



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

486.4(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    that could identify the victim or a witness shall not be published in any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, 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 complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)     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 victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s.  8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c.  13, s. 18.

486.6(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.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.G., 2021 ONCA 800

DATE: 20211110

DOCKET: C66650

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.G.

Appellant

Richard Posner and Fiona McNestry,
    for the appellant

Michael Dineen, for the
    respondent

Heard: October 20,
    2021 by video conference

On appeal from the
    conviction entered on November 1, 2018 and the sentence imposed on March 8,
    2019 by Justice James F. Diamond of the Superior Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant appeals from convictions on four
    counts of sexual assault and one count of assault upon his wife. He argues that
    the trial judge erred in his assessment of the complainants credibility, erred
    in rejecting the appellants evidence and erred in his use of cross-count
    similar fact evidence. We do not accept these arguments and dismiss the appeal.

[2]

The appellant and the complainant were married
    on April 19, 2015 in a traditional Punjabi arranged marriage. They had spent
    about 10 to 15 minutes together before both sets of parents agreed to the
    marriage. The complainant described an unremitting course of violent sexual and
    non-sexual assaults. Her every move was controlled and restricted, including
    the nature of her employment and the clothes she wore. She was not allowed any
    of the money she earned, her access to food was restricted and she was
    forbidden to use a cell phone to contact her own family. Police photographed
    the injuries to her body when she finally went to the police on the day she
    left the appellant.

[3]

In contrast, when questioned by police the
    appellant said it was a happy marriage and that there were no problems. He
    denied all of the assaults. At trial, the appellants position was that the
    allegations were ludicrous, that the complainant was lying, and that
    inconsistencies in her evidence showed that she could not keep her false
    stories straight. He largely admitted the degree of control exerted over the
    complainants daily activities. He testified at trial that their relationship
    had deteriorated, describing fights, arguments, and crying, and claimed that he
    decided to let the complainant walk away from the marriage.

Principles governing appeals challenging a
    trial judges assessment of credibility

[4]

A trial judges findings of credibility are owed
    deference. As recently noted by the SCC in
R. v. G.F.
, 2021 SCC 2020, 459 D.L.R. (4th) 375 at para. 81:

a trial judges findings of credibility deserve particular
    deference. While the law requires some articulation of the reasons for those
    findings, it also recognizes that in our system of justice the trial judge is
    the fact finder and has the benefit of the intangible impact of conducting the
    trial. Sometimes, credibility findings are made simpler by, for example,
    objective, independent evidence. Corroborative evidence can support the finding
    of a lack of voluntary consent, but it is of course not required, nor always
    available. Frequently, particularly in a sexual assault case where the crime is
    often committed in private, there is little additional evidence, and
    articulating reasons for findings of credibility can be more challenging.
    Mindful of the presumption of innocence and the Crowns burden to prove guilt
    beyond a reasonable doubt, a trial judge strives to explain why a complainant
    is found to be credible, or why the accused is found not to be credible, or why
    the evidence does not raise a reasonable doubt. But, as this Court stated in
Gagnon
, at para. 20:

Assessing credibility is not a
    science. It is very difficult for a trial judge to articulate with precision
    the complex intermingling of impressions that emerge after watching and
    listening to witnesses and attempting to reconcile the various versions of
    events.

[5]

This is particularly so where the trial judge had the advantage of 24
    days of trial time and where the complainant was on the stand for over ten days,
    including 5.5 days of cross-examination. This trial judge was in a far better
    position to assess the credibility and reliability of the evidence than an
    appellate court reading a record.

Leaving the marriage with honour

[6]

On appeal the appellant submits that the trial
    judge did not assess the central plank of his defence: that the complainant had
    a motive to fabricate false allegations of assault, so that she could leave the
    marriage with honour, in accordance with her traditions. In general, the
    appellants thesis is that according to Punjabi traditions, unless the
    complainant could establish that the marriage was not consummated or that she
    had been subjected to physical abuse, she could not leave the marriage with
    honour, and this would make it difficult for her to remarry within those
    traditions.

[7]

The trial judge questioned trial counsel as to
    whether he intended to call expert evidence to establish those traditions, and
    counsel responded that he did not intend to do so, but intended only to
    establish that the complainant and her own father adhered to those beliefs. The
    trial judge found that neither the complainant nor her father agreed with trial
    counsels suggestions as put to them in cross examination. This was a fair
    interpretation of their testimony.

[8]

The trial judge found the complainant to be an
    honest witness, who did her best to tell the truth. He found that she held off
    reporting the abuse to her family and police for several months because she had
    a sincere and honest belief, or perhaps hope, that things would change and
    placed her faith in the marriage arranged by her parents. She had already
    endured one failed marriage, and very likely had no desire to see her second
    marriage fail as well.

[9]

While the thesis of fabrication for the purposes
    of leaving the marriage with honour is emphasized on appeal, it had little
    prominence in submissions at trial. Trial counsel devoted only a couple of
    lines in otherwise lengthy submissions to the issue.

[10]

We see no basis to interfere with the trial
    judges conclusion that the complainant was an honest witness. The trial judge
    did go on to acquit the appellant of a number of the other counts on the
    indictment, as he was not convinced that the appellant had accurately conveyed
    the substance of what had occurred on those other occasions. There was some
    confusion as to what happened during the incidents upon which the appellant was
    acquitted, in a context, that featured multiple  almost daily  assaults over
    the course of several months.

[11]

The complainants evidence was powerfully
    corroborated by the photographs of her injuries, which she attributed to the
    appellant. Her evidence was detailed, graphic and compelling.

Did the trial judge err in rejecting the
    appellants evidence?

[12]

The appellant argues that the trial judge erred
    in relying on his controlling behaviour and his attitude towards his wife to
    reject his testimony that the assaults did not occur. While he may have been a
    verbally abusive, uncaring and inattentive husband, this does not mean that he
    assaulted his wife.

[13]

The difficulty with this submission is that the
    ongoing assaults were part of the pattern of domination and control used to
    keep the complainant under the appellants and his parents thumbs.
[1]


[14]

The trial judge noted despite his testimony
    that he wanted his marriage to work, and was interested in making it a
    successful relationship, during most of his testimony R.G. seemed dismissive,
    nonchalant, aloof, arrogant and not genuine. Not only did he show little
    interest for the complainant, his testimony confirmed that little interest in
    her existed throughout the course of their marriage.

[15]

Again, as the trial judge noted, the photographs
    of the complainants injuries, for which there was no other credible
    explanation, provided good reason to reject the appellants evidence. The lies
    the appellant told police regarding matters inconsistent with his trial
    testimony also provided a basis to reject his evidence at trial.

[16]

That the complainant left after only 12 weeks of
    marriage, although she had really wanted the marriage to work, supports her
    evidence about the appellants conduct, and also suggests that he was not
    telling the truth when he denied assaulting her. She would not have left unless
    the conditions in that household were truly intolerable.

[17]

We see no basis to interfere with the trial
    judges assessment that the appellant was not a credible witness. The findings
    of fact made by the trial judge were reasonably available to him on the
    evidence, and there was no material misapprehension of the evidence.

[18]

Nor did the trial judge reverse the burden of
    proof. He explicitly referred to the onus upon the Crown and applied the
    requisite standard of proof to acquit the appellant on some of the counts with
    which he was charged.

Similar act evidence

[19]

The appellant acknowledges that a pattern of
    abusive conduct towards a single complainant may be admitted as proof of animus
    or to establish the nature of the relationship between the parties. He submits,
    however, that the trial judge erred by engaging in prohibited propensity
    reasoning by concluding that the trial judge reasoned that because the
    appellant committed one assault, he was likely to have committed another. We
    are not convinced that the trial judge engaged in this line of reasoning, but
    in any event, as this court observed in
R. v. Batte
, 49 O.R. (3d) 321 (C.A.) at para. 102:

For example, if an accused is
    charged with assaulting his wife, evidence that the accused beat his wife on a
    regular basis throughout their long marriage would be admissible. Evidence of
    the prior beatings does much more than suggest that the accused is a bad person
    or that the accused has a general disposition to act violently and commit
    assaults. The evidence suggests a strong disposition to do the very act in issue
     assault his wife.  In such cases, the jury is permitted to reason, assuming
    it accepts the evidence of the prior assaults, that the accused was disposed to
    act violently towards his wife and that he had that disposition on the occasion
    in issue.

[20]

Accordingly, the appeal is dismissed.


Janet Simmons J.A.



P.
    Lauwers J.A.


G.
    Pardu J.A.





[1]

The trial judge convicted the appellants mother of assaulting
    the complainant and convicted both of the appellants parents of threatening
    the complainant with death.


