R. v. H.E., 2019 ONSC 5014

Court File and Parties

COURT FILE NO.: 14-6761

DATE: 2019/08/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

H.E.

Counsel:

Kerry McVey, for the Crown

Paul Lewandowski, for the Accused

HEARD: June 24-28, 2019 (at Ottawa)

REASONS FOR DECISION

PARFETT J.

1For the reasons set out below, the charge of sexual assault against H.E. is dismissed.

Background

2The Accused, H.E. and the complainant, Z.S., were married in December, 1991. In the years that followed they had four children – three daughters and a son. Their daughters are now in their twenties and their son is 10 years old.

3The marriage ended in August 2013 and divorce proceedings were started in December 2014.

4In April 2014, Mr. H.E. was arrested on a charge of sexual assault.

5A great deal of time was spent in this trial on the history of the marriage. This background evidence provided an important context within which to assess the evidence of both witnesses.

6The parties do not have the same view of this marriage. From Ms. Z.S.’s perspective, it was an arranged marriage in which she had little, if any, say in any major decision. From Mr. H.E.’ perspective, it was a traditional marriage, but one in which he had great respect for his wife and she had considerable influence over any major decision.

7Both parties are in essential agreement that the marriage – however characterized – was not in any obvious difficulties until Mr. H.E. left Canada for Gaza in 2009 and was absent from the family for 20 months. It was upon his return in 2011 that the situation within the marriage turned sour and ultimately, the parties separated. The date of separation is disputed. Ms. Z.S. indicated that it occurred in January 2013, although Mr. H.E. did not leave the matrimonial home at that time. Mr. H.E. stated that the separation did not occur until August 2013 when he left the matrimonial home. He also indicated that in the family litigation documents the January date was used at Ms. Z.S.’s request.

8Another area where the parties are in substantial agreement is that after Mr. H.E. suffered a serious car accident in 2003, the family began experiencing significant financial difficulties that contributed to no small degree to the end of the marriage. Mr. H.E.’ trip to Gaza was taken for the purpose of liquidating assets that he held there with his family. Unfortunately, his timing was poor and the real estate market was in disarray. Consequently, his siblings refused to agree to sell any of the jointly held real estate. The trip was supposed to alleviate the family’s financial difficulties and Mr. H.E.’ failure to bring home the much needed money contributed significantly to the demise of the marriage.

9The parties’ separation was initially relatively amicable, but that situation did not last long. By October 2013, Ms. Z.S. made it clear to Mr. H.E. that she did not want him communicating with the children and she was not permitting him to see the children.

10In December 2013, Ms. Z.S. filed an application with the family court, seeking among other things sole custody of the children, access to the children at her discretion, child and spousal support and a divorce. There was a case conference in February 2014 and access visits with the younger two children were organized. Ms. Z.S. did not comply with the specific provisions of that order and effectively, Mr. H.E.’ efforts to see his children were thwarted until a second court order was issued in August 2014. That court order dealt solely with access to the couple’s son.

11There is some disagreement about how long access lasted under the second order, but suffice to say that at some point after the order was issued, Ms. Z.S. insisted that access occur at a supervised access center and Mr. H.E. was not prepared to go along with that suggestion so he did not see his son for several years. His daughters have refused to see him since 2014.

12One area where there is significant disagreement with respect to the marriage is the issue of the parties’ sexual relations. Ms. Z.S. said that from the outset of the marriage she experienced pain during sexual intercourse. She indicated that she advised Mr. H.E. repeatedly of this fact and asked him to desist from sexual relations, at a minimum, until she had recovered from the pain. Ms. Z.S. testified that despite her requests, Mr. H.E. ignored her complaints and continued to insist on sexual relations.

13Mr. H.E. was adamant that his sexual relationship with Ms. Z.S. was always loving and respectful and that he never had non-consensual sex with Ms. Z.S.. Mr. H.E. stated there was never any suggestion made by Ms. Z.S. that she was experiencing any discomfort during sexual relations. In addition, he stated that when Ms. Z.S. indicated that she was not interested in sex, he respected her decision.

14It is important to note that both parties stated that discussion of sexual relations within a traditional marriage such as theirs was essentially taboo. They also agreed that such a subject would never be raised with someone outside the marriage.

Positions of the parties

15Crown counsel argued that Mr. H.E.’ evidence contained a number of inconsistencies. As an example Crown pointed to how the couple came to be married. In his testimony in chief, Mr. H.E.’ insisted that the marriage was not arranged. However, in cross-examination, Mr. H.E. agreed that he raised the possibility of marriage first with his mother and then with Ms. Z.S.’s family. When Ms. Z.S. learned of the proposal, she had only been alone with Mr. H.E. on two occasions. Despite Ms. Z.S. indicating that she did not know Mr. H.E., the couple were married within days of this proposal.

16In contrast, the Crown asserted that any difficulties with Ms. Z.S.’s evidence could be explained and ultimately, did not detract from her credibility.

17Defence takes the position that the incident as alleged by Ms. Z.S. never occurred. In his final arguments, Defence stated that there was no reason to disbelieve any of Mr. H.E.’ testimony and pointed to many areas of his testimony that were confirmed by emails or court documents. On the other hand, Defence stated that there were numerous inconsistencies in Ms. Z.S.’s evidence as well as a strong motive to fabricate.

Analysis

18The only issue in this trial is one of credibility. The Crown bears the onus of proof and must persuade the court that the charge has been made out beyond a reasonable doubt.

19In the present case there were only two witnesses who testified: the complainant and the accused.

20The complainant, Ms. Z.S. testified that over the course of the approximately 20 year marriage, there were numerous incidents of non-consensual sex. She advised the court that she understood that within her marriage, she had no right to refuse sex to her husband.

21The Crown relied on a single incident of non-consensual sex that allegedly occurred in the spring of 2002.

22Ms. Z.S. stated that on this day, her husband had undergone a hair transplant. He returned home in the afternoon and his scalp was bloody and covered in stitches. Ms. Z.S. told the court that she had a weak stomach and found her husband’s appearance repulsive. She indicated that her husband sat on the couch and after Ms. Z.S. provided him with his pain killers, he grabbed her wrist, pulled her down on the couch with him and engaged in sexual intercourse. Ms. Z.S. stated that she made it clear to her husband that she did not want to have sex with him, particularly given his physical state. After the sexual encounter, Ms. Z.S. stated she went upstairs and had a shower.

23Mr. H.E. stated that this incident never occurred. He said that he decided to undergo a hair transplant procedure despite the fact that Ms. Z.S. was opposed to it. He did not tell her he was getting the hair transplant done and relied on a friend to transport him to and from the clinic. He agreed that Ms. Z.S. was not happy with what he had done. However, nothing untoward occurred that day.

24The decision of R. v. W.D.¹ indicates that the starting point for any analysis is with the accused’s evidence. Mr. H.E.’ evidence cannot be viewed in isolation. Instead it must be viewed against all the evidence in the case and Mr. H.E. is not entitled to an acquittal merely because his evidence does not exhibit any “obvious flaws”.²

25In the present case, while I do not accept all of the accused’s evidence, there are certain aspects that I do accept and which are supported by the documentary evidence that has been filed in this case. I accept that Ms. Z.S. had considerable animus toward Mr. H.E. and that she made considerable efforts to prevent him from having a relationship with his children. I agree with Crown that this animus could have been caused by the dysfunctional marriage. However, regardless of the reason for the animus, it also provides a motive to fabricate.

26Mr. H.E. loved his children. He stated, and I accept, he would never have done anything to harm them. After the couple’s separation, he consistently made efforts to see the children. He only stopped when he decided he would not accept access visits in a supervised access facility.

27I accept that Mr. H.E. was unaware there were any issues with the couple’s sexual relations. However, I find that this lack was not due to the fact there were no problems, but rather that the problems were never discussed. Both parties asserted that sexual relations was not a subject that was discussed within the marriage, let alone to persons outside the marriage. Consequently, I find that the problems that existed were not communicated by Ms. Z.S. to Mr. H.E..

28I do not accept that Mr. H.E. discussed major decisions with Ms. Z.S. and made any such decisions with Ms. Z.S.’s knowledge and agreement. In his statement to police, Mr. H.E. said the following:

I’m still her husband. And she has to obey me. I’m the first in priority.

[H]er allegiance has to be to her husband. She doesn’t want to listen to me, I see one of two things, it’s either she listens to what I say or we going to be divorced. I’m going to divorce her.³

29These statements were made prior to the charges being laid and in my view are the most accurate reflection of his views. Mr. H.E. stated with respect to a number of matters, such as how he proposed to Ms. Z.S., that he did them in accordance with the customs of his culture. Consequently, these views are in keeping with a marriage that was very traditional.

30I also do not accept Mr. H.E.’ characterization of his marriage as one where both parties were equally committed to the marriage prior to it occurring. As noted earlier by the Crown attorney, there is strong evidence that this marriage was arranged and that Ms. Z.S. did not have much say in it.

31While I do not accept all of Mr. H.E.’ evidence, his evidence leaves me with a doubt about whether the incident as alleged by Ms. Z.S. ever occurred.

32This doubt is reinforced by the problems with Ms. Z.S.’s evidence. There were serious inconsistencies in Ms. Z.S.’s evidence that have led me to conclude she is not a reliable witness. In addition, there was a significant motive to fabricate.

Demeanour

33Demeanour evidence can be used to assess a witness’ credibility. However, such evidence is controversial and it would be unwise to rely solely or primarily on this type of evidence.

34In the present case, Ms. Z.S.’s demeanour, in particular while under cross-examination, did not enhance her credibility.

35Ms. Z.S. was repeatedly evasive when answering questions under cross-examination. Ms. Z.S. regularly answered questions with information that did not relate to the question she was asked.

36One example will suffice.

37Initially, Ms. Z.S. testified that she believed there had been access between Mr. H.E. and his children between October 2013 and February 2013. She was then shown emails in which Mr. H.E. was asking her to permit him to see his children and complaining about the length of time since he last saw his children. Rather than admit that these emails were authored by Mr. H.E. and supported his contention that she was preventing him from seeing his children, Ms. Z.S. demanded to see what emails came before and after the email in question. When advised these emails could be obtained if necessary, she questioned the authenticity of the email. She was invited to check her own email archive before reluctantly admitting that she may well have received such an email. Finally, she admitted that in fact there had been no access visits between October 2013 and February 2014.

38On its own, Ms. Z.S.’s evasiveness would not necessarily have left the court with a reasonable doubt. However, in combination with other factors, Ms. Z.S.’s demeanour did not enhance her credibility.

Inconsistencies

39There are a number of inconsistencies between Ms. Z.S.’s evidence at trial and evidence she had given at other proceedings or to the police.

40The inconsistencies relate to one of two areas of Ms. Z.S.’s evidence. Evidence in relation to the sexual assault and evidence relating to the context of the relationship.

41At trial, Ms. Z.S.’s evidence of the sexual assault did not contain much in the way of detail. She indicated that it began after she provided Mr. H.E. with his pain medication, that he pulled her down on to the couch, that he had sexual intercourse against her wishes and when it was over she went upstairs to have a shower. Ms. Z.S. also provided some details in relation to how Mr. H.E. was positioned on the couch and what she was wearing on the day in question.

42There are a number of inconsistencies between Ms. Z.S.’s evidence at trial and her recounting of these events at other times.

43Ms. Z.S. said in her statement to police that Mr. H.E. grabbed her by the arm to pull her down to the couch before sexually assaulting her. At the preliminary inquiry, Ms. Z.S. stated that Mr. H.E. grabbed her by the hand. At trial, Ms. Z.S. said that Mr. H.E. grabbed her by the wrist.

44Ms. Z.S. testified at this trial that Mr. H.E. was half sitting, half laying on the couch. In her statement to police, Ms. Z.S. said that Mr. H.E. was laying down on the couch. In the first trial, Ms. Z.S. said that Mr. H.E. was sitting on the couch. Ms. Z.S. agreed that she understood the difference between each of these statements. Ms. Z.S. denied she was making her evidence up and indicated that Mr. H.E. was changing his position throughout the incident.

45Ms. Z.S. told police that on the day in question she was wearing jeans and a shirt. At the first trial, she testified that she was wearing sweatpants and a t-shirt. At this trial, Ms. Z.S. stated that she was wearing jeans with an elasticized waist and a t-shirt. Ms. Z.S. agreed with Defence counsel that jeans and sweatpants were two entirely different garments, but denied that her testimony at trial was a deliberate effort to amalgamate two irreconcilable statements.

46Ms. Z.S. stated at trial in chief that after the assault, she went upstairs and had a shower. In response to questions in cross-examination, Ms. Z.S. stated she had a clear recollection of going upstairs and having a shower. However, at the preliminary inquiry Ms. Z.S. indicated that “I’ll probably go off, leave and go wash off.”⁴ Later, in her testimony she said “That’s what I would do.”⁵ Ms. Z.S. agreed that her preliminary inquiry testimony suggested a degree of uncertainty about what she actually did after the assault. Ms. Z.S. explained to the court that she had a specific recollection of having a shower.

47There were other inconsistencies in Ms. Z.S.’s testimony in relation to contextual issues.

48Ms. Z.S. stated in her testimony at trial that she did not learn that non-consensual sex within a marriage was a criminal offence until she met with Det. Gagnon on April 24, 2014.

49However, a report was prepared by Cst. Brogan in March 2014 and the contents were put to the witness. Ms. Z.S. agreed that she told the constable that she had suffered “years of sexual abuse, including rape, painful rough sex and unwanted sexual touching” at the hands of the accused. Ms. Z.S. tried to mitigate the effect of this inconsistency by stating that the report contained the conclusions drawn by the officer. However, in my view, the information that Ms. Z.S. agreed she had provided the officer indicate that she was also well aware of the potential legal consequences of the allegations of non-consensual sex.

50Ms. Z.S. testified that the reason she asked for sole custody in the documents filed with the family court in December 2013 was that she did not believe that Mr. H.E. was in Canada. She stated that he had stopped paying bills so she thought he had left the country. Later in the trial, Ms. Z.S. was shown emails and texts she sent to Mr. H.E. between October and December 2013 in which she tells him to pick up his belongings and also refusing to permit him access to the children. Moreover, there were emails from Mr. H.E. asking to see the children.

51In response to questions concerning how and when she was able to refuse sexual relations with Mr. H.E., Ms. Z.S. stated she had a medical condition after the birth of their youngest child. This condition involved becoming immobilized for a period of up to 45 minutes after laying down. Later in her testimony, Ms. Z.S. said the immobilization did not occur until she was asleep.

52In addition, Ms. Z.S. initially indicated that she spoke to her doctor about this condition, but when she asked the doctor, the doctor indicated she had no record of this condition. Later in her testimony, Ms. Z.S. stated that she did not speak to her doctor about whether the doctor had notes relating to this condition. However, Ms. Z.S. testified there must be notes because she received a referral to a specialist.

53Ms. Z.S. agreed with Defence counsel that this trial was the first time since speaking to police that Ms. Z.S. mentioned this condition. Moreover, this was the first time Ms. Z.S. had given any reason why she was not able to refuse Mr. H.E.’ requests for sex. Previously, Ms. Z.S. had always indicated that she did not refuse because she did not believe she had a right to refuse.

54Ms. Z.S. testified that other than her family doctor, she never told anyone about the situation in her home and the constant sexual assaults. She indicated that she had specifically asked her family doctor about the painful intercourse and the fact it was the result of non-consensual sex. Ms. Z.S. stated that she later asked her doctor to check her file. The doctor advised her that there was no mention of painful intercourse in the file.

55Later in her testimony, Ms. Z.S. changed her position in relation to this issue. She testified that she believed that she told her doctor about experiencing certain pains. Her doctor’s response was, “well, that’s in our culture”. However, she was not sure that she ever mentioned to the doctor that sex with her husband was often non-consensual.

Motive to fabricate

56Ms. Z.S. had a significant motive to fabricate.

57As has already been detailed in this decision, Ms. Z.S. unilaterally decided in October 2013 to deny Mr. H.E. access to the children.

58Between February and August 2014, there were several court appearances in family court and several court orders for access issued as a consequence of these appearances.

59In March and April 2014, Ms. Z.S. went to police and alleged her children were physically abused by Mr. H.E. and she was sexually abused by him. The Children’s Aid Society became involved in March 2014 and ultimately closed their file in June 2014. The Society never made any findings that there had been any abuse.

60In August 2014, Mr. H.E. was arrested on these charges. Also in that month, a court order was issued permitting Mr. H.E. supervised access to his son.

61It is not a coincidence that the decision to go to the police and make a statement concerning both child abuse and sexual abuse occurred at the same moment the parties were embroiled in a bitter custody and access dispute.

62While the timing of the allegations does not make the allegations necessarily untruthful, given the timing, the court must be cautious about accepting such allegations without careful examination.

Conclusion

63For all the reasons outlined above, I am left with a reasonable doubt whether the sexual assault occurred as alleged by Ms. Z.S.. Consequently, the charge against Mr. H.E. is dismissed.

Madame Justice Julianne Parfett

Footnotes

1. 1R. v. W.D. (1991) 1991 CanLII 93 (SCC), 1 S.C.R. 742
2. 2R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 at para. 53.
3. 3Interview with police dated August 6, 2014 at pp. 67-6.
4. 4PH transcript at p. 27.
5. 5Ibid, at p. 23.