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R. v. P.S., 2019 BCPC 38 (CanLII)

Date:
2019-02-21
File number:
223314-2KC
Citation:
R. v. P.S., 2019 BCPC 38 (CanLII), <https://canlii.ca/t/hz4h6>, retrieved on 2024-03-28

Citation:

R. v. P.S.

 

2019 BCPC 38 

Date:

20190221

File No:

223314-2KC

Registry:

Surrey

                                                                                                                       

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

     

 

 

 

 

 

REGINA

 

 

v.

 

 

P.S.

 

 

     

 

 

ORAL REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE P. GULBRANSEN

 

 

BAN ON PUBLICATION

s. 486.4(1) CCC

 

 

Counsel for the Crown:

W. Sayson, QC

Counsel for the Accused:

M. Stern

Place of Hearing:

Surrey, B.C.

Dates of Hearing:

September 24, 25 and 26, 2018; December 3, 4 and 5, 2018

Date of Judgment:

February 21, 2019

 


Introduction

[1]           Thirty-three days after she arrived in Canada to join her new husband, P.S., M.K. left their home in Surrey under police escort.  She eventually reported that her husband had assaulted her sexually in unspeakable ways and that he and his parents had forced her to become their servant.  She believed that if she had not sought help, she would have been killed.

[2]           P.S. has been charged with assault, uttering threats to cause death or bodily harm and sexual assault.  He denies that he mistreated his wife in any way.  He says that he and his parents did their best to assist her to adjust to living in Canada and to incorporate her into their family.  He says that all of her accusations are false.

[3]           M.K. believes that her husband and his parents' malicious acts were partially motivated by their anger with her family for failing to provide a higher dowry when the pair got married.  P.S. believes that M.K. has made these accusations against him because he and his family did not do enough to assist her parents and her brother to immigrate to Canada.

Relevant Legal Principles

[4]           The principles which guide my decision in this case are fundamental principles of our criminal law.

[5]           The accused is presumed to be innocent and I cannot find the accused to be guilty unless I am convinced, after considering all of the evidence, that his guilt has been proven to the standard of beyond a reasonable doubt.  The burden of proof is always on the Crown and does not shift to the accused. 

[6]           The concept of “beyond a reasonable doubt” cannot be given a precise definition.  The Supreme Court of Canada has said that it is a higher standard than mere balance of probabilities.  However, the Crown is not required to prove the case to a standard of absolute certainty.  That would be impossible.  R. v .Lifchus 1997 CanLII 319 (SCC), [1997] 3 SCR 320.

[7]           A reasonable doubt cannot be based on an imaginary or frivolous doubt.  It must be based on the evidence, or the lack of evidence, and arrived at through a process of reasoning. 

[8]           Where, in a case such as this, a complainant and an accused have both testified, the trial judge must be careful not to lose focus on the ultimate issue of whether the Crown has proven the guilt of the accused beyond a reasonable doubt.  The Supreme Court of Canada has said that in cases such as this the following rule or rules apply.  R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 SCR 742.

[9]           First.  If I believe the accused I must acquit.

[10]        Second.  Even if I do not believe the accused but his evidence leaves me with a reasonable doubt I must acquit.

[11]        Third.  Even if I reject the evidence of the accused I cannot convict unless, upon examining all of the other evidence tendered at trial, I am satisfied that the accused's guilt has been proven to the standard of beyond a reasonable doubt.

[12]        However, there are other principles implied within these guidelines and these are also applicable to this case.  R. v. Ryon 2019 ABCA 36.

[13]        A trial judge is not expected to completely resolve conflicting evidence.  A trial is not a credibility contest between the testimony of the complainant and an accused.  The judge is not required to determine definitively whether the testimony of either of the parties is true.  If the judge cannot decide whom to believe, the accused must be acquitted.  In essence, then, a trial judge must first reject the testimony of an accused (that is, that portion of the accused's testimony which denies his or her guilt) before any conviction is possible. 

Background

[14]        Much of the testimony in this case provides directly opposite versions of events.  However, there is no real dispute about the general overview of the circumstances which brought these parties together and which provide the context in which these events occurred.

[15]        P.S.'s parents were looking for a suitable wife for their son.  They began making inquiries among various sources in the Sikh community, both inside and outside of Canada to arrange a suitable marriage.  During that time, P.S.'s mother reconnected with a friend that she had known when she still lived in India.  That friend had a daughter, M.K., who she believed would make a good match for P.S.  The respective parents engaged for a meeting of the families and of the proposed couple in India.  The meeting was very successful and P.S. and M.K. enthusiastically endorsed the proposed marriage.

[16]        It seems that both of them were very taken with the other.  One might describe it as “love at first sight”.  Even though this was a marriage arranged between their respective parents, the couple expressed to each other that they personally wanted to go through with the marriage.

[17]        P.S. and M.K. were married in India on October 25th, 2015.  P.S. lived in Surrey, British Columbia, while M.K. lived in Delhi, where she worked at a tech job.  After their marriage and their brief honeymoon, she had to remain in India until her application to enter Canada as a permanent resident was approved.  Thus, she did not arrive in Canada until June 7, 2017 to join her husband and his parents at their new home in Surrey.

[18]        The Crown says that all of the offences which P.S. is accused of committing against his wife occurred in that house, culminating in a series of disturbing events which led her to put out a call for help on July 10th.

The Prosecution’s Evidence

[19]        M.K. is now 26 years old.  She was born in Punjab in India.  In 2015 she received a bachelor's degree in electronics and communication engineering.  After graduating, she worked for a tech company in Delhi as an analyst.  She speaks Punjabi, Hindi and English.  The degree that she obtained was taught in English.  She now works in Canada for a software company.

[20]        Her initial reaction to the proposed marriage could be described as seeing it almost as “a dream come true”.  She described P.S. has being sharp looking, intelligent and educated.  After their respective families had held discussions, the young couple had their first meeting alone.  Each told the other that, even though it was an arranged marriage, they each personally wanted to be married to the other.  The actual wedding appears to have been a magnificent affair, costing M.K.'s parents over $100,000.

[21]        After the couple had a honeymoon, P.S. returned to Canada and M.K. remained in Delhi.  The newlyweds stayed in constant touch with each other.  M.K. said they had many long, intimate conversations over FaceTime or Skype or some other electronic means of communication.  Their relationship seemed to be strong and loving throughout most of the long wait for her to get to Canada. 

[22]        However, M.K. said that significant tensions arose over the constant demands from her husband's family for what she and her family believed were exorbitant demands for more dowry.  She said that in preparation for the wedding her in-laws had made many demands for certain expensive dowry gifts but, as time went on, the demands on her parents to pay large sums of money as dowry became oppressive.  Eventually she, with her parents' agreement, decided that she would not go to Canada if that was the attitude she had to face.  That, in turn, led to members of her husband's family to call her and encourage her to change her mind and go to Canada.  Her husband made the same request.  Eventually, she changed her mind.  She agreed to go to Canada.  She testified, however, that by this time she did not believe that her husband loved her or at least she had her doubts.

[23]        P.S. picked his wife up at the airport when she arrived on June 7.  He drove her to the family home in Surrey. It was a brand new house which had essentially been completed, although some work remained to be done on it.  P.S.'s sister was not living there at the time because she was attending medical school out of the country.

[24]        P.S.'s parents both work afternoon shifts which meant that they were away from the house from early afternoon until late in the evening.  They also had second jobs which resulted in their being out of the house even more.  P.S. worked more traditional hours at his job, leaving in the morning and returning in the early evening.

[25]        Within a few days of her arrival at the Surrey home, M.K. said that she was subjected to what can only be characterized as continual humiliation and physical abuse by both her parents-in-law and her husband, as well as repeated sexual assaults by her husband.  She said that she was forbidden to leave the house on her own.  Her husband told her that there were cameras which could track where she was.  She said she was told she had to stay within a certain portion of the house whenever he was away.  She also said her husband controlled her freedom of movement even more by making her seek permission when she needed to go to the bathroom and by requiring her to keep the bathroom door open when she went there.  She said that she had to ask permission even if she wanted to go upstairs to their bedroom.  This resulted in her becoming very isolated.

[26]        She could only recall being outside the home in the community with her husband or his family when they went once to the Sikh temple, once to the beach and once to a Canada Day celebration.  She said that she was forbidden to speak either by telephone or via the Internet to her parents in India unless her husband or one of his parents was present.  She had her own cell phone but it was from India and on a plan from India and she was not permitted to have a cell phone with an operating plan from Canada.  The cell phone that she possessed was still able to, for example, operate on WhatsApp. 

[27]        She said she was required to do all the cooking and cleaning for the household.  She was required, she said, to serve each family member during mealtime.  She was required to serve them personally.  She said that she was not permitted to eat with them, that is with the rest of the family, but rather was only allowed to eat after everyone else had finished.  She further said that she was only permitted to eat what her mother-in-law gave her to eat.  She said that her husband and her parents-in-law would criticize her harshly if they did not like what she had cooked or if they thought that she made some mistake in the preparation of the meal.

[28]        She also said that both her husband and his parents would strike her if she had not performed according to their expectations, even throwing hot tea on her at least a couple of occasions.  She could also be the target of punches, slaps and even kicks.  She said that her husband forced her to do something with his parents which is either called “touching the toes” or “touching the feet”.  This appears to be some form of symbolic submission which M.K. says is no longer really done in India.  She said that she did it at her husband's demand because she wanted to show respect for his parents.

[29]        M.K. said that she freely consented to having sex with her husband but then on too many occasions he forced himself on her in particularly abusive ways.  For example, she said that he would constantly put his finger in her vagina or her anus in a way which caused her severe pain.  She said that he would do it whenever he felt like it, including, for example, when she was in the shower.  She said he continued to do this despite her continued objections and expressions of pain.  One particularly humiliating incident involved him forcing her to accept his urine into her mouth after they had had sexual intercourse.

[30]        She also described disturbing incidents where P.S. forced objects into her vagina.  She recalled at least three occasions where he placed instruments in her vagina.  She described them as a knife, a pen and a nail shaper. She said he would taunt her while he was doing it and would put his hand over her mouth so that she could not be heard to scream.  She says he also would make her sleep at the side of the bed after they had intercourse and would demand that she not cry.  She said, of course, that she often felt like crying because of her state of despair.

[31]        As well, she said that there were a number of occasions, in various places in the house, where he forced her to perform sexual acts that she did not want to engage in at that time and that place.  She said that he ignored every protest she made. 

[32]        She said that the combined abusive treatment and sexual abuse and her isolation caused her to be in a state of despair.  It got so bad, she said, that she prayed to God asking why he brought her into this world.  She was profoundly miserable and did not know what to do.  She said that everything came to a head on the evening of July 10th. 

Events of July 10th

[33]        She recalls that P.S. came home from work as usual in the late afternoon or early evening.  As soon as he arrived and after she offered him some tea, she said he began to verbally abuse her.  She recalls him complaining about her family and that the family had not provided enough money for her and that her family was unable to support her.  She said that she suggested that she and her husband wait until his parents came home and then they could discuss this matter.

[34]        These kind of comments, she said, were a culmination of comments that he had been making for weeks, that is, complaining about the members of her family and basically insulting them to her face.

[35]        This sort of conduct bothered her and she went upstairs to their bedroom.  P.S. eventually came up there.  She said that while she was on the bed he forced her down and took her phone from her.  This also upset M.K. and she pursued him as he went downstairs and walked about the house with her phone.  He would not give it back and violently resisted her attempts to get it back.  At some point during this struggle, she said that he had put his hand around her throat and was choking her.  She agreed that she actually bit him in the hand but said she did to prevent herself from being harmed.

[36]        In any event, they continued to struggle over the phone.  During this period of time, P.S.'s father called first to P.S., subsequently he called on the landline and P.S. put his father on speakerphone.  She then relates what she believed was a particularly terrifying conversation which took place between P.S. and his dad.  M.K. said that the two of them began talking about killing her.  She said that her father-in-law said something like, "We are going to finish you off today."  She believed that something very bad was about to happen to her.  She ran upstairs after grabbing her phone, which P.S. had momentarily put down.  She used this opportunity to send a text to a cousin who lived in the United States to the effect that she was in trouble and needed help.

[37]        She said that P.S. came upstairs to the bedroom and started hitting her.  She tried to escape, first to the bathroom, but he dragged her back from there towards the bed.  Then she tried to run downstairs but she said he pursued her and dragged her back to the bedroom.

[38]        She describes a violent struggle in which he struck her several times and in which he forcibly removed her clothes and forced sexual intercourse on her, despite her protests and determined struggle against him.  She said that she was crying, or at least trying to cry.  She said trying because he put his hand over her mouth which prevented her from doing so.  She says that P.S. said to her, "I am going to kill you."  She said that, and I am quoting from her testimony, "That day I knew they were going to kill me.  I know I am done today."

[39]        As this was going on, M.K. said that P.S.'s mother arrived home.  M.K. said that she rang the doorbell to be let in.  M.K. said that her husband went downstairs to answer the door.  She put her clothes on and then not much longer after that, the police arrived.  (Her cousin had arranged to have someone contact the Surrey RCMP to go check on her wellbeing.)

[40]        Cst. Jennifer Parent and another RCMP officer arrived at the home about 11:30 p.m.  P.S. answered the door and allowed her inside.  The officer asked to speak to M.K.  She first spoke to her in the kitchen in the presence of P.S.'s mother.  Cst. Parent then took M.K. upstairs to the bedroom, that is the couple's bedroom, to conduct an interview in private.  After the interview was concluded, she took M.K. from the home.  Eventually, M.K. went to stay with some friends of her cousin.

[41]        P.S. was arrested for assault and taken to the police station.  The police took photographs of some bruises that were located on M.K.'s body.  In particular, they show some scratches to the complainant's chest area, a longer scratch on her torso just above the belly button, and a bruise on one of her thighs.  Cst. Parent said that she could not remember if M.K. was crying when she interviewed her but she recalls that she was definitely upset.

[42]        In cross‑examination, Cst. Parent said that she did not notice that anything was disturbed or out of place in the bedroom when she interviewed the complainant, nothing appeared to be disturbed.

[43]        M.K. gave two further statements to the RCMP at the request of the Crown.  The first was in August 2017 and the next in November 2017.  The Crown asked first that she speak to a Punjabi-speaking officer and then made another request that she speak to a female Punjabi-speaking officer.

[44]        M.K. was examined by a nurse practitioner in August of 2017 but did not permit any examination of herself in her vaginal or anal area.  She testified that she was just too traumatized and terrified by what happened to her at the hands of her husband and, therefore, as she put it in her testimony, she did not have much courage. 

[45]        Under cross‑examination, M.K. remained consistent in her essential description of what she said her husband and his parents did to her.  The significant information which emerged on cross‑examination included these points.

[46]        After she had first decided that she was not going to go to Canada to join her husband, then changing her mind, M.K. confirmed that she had developed some doubts whether her husband actually loved her.  He and his family, in her view, had shown themselves to be more interested in getting exorbitant amounts of dowry.

[47]        Second.  She agreed that her husband had taken her to other places than the ones she had mentioned in her examination in chief.  In particular, she had gone to a motor vehicle office to begin the process to apply to get a driver's licence.  He also took her to the Canadian government site where she could apply for a social insurance number which, in turn, would allow her to seek employment.

[48]        Third.  She obtained the password for the Wi-Fi in the family home.

[49]        Fourth.  She had a cousin who lived in Abbotsford and whom her mother had suggested she contact.  She noted, however, that this was not a cousin to whom she was close.

[50]        Fifth.  She exchanged text messages with her husband while he was at work for most of the time that she was in the house.  Copies of these messages between the couple were filed.  They appear to be innocuous and constitute brief affectionate exchanges between the parties.

[51]        Sixth.  She confirmed that physical struggles she had with her husband during the evening of July 10 and which culminated in a sexual assault of her were extensive and included significant violence towards her by her husband.

[52]        Seventh.  She confirmed that she, during the struggle that she had with her husband over her phone, bit him in his hand.  She explained that she essentially had to do this to get his hands off her throat.

[53]        Eighth.  She confirmed that she did not tell Cst. Parent about the sexual assault which took place in the bedroom, even though the officer interviewed in that very bedroom.  She confirmed as well that she did not point out to the officer anything in the bedroom which might afford evidence of the violence which had just occurred there.

[54]        Ninth.  Although she had referred to her clothes being ripped by her husband, she did not show Cst. Parent any clothing that she had which had been damaged in any way.  However, it may be that the translation from Punjabi in her testimony used the word “ripped” when it had a more general meaning such as “forcibly removed”.

[55]        Tenth.  She confirmed that she had told the nurse practitioner that she had a memory of her husband using a piece of clothing to strangle her.  She, in fact, did not give any such evidence in her testimony in chief and did not claim that this actually happened.  When asked in cross‑examination, she was unable to explain why she had such a memory.

Defence Evidence

[56]        P.S. testified in his own defence.  He is now 29 years old, is a permanent resident of Canada and works as a registered nurse. 

[57]        He agreed with the complainant's characterization of their first meetings in India and their almost instant attraction to each other.  He agreed, as well, that during most of the time that they were apart waiting for his wife to come to Canada, that they communicated very frequently by FaceTime or some other video communication program.  He said that he eagerly awaited the arrival of his wife from India.  He said that when he knew he was getting married to her, he told his parents that he wanted his new bride to come to a brand new house.  In fact, he and his parents did build a new house, although it is unlikely that her arrival in Canada was the only reason for doing this.  His point was, though, that he looked forward to having his wife join him and he looked forward to treating her as a very special woman.

[58]        He said that after his wife joined him and the family at their home in Surrey he took her to many places in the local area, presumably to familiarize herself with the neighbourhood.  He denied that he deliberately kept her isolated in the family home.  He also denied all of the allegations of physical and sexual abuse made against him by his wife.  In his view, he and his wife had a good and loving relationship.

[59]        However, there was one major irritant in their relationship.  He said this was his wife's persistent demands that he facilitate bringing her parents and her brother to Canada; that is, that he sponsor them as potential Canadian citizens.  He said that he had every intention of doing this but it is not a simple process and it takes time.  This did not appear to be good enough for M.K., he said, as she kept on pressing him to do something about this issue.

[60]        He denied that she was forced to perform all of the household chores such as cooking and cleaning and laundry.  He said that all members of the family shared in these activities.  She ate meals with the family and she was not forced to eat in isolation after the others had completed their meals. 

[61]        P.S. provided an entirely different account of the events of the evening of July 10.  He said that he got home sometime after 5:00 p.m.  The complainant was home, his parents were at work.  He and his wife engaged in some friendly conversation but then she brought up the subject of sponsorship of her relatives to come into Canada.  He said that this started a heated argument.  He said that he told his wife he would make the necessary effort to obtain sponsorship but that it takes time.  He said she continued to complain. 

[62]        Then she suggested that he take a few weeks off to do something with her.  He replied that he could not do so because he had just started a new job and, of course, he implied in that answer that she knew very well that he had just started a new job.

[63]        P.S. said that he then had to make a call to a plumber regarding the continuing completion of the construction on their new home.  He made that call which took about seven minutes.  During that time, his father called.  So after he finished the call with the plumber, he returned the call to his father.  They discussed the construction issue.  He was talking to his father, I believe he said, while he walked out in the backyard, talking to him on his cell phone.  He said that he told his father that he had an argument with his wife about the sponsorship issue.  His father said that he would speak to M.K.  While waiting for his father to call so he could talk to M.K., he said that his wife expressed her anger at him for going outside without bringing her.  His response to her was that he was just talking to the plumber.

[64]        She did not answer the call that came from his father, nor did she call the father on their landline.

[65]        P.S. told her that he had discussed their argument with his father.  This seems to have angered her significantly, such that she grabbed him by the wrist and he said, at that point, she bit him in the hand.  This made P.S. very upset and he said that he told his wife that he was going to call the police.  He also said that he wanted to take a picture of his injury and actually picked up his wife's cell phone.  He said that he actually tried to use it to take a picture but could not open the phone or unlock it because he was very tense.  He took out his personal phone from his pocket and was intending to use that to take a picture and still had his wife's phone in his other hand.  He went out their front door and took a photo of his injury with his phone.

[66]        At trial, the accused filed copies of photographs taken from the security cameras that are on the outside of their home.  One of the pictures shows him outside the front door taking a picture of his hand with a cell phone.

[67]        P.S. said that his wife, at this point, grabbed his shirt, presumably trying to get him to come back in.  He said that he told her that he did not want to talk to her but, not wanting the neighbours to see anything, he went back inside. 

[68]        He said that she was angry with him and, in fact, pushed him on his chest.  He told her not to touch him.  He then said that he put her cell phone onto the counter of the kitchen.  He said that he went out to the backyard, out the back door.  He said that she pursued him and that she grabbed his waist and he told her not to follow him.  She got him to come back inside by grabbing his shoulder.  He said he wanted to avoid any scene so he went back inside.

[69]        At this point, he said his father called on his cell phone and he told his father that his wife had bitten him.  He told his father what happened and his father asked to be able to talk to M.K.  He heard M.K. then tell his father that she did not bite P.S.  P.S. then said, presumably loud enough for his dad to hear, that he had pictures of the bite.

[70]        At this point, his father called the landline and he was put on the speakerphone so that he could talk to both of them at the same time.  P.S. said that his father calmed both him and his wife down.  He listened to what the two of them had to say about the argument and then began to counsel them.  He told them that they were both highly educated people, they were part of a household and they were arguing and what they were doing was not right.  This conversation went on for quite awhile, according to P.S., perhaps 35 to 40 minutes.  He apparently called back shortly afterwards and a further conversation ensued addressing the same issues, according to P.S.

[71]        After all this discussion and counselling with his father, P.S. said that he decided not to call the police.  P.S. said that he went outside while M.K. went upstairs.  While outside, P.S. talked to his neighbour, he also talked to his father on the cell phone again.  Just before 9:30, he said he went upstairs to call his wife to have dinner.  He said that she replied that he could just go ahead because she had already had a snack.  He went back downstairs and started preparing something to eat.  His mother came home about 10:20 p.m.  They were just about to eat, he said, when the police arrived.  He answered the door and told them that M.K. was upstairs.  The police spoke to M.K. and eventually she left with them and he was arrested.

[72]        Both P.S.'s parents testified.  They are both employed in responsible positions in the healthcare system.  They both denied that they mistreated the complainant in any way.  In particular, they denied that they ever struck her or used abusive language against her or forced her to do all of the housework and cleaning and cooking.  They denied that she was forbidden to go to the bedroom without permission.  P.S.'s father said that he came to Canada with his wife and children so that his children could have a better life.  He and his wife left very responsible and prestigious positions in India to come to Canada.  They both had first taken what appear to be minimum wage jobs while they took the appropriate courses to qualify for their professions in Canada.  Their son did the same.  Their daughter is in medical school outside of Canada.

[73]        P.S.’s father also denied that he or his wife made any demands for dowry.

[74]        P.S.'s father, (Mr. S.) said that he and his wife began a search for a suitable wife for their son.  Mr. S. said that he did not believe in the dowry system.  He said that neither he, nor his brothers in India when they got married, sought dowry.  He produced a printout of a notice that he placed on a website which, it seems, served as a kind of central notice board for arranging marriages with eligible, young, Sikh men.  In that notice, Mr. S. specifically stated that his family did not seek dowry.  Furthermore, the notice said that they were looking for a young woman who would take whatever education she had and use it in Canada to qualify for a responsible position there.  This, of course, is very similar to what he, his wife and son had done when they came to Canada:  That is, it seems that a young woman such as the complainant, who was very well-educated and had qualifications that could land her a job very easily in Canada and very probably in many other parts of the world, was an ideal candidate for a wife for their son.

[75]        P.S.'s father also testified about the events of July 10.  He confirmed his son's testimony that P.S.'s father spoke at length on the phone with P.S. and M.K. to counsel them about resolving their relatively petty quarrel and to look ahead to the future and a very happy marriage.  He denied being a part of any conversation in which any implicit or implied threat was made to kill her. 

[76]        He also said that the difficulty between the families that arose in the spring of 2017 related to members of the complainant's family in India removing furniture from P.S.'s father's home in India, including an air conditioner.  This initially led to some ill feelings between the families.  P.S.'s father arranged to have a mediator, a family friend, to get involved in the issue and it was resolved.

[77]        The defence also called a forensic pathologist as a witness to review the photographs of the marks and bruises depicted on photographs filed by the prosecution and which the Crown says illustrates some of the injuries resulting from the mistreatment by P.S.  The pathologist, Dr. Butt, could only give limited input because he had not personally examined the complainant and was only looking at pictures of dubious quality.

[78]        The injuries depicted were relatively superficial, in his view.  He said that the bruise on the complainant's thigh need not have resulted from particularly strong force.  This is because, he said, women bruise more easily than men because they have more subcutaneous fat.  He also said that if someone had been strangled or choked in the manner described by M.K., one would expect some markings on the throat to reflect that.  More intense or forceful choking could result in even more serious injuries such as petechiae in the eyes.  As well, he confirmed that one would expect some fairly significant markings or bruising on the body of someone who alleged that she had been slapped, punched and had hot tea poured on her frequently.

[79]        All of this testimony, however, that is, Dr. Butt's testimony, must be qualified by the fact that he did not personally examine the complainant and had no knowledge of the nature of the acts which she alleged caused her harm.

Analysis

[80]        As I said when I began this judgment, the issue to be decided is, has the Crown satisfied the burden of proof by establishing the guilt of P.S. beyond a reasonable doubt?  That question must be decided upon an examination or assessment of all the relevant evidence.

[81]        M.K. came across as an intelligent and careful witness.  She was rarely argumentative and answered questions directly and seemed to try to answer the questions completely.  The version of events that she gave was neither fanciful nor inconsistent with reality.  She did not resile from her accusations on cross‑examination.  It appeared to me that she was in some significant distress when she related some of the worst incidents of the alleged abuse, which is something that one would expect from a young woman who had gone through such an experience.

[82]        Coming to Canada, she was in a somewhat vulnerable position.  She was far removed from her own family and friends in India and was not yet involved in any independent activity such as a new job.  Although she had had some contact with her new in-laws and her new husband, she had little experience living with them.  She was in a new country, in a new culture.

[83]        Her narrative of the course of events which led to her calling out for help is consistent.  After all, it was only 33 days after she arrived in Canada that she had contact with the police.  However, her isolation was not as profound as it could be with other persons newly immigrating to Canada.  That is, she probably knew more about computer technology and the functioning of the various methods of communication in this digital world than any other member of the family.  She knew the password for the Wi-Fi system.  She had a cousin who lived in Abbotsford, so there was at least some possibility of connecting with a relative in Canada.

[84]        The potential strength of the prosecution case was affected by the apparent need to conduct three different interviews of the complainant.  It appears that in each interview she discussed more of the complete narrative of what happened to or what she said happened to her.  It is understandable that someone in her vulnerable position would not necessarily want to describe the intimate and disturbing details of her treatment that she said was subjected to.  Although she spoke English well enough, it is quite likely that she would be much more comfortable speaking to a female police officer who spoke Punjabi.  That appears to be what happened in the very last interview.  However, the delay in the full disclosure deprived the prosecution of the ability to obtain any possible forensic evidence.  That would be evidence located, for example, in the bedroom where she says the sexual assault of July 10th took place.  The Crown was unable to provide a report from the nurse practitioner about an examination of her vaginal or anal area because the complainant decided not to allow the nurse practitioner to conduct such an examination.  I repeat, however, taking into account the complainant's vulnerable position as a new arrival in Canada, suddenly removed from what she initially believed would be a loving and nurturing environment, her decision is understandable.

[85]        I emphasize as well that there is no requirement that there be any corroboration of the testimony of the complainant, nor is it relevant in assessing her credibility that she did not disclose the details of any sexual assaults promptly upon first meeting with the police.

[86]        This, of course, does not end my inquiry.  My focus must remain on whether or not the case has been proven to the standard of beyond a reasonable doubt.  I must assess the complainant's testimony in the light of all the other evidence introduced at trial.  In particular, I must assess P.S.s testimony in the context of what his wife claims occurred and in conjunction with the evidence that he and his parents provided.  What I must not do is engage in the reasoning process recommended by the prosecution, which is to determine that the complainant's testimony is so inherently powerful and credible that it, therefore, must be true.  The Crown says that someone who so obviously loved her new spouse and his parents and came to Canada with such optimism and hope could only have changed her attitude towards them if she had been treated in the manner she said she was.  Therefore, this argument goes, the testimony of the accused and his mother and father must be false.  That is not a course of reasoning I am permitted to take or should take.

[87]        P.S. was also an intelligent and articulate witness.  He was not shaken in any of his denials of the criminal acts which he was accused of committing.  His version of events is coherent and consistent with the circumstances.  His version of what happened on July 10th is not inherently unbelievable, to say the least. 

[88]        He claims that he and his wife had a quarrel but nothing more.  He also says that they both lost their temper.  He says that the source of the quarrel was his failure to promptly achieve sponsorship for his wife's parents and brother to come to Canada.

[89]        His account of the interaction between him and his father and the complainant over the speakerphone is also a coherent and plausible account and that is consistent with the circumstances of two young newlyweds having a fight. 

[90]        This version of events is supported by the testimony of his father.  He said that he was counselling this young couple, essentially to get some perspective ‑‑ eventually for them to get some perspective on their lives and show some discipline that he would expect in two young, well-educated people with excellent futures. 

[91]        It is important to emphasize that it is not my function to compare the version of events given by the complainant to that given by the accused and decide which is more believable.  Rather, I must assess the objective evidence which has a bearing on the believability or credibility of the two witnesses. 

[92]        Those aspects of the evidence which tend to cast some doubt on the complainant's testimony are as follows.

[93]        First.  Although the complainant insisted that a very protracted and violent struggle took place in the couple's bedroom on July 10, including her being sexually assaulted, when the investigating officer spoke to her in that room, the officer noted nothing even remotely suggesting that there had been some disturbance there.  That is, there were no ruffled sheets or bedding, there was nothing knocked on the floor.

[94]        Second.  M.K. did not point out to the officer while in that bedroom anything which might help establish that violent acts had been committed against her in that room.  However, it is important to note that the victim of a sexual assault is not expected or required, in law, to make an immediate disclosure of such an act, that is, sexual assault.  There are many reasons why that does not happen.  However, in this case, she was clearly asked by the officer to tell her what happened that day.  She chose not to tell her about the alleged sexual assault.  Had she done so, it is quite likely that the investigating officer would have attempted right then to get some forensic evidence both from the complainant's person and from examination of the room where the event allegedly happened.  Thus, the prosecution has been deprived of a possible piece of valuable evidence, or it may be said that the court has been deprived of any information about whether such evidence existed or not.

[95]        Third.  M.K.'s account of physical mistreatment by her husband and his parents, including being kicked and punched by P.S. and his parents over about 30 days, is not borne out by any photographs which show significant evidence of that sort of activity.  While, of course, there are reasons why a person might not always be bruised or scratched after some violent activity, it appears unlikely that the extensive physical abuse that M.K. said she had to endure would not result in more noticeable injuries.  In particular, she does allege that her husband, at some point on July 10, choked or strangled her.  While it is not necessarily the case that there must always be some physical signs of such an act, one would think that there would at least be some hint of such a violent act in the sense that there would be some sort of markings on her throat.

[96]        Fourth.  The pictures and videos of the complainant trying to get her phone back from her husband showed her as being relatively aggressive towards him.  This tends to contradict her assertion that, during the time that she was living in that home, she was essentially browbeaten and controlled by her new family and her husband and unable to take any significant action on her own.

[97]        Fifth.  The videos also show that during the evening of July 10, when the complainant and P.S. were alone in the house, P.S. went outside for a significant period of time speaking on his cell phone.  That would leave P.S. in the house by herself when she says her husband and father-in-law threatened to kill her.  Him leaving the house for such an extended period of time is really inconsistent with an attitude that the complainant says was the attitude of someone who wanted to terrify her.

[98]        Sixth.  Apart from the specific events of July 10, it must also be borne in mind that when the complainant decided to come to Canada, she did so even though she had some significant doubts about whether her husband actually loved her.  Did she have another motive to come to Canada rather than living in a happy, married family?  I cannot answer that question and I am not required to, but it is a concern.

[99]        Seventh.  The complainant insisted that she was isolated and essentially compelled to remain in the house, barely able to communicate with anyone.  As I said, it is significant, however, that she was alone in that house for up to three hours every day.  She had access to Wi-Fi because she knew the password and as I remarked above, she was probably the most knowledgeable person in the house about the use of computers and the ability to communicate through electronic means with other persons.

[100]     Nine.  The evidence of P.S.'s father that his family did not seek dowry directly contradicts M.K.'s testimony that her new in-laws were relentless seekers of exorbitant dowry.  He was able to corroborate that testimony by producing the printout which clearly advertises the family's position that they did not seek dowry. 

[101]     P.S.'s father also contradicts M.K.'s testimony about what was said during her conversation with him and her husband on July 10.  He insists that the conversation with him, the father, was counselling his son and daughter about how to reconcile what appeared to be a petty quarrel and to look forward to a long and happy marriage. 

[102]     Ten.  P.S.'s father's assertion that the family did not seek dowry, instead wanted a wife for his son who would gain meaningful employment in Canada is supported by his family's own practice.  That is, he and his wife and son all came to Canada, updated or refined their qualifications and obtained good, responsible jobs.  Their daughter is in medical school. It seems somewhat unlikely that a family made up of these hard-working, ambitious, well-educated people, would take the time to make sure that P.S. married a well-educated, young woman with a promising future and a very promising career and turn her into a virtual servant.  One also has to ask if it is realistic to believe that they could do such a thing to an intelligent, well-educated person who was unlikely to put up with such mistreatment.

Conclusion

[103]     The factors that I have just referred to have significance in their cumulative value, that is, each of the concerns that I have related regarding the complainant's evidence could be explained bit by bit, or piece by piece, as having alternative explanations.  However, it is not my task to seek alternative explanations.  Rather, I must look as objectively as possible at the evidence and the inferences that I believe should be drawn from that evidence.

[104]     Once again, I emphasize that it is not my task to determine whether the complainant is more believable than the accused, or whether the accused is more believable than the complainant.  My task in assessing the evidence is to determine whether, upon assessing the evidence, I am able to find that P.S.’s testimony is not credible.  That is, am I able to conclude that I reject his evidence? 

[105]     For the reasons I have referred to in assessing the evidence, I find that I am unable to reject the evidence of P.S. that he did not commit the crimes his wife accuses him of committing.  Neither am I able to reject the evidence of his mother or father.  That is, therefore, the end of my inquiry in this case.

[106]     The evidence presented on behalf of the accused, assessed in the light of all of the evidence produced at the trial, leaves me with a reasonable doubt.

[107]     I, therefore, find the accused not guilty on all counts.  All counts are dismissed.

[108]     I wish to extend my gratitude to both Crown counsel and defence counsel for their very able and responsible conduct in this very difficult trial.

(REASONS FOR JUDGMENT CONCLUDED)