Court File and Parties

Court File No.: CR-22-578 Date: 2024-03-06

Ontario Superior Court of Justice

Between:

His Majesty The King Joshua Ng for the Crown

- and –

N.(P.) Yogesh Gupta for the defendant Nain

Heard: January 8, 10-11, 2024

THERE IS A PUBLICATION BAN ON ANY EVIDENCE THAT WOULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS JUDGMENT COMPLIES WITH THIS BAN AND CAN BE PUBLISHED.

Reasons for Judgment

D.E Harris J.

[1] The defendant P.N. stands accused by his ex-girlfriend, A, on a seven-count indictment with a number of assaults, a mischief and threatening death. The most serious allegation is that of sexual assault.

[2] The accused, now 22 years old, testified in his own defence and with one exception involving a slap, denied the allegations. He relied on self-defence and consent fight to argue that he should be found not guilty of that offence as well. Besides the complainant, the Crown called N., A.’s long time roommate to confirm some of the allegations.

[3] The defendant and A., 23 years old, first met in their native India when they were both taking classes in preparation for emigrating to Canada. In Canada, she saw him just before Xmas in 2019 at Yorkdale. In April of 2020 she moved in with him at an address in Brampton. A romantic relationship commenced around that time.

The Complainant’s Evidence

[4] It was A.’s evidence that after a period of time, she came to know that the defendant was married to a woman in India and had two children of the marriage. She was angered and hurt by the defendant’s deception. She was distraught and crying. A. packed her suitcase to move out.

[5] The defendant made a promise to A. He told her that he could not live without her and did not want to lose her. There was an emotional argument between them. At one point, according to A., he became angry with her. He brought her water but she refused it. Out of spite he threw the glass at her. It missed her, hit the wall and then broke after falling to the floor. He held her tightly and said that he would divorce his wife. He would die without her. In this emotional situation, he punched the wall, breaking the drywall. The discussion and emotional back and forth went on for hours. This incident is charged as count one, assault with a weapon.

[6] In cross-examination, A. testified that a picture was put over the damage on the wall to conceal it. A photograph of the defendant sitting on the bed taken on July 6, 2020 was introduced into evidence. There is a sticker on the wall but no picture on the wall. More importantly, it was A.’s evidence that she learned of the defendant’s marriage in 2021 but then changed that to November or December of 2020. But she ultimately accepted that this incident charged in count one, based on the photograph, must have happened in July of 2020 as indicated on the photograph. That would have been before finding out about the defendant’s marriage. The importance of this is that the finding out about the marriage was the necessary context and the motive for the argument, the assault and the damage to the wall. The timing testified by A., ultimately, did not make sense.

[7] This became just one example of the shifting testimony of A. Ultimately, count one was, based on the photograph of the defendant sitting on the bed introduced by the defence, amended from an offence date of November 1, 2020—December 25, 2020, to the month of July 2020. Remarkably, each of the seven counts of the indictment were also amended to conform with the evidence, except count seven which was amended only to rectify a typographical error with respect to the year.

[8] A variation in time between the evidence at trial and the indictment is not material to the validity of a charge: s. 601(4.1) of the Criminal Code R.S.C., 1985, c. C-46. It is extremely common that a witness’ memory with respect to the date of an offence is murky. This accords with human experience.

[9] But in this instance, it was not simply a matter of not being sure of the date. The context was an argument about discovering a secret turning their romantic relationship upside down. The defendant was already married and had a family. The assault and the damage to the wall occurred at the time of this revelation and was correlated to it. A. was unsure about whether her discovery of the defendant’s marriage was at the beginning of the relationship or considerably further on. While Mr. Ng appeared to concede that this discrepancy impacted on A.’s reliability, it went further than that. It had significant repercussions touching her credibility.

[10] In another incident, A., N. and the defendant were at Bramalea City Centre. There was an argument and he went home alone. When A. arrived in a cab, according to A., he slapped her. The defendant took her inside and continued to assault her. She warned him that she was going to call 911 and the defendant tried to snatch the phone, but it fell and broke on the floor. Soon after this testimony, she changed that and said that he threw it on the floor. This incident was charged as count 2, assault, and count 3, mischief to property, i.e. the cell phone. The original date specified in the indictment was August 1 to September 30, 2021 but this was amended to January 1-31, 2022.

[11] A. originally testified that a video shown in court that was recorded from her cell phone was taken several days after this incident. She said it showed a bruise under her eye, but I could not discern any discolouration. The quality of the video was poor. It was shot at night in a car. A. testified that there was light rain falling which was almost in the form of snow because of the cold. The Crown ultimately conceded that this video was not actually in the aftermath of the allegation in court two.

[12] N., A.’s longtime roommate and a close friend of the defendant’s as well, lived with the couple for a period of time mid-way through their relationship. N. testified for the Crown and confirmed count two and the later assault in count four as well. Yet with respect to this incident in count two, she confirmed the alleged assault but denied that the phone was broken that day. Indeed, in her prior cross-examination, A. had previously agreed that the assault in count two did not happen on the same day as when the defendant broke her phone, as she had first testified. This was another example of the shifting sands of A’s evidence. This was not simply about the dates being wrong. While it is unreasonable to expect that the date would be consistent, whether the act of breaking the phone occurred at the same time as the assault is a completely different matter. It ought to have been clear in A.’s mind.

[13] After moving to a new address, one day while the defendant was driving with her from Hamilton to their house in Brampton, they began arguing. Out of anger, she testified that he drove into another car. A.’s evidence was that he said he wanted to kill himself. But she agreed the damage to the car was to the right rear bumper. This made little sense as she testified that at no time did he reverse; he drove into the other car frontways. The defence alleged that the evidence about the damage to the car was to falsely denigrate the defendant. That was a plausible explanation.

[14] According to A., they arrived in their driveway and when she tried to get out of the car, he held her by the neck, choking her. He punched her in the chest. She tried fighting back, and used her fingernails on his face, causing a scratch on his ear. The defendant punched her on the leg. Their roommate N. was present and observed what was happening. She knocked on the window. A. could not open the car door. N. went to the driver’s side of the car and spoke to the defendant who told her it was a personal matter. He told her he would handle it and she should go away. Eventually A. got out of the car and N. escorted her to their basement apartment. This was count four, an allegation of assault.

[15] In cross-examination, it was elicited that in her police statement, A. did not say anything about being choked or punched in the chest. That is concerning as these were the most serious assaults during this incident and the major focus of A’s testimony on this count.

[16] N. testified to observing this attack. However, I would reject her evidence on this count and also on the previously discussed count, count two. I am convinced that she perjured herself in testimony on this trial. What leads me to this conclusion is this. Defence counsel, when his cross-examination of A. was to resume the next day, requested that I order A. not to discuss her evidence with anyone. When the order was made, A. said that she understood and appeared sincere. The next morning, January 10, 2024, she admitted, with no trace of contrition or any visible apprehension that she had violated the order, that she had discussed the trial that very morning with N., her roommate. She testified that she had asked N. whether the car was in her name or the defendant’s name.

[17] N., in her cross-examination by defence counsel later on that same day, admitted that she was close friends with A. The two have been roommates for many years. She testified that at home, they had not talked about the trial the previous night. A. said that she had a headache. Nor did they speak in the morning about the trial before coming to court. Directly contrary to A.’s evidence, N. was asked quite specifically if anything was discussed about the car and she answered, with a slight hesitation, that there was not.

[18] The issue of the car and its ownership was the subject of significant evidence from both A. and N. It was a material issue on this trial because of the alleged damage to it and the suggestion that the allegation of damage was fabricated. It is not a subject, however, that needs to be touched on in any substantial detail in these reasons. Nonetheless, the evidence of A. and N. on the subject of whether there was conversation about the car the morning of January 10, 2024 is irreconcilable. Mr. Ng eventually agreed that A.’s version that there was conversation about the car must be correct. She had no reason to make up this conversation and, her admission that there was talk about the car was against her interest, particularly because it demonstrated indifference towards complying with a court order.

[19] I conclude that N. lied about not talking about the car for the purpose of misleading the court. That fact, in the context of her close relationship with the complainant, leads me to reject her evidence in its entirety. N. showed herself willing to falsify her evidence in order to advance the prosecution’s case against the defendant. There can be no more serious strike against a witness’s credibility. Also, because of the closeness between the two women, N.’s perjury leaves concerns with respect to collusion in this case,

[20] Moving on to the next count, A. testified that after the alleged assault, a little later in their bedroom, the defendant held her legs and said that he was sorry. She pushed him away. She was not listening to him. He pushed her on to the bed and in the process, she scratched her leg on the metal part of the bed. She showed him the scratch and said that she was in pain. There was a photo of the leg with a slight injury but I am not convinced that it was from this incident. The defendant lay over her while she was on her back and put his hand on her mouth to stop her from speaking loudly. He stayed on her for one or two hours until she stopped moving.

[21] After that time, according to A., he took off her clothes and put his penis on her face near her mouth. He took off her clothes with one hand as he was holding both her hands with his other. He tried to put it inside her mouth but was unsuccessful. Of concern, this aspect of the allegation had not been in A.’s statement to the police. A. testified that the defendant then put his penis into her vagina. As he did this, he was squeezing her and holding her arms behind her, squeezing as hard as he could. She told him to stop. A. claimed that the act of forced sexual intercourse lasted for between two and three hours. The defendant ejaculated twice. Finally it ended but she only got two hours sleep. She called in sick to work the next day. This was count five, an allegation of sexual assault.

[22] Mr. Gupta argued in submissions that the protracted duration of the forced sexual intercourse was very unusual and not credible. I agree. There was no hint in A.’s evidence that her estimate of time could be off. It was two to three hours, prefaced by lying on her for another hour or two.

[23] Care is important in this area. Generalizations or speculations about human sexual capabilities have a tendency to seep into fact finding and may well result in legal error: R. v. P. (T.) 2007 ONCA 585, 223 C.C.C. (3d) 289 at paras. 30-42; R. v. Kruk, 2022 BCCA 18 at paras. 41-52. Some people may possess extraordinary capabilities. But I agree that A.’s account of the forced sex is unlikely to be true.

[24] Of even greater concern, despite the proper questions being asked by counsel, there was almost no detail of what was occurring during the two to three hours of the alleged sexual intercourse. The only evidence adding anything of substance was that the defendant was holding her hands and ejaculated twice. If the events had occurred as she said they had, there would have been additional detail about what was being said and done in the hours over which it was happening. That there was nothing is not credible.

[25] Several days after the sexual assault, the defendant who had vacated the home, returned briefly to retrieve his passport as he was travelling back to India the next day. The two argued and as he was on his way out, he took her cell phone. He pushed her as he was leaving and, as she was following him, pushed her again. Those allegations of an assault were charged in count 6.

[26] The defendant in his evidence admitted the push and a slap. He testified it was self-defence. He said that the push was immediately after A. slapped him and for the purpose, essentially, to repel the force she used. When he slapped her, this was immediately after she had assaulted him in the area of his stomach and caused pain. Taking into account the difference in their stature, nonetheless the purpose of this force was self-defence. The force used was reasonable and proportionate to the force being repelled: see s. 34(1) and (2) of the Criminal Code.

[27] The last count was a threatening allegation. The defendant had left for India at this point of time. In a phone call, he threatened to kill A. if he returned.

[28] In summary, there were the specific problems with A.’s evidence that have been outlined. There were several broader issues that reduced further her credibility. The revelation of the defendant’s secret family in India was a matter of serious conflict between A. and the defendant, understandably so. His unfulfilled promise to A. only stirred up the volatile emotions further. All the criminal allegations took place in the context of this fraught, unhappy dissension. Extracting revenge on the defendant is a potent motive on A’s part to fabricate allegations of criminal conduct on this trial. Her close friend N.’s perjury in favour of A. also gives pause that there could be collusion against the defendant.

[29] As an aside, there was an occurrence during the trial that warrants consideration. I raised it with counsel when it occurred and later in submissions as well. Ultimately, I do not propose to draw anything from it but since it was raised and argued, it ought to be discussed.

[30] At an early stage of the defendant’s cross-examination by the Crown, the subject was the first count, the throwing of the glass. The defendant denied that it ever happened. Immediately after he gave this evidence, I looked up and saw A. seated directly in front of him in the body of the court, about 35 feet away. A. shook her head quite vigorously several times. She had a smile on her face. Once this was noticed, she was asked to leave the courtroom. I discussed what I had seen with counsel. The officer in charge then went outside to speak to A. and I assume told her that her behavior was inappropriate. A. then returned to the court, keeping her head down. However, Mr. Gupta, as an officer of the court, advised that later on at some point, he noticed that she was snickering during the defendant’s further cross-examination.

[31] The open court principle is of fundamental importance to our system of justice. It has a vital constitutional dimension essential to our democratic order: Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75. A witness can remain in court to view the ongoing proceedings after their evidence is concluded. This is particularly true of a complainant, who has a keen interest in the outcome of a criminal trial. There may be a concern in some situations where a witness exclusion order has been made and the complainant may be recalled. That is a relatively rare circumstance, however. Apart from this, a complainant has a right to observe the proceedings after their evidence. But as always the party that calls the witness--in this case the Crown—has the obligation to control the witness’ conduct in the courtroom.

[32] There are at least three potential negative effects from A.’s conduct in this instance. First, it could have interfered with the defendant’s testimony. In its effect if not its purpose, what amounting to taunting the defendant could interfere with the giving of his evidence. In a case where the likely starting point for a sentence is three years (see R. v. A.J.K., 2022 ONCA 487), this is obviously unacceptable. However, perhaps because it was noticed and stopped early on, there was no suggestion that the defendant’s testimony was affected or impeded by A.’s actions.

[33] Second, court decorum, a sacrosanct value in the administration of justice, is sullied by such behavior. Undue formality and a fixation on niceties is the enemy of the flow and efficacy of litigation. It can become a distraction from what is truly important. However, there are some immutable rules that must be observed in order to protect the courtroom and the proceedings. Important rights are being determined and the solemnity of the process must be respected. An appropriate level of decorum is necessary. A trial is not a sporting event. Booing and cheering and similar conduct is obviously inappropriate. Communication of approval or disapproval by gesture is in the same category. These actions damage the reputation of the courts, a reputation necessary to maintain the confidence and support of the public. Objectivity and neutrality throughout the process are vital. Behavior like A.’s threatens these core values.

[34] Third, arguably this type of conduct is susceptible to exposing a witness’ interest in the outcome, and leading to the downgrading of her credibility: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397 at paras. 11-12. Mr. Ng argued that because A.’s demeanour was involved, nothing should be drawn from A.’s conduct. Demeanour, he argued, is challenging to interpret: see R. v. G.M.C., 2022 ONCA 2 (Ont. C.A.) at para. 63-71; R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505 (Ont. C.A.) at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (Ont. C.A.) at paras. 85, 88-89 and 92-93; R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377 (Ont. C.A.) at para. 131.

[35] However, the counter argument is that some gestures in our culture are reasonably clear in their import. Shaking the head—like nodding the head—is one of these. It expresses disapproval and disagreement. It means “no”. Further, the context is important. At the time of A.’s gestures, the defendant was testifying about his version of events which was directly contrary to what she had testified. It was reasonably clear that what was being communicated by A. was disagreement with his evidence.

[36] Mr. Ng also argued that all complainants in criminal cases have an interest in the outcome and therefore nothing against credibility should be drawn from A’s conduct. I agree that a complainant will almost inevitably have an interest in the proceedings and in seeing that their evidence is accepted and that of the defendant is not. But not all interest in the outcome is necessarily equal and should be relegated to the same level. Some evidence of interest in the outcome might be stronger than others depending on the circumstances.

[37] As part of the truth finding function, it is reasonably expected that a complainant, as with any witness, will maintain a level of neutrality and put aside at least to some degree their interest in the outcome: see by analogy the importance of juror neutrality and the expected ability to put aside biases R. v. Find, 2001 SCC 32, 2001 J.E. 1099, [2001] 1 S.C.R. 863 at para. 26. One of the most compelling indications of a witness’ veracity is the making of an admission when they are not boxed into making it and which portrays them or their credibility in an unfavourable light. Evidence that appears non-partisan has great allure to a trier of fact in the search for truth. Conduct like that of A. is at the other side of the spectrum. It was conspicuously and actively partisan. It suggests a lack of objectivity and throws into question whether she was able to put aside her interest in the case.

[38] Another facet of the behaviour here is that A. directly confronted the defendant in plain sight of the trial judge in a courtroom. This was audacious and quite oblivious to the decorum of the court. She treated the court as her own private proceeding, not a public forum. While a young Indian woman relatively new to Canada is not likely schooled in the nuances of proper court conduct—although she had been on the witness stand for about two days immediately before--it is certainly arguable that it should have been reasonably clear to her that her conduct transgressed some basic norms.

[39] However, contrary to these arguments, caution is appropriate in relation to inferences with respect to the complainant’s interest in the outcome of the case. The evidence here is conduct evidence, not testimony on the witness stand. Furthermore, Justice Charron said in Laboucan,

11 The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witnesss testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility. (emphasis added)

[40] Here, the evidence is not simply with respect to A.’s status as the defendant’s girlfriend as in Justice Charron’s example. It is conduct-specific evidence, not evidence of mere status. Nonetheless, in light of the much more significant flaws in her credibility and reliability, there is no need to determine whether the inferences based on her conduct in court sketched out here ought actually to be drawn. It is possible that in another case this evidence could be important and might justify additional scrutiny of her credibility. But I would not give this matter any weight in this case and would not use it against the complainant’s credibility.

[41] To conclude with respect to the complainant’s credibility and reliability, based on the specific flaws previously identified, her strong motive to fabricate in order to get back at the defendant, the spectre of collusion with N., and the lack of any confirmatory evidence, her evidence fails to rise to the very high level of certainty necessary to prove the case beyond a reasonable doubt.

The Evidence of the Defendant

[42] Given my conclusion with respect to the complainant, I do not intend to comment at length on the defendant’s evidence. He denied the allegations except for the slap mentioned above. It was brought out in cross-examination that in his police interview, he said he had never yelled at A. and never gotten angry with her. The defendant agreed on the witness stand that this was not true and had several explanations for his answers. In my view, at least part of the reason he answered in this way was to conceal his motive to commit offences against the person against A. This has necessary repercussions on his credibility. In my view, while it ought not to fatally damage his credibility, it does diminish it. Still, in the full context of this trial, I do not reject his evidence with respect to the sexual assault denial. I accept it. With respect to some of the other allegations, I am less sure. But I do not intend to resolve this issue. There is no need to do so given my conclusion with respect to the Crown’s case.

Conclusion

[43] For these reasons, Mr. N. will be found not guilty of all seven counts on the indictment before the court.

D.E Harris J. DATE: March 6, 2024