ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J(P) 690/21
DATE: 2022/02/25
B E T W E E N:
HER MAJESTY THE QUEEN
Marios Thomaidis, for the Crown
- and -
A.M.
David Locke and Glen Henderson, for the Accused
HEARD: October 26, 27, 28, 29 December 13, 14, 15, 16, 2021
RESTRICTION ON PUBLICATION
Pursuant to s. 486.4 of the Criminal Code an order has been made directing that any information that could identify the complainant or a witness not be published in any document or broadcast or transmitted in any way.
REASONS FOR JUDGMENT
Bloom, J.
I. INTRODUCTION
[1] The accused is charged with assault and sexual assault upon his then wife, A.B., on May 3, 2019 at the City of Brampton, and with sexual assault upon her on May 9, 2019 at the City of Brampton. I shall refer to the alleged victim as A.B.
[2] The only witnesses at trial were A.B. and the accused. The central issue is whether the Crown has proven the offenses charged in accordance with the principles first set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and subsequently developed by the courts.
[3] I shall first set out the undisputed facts and then review the testimony of the witnesses.
II. UNDISPUTED FACTS
[4] A.B. was born in India and was 31 years old in November of 2021.
[5] She has a Bachelor of Arts, Bachelor of Education, and Master of Arts obtained in India; she studied for all three degrees in English.
[6] She and the accused met at a wedding reception on February 9, 2018 in India. They became engaged on February 21, 2018. They were married on March 11, 2018. They took their honeymoon for 5 or 6 days in Singapore.
[7] After the honeymoon, they lived in India for about a month, and then approximately the first week of April of 2018 the accused went to Canada where he had lived for 7 or 8 years prior to meeting A.B.
[8] The accused returned to India at the end of October of 2018. On April 1, 2019 the accused, A.B., and the mother of the accused landed in Toronto; they stayed at first at the home of a friend of the accused in Barrie. The accused, A.B., and the accused’s mother moved to a basement apartment in Brampton.
[9] The accused was working as a driver for FedEx.
[10] On June 15, 2019 all three of them attended a birthday party in Brantford hosted by an aunt of A.B. The brother of A.B., his wife, and their daughter had come to Canada for a vacation.
[11] The next day, June 16, 2019, everyone went to visit Niagara Falls.
[12] Her brother, in the presence of A.B., her aunt, and her brother’s wife, spoke to the accused about his relationship with A.B. The accused then went home with his mother, A.B. remaining with her brother.
[13] After June 16, 2019 the accused and A.B. did not communicate. She complained to the police about the matters, which are the subject of the charges before the court, about a week later. She filed for divorce in approximately June or July of 2021.
[14] After A.B. complained to the police she remained in Canada; in January of 2020 she went back to India to live with her parents. She subsequently returned to Canada for the preliminary inquiry and stayed in Canada.
III. TESTIMONY OF THE WITNESSES
[15] I intend now to summarize the salient points of the evidence of the two witnesses beyond the undisputed facts.
A. Testimony of A.B.
[16] I will first summarize the important points in the examination-in-chief of A.B.
[17] After the accused and A.B. were married and before they came with his mother to Canada, she took care of his parents in India in accordance with the cultural tradition she shared with the accused. Her duties included doing household chores.
[18] Prior to her marriage, her parents permitted her to come and go as she pleased; she also had her own telephone and car. After the marriage while in India she was restricted in seeing her parents or other relatives while she was alone.
[19] She raised these restricitons with her husband while they were living in India.
[20] These restrictions were also imposed on A.B. by the accused in Canada.
[21] She was not initially aware that her husband’s mother was to come with them to Canada. A.B. would have preferred to have first settled in Canada with her husband, and then be joined there by his mother.
[22] In Brampton, A.B. did the housekeeping and cooking, while the accused worked outside the home. She had thought that she would have a job and see her relatives and friends as she chose. Instead, the accused and his mother did not allow her to visit her family and friends in neighbouring communities. She had no car, nor did she have a full driver’s license. The accused had an automobile. She was never allowed by the accused to obtain an OHIP card.
[23] She had no Canadian telephone number. She called her parents on a cellular phone she had brought from India, but her mother-in-law sat beside her when she did. She could not take her phone with her while she was alone in a room. The accused imposed these restrictions on her regarding the use of her phone.
[24] The first incident, subject of the charges before the court, occurred on May 3, 2019. It was a Friday.
[25] The accused came home early from work. They had dinner at 9:45 p.m. or 10:00 pm. After dinner they watched television, and went to bed at 10:45 p.m. or 11:00 p.m.
[26] A.B. and the accused went to their own bedroom. His mother had her own bedroom.
[27] The accused and A.B. lay next to each other in bed.
[28] She wore a loose t-shirt or other top, and a pajama bottom. She wore underpants, but not a bra.
[29] He wore loose shorts.
[30] She asked him for a Canadian telephone number and also to be allowed to see her relatives more frequently. He wanted her to used the Indian phone. He became angry and went to the washroom. When he returned, she raised the phone issue again.
[31] He was angry. He grabbed her at collar level. He tried to hit her, but missed as she leaned back. She came forward, and he hit her on the right cheek with what she believes was the back of his hand, because the blow was not hard. She believes that his hand was open rather than in a fist.
[32] She told him that he could not hit her like that. He said nothing.
[33] He held her arms down with his legs. He forced his penis into her mouth. She vomitted into her mouth, but did not expel the vomit. Then he took off her lower garment and forced vaginal intercourse on her. She tried to push him away, but could not. The events transpired quickly. She told him to stop, but he did not respond. He ejaculated. He left the room after the incident.
[34] She has tried to remove the events from her memory to minmize her anxiety; for that reason she is not too sure of the events.
[35] After the incident, she lay in bed on her back and cried. She did not speak to him. He told her everything would be all right, but she did not respond to him.
[36] The next morning, she did not raise with him the issue of what had happened, and went about her usual routine. She did not speak to him normally for one day, because she was angry.
[37] She testified about the alleged incident of May 9, 2019.
[38] She had a urinary tract infection. She and the accused had dinner at 9:00 p.m. or 9:30 p.m.; and went to bed at approximately 10:00 p.m.
[39] The accused was drunk, and they were lying next to each other. The accused was using his phone. She had her back to him.
[40] She wore a loose top and pajama bottom. He wore only shorts.
[41] He asked for sexual activity. She refused, explaining that she had a urinary tract infection.
[42] He tried to perform anal intercourse on her, but the pain of her infection prevented that act. Then he forced vaginal intercourse on her. She said no, and tried to pull him away.
[43] She was in pain; she drank water and slept.
[44] Things normalized between them over the next few days.
[45] At the June 15, 2019 party the accused was angry with her for not staying with his mother as he had requested.
[46] On June 16, 2019 her brother asked her whether she was content in her marriage. She replied that she was, and then cried. She explained to him her concerns with the restrictions on her phone, contacting her relatives, and acquiring an OHIP card, which had been imposed on her by the accused. She did not refer to the May 3 and 9 incidents.
[47] Her brother spoke to the accused for about 15 minutes outside the pizza shop where they were eating. Her brother asked the accused the reason for the restrictions. The accused replied that her brother had no right to make the inquiry. He aunt interjected that the accused would have to give her freedom. The accused replied that he would decide whether to give A.B. more freedom.
[48] After June 16 the fathers of A.B. and the accused tried to resolve the situation. Her father proposed that the accused apologize to her, and that she then return to him. The accused refused to apologize.
[49] Her father dealt with the Nonresident Indian Commission or NRI in India to try to recover the money he had spent on her marriage.
[50] I will now summarize the important points in her cross-examination.
[51] She testified that she had misrepresented facts in her resume to make it appear stronger.
[52] She testified that her relationship with the accused in India was good, yet she had described herself at the preliminary inquiry as like a slave. She explained that she had used that description, because her husband had not cared for her feelings. She stated that he did not permit her to meet her parents or meet people alone. She admitted that in India her husband had negotiated with his parents that she could visit her parents 2 or 3 days at a time.
[53] She admitted that the complaint to the NRI commission was filed for her by her father; that she had told him what happened so that he could write the complaint; that she had read the complaint; and that she had adopted it as true. She admitted that she believed that criminal consequences could come to the accused as a result of the complaint.
[54] She stated that the complaint referred to her being sexually assaulted by the accused. Further, she agreed that the complaint was untrue in stating that the accused had not allowed her to apply for a driver’s license, in stating that the accused did not allow her to apply for a health card, in stating that she was not allowed to stay with her parents for a single day after the marriage, and in stating that she had been beaten by the accused and his parents for not providing an adequate dowry.
[55] A.B. did not recall whether or not she had gone shopping with the accused on the night of the alleged May 3 incident.
[56] As to the accused drinking alcohol on the evening of May 9, she testified that she stated that he was drunk, because he had consumed alcohol and she could smell alcohol on his breath. She admitted that he normally drank 1 or 2 and sometimes 3 or 4 beers.
[57] She admitted that she was in error when she told the police on June 29, 2019 at a video interview that during the May 9 incident the accused had tried to force his penis into her mouth. She testified that this event had instead occurred during the May 3 incident.
[58] She admitted that she erred in telling the police during the interview that the door to the bedroom in which the May 3 incident occurred was locked; she testified that it had no lock, but was just closed.
[59] She testified that she felt stressed when she was being interviewed by the police.
[60] In re-examination A.B. testified that in both Canada and India the accused imposed on her a great deal of restrictions on her interactions with others without discussion with her. For example, she could not spend in Canada her own money which she had brought from India.
B. Testimony of the Accused
[61] I will summarize now the important points of the accused’s examination-in-chief.
[62] He was born in India on January 3, 1990. He came to Canada on December 30, 2007. He has a Bachelor’s of Business Administration from Laurentian College in Sudbury. He came to work at FedEx.
[63] He married A.B. on March 11, 2018 in India. They spent their honeymoon in Singapore for 5 or 6 days, and then returned to India. There they stayed with his family, but visited her family too.
[64] He went to Canada and stayed with a friend in Brampton. He also worked for FedEx. He returned to India in October of 2018.
[65] A.B. visited her family every weekend. She went for weekends, not the 3 or 4 days she requested. They had arguments over how often she would visit her family.
[66] On April 1, 2019 he, A.B., and his mother came to Canada. The next day they acquired a Social Insurance Number for A.B. at Service Canada. They could not acquire an OHIP card for her, because she had to be in Canada for 3 months first.
[67] About a week after their arrival in Canada she applied for a driver’s license in Brampton.
[68] She had a cellular phone which she had brought from India. He did not acquire a SIM card for it right away; he intended to wait for her to get a job before he obtained a SIM card for her phone. Her phone was an IPhone. She could call or text anyone on it. While a phone with a SIM card functions without Wi-Fi, her phone required Wi-Fi to work.
[69] She tried 3 jobs and quit all of them.
[70] A.B. raised with him the question of obtaining a SIM card 6 or 7 times in the two and one half months they were in Canada together.
[71] During the month of April of 2019, A.B. and he were busy settling down. Then issues such as the SIM card started to produce friction between them.
[72] May 3, 2019 in the early evening he was lying on the couch and she was on the couch beside him. She was texting him to avoid his mother knowing of their arguments.
[73] They went shopping together for two or three hours. They resolved the disputes they were having. They came home, ate dinner, watched television, and went to bed. He did not ever assault her by slapping her and did not sexually assault her that night.
[74] It is possible that he had sexual intercourse with A.B. on May 3, 2019. He does not remember whether he had sexual intercourse with her on May 3, because they regularly had consensual sexual intercourse.
[75] On May 8, 2019 she told him that she had a urinary tract infection, and he asked her whether she needed to see a doctor for it. She answered that she did not. After a few days she recovered.
[76] He never assaulted A.B. or sexually assaulted her. He cannot remember whether he had sexual intercourse with her on May 9, 2019, since he had consensual sexual intercourse with her from time to time.
[77] He was never drunk in front of his mother. She did not know that he consumed alcohol. He bought one or two cans of beer from time to time. He consumed it in the bedroom of himself and A.B. or sitting in his driveway to conceal his drinking from his mother.
[78] From May 10, 2019 to June 16, 2019, A.B. and he argued about whether she would get a SIM card, whether she would get driving lessons from a private instructor, whether his mother would accompany her places, and whether she would obtain her jewelry from a locker in Bolton where it was stored for safety. On the last point, A.B. wanted to keep it locked up in Bolton and he wanted her to keep some at home to avoid the trip to Bolton.
[79] On June 15, 2019 A.B., the accused, and his mother went to a party in Brantford. He had asked A.B. to check on his mother among the women at the party, because she did not know people at the party. His request upset A.B., but he did not consider the matter serious.
[80] On June 16, 2019 they woke up early at her aunt’s house in Brantford where they had stayed. Then they, his mother, and members of her family, including her brother, went to Niagara. They all went to a Boston Pizza for lunch.
[81] Her brother called him outside; A.B. and her sister-in-law were also there.
[82] Her brother raised the issue of the acquisition of the SIM card and asked why his mother was on the visit to Niagara. The accused and A.B.’s brother became angry. A.B.’s brother said that he wanted to beat up the accused. The accused told him that he could beat up the accused now if he wanted.
[83] A.B. stood with her brother, and the accused realized that she was going with him. The accused and his mother left. A.B. stayed with her brother who had challenged her to stay with him or go with the accused.
[84] The accused was upset and embarrassed.
[85] The accused felt that he had to reassess his relationship with A.B. He decided that they were not compatible; that the same disagreements would continue to arise; and that he should leave the relationship.
[86] His father and hers tried to convince him to try the relationship again. He told his father to inform her family that the relationship would not work. He and A.B. did not speak again by text message or in person. She only came back to their home with the police to pick up her possessions.
[87] He was the subject of a complaint to the NRI commission lodged there against him and his family. Regarding that complaint, he denies ever beating A.B., although it was alleged in the complaint that he did. Further, as to the dowry issue raised in the complaint, he stated that there was no dowry; in fact, he stated that A.B.’s father wanted to give him a car, but he refused to take it.
[88] I shall now summarize the important points in the accused’s cross-examination.
[89] The accused admitted that he was stubborn about the issue of a SIM card for A.B. She was also stubborn on the matter. She wanted him to pay for a SIM card for her, but he did not stop her from using her own money to buy one.
[90] While he drank in front of her, he was not drunk in front of her; she could consider someone drunk who had merely consumed alcohol, since she was not knowledgeable about that issue.
[91] A.B. obtained a driver’s license in Brampton within the first two weeks after their arrival in Canada; and they obtained a health card and Social Insurance Number for her while they stayed in Barrie immediately upon their arrival.
[92] At the June 15, 2019 party he was speaking with the men, but not the women, because he did not know them. He asked, but did not force A.B. to check on his mother, because his mother did not know the people at the party whereas they were A.B.’s family.
[93] The complaint to the NRI commmission was untrue. It was settled.
[94] On May 3, 2019 he was lying on the couch trying to rest. He had the blanket over his head and was looking at the news on his cellular phone under the blanket. He was not hiding under the blanket.
[95] It could have been around May 9, 2019 that A.B. had a urinary tract infection. She told him about it, and he offered to take her to a doctor. She asked for cranberry juice to treat the infection as her mother had advised her.
[96] He did not remember whether he had sexual intercourse with A.B. on May 9. He did not have sexual intercourse with her when she had the infection. He did not take advantage of her on May 9. He never had non-consensual sexual intercourse with her. She never told him that she did not want to have sexual intercourse with him, because she had a urinary tract infection.
[97] As to May 3, he did not remember what happened in the bedroom that night, because their arguments had settled. The SIM card issue was constant between him and A.B.
[98] He remembered the evening of May 3, but does not remember if A.B. came out of the bathroom and raised the SIM card issue again.
[99] He never assaulted his wife or sexually assaulted her. He never hit her during their relationship.
[100] He never forced his penis into her mouth. He never forced her to engage in vaginal intercourse with him.
IV. ARGUMENTS OF THE PARTIES
A. Arguments of the Crown
[101] The Crown submits that the principles set out in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) apply to the case at bar.
[102] Further, the Crown argues that a trial judge can reject the evidence of the accused and make a finding of guilt solely based on the acceptance of the complainant’s evidence, provided that the judge assesses the accused’s evidence fairly, and allows for the possibility of being left in reasonable doubt despite acceptance of the evidence of the complainant. This proposition is said to apply even if the evidence of the accused had no obvious flaws; however, the Crown contends, the accused’s evidence in the case before me does have obvious flaws.
[103] Those flaws included a lack of detail in respect of what occurred at the time of the alleged incidents on May 3 and 9 of 2019. A related failing is stated to be selective memory in the sense that the accused remembered certain details of events and not others, such as recalling pieces of conversations with A.B. and not recalling whether he had sexual relations with A.B. on May 3 and 9, 2019. Additonally, the Crown argues that the accused was duplicitous in the life he led; for example, he hid from his mother the fact that he drank alcohol.
[104] Moreover, the Crown submits that in assessing the credibility of the accused and A.B. I should assess which of their accounts of the marital relationship was true; and that, if I find that the accused’s account was internally inconsistent and otherwise not believable, I should also find against him on the issue of credibility of his answer to the charges, given the other flaws in his evidence.
[105] The Crown argues that A.B. was forthright in her testimony; cross-examination did not weaken her credibility.
[106] The Crown submits that the complaint to the NRI commission was civil in nature, was concerned mostly about money, and settled in any event.
[107] Finally, the Crown argues that the complainant’s evidence about the nature of the marital relationship was credible, and, therefore, her testimony about the alleged offenses ought to be believed.
B. Arguments of the Accused
[108] The Accused argues that based on the application of the W.(D.) principles he must be acquitted.
[109] He submits that, while a finding of guilt can be made where exculpatory evidence from the accused has no obvious flaws, this case is not one where that finding is warranted. The reasons for that conclusion include the fact that the evidence of the complainant is flawed, and there is no significant confirmatory evidence for her testimony.
[110] The accused rejects the Crown’s contention that I should assess whether his or A.B.’s characterization of the marital relationship is true in my determination of their credibility in relation to the incidents subject of the charges. The accused contends that spouses often see marital relationships differently, and that I should not determine the nature of their relationship in this case. In any event, the accused argues that he did not mistreat A.B.
[111] The accused submits that, contrary to the Crown’s argument of selective memory, his memory was refreshed on detail by reference to documentation. Further, he asserts that the Crown’s argument of selective memory is unfair, since the Crown made no effort to cross-examine him based on that contention.
[112] The accused submits that the complainant’s credibility suffers from the fact of her lies in the complaint to the NRI commission.
[113] Her credibility also suffers from the presence of further inconsistencies in her evidence.
[114] The accused submits that A.B. lied to the police in telling them that the door to the bedroom in which the May 3 incident is alleged to have occurred was locked, admitting at trial that it was just closed. The lie, asserts the accused, was to falsely explain why his mother did not enter the room after hearing noise from assaultive conduct.
[115] The accused submits that he remembers what one would expect a person to remember when his memory was refreshed, for example by the WhatsApp messages used for that purpose in this case. His testimony that he has no specific recollection of sexual relations with A.B., because he had such relations, always consensual, on a continual basis, accords with common sense.
[116] His evidence is capable of belief and certainly raises a reasonable doubt. There is, moreover, a reasonable doubt on the Crown’s own evidence.
V. GOVERNING PRINCIPLES
A. The Presumption of Innocence and the Standard of Proof
[117] In R. v. Nyznik, 2017 ONSC 4392, [2017] O.J. No. 4138 at paras. 11 to 16 (Ont. Sup.Ct.) Justice Molloy considers the presumption of innocence and standard of proof in cases of sexual assault:
11 As I have stated, the presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case just the same as in any other criminal trial. However, there are aspects of sexual assault cases that can make the application of the standard a difficult one.
12 First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from the complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other -- the classic "he said/she said" scenario. In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt….
13 To assist in the proper application of the burden of proof when there are competing versions of what happened, the Supreme Court of Canada has recommended that the issue be considered in three steps, as follows:4
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
14 This instruction, commonly referred to as "the W.(D.) instruction," has become another standard instruction given to all criminal juries, and criminal trial judges will generally instruct themselves in the same manner. However, as was said in the W.(D.) case itself, and in subsequent decisions of the Supreme Court of Canada, there is no particular magic in the incantation of these three steps.5 It is not essential that the trial judge rigidly follow the three steps in the W.(D.) instruction. What is critical is for the judge to avoid turning the fact-finding exercise into a choice as to which is the more credible version of the events. This cannot be a credibility contest, with a conviction if the complainant wins the contest and an acquittal if the defendant does. To treat it as such would be to improperly shift the burden of proof. Rather, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict. Even in a situation where the trial judge completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, he or she must then assess the evidence as a whole and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt. In some cases, even without any evidence from the defence, it is not possible to be satisfied beyond a reasonable doubt based on the evidence of the complainant.
15 Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness' evidence -- whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt….
There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.
[118] In R. v. T.B., [2019] O.J. No. 3634 at paras. 39 to 41 (Ont. Sup. Ct.) Justice Nieckarz explicates the W.(D.) principles:
39 Steps one and two of the W. (D.) framework must be addressed in the context of all of the evidence. Considering the evidence of the accused in isolation, without weighing it against other evidence is incorrect. No evidence should ever be assessed in isolation when determining credibility: R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) at para. 15.
41 With respect to the second step in the W.(D.) analysis - you must acquit if you do not believe the testimony of the accused but you are left in reasonable doubt by it - this does not require complete rejection or actual disbelief of the accused. It refers to the judge being unable to believe the accused but being left in a state of uncertainty where the trier of fact simply does not know what to believe. This second step of W.(D.) captures the middle ground of being unsure where the truth of the matter lies. If, after a careful consideration of all of the evidence, a trier of fact is unable to decide whom to believe, the accused must be acquitted: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152 at para. 11.
[119] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R.3 at para. 66 Chief Justice McLachlin further clarifies the application of the W.(D.) principles:
66 Finally, the trial judge's failure to explain why he rejected the accused's plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge's reasons made it clear that in general, where the complainant's evidence and the accused's evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused's denial. He gave reasons for accepting the complainant's evidence, finding her generally truthful and "a very credible witness", and concluding that her testimony on specific events was "not seriously challenged" (para. 68). It followed of necessity that he rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt.
[120] To the same effect are the reasons for judgment of Justice Huscroft for the majority of the Ontario Court of Appeal in R. v. R.A., 2017 ONCA 714 at paras. 55 and 56; affirmed at 2018 SCC 13, [2018] S.C.J. No. 13:
55 Although the trial judge's reasons are relatively brief, they are responsive to the live issues in the case and the parties' key arguments: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.D. The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant's evidence, but nor did he reject it simply because he accepted the complainant's evidence.
56 The trial judge was entitled to reject the appellant's evidence "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence": R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53. That is what occurred in this case.
[121] The Ontario Court of Appeal in R. v. C.L., 2020 ONCA 258 reiterated the importance of the W.(D.) principles and, thereby, placed the comments I have cited above from R. v. R.E.M., supra and R. v. R.A., supra in context.
B. Inconsistencies in Evidence and Credibility
[122] Justice Nieckarz in T.B., supra at para. 46 discussed principles relating to credibility:
46 In R. v. M. (A.), 2014 ONCA 769, the Court of Appeal succinctly set out the following principles, which are particularly relevant to this case:
[12] Fourth, 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 she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.
[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 31.
VI. ANALYSIS
[123] Both the Crown and the accused agree that the case before me turns on the assessment of the credibility of the witnesses and the application of the W.(D.) principles developed by the courts. In addressing those matters I have considered the undisputed facts, all of the evidence, the arguments of the parties, and the principles set out above.
A. The Credibility of the Accused
[124] I do not accept the testimony of the accused as credible. I come to that conclusion because I am not convinced he has no recollection of whether he had any sexual intercourse with the A.B. on the nights of May 3 and May 9, 2019.
[125] His general assertion that he cannot remember whether he had sexual intercourse those two nights, because he often had consensual sexual intercourse with her is troubling. It is true that, as the Defence contends, his memory on matters was refreshed by the use of documentation. However, while he remembers, for example, A.B.’s having a urinary tract infection, the party of June 15, 2019, and the events of June 16, 2019, I find it unsettling that he has no recollection whether he had sexual intercourse with A.B. on the two nights in question.
B. The Credibility of A.B.
[126] I do not accept the testimony of A.B. as credible. I find that the complaint to the NRI commission contained a number of lies which she had sanctioned as true, despite her knowing that the complaint was part of a legal process in India. For example, she admitted in cross-examination that it was not true that the accused had prevented her from spending a single day with her parents after her marriage; and that it was not true that the accused and his parents had beaten her because her dowry was inadequate. Both matters were subject of assertions in the complaint.
C. The Application of the W.(D.) Principles
[127] For reasons I have already stated, I do not believe the accused’s assertions that he did not assault or sexually assault A.B.
[128] However, in the context of all of the evidence his evidence leaves me with a reasonable doubt as to whether the offenses have been proven. I do not find the testimony of A.B. credible as explained above. I am left in uncertainty as to what occurred on the nights of May 3 and 9, 2019.
[129] I am not convinced by evidence which I accept of the guilt of the accused beyond a reasonable doubt on any of the charges before me. Accordingly, I acquit the accused on all charges.
Bloom, J.
Released: February 25, 2022
COURT FILE NO.: CRIM J(P) 690/21
DATE: 2022/02/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Marios Thomaidis, for the Crown
- and –
ATINDER MAVI
David Locke and Glen Henderson, for the Accused
REASONS FOR JUDGMENT
Bloom, J.
Released: February 25, 2022