COURT FILE NO.: CR-1153/20
DATE: 2022-03-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.L.
Accused
K. Whillans, for the Crown
D. Michel, for the Accused
HEARD at Sudbury: December 13-17, 2021; February 21, 2022
REASONS FOR JUDGMENT
A.D. Kurke, J.
Overview
[1] The accused is charged on a 5-Count indictment with sexual assault, assault, criminal harassment by threatening conduct, and intimidation, all involving complainant S.S., and with breach probation by failing to keep the peace. All allegations involve a date range of April 1, 2019, to September 17, 2019, and all the offences are alleged to have taken place in Sudbury.
[2] The allegations involve a context of an intimate partner relationship. The complainant came to Canada from India in August 2018 on a student visa to take a course of study at Cambrian College. She befriended the accused, and upon his release from custody in April 2019 became involved in an intimate relationship with him. They moved in together, and the charges allege that physical and sexual abuse and threats also entered the relationship. The relationship continued until September 2019. On September 17, 2019, Cambrian College security had to be called when the accused made a scene there after the complainant was refused a refund of money that she had paid for tuition and that the accused wanted back.
[3] At trial, the accused admitted dates, place, jurisdiction, and identity, and the existence and binding effect of the probation order (Exhibit 7). It was also agreed that a finding of guilt on any other count would also mean a finding of guilt on the allegation of the probation breach in Count 3.
[4] Crown witnesses at trial included S.S., two of her roommates, and a Cambrian College administrator. The accused, his mother, and a friend testified for the defence. Extensive background evidence was offered by Crown and defence, much of which is superfluous on the issues in the case. I consider myself under no obligation to resolve every contradiction in the mass of collateral evidence before me or to justify findings on purely collateral matters.
[5] It will be useful in this case to begin by considering some general points of law with respect to the burden of proof and the weighing and assessment of evidence.
Burden of proof and assessment of evidence
Burden of proof
[6] The accused began this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. That burden applies to the essential elements of every charge before the court.
The test in W.(D.)
[7] In the circumstances of this case, the accused has testified and offered other evidence as well. Sometimes that evidence denies or contradicts the complainant as to whether the criminal conduct alleged by the complainant occurred. Sometimes the evidence offered by or on behalf of the accused evidence highlights different aspects of events or posits a different factual framework.
[8] In these circumstances, in assessing the evidence I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at 757-758:
… In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]
… A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[9] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, at 533. As noted by Charron, J. in R. v. Dinardo, 2008, SCC 24, [2008] 1 S.C.R. 788, at para. 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
Credibility and reliability
[10] In this case, the issue that directly confronts the court is the credibility and reliability of the evidence of the complainant and of the accused, and of the other trial witnesses.
[11] In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 12-15):
12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)… (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31.
15 …[P]rior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272 …, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161…, at paras. 32, 35; R. v. Ay, 1994 8749 (BC CA), [1994] 93 C.C.C. (3d) 456 (C.A.), …at p. 471 C.C.C. [some citations eliminated]
[12] While inconsistencies on minor matters or matters of detail are normal and are to be expected, a trial judge must be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral”, and thus avoid the duty to address and weigh them: R. v. D.H., 2016 ONCA 569, at paras. 37, 50, 69-71; R. v. Vuradin, 2013 SCC 38, at para. 17.
[13] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para. 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”
[14] However, it is necessary to bear in mind that people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events. In particular, the authorities teach that courts must decide sexual assault cases “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: R. v. Shearing, 2002 SCC 58, at para. 121.
The allegations: background and context
[15] S.S. was born […], 1993 and raised in India. She came to Canada and Sudbury in August 2018 on a student visa for her education, to take a program at Cambrian College in environmental monitoring and impact assessment.
[16] The accused was born […], 1979, so he is some 14 years older than the complainant. He has three children, who do not live with him. He is a licenced mechanic. The accused has various health issues, including diabetes, thyroid disease, COPD and asthma. The accused claims that he had suffered a head injury in Alberta in 2000 when a car fell on him. The injury affects his memory of small details. However, he is able to “pretty much remember” his whole relationship with the complainant because he spent two years in custody thinking about it.
[17] The accused’s substantial criminal record was filed as Exhibit 10. That record includes numerous convictions for crimes of dishonesty, including those demonstrating a lack of respect for court orders and process, for various property offences, for public mischief in 2001, and for attempting to obstruct justice in 2013. There are also many convictions for offences of violence. I have been invited by the Crown to consider several entries for violence on this record as counterbalancing a good character claim made by the accused during cross-examination.
[18] I decline to do so. The entries on the criminal record themselves are insufficiently descriptive of the accused’s character, and the accused’s evidence relating to those convictions has limited their utility for that purpose. In addition, use of incomplete information related to select offences on that record to counter good character evidence offers the potential for prejudicial reasoning. I have considered the accused’s record only in accordance with s. 12 of the Canada Evidence Act as assisting me in my assessment of the credibility of his evidence.
Initial contacts with the accused
[19] S.S. was permitted to do some paid work while on her student visa and got a job at a pet store as a cashier. S.S. also ended up in contact with D.L., the accused’s mother, who wanted her to dog sit Molly, a golden retriever puppy owned by her and her son. In this context S.S. got a “conference call” from D.L. and the accused, who gave her more care information about the dog. S.S. tended the dog once or twice a week or more often.
[20] D.L. is 59 years old and has health issues and a minor and dated criminal record. D.L. is close to her son and visited him often when he was being held in custody at the Sudbury District Jail.
[21] S.S. and the accused continued to talk on the phone between September 2018 and April 2019, originally with the assistance of D.L. by conference or “three-way” call. At first, they spoke about the dog, but then S.S. and the accused were talking more casually, and about other things. They became friends, and S.S. felt that they developed feelings for each other. When the accused asked S.S. to be his girlfriend, she agreed. They expressed their love for each other.
[22] S.S. had not yet met the accused in person. According to S.S., the accused originally told her that he was working in Calgary and would return to Sudbury around April 2019. Around Christmastime S.S. learned that in fact the accused was in custody and due to be released in April 2019. She was shocked and did not understand why he had kept it a secret from her, but the accused told her that he had been afraid of losing her. S.S. continued to have feelings for the accused and wanted him to have a fresh start. She visited him twice at the jail, once with D.L. in January 2019.
[23] According to the accused, he had let the complainant know that he was in custody right away, and she “had no problem” with that. Indeed, she told him that “she had put three uncles in jail.” The accused claimed that in December 2019 it was the complainant who told the accused that she wanted an intimate relationship with him and saw a better future with him than with her boyfriend who was in Australia. The complainant was never questioned about any boyfriend in Australia, and I do not accept the accused’s self-serving evidence in many respects. I specifically reject the suggestion that the complainant told him that she had put three uncles in jail.
Release from custody, the Radisson Hotel, and living together until September 2019
[24] S.S. testified that on the accused’s suggestion in their telephone conversations when he was still incarcerated, they planned to stay overnight at a hotel as soon as the accused was released from jail.
[25] On April 29, 2019, the accused was released from custody. His mother drove him to the complainant’s apartment on Lasalle Boulevard, to pick her up. They returned to his mother’s home for a short visit before the accused and S.S. went downtown by taxi; the accused was a disqualified driver. They checked in to their hotel at the mall downtown, went for drinks at a bar, bought food at a sub shop, and returned to the hotel.
[26] In the hotel, the accused and S.S. were sexually intimate. They stayed at the hotel two days before decamping to S.S.’s apartment on Lasalle Boulevard.
[27] According to S.S., it was the accused’s idea to move in with her and her two roommates in her Lasalle Boulevard apartment, although S.S. had wanted to stay separate a few months “to see how it goes”. According to the accused, he and S.S. had discussed the accused moving in with the complainant in early 2019 while he was in custody in Penetanguishene.
[28] The accused and S.S. remained in the Lasalle Boulevard apartment for one or two months and then the accused found a place on Frood Road, into which they moved. S.S.’s Lasalle roommate N.D. moved with them and stayed with them on Frood Road until late July. S.S. and the accused remained at Frood Road until mid-September 2019. They also rented rooms there to two other persons, one of whom, H.S., testified for the Crown.
[29] N.D. testified that she came to Canada in August 2018, like S.S., whose classmate she was. She remembered that the accused had moved in with them on Lasalle in April 2019. At the end of June, the three of them moved to Frood Road, where there was another roommate. N.D. moved out about the end of her third week in that apartment, in July 2019.
[30] During the time that N.D. had a room on Frood Road, she spent about a week in Toronto. N.D. was generally out of the residence during the day but slept there at night. On Lasalle, she observed that the accused returned to the residence after work every day and did not leave for days at a time. N.D. noted that the accused was not often away when they were living on Frood, although she did remember the accused and S.S. going on a holiday.
[31] H.S. was a roommate of the accused and S.S. during September 2019 in the residence on Frood Road. It was apparent during his evidence that he feared the accused. On consent, he was permitted to testify behind a screen, pursuant to s. 486.2 of the Criminal Code.
[32] H.S. moved into the house on Frood Road September 1, 2019. He had a bedroom upstairs, near the kitchen. The accused and S.S. stayed in a room downstairs. H.S. described the accused as keeping late hours, and listening to music downstairs until 2:00 a.m., loudly enough in the small house that it often disturbed H.S. D.L.’s evidence also highlighted how noisy the accused’s electronic devices were.
The relationship between the accused and S.S.
[33] The accused claimed to have treated the complainant well. According to him, she liked makeup and dresses and liked taking “selfies” and face shots. He bought her clothing. They did “couple things,” like using an ATV, going to the beach, and boating. “She liked being pretty.” Until the end of July, when the complainant’s sister visited, the accused had no concerns, and he was indulgent of the complainant spending his money. Pictures of the accused and the complainant together in Bell Park have been entered as Exhibit 6.
[34] From the accused’s perspective, his relationship with the complainant was “all downhill” after S.S.’s sister’s visit. They argued about money and disagreed about things. The complainant would do foolish things like ruining pillows with hair oil, which caused “dumb arguments.” The complainant was not “mentally there anymore.” The house was a disaster. S.S. would cook and dirty the whole kitchen, and the accused would have to clean it up. The complainant would promise to do things, and then not do them. These minor complaints are significant, and feed into the criminal allegations.
[35] D.L. testified that she and the complainant had been close before her son got out of jail. Once the accused was released, they stayed friends and D.L. told the complainant that she could talk to her about anything. The complainant often talked to her about her relationship and little arguments with the accused, and their personal life.
[36] To D.L., the complainant and her son were great together. They laughed and were happy. They had arguments once or twice in her presence, but quickly “worked it out.” D.L. slept over at the apartment on Lasalle once, but in the house on Frood Road three or four times per week on a couch in the living room, including weekends. She could not hear what went on in their bedroom on Frood Road because of the noise from the television, the “surround sound”, and video games. No Crown witness was asked about D.L. sleeping over, or about D.L.’s regular presence in the Frood Road home, and the accused did not mention it in his evidence.
[37] From April to July 2019, N.D. also observed that the relationship between the accused and S.S. generally seemed “fine,” and they acted like a boyfriend and a girlfriend would act, although she very rarely spent time with them. As N.D. observed, the accused would yell at S.S. and then they would be fine together again. She never saw any physical interaction between the two that caused her concern, or any marks or injuries on the complainant or on the accused. After they fought, they would get back together quickly, as though nothing had happened.
The accused’s work
[38] According to the complainant, after the accused was released from jail, he looked for mechanic’s jobs. In addition, according to S.S., by June or July 2019 the complainant and the accused were engaged in the business of buying and selling vehicles. Exhibit 1 contains MTO and other documents showing the names of the accused and the complainant on vehicle documents.
[39] S.S. testified that since the accused’s driver’s licence was “restricted”, he used her and her licence to buy and sell his vehicles. S.S. was willing to assist the accused when the accused offered to give her money for tuition in exchange for this assistance. The complainant’s parents had helped her pay for school, but she was concerned about being a financial burden to them, as they had a lot of expenses.
[40] The accused testified that within a couple weeks of his release, he met an old friend C.G. from whom he rented a back shop to do body work in a business on Howie Drive. The accused also bought, repaired, and resold cars. He did work on vehicles for C.G., who had contracts with C.N., C.P. and Canada Post.
[41] C.G. is 45 years old, and a mechanic whose business has also involved fleet service. He accumulated a criminal record between 1992 and 2003 made up mostly of crimes of dishonesty. C.G. testified that he met the accused when he was 18 or 19 years old, through the accused’s relationship with a cousin of his. In his evidence, C.G. attempted to play down his relationship with the accused. He claimed that once the accused broke up with the cousin, he and the accused had no further dealings until the accused came to talk to him sometime in July 2019 and rented a back garage from him.
[42] The accused testified that he personally bought some 60 cars between the date of his release and September 17, 2019. He “ran a lot” of the cars through C.G.’s business. Some of the cars he bought were his, and some he bought jointly with C.G. He bought these cars at auctions held throughout Ontario that he attended with C.G. The ones he went to were mainly in London. He went to over 25 such auctions, rarely with the complainant, because she hated it so much. He therefore spent a lot of time away from home.
[43] The accused vehemently denied S.S.’s evidence that they had a deal by which she would help him with his car business in exchange for assistance with her tuition. He said that he would never use the complainant in his business. He used C.G. to help with his vehicles. He did admit that he encouraged S.S. to get her driver’s licence and taught her to drive, and that she got her G1 licence in June 2019.
[44] S.S. maintained that almost every time the accused bought or sold a vehicle, he used her licence, and the vehicle was put in her name. She denied suggesting that the accused register a couple of vehicles in her name because “it would look good for immigration purposes.” The complainant also denied knowing C.G., or that the accused went to Toronto with C.G. to buy cars, and not just with her. S.S. testified that the accused always took her and would always ask for her driver’s licence and sometimes make her sign documents involved in the transactions.
[45] The accused claimed that he assisted the complainant in getting her licence because it would look good for immigration, and so that she would be able to drive him around. Although the accused called the complainant’s claims about their business dealings “crazy”, it is the accused’s claims that appear illogical. The complainant, a G1 driver, could not drive the accused around, as she would need a licensed driver with her, and the accused was a prohibited driver. Moreover, the accused testified about, and his own witness C.G. remembered, a male named “Joe” who drove the accused around. Why would the accused need the complainant for this chore which Joe was already performing?
[46] C.G. testified that he went with the accused to pick up and drop off vehicles at the residences of ex-girlfriends in Sudbury. He claimed that the two twice went together to Toronto or Brantford on trips of three or four days to go to car auctions. The accused also went with C.G. to his camp in early August 2019 to work on the property for over a week taking down trees to make a road. Despite all this, C.G. denied that he and the accused were friends, and he said they “never hung out together.” He testified that he last saw the accused sometime in August 2019, after the accused had moved out of the back shop. However, he also stated that he visited the accused in custody.
[47] There is a significant contradiction between the evidence of the accused and C.G. about the accused’s visit to C.G.’s camp. The accused claimed that the complainant went with him there, while C.G. denied that S.S. was there. It is apparent to me that the accused attempted in his evidence to fortify C.G.’s evidence about knowing the complainant by so testifying, but that C.G. did not testify as the accused had expected.
[48] I reject the notion that the accused and C.G. were not friends, just as I reject the notion of their limited contacts until their acquaintance was reignited in 2019. That limited relationship does not explain their ready dealings with one another, speedy rental of a business premise, their trips together in and out of Sudbury, their mutual assistance, and ten days at C.G.’s camp together, all within a month of reacquaintance. Nor does it explain C.G.’s visits to the accused in custody. C.G. was trying to appear more independent of the accused than he actually was.
[49] To C.G.’s knowledge, the accused dealt with some 50 vehicles in 2019, including boats, snow machines, watersport and motor vehicles. C.G. testified that he never did any business with the accused except for renting him the back shop, though they would sometimes help each other out on mechanical jobs. This evidence of C.G. fundamentally contradicts the accused’s evidence that he ran cars that he bought through C.G.’s business. Moreover, C.G.’s evidence casts serious doubt on the accused’s evidence about his frequent business trips out of Sudbury.
[50] The accused gave evidence about vehicles that he did put in the complainant’s name, apparently in response to Exhibit 1, which appears to support the complainant’s evidence about her part in the accused’s business. In chief, the accused claimed to have put only two “cars” that he purchased in the complainant’s name: a 2005 Ford Focus and a camper/trailer that they could tow and use for camping. These vehicles were in the complainant’s name so that they would be legal, and the complainant could insure them. But even in chief, the accused further testified that the 2008 Ford truck named on a document in Exhibit 1, a third vehicle, was also put in their joint names; he hastily added that it was sold two weeks later. It also appears that, even though he claimed that the Ford Focus belonged to the complainant, the accused sold that vehicle to a mechanic who worked with C.G.
[51] It is apparent to me that the accused’s explanation about a car for the complainant is highly unreliable. He forgot what type of Ford was mentioned in Exhibit 1, and so mistakenly created a scenario of two Fords in the complainant’s name that had to be accounted for while still denying the complainant’s explanation. Moreover, the number kept growing. In cross-examination, the accused acknowledged two cars in the complainant’s name, and “maybe a Jeep and a trailer.” He later agreed that in fact the other vehicle in the documents in Exhibit 1 was an ATV, and not the trailer that he had claimed earlier. The accused’s explanations for vehicles that he put in the complainant’s name changed repeatedly and were quite apparently unreliable.
[52] I have the most difficulty with C.G.’s evidence concerning S.S. S.S. denied even knowing who C.G. was, a claim which I accept. C.G. testified that the complainant was introduced to him as the accused’s girlfriend one day when the accused brought her along to watch the dog at the business, as their home was being fumigated. From that point on, C.G. claimed that the complainant was at his shop almost every day with the accused. C.G. talked with the complainant occasionally, and caught her in his office, where she was not supposed to be. The complainant was not asked about much of this.
[53] According to C.G., the complainant was often to be seen sitting “on a chair in the back shop”, and never outside of the shop. This contradicts the accused’s claims about the complainant’s annoying habit of sitting in cars belonging to C.G.’s customers, a fact that C.G. would surely remember about this woman he did not like or trust, if it were true.
[54] C.G. claimed to have seen the accused and the complainant interact often, and he offered in evidence things not claimed by the accused or asked of the complainant, which I find to be hastily contrived embellishments. For example, C.G. described that the complainant used to “nag at” the accused, and that she would yell at the accused, and that C.G. twice had to get the accused to stop her from yelling. Otherwise, the accused and S.S. were “good together”. I reject C.G.’s claims about the relationship between the accused and S.S. as unreliable. Baldly stated as it was, and with no examination of the complainant about C.G.’s interactions with her, I am left with the impression that C.G.’s evidence derives from something other than his own observations.
The complainant’s sister visits
[55] The complainant’s sister visited her in late July or early August 2019 for a week, and then came to Sudbury. She did not testify at trial, and no explanation was offered for her absence. This is unfortunate, as S.S.’s sister is the only person named by S.S. who would have seen the accused hit S.S.
[56] The accused testified that around the time of his birthday, he paid for the complainant’s sister to fly to Canada from India. They all three went on a trip to Canada’s Wonderland for two days, and Niagara Falls for three further days. The complainant testified that the accused was verbally abusive to her and her sister, and that the complainant “took the hit” for her sister from the accused. S.S. testified that the accused also hit her in front of her sister.
[57] While the accused denied trying to hit the sister, he found her to be “rude and disrespectful.” He could not speak Hindi but could tell that she was “degrading” him to the complainant in that language when he would try to talk to her, and she would not go out with the accused and the complainant. The accused clearly did not like the complainant’s sister.
[58] According to S.S., when they returned to Sudbury S.S. asked D.L. to let her sister stay with her for a few days to protect her sister from the accused’s abuse. Finally, she was able to send her sister on a rideshare to Toronto to get her away from Sudbury.
Sponsorship
[59] According to S.S., the accused wanted her to get permanent residence in Canada naming him as her sponsor. To encourage her in that direction, he threatened her not to help her with her tuition. He wanted her to get a work permit and give up her studies.
[60] According to S.S., the accused had her fill in an immigration application shortly before September 17, 2019, and most of the writing on the form is hers. In the “Finances” section, the accused added the sentences, “He financially supports us. He is a hard worker.” Exhibit 2 is the complainant’s sponsorship application, which was never sent in though it was filled in and signed by the accused and S.S. and dated September 14, 2019. The accused wrote the date next to his signature. S.S. wrote in, in various places on the form, that “we really love each other”, that they accepted each other’s “imperfections”, that they “want to stay together and grow old together”, and that “we are looking forward to get married”, and other things suggestive of a permanent, loving relationship.
[61] According to the accused, it was S.S. who was eager to get permanent residence. Concerning Exhibit 2, the accused explained that he and the complainant filled out S.S.’s immigration sponsorship forms long before September 14, 2019, the date on the form. The accused claimed to have filled out his portions between May and June 2019. According to the accused’s evidence, the complainant had printed out the forms in C.G.’s office. The accused’s claims rest uncomfortably with C.G.’s evidence that the accused was not even working in his building until July. The accused signed the forms but denied adding the date next to his name, though the handwriting on the date seems very much like his. The accused denied forcing the complainant to fill out anything on them, adding “you can’t force her to do anything she does not want to do.” He claimed to have given the forms to the complainant to date and file.
[62] The accused’s evidence offers no explanation as to why the complainant, so eager to secure virtually any sponsor, never filed the completed forms long before the tempestuous events of September 2019. Given the turmoil in the relationship already by July and August, I have great difficulty in believing that the complainant added September 14 as the date on the application without the accused’s direction. I cannot accept the accused’s evidence concerning the complainant’s request of him to sponsor her. I find that the application was written at the accused’s direction, written for a specific purpose, and its description of the couple’s relationship cannot be taken at face value.
[63] It is a short step from there to the proper assessment of claims by D.L. and C.G. that the complainant also approached them to be her sponsor for immigration purposes. D.L. testified that the complainant asked her more than once to be her sponsor, but D.L. refused, as she was on ODSP, and it would not be allowed. C.G. also claimed that, although he had no relationship with the complainant, she asked him to be her sponsor so that she could stay in the country. Once again, the complainant was never asked about such claims, and I do not accept them. But such evidence fits into a pattern of apparent collusion among the defence witnesses.
The complainant’s tuition money
[64] The complainant was quite obviously still in school until the end of their relationship, although it was the testimony of the accused that she was not attending. The accused’s own texts from September 17, 2019 (Exhibit 8) contradict him on this point, as will be discussed below. Moreover, D.L. testified that she saw the complainant at school at Cambrian College once or twice in September to have lunch with her “around her schedule,” which can only refer to her class schedule.
[65] S.S.’s program at Cambrian was to have ended March 2019, but S.S. did not graduate, as her GPA was too low. According to the accused, the complainant was failing school and was about to drop out, and her student visa would cease to protect her status in Canada. S.S. testified that she just had to take a further semester of courses to bring up her average so that she could graduate and remain in Canada on her student visa. She took three courses from her program and two others from general arts to make a full-time program that was also less expensive.
[66] Ultimately the accused did help S.S. with her tuition. As described above, S.S. testified that this was in exchange for her assistance with his buying and selling cars. She had to take an additional semester of courses, and tuition was about $6,000 per semester; the accused helped her once only, with “six thousand something” in August 2019. S.S. denied that the accused helped her more than once and rejected the amount suggested by counsel: $16,500, or that such an amount was given twice. The accused did not give her more than the $6,000: “[he] helped me pay the tuition but he did not help me twice and did not give me 16,000.” But then he claimed that he needed the money because he wanted to take a trip.
[67] The complainant also denied ever asking anyone else for money for her tuition, including C.G. I accept S.S.’s testimony that if she had needed money, her parents would have helped her, even though she wanted to spare them the expense, and that she did not even know who C.G. was. D.L. also claimed that the complainant asked her for $2,500 for school, but D.L. told her that she could not afford it on ODSP. I am unable to accept that the complainant asked D.L. for any amount for tuition.
[68] In August, the accused and S.S. went to Cambrian to see about getting money back.
[69] The accused claimed that he had given the complainant $16,500 for Cambrian in July 2019 before their trip to Canada’s Wonderland. He said that on their visit to Cambrian to see about getting this money back, an international student dean had assured the accused that in 20 to 40 days $10,500 that had been spent on “wrong credits” would be refunded. When the refund money was not forthcoming, the accused claimed that the complainant admitted to him that somehow “she paid the wrong program” or “bought the wrong credits” and she needed more money, or she would be deported.
[70] According to the accused, in August 2019, the complainant told him that she needed (another) $16,000 for tuition for school. The accused testified that he left a Camaro with C.G. as collateral, and that C.G. gave the complainant $10,000. The accused says that he also gave the complainant a further $6,500. According to the accused, the plan that he had agreed upon with the complainant was for her to pay her tuition, renew her student visa, then drop out and collect a refund of her tuition. They would then go to B.C., get married, and the accused “would be the son her father never had.”
[71] The complainant puts a first visit to Cambrian with the accused concerning a refund in August, and the accused puts it in July. I accept the complainant’s dating and find that this was the accused’s first attempt to get a refund of the $6,000 tuition fees paid for September. At Cambrian, the accused “created” a scene, so security was called. The complainant spoke with a woman named “Heather” at Cambrian, and, when asked about domestic abuse in the security office, denied that the accused was hitting her, because she did not want to get him in trouble. The accused testified that he and the complainant got into an argument, and a teacher “came out and started screaming at me,” and asked the complainant if the accused had hit her.
[72] C.G. claims that he still has the accused’s 1980 Camaro for which C.G. loaned the accused $10,000 to give to the complainant, money that was given to her in his presence. C.G. also claimed to have observed the accused give the complainant an envelope with a further $6,500 in it. I am skeptical of the public aspect of these transactions, which appear to have been claimed by C.G. and the accused to have been done in each other’s presence to produce evidence for just such an occasion as this trial.
[73] C.G. testified that “I wouldn’t have given a dime to” the complainant, and I find that he did not. I reject this evidence about $10,000 given by C.G. to the complainant as a concoction to assist the accused. The only part of C.G.’s evidence about $10,000 that I can accept is his statement, “I was giving it to him, not to her”, which is likely accurate.
[74] By whatever mechanism the complainant got money to pay Cambrian, the accused demanded that S.S. get the tuition money back from Cambrian. The complainant told him that she could not, because she had come to Canada for her education. If she took her money back, she could not stay in Canada or finish her studies. S.S. told the accused that she would try to get a refund of $2,000 that had gone towards her “co-op” semester. She tried to get this “co-op” portion of her tuition back from Cambrian but could not. S.S. told the accused that she would pay him the co-op portion personally over time. That she did give some money to the accused offers corroboration of the complainant’s account.
[75] In total, the accused claimed that he gave the complainant more than $32,000 for school, and that he only ever received back from her a little less than $3,000. These assertions of vast sums paid to the complainant for Cambrian tuition are difficult to credit. On the other hand, the complainant’s account is straightforward and was maintained by her consistently throughout her evidence. I accept the complainant’s evidence. I find that the accused tried to force the complainant to drop out of school by getting her to return to him the money that he had given her in exchange for the use of her licence, and to compel her to apply for permanent residence with the accused as her sponsor. This would have put the complainant under the accused’s control for the entire period of the immigration sponsorship.
[76] I conclude this section with final observations about the evidence of C.G. C.G. claimed that, although he disliked the complainant, she asked him to be her sponsor so that she could stay in the country and she asked him for money for school. C.G. refused both requests. I reject this evidence as highly implausible. I see the coincidental evidence from C.G. and D.L. in their unlikely claims that S.S. asked each of them for money and for sponsorship as part of a coordinated effort to assist the accused and discredit the complainant. Nor do I believe that other venomous and volunteered assertion from C.G., that he did not like the complainant because she “would always put her hands on me,” even though he was a married man.
[77] On all the evidence in this case, I reject C.G.’s claim even to have known the complainant. It is apparent to me that C.G.’s purpose at this trial was to assist the accused in subverting the complainant’s testimony by providing corroboration for the accused’s collateral claims. It was done so inexpertly, however, that C.G.’s evidence at best only weakens the case for the accused through its contradictions of the accused’s evidence.
September 17, 2019, and after
[78] On his testimony, the accused had always wanted to live in British Columbia. Since 2007 he has been addicted to opiates, and had been on and off suboxone, to assist in overcoming that addiction. He intended to go to a clinic in B.C., the Royal Oak Clinic in Vancouver, where he hoped to “detox”. The accused testified that he and the complainant planned to move to B.C. She wanted a family and a baby, and his plan was that she would support the accused during his drug treatment. He would then work as a mechanic.
[79] The accused testified that, as he was worried about the money that he needed to use to go to B.C., he suggested in September that he and the complainant go to Cambrian College to push for a refund of money that the complainant had paid.
[80] S.S. described that she and the accused went to Cambrian College, where they tried to get a refund of the co-op amount. They were told that international student money could not be refunded. The accused got angry, demanded a refund, “made a scene”, and left when he saw security coming. S.S. was brought to an office, where police were called. S.S. spoke with police that same day.
[81] As the accused told it, S.S. had told him that she had a class to go to. When they got to Cambrian, they went first to the international student office, and then the complainant tried to get the accused to leave, but he wanted an answer. Eventually they spoke to an administrator, and the accused demanded a refund of the money he had given “his wife”. But the complainant “rudely” denied they were married. The accused was told that the person working there would only deal with the complainant – “the student” – and he was asked to leave. On the accused’s evidence, he was thunderstruck. He had worked so hard and contributed financially, but had been taken in. He had also lost his best friend.
[82] The accused’s overwrought, emotional monologue as the wronged fiancé, victim of a residency scam, is alone almost sufficient to undermine his credibility and reliability. The accused’s sudden epiphany that the complainant had cheated him because of her denial of their non-existent married status was an obvious piece of theatre, complete with studied emotions and feigned tears. He claims that the complainant stole his money. He lost all hope. She had been lying to him all this time, as money paid by international students was not refundable. There would be no B.C., no marriage. He had worked so hard, and she had taken his money.
[83] Crown witness D.H. testified that she was working as the manager of client services in the enrollment centre of Cambrian College on September 17, 2019, when she was made aware of a situation concerning a male arguing with a female about money and fees. She came out and called the two persons over, who were the accused and S.S.
[84] The accused was very frustrated and angry; the female appeared worried and timid. The accused said that he wanted “his” money refunded, and D.H. told him that she could only deal with the student, the complainant. D.H. asked the accused to keep his voice down and step back. He did so, but then advanced again and said that the student was his wife, and that he should get access to her account information. He said that money had been stolen from him and he wanted it back. The complainant shook her head and stated, “I am not your wife.” The accused again demanded a refund in an angry tone of voice.
[85] At this point, D.H. asked the accused to leave the College, and told him that she would deal only with the complainant. The accused left promptly. D.H. brought the complainant to her office. The complainant was crying and visibly shaken. When texts from the accused kept coming to the complainant’s phone, D.H. grew concerned and contacted security, who called police. Police arrived while the complainant was still in D.H.’s office.
[86] D.H.’s evidence is very telling on this trial and independently paints a clear picture of the dynamics of the relationship between the accused and the complainant.
[87] S.S. did not communicate with the accused after that. He tried contacting her and sent her messages asking for money, but she did not respond. She did eventually send messages to the accused, but she never saw him again. She did pay him back about half of the co-op money. Exhibits 4 and 5 are messages acknowledging the e-transfer of $990 to the accused from the complainant, and her explanation of why it was not more. That money was paid in October 2019. At the time, S.S. did not know where the accused was.
[88] The accused testified that he and his friend “Joe” drove directly to B.C. on September 17, 2019, from the Cambrian College parking lot, after the accused had sent the complainant many texts, which form the basis for the intimidation charge. A letter from the Royal Oak Clinic (Exhibit 11) in British Columbia confirmed the accused’s attendance there in September and October 2019. I draw no inculpatory inference from the accused’s trip to British Columbia.
[89] S.S. went back to the Frood apartment after the events at Cambrian, to collect suitcases of her clothing and utensils. She denied leaving any money there and testified that she knew nothing about $8,000 lying with her immigration sponsorship papers.
[90] The accused acknowledged that the complainant sent him $990 by e-transfer on October 30, 2019. He testified that he was expecting much more than this, but never got anything further. The only other monies he received were $2,000 on September 17, 2019 before the visit to Cambrian, money that the complainant took gave him from her account. That money was supposed to be from a $5,000 deposit from a customer on a Dodge campervan, but the accused testified that he kept the $2,000 and the campervan and expected the complainant to pay the customer back.
[91] After the accused left for British Columbia, D.L. had to take care of the accused’s Frood Road residence and the dog Molly and take out the accused’s expensive equipment. She cleaned the house and locked it and checked on it regularly. Under the complainant’s nightstand at the Frood Road residence D.L. claims to have found the complainant’s passport, the Immigration documents (Exhibit 2), and two envelopes each containing $4,000. D.L. used the $8,000 to pay her son’s bills.
[92] I reject any suggestion that the presence of this $8,000 corroborates the account given by the accused or C.G. about $10,000 given by C.G. to the complainant. If the complainant were the person claimed by the accused and C.G., it makes no sense that the money would not be in her tuition account at Cambrian or, if not there, that she would have left this money behind when she went to collect her belongings at the Frood Road residence. I conclude that any such money found at the Frood Road residence had nothing to do with the complainant.
The charges
Count 1: Sexual assault
[93] The time period of this charge commences during the stay by the accused and the complainant at the Radisson Hotel in downtown Sudbury where they remained for two days in April 2019 after the accused’s release from custody. The allegation of non-consensual sex begins at the hotel and continues throughout the relationship until its conclusion in September the same year.
The complainant’s evidence
[94] S.S. testified that on the first evening in their hotel room after the accused’s release from custody, she and the accused got “sexually close”, and tried to have intercourse, that is, vaginal penetration of S.S. by the accused’s penis. The penetration hurt S.S. and “kind of” traumatized her. She asked him to stop and not to do it anymore and said no “a couple of times”. The accused kept trying for five or ten more minutes and got “mad” or “pissed” at S.S. when she started crying because it hurt. After he stopped, he talked rudely to her and complained that she kept “whining”. S.S. apologized and explained that it had hurt her. They watched television and then went to bed.
[95] The next day the accused and S.S. tried intercourse again. Again S.S. asked the accused to stop, telling him that she was still hurting, and not to do it. The accused did not stop. But he did slap her and tell her to stop whining and that it was her job to satisfy his needs. She felt that if she did not agree to sex, she would be abused. She was left emotionally and physically hurt, and heartbroken.
[96] The complainant testified that once they were living together the accused would have sex with her almost every day between April and September 17, 2019, including when she was menstruating. The complainant told the accused many times that she did not want to have sex because it was hurting her. The accused said that he did not like hurting her, but he did not stop. He called her a whiner. S.S. testified that there was also oral sex, but that all sex with the accused was forced upon her, including oral sex.
[97] S.S. continued to say “no” for one or two months. She told the accused “it’s hurting. Don’t do this.” When she said “no” the accused would get mad and be rude to her, and slap her, push her against the wall or use force to get his way. He did not stop intercourse most of the time. Finally, S.S. “just gave up”. She stopped saying “no” because she was scared to get hit if she did not let him have his way. Eventually, apparently after a few months, S.S. gave in completely and did not say anything, in order to avoid being slapped.
The accused’s evidence
[98] According to the accused, they were both very anxious to have sex their first time together. The complainant told him that “it had been a while.” They lay down, cuddled, kissed and talked. The accused claims to have asked the complainant if he could “perform oral” on her, and she agreed. She also performed oral on him. They made love, which the accused found “amazing”. After a “good hour” the complainant asked the accused to stop, as she was getting “friction burns.”
[99] According to the accused, the complainant told him to go to a drug store to buy “lube”, “the cherry kind”, because it tastes better for a “blow job.” The complainant denied this and stated that the lube was the accused’s suggestion. At a nearby drugstore, the accused could only find strawberry lube, so he bought that. The complainant put lube on him, gave him a “blow job” to arouse him, after which they “did it” sitting in a chair “at her request so she’d have more control.” Initially, the accused testified that after that, they lay down and passed out from exhaustion. In cross-examination, he added that he went downstairs to talk to his “baby momma” in Alberta on the telephone.
[100] The accused testified that they next had sex a couple days later, after moving into the complainant’s apartment, when the complainant’s roommates were not around, as the complainant did not want them there. They also fooled around in the shower. “We were like a newlywed couple.” The accused bought them a bigger bed. They had lots of oral sex, but they could not have a lot of sexual intercourse because the roommates would have heard everything, which was embarrassing to the accused, because he is shy.
[101] According to the accused’s evidence, between April and September 2019, the complainant only told him to stop sex so that she could hydrate or get more lube. According to him, she was an enthusiastic sexual partner. The accused denied that he and the complainant had sex almost every day. There were many occasions that they were apart, and could not have engaged in almost daily intercourse, as the complainant had claimed.
Discussion
[102] I do not believe the accused’s evidence concerning his sex life with the complainant.
[103] In assessing all of the evidence of this case, I have concluded that at the time of her initial contact with the accused, S.S. was far younger than he was and sexually inexperienced. On the other hand, I find that the accused in his evidence was prone to presenting himself in a favourable manner, always ready to exaggerate his abilities, qualities and vulnerabilities and to disparage the complainant.
[104] The accused took every opportunity that he could to cast the complainant in a negative light, and to portray her as bold, controlling, and a sexual siren. I reject this evidence as not accurate. It does not accord with the person I find the complainant to be by the evidence she has given. I list here some examples:
a. The complainant had no difficulty with the accused being in jail when they met, as she had put three uncles in jail.
b. The complainant was happy to become the accused’s intimate partner, because she was “fed up” with waiting for her boyfriend in Australia and thought that she would have a better future with the accused.
c. According to the accused, the complainant suggested cherry lube during their first sexual encounter, as it tasted better during oral sex. I do not at all accept that this item was the complainant’s idea.
d. The complainant asked to be on top when they had sex on a chair at the hotel, so that she would have more control. This was never put to the complainant, and I do not accept that the complainant requested any such thing.
e. On the accused’s evidence, the only vaginal pain experienced by the complainant was from “friction burns” because of their lengthy and enthusiastic coupling. On all of the evidence in this case, I reject such a claim.
f. According to the accused, the complainant was more sexually active than he was. The accused claimed to be too shy to engage in intercourse in their apartment when the complainant’s roommates were around, but in his evidence the complainant began engaging in sex play with him in a car during a drive with others present. I reject the accused’s claims of shyness as pure fabrication, and this implausible assertion about the complainant.
[105] I find C.G.’s evidence about the complainant’s “laying hands upon him” to be intended as a finishing touch to the picture painted of the complainant by the accused, and I likewise reject it.
[106] I do not believe the accused’s evidence about the sexual assault charge. What of the prosecution evidence?
[107] The defence pointed out issues with the complainant’s account of her first sexual encounter with the accused at the hotel:
a. Although the complainant said in her evidence that she did not expect a sexual encounter the first night, she said otherwise at the preliminary inquiry. S.S. testified, however, that once they started cuddling in the room, she understood that sexual intercourse would happen. But she claimed that she was not fully mentally prepared for it, as she had never before had intercourse.
b. In her statement to police in September 2019, S.S. had indicated that intercourse lasted 40-45 minutes, though the complainant testified that she did not remember the exact timing. At trial, she testified that the accused tried to have intercourse with her for five or ten minutes.
c. In her evidence in chief, the complainant denied that penetration was successful. However, she had testified at the preliminary inquiry that the accused’s penis entered her vagina.
[108] Differences between the complainant’s earlier statements and her trial testimony cause me concerns regarding the reliability of the complainant’s claims about her first sexual interaction with the accused.
a. I am skeptical about the complainant’s claim that she was mentally unprepared when it turned out that there would be sexual intercourse in the hotel room. In the circumstances in which the couple found themselves, I find such a claim disingenuous. They were clearly at the hotel with an intention of becoming intimate.
b. The change in duration of the intimacy between statement to police and trial is significant, and concerning about the complainant’s reliability on this charge.
c. And very importantly, the difference in detail between penetration and no penetration, by one who testified to never having had the experience before, is significant.
[109] I am also concerned about exaggerations in the complainant’s evidence generally concerning the sexual assault charge.
[110] Although the complainant claimed in-chief that she and the accused were constantly together and that (non-consensual) intercourse took place at least every other day once they had moved in together, in cross-examination the complainant admitted that there were time periods where intercourse did not occur with such frequency. Of course there were. Whether they went for a week to Canada’s Wonderland and Niagara Falls with S.S.’s sister or spent a night in Barrie for a flea market, there were time periods where intercourse did not take place. Some of these periods remained unacknowledged by the complainant until pointed out in cross-examination. I have a reasonable doubt that there were many others.
[111] I am also concerned about the complainant’s claims that essentially none of her sexual contact with the accused was consensual. When she was asked in cross-examination about oral sex and acknowledged that it also took place, she hastily added that it too was non-consensual. I am very concerned about sexual domination on the scale claimed by the complainant in all the circumstances of this case.
[112] At the same time as I find the complainant’s evidence to be exaggerated, I also find it to be lacking in incidental and sufficient detail, and not compelling. And the exaggeration of frequency only accentuates the absence of detail.
[113] The complainant’s description of her second sexual encounter with the accused in the hotel room offers little other than the barest outline of circumstances and is presented as hardly more than a doublet of the first encounter, but with some additional physical violence added. No incidental details are offered that would create any vividness sufficient to satisfy beyond a reasonable doubt. Intercourse leads to complaints that lead to verbal abuse and physical abuse, and the act continues.
[114] For how long did intercourse go on? Was there ejaculation? Was a condom or any other form of birth control used? The accused has the two engaged in intercourse on a chair in his narrative about their sexual relations in the hotel. There is no evidence in the Crown’s case regarding on what piece of furniture intercourse took place, except for a throwaway comment that after the first sexual encounter they watched television and then went “back to bed”. On the second day, the accused slapped S.S., she says. Where did he slap her? How hard? No detail is provided. Proof beyond a reasonable doubt requires, in the circumstances of this case, more than just an outline.
[115] Moreover, S.S. gave little detail in her account of her ongoing sexual relationship with the accused while they were living together. Leaving aside the absence of any detail about the acts alleged, the couple always had roommates. They lived together in two different residences. The accused appeared to have been working, and the complainant in school. They went on trips together. For more than a week, the complainant’s sister was a constant presence. Given these factors, significant questions arise. What time of day did sexual intimacy take place? Where in the different residences did it occur? Who was home when it went on? In what other locations were there non-consensual sexual relations, or did those only occur in the home? According to the complainant, such activities went on for months, but almost no details are forthcoming, and although many persons were nearby and could hear the goings on of other tenants, nothing like corroboration is offered.
[116] To the contrary. While looks can be deceiving, particularly in abusive relationships, D.L. observed the accused and S.S. as a happy couple. While I have serious doubts about D.L.’s claim to have slept over quite often at the couple’s home on Frood Road, I am unable entirely to reject it. She spent some time with S.S. and claimed a certain level of information-sharing with her. S.S. turned to her to get a safe house for her sister. And other than on two occasions, N.D. made similar observations about the accused and S.S. They would fight and then make up. N.D. did sometimes hear the accused and S.S. having intercourse, but did not hear S.S. saying “no”, or that she did not want to do it. H.S.’s very negative evidence goes more towards other charges than this one. Such evidence as has been presented does not bolster the complainant’s evidence on the charge of sexual assault.
[117] On all the evidence in this case, while I am unable to believe the accused’s account, his evidence, in combination with the other evidence or absence of evidence in the case, and frailties in the prosecution’s evidence, leaves me with a reasonable doubt about the charge of sexual assault. I strongly suspect that much of what went on sexually between S.S. and the accused was as described by S.S., but I am unable to make factual findings beyond a reasonable doubt on many aspects of the allegations, including consent.
[118] There must be a finding of not guilty on Count 1 on the indictment.
Count 2: Assault
[119] The accused is also charged with assaulting the complainant during the same period of time, from the beginning of the month of April through to the couple’s separation on September 17, 2019.
[120] The complainant testified that “[a]lmost every day he would hit me, slap me around and yell at me, call me names, and be rude to me all the time for every small thing.”
[121] According to S.S. the accused would hold and bend her wrist, pull her hair, and propel or press her into the wall and thereby hit her head against it and try to get an apology from her for things that he felt she had done wrong. He would get angry at her for the “smallest” things she did, such as when she put meat in the freezer, or when she had trouble getting Wi-Fi installed. There was barely any day that he did not “lay his hands” on her or slap her. He would tell her that she was the reason that he was angry.
[122] However, S.S. never got any serious injuries, ones “that would lead to bleeding or anything like that”. She did get bruising from “him strangling my hand”, but she does not know whether her roommates saw it.
[123] For the first time at trial, the complainant testified that the accused once spat in her face. Although she denied much of anything more than slapping or throwing her into walls at the preliminary inquiry, at trial the complainant testified that the accused also punched her “very few times”, on her hand. Given the nature and infrequency of the punching or the spitting, the language used by the complainant to describe the physical abuse that she claims to have suffered, and issues that I observed in her understanding or speaking of English, I do not consider this to be significant inconsistency.
[124] According to the accused, he did not assault the complainant in any fashion. He never slapped her in anger, though they would “play fight” or he would slap her “bum” during sex. He denied grabbing and twisting her wrist. He never threw her against the wall. He did testify that the complainant tripped on the accused on the stairs once, and they both fell down the stairs by accident.
[125] I am unable to accept the accused’s evidence concerning his relationship with the complainant. In my assessment of the evidence in this case, I have found the accused to have deliberately mischaracterized situations to present the complainant in a bad light and weaken her claims. He has presented himself essentially as the victim of a confidence scam by an immigration hunter. As I have explained above, I have found the accused’s evidence to be implausible, contrived, and unreliable in many ways. The accused’s record for offences of dishonesty saps vital force even from his less bold claims. That holds true as well for the accused’s denials of physical violence.
[126] What of the complainant’s claims?
[127] I have found already that S.S.’s claims with respect to sexual abuse are exaggerated and I have noted the absence of detail. There are also some issues with the complainant’s claims here.
[128] Victims of intimate partner violence must be understood to be capable of idiosyncratic and counterintuitive behaviour. I do not question why the complainant would stay with her abuser even given her claim that the accused drove her almost to the point of suicide. However, what is troubling on the evidence in this case is the complainant’s claim that severe abuse began the very day she met the accused in person, and yet she proceeded to permit him to move into her home, even though she testified that she had wanted to “see how it goes” before they moved in together.
[129] Daily, regular physical violence is suggested, but almost without exception was not witnessed by anyone. N.D. saw no physical brutality inflicted on S.S., and never saw any marks on her person, though S.S. thought that N.D. had seen violence on one occasion. H.S., who did hear what he took to be the sound of a slap, did not see any physical violence and did not claim to see marks on S.S. D.L., who claims to have spent so much time in the Frood Road home, saw no violence, and was shown no marks by S.S. S.S.’s sister, who must have seen physical violence inflicted by the accused on S.S., according to S.S.’s account, was not called to testify.
[130] No questions were asked about the difference in size between the complainant and accused, and the complainant’s physical size was impossible to gauge by videoconference. However, the vast difference in their sizes is illustrated by Exhibit 6, photos of the two together in Bell Park. It is apparent that the accused is a significantly larger person. The question cannot be avoided: if the accused treated the complainant as she claimed, how could she not have been seriously injured or at least noticeably marked, given that size difference?
[131] The answer to that question may lie in the ways in which the complainant was struck, and the places on her body where blows or palms landed. The complainant testified that she was struck in the hand and that her hair was pulled. When she was thrown into the wall, she struck her head, and it may be that her hair covered any bruising. But where on her body was she slapped? No Crown evidence fills out that picture. Which hand did the accused use to strike her? Did he favour one hand over the other, or did he use both at different times? When the accused threw or pressed the complainant into the wall, what part of her body did he touch, and with how many hands, one or two? The answer to that question would assist in understanding the force of the contact and where else bruising might have been expected.
[132] The complainant testified that the accused “strangled” her hand. Other than that description, however, few details are offered about what parts of the complainant’s body were roughly handled by the accused, and in what way. How did the accused propel the complainant into the wall? Did he grab her hand or arm and throw her using her arm? Did he push her by the chest? No further elucidation was forthcoming in evidence at this trial. In re-examination the complainant was taken to a preliminary inquiry transcript which did offer some detail about what parts of the complainant’s body were engaged by the accused during an incident, but the complainant did not give such evidence at this trial or adopt the transcript evidence.
[133] Similarly with respect to the complainant’s sister. The complainant testified that she took blows that the accused had intended for the complainant’s sister. Was it by fist? Was it a slap? How hard a blow was it? On what part of the complainant’s body? Towards what part of the sister’s body or head was the accused aiming? How did the sister react? I have received no evidence of this. Moreover, the evidence seems to indicate that this conduct first occurred in southern Ontario where the three had gone on a trip, but then continued in Sudbury. The indictment is quite specific in stating that the assaults at issue occurred in “the City of Greater Sudbury”, and no request was made to amend any count.
[134] The complainant testified that the accused once spat in her face. No details of the incident were offered. I have not been given enough evidence to determine whether that spitting was intentional or unintentional.
[135] On the other hand, there were points of detail that made the complainant’s claims more compelling, and things that corroborated the complainant’s account:
a. The complainant described two situations in which violence was inflicted upon her for minor issues, apart from what she claimed in connection to her claim of sexual assault. One involved her putting chicken in the freezer, and the other occurred because of late Wi-Fi installation.
b. The complainant did describe bruising to her hand as a result of the accused’s assaults of her.
c. The description of the accused “strangling” S.S.’s hand is descriptive of a tight mangling grab, and immediately conjures up a vivid image.
d. The complainant well described that when the accused threw her into a wall, by whatever means, it caused her head to strike the wall.
e. The complainant offers detail of the accused’s words that accompanied violence, and of his efforts to get her to apologize for her wrongs.
f. On the night before police attended the residence, towards the end of H.S.’s time at the apartment, and after he had made the audio recording of the accused in a rage (Exhibit 8), H.S. testified that he heard, but did not see, the accused slap S.S. On that occasion, the accused did not put on the loud music or television that generally disturbed H.S., and H.S. heard the sound. H.S. illustrated the sound by slapping his thigh. H.S.’s evidence was compelling, and I accept that what H.S. heard was the accused slapping the complainant.
g. The recording made by H.S. has the accused very upset about meat in the freezer, among other things. H.S.’s evidence corroborates the fact that minor issues that the accused had with the complainant enraged him.
h. The accused’s own evidence to explain Exhibit 8 has him launching into a rage because his dog had defecated on the floor and no one else had picked it up. There was also apparently another occasion caused by the complainant’s use of curry in the kitchen that could have aggravated his COPD or his asthma. Respectfully, these were apparently yet more minor incidents that apparently caused the accused to lose control, just as was claimed by the complainant.
i. The accused’s evidence of “play fighting” I find to be an acknowledgement that he struck the complainant. I reject the accused’s self-serving claim that such fighting was intended as “play,” but accept this evidence as an admission that he struck the complainant.
[136] The accused points to the complainant’s immigration sponsorship documents, in which the complainant claimed that she and the accused were looking forward to getting married, and that they wanted to stay together and grow old together, and other such things that described a strong and loving relationship. These statements do not weaken the complainant’s evidence of intimate partner violence, and merely represent what any immigration applicant would know that authorities wanted to hear, and what I find the accused directed the complainant to write.
[137] Similarly, as she testified, S.S. denied to Cambrian security officers in August 2019 that the accused was hitting her, because she did not want to get him in trouble at the time. I accept that explanation on all the evidence in this case.
[138] The accused also points out that the complainant agreed that the accused did not get mad at her when she put his Cadillac in a ditch when he was teaching her how to drive. However, she explained that he did not get mad “because he was the one who made me drive the car that night.” While this was a situation in which the accused could have gotten angry but did not, that does not tell against the complainant’s claims of his abuse when she did things that did not please him. Just as victims of abuse behave idiosyncratically, so too do abusers. An occasion on which the accused controlled his temper does not render unbelievable every time that he did not.
[139] I am satisfied beyond a reasonable doubt on all the evidence in this case that the accused physically assaulted the complainant by slapping her somewhere on her body, by throwing or pushing her against the wall and causing her to hit her head, and by grabbing her hand or wrist, on occasions when he was angry or annoyed at her. I am satisfied that on occasion these contacts incidentally engaged the complainant’s hair, pulling it. I find that the slaps were the most frequent form of assault but were not done with sufficient force to leave significant marks on the complainant. I find that all of these physical interactions took place without the complainant’s consent.
[140] The complainant has testified to daily abuse, although she has not indicated how many times she suffered physical abuse on any particular day. I am satisfied that such assaults occurred on many occasions throughout the months that the accused and S.S. were together.
[141] However, I am unable to find beyond a reasonable doubt that the complainant received any blow that was intended for her sister, that any particular such blow occurred in the place or jurisdiction charged, or that the accused intentionally spat in the complainant’s face. The informational gaps with respect to these claims do not permit of proof beyond a reasonable doubt.
[142] There will be a finding of guilt on Count 2 on the indictment.
Count 4: Criminal harassment
[143] The accused is also charged with criminal harassment of the complainant during the same period of time. The allegation is that the accused engaged in threatening conduct that reasonably caused the complainant to fear for her safety.
[144] The complainant testified that the accused’s conduct, including name-calling, rude comments and slaps made her fearful of telling him that she did not want to engage in intercourse with him, even though the act was hurting her. While I have found the accused not guilty of the sexual assault charge for various reasons, I do accept that the accused regularly verbally abused the complainant and slapped her. I accept that the verbal abuse constituted threatening conduct and that verbal abuse often preceded physical violence.
[145] The complainant also detailed a threat of physical violence made to her by the accused. When S.S. felt almost suicidal because of abuse in her relationship, the accused told S.S. that he would give her a reason to kill herself, by ruining her face by punching it. He never did punch her in the face, but he did keep threatening to do so. It was the accused’s testimony that the complainant was very interested in how she looked and that she liked taking photos of herself. I accept the complainant’s evidence and find that the accused’s observations of the complainant generated that particular threat.
[146] I also look to the evidence of D.H. at Cambrian College, who described the accused as being frustrated and angry, and the complainant appearing worried, timid, and visibly shaken and crying on their visit on September 17, 2009. This visit involved the accused’s demand that they seek a refund of the complainant’s tuition money, so the complainant indeed had every reason to look worried. The accused’s anger plainly generated fear in the complainant.
[147] I am satisfied beyond a reasonable doubt that the accused regularly and knowingly engaged in threatening conduct towards S.S. that caused her to fear for her safety.
[148] Were the complainant’s fears reasonable? There is other evidence in the case that allows that assessment to be made.
[149] On two occasions, N.D. overheard the accused yelling and swearing at the complainant loudly; the accused had once yelled at N.D. the same way. N.D. explained: “When he yells … it’s really loud; really, really loud.” Once was in the Lasalle apartment, and once in the Frood Road residence.
[150] On Lasalle, there was an occasion when N.D. was in her bedroom and heard the accused yelling and shouting at S.S. in the living room or their bedroom. She did not come out of her room. On Frood, she was in her room and heard the accused being “really really loud” with the complainant on the main floor. N.D. came out of her room because the loudness had scared her. However, the accused cautioned her that it was better if she stayed out of it, and S.S. seemed “ok” so N.D. went back to her room. However, N.D. stayed close to her door and the accused kept yelling at S.S. It is evident that N.D. was fearful for S.S.’s safety, given what was going on.
[151] During the time that H.S. lived with the accused and S.S. on Frood Road, he never saw fights or anything physical happen between the two, but he regularly overheard the accused and S.S. The accused would yell at the complainant without any reason every day. H.S. described the relationship between accused and complainant as “toxic.”
[152] H.S. described how one evening he came home late and said “hi” to the accused and the complainant together as he passed by them going to his bedroom. As happened every day, the accused and the complainant had a loud argument. H.S. was in his room studying around 10:30 or 11:00 at night. On this occasion the argument occurred because the complainant had put chicken in the freezer, so it had ice on it. On other occasions, the accused often yelled at S.S. about her cooking.
[153] At the time, H.S. did not know English very well, so he decided that he should use his cellphone to record the accused “abusing” S.S., as he was not familiar with all of the English swear words that the accused was using and was not sure that he could later accurately recount the content of what he heard. Before speaking about making his recording, H.S. had testified that he could hear “them.” He did not tell the accused that he was recording it, because “he would kill me. He scared me, how he talked to everybody.” I am instructing myself not to take into account H.S.’s fears for his own safety in using his evidence. I use H.S.’s evidence only as an objective assessment of the reasonableness of S.S.’s fear.
[154] The audio recording (Exhibit 8) is alarming to hear. The male voice on it, identified by H.S. as belonging to the accused, is quite loud and every syllable lands like a blow. The language is fluently vulgar and abusive, and directed mostly at the complainant for various things, including “freezing meat”, but also at the accused’s “lazy motherfucking cocksucker” roommates, whom he orders out of his “fucking home.” There are mixed into the words the sounds of banging of unknown origin. H.S. testified that, although only the accused’s voice could be heard on the recording, he was “obviously” talking to S.S. who had been with the accused. In H.S.’s view, the complainant is not heard on the recording because if S.S. had said anything, the accused “would have killed her.”
[155] H.S. moved out shortly after this and had a disagreement with the complainant about getting his rent deposit back. He provided the complainant with a copy of the recording that he had made, but she lost her copy, and asked for it again shortly before this trial. H.S. and the complainant talked after her testimony, but not about the complainant’s evidence or the evidence that H.S. would give. In the intervening period, although they both worked at Tim Horton’s for a time, the two had not spoken very much because of the issue of the rent deposit. I accept that S.S. and H.S. did not violate this court’s order excluding witnesses. I also find that S.S., a witness, had no duty to advise that she had access to this recording before trial.
[156] Regarding Exhibit 8, the accused testified that it was simply him venting to no one in particular about the sloppiness of his housemates and the complainant, who left garbage everywhere and did not clean up after themselves or pick up feces left in the residence by the accused’s dog. “I was swearing at myself,” he claimed. Further, he explained that he did not enjoy Indian cuisine, and so had prepared his own food. On this occasion, he had left chicken to marinate, and the complainant had put it in the freezer. It was hard as a rock, and that “annoyed the hell out of” him.
[157] The accused claimed that the complainant was downstairs during his rant, communicating on WhatsApp with her family. He claimed that he made the statement: “two nights in a row you watch me do this?” to himself. Likewise, his words: “Am I going to suck my own fucking dick?” were a rhetorical soliloquy. He was deliberately loud in the recording only so that the complainant would hear him downstairs and come up to help him clean, “to show me she cared.”
[158] The accused testified that he did not generally talk to the complainant that way. He always called her “sweetie” and was respectful to her. In chief he explained that the only time he lost his temper and shouted at S.S. was because she had left the dog Molly locked on the front porch with no water. The complainant was cooking in the kitchen with N.D. at the time, and he had yelled at both of them. In cross-examination, the accused remembered another occasion or reason that he got upset with the complainant, because of “curry in the kitchen”, since he has asthma and COPD.
[159] I reject the accused’s claims that he generally treated the complainant respectfully, and that he was speaking to himself in Exhibit 8. I also find that if the complainant was not in the accused’s immediate presence for his outburst that was captured on Exhibit 8, she was close enough to hear the accused. I find that the accused intended, among other things, to convey to the complainant his anger at her and to generate fear in her. I reject the accused’s claims that he only rarely yelled at S.S. On the evidence of S.S. and H.S., as affirmed on two occasions by N.D., the accused regularly yelled at S.S. over trivial issues, and the yelling often culminated in the physical assaults that I have found took place.
[160] I accept S.S.’s evidence that the accused regularly yelled at her and called her rude names, and that he threatened to punch her in the face. I find that this conduct made S.S. fearful for her safety.
[161] I find that the accused’s yelling, such as that recorded in Exhibit 8, would reasonably cause the person at whom the diatribe was directed, in this case S.S., to fear for her safety. As the defence has pointed out, S.S. was never asked about this recording, since it only came to the attention of the Crown after S.S. had testified. But I do find, based on the evidence of H.S., that such yelling happened frequently in the home. N.D. noted such yelling only on two occasions but was herself absent from the residence for much of the time. Such conduct made both H.S. and N.D. fearful. Even without Exhibit 8, there is ample evidence that the complainant’s fears for her safety were reasonable.
[162] On all of the evidence in this case, I find beyond a reasonable doubt that on many occasions the accused knowingly criminally harassed S.S. by engaging in threatening conduct towards her that reasonably caused her to fear for her safety.
[163] The accused will be found guilty on Count 4.
Count 5: Intimidation
[164] The accused is charged with intimidating the complainant, contrary to s. 423 of the Criminal Code:
“That he…wrongfully and without lawful authority, for the purpose of compelling [S.S.] to abstain from doing anything that she has a lawful right to do, or to do anything that she has a lawful right to abstain from doing, intimidated or attempted to intimidate [S.S.] by threats that violence or other injury will be done to, or punishment inflicted upon her…”
[165] This charge relates to the text messages sent by the accused to the complainant from outside Cambrian College on September 17, 2019, after he had been ejected from there by D.H. The Crown submits that the charge is made out because the accused attempted to intimidate S.S. with the threat of calling immigration authorities to have her deported if she did not come outside to talk to him.
[166] Some essential background. According to the complainant, in the time leading up to their trip to Cambrian on September 17, 2019, the accused demanded that S.S. get her tuition money back. The complainant told him that she could not. If she took her money back, she could not stay in Canada or finish her studies. The accused told S.S. that he would call “Immigration” and say that she had stolen his money. When the complainant countered that they had a deal and that the accused gave her money in exchange for the use of her licence for his car business, the accused told her to “prove it.” He said that he was the Canadian citizen; they would believe him, and he would get her deported.
[167] As described above, the two visited Cambrian on September 17, 2019, and the accused was directed by D.H. to leave. The complainant went with D.H. into an office where the complainant continued to receive texts from the accused, causing D.H. to grow more concerned. Security and police became involved.
[168] The accused sent S.S. many messages from outside Cambrian on September 17, which have been photographed and filed as Exhibit 3. He asked her to answer her phone, to call him, to come outside so that they could make a plan. He told her to hurry up and promised that he had calmed down. He asked her what time her class was. He demanded that she answer her phone. He told her that he had the right to be upset, as she did not stand up for him and had allowed “them to talk to me like shit”. He was angry that she threatened him with “cops of all things”.
[169] He threatened that “if you keep this up I will call”. He then threatened to call Immigration Canada (“CIC”) after taxing her with choosing a class over him. He texted the complainant: “CIC phone number: 1888-242-2100”. He told her not to leave him upset and stated that “this is worst then [sic] the money thing.” About an hour later, he told her: “This is it one chance Answer me right now”. The accused texted her “Stop ignoring me.” She did not respond. She understood that the accused was threatening to call immigration authorities to have her deported.
[170] The texts also contradict the accused’s account of bundles of money directly handed to the complainant by himself and C.G. for her tuition. The accused texted S.S. complaining about money of his that she had taken from her bank account to pay her tuition:
“You always promised me youd never take my money
You’d never threaten me with jail
You’d never do what [blacked out words]
Look at you now after everything I’ve done
You steal money to go shopping on yourself you
take thousands from your account where my
money was and blow it all away at the college”
[171] The accused then some time later messaged that he was changing the locks at the house on Frood and would put her stuff outside. He told her she could take “all that money” and “shove it up your ass”. Some time later, the accused texted that he would not call immigration as long as the complainant left his life for good and did not come back. The accused continued to demand that the complainant call him, and the text messaging concludes with: “Your hurting me. I want it to stop right now or I’ll do shot [sic] to get back at you too”.
[172] The accused testified that after his ejection from Cambrian he found himself outside in the parking lot at his wit’s end and “in crisis” and on the verge of “blacking out”. The accused texted the complainant and chain smoked. He admitted that Exhibit 3 constituted his texts to S.S. He explained that he hated being ignored.
[173] Concerning immigration, the accused claimed that when he got outside, he called an immigration lawyer to find out what he could do to protect himself. and that she gave him the number for the CIC, so that he could call them and say that he no longer wanted to be the complainant’s sponsor. He testified that he threatened the complainant with the CIC so that she would give him his money back. “To a point,” the accused also intended to scare her into coming outside so that they could talk. He never actually intended to get her in trouble. But he wanted his money back and wanted to make her understand that he meant business. Without him, the complainant could not even stay in the country. He saw it as no different than telling the complainant to give him his money back or he would call the police, “but I couldn’t call police.” The accused insisted that the complainant knew that he was just “venting.”
[174] On all of the evidence, I accept the evidence of the complainant that the accused had threatened to call the immigration authorities and claim that she had stolen his money. This evidence aligns with:
a. the accused’s efforts to get the complainant to apply for residency so that he could control her as her sponsor;
b. the complainant’s testimony that the accused had agreed to help pay her tuition in exchange for her assistance to him in buying and selling cars, which testimony I accept;
c. the accused’s efforts to get back the complainant’s tuition money, heedless of the problems that might create for her student visa; and
d. the evident threats in Exhibit 3 to call immigration authorities. Without the prior threat, the CIC references in Exhibit 3 would have no force. The accused’s claim that he was warning the complainant about his intention to call and revoke his sponsorship is strained and implausible.
[175] I find that the accused intentionally made threats that “punishment” would be inflicted on S.S. in the form of deportation from Canada. I reject the accused’s claim in his evidence that he was just venting; that claim has no more substance than his emotional display while giving evidence. In his Exhibit 8 texts to S.S., he repeated more than once his threat to call the CIC. He warned her that if she kept “this” up, he would call, and “this is it”. I have no doubt that the accused intended the complainant to think that he was operationalizing his earlier threat to claim that she had stolen his money and to have her deported.
[176] The accused admitted that he wanted to scare S.S. into coming outside and talk to him. I find beyond a reasonable doubt that the accused intended to scare the complainant into coming outside in answer to his demand or face possible deportation. Since that effort was ultimately unsuccessful, it was merely an attempt at intimidation, which suffices to make out the charge. Concerning the accused’s evidence that he never intended to get S.S. into trouble, that is beside the point. I find beyond a reasonable doubt that his purpose was to get the complainant outside. Once she was outside, the accused had other means of controlling her.
[177] The accused claimed that he had lawful authority to call the immigration authorities. He explained that he was simply threatening to call the CIC to pull his sponsorship of the complainant’s residency application. To further this claim, the accused testified that he managed to find an immigration lawyer, consult with that lawyer and get the CIC number within minutes of leaving the College building. I reject that evidence as completely unconvincing. In any event, I have already found that the complainant only filled out the immigration application at the accused’s insistence. The accused would not have wasted his time threatening to call the CIC to ask them about pulling his sponsorship; to his knowledge, the complainant would not have cared. There was no lawful authority in these circumstances.
[178] On all of the evidence in this case I am satisfied beyond a reasonable doubt that the accused wrongfully, and without lawful authority, attempted to intimidate the complainant with the purpose of bending her to his will and getting her to come out to him in the Cambrian parking lot. He did this by threatening to call the immigration authorities and punish the complainant with deportation on a false claim that she had stolen his property.
[179] I find the accused guilty of Count 5 on the indictment.
Conclusion
[180] For these reasons, the accused is found not guilty on Count 1 on the indictment, the charge of sexual assault.
[181] The accused is found guilty on Counts 2, 4 and 5 on the indictment, the counts of simple assault, criminal harassment and intimidation. The findings on these three counts necessarily also result in a finding of guilt on Count 3, breach of the accused’s probation during the same period by failing to keep the peace and be of good behavior.
The Honourable Mr. Justice A.D. Kurke
Released: March 29, 2022
COURT FILE NO.: CR-1153/20
DATE: 2022-03-29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.L.
Accused
REASONS FOR JUDGMENT
A.D. KURKE J.
Released: March 29, 2022