ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 20-30000303

DATE: 20220607

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.S.A.

S. Capogreco, for the Crown

A. Farooq and S. Balcharan, for MSA

HEARD: March 28-31, April 1, 11 & 22, 2022

P.J. Monahan J.

[1] MSA is charged with seven counts of sexual assault, contrary to s. 271 of the Criminal Code of Canada[^1], (counts 1-7), two counts of assault with a weapon, contrary to s. 267(a) of the Criminal Code (counts 8 & 9), and one count of assault, contrary to s. 266 of the Criminal Code (count 10). It is alleged that MSA committed these offences between 2007 and 2018 during his marriage to the complainant.

[2] The only Crown witness was the complainant, who testified that her marriage to MSA was characterized by incidents of sexual assaults, physical assaults, and emotional abuse. Her evidence included four audio recordings which she says she made of interactions between her and MSA, as well as screenshots of a text message exchange between them (collectively, the “Electronic Records”).

[3] MSA argued that the complainant had fabricated the allegations. The only defence witness was the Toronto police officer in charge of the investigation, who briefly testified as to the manner in which he had received and dealt with the Electronic Records provided by the complainant in November 2018. The defence otherwise relied upon an extensive cross-examination of the complainant, arguing that the complainant was evasive and rehearsed in her testimony, that there were numerous inconsistencies in her evidence, and that she had a motive to lie since the criminal conviction of the accused would benefit her financially as well as in separate family law litigation involving MSA. The defence also challenged the authenticity of the Electronic Records, arguing that these records had been manipulated and/or edited by the complainant and could not be relied upon.

[4] Given that the Crown’s case relies entirely on the evidence of the complainant, the credibility of which is challenged by the defence, my findings will turn in large part on an assessment of her credibility. As will be explained in detail below, I find her evidence to be clear, internally consistent, and largely uncontroverted. I also find that the Electronic Records are authentic and are admissible in accordance with relevant and applicable rules of evidence. Although no corroboration is necessary in order to accept the evidence of the complainant, the Electronic Records powerfully corroborate certain key aspects of her viva voce testimony.

[5] These reasons are divided into six parts.

[6] Parts I and II summarize the Crown and Defence evidence.

[7] Part III identifies the main legal principles applicable in this case.

[8] Part IV sets out the positions of the parties.

[9] Part V sets out my findings with respect to the credibility of the complainant.

[10] Part VI sets out my ruling with respect to the authentication and admissibility of the Electronic Records.

[11] Part VII sets out my analysis of whether the Crown has proven beyond a reasonable doubt that MSA committed the offenses with which he has been charged.

[12] In the result, I find MSA guilty of the sexual assaults alleged in counts 1-7, the assault with a weapon alleged in count 8, and the assault alleged in count 10. I find MSA not guilty of count 9, assault with a weapon.

I. Crown Evidence

a. Complainant’s Evidence in Chief

[13] As noted above, the complainant was the only Crown witness. She testified that she met MSA sometime in 2004 or 2005 when they were both in grade 11 at the same Toronto high school. They were married in a religious ceremony in early 2007 when she was 18 years old and MSA was 19. However, MSA did not disclose this religious marriage to his family at the time. In May 2008, the complainant and MSA had a second religious marriage which was attended by both of their families. Then, in January 2009, the parties were married civilly and held a celebration at a banquet hall, to which both families and friends were invited.

[14] The complainant and MSA began cohabiting after their civil marriage in 2009, initially in rented accommodation and then with MSA’s parents. They have two sons, AA (born in July 2010), and BB (born in December 2012). In 2012, the complainant and MSA moved into a condominium apartment, and in late 2016, they moved to a single-family home in Scarborough purchased with the financial assistance of MSA’s family (the “Matrimonial Home”).

[15] The complainant says that over the course of her marriage she suffered numerous instances of sexual and physical assault by MSA. She decided to separate from him on May 25, 2018, although she did not immediately communicate this intention to him. On July 19, 2018, the complainant moved out of the Matrimonial Home and commenced a family law proceeding.

[16] The complainant testified that following her separation from MSA in July 2018, she did not immediately intend to report her allegations of sexual and physical abuse to the police. However, following a family case conference in late October 2018, she received a video from MSA’s father showing a woman being pushed into a grave and being buried alive with her dead husband. After receiving this video, she feared for her safety. On November 19, 2018, she attended at a police station and made a detailed statement to the police, resulting in MSA being charged as described above.

[17] The complainant’s evidence regarding the incidents of sexual and physical assault is summarized below in the order the incidents are referenced in the indictment.

i. Count 1: Sexual assaults allegedly committed between January 1, 2007 and November 19, 2018

[18] Count 1 encompasses the following five separate allegations: (1) an attempt by MSA to force the complainant to perform oral sex while in a motor vehicle in late 2009 or early 2010; (2) forced sexual intercourse sometime in 2011 while MSA and the complainant were living with MSA’s parents and their son AA was sleeping on a mattress at the foot of their bed; (3) forced sexual touching in late 2017 early 2018, involving MSA grinding his genitals on the complainant’s leg or genital area over her objections while their son AA was sleeping in the same bed; (4) forced sexual touching in late 2017 or early 2018, during which the complainant repeatedly told MSA to “get off me”; and (v) an incident in June 2018 where MSA pushed the complainant against a wall in the foyer of the Matrimonial Home and began touching her sexually over her objections.

[19] Details of these allegations are as follows:

1. Attempted oral sex in motor vehicle in 2009

[20] The complainant says that sometime in 2009, while she and MSA were travelling in his car, he suddenly grabbed the back of her head with his right hand and began pushing it towards his groin. She asked him what he was doing and attempted to resist, saying that it was not appropriate to engage in such acts in a car. He replied that he wanted her to perform oral sex on him and continued attempting to force her head towards his groin area. The complainant believes that her face touched MSA’s groin but does not recall if his penis was outside of his pants. The complainant’s recollection is that the car was not moving as this was taking place, although she cannot recall whether the vehicle was parked or whether they were simply stopped at a red light. Eventually MSA ceased his efforts without actually forcing the complainant to perform oral sex.

2. Alleged forced sexual intercourse in 2011

[21] The complainant says that sometime in 2011, while she and MSA were living with his parents, he forced her to have sexual intercourse over her objections. At that time, their son AA was sleeping in their bedroom on a mattress at the foot of their bed. One night, while AA was asleep, MSA attempted to initiate sex. The complainant said she told MSA she did not want to have sex because it might wake up their son and also because his parents might hear them. The complainant says that MSA ignored her repeated requests to stop, saying he “needed it”. He was touching her breasts and genital area and eventually forcibly removed her underwear and penetrated her with his penis. After MSA ejaculated, the complainant says she was upset and crying and felt an overwhelming sense of powerlessness.

3. Alleged forced sexual touching in late 2017 or early 2018 while their son AA was asleep in the same bed

[22] The complainant says that sometime in late 2017 or early 2018, she was sleeping in the master bedroom of the Matrimonial Home with their son AA. The complainant says that she woke up to find MSA ‘spooning’ her from behind and touching her breasts and genital area. She told him to stop but he ignored her. He was saying “please, I need it”, and began grinding his genitals on her leg and genital area through their clothing. Eventually, AA woke up and wanted to use the bathroom, at which point MSA ceased the grinding and sexual touching. The complainant took AA to the bathroom while MSA left the bedroom.

4. Alleged forced sexual touching in late 2017 or early 2018 during which time the complainant told MSA to “get off her”

[23] The complainant says that sometime in late 2017 or early 2018, while she was asleep in the master bedroom of the Matrimonial Home, she was awakened by MSA who was moving on top of her and kissing her. She told him repeatedly to stop but he continued, asking her when he was going to “get this”. She continued to insist that he stop, telling him repeatedly to “get off me”. Eventually he stopped.

[24] The complainant says that she managed to record part of this alleged assault. The recording, which lasts one minute and seven seconds, was identified by the complainant and played in court. On it, a female can be heard repeatedly telling a male to stop and to “get off me”. At one point the female addresses the male by name and says “stop”. The male can be heard saying “when am I gonna get this though”, “please, hug me”, “please give me a hug”. There is also a good deal of background rustling noise throughout the audio. The female voice says that she has asked him “five, six, ten times”, and then says “Ow”. Eventually the female voice says “get off please, you’re disrupting my sleep” and the recording ends. The complainant testified that the voices on the recording were hers and MSA’s, and that she did not make any changes or alterations to the recording.

5. Alleged forced sexual touching in foyer of matrimonial home in June 2018

[25] In June 2018, while the parties were working in the kitchen in the Matrimonial Home, the complainant says that MSA approached her from behind and tried to initiate sex. She told him she did not want to be intimate and she continued working. The complainant says that MSA pushed her against the wall in the foyer just outside the kitchen and began touching her all over her body, including her breasts and between her legs. Her back was to the wall and he was in front of her. The complainant says she repeatedly told MSA to stop and that she did not want to be touched. Eventually he stopped and walked away, saying that the complainant had something “stuck way up there and you would need pliers to get it out.” The complainant does not recall the precise time of day when this incident occurred but says that it was during daylight hours and the children were playing upstairs at the time.

ii. Count 2: Alleged forced sexual intercourse in restaurant office between September 2009 and March 31, 2010

[26] The complainant says that in late 2009 or early 2010, while she was a student at York University, she would help out at a restaurant owned by MSA’s family. While there, she would sometimes work in a small office located just off the kitchen.

[27] One day, while she was working in the restaurant office, MSA came in, closed the door, and began touching her body, including her breasts. She objected saying she did not want to be intimate, particularly since the kitchen staff was working just outside the office. MSA told her that she was always tired when she got home and that she should ‘just take care of him now’. MSA pushed the complainant over a desk and up against the wall, lifted up her skirt and penetrated her with his penis from behind. Eventually he ejaculated and left the office. The complainant was very upset and crying. Eventually she was able to compose herself and left the office.

iii. Count 3: Alleged forced sexual intercourse in 2012

[28] In early 2012, the complainant was a student at York University and she and MSA were living with MSA’s parents. One evening, the complainant was working late at the University on an essay for a French course. MSA was at home with their son AA, who was asleep. The complainant says that MSA was upset because she was not home to take care of the children, and he told her that she was shameless for being out so late at night. The complainant was so upset by the conversation that she accidently deleted her French essay from the computer and later had to ask her professor for an extension. The complainant asked MSA to come to the University and pick her up but he refused and told her to take a taxi home.

[29] The complainant says that she did take a taxi and arrived home after midnight. She went upstairs to check on AA, who was sleeping on a mattress on the floor at the foot of their bed. MSA was insulting her, calling her shameless, saying she didn’t have modesty, and commenting that his parents already had formed a bad impression of her and that she was making it worse by coming home so late. AA woke up briefly and MSA told AA that “the bitch missed you.”

[30] The complainant lay down beside AA to help him get back to sleep. The complainant said that MSA was angry and, in an effort to provoke a response from her, deliberately stepped on her back as she was lying beside AA. The complainant believes that MSA stepped on her back deliberately rather than accidentally because the room was partially lit by the bathroom light, which was on, and there was sufficient room for MSA to have easily walked past AA’s mattress without stepping on her.

[31] Once the complainant finished settling AA and got into their bed, MSA attempted to be intimate with her. She said she didn’t want to be intimate because MSA had just insulted her. He said the least she could do was give him a “hand job”. She refused and MSA fell asleep. The complainant said she felt guilty for having refused to have sex with MSA and massaged his legs. Eventually she fell asleep as well.

[32] Sometime later, the complainant woke up and became aware that MSA was trying to initiate sex with her. The complainant testified that MSA was being rough with her and handling her physically. The complainant was caught off guard and was upset by the fact that MSA had stepped on her back earlier. She was also concerned that AA would hear them having sex. The complainant says she told MSA to stop but he refused. MSA was on top of her and grinding his groin on her. The complainant was wearing a nightgown and underwear. MSA reached under her nightgown, pulled down her underwear and penetrated her with his penis. The complainant said that she asked MSA not to release inside of her, but he didn’t listen and eventually ejaculated.

[33] Afterwards, the complainant got up out of bed to clean herself up. She was upset and crying. The complainant said she sometimes jotted down notes because she was concerned that MSA would later deny anything happened and blame her. That night, she sent two emails to herself with some notes about what had happened. The date of these emails was March 15, 2012.

iv. Count 4: Alleged forced sexual touching in the bedroom of the Matrimonial Home between September 1, 2017 and March 31, 2018, interrupted by their son AA coming into the room

[34] The complainant says that one afternoon in late 2017 or early 2018, she had a headache and wasn’t feeling well. She went upstairs and lay down on the bed in the master bedroom of the Matrimonial Home. MSA came into the room, lay down beside her, and started touching her all over her body through her clothes. The complainant told him to stop touching her. MSA ignored her and was putting his hands inside her pants and underwear and was touching her vagina with his fingers. Eventually she heard one of their children come into the room, which caused MSA to stop.

[35] The complainant says that she had her phone nearby and was able to record part of this interaction. The complainant identified the recording, which runs 51 seconds, and it was played in court. On it, a female voice can be heard repeatedly saying “can you please stop touching”, “I don’t want to be touched”, “you’re not listening.” After about 40 seconds, the sound of a door creaking open can be heard and a child’s voice says “if you’re looking for your phone, it’s downstairs”. A male voice says “just plug it in” and the recording ends. The complainant identified the female voice as hers, the male voice as MSA’s, and the child’s voice as AA’s. She said she did not alter or edit the recording.

v. Count 5: Alleged forced sexual intercourse in March 2018

[36] One night in March 2018, the complainant went to bed in the master bedroom of the Matrimonial Home. She had not yet decided to separate from MSA and they were still sleeping in the same bed, although that evening MSA stayed up later than her and the complainant fell asleep on her own.

[37] At some point, the complainant was awakened by MSA touching her and moving his body on her. He was touching her on her breasts and genital area, and was grinding his penis on her body. The complainant asked MSA what he was doing and told him to stop. MSA said he “needed it” and kept going. She was trying to push him off and MSA hurt the nipple on her breast, although he said he did so accidentally. Eventually MSA pushed down her underwear, penetrated her with his penis and ejaculated. Afterwards she was very upset because she didn’t want to get pregnant in this way. She went downstairs and watched television before going to sleep.

[38] The next morning, the complainant and MSA were downstairs in their kitchen. MSA offered to make a coffee for the complainant. When she refused the offer, MSA said that he was trying to be nice to her and that she was “a bitch”. The complainant said she tried to explain to MSA the impact of his forcing himself on her, while MSA claimed that as his wife she had to compromise and make herself available to him.

[39] The complainant says that she was able to record part of this conversation. The audio-recording, which runs just over five minutes, was identified by the complainant and played in court. It begins with a female voice saying, “that’s not Hadith”. In her evidence, the complainant said that this was her attempting to explain to MSA that ‘Hadith’, which refers to religious tradition, does not permit MSA to force him upon her sexually. The female voice on the recording also says that the male speaker forced himself on her and took what he wanted and has no right to lecture her. She also complains that the male was rough with her and says he cut her nipple. The male says he already apologized for that. The male can also be heard saying that “this is my perspective” and that there needs to be a compromise. The complainant identified the participants in the recording as herself and MSA, and said that she did not edit or alter it.

vi. Count 6: Alleged forced sexual touching in June of 2018 while their children were asleep in the same bed

[40] The complainant testified that one night in June 2018, she was asleep in the bedroom in the Matrimonial Home with their two children. She said during this period of time MSA would not leave her alone physically and so she would sometimes have the children sleep with her in order to deter MSA from initiating sex with her. On this particular night, she was sleeping in the middle of the bed with one child on each side of her.

[41] The complainant says she woke up and found that MSA was in the bed touching her all over her body. She was on her back and MSA was on top of her, grinding his genitals on to her leg and pelvis. The complainant says she asked MSA to stop multiple times because she did not want the children to wake up. She does not remember if MSA said anything, but he refused to stop and continued grinding on her until he ejaculated into his clothing. She realized he had ejaculated because she could hear him making noises and then he stopped moving.

vii. Count 7: Alleged forced sexual touching in July 2018

[42] The complainant testified that in late May 2018, she had decided to separate from MSA and that from that point onward there was no consensual sex between them. By July 2018, she had begun sleeping either in the children’s bedroom or in a separate guest bedroom in order to avoid MSA. The complainant didn’t know if MSA was aware of her intention to separate prior to her leaving the Matrimonial Home.

[43] On July 6, 2018, the complainant says she was sleeping alone in the guest bedroom while their two children were asleep in their own room. She woke up to find MSA in the bed with her touching her all over her body and grinding his pelvis on her. She told him to stop and pushed him as hard as she could in an attempt to get him off of her. She says he told her to stop fighting and said please, please, he needed it. He continued grinding on her until he ejaculated into his clothing. He then kissed her on the forehead and said thank you, got up and went to take a shower.

[44] The next morning, the complainant dropped the children off at summer school and drove to a car dealership in order to get her car serviced. MSA texted her on her phone and asked her if she was okay. She replied that no she wasn’t good, and she was insulted by the question after everything he had done. She said that she had talked to him about consent before, that ‘no means no’, and that when she tells him to stop he needs to stop. His response was that he was not trying to force her to do anything but that he knows what he is doing will help them. He said that she won’t give him a silly green signal to say go. He also told her that he is trying to be nice to her by suggesting going on a trip or taking her to dinner but she keeps rejecting everything.

[45] The complainant provided the police with a copy of screenshots of a July 6, 2018 text message exchange. She identified a copy of the text message exchange for the court, and said that she and MSA (described as “Saeed” in the screenshots) were the two participants in the exchange.

[46] The text exchange commences with “Saeed” asking “U k?”. The user of the phone replies “no I am not good … and it is insulting of you to ask that.” The user of the phone goes on to say:

“Saeed, I have told you numerous times that I do not want to be intimate with you. Throughout our marriage you have violated, degraded and hurt me. However, you persist in forcing yourself on me when I say no. How do you have the audacity to ask me how I am after you grinded on me even though I said NO GET OFF and tried to push you off ??... I am going to tell you one last time NOT to touch me in any way. What this means is: stop trying to force me to be intimate with you; stop touching me, grinding on me or groping me; just stop forcing yourself on me and learn already that no actually means no!!...”

[47] “Saeed” replies as follows:

OK this would need further discussion.

I have been nice and reasonable. I am trying to solve issues. Trying to be as patient as possible. Trying to meet your needs and whatever helps us recover.

But if you make it extremely difficult

I tried to even take you out for dinner etc., recommend a few things. And you keep darting the other way.

So help me, help us.

I am not trying to “force” or anything on you at any time.

But I do understand that it will also help us. And you will not give me some silly green signal to say “go”

Honestly trying to help. But please come forward yourself and try as well.

I kinda feel two things: 1. You don’t ever want to make it work, live in the past, remind me of my mistakes while not explaining the entire situation. Be punitive as a result. Can’t let go. And so you DON’T actually want anything to work out really, and want to strive towards failure.

Or maybe

2. You will recover on your own. Maybe THT take years or longer. And we are expected to live like this. Absolutely no input or effort from you required, just you are waiting until you eventually overcome stuff… Which honestly does not happen with a passive approach

So pls work with me here and not against me -- if we are sincere, will get through.

I know you are not ready for a small trip even. At least going for dinner or a small act like that

Like I requested last week and it got delayed to this week

But it’s actually moving the other way…

[48] The user of the phone replies as follows:

Saeed, listen carefully: DO NOT touch me again. If you force yourself on me in any way or touch me in a way that I am not comfortable with, I will involve a third party. I am being very serious.

[49] The complainant testified that her reference to “involving a third-party” was intended to convey to “Saeed” that if he did not alter his behaviour, she would go to the police.

[50] “Saeed” replies as follows:

Since you are making a hug sound like a harassment case, then better to stay away.

Can we talk?

Pls give me a time where we can have our talks, discussions, counselling sessions

If you can let me know that soon. ThTll B nice.

Let us decide on an action plan by Sunday

And discuss is around 2 PM

Sound good?

Please confirm

Also, there is a tenant interested. He will be sending his papers soon. When do you want to review them?

Hey let me know and I can give you a call today

[51] The user of the phone replies as follows:

Grinding against me in bed until you ejaculate is NOT a hug. I am going to be clear again, stay away from me. No touching at all. I am not going to go back and forth on this. You know what you did this morning; I know what you did. This is not an isolated incident. Your failure to address your behaviour is deeply troubling. I am being very clear to you when I say your advances and touches are unwanted. Also, let me be clear, what you are doing to me is not ‘harassment’

I am not comfortable being around you. I would appreciate if you would give me some space. I suggest you stay at your parents place for a couple of weeks.

[52] “Saeed” replies as follows:

Oh, but ur ok without kids>

Like y? What happened? Y u sooooo upset.

[53] The complainant testified that she interpreted these final statements as a threat on MSA’s part to separate her from the children if he went to stay at his parent’s home, as she was requesting.

viii. Audio recording where the complainant says she is “not over it”

[54] The complainant testified that sometime in 2018, she recorded another conversation between herself and MSA. She couldn’t remember exactly how the conversation started, but in the discussion, MSA was talking about “working together through things”, figuring things out, being genuine, and treating people with respect. She remembers commenting that it was ironic for him to be saying these things, which sound great, but that his actions were completely different. She also remembers MSA being upset that she raised the subject, but that he apologized and said “sorry”. She remembers being very emotional during the conversation, and that she explained to MSA that there was a psychological as well as a physical impact on her from his behaviour.

[55] The complainant identified the audio recording and it was played in court. On the recording, which runs for one minute and 13 seconds, a woman can be heard speaking in a raised voice, saying “it’s ironic for you…because it’s the same way when, you know, you’ll force yourself on me and then you’ll be like, you have to do this, you have to be a good wife.” A male voice says “I don’t need to listen, you said this time and again, okay? Sorry.” The woman says she is “not over it and I’m not going to be over it”, and that “you can’t tell me, and it’s not your choice to tell me that I shouldn’t be affected by it…The more you keep denying it, the more you’re making it worse.” The male voice says, “No. I’m sorry, sorry…I’m not denying it.” The complainant testified that she was the female and MSA was the male speaking on this recording, and that she did not alter or edit it.

ix. Count 8: Alleged incident with knife in November 2010

[56] The complainant testified that sometime in November 2010, she and MSA were in the kitchen at his parents’ house. MSA might have been cooking his breakfast, but the complainant does not recall anything being on the counter at the time. She says that she and MSA began arguing about something when he reached over and grabbed a large knife that was in a container on the counter. MSA stepped toward her and started to wave the knife at her. He also told her to watch out and shut up.

[57] The complainant says that she was afraid of MSA and ran upstairs to tell his mother about the incident. She explained what had happened to MSA’s mother, who told her that this is what happens between a husband and a wife and that it is normal when one person is angry that the other has to be calm. The complainant says she was dumbfounded and confused by this response and went to her bedroom to try to process what had happened. She later told MSA’s older brother what had happened. The older brother sent the complainant an email referencing some sort of religious counselling.

x. Count 9: Alleged touching of complainant’s foot with tire of car in late 2009 or early 2010

[58] The complainant testified that in November 2010, she and MSA got into an argument as they were leaving his parent’s house. The argument carried on outside on the driveway of the house. MSA got into the car, which was facing towards the garage of the house, while she was standing near the front bumper of the vehicle. The driver’s window was down and they were continuing to argue. Suddenly, the car accelerated forward and touched one of her feet. The tire of the car did not fully drive over her foot but it did put pressure on it.

[59] The complainant thought that MSA was “crazy”, and she yelled at him. He got out of the car and said that it was an accident and that the complainant was being a “drama queen”. The complainant removed her wedding rings and threw them on the ground. MSA found one of the rings and threw it at her, hitting her on the chest. There was snow on the ground at the time but sometime later, after the snow had melted, a neighbour found the rings. MSA said she was not injured from the tire having touched her foot and she did not seek medical attention.

[60] When the complainant was questioned further, she indicated that this incident involving the car actually took place in late 2009 or early 2010, rather than November 2010 as she had earlier testified. She explained that she recalls the date because there was some snow on the ground as well as some patches of grass, and that her wedding rings were initially lost in the snow and were only found later, once the snow had melted.

xi. Count 10: alleged slap on face during argument over use of car in 2012

[61] The complainant says that sometime in 2012, while they were living with MSA’s parents, she had a placement as a student teacher at a school that was some distance away from the parents’ house. At that time, the complainant was driving a Mazda minivan, while MSA had a Mitsubishi that would frequently break down. One morning, as she was about to leave for her placement, MSA told her to give him the keys to her Mazda because he needed it to go to work. The complainant says she told MSA that his work was very close to where they were living and that he had other ways to get there. The complainant was holding the keys to the Mazda in her hand and MSA told her to give him the keys. The complainant says that MSA told her that everything they had was his anyway and that he could take her car anytime he wanted. When she refused, MSA started wrestling with her and pinching her in an effort to get the car keys out of her hand. He slapped her across the face, took her car keys and walked off. The complainant says the slap hurt her and caused her to cry.

b. Complainant’s Cross-examination

[62] Since the complainant was cross-examined for almost four days, it would not be practical to attempt to recount the entirety of the cross examination. Rather, I set out below a summary of the main areas or topics explored.

i. Early relationship and marriage

[63] The complainant was questioned about her early relationship with MSA leading up to their marriage. The complainant indicated that she met MSA in grade 11 as they had the same math class. She would have been 16 or 17 years old at that time. The complainant said that she and MSA were not in a romantic relationship while they were in high school. The complainant acknowledged that at the time she met MSA, she had a different boyfriend.

[64] The complainant testified that after they graduated from high school, she and MSA kept in touch through social media and texting. MSA came to visit her at her family home a few times, but they did not go out on dates alone prior to marriage. The complainant says that prior to their marriage, she did not know MSA very well. When asked why she married him, the complainant said that MSA was pressuring her to get married, arguing that it was sinful to be talking and texting each other if they were not married. However, the complainant agreed that she got married of her own free will. She also thought MSA was religious and God-fearing and that he would not do anything to hurt her.

[65] The complainant was asked about the circumstances of their religious wedding in 2007. The complainant stated that her mother had raised certain objections prior to the wedding, saying that the complainant was too young and was rushing into marriage. Despite her mother’s concerns, the complainant decided to proceed anyway, and her mother made best efforts to support her decision. The 2007 religious ceremony took place at the complainant’s parent’s home. MSA said that his parents would not agree to the wedding and so he decided not to tell them or invite them to the ceremony.

[66] After the 2007 religious marriage, the complainant says she spent time alone with MSA and began to get to know him. At some point, he informed his parents of their relationship and in 2008, they had a second religious wedding. This ceremony took place at a mosque and both of their families were invited and attended.

[67] In 2009, the complainant and MSA were married civilly, and the marriage was registered in Ontario. A celebration was held at a banquet hall, involving both of their families and friends.

[68] The complainant was asked why, if MSA was so abusive, she married him three times. The complainant said that as far she was concerned, she was married to MSA from 2007 onward. By the time their marriage was registered civilly in 2009, the complainant says she felt violated, degraded and not respected but she was confused about what was happening in the relationship.

ii. Relationship following marriage

[69] The complainant was asked where they had lived in the years following their marriage. The complainant described how they had initially lived a good deal of the time with MSA’s parents, followed by their move to a condominium in 2012, and then into the Matrimonial Home in 2016.

[70] The complainant said that she and MSA first separated following an argument in 2010, when she went to stay with her mother. She was pregnant at the time with their first child, and they subsequently reconciled. They also separated in 2012 (on this occasion because of difficulties the complainant experienced with MSA’s brother), and again in 2016 due to her concerns over MSA’s abusive behaviour. However, the complainant said she found it very difficult to actually leave the relationship and each time agreed to get back together with MSA. The complainant acknowledged having received substantial financial support from MSA’s parents in order to purchase the condominium as well as the Matrimonial Home.

iii. Education and work history

[71] The complainant described how she had graduated from York University with undergraduate degrees in psychology and education. Subsequently, she worked as a supply teacher, before securing full-time employment as a teacher in 2015.

[72] The complainant said that MSA had pursued a degree in finance or economics at Ryerson University. Following his studies at Ryerson, MSA wrote examinations that are required in order to become a chartered financial analyst. The complainant said that MSA failed these exams a couple of times. These exams can only be written once a year and while MSA was studying, he was not employed and was receiving employment insurance. The complainant denied having belittled MSA for having failed these exams, nor did she hit him. The complainant said that she was afraid of MSA. She was also resentful about having to take primary responsibility for their children even though she was also in school, while MSA’s CFA exams were well off in the future. The complainant said that MSA called her lazy and useless even though she was working full-time, and he encouraged her to quit her job.

[73] The complainant was asked whether she had ever attempted to become a police officer. She said that becoming a police officer was “sort of a dream”, but it was not something that she had ever pursued actively. The complainant said that her family commitments as well as her career as a teacher meant that pursuing a career as a police officer was impractical. The complainant acknowledged that sometime after 2016, she did attend an information session about becoming a volunteer auxiliary police officer. She also acknowledged having had corrective eye surgery, and that her interest in becoming a volunteer for the Toronto Police did play a part in her decision to have this surgery. However, she said that she also decided to have the corrective eye surgery because she had a very strong eyeglass prescription, was tired of wearing glasses, and had contracted eye infections from wearing contact lenses.

[74] The complainant also acknowledged having attended a two-week gym class in 2016 that included instruction in kick-boxing, along with cardio work.

[75] The complainant acknowledged that in September 2018, she enrolled in a Master’s program in Education, Counselling and Psychotherapy at the Ontario Institute for Studies in Education (“OISE”), graduating from the program in August 2020. The complainant was asked whether, as part of that program, she took courses in sexual abuse or sexual assault. The complainant said that the courses dealt with theories and techniques of counselling, ethical considerations as a therapist, group therapy, and couples’ therapy. The courses were not about abuse or sexual assault. The complainant said that in early 2020, she worked as a mental health counsellor at a women’s shelter. While there, she provided support to women who had been in abusive relationships.

iii. Alleged attempt to force oral sex in car in 2009 (Count 1)

[76] The complainant was asked about the timing of the alleged incident where MSA had tried to force her to perform oral sex on him while they were driving in his car. She was asked whether this might have taken place in 2010, rather than 2009 as she had testified. The complainant said that her recollection was that this particular incident took place in 2009, but that MSA had attempted to force her to perform oral sex on more than one occasion and so the same thing might also have happened in 2010. The complainant also said that MSA may have tried to force her to perform oral sex in the car prior to 2009.

[77] The complainant was asked whether the car was moving at the time of this alleged incident. The complainant said that she believes that the car was stopped, perhaps at a red light, when MSA suddenly grabbed her head with his right hand and pushed it towards his crotch. The complainant was shown a transcript from her evidence at the preliminary inquiry where she had said that the car was moving at the time of this incident. The complainant said that she recognizes that her evidence at the preliminary inquiry was that the car was moving and that is what she thought at the time. However, her best recollection now is that the car was stopped.

iv. Alleged forced sexual intercourse in restaurant office in 2009 (Count 2)

[78] The complainant was asked whether there was a window in the door to the office in the family restaurant where she says she was sexually assaulted in 2009. The complainant said she did not remember if the door had a glass window but that, if it did, it would have been covered up so persons outside the office could not see inside. The complainant said it was a very small office right off the main kitchen in the restaurant, and that there was at least one person working in the kitchen at the time of this alleged assault. The complainant was asked whether that person might have heard them if they were having sex in the office. The complainant said that she was concerned about this possibility and that this was one of the reasons she did not want to have sex with MSA in the office. However, the complainant said that it was unlikely that the staff person would have opened the door to the office since this was a space used by managers of the restaurant rather than employees. Her recollection is that on this particular occasion, neither MSA’s father nor his brother were at the restaurant. She also believes that there was a lock on the door and that MSA may have locked it when he came into the office.

[79] The complainant was shown photographs of a kitchen and a small office and asked whether these were photos of the location where she was assaulted. She said it looked similar however she could not be certain that this was in fact the same office, since it had been 10 years since she had been there.

v. Alleged forced sexual intercourse in 2012 (Count 3)

[80] The complainant was asked about how she was sure that MSA deliberately stepped on her back when she was lying on a mattress beside their son AA in their bedroom in early 2012. The complainant replied that MSA had ample space to step around her if he had wanted to, and there was some light in the room. She also said that MSA was angry with her for coming home late and had been calling her shameless.

[81] The complainant said that she had massaged MSA’s legs after he fell asleep because she felt guilty for having refused to be intimate with him. However, she says that he did not wake up at that point and that there was nothing sensual about it as she was massaging below his knees.

[82] The complainant’s evidence was that she was wearing a nightgown and underwear when MSA assaulted her. She was shown a transcript of her evidence at the preliminary inquiry where she had said she was wearing pants and underwear, and asked to explain this inconsistency. She acknowledged giving that evidence at the preliminary inquiry but said that she remembers now that she was wearing a nightgown. She also said that MSA did not remove her nightgown but merely reached under it and removed her underwear.

vi. The complainant’s recordings of interactions with MSA

[83] The complainant was cross-examined extensively on the manner in which she recorded her interactions with MSA, and how she subsequently provided those recordings to the police.

[84] The complainant said that she made these recordings using either her iPhone or a recording device which she had purchased some time after 2016. The complainant was shown a transcript of her evidence from the preliminary inquiry in which she had said that she had purchased the recording device in 2018. The complainant said that her best recollection now is that she purchased it sometime after 2016 but is not sure of the exact year.

[85] The complainant said that in addition to the four audio recordings that were entered as exhibits at trial, she recorded MSA on a number of other occasions. However, she deleted recordings from instances where nothing significant happened.

[86] The complainant said that sometime between May 25, 2018 and her departure from the Matrimonial Home in July 2018, she transferred the audio recordings from her iPhone or the recording device onto a computer or a USB key. She could not recall exactly how she had made this transfer, although she recalls having experienced some difficulty in transferring the recordings. She denied having altered or edited the recordings in any way.

[87] The complainant testified that shortly before she left the Matrimonial Home in July 2018, her computer broke down and she was not able to access any data on the device. She went to an electronics store, Canada Computers, to see if they could fix it. Subsequently she looked online and hired someone who advertised that they could recover data from a computer. This individual came to her apartment, picked up the computer, successfully recovered the data, and returned the device to her. She paid this person about $1000 dollars for his services but does not recall his name.

[88] The complainant also said that she purchased a new computer in September 2018, when she was starting her Master program at OISE.

[89] The complainant stated that when she attended at the police station in 2018, she brought a USB key containing copies of the audio recordings of MSA, as well as the screenshot of the July 6, 2018 text message exchange. She provided the USB key to a police officer. She is not sure if the police officer returned the USB key to her or whether she still has it now.

vii. Alleged forced sexual touching in late 2017 or early 2018 interrupted by their son AA (Count 4)

[90] The complainant said that the forced sexual touching that had occurred in their master bedroom and that was interrupted by their son had taken place in late 2017 or early 2018, prior to her decision to separate from MSA that she made on May 25, 2018.

[91] The complainant was asked how she had managed to record this alleged sexual assault. The complainant said she was lying on the bed in the master bedroom and her phone was either under her pillow or on a nightstand beside the bed. She said that once she woke up and realized that MSA was assaulting her, she was able to grab her phone and begin recording. She also explained that it was not necessary to enter a password on the phone in order to start recording. She agreed that MSA did not ask her why she was recording, but also said that she did not have the phone in her hand. She said that the voices on the recording were hers, MSA’s and their son AA’s.

[92] The complainant says that she believes there was a lock on the master bedroom door, but the door was not locked. The complainant said that when AA came into the room, MSA was still in the bed with her. However, she also believes that by the time the recording ended, MSA had gotten out of bed. The recording was replayed and the complainant was asked whether she could hear the sound of MSA getting out of bed. The complainant said she could hear a rustling sound.

[93] MSA’s counsel right-clicked on the file of this recording, and accessed the ‘details’ tab under the ‘properties menu’ of the file. This showed the “media creation” date as being June 22, 2018, whereas the complainant had said this incident took place prior to May 25, 2018. The complainant said from what she remembers, the date of this incident was late 2017 or early 2018. She said that she cannot explain why the media creation date is shown as June 22, 2018. She says it is possible that June 22, 2018 was the date of the assault, but she said it is a fact that the assault occurred.

[94] The complainant was asked whether she had edited, altered, or spliced the audio recording in any fashion at all. The complainant replied that she did not know how to edit or alter audio files, and that she had not done any of these things, nor did she have anyone else do any of those things. She said she provided the complete recording she had made to the police.

viii. Recording of conversation in kitchen, the morning after alleged forced sexual intercourse in March 2018 (Count 5)

[95] The complainant was asked when she had recorded the conversation between herself and MSA in the kitchen of the Matrimonial Home, the morning after the alleged forced sexual intercourse in March 2018. The complainant said she couldn’t recall the precise date, but she confirmed that she had recorded the conversation in March 2018.

[96] Defence counsel accessed the ‘details’ tab under the ‘properties menu’ of the audio file, which showed the “media creation” date as being September 25, 2018. The complainant was asked whether she had taken different conversations she recorded with MSA, and spliced them together to make a recording that suited her. The complainant said that prior to giving them to the police, she had to transfer the files multiple times, either to her laptop, iCloud or a USB key. She said that she does not know how to edit or manipulate such recordings, and that she provided the police with the complete recording that she made of this conversation.

ix. Recording of alleged forced sexual touching in late 2017 or early 2018 when complainant told MSA to “get off me” (Count 1)

[97] The complainant was asked when she recorded the incident in which she says she told MSA to “get off me”. She said she recorded it in late 2017 or early 2018.

[98] Defence counsel accessed the ‘details’ tab under the ‘properties menu’ of the audio file, which showed the “media creation” date as being June 24, 2018. The complainant acknowledged the date shown on the media creation tab, but reiterated that she didn’t know how to edit or create or splice recordings, she is not tech savvy, and she did not in any way edit or alter the audio file. She said she is certain that the incident happened as she recorded it, and that to the best of her knowledge it occurred in late 2017 or early 2018.

x. Audio recording where the complainant says she is “not over it”

[99] The complainant was asked about the recording she made in which she said, amongst other things, that she was “not over it”. She was asked whether it was possible that she and MSA were discussing a topic other than sexual assault, such as their children or finances. The complainant replied that it was clear from the reference to MSA “forcing himself on her” that they were discussing forced sex, rather than any other subject. The complainant also says that MSA acknowledges that the complainant has raised the subject “time and again”, that subject being the need to obtain her consent and not sexually assaulting her.

[100] Defence counsel pointed out that the “media creation” date on the ‘properties menu’ for this file showed the media creation date as being September 23, 2018, after the couple had separated.

xi. Complainant never recorded MSA penetrating her or ejaculating

[101] It was put to the complainant that she had never recorded any instances where MSA had penetrated her or ejaculated. The complainant responded that in the recording of the alleged assault in late 2017 or 2018, which was interrupted by their son AA (i.e. Count 4), MSA had been penetrating her with his fingers. The complainant was asked whether in her previous testimony she had mentioned that MSA was penetrating her with his fingers during this incident. The complainant replied that she had said the MSA was touching her vagina with his fingers. The complainant also acknowledged that she did not record an incident where MSA had penetrated her with his penis.

xii. Alleged forced sexual touching in June 2018 while their children were sleep in the same bed (Count 6)

[102] The complainant was asked about the incident in June 2018 in which she alleges that MSA sexually assaulted her while their children were sleeping in the same bed. She was asked whether she recalled the day in June 2018 on which this alleged assault occurred, and the complainant said she could not recall. It was pointed out to her that in her July 2018 Family Court Application she had said that this incident occurred on June 7, 2018. The complainant was asked how she had identified this particular date, and she replied that there would have been something that helped her to pinpoint it, but she could not recall now what that was. The complainant was asked why she did not attach any documents to her Application verifying the date of June 7, 2018. The complainant said that her lawyer did not ask her to file any documents referencing that date.

[103] It was also pointed out to the complainant that in her Family Court Application, she described this alleged assault as occurring “in front of the sleeping children”, whereas in a subsequent affidavit filed in the same proceeding she said that it had occurred “in the presence of the sleeping children”. She was asked whether she had used the words “in front of the sleeping children” in order to inflame the judge reading her Application. The complainant said that in her opinion there was no difference between the two descriptions, since “in front of” and “in the presence of” meant the same thing.

[104] The complainant was also asked how she knew that MSA had ejaculated if they were both wearing clothing. The complainant said that she could tell because of the noises that MSA made when he ejaculated. She also said that MSA was wearing night clothing and that she could feel the wetness through his clothing after he ejaculated.

xiii. Alleged forced sexual touching in July 2018 (Count 7)

[105] The complainant was asked about the alleged forced sexual touching that she says occurred on July 6, 2018. In particular, she was asked why, if she had decided on May 25, 2018 to separate from MSA, she had not communicated that intention to him. The complainant said she did not feel it was safe for her to do so. She agreed that she knew how to dial 911.

[106] The complainant was asked if she had locked the door to the guest bedroom where she was sleeping that night. The complainant said there wasn’t a lock on the door and, even if there had been, she wouldn’t have locked it in case her children needed to come to her at some point in the night. The complainant was also asked why she did not have her children sleeping with her that night in order to protect her from MSA’s unwanted sexual advances. She replied that the bed in the guest bedroom was smaller and, in any event, she had realized from earlier incidents that, even if she had the children sleeping with her, this would not prevent MSA from assaulting her.

[107] The complainant was asked whether she said anything to MSA once he started sexually touching her. She said she told him to stop and get off of her. The complainant was asked whether MSA had heard her telling him to stop. The complainant said that MSA had heard her, he just did not listen. She said not only was she telling MSA to get off and stop multiple times, she was also trying to push him off of her. As she was telling him to stop and pushing him away, MSA was on top of her pushing his body against her and saying “please, I need it”. This continued for a few minutes until MSA ejaculated. He got up, kissed her on the forehead and said thank you, and left the room.

[108] The complainant was asked whether she had attempted to record this incident. She said that she was thinking during the assault that she needed to get her phone to record what was happening, but she was not able to reach it.

[109] The complainant was asked why she had chosen to communicate about the incident the next morning via text message rather than speak to MSA about it directly. The complainant says that she did not confront MSA about this incident in person and she does not recall having a detailed face-to-face conversation about it. She said that she had asked MSA to give her some space and she wanted him to go and stay with his parents. The complainant said they had some conversations about MSA going to stay with his parents and that he initially agreed, but then he did not actually do it.

[110] The complainant said that she did not edit, remove any content, or change the order of the text message exchange between herself and MSA.

[111] It was pointed out to the complainant that in the course of the text message exchange, “Saeed” had said that “this would need further discussion” and, further, “can we talk?” She was asked why she did not speak to MSA directly and record the conversation. The complainant replied that she wanted to get MSA to stop sexually assaulting her and that she had told him if he did not stop, she would go to a third-party. The complainant said that there is no further discussion needed when she is saying “do not assault me”. In the complainant’s opinion, MSA saying things like further discussion was needed, that he was trying to be nice, or that they should go on a trip together, were efforts on his part to shift attention and confuse things.

[112] It was put to the complainant that the text from “Saeed” saying “I am not trying to ‘force’ or anything on you at any time” was actually an outright denial on his part of her allegations. The complainant disagreed, and said that this text demonstrates manipulation on MSA’s part since he goes on to say that “I do understand that it will also help us”.

[113] The complainant was asked whether “Saeed’s” statement that “you try to resurface issues again and again” was actually a reference to her constantly nagging and belittling him about finances, rather than sexual assault. The complainant said it was clear that they were talking about a sexual assault that had just taken place hours earlier. She was asked whether she had actually used the words “sexual assault” in the text message exchange. She said that she very clearly referred to MSA grinding on her even though she had tried to push him off. She said she couldn’t imagine what would have happened to her if she had used language like sexual assault. The way that she speaks is ‘you forced yourself on me’, and she didn’t need to use the term sexual assault.

[114] The complainant was asked whether she had used the term “rape” in a paper on rape acknowledgement in Sweden and China that she had written in 2011 during her studies at York University. The complainant said it is a very different thing to use those terms in a paper as opposed to when speaking to your spouse, and that she wouldn’t have been safe if she had told him that he was sexually assaulting her.

[115] It was put to the complainant that “Saeed” had denied her allegations when he said, “you are making a hug sound like a harassment case.” The complainant said that if MSA had wanted to deny the allegations, he would have said that “that didn’t happen” or “this is what happened instead”. The complainant said that MSA’s reference to it just being a ‘hug’ demonstrates that he was attempting to covertly manipulate her.

xiv. Alleged assault with knife in November 2010 (Count 8)

[116] The complainant was asked about the manner in which MSA had moved the knife during the incident she described in the kitchen of MSA’s parent’s house in November 2010. The complainant replied that he waved it and thrust it towards her. She was asked whether there was any difference between waving the knife and thrusting it. The complainant said that they were having an argument in the kitchen when MSA reached over, picked up a large knife from a silver canister on the counter, and started walking toward her waving the knife. As he was doing this, he was also saying things like “watch out” and “don’t push me.” She said MSA held up the knife and threatened her with it, and she immediately ran upstairs to tell MSA’s mother about what had happened.

[117] The complainant was asked whether MSA had a knife in his hand when they began arguing. She replied that MSA may have been preparing his breakfast when they started arguing, but he didn’t have a knife in his hand beforehand. She was asked if he was cracking an egg and she said he wasn’t. The complainant was shown a transcript of her evidence from the preliminary inquiry where she had said that MSA was cracking an egg in a skillet. The complainant said that at the time of preliminary inquiry that was what she remembered. Her current recollection is that he wasn’t cracking an egg, but he may have been preparing his breakfast. The complainant also pointed out that at the preliminary inquiry she did not say he had a knife in his hand before they began arguing.

[118] The complainant was asked whether MSA had held the knife to her face. She replied that the knife was close to her face, but it didn’t actually touch her face.

xv. Touching foot with tire of car in 2009 or 2010 (Count 9)

[119] The complainant was asked whether it was possible that MSA had accidentally touched her foot with the tire of his car in the incident she described in the driveway of his parent’s house in late 2009 or 2010. The complainant said she believed he drove into her foot to intimidate her. If it had been an accident, he would have asked if she was ok. Instead, he picked up one of the rings she had thrown onto the ground and threw it at her.

xvi. Alleged slap on face during argument over use of car in 2012

[120] The complainant was asked whether MSA had slapped her once or twice on the face during their argument over the use of a car in 2012. She said he had slapped her once. She was shown a copy of her Family Court Application from July 2018 as well as her January 2019 affidavit in that proceeding where she stated that MSA had slapped her twice. The complainant said those statements in the Family Court Application and affidavit were wrong, but that she didn’t catch the error at the time. The complainant said that MSA had only slapped her once, and that this is what she had told the police in November 2018.

xvii. Whether the complainant is fabricating allegations against MSA to advance her family law claims or for financial gain

[121] The complainant was asked whether she had filed the criminal complaint against MSA so that he would be sentenced to jail and she would gain full custody of their children. The complainant said she had been told that it was extremely difficult to get justice through the criminal courts. She also said that the family law litigation has been settled and she has agreed to joint custody of their two children with MSA.

[122] The complainant was asked whether she is fabricating allegations against MSA for financial gain, so that she could file a civil claim for compensation against MSA. The complainant said that these are not fabrications, and that she could pursue a civil claim against MSA regardless of whether he is convicted criminally. She said that she went to the police in order to hold MSA accountable for the crimes he committed against her throughout their relationship and to hopefully prevent it from happening to someone else.

c. Crown Re-examination

[123] In brief re-examination by the Crown, the complainant was asked whether she had any explanation for the fact that the timestamps on two of the audio recordings suggested that they had been created in June 2018, while the timestamps on the other two recordings suggested that they had been created in September 2018.

[124] The complainant said that she does not know what the timestamps mean. However, she also noted that she transferred audio files from her iPhone as well as the separate recording device to her computer in June 2018. She also said that she believes she purchased a new computer when she started school in September 2018, and she transferred the audio files to her new computer at that time.

II. Defence Evidence

[125] The only defence witness was Officer Nick Chung, the officer in charge of the investigation, who participated in the November 19, 2018 interview with the complainant. Officer Chung said that he met the complainant about 20 minutes before she commenced her statement. After she completed her statement, he received some documents from her, including a USB key containing audio files and PDF files. He copied the files from the USB key onto his computer and gave the USB key back to the complainant. Although he later copied the electronic files from his computer onto a disc that was entered as an exhibit at trial, he did not edit or alter the files in any way. Officer Chung did not receive any phones, recording devices or computers from the complainant.

III. Applicable Legal Principles

a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[126] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.

[127] Thus, MSA is presumed innocent of the charge brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

[128] Nor should any weight be given to the fact that MSA exercised his right to silence and did not testify. There is no onus on an accused to prove his innocence by giving evidence. It is up to the Crown to prove an accused’s guilt beyond a reasonable doubt, not the other way around.

[129] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that MSA is probably or likely guilty. In that circumstance, I am required to give him the benefit of the doubt and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

[130] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I must consider all of the evidence and be sure that MSA committed offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.

b. Assessing Credibility

[131] The Crown’s case relies entirely on the evidence of the complainant. Defence counsel argues that she has fabricated the allegations of sexual and physical assault, as well as manipulated and/or edited the Electronic Records to make it falsely appear that they corroborate her viva voce testimony. It follows that in order to reach verdicts in this case I must assess her credibility.

[132] There is no singularly correct or scientific method for assessing credibility. However, it is important to avoid credibility assessments based on what Paciocco J.A. has described as “impressions [that are] the product of stereotype, emotional evaluation, or ill-founded confidence in what is no more than guesswork.”[^2] In particular, it is now increasingly recognized by both trial and appellate judges that a witness’s demeanour when testifying has limited value in assessing credibility.[^3]

[133] As Watt J.A. noted in R. v. M. (A.)[^4], one 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 he or she has said on other occasions, whether or not under oath. Inconsistencies may emerge not just from a witness’ testimony at trial, but also 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. That said, inconsistencies vary in their nature and importance. Some inconsistencies may, on closer examination, not materially impair a witness’s credibility or reliability. In other cases, however, an inconsistency on a matter central to events or circumstances that form the basis of a charge may call into serious question the credibility or reliability of a witness’s testimony.

c. Avoiding Myths and Stereotypes in Sexual Assault Cases

[134] Parliament and the courts have repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. It is now widely understood that it is an error of law to assess a sexual assault complainant’s credibility based on assumptions about how a victim of sexual assault is expected or supposed to react to the assault. This includes the now discredited doctrine of “recent complaint” (abolished by s. 275 of the Criminal Code); the belief that it is unsafe to find an accused in a sexual assault case guilty based on uncorroborated evidence (abolished by s. 274 of the Criminal Code); or the common law rule that a husband cannot be charged with sexually assaulting his wife (abolished by s. 278 of the Criminal Code.)

[135] These statutory reforms have been reinforced and extended by jurisprudence on these issues from the Supreme Court of Canada. As the Court noted in R. v. D.D.[^5], those who are victims of a trauma like a sexual assault may delay in disclosing the abuse, while others may never disclose it. Reasons for delay are many and include embarrassment, fear or guilt. For this reason, “a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.” Nor is it appropriate to assume that a victim of sexual assault will subsequently avoid their abuser. The mere absence of avoidant behavior by a complainant cannot form the basis of a credibility assessment leading to reasonable doubt.[^6]

d. Authentication and Admissibility of Electronic Records

[136] Parliament has made provision for the authentication of electronic documents (which include audio recordings as well as text messages) in s. 31.1 of the Canada Evidence Act[^7]:

31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which is purported to be.

[137] As Justice Watt observed in R. v. B. (C.)[^8], the authentication requirement established by s. 31.1 is a modest one. All that is necessary is that the person seeking to admit the electronic document provide evidence that is “capable” of supporting a finding that the electronic document is that which it is purported to be. Moreover, this threshold may be established by circumstantial as well as direct evidence.

[138] That said, the fact that an electronic document may have been authenticated and admitted in accordance with s. 31.1 does not mean that the document has been shown to be accurate or genuine. The only effect of s. 31.1 is to permit the electronic document to be introduced as evidence at trial. It remains for the trier of fact to determine, on a balance of probabilities at the end of trial and in light of all the evidence, whether the electronic record actually is what it purports to be.[^9]

[139] It is also important to distinguish between the authentication of an electronic record as distinct from the question of whether the contents of the record are admissible. The authenticity requirement focuses on the integrity of the electronic document -- whether it is what it purports to be. But whether or not the contents of the document are admissible is a separate question, which turns on the purpose for which the document is being adduced, considered in light of the relevant rules of evidence.

e. Essential Elements of the Relevant Offenses

[140] There is no dispute as to the essential elements which the Crown must prove beyond a reasonable doubt in order for the court to find MSA guilty of the offenses with which he has been charged. Nor is there any dispute that, if I accept the evidence of the complainant and find that the incidents occurred in the manner she described, such evidence would constitute proof of the essential elements of the subject offences. Nevertheless, for completeness I set out the essential elements that must be proven by the Crown in this case.

[141] The essential elements of the offence of assault (Criminal Code, s. 266) are as follows: (i) the accused must have intentionally applied force to the victim; (ii) the victim did not consent to the force that the accused applied; and (iii) the accused knew that the victim did not consent to the force that he/she intentionally applied.

[142] An assault with a weapon (Criminal Code, s. 267 (a)) is one in which, in addition to the elements necessary to constitute an assault, the accused used or threatened to use a weapon.

[143] In order for an assault to constitute a sexual assault (Criminal Code, s. 271), the force that the accused intentionally applied without the victim’s consent must have taken place in circumstances of a sexual nature.

IV. Positions of the Parties

a. Crown

[144] The Crown’s position is that the evidence of the complainant was credible, uncontroverted and should be accepted. The Crown argues that the complainant was thoughtful in her responses and did not exaggerate the abuse she says she suffered at the hands of MSA. Her testimony was detailed and compelling. While there may have been some minor inconsistencies on peripheral issues, she never wavered in her evidence regarding the assaults by MSA.

[145] The Crown disputed claims made by defence counsel to the effect that the complainant has a motive to lie. Her family court proceedings involving MSA have been concluded and claims in that litigation on parenting issues as well as property and support are now resolved. The complainant seeks to hold MSA accountable for his behaviour, not for personal financial gain or to advance her family law claims.

[146] The Crown also argues that the complainant’s account of the circumstances and evolution of her marriage, leading to her decision to separate from MSA in the summer of 2018, makes sense. The complainant said that MSA was abusive toward her sporadically throughout the marriage and that she had to talk to him numerous times about the meaning of consent. Difficulties in the marriage became evident as early as 2010 when she decided to move out and live with her mother, despite the fact that she was pregnant with their first child. In 2016, she decided to separate from MSA because of conflict in their marriage, including his abusive behaviour. She says she reconciled with him on these occasions because she found it very difficult to actually leave the relationship. She finally took the decision to end the marriage in 2018 because she no longer felt safe.

[147] The Crown argues that the complainant’s viva voce evidence is powerfully corroborated by the Electronic Records, which are authentic and admissible. The complainant repeatedly denied having edited or altered the audio recordings and, further, pointed out that she was not “tech savvy” and has no ability to manipulate the recordings even if she had wanted to. The complainant has offered a reasonable explanation for the discrepancy between the dates she says she made the recordings and the timestamps on the audio files, namely, the fact that she had to transfer the audio files to her computer, and then had to buy a new computer in September 2018 when she began her Master program. The Crown argues that the Electronic Records should be admitted for the truth of their contents either because MSA adopted statements made by the complainant through his silence, or because of the res gestae exception to the hearsay rule.

b. Defence

[148] Defence counsel argued that the complainant was evasive in her evidence and that her account of her marriage with MSA does not make sense. Defence counsel questions the complainant’s claim that she did not know MSA very well before she married him in 2007. Counsel further argues that the complainant’s claim that she was naïve at the time of their marriage is not credible, since she admitted having a boyfriend when she was in grade 11. The complainant says that MSA was telling her that she shouldn’t be talking to other boys, and yet he was also a boy and was talking to her. The complainant’s claim that her mother was opposed to their marriage because they were too young is contradicted by the fact that her mother attended the first religious marriage in 2007. Further, if MSA was abusive to her, why did she marry him again in 2008 and 2009, have two children with him, and move into the Matrimonial Home alone with MSA in 2016?

[149] Counsel also argues that the complainant’s credibility should be called into question due to the manner in which she characterized the July 2018 text message exchange with MSA. The complainant’s evidence was that during this exchange, MSA did not deny having assaulted her. But counsel points out that in “Saeed’s” texts, he says he is “not trying to force anything on her”, that the complainant is “making a hug sound like a harassment” case, and that he wants to discuss the matter further. Defence counsel further points out that the complainant never attempted to record a conversation with MSA following this text message exchange, despite being invited to discuss it further. Counsel invites the Court to draw a negative inference regarding the complainant’s credibility, in light of her misleading characterization of the July 2018 text message exchange, as well as her failure to later record a conversation with MSA discussing the incident.

[150] Counsel acknowledged that the complainant was fairly consistent in her descriptions of the sexual assaults, but this was merely because her evidence on these matters was memorized and rehearsed. In contrast, there were inconsistencies in other aspects of her evidence, such that the complainant sometimes couldn’t keep her story straight. These inconsistencies include the following:

1. in her evidence at trial, the complainant said that during an argument over the use of a car in 2012, MSA had slapped her once across the face. However, in the Application and Affidavit filed in her family court proceeding, the complainant claimed that MSA had slapped her twice. Both statements cannot be true.

2. in her evidence at trial regarding the alleged assault with a knife in 2010, the complainant said that prior to picking up the knife, MSA had not been making an egg. However, at the preliminary inquiry she had said that MSA was making an egg. Again, both statements cannot be true.

3. the complainant also said that MSA had waved the knife around during this 2010 knife incident, but then said he had thrust the knife toward her. These were different actions and both statements cannot be true.

4. the complainant testified at trial that during the alleged attempt by MSA to force her to perform oral sex in their car, the vehicle was stopped. However, at the preliminary inquiry she said the car was moving.

5. the office in the family restaurant where the complainant said MSA had forced her to have sexual intercourse in 2009 was right off the kitchen. There were staff and customers outside, and MSA’s father and brother had access to the office. The complainant also said that MSA was a religious man. Why would MSA have had sex in that office, when someone else could have walked in?

6. in the incident involving the tire of the car touching her foot in 2009, how could MSA have exercised such control over the vehicle to ensure that the complainant’s foot wasn’t crushed?

7. in her Family Court Application, the complainant had said that the June 2018 forced sexual touching occurred “in front of the sleeping children”, whereas in her subsequent affidavit, she said this assault occurred “in the presence of the sleeping children”. Counsel argued that these statements were inconsistent with each other, and that the reference to an assault “in front of the sleeping children” was intended to inflame the judge hearing the matter.

[151] Defence counsel argued that the complainant filed an affidavit in the family court proceeding which included specific dates for various assaults, but she chose not to attach any documents corroborating these allegations. Counsel also argued that the video of the complainant’s interview with the police in November 2018 showed her looking down at her Family Court Application 23 times, and this tended to show that she had no independent recollection of the assault allegations. Counsel further claimed that the complainant had a motive to lie, since this would advance her claims in the family law litigation.

[152] Counsel also argued that the audio recordings could not be taken to be authentic because of the inconsistency between when the complainant says she recorded them and the timestamps on the audio files. The obvious inference to be drawn from this inconsistency is that the complainant is lying when she claims not to have edited or altered the audio recordings.

[153] The Crown could have called an expert to provide evidence on the significance to be attached to the timestamps on the audio files but chose not to. The defence has no obligation to prove that the recordings are not genuine. That is the Crown’s burden, which has not been met.

[154] Defence counsel argues that the Crown has failed to prove beyond a reasonable doubt that MSA is guilty of the offences charged, and he is therefore entitled to an acquittal.

V. Analysis: Findings regarding the complainant’s credibility

[155] By way of general overview, I find the complainant’s evidence to be detailed, clear, and consistent. Her evidence regarding the numerous alleged assaults is largely uncontroverted and she never wavered in her description of these incidents through nearly four days of cross-examination. The few inconsistencies identified by defence counsel dealt with minor or peripheral matters and were reasonably explained by the complainant. In fact, far from undermining her credibility, the complainant’s cross-examination had the opposite effect, as it provided her with the opportunity to provide more detail and context for her allegations.

[156] Consider, by way of example, the complainant’s cross-examination on the alleged forced sexual intercourse that she says took place in the small office of the family restaurant in 2009. In her evidence in chief, the complainant had said that the office was directly off the kitchen and that there was at least one staff person working in the kitchen when MSA assaulted her. Indeed, the presence of this staff person was cited by the complainant as one reason why she didn’t want to have sex with MSA in the office. The complainant described the office as being quite small with a desk running along one wall. She was asked whether there was a window in the door to the office. She said she wasn’t sure but that, if there was a window, it was covered up so that you couldn’t see into the office from the outside when the door was closed.

[157] In cross-examination, defence counsel presented the complainant with photographs showing a large kitchen with a small adjacent office and asked her whether this was the location where the alleged assault had occurred. The complainant said that it seemed similar, but she wasn’t sure because it had been ten years since she had been there. In his closing submissions, defence counsel cited the complainant’s reluctance to confirm that these were photographs of the family restaurant as a reason to question her credibility. Yet if one examines the photographs tendered by the defence closely, they appear to largely confirm the complainant’s evidence. The photos show a small office directly off a kitchen with a desk running along one side, more or less as the complainant described. There is no window in the door leading to the office, meaning that no-one could see into the office with the door closed. Not only do the photos tend to confirm the complainant’s evidence, they make it entirely believable that the complainant would not have wanted to be sexually intimate in such a location. In short, the net effect of this exchange was to bolster rather than detract from the complainant’s credibility and reliability as a witness.

[158] The same point can be illustrated by considering the complainant’s cross-examination on a 2011 paper she had written on “Rape acknowledgement in Sweden and China”. Defence counsel raised the subject of this 2011 paper in order to show that the complainant had used terms like “rape” or “sexual assault” in the past, and yet never used those terms in any of her conversations with MSA. The complainant agreed that she had never confronted MSA using those particular terms but offered the explanation – reasonable in my view -- that it is one thing to write an academic paper on the subject of sexual assault and quite another to confront your spouse with such allegations in person. With defence counsel having opened the door to a discussion of this 2011 paper, the complainant proceeded to make the point that the main thesis of the paper was that women in conservative or religious cultures are less likely to identify a sexual assault when it has occurred, and are less likely to report it to police. She said that her marriage to MSA was a real-life illustration of this very thesis, since one of the reasons for her reluctance in reporting MSA’s assault to the police was because of her religious upbringing, combined with fears for her safety if she did so. Once again, the net effect was to make her claims appear more rather than less credible.

[159] Nor do I agree with the defence’s suggestion that the complainant’s account of her marriage to MSA “doesn’t make sense”. It is common ground that the complainant was just 18 years old at the time of her 2007 marriage to MSA. It is thus entirely plausible that she would have been naïve and inexperienced in relationships at that time, just as she claimed. Moreover, marrying someone whom you don’t know very well at that age may well be unwise, but the complainant would not be the first 18-year-old to have married someone she didn’t know well. It is also entirely believable that the complainant’s mother, although initially opposed to her plan to marry MSA at such a young age, might nevertheless have put those concerns aside and tried to support the complainant in her decision to marry. As for the defence suggestion that it doesn’t make sense that the complainant would have married MSA two more times (i.e. 2008 and 2009) if he was so abusive to her, the complainant said that she considered herself to be married to MSA from 2007 onward.

[160] In considering the defence’s argument that the complainant was evasive in her evidence, or that her descriptions of the assaults was somehow repetitive or rehearsed, I have already noted that I place limited value on a witness’s demeanour when assessing their credibility. In any event, I did not find the complainant to be evasive or repetitive in her testimony. It is true that she often took some time before responding to questions. But this appeared to me to be because the complainant was simply taking the time needed to respond carefully to the question that had been asked. When she did respond, she often disagreed with the suggestion that had been put to her, reiterating her previous testimony. But her answers were by no means rehearsed, memorized, or recited by rote. In fact, the numerous sexual assaults she described were quite different from one other, took place at different times, in different locations, sometimes with one or more of the children present, and at other times when she was alone with MSA. On numerous occasions over the course of her cross-examination, the complainant was visibly overcome with emotion and had difficulty continuing with her testimony.

[161] Defence counsel argued that in her statement to the police in November 2018, the complainant was simply reading from her Family Court Application and had no independent recollection of the events in question. Having viewed the approximately two-hour video of this interview, it is true that the complainant looked down at her Application numerous times. However, on every occasion on which she consulted the document, she then looked up and proceeded to describe the various incidents in a much more detailed fashion than was set out in her Application. It was evident, in other words, that the complainant was not simply reading from the Application. In any event, at trial, the complainant testified without the assistance of the Family Court Application or any other notes and clearly appeared to have an independent recollection of the relevant events.

[162] Nor do I find that the complainant had a motive to lie, namely, to advance her claims in the family law litigation. The parties have resolved both the parenting and financial issues in that litigation, at least on an interim basis. Thus, the complainant is not at this time actively pursuing family law claims against MSA. It may well be that the outcome of this criminal case could have implications for the interim family law arrangements. But the same would be true in any sexual assault case where the parties had been married and had children. If that alone were sufficient grounds to support a finding that a complainant in a sexual assault case had a motive to lie, it would constitute a significant barrier to the reporting of sexual assaults by complainants who had been married to the alleged abuser. I find the defence claim that the complainant had a motive to lie to be hypothetical and without foundation in the evidence.

[163] Defence counsel claimed that the complainant’s evidence was inconsistent on a variety of matters, and that she “couldn’t keep her story straight”. But the claimed inconsistencies were few and far between, in most cases dealt with peripheral or incidental matters, and/or were reasonably explained by the complainant. For example:

a. the complainant acknowledged that in her Family Court Application and affidavit, she had said that MSA slapped her twice during the 2012 argument over the use of the car, whereas at trial her evidence was that he only slapped her once. The complainant said that the statements in her family law documents to the effect that MSA had slapped her twice were made in error, but she failed to catch the mistake before filing the documents. She reaffirmed her evidence in chief to the effect that MSA had only slapped her once during the argument over the use of the car.

I note that it would have been an easy matter for the complainant to have attempted to address this inconsistency by revising her trial evidence to claim that MSA had slapped her twice rather than once. The fact that the complainant was willing to acknowledge that she had made a mistake in her family court documents not only addressed the matter but also suggested that the complainant was being candid and avoiding exaggeration or embellishment of her allegations.

b. Whether or not MSA had been cracking an egg prior to the 2010 incident in which the complainant alleged MSA threatened her with a knife is, at best, a peripheral or incidental matter and of no particular consequence.

c. I see no material difference between the complainant’s description of MSA as having “waved a knife” as opposed to having “thrusted a knife” during this 2010 incident. The complainant was clear that MSA threatened her with a knife by walking toward her, holding the knife in his hand and warning her to “watch out” and “do not push me”. She never wavered in this description. Viewed in context, therefore, the difference between “waving a knife” as opposed to “thrusting a knife” is one of semantics rather than substance.

d. Whether the car was stopped or moving during the alleged attempt by MSA in 2009 to force the complainant to perform oral sex is similarly a peripheral matter that does not go to the core of this alleged assault. I would further observe that the complainant’s evidence was that MSA was forcing her head down in an effort to make her perform oral sex on him. As such, it would have been difficult for her to know for certain whether the car was moving or not.

[164] Finally, I do not accept defence counsel’s suggestion that the complainant mischaracterized her July 2018 text message exchange with MSA. It is true that at one point in the text message chain, “Saeed” said that he was “not trying to force anything on her”. But there was no suggestion in “Saeed’s” texts that the actions described by the complainant, including MSA grinding on her and groping her without her consent, had not occurred. “Saeed’s” main response was that he was trying to be “nice and reasonable”, to “solve issues”, but that the complainant was making it extremely difficult. “Saeed” claimed that the complainant was being “punitive”, “living in the past”, and reminding him of his mistakes while not explaining “the entire situation”. In other words, “Saeed” was not disputing that the complainant’s description of what had taken place but was simply attempting to justify his behaviour on the basis that he was trying to “help us”. I find that the complainant’s characterization of this text message exchange to be fair and accurate.

[165] I will consider in the next section the allegation that the complainant improperly edited the audio recordings and the text message exchange. Apart from that issue, I find the complainant’s evidence regarding the alleged sexual and other assaults to be credible and reliable.

VI. Authenticity and admissibility of the Electronic Records

[166] In order to admit the Electronic Records (which include both the audio recordings as well as the July 6, 2018 text message exchange), I must consider the following two issues: (i) have the Electronic Records been authenticated, namely, do I find that the Crown has proven that they are what they purport to be; and (ii) if I do find the Electronic Records to be authentic, are they admissible in accordance with the relevant and applicable rules of evidence?

a. Authentication

i. Initial authentication: CEA s. 31

[167] As described above,[^10] the authentication of electronic documents proceeds in two stages. Stage one, the initial admissibility inquiry, is governed by s. 31.1 of the CEA. This provision requires that any person seeking to admit an electronic document must prove its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. This is a modest threshold which may be established by circumstantial as well as direct evidence. If an electronic document is admitted pursuant to s. 31.1 of the CEA, the trier of fact must then determine whether it has been proven, on a balance of probabilities, that the electronic document is actually what it purports to be.

[168] I have little difficulty in finding that the Crown satisfied the modest admissibility requirements of s. 31.1. The complainant testified that she made the audio recordings, that they recorded interactions between herself and MSA, and that she engaged in the text message exchange with MSA on July 6, 2018. She also described how and when she had made the recordings and sent the text messages, and said that she did not edit or alter the Electronic Records in any way. If accepted, this evidence is certainly capable of supporting a finding that the Electronic Records are what they purport to be.

[169] When the Crown attempted to tender the audio recordings in the course of the complainant’s testimony, defence counsel objected and argued that the recordings should not even be played in court unless and until I determined that the recordings were in fact authentic.[^11] This position ignores the plain wording of s. 31.1, which merely requires that the Crown provide evidence capable of supporting a finding that the recordings and text messages are authentic. The Crown clearly met this standard, and the recordings were admitted on this basis.

ii. Authentication of the Electronic Records on balance of probabilities

[170] This leads to the second stage of the authentication inquiry, a determination of whether the Crown has proven on a balance of probabilities that the Electronic Records are actually what they purport to be.

[171] In the course of his cross-examination of the complainant, defence counsel repeatedly raised the possibility that she had somehow edited or manipulated the Electronic Records. But defence counsel never identified anything that might have been deleted from, or added to, any of the audio recordings or the July 2018 text message exchange. The defence theory of improper editing was based, not on the content of the audio recordings themselves but, rather, on the timestamps found in the recordings’ metadata. This metadata indicated that the recordings had been created either in June or September 2018, rather than on the dates when the complainant said she had actually made the recordings.

[172] Defence counsel argued that given the discrepancy between these dates, the Crown should have undertaken a forensic analysis of the data files in order to establish their authenticity. Defence counsel relied upon R. v. Razzaq,[^12] where the court ordered that a recording of an alleged sexual assault be submitted for examination by a forensic computer expert and ultimately concluded, based on that the expert’s report, that the recording had been improperly manipulated. Defence counsel also relied upon R. v. A. S.,[^13] where an expert witness had identified certain anomalies on an audio recording that the complainant claimed to have made of an alleged sexual assault. The Court of Appeal held that due to these anomalies, the trial judge had properly refused to admit the audio recording as original evidence of what had transpired.

[173] I find neither Razzaq nor A.S. to be of particular assistance to the defence in the circumstances of this case. In Razzaq, the forensic analysis of the audio recording was ordered for a variety of reasons, including serious concerns regarding the credibility of the complainant due to inconsistencies in her evidence, as well as testimony by the accused that certain portions of the relevant conversation had been deleted from the audio recording provided by the complainant. Similarly, in A.S., the complainant’s evidence had been effectively challenged with inconsistent emails and text messages, the accused had testified that the recorded event had been staged by the complainant and, further, that certain portions of the conversation were not reflected in the recording of their exchange. In neither case was the forensic analysis of the audio recording ordered merely on the basis of the recordings’ metadata.

[174] The circumstances here are quite different. I have found the complainant in this case to be a credible and reliable witness whose evidence as a whole is largely uncontradicted. Moreover, the defence suggestion that the audio recordings have been improperly edited is essentially speculative, since there is no evidence identifying any parts of the relevant conversations that may have been either omitted from or added to the recordings. As for the discrepancy between the dates in the metadata and the dates upon which the complainant said she recorded the conversations, the complainant noted that some time after making the recordings she had transferred the files from her phone or a recording device to her computer and that this may be the reason for the inconsistency in the dates. In any event, the timestamps on the metadata of the recordings are not evidence that the complainant improperly altered anything in the recordings.

[175] I would further point out that there are a host of recent cases suggesting that caution is required before relying on creation dates and timestamps found in the metadata of electronic documents. In R. v. Ndona-Mbuende,[^14] Dawson J. noted that creation dates and timestamps can be affected by the software involved or the movement of transfer of the data and he was therefore unable to rely upon the metadata as establishing the time that a video had been recorded. To the same effect is Canadian Imperial Bank of Commerce v. The Queen,[^15] which concluded that there is a real danger that some metadata recorded by a computer may be inaccurate.[^16]

[176] There is no general requirement that a party tendering an electronic record provide a forensic analysis of its authenticity as a condition of admission.[^17] Indeed, any such requirement would be unduly burdensome and add to the already considerable cost and complexity of criminal proceedings.[^18] Those concerns are particularly operative in the present case, since defence counsel did not raise the issue of the timestamps on the metadata of the audio recordings until midway through the cross-examination of the complainant, at which point was not even clear whether it was feasible to undertake a forensic analysis of the audio files.

[177] I have found the complainant to be credible and reliable and she has repeatedly denied having edited or altered the audio recordings. The defence allegations of improper editing are entirely hypothetical, since there is no evidence of the complainant having actually altered anything in the recordings. Moreover, the complainant’s evidence to the effect that she is not computer literate and therefore lacked the capacity to manipulate the audio recordings is uncontradicted.

[178] I therefore accept the complainant’s evidence that she did not alter or edit the audio recordings or the July 2018 text message exchange, and find that the Crown has proven on a balance of probabilities that the recordings are authentic.

iii. Admissibility of the Electronic Records

[179] Having found the Electronic Records to be authentic, it remains to consider whether they are admissible in accordance with the relevant and applicable rules of evidence.

[180] The Electronic Records fall into two categories. The first category consists of two recordings which the complainant says capture actual sexual assaults being committed by MSA.[^19] These recordings are admissible as real evidence of the subject matter of the relevant offenses with which MSA has been charged.[^20]

[181] The other two audio recordings as well as the July 2018 text message exchange capture conversations between the complainant and MSA regarding her allegations, which are tendered for the truth of their contents. They are therefore hearsay and inadmissible unless they fall within an exception to the hearsay rule.

[182] The Crown argues that these records are admissible because they record conversations in which the complainant is accusing MSA of having sexually assaulted her, in circumstances where there is a reasonable expectation of a reply on his part. The Crown says that in the face of these accusations, MSA is either silent, ignores the accusations, or responds equivocally. Thus, the Crown says, through his silence he has in effect adopted these admissions, which is a recognized exception of the hearsay rule.[^21] MSA disputes this characterization of his responses, arguing that he did not admit to the complainant’s allegations.

[183] At the admissibility stage it is not necessary to make a final determination as to whether or not MSA adopted the complainant’s statements through silence. All that is required is that there be sufficient evidence upon which it would be open to me to make such a factual finding. This threshold has been met in this case since the accusations made by the complainant clearly require some sort of response, and it is at the very least unclear whether the MSA denies the allegations. I therefore admit the remaining recordings as well as the July 2018 text message exchange on the basis that they may amount to adoptive admissions by silence, subject to a separate determination to whether MSA actually adopted the accusations.

VII. Has the Crown proven beyond a reasonable doubt that MSA committed the offenses with which he is charged?

a. Count 1: Sexual assaults allegedly committed between January 1, 2007 and November 19, 2018

[184] As described earlier, Count 1 encompasses five separate allegations of sexual assaults allegedly committed between 2007 and 2018. I consider each of these specific allegations in turn.

i. Attempted oral sex in motor vehicle in 2009

[185] The complainant testified that sometime in 2009, while she and MSA were travelling in his car, he suddenly grabbed the back of her head with his right hand and attempted to force her to perform oral sex.

[186] The cross examination of the complainant on this allegation focused on whether or not the vehicle was stopped or moving at the time of the alleged assault. The complainant’s best recollection is that the car was stopped, even though at the preliminary inquiry she had said that the car was moving.

[187] I find that the issue of whether the vehicle was stopped or moving at the time of the alleged assault relates to a peripheral or incidental matter. The complainant’s evidence with respect to this incident is otherwise uncontradicted. I accept the complainant’s evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of this sexual assault.

ii. Forced sexual intercourse in 2011

[188] The complainant says that sometime in 2011, while she and MSA were living with his parents, he forced her to have sexual intercourse over her objections. At the time, their son AA was sleeping in their bedroom on a mattress at the foot of the bed. The complainant says she told MSA that she did not want to have sex because it might wake up their son and also because MSA’s parents might hear them. The complainant says that MSA ignored her repeated requests to stop, forcibly removed her underwear and penetrated her with his penis until ejaculating.

[189] The complainant was not significantly cross-examined with respect to this incident and her evidence is therefore uncontradicted. I accept the complainant’s evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of this sexual assault.

iii. Forced sexual touching in late 2017 or early 2018 while their son AA was asleep in the same bed.

[190] The complainant testified that sometime in late 2017 or early 2018, while she was sleeping in the master bedroom of the Matrimonial Home with their son AA, she woke up to find MSA ‘spooning’ her from behind and touching her breasts and genital area. She told him to stop but he ignored her. Eventually, AA woke up and wanted to use the bathroom, at which point MSA ceased the grinding and sexual touching.

[191] The complainant was not significantly cross-examined with respect to this incident and her evidence is therefore uncontradicted. I accept her evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of this sexual assault.

iv. Forced sexual touching in late 2017 or early 2018 during which the complainant told MSA to “get off her”

[192] The complainant says that sometime in late 2017 or early 2018, while she was asleep in the master bedroom of the Matrimonial Home, she was awakened by MSA who was moving on top of her and kissing her. She told him repeatedly to stop but he continued. The complainant recorded part of this assault during which she can be heard repeatedly telling MSA to stop and “get off me”. Eventually, MSA stopped.

[193] The complainant was cross-examined with respect to the metadata associated with the audio recording. However, she was not cross-examined with respect to the actual assault itself, nor was she asked about the contents of the audio recording (as distinct from the metadata associated with the recording).

[194] The complainant’s evidence as to this incident is uncontradicted and, in addition, it is corroborated by the audio recording. I accept her evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of this sexual assault.

v. Forced sexual touching in foyer of matrimonial home in June 2018

[195] The complainant says that in June 2018, while she and MSA were working in the kitchen in the Matrimonial Home, he approached her from behind and tried to initiate sex. She told him she did not want to be intimate and tried to keep working. The complainant says that MSA pushed her against the wall in the foyer just outside the kitchen and began touching her all over her body, including her breasts and between her legs. The complainant says she repeatedly told MSA to stop and that she did not want to be touched. Eventually he stopped and walked away, complaining that the complainant had something “stuck way up there…”

[196] The complainant was not significantly cross-examined with respect to this incident and her evidence is therefore uncontradicted. I accept her evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of this sexual assault.

b. Count 2: Forced sexual intercourse in restaurant office

[197] The complainant testified that in late 2009 or early 2010, MSA forced her to have sexual intercourse in a small office off the kitchen of MSAs family restaurant.

[198] During the complainant’s cross-examination with respect to this incident, she was presented with photographs of the office where the sexual assault was said to have taken place. For reasons explained earlier, these photographs largely confirmed the complainant’s evidence with respect to this sexual assault. The other questions posed on cross-examination regarding this incident merely provided her with an opportunity to elaborate on and reinforce her evidence in chief, without any material contradiction.

[199] I find that the complainant’s account of this incident is essentially uncontradicted. I accept her evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of Count 2.

c. Count 3: Forced sexual intercourse in 2012

[200] The complainant testified that after she came home late from the University in March 2012, MSA forced her to have sexual intercourse while their son was sleeping on a mattress at the foot of their bed. The complainant also said that some time prior to the sexual assault, MSA had deliberately stepped on her back as she was lying beside their son AA on a mattress at the foot of their bed.

[201] The complainant was cross-examined with respect to this incident, particularly over how she knew that MSA had deliberately (as opposed to accidentally) stepped on her back prior to the sexual assault. She was also questioned over her evidence that she had been wearing underwear and a nightgown on this occasion, whereas in the preliminary inquiry she had said she was wearing pants.

[202] I accept that it is possible that MSA might have accidentally stepped on the complainant’s back. But this count in the indictment relates to the forced sexual intercourse, not the allegation that MSA intentionally stepped on the complainant’s back. I find that the complainant honestly believes that MSA stepped on her back deliberately. Thus, even if she is mistaken with respect to MSA’s intent and MSA accidentally rather than deliberately stepped on her back, I do not find that this undermines the credibility or reliability of her evidence with respect to sexual assault. As for the inconsistency between her trial evidence and her evidence at the preliminary inquiry as to whether or not she was wearing pants, I note that this incident took place approximately 10 years ago. I do not find it unreasonable that the complainant’s recollection at trial as to whether or not she was wearing pants differed from her evidence at the preliminary inquiry. In my judgment such inconsistency is not material.

[203] Apart from these relatively minor aspects, the complainant’s evidence with respect to the sexual assault is uncontradicted. I accept her evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of Count 3.

d. Count 4: Forced sexual touching at Matrimonial Home in late 2017 or early 2018 interrupted by their son AA coming into the room

[204] The complainant’s evidence was that one afternoon in late 2017 or early 2018, while she was lying on the bed in the master bedroom of the Matrimonial Home, MSA came into the room and began touching her all over her body through her clothes. The complainant says she told him to stop but he ignored her, reaching inside her pants and underwear and touching her vagina with his fingers. Eventually, their son AA came into the room, which caused MSA to stop. The complainant recorded this incident, and on the recording she can be heard repeatedly asking MSA to stop touching her.

[205] In cross-examination, the complainant was asked about certain minor details such as whether there was a lock on the master bedroom door or whether MSA was still in the bed with her when their son AA came into the room. There was nothing inconsistent in the complainant’s evidence on these issues, which in any event were incidental to her description of the assault. The complainant was also questioned about how she had managed to make this audio recording. I find her explanation as to how she made the recording to be reasonable.

[206] I conclude that the cross examination on this incident, while fairly extensive, did not undermine the credibility and reliability of the complainant’s evidence. Her account of the assault is also corroborated by the audio recording. I accept the complainant’s evidence with respect to this incident and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of Count 4.

e. Count 5: Forced sexual intercourse in March 2018

[207] The complainant testified that in March 2018, after falling asleep in the master bedroom of the Matrimonial Home, she was awakened to find MSA touching her and moving his body on her. The complainant says she told MSA to stop and tried to push him off but he continued, eventually penetrating her with his penis and ejaculating. The next morning, she and MSA had a conversation about what had happened the night before, which the complainant recorded.

[208] The complainant was not cross-examined as to her evidence of the alleged sexual assault. Instead, the focus of the cross examination was on the conversation that was recorded the next morning. The complainant was asked about her understanding of this term ‘Hadith’ and why she and MSA were discussing it. She explained that her understanding of Hadith was that it related to religious teachings. She also explained that during this conversation, MSA was claiming that Islamic teachings required a wife to be sexually available to her husband, while she was objecting to this interpretation. The complainant was also asked why she did not use the term ‘sexual assault’ when referring to what had occurred the evening before.

[209] I find that the complainant’s evidence with respect to this incident was not materially undermined through cross-examination. Significantly, she was not cross-examined at all on her evidence relating to the actual sexual assault. As for the conversation that took place the next morning, the complainant’s evidence to the effect that MSA interpreted Islamic teachings as justifying a husband forcing himself sexually on his wife is uncontradicted. If anything, the cross examination bolstered her credibility, since it provided a context for understanding why MSA may have been sexually assaulting the complainant on a regular basis. I also attach no significance to the fact that the complainant did not use the term ‘sexual assault’ in describing MSA’s actions. In this conversation as well as in the other audio recordings, the complainant clearly refers to MSA as having forced himself upon her. There was no ambiguity as to what she was saying. MSA’s response was to say that there should be a ‘compromise’, which in my view amounts to an implicit admission that he had in fact forced himself physically upon the complainant.

[210] I therefore accept the complainant’s evidence with respect to this incident and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of Count 5.

f. Count 6: Forced sexual touching in June 2018 while their children were sleep in the same bed

[211] The complainant’s evidence was that one night in June 2018, she was asleep with their two children in the master bedroom of the Matrimonial Home. The complainant says she woke up and found MSA on top of her, grinding his genitals on to her leg and pelvis. The complainant says she asked MSA to stop multiple times because she did not want the children to wake up, but he ignored her and continued grinding on her until he ejaculated into his clothing.

[212] The complainant was questioned about the fact that in her Family Court Application she had said that this incident occurred on June 7, 2018. She was asked how she knew that this was the date in question. She was also questioned over the fact that in her Family Court Application she described the alleged assault as occurring “in front of the sleeping children”, whereas in a subsequent affidavit filed in the same proceeding she had said that it had occurred “in the presence of the sleeping children.” In my view this line of questioning is largely one of semantics. It also relates to the contents of documents filed in a separate legal proceeding and is of marginal relevance to credibility of her trial evidence.

[213] The complainant was also asked how she knew that MSA had ejaculated if they were both wearing clothing. The complainant said she could tell because of the noises that MSA made when he ejaculated, as well as from the wetness she felt through his clothing. I find this explanation to be reasonable. In any event, even if the complainant was mistaken as to whether or not MSA actually ejaculated, ejaculation is not an essential element of the offence of sexual assault.

[214] I accept the complainant’s evidence with respect to this incident and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of count 6.

g. Count 7: Forced sexual touching in July 2018

[215] The complainant testified that on July 6, 2018, she was sleeping alone in the guest bedroom when she woke up to find MSA touching her all over her body and grinding his pelvis on her. She says she told him to stop and attempted to push him off, but he ignored her and continued grinding on her until he ejaculated into his clothing. The next morning, the complainant and MSA engaged in a text conversation, which is set out in some detail above and will not be repeated here.[^22]

[216] In cross-examination, the complainant was asked a few questions about the actual assault itself (as described in earlier section of these reasons) but, in my view, none of those questions materially challenged the credibility or reliability of her account of the incident.

[217] The complainant was cross-examined extensively about the text message exchange. Defence counsel suggested to the complainant that MSA had in fact denied her allegations when he said at one point that he was not trying to “force anything”. She was also asked why she did not take up MSA’s offer to discuss the matter further and attempt to make an audio recording of that conversation.

[218] While I acknowledge that MSA did at one point in the text message exchange say he was not trying to “force anything”, he also said that the complainant “will not give me some silly green signal to say “go””. He complained about the complainant’s “punitive” approach, how she was “living in the past”, “making a hug sound like a harassment case”, and claimed that he was trying to “help us”. In other words, viewed in context, MSA was not denying that he was forcing himself upon the complainant but, rather, was attempting to justify his actions. I also regard it as significant that when the complainant asks MSA to stay at his parents’ place for a couple of weeks, he suggests that he would take the children with him, which I interpret as a threat designed to force the complainant to continue residing with him in the Matrimonial Home.

[219] As for the suggestion that the complainant ought to have taken up MSA’s suggestion to ‘discuss the matter further’, I accept the complainant’s evidence that there was nothing to discuss until MSA agreed to stop physically assaulting her.

[220] In short, the complainant’s evidence with respect to the actual assault in July 2018 is essentially uncontradicted, and I find that MSA in effect admitted to having forced himself upon the complainant through their subsequent text message exchange. I therefore accept her evidence regarding this incident and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of count 7.

h. Count 8: Incident with knife in November 2010

[221] The complainant testified that in November 2010, she and MSA were arguing in the kitchen at his parents’ house when MSA picked up the knife, stepped toward her, and threatened her with the knife.

[222] The cross examination in relation to this incident focused on whether or not MSA had been cracking an egg prior to picking up the knife, as well as on whether MSA had been “waving a knife” as opposed to “thrusting a knife”. As discussed earlier, the issue of whether MSA was cracking an egg is incidental and of marginal significance. Whether MSA waved the knife as opposed to thrust the knife is one of semantics in the context of the complainant’s uncontradicted evidence that MSA was walking toward her and telling her to “watch out”.

[223] I therefore accept the complainant’s evidence and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of count 8.

i. Count 9: Touching of complainant’s foot with car tire

[224] The complainant said that in November 2010, while she and MSA were arguing in the driveway of his parent’s house, he suddenly drove the car forward and touched her foot with one of the tires.

[225] In order to find MSA guilty of this count, it is necessary for me to find that he intentionally drove the car onto the complainant’s foot. The complainant said that she believed that this was his intention because they were arguing before MSA drove the car forward, and they continued to argue afterwards. However, the complainant also said that MSA told her that he had driven the car forward accidentally rather than on purpose.

[226] While I accept that the complainant honestly believes that MSA intended to drive the car onto her foot, and while it is likely that this is the case, I am not persuaded beyond a reasonable doubt that this was in fact his intention. I therefore find MSA not guilty of count 9.

j. Count 10: Slap on face during argument over use of car in 2012

[227] The complainant said that sometime in 2012, MSA slapped her on the face while they were arguing over the use of her car. The complainant was cross-examined over the fact that in her family law documents, she had said that MSA slapped her on the face twice, whereas in her trial testimony she said he had only slapped her once. The complainant explained the inconsistency by saying that in her family law documents, the statement that MSA had slapped her twice was made in error. The complainant said that she failed to notice the mistake when her family law documents were filed and she reaffirmed that MSA only slapped her once rather than twice.

[228] As I explained earlier, it would have been an easy matter for the complainant to have attempted to explain away the inconsistency by revising her trial evidence and claiming that MSA had slapped her twice. The fact that she did not do so and, in fact, acknowledged that there had been a mistake in her family law documents, suggests that the complainant was being candid and avoiding exaggeration in her trial evidence. As such, this ultimately enhances rather than detracts from her credibility.

[229] I therefore accept the complainant’s evidence that MSA slapped her on the face during this incident and find that the Crown has proven beyond a reasonable doubt that MSA is guilty of count 10.

VIII. Disposition

[230] I find MSA guilty of the following:

a. the five separate sexual assaults alleged in Count 1;

b. the sexual assaults alleged in counts 2 through 7;

c. the assault with a weapon alleged in count 8; and

d. the assault alleged in count 10.

[231] I find MSA not guilty of the charge of assault with a weapon alleged in count 9.

P. J. Monahan J.

Released: June 7, 2022

COURT FILE NO.: 20-30000303

DATE: 20220607

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M. S. A.

REASONS FOR JUDGMENT

P. J. Monahan J.

Released: June 7, 2022

[^1]: R.S.C., 1985, c. C-46 (the "Criminal Code").

[^2]: David M. Paciocco, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (2017), 22 Can Crim L Rev 31, at p. 57.

[^3]: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 27-28; R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. G. (G.) (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 7-10; R. v. S. (W.) (1994), 1994 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.), at p. 250, leave to appeal refused [1994] 2 S.C.R. x (note); R. v. Norman (1993), 1993 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 173-174; R. v. C. C., 2018 ONSC 1262, at paras. 61-62.

[^4]: 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-14.

[^5]: 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

[^6]: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 58; aff’d2018 SCC 6, [2018] 1 S.C.R. 218.

[^7]: R.S.C., 1985, c. C-5 (the "CEA").

[^8]: 2019 ONCA 380, 146 O.R. (3d) 1, at paras. 63-72.

[^9]: See R v. Bulldog, 2015 ABCA 251, 326 C.C.C. (3d) 385 (“Bulldog”), at paras. 38-39 (holding that proof on a balance of probabilities, as opposed to proof beyond a reasonable doubt, is sufficient to authenticate an electronic record. This follows from the basic rule, confirmed by the Supreme Court of Canada in R v. Menard, 1998 790 (SCC), [1998] 2 S.C.R. 109, that the standard of proof beyond a reasonable doubt “applies only to the jury’s final evaluation of guilt or innocence and is not to be applied piecemeal to individual items or categories of evidence”: at para. 23.

[^10]: See section III (d) of these reasons.

[^11]: Defence counsel did not object to the initial admissibility of the July 6, 2018 text message exchange, although he suggested that this exchange had also been improperly edited by the complainant.

[^12]: 2015 ONSC 7257 ("Razzaq").

[^13]: 2020 ONCA 229 ("A.S.")

[^14]: 2022 ONSC 1192, at para. 48.

[^15]: 2015 TCC 280, at para. 240.

[^16]: Other cases advising caution in relying upon the timestamps in electronic documents include Lalli v. Athwal, 2017 BCSC 1931, at paras. 93-94, 108, 112-113; Wu v. Lee, 2016 BCSC 592, at para. 495; and R. v. Hamdan, 2017 BCSC 676, 349 C.C.C. (3d) 338, at para. 35. See also David M. Paciocco, "Proof and Progress: Coping with the Law of Evidence in a Technological Age" (2013) 11:2 CJLT 181 (Paciocco, "Proof and Progress"), at p. 198.

[^17]: Bulldog, at paras. 34-37.

[^18]: See Paciocco, Proof and Progress, at pp. 184-85 (cautioning against excessive resort to expert evidence in order to establish the authenticity of electronic documents, arguing that routinely requiring such evidence would be unduly time-consuming, and raise trial efficiency, cost and access to justice concerns.)

[^19]: These recordings are as follows: (i) the recording of the alleged sexual assault in late 2017 or early 2018 during which time the complainant told MSA to "get off her"; and (ii) the recording of the alleged sexual assault in late 2017 or early 2018 which was interrupted by their son AA coming into the room.

[^20]: It might be thought that the audio recordings constitute hearsay, since they include utterances by the complainant and the accused. But the audio recordings are merely a recorded version of interactions described by the complainant in her evidence in chief which are said to be sexual assaults. Any utterances on the recordings are not hearsay because they are not being offered for the truth of their contents but, rather, as evidence that they were in fact made in the manner described by the complainant. To put this another way, whether evidence of the utterances is in the form of the complainant’s viva voce testimony, as opposed to through recordings she made of the same utterances, cannot affect the determination of whether evidence of the utterances constitutes hearsay. There is no dispute that the complainant can testify as to utterances that were made in the course of the alleged sexual assaults, since such utterances constitute direct evidence of the subject matter of the offences. If the complainant can offer viva voce evidence as to such utterances, it necessarily follows that a recording of the same utterances is similarly admissible, because in neither case is the evidence hearsay.

[^21]: R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-58; David Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2018), at §36.04.

[^22]: See section I (a)(vii) of these reasons.