Ontario Court of Justice

Date: December 28, 2020

Court File No.: Brampton 19-9982

Between:

HER MAJESTY THE QUEEN

— AND —

KULWANT KHINDA

Before: Justice Hafeez S. Amarshi

Written reasons for judgment released on: December 28, 2020

Counsel:

• S. Nakib, counsel for the Crown
• L. Sandhu, counsel for Kulwant Khinda

H.S. Amarshi J.:

A. Introduction

(i) Overview

1Kulwant Khinda is charged with five offences involving members of his family. That he assaulted his wife, causing her bodily harm between January 26, 2017 and February 6, 2017. That he unlawfully confined his wife during that same time period. Further, between November 1, 2018 and December 31, 2018 that he threatened to cause death to his spouse – Sukhjeet Khinda and their two children – Ishanveer and Jasham Khinda.

2On consent Ms. Khinda's medical records were made an exhibit. They cover a period between January 2017 and July 2017. Specifically the records show an emergency department admission on February 7, 2017 at 2 a.m. [1] where a nurse [2] obtained information from the complainant and recorded a number of observations including that Ms. Khinda's right eye was bruised, swollen and bloodshot. [3] The intake nurse observed dried blood [4] and that the complainant's eyebrow area was bloody. That Ms. Khinda was unable to move her left shoulder and was in pain. [5]

3There is an additional notation on the report: "fell down stairs @ home." [6] This information obviously came from the complainant and was recorded by the intake nurse.

4Also contained in the medical records package is a "Consultation Report," dated May 4, 2017. In that report prepared by Dr. Manoj Bhargava, the physician concluded that the complainant had suffered a distal clavicle fracture [7] - which is commonly known as a broken collarbone.

5The defence does not take issue with the nature or description of the injuries, but disputes the defendant was the source of those injuries. Kulwant Khinda testified that the complainant fell down the stairs and in the moments after her fall he helped her. There was a delay in going to the hospital in excess of five hours, which the defendant said was due to his wife's reluctance to seek medical assistance.

6Sukhjeet Khinda admitted that she told medical staff at Etobicoke General Hospital that she fell down a flight of stairs, but that was untrue. Instead she testified that the defendant assaulted her and forcibly confined her in their home after an argument over finances. She says she was pressured by Mr. Khinda and his parents to lie about the source of her injuries. In addition, she says she was threatened by her husband and further death threats were directed at their children by the defendant.

(ii) Conclusions that cannot be drawn from the medical records

7No expert medical evidence was called in this case and I am unable to conclude that the injuries sustained by the complainant are either consistent with a fall or the result of a serious assault. In other words, the medical records do not exclude either possibility as the source of Ms. Khinda's injuries. Neither can I draw any common-sense inferences about the injuries from the evidence tendered at trial.

(iii) Agreement on the date of the alleged assault

8Both Crown and defence agree that the incident in question occurred on Monday February 6, 2017. None of the witnesses that testified, if asked, were able to accurately identify this date. [8] This conclusion is well supported by the medical records from Etobicoke General Hospital, specifically there is a report entitled "Triage Record" that documents Ms. Khinda's initial medical assessment in the emergency department as occurring on February 6 at 11:48 p.m.

B. Relevant Facts

(i) Sukhjeet Khinda's evidence

9The complainant is 37 years old. She came to Canada in June 1996 and lived with her aunt and uncle - Paramjit and Arjun Josson. She refers to the couple as mom and dad.

10She married the defendant in 2006. The couple has two children. According to Ms. Khinda there were ongoing difficulties in the marriage largely involving finances. The couple would fight often. The fights would sometimes relate to her husband's difficulties in paying rent.

11She described their relationship as having ups and downs, but never really good. That the defendant was verbally abusive and at times controlling.

12Ms. Khinda testified about an incident that occurred on May 9, 2019, where she overheard a phone conversation the defendant was having with his parents. In that conversation her husband said he was going to hire someone to kill the complainant. Further that when Ms. Khinda was dead their children would live with his parents and he would go to jail.

13The complainant was scared and says she couldn't stop shaking. The defendant's father called her that evening and told her to leave the home immediately. She called the police who attended at the home. No charges were laid by police that evening and Mr. Khinda voluntarily agreed to leave the home for the night.

14The next day on May 10, 2019, the complainant attended a police station and gave a videotaped statement where she described threats that she says occurred in November and December 2018 and a serious assault in 2017. Of note the defendant was not charged with threatening his wife on May 9, the day police were called.

15At trial Ms. Khinda testified about an incident that occurred she says on January 30, 2017. That morning she described dropping the couple's children off at school and returning to her home at 16 Cove Hollow Court in Brampton. She was on her bed resting. Earlier that morning she had checked her bank account and noticed $1000 had been withdrawn from the couple's joint line of credit. It was a "huge amount" and she was worried about where the money was going.

16Mr. Khinda came home that morning around 10 or 11 a.m. He had left work complaining that his head was hurting. According to the complainant, the defendant wanted to be physical, but she rebuffed his advances. She asked him if he had paid that month's rent and confronted him about the money that had been withdrawn from their line of credit. He denied withdrawing the funds. She testified that she did not believe her husband and accused him of lying. She challenged him to provide proof that he paid the rent on the couple's basement unit. Ms. Khinda says that the defendant responded by saying, "let me show you the proof" and attacked her.

17She described being hit and punched, that she was screaming and crying. The assault started in an area near the family room and continued into a bedroom, where the complainant says she was thrown onto a bed. She tried to stand up, but the defendant continued to hit her.

18The assault in the bedroom stopped when Mr. Khinda went to the kitchen. The complainant wanted to leave the house, but the defendant refused to give her car keys. She followed the defendant into the kitchen seeking her keys. Mr. Khinda struck her again.

19When asked if she could just leave the house despite not having her car keys, Ms. Khinda testified that she was bleeding badly and didn't want to be walking around in that condition. She testified however at one point she did attempt to leave the house and tried to open a door, but the defendant locked the door and wouldn't let her out.

20The complainant described being further attacked in the family room when again she asked the defendant for her car keys, but instead her husband started hitting her. She was bleeding. She moved towards the stairs in the home and the defendant followed, punching or slapping her. She fell on her arm. Ms. Khinda says she could not move her arm.

21She testified that the defendant finally gave her car keys and she left the home.

22According to medical reports from Etobicoke General Hospital, Ms. Khinda had a clavicle fracture to her left shoulder and bruising and redness to her right eye area, which required stitches.

23When asked when she received the injury to her shoulder, which she described as a broken collarbone, she was unsure, but believed it may have been the point when she followed the defendant into the kitchen because she could no longer move her arm. She described the defendant as using both open and closed hands to assault her and in her words he "half killed me."

24She testified that initially she was also fighting with the defendant but that she couldn't stop him from attacking her, describing him as a "big man." She estimated that the assault took place over a half hour to 40-minute period.

25When she left the house, she did not seek medical help, instead driving to a nearby plaza, saying she couldn't think right. She recalled using her right hand to drive because of the injury to her left shoulder. She described being in a lot of pain, especially to her face and forehead area and concluding that she needed to go to the hospital.

26She says she decided to return to the house because she was thinking about her children. She then called her brother – Jaswant Josson for help.

27Mr. Josson arrived at the home and took a number of photos of Ms. Khinda's injuries. They were tendered as exhibits. They show significant bruising to the complainant's right eye and forehead. Her eye is swollen. She is holding her left shoulder with her right arm. There looks to be dried blood on her face.

28A photograph was also taken a few days after her hospital visit and after she received stitches to her eyebrow area. It shows significant bruising under the complainant's right eye.

29Ms. Khinda testified that the defendant's parents arrived at the home and they encouraged her not to report anything, saying it was for the sake of the family and for the kids. Further, they did not want her to go to the hospital, "because they would figure something out " - which I understood to mean the hospital staff would become aware of the assault. She says she was told by the defendant's parents to say she fell down the stairs.

30The incident was never reported to police and at the hospital Ms. Khinda told the emergency medical staff that she had fallen down the stairs. The medical records from Etobicoke General Hospital contain multiple references to a fall as being the source of her injuries.

31According to the complainant it took about a year for her to recover from the assault and she continues to have neck and shoulder pain.

32In cross-examination, she agreed there were pillars in the basement, although she could not recall if there was a pillar nears the staircase.

33She also agreed that even after attending at the hospital, she told people, which included medical professionals, that she had fallen down the stairs that day. [9]

34The couple and their children moved out of the basement unit they were renting to a new home in the spring of 2018. The house was purchased.

35In relation to this new property, Mr. Sandhu put a document to Ms. Khinda entitled "Agreement - Acknowledgement & Understanding Re: Purchase of Property: 20 Lightcatcher Circle, Brampton, Ontario."

36The agreement, which on the face of it is signed by both Sukhjeet Khinda and Kulwant Khinda, states that the defendant did not financially contribute to the purchase of the house. Further that he is not responsible for the carrying costs of the home and therefore relinquishes any claim in the property.

37The document is dated April 7, 2018. There is a witness signature on the document, which is later determined at trial to belong to Jaswant Josson.

38Ms. Khinda explained that the house on Lightcatcher Circle is 99 percent owned by her and one percent by her brother's wife.

(ii) Jaswant Josson

39Mr. Josson is the complainant's brother. He is 39 years old and works in the mortgage industry.

40He testified that his sister called him to come to her home at 16 Cove Hollow Court. He does not recall the exact date but believes it was in 2018.

41When he arrived between 5 and 5:30 p.m. the defendant was in the living room. He went to a bedroom and observed his sister to be laying on a bed. Her face was covered with blood. He was shocked.

42He described his sister as being in real pain. He took photographs of her injuries while they were still at the house. He also took a photograph of her a few days after the alleged assault.

43He called his adoptive mother and father to attend at the house. They arrived after the defendant's parents came to the home.

44Jaswant Josson testified that a discussion took place in the living room over a 25-minute period in which the defendant's parents asked everyone present not to report the incident to police.

45Mr. Josson says he then took the complainant to the hospital, which he believed was about an hour after he arrived at the home, which was between 5 and 5:30 p.m.

46In cross-examination he agreed there were two or three pillars in the basement close to the landing area of the staircase.

47He agreed that he was aware that his sister had told hospital staff that she had fallen down a staircase.

48He further testified that he was a witness to the property rights agreement for the 20 Lightcatcher Circle home and his signature was on the document. He explained that as part of this agreement, which was filed with a registry office, his wife had a one percent interest in the home. However, there was a second agreement where his wife would receive a 50 percent share if the house was sold.

49He testified that he had given his sister an $80,000 gift to purchase the home, because he did not want her living in a basement unit. That the defendant did not contribute to the purchase of the house. The remaining money to buy the home he said came from the complainant.

50The witness denied Mr. Sandhu's suggestion that he had made a plan with his sister to provide false evidence in this case.

Defence evidence

(i) Paramjit Josson

51Ms. Josson was called by the defence. As I will highlight later in this decision, she largely corroborated the complainant's version of events. She testified that Sukhjeet Khinda is her adopted daughter. She recalled receiving a call from Jaswant Josson and as a result she and her husband went to the Cove Hollow Court house. When the couple arrived, Mr. Josson was outside waiting for them and all three proceeded into the house.

52She says she went to a bedroom, where she observed the complainant on a bed. She had bruises, as well as blood on her face and neck area. She spent a few minutes consoling the complainant who told her the defendant had hit her.

53According to Ms. Josson she sat down with the defendant's parents, who asked that police not be called and "Let's work this out for the sake of their marriage, for the sake the children," that the families should try and "Sort this out." The complainant was present during this discussion.

54Although she didn't really agree with this suggestion, in the end she says that was the outcome of the discussion that night and that she went along with it.

55She testified that Jaswant Josson took the complainant to the hospital. She says the defendant did not go to the hospital with her daughter.

56When asked to describe the scene at the staircase she testified that she did not see any blood against the walls or on the stairs. [10]

(ii) Kulwant Khinda

57Mr. Khinda met the complainant in 2006 and they were married a short time later. They have two children. He described his marriage to the complainant as, "Up and down," although at the time of the alleged assault he described the relationship as good and that they were not fighting about money.

58He is employed and works in the shipping department for a furniture company.

59The defendant testified that on the date of the alleged assault he was resting at home. He had come home between 11 a.m. and noon. He says his children were at home, although he acknowledged in cross-examination it was a school day but explained that his wife did not send them to school that day.

60He says at one point he heard a big sound, this despite the fact that his bedroom door was closed. He went to investigate and saw his wife laying on the floor. Further that she was attempting to get up from a sitting position on the last step of a staircase. He concluded she had fallen down the stairs.

61Mr. Khinda says he picked her up and put her on a bed. He told her she had an eye injury, adding, "Well, you're blind. You are unable to see." He observed bleeding and a cut. When he laid his wife on the bed he described seeing, "Too much blood." He recalled telling the complainant they should go to the hospital – that she responded no – he replied that it was a serious injury and that they should go – she again declined he says.

62In cross examination when asked why he didn't call an ambulance, he explained that he didn't think the "Injury is so big," and he would talk to her first before taking her to the hospital, which he noted was not far from their home.

63The defendant says he called his brother-in-law, who came to the home. He told Jaswant Josson that the injury was a serious one and they should go to the hospital. He stated that Mr. Josson was also unable to convince his wife to go the hospital.

64According to the defendant, Mr. Josson left the residence and returned about an hour later with his parents - Arjun Josson and Paramjit Josson.

65Mr. Khinda said he called his parents to come to the house as well – Avtar Singh and Balwinder Kaur.

66When his parents arrived, they along with the complainant's parents went to speak with his wife in her room.

67Eventually according to the defendant, his wife agreed to seek medical attention and he along with his brother-in-law took the complainant to the hospital. He stated that when they left it was starting to get dark.

68Mr. Khinda denied assaulting his spouse or causing her injuries. He denied that they had been arguing that day but agreed there had been an argument over money for rent, but that fight had occurred some days earlier. He further agreed that he had withdrawn $1000 from a line of credit for rent but had told the complainant he would replace those funds. He agreed his financial condition was not that great.

69He disagreed with the Crown's suggestion that he convinced his wife not to reveal the true source of her injuries. He denied blocking her path and preventing her from leaving the home or keeping the car keys from her so she could not leave the unit.

70Mr. Khinda further denied threating to kill his wife or his children in November and December of 2018.

71When asked to recount what occurred on May 9, 2019, when police were called to his home, the defendant testified that he came home at 5:30 p.m. and took a bath. That he played with his children and went to his room to rest for about two hours.

72At 8:30 p.m. he went to prepare dinner and at some point, the doorbell rang, and police were at his residence.

73He testified that earlier that evening his brother-in-law called on his phone. That Mr. Josson pressed him to speak to his sister about something important and for him to pass his phone to Ms. Khinda. He called his son Ishanveer to give his cell phone to the complainant. He says Ishanveer returned with the phone five or six minutes later.

(iii) Balwinder Kaur

74Ms. Kaur is the defendant's mother. She testified that she went to the Cove Hollow Court home during the last week of January or first week of February 2017, after she received a call from her son telling her the complainant had fallen down the stairs.

75She arrived in the evening and went to a bedroom to see her daughter-in-law. She stated that by the time she arrived – Ms. Khinda's parents were already there along with Jaswant Josson.

76She testified that the complainant told her she had fallen down the stairs and sustained an injury to her head and eyes.

77Ms. Kaur says there was no discussion about calling police that evening and she denied telling Ms. Khinda not to call police.

78The witness recounted that she too had an injury from falling down the stairs and as a result her shoulder was fractured.

79She provided a doctor's letter that confirmed she had attended a walk-in clinic on July 16, 2017 for a fall and an x-ray was ordered.

80Ms. Kaur agreed in cross-examination that when she was injured a family meeting was not convened like it had been in the case of her daughter-in-law. She agreed she would do whatever she could to protect her children – but said she would not lie and that she loves her daughter-in-law and grandchildren - in fact she loves them more than her son. Further she would beat her son if he assaulted Sukhjeet.

C. Applicable Principles

81Credibility and reliability are the central issues in this case. The framework in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, applies in this case and requires me to find Kulwant Khinda not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with his guilt. In other words, I need not believe the defendant to find him not guilty. Further even if this court rejects such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty.

82As the Ontario Court of Appeal stated in R. v. J.R.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749, a conviction may, however, in appropriate cases be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt. [11]

83In a criminal case, this court cannot find an accused person guilty because it prefers the complainant's evidence to that of the defendant. In other words, criminal trials are not credibility contests and it would be an error to arrive at a conclusion on culpability based on which witnesses' evidence I preferred. There is no burden on Mr. Khinda to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of the offence or offences as charged.

84The onus is on the Crown to prove beyond a reasonable doubt that the defendant committed the criminal offences before this court. To secure a conviction the Crown must establish each essential element of the charge against an accused to a point of "proof beyond a reasonable doubt," this standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probability. It is not a standard of absolute or scientific certainty, but it a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charges. [12]

D. Analysis

Credibility Findings

(i) Kulwant Khinda

85I did not find Kulwant Khinda to be a credible witness and his evidence was not believable. Specifically, his evidence was at times internally contradictory and implausible.

86Of note there was a significant inconsistency in his evidence. He initially described the injuries suffered by the complainant as serious. He testified that he heard a "big sound," and went to investigate, and he observed his wife to be struggling to get up. She was at the bottom of the stairs. He heard the fall he says, despite the closed door to his bedroom. He described having to pick her up and laying her on a bed. He further described seeing "too much blood."

87Not only would the defendant's own observations at trial suggest a significant injury, he further described his wife's injuries as "serious," in his testimony – once when recounting his conversation with the complainant when he tells her that they should go the hospital because her injuries seem to be serious. On a second occasion in his evidence when recounting his conversation with Jaswant Josson – when he calls Mr. Josson to tell him that his sister has a serious injury and they should go the hospital.

88However, in cross-examination when confronted as to why he didn't call an ambulance that day for his wife in light of his description of her medical condition, he stated that he didn't think the "injury is so big" and he wanted to talk to her first. He noted the hospital was not far.

89The fact he was inconsistent on this point, which I considered significant, impacted the defendant's credibility, but it also led me to conclude that he tailored his evidence to try and explain away inconvenient facts, particularly to justify his delay in taking the complainant to the hospital. It is odd, in one instance he described to this court significant injuries, says he was sufficiently concerned to call his brother-in-law for help, yet he also sought to downplay his wife's injuries.

90On another occasion I concluded he attempted to recast the evidence in favourable terms. When the Crown put to the defendant that they had an argument over money on the day of the incident, he reframed it as a "conversation" and that they didn't fight.

91This is implausible given the history of disputes the couple had over finances, starting soon after they were married. It was a serious issue of contention in the marriage. [13] Indeed, he conceded they did argue about him withdrawing $1000 from their joint line of credit just days before. I accepted Ms. Khinda's evidence on this point when she testified that it was only that morning that she became aware of funds being withdrawn from their joint account. She was frank in describing how she confronted him that day and accused him of lying. The amount was a significant sum for the family.

92I concluded he was trying to minimize the level of animosity between them, and it is simply not believable that the couple merely had a "conversation," despite the defendant being challenged by Ms. Khinda to show proof that he paid rent that month for their basement unit and accusing him of lying. Further, I concluded that the defendant was trying to craft a narrative of events of that day to make it seem less likely that he would have had a reason to commit the assault in the manner that the complainant described.

93In addition, it is notable that there were instances when his evidence was contradicted by the other witnesses on material facts the defendant would not be apt to forget. For example, he testified that eventually when the complainant was taken to the hospital, he accompanied her. Paramjit Josson, testified this was not the case, and the complainant went with her brother. Similarly, Jaswant Josson testified that he is the one that took the complainant to the emergency department. Ms. Khinda testified that she attended the Etobicoke General Hospital with her brother and sister-in-law.

94In reconciling this conflicting evidence, I readily conclude that Mr. Khinda did not go to the hospital with his wife as he stated in his testimony. The other witnesses in the home contradict this assertion. In particular, I found Paramjit Josson, whose evidence I will discuss later in this decision, to be a highly credible witness, and I attached considerable weight to her recollection of events that evening.

95This finding that the defendant was misleading on a point of evidence he was unlikely to misremember reinforced my conclusion that there were aspects of Mr. Khinda's evidence that were self-serving – that is, he attempted to portray himself in a better light by suggesting that he had taken his wife to receive medical attention when that clearly was not the case.

96There were other areas of his evidence that were concerning. The defendant was contradicted for example on the steps he took after his wife sustained her injuries. Mr. Khinda testified that he was so concerned about the complainant's injuries and her refusal to go to the hospital that he called Mr. Josson for help. Jaswant Josson testified that this was not the case and that it was his sister that called him to alert him to her injuries. Ms. Khinda similarly testified that she called her brother to come to the home. Again, the defendant testified to an action in aid of his wife that he did not undertake.

97Of note, a significant portion of the defendant's evidence consisted of denials of the allegations before this court. He testified in a calm and measured fashion. He did not resile from his position that he did not assault his spouse and that he was not the source of her injuries.

Delayed medical assistance

98This is a factor in this case. Mr. Khinda's actions in the period after he says his wife had an accident in the home are hard to understand. The injuries occurred around noon [14] but the complainant was not taken to the hospital according to the defendant until it started getting dark. Given the time of year – early February, that would have been around 5:30 p.m. Jaswant Josson puts the timeline for the hospital visit even later between 6 p.m. and 6:30 p.m. [15]

99Therefore, there was a delay in taking the complainant to the hospital of at least five hours. [16] I find it implausible given the seriousness of his wife's injuries that the defendant would delay seeking medical assistance for such a long period of time, unless it was in his own interest to do so. Common sense would suggest that even had the complainant resisted going to the hospital as the defendant claims, that he would have been sufficiently concerned to call an ambulance. Ms. Khinda had a broken clavicle and serious bruising to her face. I appreciate that the defendant would not have known his spouse had a broken collarbone, but he would have certainly appreciated that his wife was in significant pain. [17] Even if I were to accept that he was unsure about her level of pain or distress, the photographic evidence is stark – it shows serious bruising and swelling to her face. Dried blood on Ms. Khinda's face is still observed hours later by an intake nurse. It is particularly odd in those circumstances that instead of insisting on medical assistance or calling for help, Mr. Khinda instead calls his parents to come to the home.

100The defendant's version of events is simply not believable when set against this context – that the reason there was delay in seeking help according to Mr. Khinda was because the complainant refused to go the hospital. Indeed, the totality of the evidence readily supports the opposite conclusion - that the defendant did not want his spouse to report the true source of her injuries. This conclusion is further buttressed by the active role Mr. Khinda's parents played in dissuading the complainant from going to police - evidence of which is corroborated by the other witnesses in this trial.

101In the end I reject much of Mr. Khinda's evidence, particularly on material facts. His evidence was internally contradictory, and at times implausible.

102Although I have concluded that the defendant is not a credible witness and his version of events is not worthy of belief, I must go on to consider whether the totality of the Crown's evidence is sufficient to prove the elements of each offence beyond a reasonable doubt. In other words, the rejection of Mr. Khinda's evidence does not lead inexorably to a finding of guilt.

103I will turn to my analysis of the complainant's evidence and that of the other witnesses in this trial.

(ii) Sukhjeet Khinda

104I found Ms. Khinda to be a credible witness. I believed her evidence, specifically that she was assaulted by the defendant and that he confined her in their home.

105She gave detailed responses that enhanced the reliability of her evidence, for example explaining with some detail that the assault began in between the door between the room in the basement and the family room and detailing the conversation that occurred just prior to the altercation.

106She carefully explained the sequence events that followed, described being initially hit and punched near the family room and the assault continuing into the bedroom area. That there was a pause in the violence and the defendant went to the kitchen. That she decided to leave the home and followed Mr. Khinda seeking her car keys and that the defendant struck her again. That she tried to leave the home, but Mr. Khinda locked the door.

107She gave careful evidence, for example when asked on multiple occasions to specify the moment during the assault when her collarbone was injured she was cautious to reply that she didn't know exactly when it occurred, but that she realized at some point she could no longer move her arm. She believes she broke her collarbone when she fell to the floor when being pushed. Similarly, when asked at what point she sustained her eye injury she readily admitted she was unsure.

108Given the nature of the attack she described over a 30-40 minute period, it did not strike me as unusual that she would not be able to identify the exact point at which she suffered her various injuries.

109I found her to be frank in her evidence and resistant to guessing or attempting to fill in gaps in her evidence. She testified carefully. For instance, she described having fights with the defendant dating back to the time they were first married but was careful to clarify that they were verbal fights and not physical. Her explanation is reflective of the complainant's desire to ensure the accuracy of her evidence.

110On another occasion when shown a photo taken of her injuries after she had been treated at the hospital, she explained that the photo was not taken two days as was suggested to her after she returned home, but a longer period – a few days later. Although a peripheral point, it demonstrated an attention to detail in her evidence.

111That is not to say that she was reliable on all aspects of her evidence - as I discuss at paragraphs 138-142 of this decision.

112On details related to the assault however, I have concluded that her evidence was reliable. That she was detailed and consistent throughout her testimony, and I am satisfied that I can safely rely on the complainant's recollection of the events that day.

113I did not detect any specific animus towards the defendant despite her account of a marriage as troubled for many years and her description of Mr. Khinda as controlling and verbally abusive. Indeed, she was clearly saddened by the demise of their marriage, describing various efforts at reconciliation, specifically a point after they moved into a new home when she remembers speaking to him about stopping their cycle of fighting. In a frank manner she described feeling hurt that he would leave for three or four months at a time and sleep in a separate bedroom.

114Similarly, I did not detect any ill will directed to the complainant on the part of the defendant. He was candid in his acknowledgement that the marriage had ups and downs. He described difficult times in their relationship when he would communicate with his wife through his children. Both the complainant and defendant were credible in their descriptions of a troubled marriage. Both agreeing that finances were a major flashpoint.

115I should note that although I found Ms. Khinda to be both a credible and a reliable witness the analysis is not complete. [18] I must be satisfied that the Crown has satisfied their burden of proof beyond a reasonable doubt.

Corroboration of the complainant's evidence

116Sukhjeet Khinda testified that when the defendant's parents arrived at her home - Avtar Singh and Balwinder Kaur, they encouraged her not to report the assault to police and that she agreed.

117This version of events was corroborated by her brother Jaswant Josson and mother Paramjit Josson. Both witnesses described a family meeting where the defendant's parents ask that the police not be called.

118Paramjit Josson provided a detailed account of the discussion that took place at the home on the day of the incident. Specifically, the defendant's parents stated that it would be best to sort the matter out as a family for the sake of marriage and the children.

119I found Ms. Josson in particular to be a credible witness and I believed her evidence. She testified in a thoughtful and measured manner. She gave concise evidence. Her description of the layout of the basement unit for example demonstrated a strong sense of recall that persisted throughout her testimony.

120I was struck by the manner in which she testified. She appeared to listen to each question carefully before responding and made a considered effort to accurately convey her observations from that evening. She described seeing bruises and blood on the complainant's face and remembered that Ms. Khinda complained of shoulder pain and was laying on a bed. She corroborated Jaswant Josson's account of what he initially observed of his sister's physical condition.

121Paramjit Josson described a scene where she and her husband sat in the family room with the defendant's parents and Mr. Khinda to discuss events from that day. She admitted to what appeared to be a difficult fact to her and candidly acknowledged that although she did not agree with the decision made that evening to not call police, that in the end she went along with it in an effort to save the couple's marriage. She testified that she wanted to call an ambulance for her daughter. Jaswant Josson also described this same family meeting, which he says occurred over a 25-minute period where he describes Mr. Khinda's parents as advocating that the assault not be reported to police.

122I find this corroboration significant because it confirms a critical portion of the complainant's evidence. It also provides for a reasonable explanation as to why Ms. Khinda misled medical professionals as to the true cause of her injuries and maintained that lie for a period of time after the incident.

123This type of confirmatory evidence of the complainant's testimony is capable, as Justice Hill describes in R. v. N.S., [2001] O.J. No. 3944 (S.J.C.), in restoring the trier's faith and belief in the complainant's account of events, even if it does not directly implicate the accused or confirm the complainant's evidence in every respect. [19]

Consideration of the defence witness

124Balwinder Kaur gave brief evidence. I did not find her testimony to be believable. I found some aspects of her evidence to be overblown and exaggerated. For example, she stated that she would hit her son with a stick if she found out he had been violent towards the complainant. On another occasion she testified that she loved her daughter-in-law and grandchildren more than her son. I suppose that could be true statement, but in the context of Ms. Kaur's evidence it came across as contrived and unconvincing.

125Some parts of Ms. Kaur's evidence were simply confusing. Specifically, the witness testified that she too had fallen down a flight of stairs about seven months earlier than her daughter-in-law. She provided medical documentation to support the fact that she had sustained injuries as a result of her accident. It is unclear how this event has any bearing on the central issues in this case. Indeed, it would be nonsensical to conclude that just because Ms. Kaur had an accident on a different date, in a different location, under different circumstances, that this fact somehow makes it more likely that Ms. Khinda also suffered the same fate, thereby, I suppose rendering the defendant's version more true.

126I gave only limited weight to Ms. Kaur's evidence.

E. Defence Submissions on Credibility

127Mr. Sandhu points to a number of areas in the complainant's evidence, that should cause this court to be concerned about Ms. Khinda's credibility and that I should reject her version of events or at least be left with a reasonable doubt that the Crown has met their onus. I will address the most significant defence arguments.

(i) The complainant told others she had fallen down the stairs

128Counsel argues that the complainant advised medical staff on more than one occasion that she fell down the stairs. Further, that she maintained this explanation as the source of her injuries for a significant period after the incident. That a fall is the true cause of her injuries and Ms. Khinda is being untruthful in her testimony when she asserts that the defendant assaulted her. Although not specifically argued, an obvious alternative submission, that the complainant has admitted to being dishonest in the past and therefore her evidence should be treated with caution.

129Although the fact that Ms. Khinda had been untruthful in the past is a relevant consideration in this trial, the lies must be measured by the context in which they were told. While I readily accept that the complainant lied to medical staff about the true cause of her injuries it does not undermine her credibility in relation to what she says occurred on February 6, 2017. I accepted the complainant's evidence that she was pressured not to report the assault to police by the defendant's family and that she concocted or agreed to provide a misleading explanation for her injuries. Her sworn evidence, which was subject to cross-examination, was corroborated by two other witnesses who I deemed to be credible on this point. The strength of this evidence alone is sufficient to support a conviction in this case, but I also considered the significant delay in obtaining medical assistance despite the seriousness of Ms. Khinda's injuries further supports my conclusion that the defendant and his family sought time and opportunity to influence the complainant such that police scrutiny would be avoided.

(ii) The medical evidence contradicts the complainant's version of events

130Mr. Sandhu points to the medical report from Etobicoke General Hospital which he says indicate on a diagram of the human body only two areas of medical concern and a finding that the ears and nose are clear of injury. Further only a visual redness around the eye was observed by the intake nurse. [20] Counsel argues those injuries are not consistent with a 30 to 45-minute beating as described by the complainant. He makes two related points – first the injuries are therefore more consistent with a fall and second given the duration of the assault there should have been more extensive injuries including additional bruising, redness and scratch marks.

131I do not accept Mr. Sandhu's submissions on this point. As I noted earlier in this decision, there was no expert evidence that was called in this case for me to conclude that the injuries support the defendant's version of events. Such a finding would amount to speculation based on the evidence before me.

132Neither can I make a common-sense conclusion that the level of violence alleged by Ms. Khinda should have resulted in more extensive or numerous injuries without further evidence. [21]

133What I can conclude however is that the injuries suffered by the complainant were relatively serious. I accept Ms. Khinda's evidence that she was in significant pain, the fact she sustained a fractured clavicle is ample support for that conclusion. The photographs tendered at trial show significant bruising and injury to the complainant face. To be clear, the medical records and photographs do not meaningfully assist in determining liability in this case.

(iii) Placement of the pillars in the basement

134Counsel argued that it is problematic that Ms. Khinda denied in her testimony that there were iron posts near the staircase, which he says diminishes her credibility because they may have caused her injuries. Mr. Sandhu acknowledges however, there is no onus on the defence to prove how Ms. Khinda was injured.

135The complainant's evidence in cross-examination to be more precise is that she initially could not recall where the pillars were located in the basement as opposed to denying their existence. When Mr. Sandhu clarified his question about iron posts and refers to "a pillar that could be a drywall with the wooden things," the complainant responds that there were pillars in the basement, specifically one in the kitchen, one in the hallway, and one in the family room.

136With this additional detail in counsel's question, Ms. Khinda provides a fulsome response. Mr. Sandhu is correct in that the complainant does not identify pillars or iron posts at the base of the staircase - this evidence comes from Jaswant Josson who agrees in cross-examination that there are pillars close to the staircase landing.

137Although not necessarily a peripheral issue, I did not conclude that Ms. Khinda was trying to purposely tailor her evidence to avoid acknowledging this fact and rather her recollection was imperfect on the positioning of pillars in the basement.

(iv) Inconsistencies in the complainant's evidence

138Mr. Sandhu argues that on several occasions the complainant testified about matters or provided details at trial that were not contained in her police statement. I will highlight the most significant inconsistencies. [22]

139The defence references her evidence about the moments leading up to the alleged assault. Ms. Khinda testified that upon challenging her husband to show her proof that he had paid rent, he responded, "Let me show you the proof," and attacked her. Although the complainant described the verbal argument over the rent in her police statement, she failed to specifically mention this detail – the defendant saying, "Let me show you the proof," as the precursor to the assault.

140Mr. Sandhu further points to another inconsistency. In her evidence at trial, Ms. Khinda described how the assault continued after she sought the car keys from the defendant. This again was a detail missing in her police statement. She also testified that Mr. Khinda threw her on the bed several times, a further detail missing in her videotaped statement.

141The complainant conceded these inconsistencies.

142In the end after considering all of the complainant's evidence, these frailties were not sufficient for me to doubt the overall veracity or reliability of her evidence. The attack was a prolonged one occurring throughout different locations in the home and Ms. Khinda's evidence about the assault was detailed, comprehensive and compelling, despite the incident occurring in 2017. Although I do not consider the inconsistencies to be peripheral, they do not undermine her evidence on the crucial issue at the heart of this trial and I accept her evidence that she was seriously assaulted by her husband after an argument over finances.

(v) Complainant's evidence was implausible

143Mr. Sandhu queries why Ms. Khinda having had left the home after she says she was seriously assaulted, did not go to a police station, but instead eventually returned to the home.

144This is a compelling argument in the circumstances. Keeping in mind that there may be many reasons why a complainant might delay making a report to police, the difficulty is that this proposition was never put to Ms. Khinda and I do not have the benefit of her response. Her evidence in general as to why she returned to the home after the alleged assault was that she was thinking about her kids which is an explanation.

(vi) May 9, 2019 call to police

145Counsel submitted that it was unusual and suspect that on May 9 when Ms. Khinda testified that she overheard her husband threaten to hire someone to kill her she does not reveal the threat to police officers that attend the home. The police memo book notes which were tendered as an exhibit for the truth of their contents in lieu of the officers testifying, makes no mention of the murder for hire threat. Instead Officer Gardner records that he was shown a text message by the complainant which he concludes does not reveal an obvious threat.

146When challenged on this point Ms. Khinda says she told the police when she called 911. I took this to mean she revealed the threat to the 911 operator. The 911 audio was never played at trial to either corroborate or contradict this evidence. Accordingly, I can draw no conclusions on the impact of Mr. Sandhu's argument on the complainant's credibility. In addition, part of the difficulty is that Ms. Khinda referred to the police officers at the scene and the 911 operator interchangeably as police. This was never clarified in cross-examination and her evidence is confusing on this point. It is not until the next day May 10 that the complainant provides a formal statement on the events that precipitated her call to police.

147The complainant had a poor recollection of some aspects of the events that occurred on May 9. She testified for example that she couldn't exactly recall what she told the attending officers and further she did not provide them too much detail. I accept that she did overhear a conversation her husband was having on his cell phone that caused her distress, such that she would call for help, although the specific details remain unclear.

148Although I had concerns about the complainant's ability to accurately recall details from the May 9 incident related to her interaction with police, her limited recollection did not impair my overall conclusions about the reliability of her evidence in regard to the assault on February 6, 2017.

(vii) Motive to lie

149A motive to lie can fatally undermine the credibility of a witness. In this case Mr. Sandhu asserts there is a motive on the part of the complainant to fabricate evidence in this case. That Ms. Khinda stands to financially gain from a separation. [23] He relies on the "Agreement" dated April 7, 2018, in which the defendant relinquishes his property rights in the matrimonial home. Mr. Khinda testified that the document is fraudulent. In contrast both Ms. Khinda and Jaswant Josson testified the defendant did sign the agreement. Ms. Khinda, however, could provide only sparse details. She stated that it was signed in the company of a lawyer but could not remember the lawyer's name and was unsure who witnessed the document. Mr. Jaswant Josson indicated he was a witness to the document.

150In the end I could not draw any conclusions about the authenticity of document given the conflicting evidence. I note only that Jaswant Josson gave the most detailed evidence about the document. I cannot with any confidence conclude that it was fraudulently obtained or manufactured as the defence suggests. Further even it is a genuine document that it is somehow supportive of a motive to fabricate the allegations before this court. I note the agreement was signed over a year before the complainant reported these allegations to police.

F. Conclusions

(i) Assault Bodily Harm

151I reject Mr. Khinda's evidence and I did not find him to be a credible witness. His testimony did not leave me with a reasonable doubt either alone or in combination with any other evidence. After considering all of the evidence I conclude that the Crown has proven all elements of the offence of assault bodily harm [24] beyond a reasonable doubt.

152A conviction is to be entered on count 1 of the information.

(ii) Unlawful Confinement

153I accepted Ms. Khinda's evidence that she was forcibly confined, that is, the defendant deprived her of the liberty to move from point to point. [25] The complainant testified that she attempted to flee from the house, but that the defendant locked the door and prevented her from leaving.

154For the reasons explained in this decision, I rejected Mr. Khinda's denial and after considering all of the evidence I am satisfied beyond a reasonable doubt that the Crown has met their onus and a conviction is to be entered on count 2 of the information.

(iii) Threaten Death

155Ms. Khinda testified that the defendant threatened to hurt her and kill her and their children. When asked by the Crown to detail the threats made in November and December 2018 and provide context, she replied that they occurred at the 20 Light Catcher Circle home, but that she couldn't recall a specific date, just that the threats occurred throughout their relationship. She then testified about her efforts at reconciliation in the marriage, without fully addressing the Crown's question.

156She testified at another point about feeling helpless in the face of her husband's threats, which she says were often. She further testified about threats directed at her children, but without specificity and the Crown sought no further details.

157Not much analysis is required given Ms. Khinda's sparse testimony in support of the uttering threat charges before this court. Although I found the complainant to be a credible witness, the evidence in support of the threatening counts lacks sufficient detail to support a conviction.

158Counts 3, 4 and 5 on the information are to be dismissed.

H.S. Amarshi J.

Footnotes

1Ms. Khinda arrived at the hospital however on February 6 (the date of the alleged offence) and a triage record is created just before midnight.

2The emergency department admissions form was completed by a primary assessment nurse.

3Sukhjeet Khinda's medical records at p. 25 (Exhibit 1)

4Ibid at p. 30

5Ibid at p. 25

6Ibid at p. 25

7Ibid at p. 33

8The complainant for example identified January 30, 2018 as the date of the alleged assault. The defendant was unsure of the exact date.

9Contained within Sukhjeet Khinda's medical records is a doctor's note detailing a visit on July 16, 2017 when the complainant continued to state she had fallen down the stairs.

10I treated this observation as a neutral fact and not necessarily corroborative of the complainant's version of events.

11See also R. v. R.E.M., 2008 SCC 51; R. v. D.T., [2014] ONCA 44; R. v. Getachew, [2013] O.J. No. 1674 (SCJ); R. v. Jaura, [2006] O.J. No. 4157 (OCJ)

12As Justice Horkins succinctly wrote in R. v. Ghomeshi, 2016 ONCJ 155, in explanation of the standard of proof in a criminal trial.

13In a WhatsApp correspondence that was tendered as an exhibit in this trial, there were two occasions in which the couple bickered over finances. Although these post-date this incident it confirms a pattern of disagreement and arguments over finances. Outside of this conclusion, the remainder of correspondence was not probative of any of the issues in this trial, except that they show a marriage that had "ups and downs," and included loving exchanges as well as negative interactions.

14The timeline of events in this case is largely consistent among witnesses. The defendant testified Ms. Khinda fell down the stairs around noon. The complainant describes Mr. Khinda coming home between 10-11 and an argument takes place after that.

15Jaswant Josson testified they left for the hospital an hour after he arrived at the couple's home which he estimated was between 5 and 5:30 p.m.

16I appreciate that the complainant was out of the home for a period of this time, but the delay is still significant.

17I accepted Sukhjeet Khinda's evidence that she was unable to move her left shoulder and was in a lot of pain.

18R. v. J.W., 2014 ONCA 322, at para. 26: "a reasonable doubt can survive a finding that the complainant is credible."

19See also: "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment," where Paciocco J.A. states that the credibility of testimony is enhanced where there is evidence from a source other than the witness that materially conforms or supports a witnesses' testimony. Canadian Criminal Law Review; 22 Can. Crim. L. Rev. 31 February 2017.

20Mr. Sandhu referenced pages 12 and 13 of the complainant's medical report in his submissions, which also included an observation of bruising by a nurse.

21This is not a case for example where I can draw reasonable inferences about the source of the injuries from the evidence by applying common sense and human experience – see R. v. Theoret, 2018 ONCA 700, [2018] O.J. No. 4554

22There were some inconsistencies which although highlighted by Mr. Sandhu I considered peripheral and had no impact on my conclusions and do not require any considered analysis.

23This argument was based on Mr. Sandhu's submissions and the themes he explored in cross-examination.

24The injuries suffered by Sukhjeet Khinda in this case clearly meets the definition of bodily harm as defined in section 2 of the Criminal Code which refers to "any hurt or injury that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature." See also R. v. J.A., 2010 ONCA 226 at para. 101.

25See R. v. Tremblay, 1997 CanLII 10526 (QC CA), 117 C.C.C. (3d) 86