COURT FILE NO.: CR-20-00000549-0000
DATE: 2021 09 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Sara Burton for the Crown
- and -
O.V.
Richard Posner and Fiona McNestry for the defendant
HEARD: By videoconference, June 8, 10-11, 14, 2021
PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE WITNESS D.V. IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THIS JUDGMENT COMPLIES WITH THIS BAN AND CAN BE PUBLISHED
REASONS FOR JUDGMENT
D.E. HARRIS J.
[1] The defendant O.V. is charged with sexual assault and two associated assaults on his wife, D.V., committed the night of December 30 or 31, 2017.
[2] The two were married in India in 2014 and since 2016 lived together in Canada with the defendant’s mother, J.V. In January of 2017, the couple’s son R.S.V. was born.
[3] It was the evidence of Ms. D.V. that her husband came back from a 2017 New Year’s Eve\Xmas party very drunk sometime after midnight. She was in bed with her son, sleeping. He took off her blanket and tried to have sex with her. She said no and told him to rest. She put the blanket back on but he took it off again, took off her night clothes and started having sex with her. He was angry and calling her names. He asked why she was saying no to him, and said he would teach her how to say no. She tried to push him away twice, the second time with her leg pushing on his leg. This second time he pushed back and got angrier, calling her names once again. He then put his penis in her mouth and said, “How did you say no to me?”
[4] She found it hard to breathe and tried to move back to take his penis out of her mouth. As she had difficulty doing this, she turned her face to the side, towards the side of the bed on which her son was sleeping. Her son, one year old at the time, woke up and started crying. She was able to get the accused’s penis out of her mouth. It could have been inserted for as long as five minutes. This is the evidence with respect to the sexual assault allegation particularized in count 1.
[5] The defendant ordered her to give him the baby. He stood up while holding the baby and, while continuing to call her names, picked up one of her slippers from the floor near the side of the bed, and hit her two or three times with it. He then threw them at her. Mr. O.V. is charged in count 2 with assault with a weapon for these acts.
[6] Ms. D.V. testified that she left the room and went into her mother-in-law’s bedroom and sat on the bed. Mr. O.V. came into the bedroom, still calling her names, and slapped her twice in the face. J.V., her mother-in-law, supposedly witnessed this. The accused is charged with another assault for this, count 3.
[7] Ms. D.V. did not report the offences for almost a year. On October 21, 2018, it was her evidence that she had a major argument with her husband. She was really scared. She called her cousin Ms. L. She said she could not live with her husband anymore. The two agreed that the cousin would go to the police station the next day to lodge a complaint. On October 22, 2018, the cousin presumably found out at the police station that Ms. D.V. would have to make a complaint herself. She conveyed this information to Ms. D.V. who then called 911. Several officers attended her home, including Officer Gill who speaks Punjabi, the first language of both the complainant and the accused.
[8] Ms. D.V. told P.C. Gill that she wanted to leave the home and the marriage. She said, according to the officer, that there had been a verbal argument with her husband and mother-in-law. The argument was over chores. The officer clarified in his evidence that there were no criminal allegations made by the complainant. Ms. D.V. said that she did not complain about the offences before the court to P.C. Gill because she was too “stressed” due to the fight the day before. Ms. D.V. packed up her belongings and her cousin Arvinder drove her and her son away from the residence. She stayed with her cousin for several days and did not communicate with her husband for a considerable period of time.
[9] Two days later, on October 24, 2018, the complainant attended with Ms. L. at the front desk of the police station alleging that her husband had told another cousin of hers, B. K., that he would kill Ms. D.V. and anyone who had helped her. Ms. D.V. was interviewed on video and the allegations against her husband from New Year’s Eve of 2017 emerged. She did not tell the police on that occasion about her husband forcing his penis in her mouth. The complainant testified that she did not remember this incident at the time. In cross-examination, she said that she did not mention it because she was in shock. However, the interviewing officer wrote that the complainant appeared “unbothered” in the interview.
[10] In cross-examination it was clarified that the big fight on October 21 took place for the most part with the accused’s mother-in-law, J.V. The complainant testified to having a very poor relationship with J.V. and said that she “tortured” her. Ms. D.V. testified that her mother-in-law abused her mentally and financially, took her money and her gold jewellery, said she was lazy, did not have a brain and criticized her care of the couple’s son. At the time of the October 21 fight, Ms. D.V. admitted in her evidence that she was “quite angry” with her mother-in-law. I take this to be a significant understatement.
[11] The next day, October 25, 2018, Ms. D.V. filed a family law application for sole custody of the couple’s son, R.V. In the section of the form in which it is asked pursuant to Section 24(4) of the Children’s Law Reform Act whether there has been any violence, the complainant mentioned the allegations from New Year’s Eve but did not specify a date. Also included was an allegation of choking which the complainant testified at the trial had not actually occurred.
[12] In an affidavit dated November 23, 2018 in the family law proceedings, the complainant attempted to rebut the defendant’s affidavit that the home was “loving and stable” for their son. The complainant brought up the December 30, 2017 incident but only related the physical allegations, not the sexual allegations. Confronted by this in cross-examination, Ms. D.V. said that she had not read the affidavit before swearing it.
[13] A case conference report raised in cross-examination does not mention sexual intercourse but does mention forced fellatio. In my view, this report is inadmissible. It was not a document created by the complainant but rather solely by her lawyer. Unlike an affidavit, she did not sign it or confirm its accuracy in any way. A legal document of this nature can not be laid to rest at the feet of the client, the complainant in this instance: R. v. Archer, 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60, 34 C.R. (6th) 271 (Ont. C.A.), at para. 105-106.
[14] The accused testified and, although admitting the general context from the argument with his wife including his own drinking, intoxicated state, and the shocking belief that he had a god given right to sex with his wife on demand, denied the allegations of sexual assault and assault. His mother also testified and denied that Mr. O.V. slapped Ms. D.V. in the face as she had alleged.
THE IMPACT OF W.(D.)
[15] In most she said/he said credibility contests, it makes sense to begin with analysis of the complainant’s evidence and turn to the defendant’s evidence only afterwards, if necessary. There is binding authority that neither the content nor the order of the W. (D.) steps are mandatory so long as the error of deciding a credibility case by mere preference is recognized and avoided: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 (S.C.C.), at para. 21 per Karakatsanis J., R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5 (S.C.C.), at para. 12 per Abella J.; R. v. Carrière, 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157 (Ont. C.A.), at paras. 48-51 per Doherty J.A.; R. v. S. (M.), 2008 ONCA 616, [2008] O.J. No. 3465 (Ont. C.A.), at para. 53 per Cronk J.A.
[16] Justice Doherty said in Carrière:
48 ... As a matter of common sense, a jury could not assess an appellant’s [accused’s] evidence, except in the context of the rest of the evidence. ... The trial judge must not... tell the jury how to deliberate. The order in which a jury chooses to approach the evidence, like the other mechanics of deliberation, is for the jury...
49 R. v. W.(D.), supra, has nothing to do with how the jury should proceed with its deliberations, but is directed to how the jury should apply the burden of proof when considering the evidence of the accused...
50 The instruction suggested by Cory J. does not advise the jury to begin with the evidence of the accused. Rather, it tells them that when assessing the credibility of the accused, they should approach it in the three stages outlined in the model charge. Properly understood, R. v. W. (D.), supra, does not impose any limits on how the jury proceeds with its deliberative process.
[17] There is every practical reason not to slavishly follow the formal order of the three W.(D.) steps and examine the accused’s evidence first and only then the complainant’s. The complainant’s accusations are the basis of the charging document. It is her evidence which sets the scene. Most importantly, the Crown has the burden of proof in a criminal case.
[18] The accused’s testimony is responding to the complainant’s evidence. His evidence cannot be understood except in relation to the complainant’s allegations and testimony. To analyze the accused’s evidence at the outset can, at the very least, be artificial and out of synch with basic logic. As a result, I propose to analyze the complainant’s evidence and the Crown case initially.
THE COMPLAINANT’S CREDIBILITY
[19] It is a significant error to diminish the weight of a complainant’s evidence simply because of a delay in going to the authorities. The oft-quoted passage from R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.), at para. 65 states:
65 … there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
(Emphasis Added)
[20] That does not mean that in every case a delay will be of no significance. But in this case, there were completely understandable reasons for delay. The complainant may have been reluctant to have her young family torn apart by an allegation of serious criminal conduct against her husband.
[21] However, leaving aside the delay in disclosure, the timing and process of disclosure is a subject which is always worthy of judicial scrutiny. If the defence alleges a motive to fabricate or an ulterior motive for accusing the defendant of the crime, an examination of what was occurring at the time of the disclosure to the authorities must be undertaken. There may be a competing reason apart from the truth of the allegation to report a serious criminal offence. An accusation of criminal conduct brings with it profoundly negative ramifications for the person implicated and can be a powerful weapon in the hands of a person attempting to denigrate an accused.
[22] The late Justice Rosenberg, before he was appointed to the Court of Appeal, wrote a helpful article entitled “1995 Canadian Appellant Court Seminar /Colloque de 1995 des Cours d'appel canadiennes: Issues Arising in Criminal Prosecutions for Distant Events, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-005. There he said,
27 One of the important differences between a prosecution of distant events and the prosecution of more recent events is that the trial of a distant event is particularly focused on the disclosure process. In these cases there is usually no objective evidence, and there are no longer any physical traces. Aside from the stories that the parties tell in court, the only extrinsic "evidence" is the stories told in the years leading up to the prosecution. To determine the truth of the allegation the court must understand the process of disclosure.
[23] Although this event was not distant in the way referred to by Justice Rosenberg, the same guidance applies. The question remains, why complain at this time rather than at some other time? Does the timing and the process of disclosure to the authorities tell us anything about the credibility and reliability of the allegations of criminality?
[24] The defence position was, on the most basic level, that the complainant’s love for her son and the desire to ensure that she had sole custody of him explained why she made the allegations against her husband. What stronger force could there be than a mother’s love for her son? What better way to guarantee that she would win custody then to claim her spouse was abusive and violent?
[25] In a criminal trial, the defence need not show a motive to fabricate in order to instill a reasonable doubt. The case law demonstrates that a lack of a motive to fabricate must be approached with caution to avoid falling into error and compromising the burden and standard of proof: R. v. M.S., 2019 ONCA 869, [2019] O.J. No. 5633, at paras. 15-16 and R. v. Bartholomew, 2019 ONCA 377, [2019] O.J. No. 2371, at paras 19-23. But, on the other hand, a viable motive to fabricate is always important and requires the careful attention of the finder of fact. It can be powerful evidence frustrating the Crown’s proof to the criminal standard.
[26] In this case, Ms. D.V.’s report to the police was made during a time of turmoil and upheaval between the spouses and between the complainant and her mother-in-law. There was a great deal of pressure on the complainant, it is clear. The atmosphere in the home was hostile.
[27] These are my conclusions. The police complaint about the allegations now before the court seemed almost to be an afterthought. The police attended upon the complainant on October 22, 2018, the day she separated from the accused and moved out of their home taking her infant son with her. In this circumstance of marital breakdown, Ms. D.V. complained about her husband to the police but did not mention the serious assault allegations of 11 months before. Her motive not to report in order to hold her family together had now dissipated as she had made what appeared to be a firm and final decision to separate. What she did say to the police portrayed her husband in a very poor light. Although only one factor and far from conclusive, in these circumstances, one would expect that Ms. D.V. would complain about the New Year’s Eve assaults at the same time if they had indeed occurred.
[28] After having left the marital home on October 22, 2018, Ms. D.V. went to the police to complain that the accused had threatened her. She did not go to report the sexual assaults but, rather, to report the threatening. The New Year’s Eve party allegations emerged during the police interview. Again, it is surprising that she did not go to the police specifically intending to complain about the sexual assaults, especially given their seriousness. In addition, she did not at any time mention to the police the forced oral sex allegedly inflicted upon her by the accused. This was a particularly disturbing and graphic allegation. The explanation that she did not remember it at the time and that she was in shock is possible but, in my view, unlikely. She did, after all, remember the forcible intercourse part of the allegations from that night.
[29] A day after complaining to the police, the complainant, with her cousin’s assistance, filed a family court application contending that she should be awarded sole custody of their son. In that application, she alleged that her husband had choked her, an act she denied took place in her trial testimony.
[30] In her November 23, 2018 affidavit in the family proceeding, the complainant mentioned the night in question but there was no reference to the sexual assault allegations whatsoever. The complainant said she had never read the affidavit. Again, I find that unlikely. It would have been irresponsible for a lawyer to have prepared the affidavit without close consultation and direct participation from the complainant. While I give the failure to mention the sexual assaults somewhat limited weight because the affidavit was prepared by her lawyer, not by the complainant herself, it does continue a trend of inconsistency in the complainant’s accounts of the night in question.
[31] In summary, the disclosure to the police was made in the midst of marital separation and the complainant’s essentially contemporaneous efforts to obtain sole custody of her son. The complainant harboured anger towards the accused and his mother. These circumstances are not fertile soil to produce a trustworthy allegation. The timing is suspicious. There is a real risk here that the allegations were for the purpose of bolstering her position with respect to the custody of her son. I agree with the defence that this constitutes a very powerful motive to make a false allegation of criminal misconduct.
[32] If anything, the presence of a motive to fabricate is reinforced by the inconsistency in the previous accounts given by the complainant to the police, to the family court in the original application and then later in November in the family proceedings. These inconsistencies raise the real possibility that the complainant could not keep track of the falsehoods she had previous told.
[33] The evidence of the complainant is uncorroborated. While corroboration is not legally required, its absence has important ramifications for the Crown’s case: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 (S.C.C.), at paras. 1-2. The burden on the prosecution to prove guilt is an onerous one. I am not convinced beyond a reasonable doubt, in the context of all of the evidence, that the complainant is telling the truth when she alleges the criminal offences against the accused. The competing alternative scenario that the allegations were for the purpose of strengthening her application for custody, in the circumstances outlined on this record, is compelling.
[34] In light of this conclusion, it is unnecessary to consider the accused’s evidence or that of his mother. Patently, their evidence cannot add to an insufficient Crown case.
[35] In conclusion, the Crown’s case and the complainant’s evidence does not rise to proof beyond a reasonable doubt. For these reasons, the accused will be found not guilty on the three counts of the indictment.
D.E. HARRIS J.
Released: September 16, 2021
COURT FILE NO.: CR-20-00000549-0000
DATE: 2021 09 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
O.V.
REASONS FOR JUDGMENT
D.E. HARRIS J.
Released: September 16, 2021