COURT FILE NO.: CR-20-87-00
DATE: 20210921
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Carla Agatiello for the Crown
- and –
B.G.
David Locke and Glen Henderson for the Defendant
HEARD: April 15, 16, 19, 20, 21 and 23 2021; June 9, 2021 by Zoom video conference
PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE COMPLAINANT IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THIS JUDGMENT CONFORMS WITH THIS BAN.
REASONS FOR JUDGMENT
D.E. HARRIS J.
[1] The defendant B.G. is charged with two counts of assault and four counts of sexual assault against his former wife, S.K. The allegations are:
Count #1: After being out for dinner in 2016, the two had an argument involving the accused wanting her to purchase some cigarettes for him. In their driveway, he pulled her out of the car and pushed her. Her left eye was bruised. The next day, her manager at Tim Horton’s noticed the bruise. The complainant said that it happened when she opened the door of a car.
Count #2: In August, 2016, the accused came home late from a nightclub drunk and insisted on having sex with the complainant. She did not consent and made it clear that she did not consent.
Count #3: In December, 2016, the couple had an argument, based, according to the complainant, on the accused suggesting she marry a friend’s brother for money. They were both very angry. In bed, the complainant alleged that the accused put his arm around her neck and pressed really hard. She had problems breathing and hit her head on the back of the bed. Her sister, hearing the disturbance, came in the room and witnessed the assault. She testified for the Crown and corroborated the complainant’s account.
Count #4: In September 2017, the accused came home from work and the two engaged in anal intercourse but it was painful for the complainant. After several efforts, he forced her to participate in vaginal intercourse against her will. He hit her very hard on her ear and the next day she went to a walk-in clinic. As documented in a medical note, she told the doctor that she was hit by a ball but testified at trial that this was untrue.
Count #5: After separation, in late June or early July, 2018, the two drove to a parking lot and were talking in his car. According to the complainant, the accused forced her into non-consensual sexual intercourse in the back seat of the car.
Count #6: The complainant was in a car accident on October 17, 2018. The accused attended to assist her. After driving back to his residence, the complainant testified that the accused forced her to have intercourse against her will.
[2] The background is that the accused and the complainant were married in India. It was an arranged marriage. The complainant had originally come to Canada in early 2013. She went back for the wedding which took place in April 2014. After the wedding, she returned to Canada. The accused arrived in Canada in 2015 under her sponsorship. Ms. K. testified that the marriage had its good times and bad times. Overall, she was fine with it. She testified that there were two assaults and two sexual assaults before a separation instigated by the accused on April 10, 2018. Although she said she became suspicious that the accused had only married her as his “human passport” into Canada, she attempted to do everything she could to repair and save the marriage. There were two subsequent sexual assaults after separation according to the complainant, one in his car in June or July of 2018 (count #5), and one in the apartment where he was living on October 17, 2018 (count #6).
[3] The accused testified and flatly denied all of the allegations. It was his evidence that the acts charged in counts 1-4 did not happen. With reference to the two sexual assaults after separation, he testified that the complainant consented to the sexual activity in both instances.
THE CREDIBILITY OF THE COMPLAINANT
DEMEANOUR
[4] I intend to analyze the complainant’s evidence first, before the defence case. It is the Crown’s burden of proof and their case depends on the complainant’s credibility and reliability.
[5] The complainant’s evidence was corroborated by her sister with respect to the assault count alleged to have taken place while lying with the accused in their bed (Count #3). However, otherwise all four sexual assault counts and the other assault count, as accepted by Ms. Agatiello in submissions, were essentially uncorroborated.
[6] It has been observed that credibility can be better assessed on Zoom because the witness faces the camera straight on, as opposed to the profile view that a judge has of witnesses in a courtroom: R. v. S.L., 2020 ONSC 4036 (Ont. S.C.) at para. 110. While that is true, there are also major observational deficits in assessing credibility over video. This trial highlighted several aspects.
[7] At the outset of her testimony, the complainant was testifying from home, I assume on her own computer. After a few minutes, there was a problem hearing her voice. The Wi‑Fi was inadequate. She moved to the Crown’s office, and presumably was set up on a different computer. There were significant differences between her presentation in the two locations. The lighting at home was softer and warmer. The angle of view was quite tightly cropped. In the Crown’s office, the lighting was either fluorescent or L.E.D. and totally flat, stark and harsh. The camera was looking down slightly on the witness. The angle was wider than it had been at home.
[8] The impression left between the home versus the office environment was, due to these factors, quite different. We are all familiar with the methods the media uses to merchandise images whether it be in movies, TV, magazines or on the internet. A person’s appearance can be fundamentally altered by the quality and angle of the lighting, colour and saturation, camera angle, depth of field, distance to the subject, sharpness and many other variables.
[9] Although any differences in this trial were unintended, they were significant. While the office lighting was harsh, it was an environment much better suited to make observations of the complainant’s demeanour.
[10] The complainant’s evidence in-chief was composed, controlled and matter of fact. She was convincing. That changed in cross-examination. Mr. Locke led off by confronting the complainant with several emails and documents purporting to come from her email address and most of them sent to the Indian prosecutorial authorities alleging criminal marriage fraud against the accused and his family. This marriage fraud issue was important in this prosecution and will be discussed later in these reasons. But it was obvious the complainant was not expecting to be faced with these emails. Ms. Agatiello acknowledged in final submissions that the complainant was “taken aback” during this initial part of the cross-examination.
[11] I too, like Ms. Agatiello, noted that the complainant was “taken aback.” There was a visible physical reaction. It was conspicuous. The complainant exhibited a degree of discomfiture which would have been difficult not to mark. There was an awkwardness that suddenly came over her. This was not only apparent from the apprehension on her face. Her body language told the same story. The flow of her evidence was disrupted and she almost staggered when being questioned about the content of the marriage fraud emails. If this had occurred on her home computer camera, it would not have been as obvious. Because of the angle looking down, the wider angle of view and the bright flat lighting, more of her body language was revealed on the office computer than on the home computer.
[12] For these reasons, demeanour was effectively displayed during this video conference. In other circumstances, like the initial feed from the complainant’s home, it could have been obscured. The visual and audio variations in a Zoom conference can lead to quite different impressions of demeanour. Distance from the camera and strong backlighting are two common problems. Both could alter and mask the appearance of witnesses and, as a result, hinder the decision making process itself. A trial judge, with managerial control over the courtroom including the virtual courtroom, has the power to direct changes in the video appearance of witness. But, in my opinion, practically speaking, this power will only be appropriate to exercise in unusual cases.
[13] The Supreme Court of Canada has stressed the importance of testimonial demeanour in R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726 (S.C.C.):
26 Changes in a witness's demeanour can be highly instructive; in Police v. Razamjoo, [2005] D.C.R. 408, a New Zealand judge asked to decide whether witnesses could testify wearing burkas commented:
... there are types of situations ... in which the demeanour of a witness undergoes a quite dramatic change in the course of his evidence. The look which says "I hoped not to be asked that question", sometimes even a look of downright hatred at counsel by a witness who obviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expression or body language. The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearly with good eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty, all provide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, a message touching credibility.
27 On the record before us, I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial. Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence.
[14] That aptly describes the effect in this case. The complainant was surprised and visibly apprehensive. Of course, there are numerous warnings in the jurisprudence about undue reliance on demeanour: e.g. R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505 (Ont.C.A.) at paras. 44-45. Here, demeanour was an important factor--although only one factor amongst others--in assessing the complainant.
[15] It should be emphasized that the negative indications from the complainant’s demeanour did not stand alone. The observations were made in concert with her evidence; both manifested pronounced discomfort. Her demeanour and her answers were of a piece.
[16] The situation is different when it is the accused’s demeanour in issue. Conviction on the basis of demeanour alone, for example, is prohibited: see R. v. S. (W.), (1994), 1994 CanLII 7208 (ON CA), 29 C.R. (4th) 143, 18 O.R. (3d) 509 (Ont. C.A.). That is as it should be. Given the uncertainty that may complicate the scrutiny of witness demeanour, when it is the accused’s evidence at issue, it should take a place with eyewitness identification evidence, consciousness of guilt evidence and unsavoury Vetrovec witness evidence as an area in which extra care and caution is dictated: see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (S.C.C.) at para. 167. In this instance, it was the complainant’s demeanour at issue, not the accused’s, and therefore this caution to ensure against wrongful convictions is not pertinent.
THE MARRIAGE FRAUD INVESTIGATION IN INDIA
[17] The couple had a major argument on April 9, 2018. The next day the accused convinced the complainant to go to a lawyer’s office and sign a separation agreement. It was backdated a year in order to allow for immediate divorce.
[18] A criminal marriage fraud investigation in India was commenced very soon afterwards. It appears that the essence of it was the allegation that the accused married the complainant only for the purpose of entering Canada and becoming a permanent resident. There was also an allegation with respect to a dowry fraud. This subject came up in the Crown’s examination-in-chief but it was only in cross-examination that the marriage fraud investigation was fully explored. The complainant conveyed the impression throughout that while she knew generally of the marriage fraud investigation, she knew virtually nothing of the details. It was her parents who were the driving force.
[19] Throughout the complainant’s evidence, it was stressed that what she most wanted post-separation was to reunite with the accused and resume the marriage. This was emphasized over and over and was common ground between the Crown and the defence. The complainant said she loved the accused and tried to retain the relationship “at any cost.” The marriage fraud investigation had an important potential purpose in facilitating this hoped-for reconciliation. The complainant’s family also pursued monetary compensation from the accused and his family. The marriage fraud allegation and investigation sought to visit on the accused all the consequences of a criminal conviction if the two did not get back together.
[20] The marriage fraud allegation was aggressively extortive. It exerted maximum pressure on the accused. If the accused agreed to get back together with the complainant, it is likely the fraud allegation would have evaporated. The message was “Get back together with the complainant or you might suffer very serious consequences, including jail and monetary penalties.” There was nothing subtle about this.
[21] The impression that the marriage fraud allegation was brought for an ulterior motive was strengthened by the reality that the accused separated from the complainant well after the two year point at which he was already eligible for permanent residency. If he really had intended to use the complainant as his “human passport” as the complainant and the emails alleged, the separation from her would likely have been much earlier in their relationship, following closely after the expiration of the two-year period for permanent residency status. The marriage fraud allegation, as it appeared at this trial, was weak.
[22] The documents concerning the marriage fraud allegation that Mr. Locke used to confront the complainant hit her credibility with incendiary impact and attacked the very foundation of this prosecution. The complainant denied writing the emails, saying that it was her parents, sister or their lawyer who had written them. She also denied having any specific knowledge of them previously.
[23] Not only, as mentioned, was she shaken physically when confronted with the marriage fraud emails. Her answers became hesitant, lacking the confidence she had shown in-chief. In summary, the documents were:
a) A three page letter purportedly from the complainant to the Indian police dated April 19, 2018, just about a week after the separation. Included in this were accusations that the accused used to taunt, physically beat and mentally torture her and demand money from her at the instigation of his parents. He was a daily drinker who beat her while under the influence. He never performed his duties as a husband and never paid rent. There was a conspiracy between the accused and his parents to use her to get to Canada. When she was depressed, the accused took advantage of her to take her to a lawyer’s office in order to get her signature on documents. The email also asserted that her family had given sufficient dowry according to their capacity but that the dowry had been misappropriated by the accused. The letter closes by asking the police to take the accused’s parents’ passports and to lodge criminal charges against them and the accused.
b) An email dated April 20, 2018 written to Canadian immigration. The complainant denied writing this email. In it she again alleged mental and physical abuse and said that he had threatened her with divorce if she said anything wrong about him. If she did not sign the divorce papers, he said he would harm her sister. The email went on to say he had pressured her to sponsor his parents to come to Canada and when she did, he divorced her. She provided the parents’ passport numbers and asked that they not be allowed into Canada.
c) In a statement dated May 26, 2018 and emailed to the Indian police, some of the same allegations as previously made are reiterated. It is also said that she was forced to sign the divorce papers because the accused threatened that if she did not, her parents and sisters back in India would be harmed. Further, she was threatened that if she did not stop the marriage fraud investigation, the accused would use his “links” in India and “not spare my sisters and parents in India.”
d) An August 6, 2018 email to the Indian police noting that she had not yet received a response from the other side to her original complaint and urging the police to take action.
e) There was also an undated message to another Indian police force asking for the criminal case to be registered against the accused and his parents and requesting the parents’ passports be seized. It is noted that Delhi airport has also been sent the email.
[24] The defence position is that Ms. K. was not telling the truth when she testified that she did not write the documents that went to the Indian police and when she denied having seen them before. I agree. In my view, there are a number of implausibilities in the complainant’s evidence that she knew next to nothing about the marriage fraud and the emails. These are the main problems:
a) The complainant denied knowing much about the marriage fraud investigation. But she was the alleged victim of it. And it was at the hands of the accused, her husband. In the natural course of things, it was reasonable to expect that she would be fully apprised of it as it directly and intimately involved her life and her marriage.
b) The complainant had a very powerful personal motive in the pursuit of the marriage fraud allegation. She wished desperately to reunite with her husband. She testified that in her culture it was like death for a wife to be divorced from her husband. The marriage fraud allegation was the principal means of forcing reconciliation as an end result. It makes little sense that she would be unaware of the details.
c) The marriage fraud emails were written from the complainant’s email account. She explained this in cross-examination by saying that she gave her family and the lawyer that they employed her account information including her password. Taken together with her intense personal interest in the investigation, it is quite implausible that she would not even read the emails written on her behalf on her own email account.
d) In her evidence, the complainant used the words “my level best” at least four times. This, in my experience, is not a common turn of phrase. In the first email to the Indian police dated April 19, 2018, it was written on page one, “That my parents have performed my marriage with accused no. 1 beyond their means as per their level best and with great pump and show [sic] and spent about Rs 6-7 Lacks in marriage as per the demand of the accused …” (Emphasis Added) The use of the same rarely used phrase--although not at the level of an unmistakable signature--is very persuasive evidence, in the context of all of the other evidence, that the complainant, despite her denials, wrote this email.
[25] I disagree with the Crown’s argument that the complainant agreed to knowing about the emails and the marriage fraud investigation. Her evidence was quite clear in this regard. She made persistent efforts in her evidence to deny knowledge of the details and to distance herself from the emails. It is my conclusion that she likely orchestrated the marriage fraud investigation and wrote the emails herself, perhaps with some help. In any case, at the very least, there can be no doubt that she was aware of the emails and did nothing to correct the admittedly false information they conveyed.
[26] The problem with involvement in or knowledge of the emails is that the complainant in this trial testified that other than the offences committed by the accused against her, her married life with the accused was relatively good. Yet the emails to the authorities describe a miserable existence. Nothing in her trial evidence supported these allegations. In addition, the vindictiveness evident in the emails, merited or not, demonstrates a deep antagonism towards the accused and a committed attempt to rain dire consequences upon him. As the marriage fraud investigation was still ongoing at the time of the criminal complaint to the police in December of 2018, it is reasonable inference that the criminal complaints of sexual assault and assault were part of the same extortive effort to force the accused back into the marriage or suffer extreme consequences for ending their marriage.
[27] In summary, the marriage fraud investigation provides a glimpse into the complainant’s antagonism towards the accused, hoping to manipulate him to resume the marriage. This level of virulent antagonism severely damages her credibility. Furthermore, the evidence demonstrates that the complainant likely wrote these documents. There are multiple falsehoods in them. I find that in her testimony, when the complainant denied writing them or having prior specific knowledge of them, she attempted to mislead the court. This further erodes her credibility.
THE CIRCUMSTANCES OF THE COMPLAINT TO THE POLICE
[28] The complainant went to the police on December 5, 2018 to complain about the accused threatening her sister. She testified that she was concerned for her parents’ safety as well. It was during this interview that the allegations which were the subject of this trial were first mentioned by the complainant. The complainant testified that she did not raise the complaint previously because, having been brought up in the Punjabi culture, she did not realize that there was anything improper or criminal about what the accused had done to her. Punjabi culture, she testified, permits a husband to do anything he wants to his wife with no legal ramifications.
[29] I reject this explanation. The accused forcefully denied that Punjabi culture is so permissive towards violence against women. Apart from the evidence of the complainant and the accused, there was no independent evidence exploring Punjabi culture. But the complainant’s evidence appears greatly exaggerated. More importantly, although Punjabi, the complainant had been living in Canada since 2013. She is a practical nurse who took her degree in English and worked in a Canadian hospital primarily speaking English. She is an intelligent woman. Her English is very good at the present time and I imagine has been for a number of years. Although it is certainly conceivable that a person from another culture would not understand that sexual contact without consent is a crime in Canada, the evidence here convinces me that Ms. K. knew full well that non-consensual sexual acts are crimes in Canada. When she testified that she did not know, this was untrue. Her evidence may have been driven by a misconceived notion that she needed to explain why she had not complained about the sexual assaults soon after they had occurred. Ultimately, her motivation does not matter a great deal. It was false evidence delivered under oath.
COUNT #5: SEXUAL INTERCOURSE IN THE BACK OF THE ACCUSED’S CAR
[30] The complainant’s evidence with respect to count #5 was that there was non-consensual sexual intercourse in June or July 2018 in the accused’s car while parked at the Indus Community Centre. It was about 8 or 9 in the evening. She said that the two were talking in the front seat of the car. The complainant testified that there were other people from her Punjabi culture walking in the area and it looked bad that they were talking in the front seat of the car. The area was lit by a streetlamp. So they moved to the back seat. She was more comfortable in the backseat. The accused started touching her hand and moving closer to her. She testified that she was comfortable with these advances.
[31] However, she realized at some point that he wanted to have sex with her. She then described a conversation in which the accused tried to persuade her that they could have sex as they were still husband and wife and, although separated, were not yet divorced. For her part, although it is not clear exactly what she said in the conversation, Ms. K. testified that Mr. G. was only interested in satisfying his physical needs and had no emotional attachment to her. In the end, according to her evidence, she refused sexual relations. He, nonetheless, had sexual intercourse with her without her consent.
[32] The complainant’s evidence lacked any detail about how the accused’s affability suddenly turned and led to an act of sexual violence. The accused testified to this incident as well but said that the sex was consensual.
[33] The problem with the complainant’s evidence, as argued by Mr. Locke, revolves mainly around the move to the back seat. I agree. It is strange that it would be thought inappropriate for the couple to be visible to others talking in a car despite the fact they were separated. This explanation for the move to the back seat is unconvincing.
[34] Furthermore, the reason given for moving to the back seat is that they did not want to be seen while conversing. However, the prospect of seeing two people sitting together talking in the back seat of a car was much more likely to excite curiosity and puzzlement than seeing them in the front seat.
[35] In my opinion, contrary to the complainant’s account, the admittedly voluntary move to the back seat of the car could only have been for the purpose of having consensual sex with the accused. For this reason, I do not believe the complainant’s evidence that the accused forced sexual intercourse upon her on this occasion. I find that the sexual intercourse, as the accused testified, was with the complainant’s consent.
COUNT #3: THE ASSAULT IN BED WITNESSED BY THE COMPLAINANT’S SISTER
[36] Arguably, this count stands on firmer ground than the others as it is not wholly dependant on the evidence of the complainant. Her sister R.K. testified and corroborated her account although with some discrepancy in the details.
[37] Despite the corroboration, there are two problems standing in the way of a finding of guilt on this allegation. The credibility of the complainant, for the reasons given above, was poor. Even with corroboration, because of the problems in her evidence, there is serious difficulty in making a conclusion of guilt beyond a reasonable doubt.
[38] In addition, the confirmatory evidence is from the complainant’s sister, not an independent witness. The sister testified that she was largely unaware of the details of the marriage fraud investigation. She said that she did not have time to learn about it as she was working full time. This is not believable. Sisters generally talk about their relationships particularly in times of trouble. The explanation that she was too busy to learn about it was altogether unconvincing. Her professed ignorance of the marriage fraud investigation was similar to the evidence of her sister, the complainant, who was at such pains to distance herself from the marriage fraud investigation.
CONCLUSION
[39] I do not need to avert to or evaluate the accused’s evidence. I have serious credibility questions about the complainant and her sister’s evidence. The evidence with respect to the marriage fraud investigation poses an insurmountable hurdle for the prosecution. In addition, I am convinced that the complainant gave false evidence on several subjects during her testimony. This taints all the complainant’s evidence and all counts on the indictment. Findings of guilt are impossible on this record. The Crown’s case falls well below the beyond a reasonable doubt level of certainty required. It must be dismissed.
[40] For these reasons, the accused is found not guilty of all counts of the indictment against him.
D.E HARRIS J.
Released: September 21, 2021
COURT FILE NO.: CR-20-87-00
DATE: 20210921
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
B.G.
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: September 21, 2021

