crown has met its burden and has proved beyond a reasonable doubt that A.M. is guilty of sexually assaulting C.J. between October 1 and October 31, 2016.

[42] With regards to Charge #4, the evidence to support a conviction was lacking. I agree with the Defence that C.J. adopted her past evidence at the preliminary inquiry and could not provide evidence during her testimony at the trial to support a conviction on this charge. Consequently, I find A.M. not guilty of Charge #4.

[43] As for Charge #5, the evidence supports that after A.M. choked C.J. with a rope/wire used to hang laundry until she became unconscious, when C.J. woke up, A.M told her to tell the police that she did this to herself. This is in the same fashion as when A.M. told her during the taped telephone conversation that she should lie to police and tell them that she made up the story of the sexual assault of November 1, 2016. I have found C.J. to be a credible and reliable witness. Her evidence has been corroborated. While it may be true that Mr. Vareta assessed C.J., went downstairs to look at the scene, and noted that his impression was a “suicide attempt”, he found it odd that if a person was going to attempt to hang herself with rope that low, she would have to lie down on the floor. Based on my overall assessment of the evidence on this matter, I find that A.M. intentionally applied force to C.J., she did not consent to the force that he applied and A.M. knew that C.J. did not consent to the force that he applied. Consequently, the Crown has met its burden and has proved beyond a reasonable doubt that A.M. is guilty of committing an assault by strangulation.

Justice M. O’Bonsawin Released: April 1, 2019