Impact of misapprehension of complainant's evidence sufficient to require new trial, court says
The Court of Appeal for Ontario has ordered a new trial for a man convicted of sexually and physically assaulting his wife due to the trial judge’s misapprehension of evidence.
In R. v. S.G., 2022 ONCA 727, the appellant and the complainant met on an online marriage website. In February 2016, the appellant and his family travelled to India, where he and the complainant married. The complainant came to Canada to live with the appellant in February 2017. However, their relationship went downhill after the complainant arrived. The complainant eventually moved out of the appellant’s parents’ condominium in September 2017.
After moving out, the complainant went to the police and made her first statement, which was video recorded on September 28, 2017. She alleged that the appellant choked her during an argument between August 14 and 17, 2017. The complainant returned to India in December 2017.
In March 2018, the complainant initiated family court proceedings against the appellant in India. As part of the proceedings, she provided an affidavit which contained several allegations against the appellant. The trial on one count of assault involving the August 2017 choking allegation was scheduled to proceed in August 2018, but the trial did not happen. The complainant then approached the officer-in-charge about additional allegations, and the police arranged for her to provide a second statement.
The complainant provided a second videotaped statement on September 3, 2018. She alleged that the appellant sexually assaulted her on March 20, 2017, and pushed her during an argument on July 5, 2017. The appellant was then charged with one count of sexual assault and a second count of assault.
The Ontario Court of Justice found the appellant guilty of one count of sexual assault and two counts of assault. The appellant appealed his convictions with the Court of Appeal. He raised several alleged material misapprehensions of evidence by the trial judge relating both to the appellant’s and the complainant’s evidence.
The Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial. It found that the trial judge misapprehended the complainant’s evidence, and the impact of the misapprehension was sufficient to require a new trial.
The court noted that one of the areas of misapprehension of evidence raised by the appellant relates to statements made by the complainant in the Indian proceedings affidavit. In particular, the appellant alleged that the Indian proceedings affidavit on which the complainant was cross-examined contains two inconsistencies with her trial evidence which are “significant and relate to material aspects of the case.”
The first inconsistency relates to whether the appellant displayed any assaultive behaviour in India before the complainant came to Canada in February 2017. In examination-in-chief, the complainant testified that before she came to Canada, “everything was fine,” and she had no problems with the appellant in India except for small arguments.
The second inconsistency in the Indian proceedings affidavit is that it contains an allegation that the appellant “mercilessly beat and thrashed” the complainant in May 2017. However, the complainant did not disclose the May 2017 assault allegation in her statements to the police or her evidence in the examination-in-chief at trial.
The court found that the two inconsistencies identified by the appellant were “material inconsistencies” between the complainant’s prior statements and her trial evidence.
“The complainant testified in examination-in-chief that apart from minor arguments, everything was fine with the appellant before she came to Canada,” Justice Jill Miriam Copeland wrote. “The statement in Indian proceedings affidavit – that the appellant beat her several times in September 2016 in India – contradicts her trial evidence.”
The court also found that in the examination-in-chief, the complainant made no mention of a beating by the appellant in Canada in May 2017, nor had she previously disclosed such an incident in her two police statements. Yet the Indian proceedings affidavit makes such an allegation.
“Thus, the trial judge’s statement that there were ‘no material inconsistences’ between the complainant’s trial evidence and the prior statements rests on a misapprehension of evidence,” Justice Copeland wrote.
Had the trial judge appreciated the existence of material inconsistencies between the complainant’s statements in the Indian proceedings affidavit and her trial evidence, it would have been open to her to consider these explanations and assess whether she found them credible, the court concluded.
