R v MH, 2023 ABKB 393

Court of King’s Bench of Alberta Citation: R v MH, 2023 ABKB 393 Date: 20230629 Docket: 191172162Q1 Registry: Edmonton Between: His Majesty the King Crown - and - MH Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim or the victim’s family members must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Decision of the Honourable Justice S.N. Mandziuk _______________________________________________________ I. INTRODUCTION

[ 1 ] MH (the Accused) is charged with the following offences: Count 1: Sexual assault upon AO (the Complainant) on March 1, 2018, contrary to s 271 of the Criminal Code . Count 2: Break and enter and commit the offence of uttering threats on April 9, 2018, contrary to s 348(1)(B)/264.1(1) of the Criminal Code . Count 3: Assault with a weapon (screwdriver) upon the Complainant on April 9, 2018, contrary to s 267(

A) of the Criminal Code . Count 4: Criminal harassment of the Complainant between March 5 and April 9, 2018, contrary to s 264(1) of the Criminal Code . Count 5: Choking, strangling, or suffocating the Complainant to overcome resistance on June 20, 2018, contrary to s 246(

A) of the Criminal Code . Count 6: Extortion of the Complainant between March 2 and June 20, 2018, contrary to s 346(1.1)(

B) of the Criminal Code . Count 7: Sexual assault upon the Complainant on June 20, 2018, contrary to s 271 of the Criminal Code . Count 8: Assault upon the Complainant on June 20, 2018, contrary to s 266 of the Criminal Code . Count 9: Uttering threats to the Complainant on June 20, 2018, contrary to s 264.1(1)(

A) of the Criminal Code . [ 2 ] The trial evidence was heard over 18 days between February 1, 2021, and March 18, 2022. Written argument was provided to the Court in December 2022 and January 2023. Closing oral arguments were heard on June 9, 2023. The Accused and several witnesses required the assistance of Arabic interpreters throughout the trial. [ 3 ] The Crown called six witnesses: the Complainant, the Complainant’s two sisters MO and HO, two police officers, and an expert in computer and cell phone forensics.

The Defence called three witnesses: the Accused, the Accused’s father, and a mutual friend of the Accused and Complainant (DO). II. EVIDENCE [ 4 ] Before discussing the trial evidence, a discussion of some of the contextual background is necessary. A. The Relationship [ 5 ] It is not disputed that the Accused and the Complainant were in a relationship that began in May or June 2017 and ended in 2018. The Complainant testified that their relationship began in June 2017, they broke up in December 2018, got back together in early February 2018, and broke up again at the end of February 2018.

The Accused testified that their relationship began in May 2017 and ended in June 2018. The Accused denied that there was a break in their relationship as described by the Complainant. [ 6 ] The Accused described his relationship with the Complainant in an idyllic fashion, akin to a marriage. He said that they were very happy together, loved each other very much, wanted to spend as much time together as possible, and exchanged a lot of care and attention.

The Accused also said that he and the Complainant had their own independent lives and spent time away from each other interacting with friends and engaging in independent activities. [ 7 ] The Accused testified that his interaction with the Complainant’s family began through a friendship with the Complainant’s brother, that he would visit the Complainant’s family regularly, and that he regularly helped the Complainant’s mother. After the Accused and the Complainant started dating, the Accused came over often when the Complainant was home alone.

The Accused never went to the Complainant’s house without an invitation. [ 8 ] The Accused testified that he only got angry with the Complainant one time in February 2018. The Accused had purchased engagement rings. The Complainant suggested to him that they wait two years before getting engaged. The Accused was devastated and threw the rings away. He said that his anger dissipated after 30 minutes and then things went back to normal. [ 9 ] The Accused denied being controlling over the Complainant, asking for her location, demanding her social media passwords, or blocking her friends on social media.

The Accused admitted that he asked the Complainant to stop communicating with her ex-boyfriend. The Complainant agreed and the ex-boyfriend was blocked, after which the ex-boyfriend contacted the Accused and threatened him. [ 10 ] The Complainant characterized her relationship with the Accused quite differently. She testified that soon after they began dating, the Accused became very controlling. The Accused wanted the Complainant to be loyal to him and to only have him as a friend. He told her not to see her friends and prohibited her from being friends with certain people.

By 2018, the Complainant’s social circle had shrunk to only one friend. The Complainant felt compelled to give the Accused the passwords to her Facebook and Instagram social media accounts which resulted in the Accused deleting photos and messages from those accounts and blocking the Complainant’s access to more than 20 of her friends. The Complainant felt forced to disclose her location to the Accused when she went out without him.

The Complainant complied with these demands because she was afraid of the Accused. [ 11 ] The Complainant testified that the Accused came over to her house only a couple of times and that they were not alone when he came over. [ 12 ] The only other witness that testified in detail about the relationship between the Complainant and the Accused was DO. DO

testified that she and the Complainant spent time together almost every day between March and August 2018 and that she did not know the Accused before she met the Complainant. DO said that the Complainant talked a lot about the Accused with DO but DO did not recall the Complainant ever saying that the Accused was dangerous and controlling, that the Complainant was afraid of the Accused, or that the Complainant asked DO for help breaking up with the Accused. DO denied that Accused passed messages to the Complainant through DO. B.

Communication [ 13 ] The Complainant testified that she primarily communicated with the Accused using applications that were installed on a white Samsung phone. The white Samsung phone did not have a phone number attached to it, but had Instagram, Facebook, Messenger, and SnapChat installed. The Complainant also used a black Huawei phone, which did not have any applications installed on it, but did have a phone number associated with it. [ 14 ] The Complainant testified that she did not use WhatsApp to communicate with the Accused or anyone until 2019.

The Complainant used Facebook and Instagram to message her friends and the Accused. The Complainant also used SnapChat. Although the Complainant told Cst Frey that the Accused sent her messages on WhatsApp on or around April 9, 2018, during the Complainant’s viva voce evidence, the Complainant said that she was mistaken when she told Cst Frey that those messages were sent through WhatsApp. [ 15 ] The Accused testified that he and the Complainant texted using WhatsApp and sometimes Facebook.

They also had connections through Instagram and SnapChat but did not use those apps to communicate very often. [ 16 ] Two other witnesses testified about the Complainant’s electronic communication during the relevant times. HO testified that she may have communicated with the Complainant using WhatsApp at the end of 2018 and was certain that they used WhatsApp to communicate in 2019. DO testified that she and the Complainant communicated through WhatsApp and SnapChat in 2018 and that she witnessed the Complainant communicating with the Accused using WhatsApp.

DO confirmed that the Complainant used a white Samsung phone. [ 17 ] After their break-up in December 2018, the Complainant blocked the Accused’s phone number and blocked him on Facebook and Instagram. The Complainant testified that the Accused set up fake accounts with different numbers, names, and pictures and used these fake accounts to communicate with the Complainant. She received messages from these fake accounts in February and March 2018. [ 18 ] On February 4 or 5, 2018, the Complainant received an Instagram message from the Accused requesting that she meet him to talk.

The Complainant accepted the request and met the Accused a few days later. On Valentine’s Day, they were together and took photos and videos of each other. They went out a few times after that, but then the Accused became angry and controlling again. On February 27, 2018, the Complainant broke up with the Accused through a Facebook message.

After receiving an angry response from the Accused, the Complainant blocked him immediately from all of her social media accounts. [ 19 ] The Accused denied trying to contact the Complainant through fake social media accounts and persisting in trying to contact the Complainant until she agreed to see him. [ 20 ] The Complainant testified that she last had the white Samsung phone on June 20, 2018. The Accused’s mother returned it to her. The Complainant accepted it personally from the Accused’s mother when they met outside the police station.

When the Complainant turned on the white Samsung phone, she saw that everything was deleted. The Complainant did not take any steps to restore any apps on the white Samsung phone. [ 21 ] I will now turn to the evidence as it relates to the offences charged in the Indictment. There are three key dates involved, all in 2018: March 1, April 9 and June 20. C. March 1, 2018 1) The Complainant’s Version [ 22 ] The Complainant testified that she had finally ended her relationship with the Accused at the end of February, 2018. [ 23 ] On March 1, 2018, the Complainant went to DO’s house after work.

While she was there, the Accused messaged DO from his original Instagram account asking DO to bring the Complainant outside. DO showed the messages to the Complainant. The Complainant told DO that she was afraid of the Accused and did not want to see him. DO offered to go with the Complainant to see the Accused. The two women went outside and met the Accused at his vehicle. The Complainant got into the front passenger seat of the Accused’s vehicle while DO was locking her house.

The Accused locked the vehicle, told DO that he wanted to talk to the Complainant for a few minutes, and drove away. [ 24 ] The Accused drove the Complainant to Rundle Park in Edmonton. After parking the vehicle, the Accused leaned over and touched the Complainant’s breasts and buttocks over her clothes and kissed her on the lips. The Complainant told the Accused to stop. The Accused touched the Complainant’s vagina over her clothes. The Complainant started to scream and cry and told the Accused to stop.

The Accused climbed on top of the Complainant, reclined the front passenger seat, and flipped the Complainant over. The Accused held the Complainant’s hands at the wrist above her head with one hand. With the other hand, the Accused removed the Complainant’s pants. The Complainant resisted and said “no.” The Accused put his penis in the Complainant’s vagina. The Complainant did not recall if the Accused ejaculated or used a condom. After the Accused finished, he returned to the driver’s seat. [ 25 ] The Complainant turned over. She was shaking and crying. The Accused put his finger in the Complainant’s vagina.

When he withdrew it, his finger had blood on it. The Accused told the Complainant to pull up her pants. The Accused yelled, “Now you are mine

and now you are going to do what I say. You are going to listen to me. You are going to give me all of your passwords from now on. You are going to send me your location whenever you go out.” The Accused got out of the car and continued to yell at the Complainant about how she was supposed to behave, how she should act, and how to respect him. The Accused got back into the car. The Complainant told him that she was not going to do any of those things. [ 26 ] The Accused started driving very fast toward a cliff that dropped into the river.

The Accused said, “we are going to die if we go over that.” The Complainant begged the Accused to stop and told him that she would do whatever he said. The Accused slowed down and drove normally. [ 27 ] The Accused drove the Complainant back to DO’s house, told her not to tell anyone about what had happened, and told her to go inside, wash up, and go home. The Complainant texted DO to open the door. DO opened the door and the Complainant went inside. The Complainant went to the washroom, cleaned herself up, and put on a sanitary pad. She asked DO for a long shirt to cover the blood on her pants.

The Complainant went home. [ 28 ] The next day, the Complainant stayed in bed all day. The Accused texted the Complainant about an upcoming “court course” that he was enrolled in and included a photo of the two of them kissing from the previous June. The Complainant felt threatened and interpreted the Accused’s texts as saying that if she did not go with him and help with translation at the court course, he would expose the photo. [ 29 ] On March 3, 2018, the Complainant went to the court course with the Accused. There were lots of people at the course.

The Complainant helped the Accused and others with translation. She did not sit close to the Accused. After the course ended, the Complainant told the Accused how she felt. The Accused said, “the rape was going to happen either way.” The Complainant understood this to mean that the Accused would have sexually assaulted her at some point. In other words, had the sexual assault not happened on March 1, 2018, it would have happened another day. [ 30 ] After March 3, 2018, the Complainant had no further direct contact with the Accused until April 9, 2018.

However, on more than ten occasions between March 5 and March 9, 2018, the Complainant saw the Accused sitting in his vehicle in the parking lot by her home. The Accused did not live nearby and did not have friends nearby. The Accused was not visiting the Complainant’s brother during those times because they had had a falling out. [ 31 ] Some WhatsApp text messages purportedly dated between March 1, 2018 were presented at trial. The probative value of these text messages will be discussed later in this decision.

The Complainant denied that the text messages consisted of an electronic conversation between herself and the Accused. The Complainant also denied inviting the Accused to her home on March 1, 2018, telling the Accused she was home alone, having consensual sex with the Accused in her bedroom on that date, and asking the Accused not to send anyone pictures of them together. [ 32 ] The Complainant was not asked on cross-examination if she gave the Accused the particulars of her family

schedule so that he would know when it was safe to come over or if she regularly invited the Accused over when her family was not at home. 2) The Accused’s Version [ 33 ] The Accused testified that on March 1, 2018, he and the Complainant were texting on WhatsApp. Just before 6:00 PM, the Complainant told the Accused that she was home alone and asked the Accused to come over to her house. When the Accused arrived, the Complainant let the Accused in. She had a big smile on her face, and she hugged him.

The Complainant and the Accused went to the Complainant’s bedroom and, after about 30 minutes, had consensual sex, which was described in detail by the Accused. The sexual encounter lasted approximately 30 minutes. The two became worried that the Complainant’s mother might return home, so the Accused got dressed and left at approximately 8:00 PM. The two continued to text on WhatsApp.

The Complainant told the Accused that she wished he did not have to go home. [ 34 ] The Accused denied driving the Complainant to Rundle Park, threatening the Complainant, driving his vehicle in a dangerous manner with the Complainant inside, sexually assaulting the Complainant while she was in his vehicle, and sexually assaulting the Complainant in order to ruin the Complainant for other men. The Accused also denied being desperate to have control over the Complainant, telling the Complainant she was “his,” and telling the Complainant that she was going to listen to him and give him her passwords and locations.

Further, the Accused denied having any contact with DO on March 1, 2018 and sending messages to DO to communicate to the Complainant. Finally, the Accused denied stalking the Complainant between March 5 and 9, 2018. 3) Other Evidence [ 35 ] DO was the only other person who gave evidence with respect to the March 1, 2018 events. [ 36 ] DO testified that between March and August 2018, DO was friends with the Complainant and knew that the Complainant and the Accused were in a relationship. [ 37 ] Specifically with respect to the March 1, 2018 incident, DO testified that: (

a) she did not recall sharing clothes with the Complainant but may have shared a phone charger; (

b) she did not recall the Accused ever being angry toward the Complainant and did not remember the Complainant ever asking her to help the Complainant break up with the Accused; (

c) the Accused picked up the Complainant from DO’s house nine or 10 times, but DO did not recall an incident where DO and the Complainant met the Accused at his vehicle outside of DO’s house;

(

d) she did not recall any occasion when the Accused locked DO out of his vehicle and drove away with the Complainant; and (

e) she did not recall an incident when the Complainant told DO that the Accused assaulted her.

D) April 9, 2018 1) The Complainant’s version [ 38 ] At the relevant time, the Complainant lived in a multi-family residential complex. The main door to the complex is locked and has a buzzer system. The Complainant’s unit was down the hall from the main door. [ 39 ] On April 9, 2018, the Complainant and her younger sister, MO, were at home. MO was upstairs and the Complainant was in the kitchen. The Complainant received an Instagram message from the Accused on her white Samsung phone. The message was from an account that the Complainant did not recognize but displayed the Accused’s photo.

The Accused told the Complainant to open the door. The Complainant replied that she was not at home. The Accused texted that he could hear her footsteps. The Complainant did not buzz the Accused into the building. [ 40 ] The Complainant went upstairs near MO’s bedroom. The Accused kicked the main door to the unit. The Complainant was terrified. She went into MO’s bedroom. MO was also terrified and crying. The Complainant told MO that it was the Accused, and he was trying to get into the unit.

The Complainant dragged MO’s bed in front of the bedroom door to prevent it from being opened. [ 41 ] The Accused broke the main door to the Complainant’s unit, entered the unit, came upstairs, and banged on MO’s bedroom door. MO told the Accused to leave them alone. The Accused asked, “who is with you?” The Complainant answered that she was with her younger sister. The Accused told the Complainant to come downstairs and leave MO upstairs. The Accused was yelling. The Complainant was afraid for her life and for her sister’s life.

The Complainant told MO to stay in her bedroom and gave her a look that conveyed “call for help.” The Complainant did not say those words out loud to MO. [ 42 ] The Complainant went downstairs. The Accused was standing in the living room and yelling, “why don’t you answer your phone, why don’t you text back, why are you acting like this?” The Complainant saw that the frame of the front door and the edges of the door were broken, and the locks were broken in the place where the knob goes in.

The door was not broken before the Accused arrived. [ 43 ] The Complainant and the Accused were about two feet apart with a small table between them. The Accused had a multi-bit screwdriver in his hand and was waving it at the Complainant as he yelled. The Complainant felt scared, unsafe, and terrified. She thought the Accused was going to throw the screwdriver at her or hit her with it.

The Complainant later told police that the Accused said, “I will kill you with this thing.” [ 44 ] Before the Accused left, he told the Complainant, “Don’t mention anything about the rape to anyone.” The Complainant interpreted that statement as a threat and thought that the Accused was hinting that he would expose the photos he said he had of them together. The whole time the Accused was in the Complainant’s home, he was yelling. [ 45 ] The Accused told the Complainant that he was going to leave but first he tried to fix the door.

He found nails in the kitchen and was hammering the nails into the wall using the screwdriver. [ 46 ] In the meantime, while MO was upstairs, she called 911. The Accused heard MO talking and demanded to know who she was talking to. The Complainant convinced the Accused that it was no one and MO was just scared and crying. MO went into their mother’s bedroom and hid in the closet. The Complainant found her there. The Complainant spoke to the 911 operator. [ 47 ] The 911 call recording was made an exhibit at trial. I note the following: (

a) The call begins at 11:25 AM. MO says that “a guy . . .he, broke the door inside”. She is audibly upset. After the 911 operator asks for the address where this is taking place, MO talks to the Complainant and gives the address to the operator. (

b) MO tells the operator that the person breaking in is her “sister’s boyfriend”, who was downstairs at the time that she was calling. She then says he has left, and the Complainant takes over the call, saying that he broke the front door and then fixed it and left. (

c) The Complainant says that the Accused is the person who broke in and gives his full name, telephone number and a description of his appearance. (

d) The Complainant says, “I tried to break up with him, he tried to be violent and he come to the house and he cry”. [ 48 ] The Complainant was aware that her mother, brother, and HO subsequently took the Accused to speak to the building manager about the broken door. The Complainant did not go to that meeting. [ 49 ] The Accused’s version of these events was not put to the Complainant. 2) The Accused’s Version [ 50 ] The Accused testified that he and the Complainant had planned for the Accused to come over while the Complainant’s family was out. They spoke on the phone in the morning.

The Accused drove to the Complainant’s home, arriving at approximately 9:30 AM. The Complainant buzzed the Accused into the building and unlocked the door to her home and invited the Accused in. The Accused turned the knob to walk through the door, but the safety chain was still holding the door closed and a piece of wood broke. The Complainant was concerned about what her mother would do when she saw the broken door. The Accused fixed the damage with a

small nail and a piece of tape. They could not find a hammer, so he used the bottom of a glass. [ 51 ] After the Accused fixed the door, he and the Complainant “chilled and spent time together” for 30 – 45 minutes, after which the Accused left because his family called him. [ 52 ] The Accused denied that: (

a) he was not invited over by the Complainant and came uninvited to her home; (

b) he banged and kicked the door and threatened the Complainant; (

c) he waved a screwdriver in the Complainant’s face, (

d) he was angry over the breakup and because the Complainant would not let him into her home; and (

e) he left quickly because he thought police were coming. [ 53 ] Later that day, the Complainant’s mother called the Accused and asked if he had been at the house. The Accused apologized and said he would take responsibility for the whole thing. He went back to the Complainant’s home at approximately 7:00 PM. He discussed the matter with the Complainant’s mother, brother, and HO in his car. The Accused agreed that he would fix the door himself. [ 54 ] According to the Accused, a discussion ensued about his relationship with the Complainant during the meeting in the car.

He testified that he asked the Complainant’s family if they accepted him as a husband for the Complainant and they said yes. The Accused denied that the family was angry that he had been around the Complainant after she had rejected him in February. The Complainant’s mother called the Accused later that evening and told the Accused that she was disappointed that he had been to see the Complainant at their home. The Accused apologized. [ 55 ] A few days later, the Complainant, her mother, and the Accused went to see the building manager to discuss the damaged door.

The Accused offered to take responsibility for the damaged door and testified that the building manager asked the Complainant if she and the Accused loved each other. After that meeting, the Complainant texted the Accused on WhatsApp and told him that the door would be repaired at no cost. 3) Other Evidence a. Cst Silliphant [ 56 ] Cst Silliphant investigated the April 9, 2018 incident. He was dispatched to the Complainant’s home at 11:52 AM. Cst Silliphant met the Complainant at the home and saw that the interior door frame to main door to the suite had been damaged.

It appeared that the frame had come off the wall. He did not take photos. He estimated that the cost to repair the door would have been about $100. He confirmed that the door could be locked and secured and then he left. [ 57 ] The Complainant told Cst Silliphant that the Accused had arrived uninvited, and she asked him to leave. She said that they had broken up a few days earlier, and that the Accused was a friend of the Complainant’s brother. The Complainant explained that when she told the Accused to leave, he became angry and damaged the door frame. The Complainant did not want to provide a formal statement.

As such, Cst Silliphant did not speak to the Accused or interview anyone else in relation to the incident. b. The Complainant’s younger sister MO [ 58 ] MO testified that she and the Complainant were the only people at home on April 9, 2018. MO was upstairs in her room. She heard heavy knocking or banging on the front door and the Accused yelling “open the door.” It was so loud that she heard it all the way from upstairs. The Complainant was downstairs. When MO heard the banging, she came out of her room and came part way down the stairs.

She heard the Complainant telling the Accused to go away and leave her alone. She saw the Complainant in front of the main door. The banging got louder until the door broke open. She saw the door break open and the door frame break. The damage was to the knob and the inside frame. [ 59 ] The Accused came into the unit. He looked aggressive. His face was red. MO saw the Accused come face-to-face with the Complainant. The Complainant told MO to go hide. While MO was heading back upstairs, she heard a sound that she interpreted as a push or a shove.

She saw the Accused walking toward the Complainant, the Complainant going backwards, and heard the Accused tell the Complainant to sit down. MO went to their mother’s bedroom closet. She was scared. She thought the Accused was going to beat them up. She called 911. She heard the Accused yelling outside her mother’s bedroom door and the Complainant telling the Accused to leave her alone. [ 60 ] The Complainant found MO in the closet. The Complainant took over the 911 call. The Complainant appeared scared and distressed and was shaking when she took the phone from MO. The Complainant and MO went downstairs.

The Accused was gone, and the door was still broken. MO did not hear a buzzer before the Accused arrived. c. The Complainants older sister HO [ 61 ] HO testified that she came home and saw that the front door to the family home was damaged. She spoke to the Complainant and MO about what had happened. MO was scared and said that someone came in. The Complainant said that the Accused came in and broke the door. Police had come and gone by the time HO arrived. HO did not think the door could be locked, but she did not test it. [ 62 ] HO spoke to the Accused about the incident later that evening in the Accused’s car.

The Complainant’s mother and brother

were there. The Accused told them that he was angry and upset and did not mean to break the door. He said that he wanted to speak to the Complainant, but the Complainant refused. He apologized for breaking the door and offered to pay for the repairs. The Accused told the family that he loved the Complainant and wanted to get engaged. HO was not happy that the Accused wanted to marry the Complainant. HO did not remember how anyone else reacted. [ 63 ] HO spoke to the building manager about the damage to the door.

The Accused was not present for that conversation. [ 64 ] The Accused’s version of the conversation with the building manager was not put to HO during her cross-examination. D. June 20, 2018 1) The Complainant’s Version [ 65 ] On June 20, 2018, the Complainant stopped at Tim Hortons on her way home from work and purchased a drink. She answered a call on her phone that had no caller ID. It was the Accused. The Accused told the Complainant that he thought she looked beautiful and told her that he was parked nearby. The Accused told the Complainant to come to his vehicle.

The Complainant initially said “no.” The Accused yelled at her to come. The Complainant felt afraid that if she did not go, the Accused would either expose intimate pictures of the two of them together from 2017 or would kill her. [ 66 ] The Complainant went to the Accused’s vehicle – a van - and got into the front passenger seat. The Accused drove to Rundle Park, got out of the driver’s seat, and told the Complainant to drive. She drove for a short time, and then they switched seats. The Accused told the Complainant how much he missed her and loved her. The Complainant told the Accused to take her home.

The Accused drove the Complainant back to the mall near the Complainant’s home and parked his vehicle. The Accused kept talking about how much he loved and missed the Complainant and how beautiful their relationship was going to be. The Complainant got angry, told the Accused to move on, and that their relationship was toxic and physically and mentally exhausting. [ 67 ] The Accused got angry and grabbed the Complainant’s hand and kissed her on the lips. The Complainant put her hand on her mouth to block him and said, “Stop. Don’t.” The Accused touched the Complainant’s breast outside of her clothes.

The Accused grabbed the Complainant and pulled her onto his lap. The Accused put his finger under her pants and then into her vagina. The Complainant started screaming and told the Accused, “Don’t touch me, leave me alone.” The Complainant hit the Accused in the chest. The Accused said, “I will kill your boyfriend or your husband and then I will kill you.” [ 68 ] The Accused threw the Complainant between the seats in the van. The Complainant tried to scoot away from him as she watched him take off his belt. The Complainant said, “You are not going to rape me again” and kicked the Accused.

The Accused got on top of the Complainant. The Complainant punched the Accused’s face. The Accused slapped the Complainant’s face, then strangled the Complainant by squeezing her neck. The Accused put one hand on top of the other with his thumbs crossed and squeezed harder and harder. The Complainant could not breathe, felt dizzy, and thought she was dying. She punched the Accused’s face hard, and he got off of her. [ 69 ] The Accused returned to the driver’s seat. The Accused called the Complainant a bitch, a whore, and a slut, threatened to expose her photos, and told her that her life was not worth anything.

The Complainant sincerely believed that the Accused was going to expose photos of the two of them hugging and kissing and of the Complainant not wearing a hijab. The Complainant said, “You are not going to do any of that. I will do something about it.” The Accused told her to get out of the van. The Complainant rapidly exited the van. The Accused threw her backpack at her. [ 70 ] The Complainant was standing near a tire shop adjacent to the mall. The Accused drove around and handed the Complainant her drink. The Complainant smacked it from his hand and said, “Leave me alone.

Don’t come near me.” The Accused drove away. [ 71 ] The Complainant stood there crying. She was afraid that the Accused would come back, so she hid behind the tires outside of the tire store. She was exhausted, crying, sick, and dizzy. Her throat hurt. She felt like she could not take full breaths. The Complainant called 911. The 911 call was made an exhibit at trial.

During the 911 call, the Complainant is heard coughing and saying, “tell my mom I love her, tell my sisters I love them.” The Complainant said those things because she thought the Accused was coming back to kill her. [ 72 ] The Complainant did not see her white Samsung phone after this incident until it was returned to her by the Accused’s mother.

All of the information on it was deleted. [ 73 ] The Complainant was not cross-examined on the incident itself but was cross-examined about texting on WhatsApp, the phone call, and the photos. 2) The Accused’s Version [ 74 ] On June 20, 2018, the Accused and the Complainant were texting each other on WhatsApp. The Accused was in his parent’s van because his vehicle was broken. The Complainant told the Accused that she was at the mall by herself and asked him to come and meet her. The Complainant called him, and they talked on the phone until he arrived.

When the Accused arrived at the mall, the Complainant came to the Accused’s vehicle, talked at the window for a little while, and got into the passenger seat. They drove to Tim Hortons, got drinks, drove to Rundle Park, and parked near the swimming pool. [ 75 ] The Accused got a call from his mother asking him to return the van because she had a doctor’s appointment. The Accused did not know what kind of doctor’s appointment. When the Accused and the Complainant were leaving Rundle Park, the Complainant got upset about having to leave.

When they arrived back at the mall, they drank their drinks together. [ 76 ] Without any instigation, the Complainant told the Accused, “You’re so bad, you’re so terrible, you are the worst person.” The

Accused asked, “Why?” The Complainant swore about the Accused’s mother and sister, which upset the Accused. The Accused told the Complainant that she was bad and cheap and demanded that she exit the vehicle. The Accused told the Complainant that she had crossed a line when she swore about his mother and sister and that he did not want her to talk to him anymore. The Complainant hit the Accused on his right upper arm. The Complainant was crying and left. [ 77 ] The Accused felt like the relationship had dissolved in seconds.

He noticed that the Complainant had left her drink in the van, so he got out to give it to her. The Complainant grabbed the drink and threw it at him, and it spilled all over his clothes. The Accused testified that he felt sad and disappointed, but not angry. He drove home. [ 78 ] The Accused then called the Complainant. A man whose voice he did not recognize answered and identified himself as a police officer. He told the police his name and address and told the officer that he would wait for him.

He made a cup of tea and went outside for a cigarette with his father and younger brother. [ 79 ] Meanwhile, the Complainant’s brother called the Accused and told him to return the Complainant’s phone. The Accused was confused about this request. The Complainant’s brother told the Accused he was coming over. [ 80 ] Before the Complainant’s brother arrived, the police came and arrested the Accused. The Accused described several police officers arriving and one officer placing his hand on his firearm in a menacing fashion.

While the Accused was dealing with the police, his father told him that the Complainant’s brother had arrived looking for the Complainant’s phone. The Accused did not know that the Complainant’s phone was in the van. [ 81 ] The Accused denied: (

a) threatening to kill the Complainant; (

b) punching, choking, or slapping the Complainant; (

c) throwing the Complainant into the back of the vehicle; (

d) sticking his fingers in the Complainant’s vagina; (

e) threatening to expose photos of the two of them together; and (

f) deleting any information from the Complainant’s white Samsung phone. 3) Other evidence a. Cst Frey [ 82 ] Cst Frey was dispatched in response to the Complainant’s 911 call. Cst Frey was told by the dispatcher that the Complainant was in distress and was so afraid that she had said goodbye to her mother and sisters. Dispatch advised Cst Frey that the Complainant had been told to hide. [ 83 ] Cst Frey first saw the Complainant in front of his supervisor’s vehicle. The Complainant was crying and looking over her shoulder. She was emotional and was breathing quickly. Cst Frey talked to the Complainant.

She was not really paying attention to him or responding to his questions. Cst Frey asked the Complainant to move to the back of his police vehicle to give her a safe space. [ 84 ] After the Complainant sat in the police vehicle, Cst Frey asked her what happened. The Complainant doubled over in the seat with her hands on her face and was weeping. She was distressed, her breathing was irregular, she was crying profusely and rocking back and forth, and she was having difficulty focusing. [ 85 ] The Complainant eventually stopped weeping and was able to provide Cst Frey with some information.

The Complainant talked very quickly and provided scattered details from which Cst Frey was able to determine that the Complainant had been assaulted, the person who assaulted her was her ex-boyfriend, that there was a history of assaults, and that the ex-boyfriend had previously sexually assaulted her. The Complainant told Cst Frey that the Accused was her ex-boyfriend. While the Complainant was providing information, she also said that the Accused had threatened her life and her mother’s life and that he threatened to expose photos and videos that would compromise the Complainant and her family.

The Complainant also referenced a break-and-enter, which Cst Frey was able to corroborate through the police information system. [ 86 ] More specifically, the Complainant described being physically assaulted by the Accused on her face, head, and neck area. Cst Frey looked for injuries in those areas and saw none but noted that the Complainant had dark skin. Based on Cst Frey’s experience, it is difficult to see visible bruising on a person with dark skin.

He did not see any ripped clothing or that the Complainant looked dishevelled. [ 87 ] Emergency Medical Services (EMS) arrived and spoke to the Complainant while she was sitting in the back of Cst Frey’s vehicle. The Complainant refused EMS assistance. [ 88 ] After refusing EMS assistance, the Complainant remained in the back of Cst Frey’s police vehicle. Her cell phone began ringing constantly. Cst Frey asked the Complainant who was calling her. The Complainant said it was her ex-boyfriend. Cst Frey answered the phone and heard a male voice on the other end.

Cst Frey identified himself as police and asked if it was the Accused calling. The male voice denied being the Accused but said that the Accused could be found at a specific address. [ 89 ] After that call, the Complainant continued to receive phone calls. Cst Frey again asked who was calling. The Complainant said it was her family members. When the Complainant answered the phone, Cst Frey heard shouting on the other end, but could not hear or understand what was being said. Cst Frey heard the volume, pace, and pointedness of the person on the other end and interpreted

their speech as loud and aggressive. The Complainant responded calmly in a language that was not English. [ 90 ] The Complainant seemed anxious after receiving the phone calls from her family. Her demeanour changed. She stopped sharing information, became more resolute, and seemed much more grounded.

Her answers became short, she stopped answering his questions, and said that she was not going to provide a statement. [ 91 ] Cst Frey explained to the Complainant that he would be charging the Accused with assault, assured her that police could keep her safe, and requested that if she changed her mind that she contact him. Cst Frey took the Complainant home. [ 92 ] Cst Frey went to the Accused’s residence and placed the Accused under arrest. After the Accused was chartered and cautioned, the Accused demanded that Cst Frey show him proof, became upset and agitated, and then stated, “it doesn’t matter.

I have everything” including 2,000 pictures of himself and the Complainant together in compromising situations that were inappropriate or culturally unacceptable. Cst Frey took the Accused to the police station, provided him with a phone to contact counsel, and put the Accused in a cell. [ 93 ] Cst Frey tried to locate CCTV for the area in which the Complainant described being assaulted. He received a follow-up email from mall security advising that there was CCTV footage available, but not specifically in the area where the incident was alleged to have occurred.

Cst Frey believes that he went to the mall and watched the CCTV video. He then chose not to seize it because what was recorded was of poor quality and taken from an excessive distance. [ 94 ] On June 21, 2018, the Complainant participated in an audio/video recorded interview with Cst Frey after which the investigation was handed off to a detective. b. The Accused’s Father AH [ 95 ] AH heard the Accused talking on the phone right before police arrived and arrested the Accused. About 10 minutes after the Accused was taken away by police, the Complainant’s brother and a friend arrived.

AH unlocked the van and let them look for the Complainant’s phone. AH helped them look. About 5 – 10 minutes later, the Complainant’s brother found the phone wedged between the two front seats. He pointed it out to AH and AH retrieved the phone. AH gave the phone to the Complainant’s brother. [ 96 ] AH did not think his wife had a doctor’s appointment that day, but he did call the Accused and told the Accused to bring the van home because they had an appointment of some sort. E.

Non-Date Specific Evidence of Other Events [ 97 ] The Complainant testified that between April 9 and June 20, 2018, she received about 20 social media requests from the Accused. About half of these requests were from the Accused’s fake accounts. The Accused identified himself in the other requests. The Accused was upset that the Complainant was not responding to those requests. [ 98 ] One day during this time frame, the Complainant was walking home and saw the Accused’s vehicle driving beside her. The Accused rolled down the window and tried to talk to the Complainant, but she had headphones on.

The Accused did an aggressive U- turn, parked behind a nearby church, got out of his vehicle, and ran after the Complainant calling her name. The Complainant was fearful and thought she was in danger. She ran to her house but slipped and fell on the wet floor. She hit the buzzer vigorously to have someone let her into the building. The Accused came up and was standing beside her. The Complainant screamed, “Leave me alone.” The Complainant’s younger sister came to the door and yelled at the Accused to leave the Complainant alone.

When the Accused saw the Complainant’s sister, he ran. [ 99 ] The Complainant was not cross-examined about this incident. The Complainant did not identify which of her younger sisters came to the door. [ 100 ] The Accused denied physically chasing the Complainant, making fake social media accounts, and contacting the Complainant from those fake social media accounts. F. Social Media Text Messages and Photos [ 101 ] The Accused relies on text message conversations in WhatsApp that were alleged to be between himself and the Complainant.

A great deal was made of these WhatsApp messages during the trial and in argument. [ 102 ] The Complainant denied having communicated with the Accused through WhatsApp during the relevant time period and denied participating in any of the text conversations presented by the Accused. The Complainant also denied that photos of her and the Accused posted on SnapChat were taken on the dates and times as recorded by the SnapChat application. [ 103 ] The Crown called an expert in computer and cell phone forensics who provided an opinion on the identification, preservation, acquisition, analysis, presentation, and

interpretation of digital evidence. The purpose of the expert’s opinion was to evaluate the Complainant’s assertions that she did not use WhatsApp to communicate with the Accused during the relevant time and that she did not have WhatsApp installed on either of her phones. [ 104 ] The expert conducted some experimental steps before he gave his evidence and during the course of his evidence. The conclusions that he came to were as follows: (

a) A WhatsApp account is associated with a specific phone number, not a specific device. The phone number is only used for initial set up and authentication of the WhatsApp account. Once the device is authenticated to use WhatsApp from that specific account,

the application itself no longer requires the original phone number or device to send or receive messages. (

b) The WhatsApp application can be installed on a device that has a different number associated to it while still beingauthenticated by using the specific phone number that was used to set up an account. When WhatsApp is installed, a code is sent to thephone number that was used to set up the account. That code can be used to authenticate the account on any device regardless of thenumber associated with that device. Once the application is authenticated on that device, it will record sent and received messages as if itwas from the number used to set up the account and not the number associated with the device on which the application is installed. (

c) Dates and times in a WhatsApp text conversation are stamped by the device on which the application is installed. Therecommendation from WhatsApp is that the device be configured with the date and time provided by the cellular service to ensure thatthe dates and times of a text conversation in WhatsApp are accurate. If a person were to change the date and time on the device, the datesand times of a text conversation in WhatsApp would change automatically to be relative to the date and time set on the device. [105] The Accused also relies on photos of him and the Complainant that were stored on SnapChat.

The expert came to the followingconclusions about the accuracy of date and time stamps on SnapChat photos: (

a) It is possible to change the data regarding location, date, and time that a photo was taken when storing and posting a photo inSnapChat. When a photo is taken on a device, a location and timestamp are embedded in the photo. When that photo is subsequentlyposted on the SnapChat interface, SnapChat would record the photo as being taken at the current location and time rather than theoriginal location and time. (

b) If photos are stored on SnapChat itself in an account holder’s “My Eyes Only” file and then subsequently posted on theSnapChat interface, SnapChat will stamp the photo with the current date and time, not the date and time that the photo was originallytaken. (

c) It is very easy to manipulate dates and times of a photo within SnapChat. A simple visual inspection is not enough todetermine the accuracy of a date, time, or location of a photo that appears on Snapchat. Other sources of data would be required tovalidate where and when a photo was actually taken. [106] As a preliminary finding, I do not place any weight on the SnapChat or WhatsApp messages or photos. They cannot be situatedas having been sent, received, or taken at a particular time or location. The accuracy of the dates and times purportedly attached to thephotos and messages cannot be verified.

In my view, the social media evidence in this trial does not have any value in determining thecredibility of any witnesses, ancillary evidence or, ultimately, the guilt or innocence of the Accused. [107] Based on the evidence of the expert, I disregard the social media evidence entirely. III. THE LAW [108] I will begin by outlining the burden and standard of proof applicable to this case. [109] The Crown bears the burden of proving every essential element of each charged offence beyond a reasonable doubt: Rv Lifchus, (SCC), [1997] 3 SCR 320 at para 36. This burden never shifts to the Accused.

Proof beyond a reasonabledoubt is not proof to an absolute certainty, but it is proof to a high level of certainty. It is beyond proof of probable or likely guilt: R vStarr, 2000 SCC 40 at para 242; Lifchus at para 32. Reasonable doubt can arise from the evidence or from the absence of evidence.

It isgrounded in reason and common sense, and determined without any basis in sympathy, prejudice, emotion, sentiment, leaps of logic,flights of imagination, or frivolous considerations: Lifchus at para 36. [110] To ensure that the burden remains on the Crown, a framework to assist in the assessment of an accused’s evidence wasestablished by the Supreme Court in R v W(D), (SCC), [1991] 1 SCR 742 at 758. This framework was amplified by theAlberta Court of Appeal in R v Achuil, 2019 ABCA 299 at para 18, leave to appeal dismissed (SCC), and R v Ryon,2019 ABCA 36 [Ryon] at para 51 as follows: (

a) If I believe the accused’s evidence denying complicity or guilt (or any other exculpatory evidence that that effect), obviouslyI must acquit. (

b) If I do not believe the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect), but Iam left in reasonable doubt by it, I must acquit. (

c) Even if I am not left in doubt by the accused’s evidence denying complicity or guilt (or any other exculpatory evidence tothat effect), I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by theevidence of the guilt of the accused. [111] This analysis is to be applied to exculpatory evidence generally, regardless of its source.

This recasts the elements of theassessment of the totality of trial evidence under the reasonable doubt standard and is consistent with the appropriate and establishedplacement of the standard and burden of proof in a criminal case: R v Bennett, 2021 ABQB 206 at para 14; R v Hermkens, 2021 ABQB1016 at para 12. [112] Finally, the trier of fact may not simply pick one version of events over the other. A trial is not a credibility contest requiring[the trier of fact] to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence, the [trier of fact]is unable to decide whom to believe, they must acquit: Ryon at para 51. [113] I may not impose a more scrupulous standard to the testimony of the Accused than the testimony of the Complainant: R v SMC,2020 ABCA 10 at para 20.

IV. ANALYSIS A. Credibility and Reliability: General Principles [114] This case turns on the credibility and reliability of the evidence of the Complainant and the Accused. The burden rests on theCrown to prove the Accused’s guilt beyond a reasonable doubt. The Accused is not required to prove anything. [115] Credibility and reliability involve different considerations. Credibility relates to a witness’s veracity.

Reliability relates to theaccuracy of a witness’s testimony and the witness’s ability to accurately observe, recall, and recount the events in issue: R v HC, 2009ONCA 56 at para 41; R v Houle, 2019 MBCA 17 at para 8. [116] Witness credibility must be considered in the context of the evidence as a whole, in relation to all of the evidence at trial, andnot based on any one factor, none of which alone are determinative: R v Ewanchuk, (SCC), [1999] 1 SCR330 [Ewanchuk] at paras 29 – 30; R v G(SG), (SCC), [1997] 2 SCR 716 at paras 72 – 73; Hill, S Casey, Tanovich, David M & Strezos, Louis P, McWilliams’ Canadian Criminal Evidence, 5th ed, looseleaf (Toronto: Carswell, 2019) at 30.30.50 and30.30.60.

Inconsistencies individually and within the whole of the evidence are a consideration, though not necessarily determinative. [117] In assessing credibility as trier of fact, I bear in mind some essential and non-exhaustive principles found in the jurisprudence: (

a) Assessing credibility is not a science: R v Gagnon, 2006 SCC 17; R v S(RD), (SCC), [1997] 3 SCR 484[S(RD)] at para 128; (

b) Credibility must always be the product of the trier of fact’s view of the diverse ingredients it has perceived at trial, combinedwith experience, logic and an intuitive sense of the matter: R v Marquard, (SCC), [1993] 4 SCR 223 [Marquard] at para49; (

c) The weight of different parts of a witness’s testimony can vary: R v Howe, (ON CA), [2005] OJ No 39; (ONCA) at para 44; (

d) The trier of fact can believe and accept some, none, or all of the testimony of a witness: R v Hardy, 2019 ABCA 160 atpara 45; R v JHS, 2008 SCC 30 at para 10, with the testimony necessarily assessed against the competing and supporting evidencetendered by the parties: R v M(CJP), 2022 NSSC 253 at para 64; (

e) The trier of fact’s life experience and common sense play a role in the credibility assessment process, which views theevidence as it comes out at trial in the context of the trier of fact’s experience, logic, and intuition: Marquard at para 49; S(RD) atpara 129. [118] There is no formula with which to uncover deceit or rank credibility.

One of the best tools to determine credibility andreliability is the painstaking, careful, and repeated testing of the evidence to see how the witness’s account stands in harmony with theother evidence pertaining to it, while applying the appropriate standard of proof: R v DDS, 2006 NSCA 34, at para 77 [119] Some of the questions that triers of fact can ask themselves are: (

a) Does the witness seem honest? Is there any particular reason why the witness should not be telling the truth or that his/herevidence would not be reliable? (

b) Does the witness have an interest in the outcome of the case, or any reason to give evidence that is more favourable to oneside than to the other? (

c) Does the witness seem to have a good memory? Does any inability or difficulty that the witness has in remembering eventsseem genuine, or does it seem made up as an excuse to avoid answering questions? (

d) Does the witnesses’ testimony seem reasonable and consistent as she/he gives it? Is it similar to or different from what otherwitnesses say about the same events? Did the witness say or do something different on an earlier occasion? (

e) Do any inconsistencies in the witness’ evidence make the main points of the testimony more or less believable and reliable?Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is theinconsistency because the witness said something different, or because she/he failed to mention something? Is there any explanation forit? Does it make sense? (

f) The manner in which a witness testifies may be a factor, and it may not, depending on other variables with respect to aparticular witness. R v Filion, (ON SC), [2003] OJ No 3419 (ON SC) at para 27 B. Credibility and Reliability of the Accused’s Evidence [120] Although the Accused had no obligation to do so, the Accused testified in his own defence. On the totality of the evidence, I donot find the Accused to be a credible or reliable witness.

[121] The Accused’s accounts of the incidents themselves and the surrounding circumstances were exaggerated and uncorroborated.Evidence from other witnesses aside from the Complainant did not conform to the Accused’s version of events. [122] The Accused’s evidence is internally inconsistent. Some examples are as follows: (

a) The Accused testified that he and the Complainant shared concerns about being seen together, yet he also testified that hewas comfortable dropping the Complainant off at her home. (

b) The Accused testified that the Complainant’s family knew about their relationship in November or December 2017, yet healso testified that the Complainant’s mother learned about the relationship in late February 2018. This was contradicted by both HO andMO who testified that they learned about the relationship in approximately February 2018. (

c) The Accused testified that he only got angry at the Complainant one time after she told him that she wanted to wait two yearsbefore getting engaged, yet he testified in detail about the fact that the Complainant crossed a line when the Complainant insulted theAccused’s mother and sister on June 20, 2018. (

d) The Accused testified that his relationship with the Complainant began in May 2017 and ended in June 2018 with no breakas described by the Complainant. However, in discussing the aftermath of the April 9, 2018 incident, the Accused denied that theComplainant’s family was angry that he had been around the Complainant after she had rejected him in February. Specifically, theAccused denied that the family was angry with him, not that the Complainant had rejected him in February. [123] The Accused’s version of events was not put to several of the witnesses.

The trial was riddled with the particular evidentiaryproblem arising from the principle in Browne v Dunn (1894), 6 R 67 (HL), 1893 CanLII 65 (FOREP) [Browne v Dunn] as described inR v Sawatzky, 2019 ABCA 179 at paras 23 – 24: where a party intends to impeach a witness who was called by his or her opponent, orpresent evidence contradicting that witness, the party should direct the witness’s attention to the contradictory evidence in cross-examination so that the witness has an opportunity to address or explain the contradictory evidence.

This rule is considered to be amongthe most rudimentary notions of fair play: Peters v. Perras (1909), (SCC), 42 SCR 244; (SCC). [124] The rule in Browne v Dunn is not fixed. The extent of its application is within the discretion of the trial judge after consideringall the circumstances of the case: R v Lyttle, 2004 SCC 5 , [2004] 1 SCR 193 [Lyttle] at para 65. There is no fixed consequencefor the infringement of the rule and a trier of fact has broad discretion in determining the appropriate consequence.

The goal must alwaysbe to ensure that, notwithstanding a breach of the evidentiary principle, the trial is a fair one: R v Poole, 2015 BCCA 464, citingPaciocco and Stuesser, The Law of Evidence, 7th, ed. (Toronto: Irwin Law, 2015) at 472 and Lyttle at para 43. [125] Browne v Dunn issues were not raised during the trial. There were no specific objections from either counsel and no requests torecall any witness.

While the Crown had a standing objection to leading questions from the Defence and other aspects of the Defence’scross-examination of Crown witnesses (particularly the Complainant and her family), the scope of those objections did not includefailure to put impeaching material before a witness. [126] I will view elements of the evidence that are affected by the infringement of the rule in Browne v Dunn in terms of evidentiaryweight. I will address each incident specifically below. Generally, I note the following: (

a) The Complainant was never asked if or when she told her family about her relationship with the Accused. The Accusedtestified that he visited the Complainant’s family regularly and that he helped the Complainant’s mother all the time. This was never putto HO or MO. HO and MO testified that they did not know the Accused except as a friend of her brother’s. HO testified that she onlyspoke to the Accused once or twice. Neither HO nor MO were asked about the Accused’s relationship with their mother. (

b) The Accused testified in great detail about a conversation with the Complainant’s family in the presence of the Complainantabout getting engaged. This was not put to any of the witnesses, although peripheral questions were asked to MO and HO aboutmatrimonial discussions. (

c) The Complainant was never asked if she declined a marriage proposal, if she told the Accused that she wanted to wait twomore years before getting engaged, or about the meeting with her family where marriage was discussed. (

d) The Accused was not asked about his relationship with the Complainant’s brother and if or when they had a falling out. TheComplainant testified that the Accused and her brother had a falling out between March and April 2018. 1) March 1, 2018 [127] I do not believe the Accused’s version of the March 1, 2018 events. [128] The only independent witness who could speak to those events was DO.

Nothing in DO’s evidence supports the Accused’sversion of events other than DO did not remember a specific encounter with the Complainant as described by the Complainant. [129] While the Accused’s version of events was put to the Complainant, the Complainant was not cross-examined on whether shetold the Accused her family’s

schedule so that he would know when it was safe to come over or whether she regularly invited theAccused over. This infringement of the Browne v Dunn principle negatively impacts the Accused’s credibility as the Complainant wasgiven an opportunity to address the Accused’s implication regarding the Complainant’s complicity in keeping their relationship secret. 2) April 9, 2018 [130] I do not believe the Accused’s version of the April 9, 2018 events. The Accused’s evidence holds little to no weight concerningthose events.

[ 131 ] The Accused’s version is contradicted by the evidence of MO and is unsupported by the recording of the 911 call. MO testified that she saw the Accused break the door and enter the unit, behaving menacingly and yelling. [ 132 ] I do not accept the Accused’s description of his efforts to fix the door, the discussion the Accused had with the Complainant’s family in his vehicle, or the meeting with the landlord. HO was an independent witness to the conversation in the vehicle and with the landlord. I have no reason to doubt HO’s evidence. HO did not corroborate the Accused’s version and in fact contradicted him about certain points: (

a) Regarding the conversation with the landlord, HO testified that when she spoke to the landlord about the broken door, the Accused was not present. This directly contradicts the Accused’s version of events that both he and the Complainant were present during this conversation. It was never put to HO that the building manager asked the Accused and the Complainant if they loved each other. (

b) Regarding the conversation with the Complainant’s family in the Accused’s vehicle, the Accused testified that he told the Complainant’s family that he wanted to get engaged and the family accepted him as a husband for the Complainant. HO testified that she was not happy about this. It was never put to HO that there had been a previous conversation in the Complainant’s kitchen where the family accepted the Accused as a husband for the Complainant. (

c) HO testified that the Accused told HO that he broke the door because the Complainant would not talk to him. When this was put to the Accused, he said HO was lying. [ 133 ] I do not accept that the building manager asked whether the Accused and the Complainant loved each other. Not only was this not corroborated by HO, it seems like a remarkable thing for a building manager to say in relation to a property damage discussion. [ 134 ] Additionally, there are Brown v Dunn issues with respect to the April 9, 2018 incident itself. The Accused’s version of events was never put to the Complainant, MO, or HO.

There were several questions about how the buzzer works, whether they heard the buzzer, and whether the Accused had fixed the door, but the Accused’s actual account was never put to any of them. This failure is a significant Browne v Dunn infringement that goes to the heart of the April 9, 2018 events. 3) June 20, 2018 [ 135 ] With respect to the alleged incident on June 20, 2018, I do not accept the Accused’s version of events.

It does not account for the Complainant’s 911 call or the Complainant’s behaviour when Cst Frey dealt with her. [ 136 ] It was never put to the Complainant that it was her brother who returned her white Samsung phone to her as described by the Accused. It was never put to Cst Frey that he reached for his firearm when he went to arrest the Accused, whether he attended with other police members, or whether he told the Accused’s father to back away as described by the Accused. C.

Credibility and Reliability of the Complainant’s Evidence 1) WhatsApp and SnapChat Evidence [ 137 ] I accept the Complainant’s evidence that she did not have WhatsApp installed on either of her phones, that she did not communicate with the Accused using WhatsApp at the relevant times, and that photos and videos date stamped by SnapChat as being taken on February 20, 2018 do not reflect an accurate date and time as to when those photos and videos were actually taken. [ 138 ] I accept the opinion of the expert in cell phone forensics that dates and times can be manipulated in both WhatsApp and SnapChat applications.

I also accept that WhatsApp can be installed on a device that is not associated with the WhatsApp account number. Based on those findings, I cannot rely on the dates, times, or content of the WhatsApp text conversations tendered by the Accused as being accurate representations of text conversations between the Accused and the Complainant. [ 139 ] There is some independent evidence that the Complainant was using WhatsApp at the relevant time. DO testified that she saw the Complainant and the Accused communicating using WhatsApp in 2018.

However, DO was only friends with the Complainant between March and August of 2018. It is unclear as to when in relation to the alleged incidents that DO saw the Complainant and the Accused communicating through WhatsApp. I cannot rely solely on DO’s evidence on this point to conclude that the WhatsApp text conversations tendered by the Accused are accurate representations of conversations between the Accused and the Complainant. [ 140 ] HO also testified that she and the Complainant communicated through WhatsApp in 2018.

HO specified that it was near the end of 2018 and early 2019 that they started communicating using WhatsApp. This is consistent with the Complainant’s evidence on this point that she did not start using WhatsApp until 2019. 2) Other Evidence of the Complainant [ 141 ] With respect to the other evidence of the Complainant, where the Complainant’s evidence is uncorroborated, I approach it with caution.

While I am able to accept a complainant’s evidence without corroboration, in this case the Complainant’s evidence has some internal problematic aspects that suggest external corroboration is necessary. [ 142 ] Some of the notable internal inconsistencies in the Complainant’s evidence that do not relate to specific dates include the following: (

a) the Complainant testified that she was not allowed to touch the Accused’s phone, but also testified that she used his phone to take videos of the two of them together.

(

b) the Complainant testified that the Accused messaged her from fake accounts only between February 27 and March 1, but also testified that the Accused messaged her from fake accounts as early as February 4 and continued to message her from fake accounts after March 1. (

c) the Complainant testified that her mother was not strict about religion and that her family had a relaxed attitude about dating, but also testified that premarital sex was a big sin in Islam and that she was concerned that the Accused would expose photos of the Complainant not wearing her hijab and of the two of them hugging and kissing. a. March 1, 2018 [ 143 ] With respect to the incident on March 1, 2018, I have difficulty accepting the Complainant’s version of events for several reasons. On the whole of the evidence, I note the following concerns: (

a) The Complainant testified that the Accused reclined the front passenger seat, flipped the Complainant over and held both of her hands above her head with one hand and with the other hand, removed the Complainant’s pants and then put his penis in the Complainant’s vagina. There is no evidence clarifying the physical possibility of these actions occurring in this fashion. (

b) While the Complainant described DO as being closely involved in the events on March 1, 2018, DO had no memory of them. DO denied texting with the Accused to bring the Complainant to his car or what followed: the locking of the door, the departure and then the return of the Complainant to her house where she washed up, used a sanitary pad, and borrowed a long shirt from DO. (

c) As mentioned earlier, DO testified that she and the Complainant were like sisters, always together, saw each other daily, and that the Complainant talked to her a lot about the Accused.

DO also testified that the Complainant did not share all the details of her private life with DO, that they only spent time together sometimes after school, and that the Complainant never told DO that the Accused was dangerous or controlling or that the Complainant needed help to get out of her relationship with the Accused. [ 144 ] I am unable to accept DO’s evidence as credible or reliable given the internal inconsistencies in DO’s testimony. I am also unable to accept the Complainant’s evidence about this incident, especially in light of DO’s evidence.

As a result, I have a reasonable doubt as to the events that occurred on March 1, 2018. b. April 9, 2018 [ 145 ] With respect to the incident on April 9, 2018, the Complainant’s version of events is corroborated by the 911 call and the evidence of Cst Silliphant, HO, and MO, although the Complainant’s account and MO’s account differ on some points. [ 146 ] Cst Silliphant’s description of the damage to the door was consistent with both the Complainant’s, MO’s, and HO’s description of the damage to the door.

MO corroborated the Complainant’s evidence that the Accused did not buzz in, banged on the front door, the Complainant telling the Accused to go away, the Accused breaking the door open and damaging the frame, the Accused seeming angry, and the call to 911. The recording of the 911 call is consistent with MO’s and the Complainant’s version of events. [ 147 ] MO did not corroborate the Complainant’s description of using MO’s bed to block the door, the Accused’s use of the screwdriver, or the Accused’s threat to kill the Complainant with the screwdriver.

I have no reason to disbelieve the evidence of MO. [ 148 ] On the whole of the evidence, the Complainant’s testimony about the events of April 9, 2018 do not raise a reasonable doubt concerning the Accused’s guilt with respect to the events on that date. c.

June 20, 2018 [ 149 ] With respect to the incident on June 20, 2018, the Complainant’s version of events is corroborated by the 911 call and the evidence of Cst Frey, although Cst Frey did not witness any interactions between the Complainant and the Accused. [ 150 ] The 911 call can only be reasonably interpreted as cogent evidence of the Complainant being distraught and terrified. She is clearly in the aftermath of a traumatic event. [ 151 ] I accept that the Complainant was assaulted by the Accused during this incident. The Complainant described being strangled by the Accused.

When the Complainant spoke to the 911 operator, she was coughing. This could be consistent with irritation from strangulation or with heavy crying and physical exertion related to a traumatic event. Additionally, Cst Frey described the Complainant as in distress, weeping, breathing heavily, and talking quickly and in a scattered way. This is also consistent with someone who has been recently traumatized. [ 152 ] There is a discrepancy in the evidence concerning the white Samsung phone. The Accused says that the Complainant’s brother retrieved the phone after it had been left in the Accused’s van.

The Complainant testified that she did not see her white Samsung phone after this incident until it was returned to her by the Accused’s mother. Neither the Accused’s mother nor the Complainant’s brother gave evidence to corroborate either version. [ 153 ] Looking at the Complainant’s version of the June 20, 2018 events within the whole of the evidence, I have similar concerns concerning the sexual assault allegation to those that I expressed about the March 1, 2018 sexual assault allegation. There is no forensic evidence or corroboration.

There are inconsistencies within the Complainant’s evidence and in the overall conduct of the Complainant in light of what she claims happened. No one of these deficiencies would by itself raise a reasonable doubt, but all of them together cause concerns and raise a reasonable doubt concerning the sexual assault allegation. D. Credibility and Reliability of Other Evidence

[ 154 ] There is evidence from other witnesses that assists with the assessment of the Complainant’s evidence. MO and HO were credible witnesses, and I had no reason to disbelieve either of them. The 911 calls on April 9, 2018 and June 20, 2018 corroborate some elements of the Complainant’s version of events. The police officers who testified were also credible and reliable witnesses and corroborate some elements of the Complainant’s evidence. [ 155 ] I have already assessed DO’s credibility as it relates to the event of March 1, 2018.

DO did not corroborate the versions of events of either the Complainant or the Accused. [ 156 ] There is a significant discrepancy surrounding the return of the white Samsung phone to the Complainant after the June 20, 2018 incident. The Complainant claimed that she got the phone back from the Accused’s mother whereas AH testified that the Complainant’s brother retrieved the phone. AH’s evidence on this point is consistent with the Accused’s evidence that the Complainant’s brother called him looking for the white Samsung phone. The Complainant’s brother did not testify.

While I have already rejected the evidence of the Accused, in light of AH’s evidence, I also cannot accept the Complainant’s evidence on this point. E.

Application of W(D) [ 157 ] Based on my reasons above, I do not believe the Accused’s evidence with respect to any of the charges. [ 158 ] With respect to the events of March 1, 2018, I find that the inconsistencies, lack of corroboration in some instances, and direct contradiction as outlined above lead to a reasonable doubt on the whole of the evidence. [ 159 ] With respect to the events of April 9, 2018, on the whole of the evidence, I accept the Complainant’s version. It is corroborated by several witnesses and is consistent with events as described in the 911 call.

For the reasons outlined above, there is no evidence that raises a reasonable doubt about the April 9, 2018 incident. [ 160 ] With respect to the events of June 20, 2018, I have no doubt that the Complainant was assaulted by the Accused in some fashion, whether being thrown within the van or otherwise. The 911 call is consistent with a traumatized and frightened Complainant, as are her interactions with Cst Frey. However, I find however that the coughing and other physical responses of the Complainant are equally consistent with someone having been strangled or with her physical exertion in a traumatic situation.

Additionally, there is a significant discrepancy concerning the white Samsung phone that raises a reasonable doubt concerning the veracity of the Complainant’s version of events. As a result, I have a doubt as to whether the Complainant was strangled or sexually assaulted by the Accused. Like with all of the Complainant’s evidence, the lack of corroboration and internal inconsistency raises a reasonable doubt. [ 161 ] With respect to each offence charged, I make the following findings: F. Elements of the Offences 1. Sexual Assault [ 162 ] The essential elements of sexual assault are: (

a) That the Accused applied force to/touched the Complainant; (

b) That the force applied/touching was intentional; (

c) That the force applied/touching was sexual in nature; (

d) That the Complainant did not consent to the application of force/touching; (

e) That the Accused knew that the Complainant did not consent. [ 163 ] There are two allegations of sexual assault: Count 1 as it relates to the events on March 1, 2018 and Count 7 as it relates to the events on June 20, 2018. [ 164 ] In relation to Count 1, I find the Accused not guilty. I have already rejected the Accused’s version of events, which was also not corroborated by DO. As I have outlined, I am wary of accepting the evidence of the Complainant without corroboration.

DO does not remember the incident as described by the Complainant, particularly the loaning of clothing to the Complainant to cover up a blood stain or that the Complainant cleaned herself up at DO’s house. DO also does not corroborate the Accused’s conduct as described by the Complainant. While corroboration is not required, the entire context of the events where DO was involved is not corroborated, which makes the Complainant’s version of events less believable.

There is simply not enough cogent and convincing evidence to meet the threshold for a conviction. [ 165 ] In relation to Count 7, I also find the Accused not guilty. There is not enough evidence to prove beyond a reasonable doubt that the Accused committed a sexual assault upon the Complainant on June 20, 2018. While I do not accept the Accused’s version of events denying the sexual assault, the evidence that I do accept is equally consistent with a heated interaction between the Complainant and the Accused and leaves me with a reasonable doubt.

I do accept that the Complainant was assaulted by the Accused during this incident. I will deal with the elements of that offence below. 2. Break and Enter and Commit the Offense of Uttering Threats [ 166 ] The essential elements of break and enter are:

(

a) That the Accused broke into place that was a dwelling house; (

b) That the Accused entered that place without lawful authority; (

c) That after the Accused entered, the Accused committed the offence of uttering threats. [ 167 ] “Breaking” is defined in s 321 of the Criminal Code as “to break any part, internal or external,” or “to open anything that is used or intended to be used to close or to cover an internal or external opening. Force is not required. “Entering” is defined as complete when any part of the Accused’s body enters. [ 168 ] If the Crown has not proven that the Accused committed the offence of uttering threats, I may consider whether the Crown has proven that the Accused intended to commit an indictable offence: see s 662(6) of the Criminal Code . [ 169 ] The essential elements of uttering threats are: (

a) That the Accused knowingly in any manner uttered, co

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