R. v. R., 2011 ONCJ 541

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. R. , 2011 ONCJ 541 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Levy ) for the Crown ) — AND — ) ) A.R. ) ) Mr. A. Abbey ) for the defendant ) ) ) ) Lipson J.: REASONS FOR JUDGMENT

[ 1 ] Mr. R. pleaded not guilty to one count of sexual assault, two counts of assault and a count of forcible confinement. [ 2 ] The complainant is K.R.. She and the accused immigrated to Canada in 2008 from Pakistan where they knew each other through Ms. R.’s brother. They renewed acquaintances in Montreal after coming from Pakistan and eventually had a Muslim wedding in Toronto in July 2010. Ms. R. was living in Toronto at the time of the marriage and Mr. R. would join her in Toronto in October, 2010. They resided together for a few short weeks in an apartment in Scarborough before Ms.

R. moved to Mississauga. [ 3 ] The charges before the court involve very serious allegations that on November 29, 2010 Mr. R. kidnapped Ms. R. and transported her from Mississauga to his residence in Scarborough. He then pulled her from his car and dragged her to his apartment. Then, over the next several hours he beat and raped her. She alleges that she was forcibly confined in the apartment and that, in her state of despair and pain, Ms. R. attempted suicide more than once. At one point during her ordeal, she locked herself in the bathroom and cut her wrist with a safety razor blade. She claimed that Mr.

R. was accusing her of prostituting herself with her boss as well as with a cousin from Pakistan. After the complainant cut herself, Mr. R. called 911 and police attended at the apartment. From there Ms. R. went to the hospital and alleged that the accused assaulted her. Officers then arrested Mr. R.. [ 4 ] Mr. R. vehemently denied these allegations. He told the court that he went to Mississauga to reclaim a vehicle he had given the complainant and to retrieve some money she owed him. In doing so, he hoped to sever the last tie he had to the complainant. He claimed that she was desperate to be with him.

When Ms R. swore on the Koran that she was not having any other relationship with any other man, he agreed to take her back and the two drove to his apartment. He made a meal for her, the two had consensual sex and even showered together. Later Mr. R. checked her cell phone and discovered that she was receiving romantic messages from both her boss and a cousin living in Pakistan. He then told her that their relationship was over and that she should leave the apartment. Ms. R. became distraught and tried to harm herself, first with knives from the kitchen.

The accused was able to grab the knives from her and hide them. She then locked herself in the bedroom and cut her wrist with a safety razor. She left the bathroom and the accused called 911. Police took Ms. R. to the hospital. Mr. R. followed them to the hospital where he was arrested. The accused maintained that he is a not the kind of person who would never engage in the kind of conduct alleged by Ms. R.. [ 5 ] There is no dispute that the complainant and the accused had sexual intercourse. There is no dispute that Ms. R. cut her wrist and that Mr.

R. called 911. [ 6 ] In her testimony, the complainant portrayed her husband as a controlling and obsessively jealous man who resorted to physical violence including sexual assault in order to both control and punish her for perceived infidelity. In his testimony, Mr.

R. portrayed his wife to be a mentally unstable woman unable to accept that he no longer wanted her and when rejected by him, resorted to first attempting to harm herself and then fabricating the allegations before the court. [ 7 ] This is a criminal case and every person charged with a criminal offence is presumed to be innocent until the Crown proves his or her guilt beyond a reasonable doubt. [ 8 ] The burden or onus of proving the guilt of Mr. R. beyond a reasonable doubt rests upon the Crown and never shifts. Mr.

R. does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I may only find Mr. R. guilty if after considering all of the evidence, I am satisfied that the Crown has proven its case beyond a reasonable doubt. [ 9 ] I remind myself that a reasonable doubt may arise from the evidence or as a result of the conflict in the evidence or because of a lack of evidence. It is my duty to consider the evidence carefully and dispassionately and to weigh without sympathy or prejudice for or against anyone involved in the proceedings.

Then, after reflecting upon all of the evidence of each individual witness, I must weigh it and make a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence, or none of the evidence given by that witness. And after considering the whole of the evidence presented in the case by both the Crown and the defence, if any, I must reach a conclusion as to guilt beyond a reasonable doubt or otherwise acquit.

I further remind myself that the object in assessing evidence in a criminal case is not to choose one witness over another; it is to determine whether the Crown on the whole of the evidence has proven the accused’s guilt beyond a reasonable doubt. The ultimate question is not which side is telling the truth, but rather on all of the evidence whether the case was proven beyond a reasonable doubt. [ 10 ] In

summary, it is incorrect to view the case on the basis of whether I believe the defence’s evidence or the Crown’s evidence. Approaching the evidence on the basis of an either/or proposition would exclude the possibility that without believing the defence’s evidence, one still has a reasonable doubt as to guilt. I must and do instruct myself that 1. If I believe the evidence of Mr. R.. Mr. R. must be acquitted. 2. If I do not believe the evidence of Mr. R. but I am left in reasonable doubt by it, then I must also acquit Mr. R.; 3. If I am not left in reasonable doubt by the evidence of Mr.

R.I still must ask myself whether I am convinced beyond a reasonable doubt of his guilt on the balance of the evidence which I do accept. [ 11 ] I am certainly sceptical about some aspects of the accused’s testimony. Throughout his evidence, Mr. R. downplayed the notion that he was an obsessively jealous husband. Yet, he also acknowledged that he resented his wife talking to her boss or her cousin from Pakistan. He also admitted that he required Ms. R. to swear on the Koran that she had not been unfaithful to him.

Her oath on the Koran was important to the accused yet he also maintained that he wasn’t a particularly religious person. Mr. R. admitted checking her cell phone to see if other men were sending her messages. I tend to believe that Mr. R. was jealous and angry with his wife and would have had a motive to assault the complainant. [ 12 ] Mr. R.’s account of going to Mississauga to get his car back was convoluted and didn’t accord with common sense. Why would he travel all the way from Scarborough to Mississauga to retrieve the car without bringing someone to drive the other car back? Ms.

R.’s version that he came to Mississauga in order for him to transfer title to her of the car she had paid is more plausible. [ 13 ] Mr. R. claimed that Ms. R. moved to Mississauga for solely economic reasons but admitted that she had never told him of her new address. I didn’t believe him when he denied that the complainant did not want him to know where she lived. The fact that she never disclosed her address to the accused is indicative that she no longer wanted to be with him, not the other way around as alleged by Mr. R..

[ 14 ] That being said, the evidence of Ms. R. was also problematic in important areas. For example, she claimed that after going to the bank in Mississauga, the accused forced his way into her car, made her drive him to a gas station, physically forced her out of the car, took her car and left her standing in the cold. I have some difficulty understanding why she would then try to telephone him to pick her up instead of simply calling a cab or reporting his conduct to the police. [ 15 ] When police responded to Mr.

R.’s 911 call for assistance, the complainant indicated that she did not wish to accompany the officers because she was upset that her husband was telling the officers that she was mentally unstable. That may be, but it is puzzling, to say the least, that after being subjected to the ordeal she described in court, Ms. R. would be in any way hesitant to leave the apartment in the safe company of the officers. [ 16 ] The greatest difficulty the court has in accepting the complainant version lies in the complete absence of evidence supporting her account of the assaultive behaviour she ascribes to the accused. Ms.

R. told the court that she was struck a number of times over the several hours she was with the accused. She alleged that he forcibly had sexual intercourse with her against her will. During the car ride to his apartment he held on to her tightly to prevent her from jumping onto the highway from the moving car. After arriving at his apartment in Scarborough, he pulled her from the vehicle and dragged her into the building. Once in the apartment he threw her on the bed, pulled her hair and repeatedly hit in her in the face. He forcibly removed her clothing and sexually assaulted her.

She testified that after he raped her, he threw her on the sofa and slapped her in the face several times causing swelling to her face. Ms. R. claimed that she became unconscious as a result of the violence and hunger. Yet there no evidence of any injury to the complainant- no redness, no bruising and no swelling. The officers attending the apartment in answer to the 911 call observed no evidence that Ms. R. was assaulted. Ms. R. was examined at a hospital and no medical evidence of injury was adduced by the Crown.

As a matter of common sense, it is simply not plausible that the violence alleged by the complainant would have left the complainant with no physical signs of injury. The absence of proof of injury seriously undermines her credibility and the reliability of her account of the events. [ 17 ] The complainant also claims that she was forcibly confined in the accused’s apartment but Mr. R. testified that he left the apartment while Ms. R. was there in order to go with a friend to retrieve his car in Mississauga. He produced a credit card receipt of a gas purchase he made during that time frame.

This evidence was not disputed and, in my view, supports the accused’s position that he did not forcibly confine Ms. R. in his apartment. [ 18 ] In

summary, I have some difficulty accepting certain aspects of the accused’s testimony. However, I am not in a position to reject his denial of the allegations made by Ms. R.. I have pointed to some of the major difficulties in her evidence. In the absence of other evidence tending to support her testimony, it would be extremely unsafe to base a conviction on her testimony alone. Having carefully considered the totality of the evidence and submissions of counsel, I am not satisfied that the Crown has proven the charges against Mr. R. beyond a reasonable doubt. Released: October 5, 2011 Justice T. Lipson