Court File and Parties

Court File No.: Halton, 10-3506 Date: 2012-04-04 Ontario Court of Justice

Between: Her Majesty the Queen — And — Gursewak Singh Hundal

Before: Justice Frederick L. Forsyth

Heard on: September 22, 2011, October 4, 2011 and January 26, 2012

Judgment released on: April 4, 2012

Counsel:

• Lorna Muller, for the Crown
• H. John Kalina, for the accused Gursewak Singh Hundal

FORSYTH, J.:

Facts and Charges

[1] Mr. Hundal was charged with two counts of assault level one arising out of alleged incidents on July 30, 2010 and a period of time between October 1, 2008 and November 30, 2008. The alleged victim in both counts is the former wife of Mr. Hundal, Kamal Sangha. On September 22, 2011, the Crown elected to proceed summarily. Mr. Hundal entered a plea of not guilty and his trial commenced.

Crown's Case

Testimony of the Complainant

[2] The first witness called by the Crown was the complainant, Kamal Sangha, who testified in chief that she was 29 years of age and as of September 22, 2011 was a student. She had been born in India and married the accused in India in 2006. She explained that the marriage was an arranged affair and she then emigrated to Canada with the accused. She said that his family resided in Oakville and she and the accused took up residence in the basement of his family home with his father, his mother, his two sisters and one brother.

[3] In June 2008, while living in the basement of that family home with the accused, she said that he began to become aggressive in their relationship. He often refused to discuss matters between the two of them and he would push her and punch her on occasion. Specifically, she said that she recalled an incident in October 2008 because she knew that she had returned to India in November of 2008 and her parents had come over from India in October 2008 to Canada. Therefore, she was able to peg the approximate date of this alleged incident about which she was going to tell the court, as being October 2008.

October 2008 Incident

[4] She said that on this particular occasion the accused had gone out from the apartment and did not return when she expected him to do so. Therefore, she called him on his cell phone to try to reach him. She stated that she called 20 or 30 times and received no response at all. Therefore she called his grandparents who were residing upstairs in the family home and their advice to her was to keep trying to reach him. She did so and finally, she said, he answered one of her calls and told her that he didn't want to be bothered. The phrase that he used was that he didn't want any "botheration."

[5] She said that she had been able to figure out that he was at his brother-in-law's place at the time of this particular conversation and since it was already 11:30 p.m. she told him that he should return to their family home. He did not and eventually he returned at 2:00 a.m. She said that he was sober when he returned home and she immediately "lit" into him, telling him that he should tell her where he goes when he goes out and what time he will come home. She said that his response was to tell her that it was his life and he could do what he wanted to do.

[6] At the time of this confrontation she said that she was standing in the basement computer room and the accused was in front of her and he pushed her with one hand on her shoulder and punched her arm, her shoulder and her upper arm. She said that she didn't know which arm he had punched. However, she said that he did punch with a closed fist and all of this tended to move her body backwards. He also slapped her face with an open hand on her left cheek.

[7] At this point she told him not to strike her any longer and she raised her hand to defend herself and asked him why he had struck her. She said that his response was to say "because I don't want anyone asking my whereabouts."

[8] After all of this scuffling she said that his parents came down into the basement and asked for an explanation of what was going on. Ms. Sangha said that she also called her own parents and that the accused's grandfather, who had come downstairs as well, told her that he would set the situation right and that it would never happen again. This was the reason, she explained to the court, that she did not report this incident originally to the police.

[9] However, she said that the entire incident had scared her and she felt depressed afterwards. The slap itself caused a little redness to her face. She said that she did not do anything physical to him, other than just moving back when he had his hands in front of her face. She said that she was so depressed that she felt like killing herself after the incident.

[10] Unfortunately, despite the grandfather's assurances, she said that this type of behaviour did not come to an end with that day and it continued weekly and monthly with regular repetition. She said that they would begin by verbally arguing and then he would push her during the argument on many occasions. She said the timeframe for some of these continuing behaviour patterns was just after she returned in January 2009 from her trip to India.

July 2010 Incident

[11] The Crown then questioned Ms. Sangha about the July 30, 2010 count. She explained that she had been in the basement computer room again and this time she had asked the accused for his SIN number in order to include it on one of her school forms. He told her that he would get it for her but when she pressed him for it, for a 3:00 p.m. appointment that she had that day, he became angry and pushed her. At the time that he pushed her, he was sitting on the bed and she was standing in front of him. She said that he pushed her with his two hands in an upward fashion on her upper arms near her shoulders, which caused her to move back from the bed. Again, she asked why he had done this and he then turned to get off the bed and as he did so, he kicked her in the stomach with his right leg. She said that his leg actually contacted her left hip area near her stomach and that he had kicked out with his leg just before he stood up from the bed.

[12] Ms. Sangha said that she pushed her husband back with an open hand and he grabbed hold of her left wrist of that hand as she did so and bit her on her left shoulder, on the bare skin of it. She tried to push his jaws off of her skin but his teeth remained clamped solidly on her skin for approximately 20 seconds or so. She continued in her efforts to break his grip and eventually she broke his bite grip and pushed him back onto the bed.

[13] After this altercation she said that he simply showered for his work at 4:00 p.m. while she cried and again called her own mother to report this incident. Her mother told her that she would talk to her husband's parents again.

[14] The Crown asked if she had any medical treatment because of this bite but she said that she had not gone to a doctor. She had just gone to a drug store and purchased some bruise cream and iodine and applied those medicinal salves to her injured area. She said that her arm was too sore to move for a while. She did say that as a result of his bite, her skin had been broken and there were teeth marks visible in a reddish colour all over the area. However, she had not actually bled.

[15] She said that two or three days later while she was at work in the lunch room, she was still in pain and so she took photographs with her own cell phone camera of the injured area and stated that the teeth marks were still visible at that time and also in the photographs. The Crown played the photographs from her cell phone on the screen in the courtroom and Ms. Sangha testified that the five red teeth marks were still visible above and to the right of a black mole on her upper left arm at her shoulder area and towards the back side of her arm. In other words, she was testifying that the court should be able to see those marks on the photographs on the screen. All in all, she said she was sore for about three days and the bruising lasted a week or so.

[16] On consent, the Crown entered the photos from her cell phone as Exhibit 1 on the trial.

[17] On consent again, the Crown entered as Exhibit 2[a] photographs taken by the police on November 3, 2010 of Ms. Sangha's upper left shoulder mole area and there appeared to be faded images of the teeth marks on that photo according to Ms. Sangha. Exhibit 2[b] was also entered, which was described as a close-up of her left arm and some of the area depicted in Exhibit 2[a].

[18] Ms. Sangha explained when asked by the Crown why she did not report the biting incident from July 2010 that it was because the accused's mother had told her that she would talk to his father and amongst the three of them they would try to resolve the matter.

[19] Ms. Sangha said that after this incident she went to California to attend a wedding and she returned in September 2010. By this time she said that she and the accused weren't even speaking to each other, other than the fact that he would tell her that he wanted a separation from her and she would respond that she did not want a separation. She still harboured the hope that he would change his ways and she was even willing to cut him some slack by thinking perhaps he was troubled with problems at his job, which might have accounted for his unacceptable behaviour towards her. She also explained that her culture frowns upon divorce and that was another reason why she was hesitant to think about divorcing him.

[20] She again explained that she did not want to report any of the physical assault incidents because of the stress that that would create by doing so and involving the police. She said that she simply wanted to file some kind of a complaint about the fact that he was hanging on to some of her own personal property and that's why she actually ended up going to the police station. However, while she was at the station, she became so emotional in the presence of the police that she decided to report all of these incidents at the same time. She gave a statement on video with respect to these alleged assaults one day later after initially attending upon the police to complain about the personal property aspect.

Cross-Examination of the Complainant

[21] In cross-examination, she admitted that perhaps some of the arguments between the two of them that occurred between July and October of 2008 were because of phone calls that she had made to India to her relatives. However, she denied Mr. Kalina's suggestion that the accused had told her that he thought that she had a boyfriend in India and that was the person whom she was calling so often in India.

[22] She confirmed that she gave a police video on November 2, 2010 and she had had it in her possession since September 12, 2011 approximately. She said that she had read it thoroughly ten days before she was testifying and also briefly on the morning of her testimony on September 22, 2011. Mr. Kalina referred her to page 27 and 28 of that statement where she had apparently told the officer that an incident had happened in 2009, using the words "2009, I think" and "maybe in July or August." Mr. Kalina suggested that this indicated that she wasn't certain at all of when the alleged incident had occurred but Ms. Sangha said that on the morning of her testimony on September 22, 2011, her mother had reminded her that it had been just before she had gone to India and at the same time that the accused's own grandparents were visiting their home in 2008. She explained that she had been confused about the dates when she gave her statement on November 2, 2010 to the police.

[23] Again, she explained that the first day when she attended the police station, she had gone there for the purpose of reporting a personal property problem between her and the accused but became emotional and decided precipitously that she would then report the assaults. She seemed to be implying that therefore she wasn't as prepared to report details as she might have otherwise been. She said that Detective Brar told her that he would set up another interview but she wasn't sure exactly when that would be. However, he called her at her home that very evening and told her that the next night would be good for the interview so she went down at 11:00 p.m. to the station the next night. However, she again stated that she was confused about the dates of the first assault that is now alleged against the accused when she talked to the police.

[24] Mr. Kalina asked her questions about the Exhibit 1 photo of her arm which she had taken with her cell phone at work. He suggested that the yellowish colour that appears to be showing on her skin in that photo might have been caused by the iodine which she had applied to her arm and she agreed. She said that she did not go to a doctor about the bite because she thought the doctor might tell her that she then had to report the matter to "cops" or the police.

[25] She agreed that she had been asked to leave the family home five weeks after the accused had left her, by the accused's father, who however offered to pay her first two months rent wherever she relocated. She said that the police actually told her that as well.

[26] With respect to October 25, 2010, she said that the accused's father had asked the police to move her and her own father out of his home. The police told her that her father had requested $30,000 payment if he had to move out.

[27] She said that on November 1st, she had gone to the police to ask for help in retrieving her personal belongings, which she had already said twice before, and that's when she decided to report these assault allegations rather precipitously.

[28] She explained that her own father had arrived from the U.S.A. in September 2010 to take up residence in her matrimonial home with her husband. She said that she realized that her marriage was finished when the accused actually moved out and relations with his parents became rather strained between her and them after that.

[29] At this point in the day on September 22, 2011 the matter was remanded to October 4, 2011 for trial continuation and specifically continuation of the cross-examination of Ms. Sangha.

Photographic Evidence

[30] On October 4th, the Crown, on consent, filed as Exhibit 3[a-f], a series of colour photographs depicting what the Crown alleges are the injuries to Ms. Sangha that were caused by the accused as she has testified.

[31] Mr. Kalina then continued his cross-examination of Ms. Sangha. She denied his suggestion that she had lied to the court about approaching her father-in-law to try to get him to help reconcile the differences between her and the accused. She maintains in her testimony that she did exactly that.

[32] She did agree that she had stayed overnight at her uncle's place for about five weeks after she returned from the wedding in the U.S.A. While at her uncle's she slept there five or six days a week and only one night or so in her basement room of her husband's parents' home. She said that her own father stayed with her wherever she happened to be staying and that he never stayed alone at the home of the accused's parents. She said that during that five week period, she was out looking for a rental residence, contemplating leaving the matrimonial home, and she kept some clothes at her uncle's place.

[33] She categorically denied Mr. Kalina's accusation that she had asked for $30,000 from the accused's parents in order to have her agree to leave their home with her father.

[34] Mr. Kalina then put the essence of the defence theory to her and suggested that the accused's parents wanted her and her father out of their home and that when she demanded money in order to leave and they refused and went to the police to evict Ms. Sangha and her father and that she then decided to concoct these charges out of retaliation. Ms. Sangha unequivocally and categorically disagreed with that suggestion.

[35] With respect to the photographs that had been introduced in the trial representing her injuries, she told Mr. Kalina that she had worked as a security guard at a warehouse for a company known as InterCon Security Company. At that employment she had told her supervisor that her arm was hurting her and that's why she then took the cell phone photos of the bite marks as she had testified earlier.

Police Evidence

[36] After the completion of the cross-examination of Ms. Sangha, both the Crown and Mr. Kalina agreed that the evidence of P.C. Brar would be introduced by way of an Agreed Statement of Facts, which was then filed as Exhibit 4. It reads as follows:

On the first of November 2010, I attended 20 Division to speak with the victim Sangha who required advice on how to collect her belongings from her father-in-law's residence. While I was speaking with Sangha, Sangha began disclosing a previous domestic occurrence with her husband Hundal. Sangha indicated this occurrence escalated from a verbal dispute to a physical altercation.

[37] The next witness called by the Crown was P.C. Colleen O'Rourke who testified in chief that she is a member of the Halton Regional Police Service and that P.C. Brar had advised her of his arrest of the accused on these charges on November 1, 2008. P.C. O'Rourke said that she at the time was working in the domestic violence unit of the HRPS and so she interviewed Ms. Sangha on November 3rd. On that day, she took photographs which became Exhibit 2[a] and 2[b] in this trial and she testified that she had observed what she described as faded bruise marks on Ms. Sangha's left arm, just above a noticeable brown mole. She said that there was a slight discoloration in the skin where what she was describing as bruising was located in the sense that the skin was darker brown and about two (2) inches wide where these bruising marks were. She also observed what to her appeared to be a healed scar on the back of her upper arm.

[38] P.C. O'Rourke said that she also examined the photographs that had been taken by the complainant's cell phone on July 31st and August 1, 2010. These photographs relate to Exhibit 3[a to f]. P.C. O'Rourke testified that these marks in these photographs looked to her like bite marks in the sense that the marks were in the shape of a mouth.

[39] In cross-examination, she of course conceded that she had not conducted any medical examination, nor asked Ms. Sangha to subject herself to a medical examination.

[40] With respect to the November 3rd photograph which P.C. O'Rourke had taken and to which she had referred in chief, she conceded that it was possible when Mr. Kalina suggested it, that the bruising/discolouration that she described could have been due to the application of a solution of iodine such as the complainant had testified that she had applied to the area.

[41] She also agreed that the complainant had reported to her that she had been bitten on her arm before P.C. O'Rourke inspected her arm.

[42] The Crown had no re-examination for P.C. O'Rourke and closed the case for the Crown after her evidence.

Defence Case

Testimony of the Accused

[43] Mr. Kalina elected to call evidence on behalf of the accused and called the accused as the first witness for the defence. He testified that he is 33 years of age and is employed as a Brinks armoured truck guard and that he is required to be armed. He has held that position for nine years.

[44] He said that he married Ms. Sangha in 2006 and that their marriage was fine in India where it started but when she came to Canada with him she began to become demanding of him.

[45] He said that she was always on the telephone to India and he had actually found a record of daily calls by her to India to the same phone number on his own phone bill in Canada. He said that he therefore assumed that she had a boyfriend in India and that she just wanted to put in her three years in Canada with him so that she could then sponsor her boyfriend from India to Canada. He accused Ms. Sangha of this but she denied it, he said.

[46] After this he said that he did not want to live with her any longer because their own relationship was going nowhere and he told her that. She responded by saying that she had to go to India to see some relative and get some educational material that she needed in Canada. The accused said that he knew that was a lie.

[47] When Mr. Kalina asked him to comment on the evidence of his wife with respect to the assault charges, he said that he never argues with anyone and did not argue with his wife. He categorically denied pushing or punching her at any time, whether it be 2008 or 2009. He did say that in 2010, he had told her that he was leaving her when she went to the wedding in California. He said that her response was to say "fine, move out when I return."

[48] The accused denied involving his parents in his matrimonial difficulties with Ms. Sangha. He also said that her parents did not intervene at all in their problems while they were living in his parents' home. He said that her parents simply visited with her at the home and asked how they were doing, from time to time.

[49] He said that he actually did move out of their matrimonial home in the basement of his parents' house before she returned from the wedding in California and he stayed with a friend in Brampton for a month before he was able to find his own residence in November of 2010 in Brampton.

[50] He denied removing any of Ms. Sangha's personal property from his parents' home, which she claimed had caused her to go to the police to find out what to do about recovering it.

[51] He said that she actually called him after he had moved out and after she had returned home from California and asked to be able to live with him for one more year. However, he said that he refused her request and asked her to move out of his parents' home but she refused.

[52] Quite specifically, he denied ever biting her during any discussions or arguments that she testified had occurred over the course of their relationship.

Cross-Examination of the Accused

[53] In cross-examination he said that he and his wife had no arguments whatsoever when she came to Canada in June of 2008. However, he did say that she threatened him almost daily and he knew for sure that she had a boyfriend in India by November of 2009. He claimed that he did not leave the marriage because of his debts. He said that their bank account was joint so she paid her own phone bills from that account.

[54] He denied the Crown's suggestion that by the time he decided to move out of his own parents' family home he was very angry with her.

[55] The Crown referred him to the 2008 charge and he denied the precursor to that charge that had been given in testimony by Ms. Sangha. He denied that he had gone out that night with his brother-in-law and that she had to phone him a number of times before he finally answered. He explained that at the time he was working at two jobs, one as a truck driver and the other as the Brinks guard, and that he never socialized except with his family and his eleven year old brother or sister, watching movies at home.

[56] He denied ever telling Ms. Sangha that he would just do as he pleased, even though married to her, and that he had every right to do so.

[57] The Crown questioned him specifically about the marks that are visible in some of the photographic exhibits on Ms. Sangha's upper arm that appear to be similar to teeth marks. The accused said that he never noticed them, nor did Ms. Sangha ever show them to him.

[58] He denied her evidence that she had ever asked him for his SIN card because she already had that number in her possession. This was with respect to her evidence of the assault that she alleged occurred in the computer room after she had asked him for his SIN number.

[59] He denied absolutely that they ever argued loudly in the basement so that his parents would hear it upstairs. He claimed just the opposite and said that his parents would never have had occasion to hear anything to do with his voice and her voice in argument.

[60] He then denied telling his parents that he was leaving the marriage even though they had been the ones to arrange the marriage in India. He explained that actually they had not been the ones to arrange the marriage because he had really been adopted by his father who is the biological brother of his own father in India. Therefore, he was telling the court that his father in Canada here is really his uncle and that this somehow had something to do with why he didn't tell him and his wife, his adoptive mother, that he was going to leave his wife. He went on to say that he did tell his biological mother in India, and I presume by telephone, that he was going to be leaving the marriage. He finally finished this area of testimony by saying that his adoptive parents here in Canada had sponsored him to come to Canada but he decided not to tell them that he was actually going to leave the marriage. I simply note that none of this evidence had come out in chief when the accused was testifying about his family background.

[61] Specifically, with respect to the decision by him and Ms. Sangha to terminate their marriage, he insisted that there was never any argumentative talk between the two of them, and that he never yelled at her about the subject. He said that she simply accepted his decision to leave the marriage in order to save some money because of the debts that they had incurred.

[62] He said that Ms. Sangha had begun taking classes in school in September of 2010 and also had hired an English tutor, which added to the family debts. He said that she has a Master's Degree in genetic science.

[63] He denied that there was ever any arrangement by him to help her financially or to help her find an alternative residence.

[64] At this point in his testimony in cross-examination he indicated that he wanted to point out that he had indeed told his adoptive parents about the dissolution of his marriage in July of 2010 and that he was leaving the marriage and the family home in September in order to save money. He said he did mention at that time that the marriage was not working out to his adoptive father.

[65] At this point in his testimony I actually intervened for clarification and I suggested to the accused that he had apparently contradicted his earlier testimony in cross-examination wherein he had denied telling his adoptive parents ever about the marital problems or dissolution of the marriage. He responded by telling the court that he had told them he "might" leave in September but then he also added that he told them that Ms. Sangha might also be leaving the matrimonial home in the basement of his adoptive parents' home. This aspect of his testimony was, at that time and still remains, somewhat of an enigma to the court.

[66] He agreed with the Crown's suggestion that he was very concerned during his trial that he could lose his Brinks job employment and other trucking jobs if he ends up being convicted of these offences. He also said that he had not told his wife that he was going to be leaving her until September 2010.

[67] The Crown asked him if something in particular had happened between July and September to trigger his decision to leave his wife and he said that nothing in particular in that regard had occurred.

[68] Returning to the adoption issue, he explained that he had been adopted by his uncle because his uncle did not have a son himself. He absolutely denied that the purpose of the adoption was so that he, the accused, could get to Canada because his uncle, of course, was living in Canada. He explained further that he felt that his marital problems were simply his own business so even though he treated his adoptive parents as his own parents, he felt no need to discuss his marital problems with them.

[69] The Crown referred him to Exhibits 3[a] and 3[b] which depict marks that appear to have a similarity to teeth marks, just above the mole that is visible on Ms. Sangha's arm. The Crown suggested to him that the photographs depict five distinct marks but the accused did not agree with the Crown's suggestion and said that only four marks are shown in the photograph. However, a few minutes later, he agreed that he could actually see five distinct marks in the photograph. The Crown pointed out to him that one of them appears to be out of alignment with the other four and he agreed. Next, the Crown asked him if he would agree that he, himself, has one of his upper teeth offset from the others and he agreed.

Testimony of the Accused's Father

[70] Upon the conclusion of the cross-examination of the accused, Mr. Kalina indicated that he would be calling as his next witness, the adoptive father of the accused, Mr. Dalvinder Hundal. He began to testify in chief but after a few minutes it became apparent that his command of the English language, at least in his ability to communicate in English, was insufficient to allow any of us to fully understand him. Therefore, on consent, the trial was remanded in order for the court to obtain the services of a Punjabi interpreter. The court reporter on October 4th actually had indicated that she was only comprehending approximately 50% of the English words being spoken by Mr. Hundal. The matter was then remanded to January 26, 2012.

[71] On January 26th Dalvinder Hundal resumed the stand as a witness for the defence. He testified with the assistance of the Punjabi interpreter that he is the adoptive father of the accused, having adopted him when he emigrated to Canada in 1997. He said that the accused had lived with him until he obtained his job in Brampton. In 2008 the accused was living with him and the accused had married the complainant, Ms. Sangha, in December of 2006. He explained that the accused and his wife both slept in a basement room but they were both allowed to enjoy full access to the entire house.

[72] Mr. Hundal said that he had never noticed any matrimonial problems and never had to intervene in any sort of violent arguments between the two of them. He said that those things just never happened and he never even noticed any arguments between the two of them while they lived there.

[73] In some qualification of that testimony, Mr. Hundal pointed out that he worked days while his son worked various shifts, and so obviously they didn't spend too much time in the house at the same time. However, he said that suddenly he began to notice that his son had begun to live out of his home and that his son had told him that he and his wife were no longer compatible. He estimated that this information was given to him by his son in September of 2010.

[74] He said that Ms. Sangha then, after that situation developed, called "her daddy" to come and live with her in Mr. Hundal's home. Her father's name was Sarjit Singh and he said that Mr. Singh stayed four or five weeks in his home. He said that he and Sarjit tried to resolve the differences between his son and Ms. Sangha but they were unsuccessful in their efforts.

[75] He then said that he reached a point where he wanted both Ms. Sangha and her father but they refused to do so, so he called the police and the police told them that they had to get out. He said that he thought that the police had to actually inform Ms. Sangha about his complaint and then he later learned that she herself had gone to the police when his son ended up being charged with these offences.

[76] He said that when she and her father lived in his house, his son whom he referred to as Raja, came over between two and four times to visit, although he only saw him maybe one or two times. He said that the complainant's father had been worrying about where she would live while finishing school if she had to move out of Mr. Hundal's home and he pointed out that when his son came over to the house to visit, Ms. Sangha was not in the home on any of those occasions.

[77] He denied that Ms. Sangha had ever spoken to him about problems that she was having with his son in the marriage.

[78] He said that his own father had stayed in his home for some six months in 2009 while he was visiting from India. He denied having had any contact with Ms. Sangha or her father since the charges were laid.

Cross-Examination of the Accused's Father

[79] In cross-examination by the Crown, he denied that the marriage between his son and Ms. Sangha was what would be called an arranged marriage. He explained that it was simply done on the telephone by exchange of photographs and that that somehow distinguished it from an officially arranged marriage in the Indian culture.

[80] He agreed that the accused did tell him that he didn't want to live with Ms. Sangha any longer.

[81] Initially when the Crown asked him, he denied having met the parents of Ms. Sangha in India, but the Crown reminded him that he had met them during the wedding ceremony in India and I believe that he agreed with that suggestion.

[82] Mr. Kalina closed the case for the defence and the Crown did not call reply evidence. The court received submissions immediately thereafter and I reserved my decision to April 4, 2012.

Position of the Defence

[83] Mr. Kalina submits that the evidence in this case must be analyzed in accordance with the mandate in the Supreme Court of Canada in R. v. W.D., (1991), 63 C.C.C. (3d) 397. He does concede that there is some physical evidence in the form of the photographs of the alleged injuries of Ms. Sangha that must also be considered and therefore this case is not just simply a classic "he said, she said." However, he submits that the photographic evidence should not be given very much weight by the court. As an example, he refers the court to the yellowish colour of the alleged bruise on Ms. Sangha's arm, in respect of which evidence in cross-examination she agreed that the yellowy colour might have been caused by the iodine that she had put on that area of her arm.

[84] Mr. Kalina also asks the court to draw a favourable inference towards the accused's evidence of his categorical denial of any of these charges by referring to his evidence that he knew that he had to be careful in his life with respect to ever incurring a criminal conviction because of his Brinks job on which he has to be armed. Therefore, Mr. Kalina submits that there is a factual foundation for the accused's position that he never really argued with his wife at all during the marriage and certainly never engaged in any physical types of arguments.

[85] Mr. Kalina submits to the court that the totality of the evidence reveals a logical and convincing basis for the concoction of these allegations by the complainant. He refers the court to the timeframe between October 25, 2010 when the accused's father asked the police to intervene to evict the complainant and her father from his home, and the very proximate date of November 3, 2010 when Ms. Sangha decided to make the allegations that led to these charges to the police after her initial visit to the police on November 2, 2010. Added to that humiliation was the original humiliation of the accused actually deserting her in her marriage when she admitted that her culture certainly did not approve of divorce. Putting all of this together, argues Mr. Kalina, the court should have at least a reasonable doubt about the veracity of Ms. Sangha's allegations of criminal assault against her husband. He argues that she clearly had a motive to concoct these allegations, and that motive was revenge. Mr. Kalina would be asking the court to remember well the old adage that "hell hath no fury like a woman scorned."

[86] In support of this submission, Mr. Kalina points to the complainant's obvious intelligence with a Master's degree and he argues that such an intelligent person would have reported such alleged violent assaults to the police immediately, had they actually occurred.

[87] In conclusion, Mr. Kalina asks the court to either accept Mr. Hundal's evidence after engaging in the first phase of a W.D. analysis and therefore acquit him, or in the alternative, if the court is unable to totally accept the accused's evidence, at least the court ought to find that his evidence in the context of the totality of the evidence and, in particular, the evidence of Ms. Sangha ought to raise a reasonable doubt in the mind of the court about the accused's guilt on both of these s. 266 charges.

Position of the Crown

[88] Ms. Muller submits that the court ought to find Ms. Sangha's explanation in her evidence for not initially reporting the assaults to be both credible and logical in the context of her cultural background. In other words, the Crown refers the court to the same cultural background of disapproval of divorce to which Mr. Kalina has referred the court, except for a different purpose. The Crown also asks the court to find that the essence of Ms. Sangha's evidence was to the effect that she did not want her marriage to the accused to terminate. She had not simply married the accused for convenience and she totally denies having married him only to put in three years in the country of Canada in order for her then to be able to sponsor her alleged boyfriend from India to come to Canada.

[89] With respect to the evidence of the accused's father, Ms. Muller urges the court to find that his evidence is incredible when he testifies that there were never any arguments between the accused and Ms. Sangha, especially in light of the accused's own evidence that he was accusing his wife of having a boyfriend in India for all of the phone calls going to that single number in India.

[90] Indeed, the Crown submits that Mr. Hundal's father contradicted himself within his own evidence in chief when he testified at one point that the complainant's father, Sarjit Singh, and he tried to resolve the differences between the accused and Ms. Sangha at one point while Mr. Singh was staying in his home.

[91] The Crown also asks the court to find that the complainant's evidence that she had asked her own parents to help and to intervene between her and the accused during the early stages of their arguments in their marriage has a ring of common sense about it and an air of reality under the circumstances.

[92] With respect to the July 2010 allegation, Ms. Muller submits that the court should find that the detailed testimony of the complainant with respect to that allegation, in combination with the photographic evidence of what can only be described as a bite mark on her shoulder, render that evidence to be credible and trustworthy by the court. Ms. Muller argues that the most damning evidence against the accused is contained in Exhibit 3[f], the photograph that best displays the marks on the shoulder of the complainant that the Crown asks the court to conclude are consistent with the shape of teeth marks. In particular, those marks, submits the Crown, are not in alignment in the sense that one of them is offset and the accused admitted to having an offset tooth in his upper teeth. This was the photograph taken by the complainant's cell phone shortly after the alleged incident.

[93] The Crown asked the court to find that the accused's evidence that the only thing that was truthful about the evidence of his wife on this trial was the date of their marriage and the date of their immigration from India, to be totally lacking in an air of reality.

[94] Not to be outdone by the defence, the Crown also asked the court to consider a motive to fabricate on the part of the accused, Mr. Hundal, because he admitted in testimony that he would likely lose his job as a Brinks guard if he is found guilty and therefore, it would be in his best interests to fabricate his denials of these allegations.

[95] In conclusion the Crown asked the court to reject the accused's evidence of categorical denial across the board of these allegations after engaging in the appropriate first phase of the W.D. analysis. In addition, the Crown asks the court to find that the rejected evidence of the accused cannot raise a reasonable doubt in the mind of the court and neither should the court find that there is any concern in the context of the totality of the evidence about the credibility and reliability of Ms. Sangha's evidence. Therefore, after all three phases of the W.D. analysis have been completed the Crown argues that the court should find that the Crown has proven both of these charges beyond a reasonable doubt.

[96] In reply to the Crown's argument, Mr. Kalina also referred the court to Exhibit 3[f] and reminded the court that there is no CFS or medical evidence to establish that the marks shown in that photograph are indeed bite marks. Mr. Kalina also asks the court to conclude that it would be highly unusual for a person to be able to bite the arm of another person without clamping both upper and lower jaws together and yet this photograph, Exhibit 3[f], only shows one line of impressions and not two. In other words, he argues that the court should not be able to conclude that the single line of marks, with the one mark being out of alignment with the others, represents a row of teeth belonging to the accused in accordance with the evidence of Ms. Sangha.

Analysis and Conclusion

[97] I agree with both counsel that R. v. W.D., supra, most certainly does have application to the evidence on this trial. I also find that the W.D. analysis of the court must be informed, at least to some extent, by the photographic exhibits of the arm and shoulder of Ms. Sangha. It is for the court to decide how much weight should be properly attached to them, either in support of or to detract from the evidence of Ms. Sangha's allegations against the accused.

[98] In engaging in that analysis, I have reminded myself of the principles enunciated by the Supreme Court of Canada in R. v. Nikolovski, [1996] 3 S.C.R. 1197, [1996] S.C.J. No. 122 (S.C.C.). A summary of those findings by the Supreme Court of Canada is contained in "The Law of Evidence in Canada - Lederman, Fuerst and Bryant, Third Edition" at paragraph 12.24:

In R. v. Nikolovski, the Supreme Court of Canada held that if it is established that a videotape has not been altered or changed and that it depicts the crime scene, it may be used by the trier of fact in determining whether a crime has been committed and whether the accused committed the crime. The trier of fact may determine identification solely on the basis of the videotape evidence. In these circumstances, the video must be of sufficient clarity and quality and show the accused for a sufficient time period to prove identification beyond a reasonable doubt. The minority decision focused on the lack of adequate reasons by the trial judge supporting the positive identification evidence and the inability of trial counsel to test the reasonableness of the trial judge's identification of the accused from the videotape.

[99] In R. v. Graat, [1982] 2 S.C.R. 819, a decision of the Supreme Court of Canada, Mr. Justice Dickson, as he then was, stated:

"except for the sake of convenience, there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between 'fact' and 'opinion' is not clear."

[100] By analogy, it has long been accepted that the trier of fact is also permitted to draw factual inferences from many forms of physical exhibits such as photographs of alleged injuries. The trier of fact does not need a qualified medical doctor or forensic evidence to conclude that a photograph depicts a cut in human skin or a bruise on the surface of the skin. The causation of the cut or bruise, or age of either, is of course quite another matter.

First Phase of W.D. Analysis

[101] On the first phase of a W.D. analysis, in this case I find certain areas of the accused's evidence to be somewhat troubling. I agree with the Crown that his evidence that he and his wife never argued at all, never mind loudly while within the house, to indeed be lacking in an air of reality, especially given his own evidence that he confronted her with his accusation that she had a boyfriend in India whom she was calling on a regular basis, not to mention his evidence that she threatened him daily.

[102] I also find his rather elaborate and convoluted explanation for his decision not to inform his adoptive parents about his marital difficulties and his ultimate decision to leave his wife, to be lacking in an air of reality. Indeed, I find that he was inherently inconsistent in his own evidence on the point of informing or not his father about his decision to leave the matrimonial home.

[103] With respect to the evidence of the other defence witness, the accused's father, I find that he wasn't even in the family home for much of the time during which some of the arguments alleged by Ms. Sangha could have occurred. I say this because of his own evidence about his shift work. Therefore, I find that he was at least a little ambitious in stating that his son and his wife never argued.

[104] In addition, he testified that he and the complainant's father actually made an attempt to resolve the marital difficulties between the accused and Ms. Sangha. This evidence is in conflict with the accused's denial that either his parents or his wife's parents ever tried to intervene.

[105] In short, I do not accept the accused's evidence of categorical denial of the complainant's allegations "holus bolus" as being a good and sufficient reason to acquit him of these charges.

Second Phase of W.D. Analysis

[106] On the second phase of the W.D. analysis, I do not find that the rejected evidence of the accused, in conjunction with the evidence of his father, is capable, in the context of the totality of the evidence, of raising a reasonable doubt about his guilt on either of these charges.

Third Phase of W.D. Analysis

[107] On the third arm of the W.D. analysis, I have carefully examined Ms. Sangha's evidence in the context of the totality of the evidence. I find that she exhibited an obvious degree of sadness and disappointment about the failure of her marriage to the accused when she testified. Although I am giving limited weight to this finding, which is in the category of demeanour and deportment, I nevertheless have included it in the totality of my analysis of the defence theory that she has concocted these allegations out of a motive for revenge against the accused.

[108] I also agree with the Crown that her explanation for not immediately reporting the alleged assaults to the police, because of the disapproval in her cultural background of divorce, to make common sense. I find that explanation to be both credible and also reliable.

[109] Notwithstanding the lack of any medical evidence on the point, I am prepared to find that the marks depicted in Exhibit 3[f] are supportive of the complainant's testimony that the accused had bitten her in that shoulder area of her arm as depicted in the photo during the incident of July 2010. In my opinion, I am permitted to form an opinion about the marks by way of analogy to the principles enunciated by the Supreme Court of Canada in Nikolovski and Graat (supra). They most certainly appear to me to be the shape of teeth and one of the five is offset from the others. The accused agreed in cross-examination that he has an offset tooth in his upper front mouth area.

[110] I also find that the fact that the complainant was willing to concede in cross-examination that the yellow discolouration on her arm depicted in the photo exhibits may have been due to her application of iodine to the area, as opposed to being evidence exclusively of bruising, to bode well for her in my assessment of her credibility. As a corollary point, I also find it to be of some interest that she felt that she should apply some iodine to this area where she has testified that the accused bit her.

[111] In conclusion, I find that there is nothing about the complainant's evidence, considered in the context of the totality of all of the trial evidence, to cause me to find that she was not a credible and reliable witness. Therefore, I do not find that her evidence in any way causes me to have a reasonable doubt about whether the Crown has proven either of these two s. 266 counts beyond a reasonable doubt. On the totality of the evidence, I find that the Crown has satisfied me beyond the requisite reasonable doubt that the accused is guilty of both counts as charged.

[112] I thank both counsel for their well prepared and thorough presentation of this case.

Released: April 4, 2012

Signed: "Justice Frederick L. Forsyth"