ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

P. Rutherford, for the for the Crown/ Respondent

• and -

G.H.

A. Bassi, for the Accused/Applicant

HEARD: April 19, 20, 21 and 22, 2021

REASONS FOR JUDGMENT

ANDRÉ J.

[1] The Peel Regional Police Force charged Mr. G.H. in June 2018 with a number of assault charges after receiving statements from his wife, J.H. During the trial, a very emotional J.H. described a number of incidents, which allegedly occurred between March 2015 and June 2018, thereby prompting her to contact the police. G.H. has denied that he physically or sexually assaulted his wife at any time during their marriage.

SUMMARY OF THE EVIDENCE

J.H.’s Testimony

[2] The 34-year-old testified that she got married to G.H. in 2013 in India and moved to Canada the following year. The couple has two daughters, the first born in December 2015 and the second in February 2017. From 2015, the relationship between Mr. and J.H. deteriorated and on a number of occasions, commencing in March 2015, G.H. either physically or sexually assaulted her.

March 10 – March 21, 2015

[3] One morning during this period, J.H. woke up at 4:30 a.m. to prepare tea for G.H. before he went to work. She went downstairs and prepared his lunchbox. He came downstairs between 5:00 a.m. and 5:15 a.m. She went to put socks on his feet and then suddenly, he slapped her on the top right portion of her head. She went backwards two to three steps. She asked him why he had struck her. He replied that her tongue was “doing too much talking”. He then pulled her hair and punched her in the nose causing her to bleed.

[4] G.H. took her to the Brampton Civic Hospital around 7:00 o’clock that morning. An emergency report tendered by the Crown as part of its case showed that J.H. suffered “a minimally displaced nasal bone fracture”. J.H. testified in-chief that she did not tell the attending doctor how she had sustained the injury. She testified however, that G.H. told the doctor that she had slipped on the floor and that she just kept saying “yes” to whatever he said because, “I didn’t want to break my house”. Furthermore, she testified that she knew that if she told the truth the police would get involved. She therefore did not disclose what had actually happened.

June 26, 2018 – Assault Charge

[5] During this evening, G.H. came home after a bout of drinking. She gave him his meal. She was not feeling well and experienced pain in her stomach, thighs and back. He asked her to have sex but she refused. This conversation took place in the living room while G.H. sat on the sofa with their younger daughter.

[6] At one point, he took the television remote control from his daughter and threw it against the fireplace. He then came to her location on another sofa and slapped her on the right cheek, using his left hand. She saw darkness and then ran out to a neighbour’s house. She then called her father and later called the police.

[7] The Crown tendered J.H.’s 911 call to the police. She was crying during the call. She told the dispatcher that G.H. had been drinking. The police eventually came and arrested G.H..

Breach of Recognizance

[8] G.H. was released on a recognizance which included a condition prohibiting him from having any contact with J.H.. Despite this condition, G.H. met her at his uncle’s house. He also met her at the Sikh temple at Dixie Road and Derry Road in Brampton in August 2018 where she had gone with her mother-in-law and brother-in-law. G.H. was at the temple. He came to her location where she sat on the ladies’ side of the temple and sat close to her. He swore on the Holy Scripture that he would never hurt her again and that he would financially help her to continue her studies in nursing which she had commenced in India. He also asked her to withdraw the charges. They went to the parking lot close to his car. He asked her for another chance. She asked him to add the names of their children to the ownership of their matrimonial home. J.H. told him that if he was not going to do so then he should return the gold her family had given to him when they had gotten married. She subsequently returned home with her daughter, mother-in-law and brother-in-law.

May 1, 2018 – June 30, 2018

[9] J.H. testified that her brother-in-law and mother-in-law charged her with sexual assault on September 3, 2018. This happened after G.H.’s uncle took her to a lawyer to get the charges against G.H. withdrawn; something which she refused to do.

[10] Following this, she went to the police on October 3, 2018 and told them about incidents when she had been sexually assaulted by G.H. and about G.H.’s breach of his recognizance. She told them that on one evening she was in her bedroom and about to go to sleep sometime between ten and eleven p.m.

[11] G.H. came into the room. He was intoxicated. He pushed the door forcefully and quickly undressed. He took off her clothes. Her children were both in the bedroom. Despite this, he forcefully had sex with her. The children were crying when he did so.

[12] J.H. testified that G.H. sexually assaulted her ten to fifteen times over a six month period. She admitted that she testified in a preliminary hearing on January 20, 2021 that G.H. had sexually assaulted her ten to eleven times in May and June 2018. She admitted that she did not initially tell the police about these incidents. She also testified that G.H. had non-consensual anal sex with her two to three times out of the ten to eleven times he sexually assaulted her. He also forced her to perform oral sex on him during the assaults. This happened four to five times.

Summary of G.H.’s Evidence

[13] G.H. denied ever assaulting J.H.. Of the March 2015 incident, he testified that she fell on the floor. He took her to the hospital where she told the attending doctor that she “slipped and fell”. He testified that he went to India in January 2018 when his brother was getting married. J.H.’s father borrowed money from him. Her father and brother promised to pay back the money in Canada. They never did. They still owed him the money in June 2018. J.H. would say that they would repay him but they never did. G.H. denied consuming any alcohol when he returned home on June 28, 2018. He asked her “nicely” how she was doing. She replied, “It’s O.K.” He asked her for food and she gave him some. He reproached her for giving him the same food for the last two days. He told her he would not eat the food she had given to him. He asked her when her parents were going to repay him. They argued about the outstanding debts. J.H. became louder and “hyper”. She then stormed out of the house. He admitted to throwing down the remote control but maintained that “it was already loose”. He denied asking her for sex that night.

[14] G.H. also denied having non-consensual sex with J.H. in May and June 2018 or forcing her to have sex on June 18 or 19, 2018, in front of their children.

[15] Finally, G.H. denied meeting J.H. at his uncle’s house or at the Sikh temple where male and female worshippers sat in separate areas of the temple. He maintained that he normally attended another temple five minutes from his residence. He denied drinking alcohol regularly as J.H. testified.

ANALYSIS

[16] The sole issue in this trial is whether or not the Crown has proven some or all of the charges against G.H. beyond a reasonable doubt. These charges are as follows:

1. March 10 - 21, 2015 – Assault causing bodily harm;

2. June 26, 2018 – Assault;

3. August 12, 2018 – August 19, 2018 – Breach of recognizance; and

4. May 1, 2018 – June 30, 2018 – Sexual assault.

THE LAW

[17] This case turns, to a significant degree, on an assessment of the credibility of Mr. and J.H.. In conducting this analysis, I am guided by the test set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742. It states:

i) First, if I believe the evidence of the accused, I should acquit him.

ii) Second, if I do not believe G.H., but I am left in a state of reasonable doubt by his evidence, I should acquit him.

iii) Third, even if I am not left in a state of reasonable doubt by G.H.’s evidence, I must decide, whether, based on the evidence that I accept, I am convinced beyond a reasonable doubt of G.H.’s guilt.

[18] In assessing the evidence of G.H., I am required to consider all the other evidence called in the trial: see R. v. L.(D.O.), 1993 46 (SCC), [1993] 4 S.C.R. 419, at para. 81.

[19] This requirement does not prohibit me, in assessing G.H.’s evidence, from comparing his evidence to that of J.H.: R. v. Hall, 2006 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at paras. 3-6; R. v. L.M., 2019 ONCA 945, at para. 35.

[20] I also instruct myself that I can reject G.H.’s evidence based on a reasoned acceptance of the evidence called by the Crown: see R. v. A.(J.), 2010 ONCA 491, at para. 14; R. v. R.A., 2017 ONCA 714, at paras. 34-35, 39-40.

APPLICATION OF THE LAW TO THE EVIDENCE

Count One – Assault Causing Bodily Harm

[21] J.H. presented as a very credible witness who, in a very emotional manner, described the incidents in which G.H. assaulted her either physically or sexually. Under cross-examination, she conceded that she never told the police in June 2018 that G.H. had first slapped her during this incident before punching her in the head. She first mentioned this incident while testifying in the preliminary hearing in January 2021.

[22] Additionally, defence counsel put to J.H. that she testified at the preliminary hearing that there was a back and forth between G.H. and herself before he punched her in the nose. She insisted however, that there was no argument before G.H. broke her nose.

[23] Defence counsel confronted J.H. with a letter dated March 16, 2015 in which Dr. Delchetz wrote that she had slipped on the floor three days ago and fell. J.H. denied that she said that to the doctor and reiterated that she had merely agreed to whatever her husband told the doctor. She added that she had been unable to speak because of pain in her nose. G.H.’s counsel put to her that she never mentioned that to the police neither did she mention that at the preliminary hearing. J.H. also agreed that she testified at the preliminary hearing that she told the doctor that she had slipped and fell. She retorted that she should not have lied to the doctor but did so because she did not want to lose her family.

[24] J.H. gave inconsistent statements about how her nose was broken during this incident. It is likely that she lied to the doctor because she wanted to preserve her marriage. She agreed that she told her doctor that she fell but testified in this trial that she was not able to speak because of pain in her nose. These inconsistencies, in my view, raise some doubt concerning how J.H. broke her nose in March 2015. In all likelihood, G.H. punched her in the face but I cannot conclude, beyond a reasonable doubt, that he did. Accordingly, he is acquitted of this charge.

Count Two – June 26, 2018 Assault

[25] J.H. testified under cross-examination that G.H. was not “falling down drunk” on this day and had consumed one or one and a half drinks. G.H. became angry with her and slapped her in the face, causing her to run to a neighbour’s house and call 911.

[26] Mr. Bassi put to J.H. that she called her father before calling the police because G.H. was arguing with her about the money her family owed to him and that it was her father who suggested that she should call the police. She denied that her father told her to concoct a story about being slapped by G.H..

[27] Defence counsel also submits that the evidence of the officers who dealt with G.H. on this date raises a reasonable doubt about whether G.H. slapped J.H.. Cst. Matthew Armstrong testified that he made no observations of G.H. being impaired. His colleague, Constable Tyler Frazer, similarly testified that he made no notation in his notebook that G.H. had been impaired.

[28] However, I find beyond a reasonable doubt that G.H. slapped J.H. for the following reasons. First, it is not altogether surprising that neither police officer noted that he had been impaired given J.H.’s testimony that he had consumed one to one and a half drinks that day. Second, Cst. Armstrong testified that he saw “redness down J.H.’s right cheek under her eye” and that he had spoken to her for five minutes. He was therefore in a position to make observations about her face. Third, Cst. Frazer testified that he saw redness on J.H.’s right cheek. He made his observations when he was within a “couple of feet” from her and when he had a clear view of her. On the other hand, Cst. Lemieux testified that he observed no visible injury on J.H. at the police station.

[29] However, I place greater weight on the testimony of his two colleagues given that they clearly made it their business to look for signs of injury on J.H.’s face. Fourth, J.H. is heard to be crying while she spoke to the 911 dispatcher. It is inconceivable that she would have been in such an emotional state because of an argument over money. Fifth, G.H. confirmed that he threw the remote thereby confirming that he was quite angry during this incident.

[30] For all the above reasons, I find that the Crown has proven this charge beyond a reasonable doubt. Accordingly, I find G.H. guilty of assault.

Count Three – August 12, 2018 – August 19, 2018 – Breach of Recognizance

[31] G.H. denied that he met J.H. at his uncle’s home and at the temple on Dixie Road. He testified that he did not go to the temple in August, 2018. Furthermore, that J.H. concocted a story about meeting G.H. at his uncle’s house and only mentioned this meeting during this trial.

[32] However, J.H. was not impeached in her testimony that she met G.H. at the temple and in the parking lot. She detailed what they had talked about including his promise to finance her nursing studies and to treat her well if she withdrew the charges laid against him in June.

[33] I do not accept G.H.’s evidence neither do I find that it raises a reasonable doubt in the Crown’s case. It is passing strange that his brother and mother charged J.H. with sexual assault after this encounter and after, according to J.H., her father-in-law had taken her to a lawyer to withdraw the charges against G.H.. In my view, this confirms J.H.’s testimony of having met G.H. at his uncle’s house and at the temple, and that G.H. had unsuccessfully tried to persuade her to withdraw the charges. I therefore find G.H. guilty of this charge.

Count Four – Sexual Assault May 1, 2018 – June 30, 2018

[34] J.H. testified that G.H. sexually assaulted her ten to fifteen times over a six month period, that he had non-consensual anal sex with her two to three times and had forced her to perform oral sex on him four or five times. She also testified that she was bleeding in her rectum following the forced anal sex.

[35] As I have already indicated, J.H. presented as a very credible witness. She appeared to be emotionally overwhelmed at various times during her testimony, causing the court to recess on a few occasions until she was ready to resume her testimony.

[36] However, I have a few concerns regarding the reliability of J.H.’s testimony concerning these allegations. First, she did not tell the police about them in June 2018. That, omission, on its own, does not impugn her credibility given that it reflects a stereotype that victims of physical or sexual abuse allegedly perpetrated by intimate partners will report the abuse to police authorities at the earliest opportunity.

[37] Nothing could be further from the truth. Indeed, J.H. appears to have a number of valid reasons why she did not tell the police about any non-consensual sexual activity. The fear of marital breakdown, economic dependency, and concern over her children could all have played a role in J.H.’s decision not to have reported the sexual abuse at the earliest opportunity.

[38] That said, the failure to report the sexual incidents could have been because they never happened. Indeed, during her June 26, 2018 police interview, J.H., according to a Domestic Violence Supplementary Report completed by the interviewing officer, told the police that G.H. had never made a threat of death or serious bodily harm to her. That contradicted her testimony under cross-examination that G.H. regularly threatened to kill her after her children were born and during the incident when he broke her nose.

[39] Second, I am concerned about the reliability of J.H.’s testimony about the alleged sexual assaults because of the events preceding her second police interview in October 2018. Her brother-in-law and mother-in-law charged her on September 3, 2018 with sexual assault in what may have been a cynical attempt to help G.H.. J.H. testified that “they charged me and then threw me out of the house”, while her children remained in the house. She gave the police a second statement on October 3, 2018. She admitted under cross-examination that her primary concern in giving this statement was that she had “lost” her children. She kept telling the interviewing officer that she wanted her children back and that she only mentioned that G.H. has sexually assaulted her after she had made the seventy-one minute video statement. This raises a concern that J.H. made the allegations of being sexually assaulted either as retaliation for being charged or to enable her to get back her children.

[40] Additionally, when questioned during the preliminary hearing, J.H. could not recall any details concerning the alleged sexual assaults. Defence counsel also put to her that she never testified at the preliminary hearing that she was experiencing pain following the non-consensual sexual assaults or experienced bleeding in her rectum.

[41] Based on the above, I have a reasonable doubt that G.H. sexually assaulted his wife. This doubt must be resolved in his favour.

[42] Accordingly, he is found not guilty of this charge.

CONCLUSION

[43] G.H. is convicted of the charges of assault and breach of recognizance. He is acquitted of the charges of assault causing bodily harm and sexual assault.

[44] The matter is adjourned to July 2, 2021, at 9:00 a.m. for sentencing. G.H. is remanded, out of custody accordingly. A Punjabi interpreter is ordered for this date.

André J.

Released: June 2, 2021

COURT FILE NO.: CRIM J(P) 658/21

DATE: 20210602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

G.H.

REASONS FOR JUDGMENT

ANDRÉ J.

Released: June 2, 2021