R. v. R.G., 2022 ONCJ 316

WARNING The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(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. ONTARIO COURT OF JUSTICE CITATION: R. v. R.G. , 2022 ONCJ 316 DATE: 2022 07 08 BETWEEN: HER MAJESTY THE QUEEN — AND — R. G.

Before Justice D.P. Cole Heard on Jan 26, Feb 8, March 2, 30, April 12, 25, 26, 27, 28, May 26, 27, June 1, 8, 2022 Reasons for Judgment released on July 8, 2022 K. Nedelkopoulos............................................................................... counsel for the Crown M. Navarro............................................................................... counsel for the accused R.G. COLE J.: [ 1 ] The accused was arraigned on two charges alleging offences being committed against his spouse between April 1 and August 31, 2020:

(1) Sexual Assault with a weapon (s.272(1(a))

(2) Possession of a Weapon for a Dangerous Purpose (s.88(1)) (Crown counsel elected to proceed by indictment on the weapon dangerous charge, so that both charges could be dealt with in the same trial). [ 2 ] Likely because counsel and myself were focused on the evidentiary and substantive issues in this case, I was not asked at the outset of the trial to make an order under s. 486.4(1) of the Code prohibiting publication of anything that might disclose the name of the complainant or that of a child witness in the case. I now make this order and have attached it to the first page of these reasons.

I would request that the court clerk endorse the Information to reflect the making of this order. [ 3 ] There are three additional steps that need to be taken in this judgment to further protect the privacy of the complainant and her teenage son. First, in addition to sharing a second name consequent upon their marriage, the accused and the complainant have somewhat similar first names. Without intending to be disrespectful to either, for the sake of simplicity I have decided to use the terms “accused” and “complainant” throughout.

Secondly, the couple’s now 16 year-old son also testified in this case; I shall refer to him as “MJ”, the nickname by which he is known in the family. Finally, out of an abundance of caution, I have slightly edited the street names of two of their Toronto residences in a further effort to protect the privacy of the complainant and her son. [ 4 ] This couple started dating in the Philippines about 2004. MJ was born in 2006.

The couple married one another in April 2013. (Some “evidence” of violence and/or threatened violence by the husband against his wife and child while the couple were still in the Philippines emerged in some of the “will says” (see, for example, Exhibit 4) and police interviews filed. Both counsel have quite properly suggested I should ignore such “evidence”). [ 5 ] The complainant emigrated to Canada in September 2015, eventually sponsoring her husband and child, who arrived in April 2019, and took up residence with her in an apartment on T.

Court, where all of the various offences (charged and uncharged) are alleged to have taken place. [ 6 ] The apartment had two bedrooms. In order to save money the G. family shared the apartment with the complainant’s friend Marie for some months. Marie slept in one of the bedrooms while the complainant, her husband and son not only shared the other bedroom, but also slept in one bed, comprised of two twin beds pushed together. The adult parties agreed that at first the son would sleep between his parents, but that by September 2019 the complainant would sleep in the middle of the bed.

Starting in about July 2020 the complainant would sometimes sleep on a bed which had been recently placed in a curtained off area of the kitchen. (As discussed in para. 44 of these reasons, MJ did not share his parents’ recollections; he felt that the sleeping arrangements never changed). The Evidence for the Crown : [ 7 ] The complainant alleged that several incidents of coerced sexual intercourse occurred in the bedroom at night when their child was asleep. She told the police in one of her interviews that the first of these occurred sometime in 2019 (Ex. 2, p. 3, lines 25-30).

However, for some reason the police decided (

a) to restrict the charges laid to the 2020 time frame specified in the Information, and (

b) not to charge the accused with separate allegations of sexual assault simpliciter in addition to the charges of sexual assault with a weapon (a knife) and possession of weapon dangerous (the same knife). [ 8 ] As evidence was given during the trial, both Crown and defence made submissions on this point. When the complainant testified about these events Crown counsel sought to amend the Information to reflect a broader time frame going back to 2019.

I denied this application on the basis that Crown counsel had received the complainant’s statement to the police well in advance of trial, and that it would not now be fair to the defence to allow the Crown to amend the Information midway through trial. [ 9 ] Defence counsel’s initial position was that he wanted a lengthy adjournment (“at least a month”) to prepare his cross- examination of the complainant, given her additional allegations of sexual assault simpliciter . I denied this application on the basis that

defence counsel had similarly received the complainant’s statement to police considerably in advance of trial, so he was already well aware of what she would likely be saying in her evidence in chief.

During submissions at the end of the trial defence counsel then argued that because the prosecuting authorities had not formally charged the accused with the sexual assault simpliciter allegations, it would not be open to me to accede to the Crown’s application to amend the Information such that (assuming of course that I was ultimately satisfied beyond a reasonable doubt of his guilt), it would then be open to me to find the accused guilty of those offences.

Though he did not directly reference this in his argument, defence counsel adopted my suggestion that what he was really arguing was that what the Crown was proposing would offend the “single transaction” rule contained in s.581(1) of the Code. [ 10 ] In response Crown counsel urged me to particularly consider the decision of the Ontario Court of Appeal in R. v. Sandhu 2009 ONCA 102 . I adjourned the case for some days to consider this issue.

With considerable reluctance I ruled against the Crown, mainly because this is not a case where allegations of criminal behaviour had unexpectedly emerged for the first time on the eve of trial or during a witness’ evidence.

As previously indicated, the outlines of these allegations had been provided to the police, and Crown counsel could have caused a new Information containing additional counts to be laid before the court prior to trial. [ 11 ] (Having said this, I pointed out to counsel that if, at the end of the case, I am satisfied beyond a reasonable doubt that some or all of these separate incidents of sexual assault simpliciter did occur in addition to the two charges upon which the accused was arraigned, s.725(1)(

c) of the Code authorizes me to “consider” them as aggravating facts on sentencing). [ 12 ] In her evidence the complainant did not describe the various allegations of sexual misbehaviour in an entirely chronological manner. I believe there may have been two reasons for this. First, I had the distinct impression that exact dates are not particularly important to her. For example, at one point in cross-examination, defence counsel put to her that she had provided one of the police officers who interviewed her with a birthdate some 11 days different from the birthdate she provided under oath in court.

Similarly, at one point in her police statement, she could not recall whether she married the accused in 2013 or 2015 (Ex. 2, p.19, lines 20-26). Finally, she told one of the interviewing officers that she arrived in Canada in August 2015, but she told the court that she arrived in Canada on September 16, 2015 (which date she was able to recall because she had recently renewed her passport and noticed the date stamp in the old passport).

Having considered this within the overall context of this case, I do not regard these discrepancies as significant, especially given the traumatic events described in the next paragraph. [ 13 ] The second, and far more significant reason why the complainant has continuing difficulty with dates is because on September 18, 2020, while waiting at a bus stop on her way to work, she was struck and very severely injured by a careening truck.

She sustained numerous physical injuries (some of which are unfortunately permanent) and was knocked unconscious, sustaining inter alia what her doctors referred to as “a traumatic brain injury”. She was immediately taken to Sunnybrook Hospital, where she remained until October 6, by which time her medical advisors considered that she was sufficiently stable to be moved to West Park Rehabilitation Centre.

Her son MJ, who was the only family member allowed to see her at Sunnybrook (because of Covid restrictions), told the court that for a considerable portion of his mother’s stay there she was unconscious, but he conceded that she was able to communicate with him with little overall difficulty some time after she had been transferred to West Park – an impression confirmed by the complainant’s sister, as well as medical, psychological and social work staff at that facility. [ 14 ] Defence counsel of course made much of this in support of his main submission that the complainant’s very serious injuries – particularly those to her brain – renders the accuracy of her allegations suspect.

More specifically, he argued that she has “confabulated” the date (and content) of the alleged threat with the knife with an non-sexual incident that had occurred between the couple in 2019, where the accused, claiming to be shocked by the accidental discovery that the complainant had been communicating with a man named Nieto back in the Philippines, took a knife and threatened to kill himself in her and her son’s presence.

I shall return to this when I review the defence evidence. [ 15 ] The complainant was discharged from West Park on November 27, 2020 and returned that day to the address where the family had been living when she was injured, a basement apartment on C. Street. When she arrived at the address, her son was home, but her husband was at work; when he arrived home later that day, he was very surprised to see her, as she had not told him that she was being discharged. She remained at the C. Street address at least until her husband was arrested on November 30, 2020.

Because defence counsel made much of the complainant’s inability to recall details of her husband’s presence at the apartment during the November 27- 30 period, I shall return to this issue later in these reasons. For now it is appropriate to return to the narrative of the complainant’s allegations of sexual assaults. [ 16 ] The complainant dated her first allegation of sexual assault in 2020 as having occurred on April 14, 2020; she testified that she was certain of that date because 14 is the same number as her birthday. It occurred around 5:00 a.m. in the bed where the three were sleeping.

She said that she and her son were asleep when she became aware that her husband was pulling down her shorts and underwear. She told him she was “very tired”, at which point he asked her “to whom are you reserving it?” She said nothing in reply, whereupon “he forced himself [upon] me, so I just let it go [because…] I [was] just worried that our [then 14 or 15 year-old] child was with us”.

She also said that she did not resist because “he is hot tempered…and when he thinks something, he’ll just ‘come over’”. [ 17 ] The second allegation of sexual assault in 2020 was dated by the complainant as having occurred on June 23, 2020 around midnight; she testified that she was certain of that date because 23 is the same number as her son’s birthday. According to her evidence, this sexual assault was similar to that described in the previous paragraph, in that while she and her son were asleep, her husband started to pull down her nightclothes.

This activity woke her sufficiently so that she was able to tell him that she did not consent because she “was tired”. When he said “you’re always tired”, she replied “of course, I’m working”. He ignored her refusal and forced his penis into her vagina.

The only difference between what happened here and what had happened in the April 14 assault was that she lay on her side facing her son while he penetrated her vagina from behind. [ 18 ] The third allegation of sexual assault in 2020 was dated by the complainant as having occurred during the first week of July at approximately 2:00 in the afternoon while her son was at school. The accused entered the washroom while she was there and said “we’ll fuck” (as translated by the court interpreter from Ilocarno).

She remonstrated that she did not wish to participate “because [our child] might come home soon and he will see us”. He ignored her lack of explicit consent, pulled her to the bedroom, pushed her on the bed, pulled down her “panty and the shorts”, penetrated her vagina with his penis and then climaxed. On her evidence their child did come

home while her husband was penetrating her; she was clear that her son saw them while intercourse was taking place. [ 19 ] (I interrupt the narrative to make an observation. When MJ testified he was not asked by either counsel about this incident. Because the defence position throughout was that none of these uncharged sexual assaults occurred, it is not at all surprising that defence counsel would not ask MJ about whether he had observed his parents as the complainant described. I was initially a little surprised that Crown counsel did not cross-examine MJ on this point.

Having now reflected on this, though I did not expressly ask Ms Nedelkopoulos during her submissions why she had not done so, I strongly suspect the reason was out of a sense of delicate propriety towards a young witness whose demeanour and responses throughout clearly indicated that, quite naturally, he was extremely embarrassed at being forced to testify – he came to court under subpoena – about very unpleasant matters involving his parents.

If this was indeed Crown counsel’s motivation, she deserves commendation for her restraint, in the best traditions of the Bar). [ 20 ] At some point in either late June or early July, the complainant alleged that there were two sexual assaults on the same day. The first occurred when she was preparing food in the kitchen early in the morning. On her evidence, the accused came up behind her, pushed her against the sink, pulled down her pants and underwear and penetrated her vaginally from behind. She expressed her objection to his behaviour by saying: “is that the only thing you’d like to do?

Is that the only thing you know how to do? Is there nothing else?”. [ 21 ] The complainant testified that the second sexual assault on that day occurred immediately after the first. She said that the accused forced her onto the bed mentioned in para. 5 supra and had coerced sexual intercourse.

She testified that this was “the same [as had just happened in the kitchen]…He would force me even though I don’t like…”. [ 22 ] (Unlike the other incidents at issue in this case, in each of which the complainant testified that she expressly told the accused that she did not consent to sexual activity, no such words of refusal were directly used while the accused was allegedly twice assaulting her on this day.

Given the wording of s.273 of the Code regarding the requirement that a sexual aggressor positively seek out the “voluntary agreement of the complainant to engage in the sexual activity in question”, if these incidents occurred, there is no evidence that the accused sought and obtained her consent). [ 23 ] The complainant next testified about the incidents that triggered the charges formally under consideration in this trial. Because she started work at 7:00 a.m., she would normally get up around 5:00-5:30 a.m. and would go to the kitchen to prepare her lunch.

On her evidence the accused entered the kitchen early one morning in July – she could not specify an exact date when this occurred – picked up a kitchen knife that she had been using to prepare her food, pointed it at her and told her to “come here” because he “want[ed] sex again”. When she declined because “the kid is there and he might…wake up”, the accused said “just a quick one”, to which she replied “not today”.

In response the accused pointed the knife at her, which she testified made her “scared…really scared…because I might be killed…by accident”, so she did not resist when he pulled down her shorts and underwear and penetrated her vaginally from behind “doggie style” while she was standing. On her evidence he resisted her attempts to push him off her when she felt pain in her vagina (which she said hurt because she had recently had, what she called in English a “coloscopy” (sic)).

When the accused climaxed and withdrew, she told him: “this is the last sex”. [ 24 ] Defence counsel made much of the fact that the complainant had apparently told her sister that this incident occurred around midnight, just after the accused came home drunk, rather than early in the morning. He again suggested to the complainant that her memory was unreliable in this regard. She replied that perhaps her sister had not fully understood what the complainant told her.

More important – and in my view quite convincingly – the complainant explained that she felt that while the accused came home drunk the night before, by 5:30-6:00 a.m. the following morning “the alcohol was gone”.

Because she herself does not drink alcohol, she conceded that she was not entirely certain about the effects of alcohol on the body some hours after consumption, but she was adamant – again, quite convincingly in my view – that the accused “was not intoxicated” at the time he forced her to have sexual relations in the morning. [ 25 ] Some days later the complainant became aware that the accused again wished to have intercourse with her. She told him that her vagina was sore after her period, to which the accused responded: “you’re going to give me [another] chance”.

Concerned that he might again try to force himself on her, the complainant avoided the accused by moving around the apartment. Importantly, she did not allege that unwanted sexual activity occurred on that day. To my mind, that concession on her part bolsters her overall credibility. [ 26 ] I should also mention that the complainant broadly alleged that there were other examples of coerced sexual activity forced on her by the accused during the time frame specified in the information.

However, because she was unable to provide even approximate dates when these occurred, and because Crown counsel did not seek to elucidate further details, I do not propose to deal with them further. [ 27 ] To supplement the complainant’s allegations the Crown called two other witnesses, the complainant’s older sister V.F., and Dr. Sharon Jankey, a psychologist at West Park, who had considerable dealings with the complainant while she was in rehabilitation at that facility. [ 28 ] Ms F. is a Registered Nurse practicing somewhere in the United States.

She gave evidence in the trial over videolink, and I understand that this was the main medium she used to communicate with the complainant and medical staff while her sister was hospitalized.

Unlike the complainant, because of her profession Ms F. is used to and comfortable with medical terminology; for this reason the complainant partly relied on her elder sister to explain in her native language of Ilocarno some terms used by medical staff. (Ms F.’s email to the officer in charge of this case was entered as Exhibit 4 in this trial). [ 29 ] Ms F. spoke with her sister (either by telephone or videolink) on most days while she was at West Park.

As the doctors had told Ms F. that the complainant had suffered “a traumatic brain injury”, she testified that she was particularly alert to her sister’s ability to recall and communicate. She testified that “it sometimes took her a long time to find words in a conversation [either in Ilocarno or in English] but her long-term memory stayed intact”. She also said that her sister could speak clearly (especially when talking about her physical condition or about her family) but that she “sometimes fumbled for words”. [ 30 ] Dr. S. Jankey is a Registered Psychologist who works at West Park.

At the request of the complainant’s treating physicians she first met the complainant on November 5, 2020 when she came to see her to discuss potential plans for discharge from the facility when she became medically fit to do so. I gather from her evidence and that of Ms F. that the complainant requested Ms F. participate by

videolink in this conversation, because the complainant did not at first understand the term “discharge”. When the term was explained to her (either by her sister or Dr. Jankey, or perhaps by the treating physicians), the complainant expressed concern that, because of her considerable physical injuries she would be “unable to run…from her husband’s abuse”. [ 31 ] In this first conversation with Dr. Jankey the complainant may or may not have specifically alleged that she had been sexually abused by her husband; unfortunately, Dr. Jankey’s notes (Exhibit 3) are silent on point.

It does appear that the complainant may have made disclosure to her sister about the forced sex with a knife in a previous conversation between the two of them.

Defence counsel tried to make something of this supposed discrepancy in support of his general argument that the complainant’s ability to precisely recall has been significantly impaired as a result of her accident, but, with respect, I again do not think that any discrepancy about when and to whom the complainant first disclosed matters very much in the overall scale of this case, especially when it is recalled that the complainant had sustained very serious injuries as a result of being struck by the vehicle, that she was still hospitalized after some 7-8 weeks, that she was in pain much of the time, and that English is not her first language. [ 32 ] It appears from Dr.

Jankey’s statement to the police that she first attempted to call the police on November 5, but that, because the West Park facility was “locked down” due to a Covid outbreak, she was unable to get very far. In the few days following November 5 Dr.

Jankey contacted civil counsel representing the complainant in relation to her being an accident victim, to see if he could assist either in “getting a restraining order” – presumably to have the husband removed from the family residence when the complainant was eventually discharged from hospital – or in obtaining some funds so that the complainant could move to a different address upon discharge. Neither of these proposed avenues led anywhere; nor was it possible, again because of Covid concerns, for her and her son to move in with relatives. Thus, Dr.

Jankey initiated another call to the police on November 16 and told them that the complainant wished to make a statement to them about “physical and sexual abuse sustained by her at the hands of her husband over a number of years”. The police came that day, and Dr. Jankey sat in on the interview (as did Ms F., who again joined by videolink). She noted that during that interview the complainant was unable to provide exact dates when the sexual assaults had occurred. Dr.

Jankey, a highly experienced clinical psychologist who has worked for many years with accident victims in this rehabilitation centre, testified that she did not consider this to be significant “because the complainant was discussing a pattern of her husband’s behaviour rather than specific incidents”. Importantly, Dr. Jankey also added that throughout her dealings with the complainant she “never observed general memory problems”. [ 33 ] After the initial police interview Dr.

Jankey and other West Park staff continued to try to find an alternative address where the complainant could go upon discharge – indeed, it appears that, as a matter of compassion, she was allowed to remain in hospital for a few days longer than strictly necessary, given her situation. Unfortunately, the only possible alternative placement that appeared feasible was that the complainant might go to a shelter, something she refused to consider because she did not want her son exposed to such an environment (in addition to the prevalence of Covid throughout the city).

Thus, she was discharged on November 27 to the family home. The Evidence for the Defence : [ 34 ] The first witness for the defence was the accused’s mother A.G. I caution myself about the dangers of assessing credibility where, as here, evidence is given through an interpreter. At the outset of her evidence this witness attempted to depict herself as a caring and compassionate mother, mother-in-law and grandmother. However, as her evidence unfolded it became entirely clear to me that what she said not only did not ring true, but, more important, was illogical and highly partisan.

Overall, her evidence appeared to me to be expressly intended to promote the notion that the complainant has a self-serving motive to fabricate her evidence. [ 35 ] The witness first described an incident where “one night” (other than saying it occurred “possibly two months before [the complainant’s] accident”, she could not provide a time frame) the complainant had called her to request that she come to “get your child…to stay at your place”. When she asked the complainant what had happened, the complainant, who seemed “mad”, told her that he had pointed a knife at her and her child.

When the witness asked why he had done so, the complainant replied: ”You ask him”. Unlike what follows, I am somewhat prepared to accept this part of this witness’ evidence, because the complainant agreed that she had had this conversation with her mother-in-law some three months after the now accused arrived in Canada i.e. sometime during the summer of 2019.

The complainant explained that the reason for her call was that her husband had, during a threatened suicide attempt, menaced her and her son with a knife. (MJ, who it is obvious was no doubt very troubled by his father’s behaviour, mostly corroborated his mother’s version of that event – see para. 45 infra ). Having said this, A.G.’s inability to provide a fairly concise time frame for this no doubt traumatic incident is troubling. When considered with other omissions and inconsistencies in her evidence described in the next few paragraphs, it casts considerable doubt on her credibility.

Common human experience frequently teaches that when one lies, the broad outlines of the lie may be consistently described, but that the lie is graphically exposed in the accompanying details, which I find happened here. [ 36 ] A.G. appears not to have made the slightest effort to question the complainant about what had happened during or immediately after this initial telephone call from the complainant. Further, despite the tone she tried to set during her narrative of the events, she seems to have made no additional effort to follow up with the complainant at any subsequent time.

This to my mind casts the witness’ supposed care and compassion for the family into considerable doubt, especially when it is recalled that her teenage grandson was involved. [ 37 ] When the mother-in-law went to her son’s residence the following morning, she found him there alone. When she asked him why the complainant had told her that he had brandished a knife, he conceded that he had done so, but explained to his mother that “I can no longer bear this pain in my chest…I [accidentally] saw in her cellphone, Mama, there’s somebody she was texting to – a man there… Jestioni [Tony] Nieto”.

According to this witness, this was the first time she had heard that name. However, in cross-examination she conceded that she did not take any opportunity herself to examine the contents of the cellphone, nor did she ever ask the complainant about them. [ 38 ] The witness then testified that some weeks or months later, out of the blue she received an electronic communication (in Tagalog) from a person who identified himself as Nieto, who confessed to her that “Its been the two of us [the complainant and I] for a long time way back in college…”.

In cross-examination she said that when she tried to retrieve the message, it had somehow been deleted. Though she could not say for sure, she thought that the complainant might have deleted it because “there’s no one else who knows [how to do that]”.

[ 39 ] Before I go on to discuss the problems with this evidence, I need to deal with one procedural issue that arose through this witness’ evidence. None of these allegations about Nieto had been put to the complainant during cross-examination. When I immediately raised this with defence counsel, he conceded that he had never heard of the ethical obligations placed on counsel through the rule in Browne v.

Dunn , that he had never even heard of that case, and that he saw nothing wrong with “ambushing” an adverse witness by adducing converse evidence without first providing the witness being cross-examined any opportunity to address it. I cautioned him that this was entirely improper.

Crown counsel then agreed to recall the complainant so that these various allegations could be put to her, which took place after A.G. had completed the rest of her evidence. [ 40 ] There are several problems with A.G.’s evidence that cause me to reject her testimony as contrived and false, except to the extent that it is corroborated by others. First, the witness says that because of what had happened with the brandishing of the knife (which her son conceded he had done), she testified that she made it a point to visit the family “every Saturday…[to] observe their relationship”.

However, she said that she “never saw any gap between them as a couple”. This makes little or no sense. If this obviously traumatic incident had occurred as her son described, surely she would, as the caring mother, mother-in-law and grandmother she purports to be, have been particularly focused on her son and grandson’s mental state over time, something she did not mention.

Secondly, and I will discuss this again when I review the accused’s evidence, if her son had truly discovered evidence of his wife’s continuing infidelity, surely she would have encouraged (and perhaps assisted) him to take steps to retain the cell phone in question, but “somehow” either the phone or the supposedly incriminating evidence on it became unavailable. Thirdly, if her son had truly been the innocent party and his wife was a philanderer, she would at least have discussed with him whether he should remain with her, if only because of the grandchild.

Her testimony that she only went to visit the family “to observe their relationship” does not ring true, and does not make logical sense. Finally, and in my view most important, it is all too convenient that this witness did not retain the potentially very important electronic communication she herself purportedly received from Nieto, as it would have served to supplement her son’s alleged “discovery”. Her explanation that it “somehow got erased” does not ring true.

I entirely reject her evidence that she ever had any communication from Nieto. [ 41 ] Once the complainant was recalled, she was asked if she knew anything about Tony Nieto. She was clear – and to me entirely convincing – that she had never heard the name and had no idea who he was. [ 42 ] For these reasons, I have absolutely no difficulty in concluding that the accused’s mother was prepared to say virtually anything to assist her son.

Not only was her animus towards the complainant obvious and palpable as she testified, but, sadly, she seemed to demonstrate no concern for her grandson, a vulnerable teenager who had been recently exposed to rather shocking violence from his father. [ 43 ] The next defence witness was MJ. As I have already indicated, he was, for obvious reasons, a most reluctant witness who strived to avoid saying anything that might place either of his parents in a negative light.

Having said that, his evidence was helpful to the issues in this trial on four points. [ 44 ] The first was that during the time the family lived on T. Court he considered that the sleeping arrangements remained the same (with one exception where he fell asleep on the bed that had been placed in the curtained off area of the kitchen). He testified that he always slept between his parents, and that he “could not recall” his parents’ positions (mother to his left and father to his right) ever changing.

Defence counsel suggested that this was evidence which undermined the complainant’s evidence about sexual assaults having happened in the bed. However, MJ also he conceded that he was a deep sleeper, and that it was possible that his parents switched positions without him noticing, especially as his parents usually got up earlier than he did. [ 45 ] The second area of relevance was that he corroborated his mother’s evidence about his father brandishing a knife, though he was not prepared to agree that his father pointed the knife at anyone other than himself.

He said he observed his father crying, apparently over something he had seen on Facebook on a cellphone. He said his parents argued for many hours on the evening in question, but that he “could not recall what they argued about”. He did not offer any evidence as to when this incident occurred. [ 46 ] The third area of relevance was that MJ was in a good position to observe his parents’ interactions when she came to the C. Street address upon her discharge from hospital on November 27.

He suggested that his father was particularly attentive to her physical condition, in that he cooked and did household chores, helped her to get up from her chair, assisted her in walking inside the apartment, and helped her to take showers. In his evidence the accused took the same position about helping his spouse up to the time of his arrest on November 30.

MJ’s evidence, supplemented on this point by that of his father, is relevant because in her evidence the complainant had testified in cross-examination that she “did not see the [now] accused from the date of my discharge from hospital until he was arrested”, which she actually observed. Counsel quite properly put to her that she had told Det. Fenton in her statement to him taken on November 29 that she had seen the [now] accused on the night she returned to the C. Street apartment on the day of her discharge from hospital. She replied that she had no memory of saying that to the officer.

Importantly, she conceded that “this is because of my short- term memory problem”. In re-examination she told Crown counsel that when she gave her statement to Det. Fenton she was “groggy, aching and in pain” (for which she was taking medication). [ 47 ] In his submissions at the end of the trial defence counsel strongly urged me to consider that her lack of ability to recall what happened during those 2-3 days was illustrative of his general point that it would be dangerous to rely on her memory in light of her brain injury caused by the accident.

Crown counsel conceded that this somewhat weakened her evidence, but reminded me that the complainant had testified she was aware that her husband seemed surprised when he came home on November 27 to find her unexpectedly at home, and that she recalled being present when the arrest of the accused occurred. I will reserve commentary on this until I have reviewed the accused’s evidence; nevertheless, I accept MJ’s evidence on this issue that his father was very attentive to the complainant when he was in the apartment.

During the period [ 48 ] The final relevant point on which MJ gave evidence was about his mother’s inability to recall information necessary to take care of her affairs, both while she was hospitalized and after she was discharged. He gave several examples. First, she could not recall the password for her cellphone; she was only able to access her phone after he found the password written on a piece of paper inside her cellphone case. A second example that he gave was that she had to call her bank in order to retrieve her bank account password, which she had either misplaced or forgotten.

MJ’s point is well made, but it seems to me the very fact that she was able to call her bank and

negotiate with the authorities there (who no doubt would have required that she provide all sorts of identifying information) that she musthave had sufficient ability to recall and focus on the details the bank would have requested.

Conversely, MJ very fairly conceded that onone occasion after her accident his mother called his cellphone from her hospital bed, demonstrating that she must have been able toremember or locate his cellphone number. [49] There can be no doubt that for some considerable time following her very serious accident the complainant was suffering frommemory lapses in certain domains, and defence counsel was quite right to press this issue whenever possible.

However, as I listened verycarefully (through the interpreter) both to the logic of her evidence and the way she presented it, I am prepared to find that, except on thespecific points counsel brought out, her memory of the various pre-accident assaults during the summer of 2020 was substantiallyuntouched. In this I am particularly fortified by the evidence of Dr. Jankey, the only mental health professional whose evidence I haveheard in this trial. As I have previously indicated Dr.

Jankey, a very experienced psychologist used to dealing with accident victims atWest Park, was not troubled by the complainant’s occasional inability to recall dates, nor did she consider that the complainant’s memorywas substantially at issue during her extensive dealings with her over several weeks. [50] The accused was the final witness to testify for the defence. He first testified that, like his son had said, that he was particularlyattentive to his wife’s weakened physical condition during the period she returned to the C. Street apartment after her discharge fromWest Park.

In order to demonstrate his continuing attention to her needs, he was clear that he was there at all times (prior to his arrest),“as I was off work”. This cannot be entirely true. According to Ex. 2, Det. Fenton interviewed the complainant at the apartment for atleast ½ hour; the transcript of details that the taping of the interview was from 7:44 p.m. – 8:12 p.m., but the officer must have been therefor somewhat longer in order to set up and conclude the formal part of the interview. It is clear from the transcript that the [now] accusedwas not there during the interview in this small apartment.

Perhaps not a lot turns on this, but at the very least it suggests to me that theaccused’s position that he was there at all times may be somewhat exaggerated. [51] The accused took the same position on all of the complainant’s allegations of sexual assault (both charged and uncharged). Heasserted throughout his evidence that these incidents “did not happen…I love my family…my wife……I could not force her…I could notdo that to her”.

Because his overall position was the same regarding all her allegations, I see no point in detailing his identical responsesto each of her claims. [52] There was however one response in this area that I found instructive in evaluating the accused’s overall credibility. In cross-examination he was asked about the complainant’s assertion (see para. 16 supra) that he had asked her “for whom are you reserving it?”.At first he replied that he “could not recall” having said that to her. But when pressed by Crown counsel, he immediately changed hisposition to say that “nothing like that ever happened”.

If this was the only point on which he potentially stumbled I would probablydecide to ignore it, especially when it is recalled that the accused also gave evidence through an interpreter. However, there are moresubstantial areas where the accused is vulnerable, which, combined with this “slip”, weaken his credibility very substantially. [53] Earlier in these reasons I devoted considerable space to detailing the accused’s mother’s evidence, particularly that part of herevidence that related to the supposed involvement of Tony Nieto as his wife’s paramour.

His mother testified that she first became awareof Nieto’s name when she came to visit her son on the morning following the complainant telephoning her to request that she take herson to live with her. The accused’s responses on cross-examination to questions about this person completely contradicted those of hismother. He asserted that he had learned from his mother (who in turn had learned it from friends) that the complainant had been sendingmoney to Nieto. He testified that he was informed of this by his mother well before the incident with the knife.

In other words, if thisevidence is credible, he did not suddenly uncover this apparent liaison at the time when he accidentally accessed messages on hercellphone. He already knew that she was involved in some way with Nieto. This stands in sharp contradiction from his mother’sevidence. [54] Secondly, the accused testified that, in the days and weeks following the knife incident “I didn’t speak to my wife about this[liaison with Nieto]”. This was a couple who had been together for some 16 years by the summer of 2019, and they had been marriedsince 2013.

It makes no sense at all that he would not at least try to raise it with her. Similarly, in the absence of some discussionbetween them about Nieto’s supposed involvement with her, it makes little or no sense that he would continue their relationship for atleast another year. Finally, the accused stated in cross-examination that the complainant “is lying when she says she doesn’t know[Nieto]…They were classmates”.

Again, it makes no sense that he would continue the relationship if he truly believed she was lying tohim on such a fundamental issue. [55] When added to the comments I have already made about the all too convenient disappearance of the electronic messagesallegedly from Nieto in both the cellphone he was using and that of his mother, I am drawn to the conclusion that the accused and hismother have dreamed up this supposed liaison in the hope of demonstrating that the complainant has a motive to fabricate. I reject thatentirely as completely contrived and self-serving.

I therefore prefer and accept the evidence of the complainant on this point, when shedenied ever hearing the name Nieto or knowing the individual. Analysis: [56] Canadian law is clear that just because I reject the evidence of an accused it does not follow that a finding of guilt must be made.There are at least two other stages that a trial judge must go through before a finding of guilt may be safely made. [57] The first is whether, having rejected the evidence of an accused, that evidence is nevertheless capable of raising a reasonabledoubt.

While there are cases in which this is a salient issue, I can find nothing in the facts of this case that requires me to consider thissecond branch of the test laid down by the Supreme Court of Canada many years ago. [58] The third stage of the analysis which must be undertaken by a trial judge is whether, upon the whole of the evidence, I amsatisfied beyond a reasonable doubt of the guilt of the accused. In a “she said/he said” case such as this one, where there is little if anyindependent corroboration, this inevitably focuses a trial judge’s attention on the credibility of the complainant (see R. v.

N.K. 2021ONCA 13 , 2021 ONCA. 13 at para. 10; R. v. Hull (ON CA), [2006] O.J. No. 3177 (C.A.) at paras. 5-6; R.v. A.J.K. 2022 ONCA 487 at paras. 20-36).

[59] To reiterate, defence counsel’s submissions were: (1) that her short-term memory is too unreliable for me to be comfortablerelying on it to support a finding of guilt (2) that she expressed considerable inconsistencies in her descriptions of various dates to thepolice (3) that MJ’s evidence about the four areas in which he observed her to have memory problems should add to this concern aboutthe complainant’s ability to recall (4) that MJ’s observation that to his recollection the patterns of where he and his parents slept in thebed either did not change at all or changed very rarely should again cause me to doubt the complainant’s credibility.

I believe I have nowaddressed these specific submissions as to the complainant’s credibility – and above all – her ability to recall accurately – at variouspoints earlier in this judgment. [60] Similar to what I said about my views of defence counsel’s submissions, I believe I have already addressed most of Crowncounsel’s very fairly expressed concerns about the complainant’s credibility earlier in these reasons.

Before giving my final conclusionabout the complainant’s overall credibility, however, it is necessary for me to address two additional issues raised by Crown counsel inthat part of her submissions where she fairly acknowledged certain frailties in the complainant’s evidence. [61] The first is that, having purchased and put up this extra bed in the curtained off area of the kitchen, Crown counsel asked “whydidn’t the complainant simply sleep there if she was being assaulted when she was in bed with her son and husband”?

While thecomplainant was not asked about this, I am of the view that this may be addressed rather simply.

If the complainant was beingoccasionally assaulted by her husband while she was in her “regular” bed, surely she did not move permanently to this new bed for fearof being assaulted more frequently by a man whose behaviour over time amply disclosed that he was prepared to force himself on herwhenever he felt like it. [62] In her final submission Crown counsel expressly conceded that there are contradictions between the complainant’s evidence andthat of her husband and son about her husband’s presence (and willingness to help her) in the 2-3 days following her discharge.

I believe Ihave already addressed this in paragraphs 46 & 47 supra, but I wish to reiterate my overall view that such deficiencies that exist in thecomplainant’s evidence do not significantly detract from her overall credibility. [63] I turn now to recent law. In R. v. Gerrard 2022 SCC 13, a very recent decision of the Supreme Court of Canada, the court wasasked to provide guidance to as to what inference a trial judge could make in circumstances where, as I have found is the case here, a“motive to fabricate” raised by defence counsel is rejected.

Speaking for the court Moldaver J. wrote: “Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised bythe defence. Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sensefactor that suggests a witness may be more truthful because they do not have a reason to lie.

That said, when considering this factor, trialjudges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way)cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as thelatter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) theburden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why acomplainant has made the allegations.” (at para. 4; citations omitted) [64] I caution myself that, as I have found to be the case here, evidence establishing that a motive to fabricate does not exist “is [not]conclusive in a credibility analysis”.

Given such corroboration of the complainant’s allegations as exists here, in my judgment what thiscase comes down to is derived from what Doherty J.A. said for the Ontario Court of Appeal in R. v. J.J.R.D. (ONCA), 218 O.A.C. 37 (at paras. 44-55) to the effect that a conclusive belief of powerful prosecution evidence can, in itself, support thecomplete rejection of defence evidence, even if there are no identifiable flaws in the defence evidence, examined in isolation, thatundermine its credibility. (See also R. v. J.W. 2014 ONCA 322 at paras. 25-32, and R. v. Jaura 2006 ONCJ 385 at paras. 10-22).

Here,even without the flaws in the defence evidence that I have determined to be salient, overall I find the complainant’s evidence – and thatof the other Crown witnesses – to be clear, powerful and compelling. [65] I further caution myself that I must be alert to the potential dangers of reversing the burden of proof “by requiring the accused todemonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations”.

The onus in this case, as inall Canadian criminal cases, is on the Crown to satisfy me beyond a reasonable doubt of the guilt of the accused upon considering thewhole of the evidence. Looking at the whole of the case, for the reasons previously discussed, I am so satisfied. I thus find the accusedguilty of the two charges on which he has been formally arraigned. [66] Given that a significant penitentiary sentence is virtually certain here (see R. v. A.J.K. 2022 ONCA 487 at paras. 70-88), it will beappropriate to order that a Pre-Sentence Report be prepared.

I would ask that counsel now attend on the Trial Co-ordinator to arrange areturn date at least six weeks from now to allow sufficient time for that Report to be prepared. [67] Earlier in these reasons I indicated to counsel (in para. 10) that if I were to conclude that the uncharged allegations of sexualassault simpliciter had been adequately made out, s.725(1)(

c) of the Code can authorize me to consider them as potentially aggravatingfactors. In fairness, now that I am so satisfied, I propose to offer counsel an opportunity to address their import for sentencing purposes(see R. v. Edwards (2001) (ON CA), 54 O.R.(3d) 737 (Ont. C.A.)). Released: July 8, 2022 Signed: Justice David P. Cole