Court File and Parties

Court File No.: Central East - Newmarket 4911-998-10-09043-00

Date: 2012-09-04

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Rakesh Kamboj

Before: Justice P.N. Bourque

Heard on: October 3, 2011, November 22, 2011, and May 7, 2012

Reasons for Judgment released: September 4, 2012

Counsel:

B. McCallion for the Crown

G. Cook for the accused Rakesh Kamboj

Judgment

BOURQUE J.:

[1] The defendant is charged with three counts of assault, one upon his stepson, and the others upon his wife.

[2] A woman and her child were sponsored to come to Canada, to complete the arranged marriage with the defendant. They lived together as man and wife for about one month. In that time they were actually together in the home for five or six days. The Crown asserts that for those five or six days the defendant was abusive in many ways, including telling his wife to leave, swearing at her, calling her and her son names and, on several occasions, grabbing and pushing her. The defendant asserts that he brought his wife to Canada at great expense and wanted to have a family life and, beyond her missing her parents and her home in India, things were normal. Because of his job as a long distance trucker, he was away from the house for most of the time.

[3] The Crown bears the burden at all times of proving the allegations beyond a reasonable doubt.

Rahul Kamboj

[4] This witness is nine years old. He came to Canada with his mother sometime in August of 2010 and said that when he first came things were going well.

[5] He related an incident when he was watching T.V. and his stepfather (the defendant) came to him and punched him two times, took the remote control from him and knifed him.

[6] He also stated that on one occasion the defendant pushed his mother down when she was holding him. He says that he was not hurt, but his mother was.

[7] The witness gave his evidence (not unexpected for a nine year old) in a very disjointed manner. In cross-examination it was pointed out that in his statement to the police he said only that he was punched once and there was no reference to any other assault. It was also pointed out that he did not cry when he was punched, although he said he was punched hard.

[8] In analyzing the evidence of one so young, I am mindful of the fact that it has the same force and effect as if given under oath (s. 16.1 of the Evidence Act). I am further mindful that the lapses of memory in a nine year old should not be given the same treatment as lapses of memory in an adult. I also discount his demeanour for most of the testimony; being in a room of adults and answering questions at so young an age would clearly cause some reactions which may be difficult to understand.

[9] Where the witness' testimony gives me the greatest difficulty is in comparing it to his mother's and in some of his choice of words. In his statement to the police he stated at the outset that he had been "tortured" by the defendant. Somehow I can't help but feel that he and his mother had discussed the matter in some length before.

[10] Just after the close of the Crown's case, the Crown asked me to dismiss the charge of assault against the son, Rahul. For the difficulties I have with the son's evidence, I do so.

Sunita Kamboj

[11] This witness is the wife of the defendant. She was married to him in India five years ago and, before coming to Canada in August of 2010, she had spent a total of 25 days with him on two occasions. She said when she came to Canada, with her son from a previous marriage, that things seemed good for the first few days. Then, she said, he became angry and was "abusing" her.

[12] She stated that they were living together in a basement apartment with the defendant's two sons (19 and 21 years old) and the defendant's sister. She stated that this was the second marriage for both her and defendant.

[13] Her evidence was that one time, when she was getting her son ready for school, the defendant came to her and told her to leave and pushed her arm. She said it hurt.

[14] She described another occasion where she says that her husband pushed her while she was holding her son and that she fell down.

[15] She says these events happened in September, some 10 days before she went to the police.

[16] In cross-examination, it became clear that there were a lot of issues around their marriage and her coming to Canada. She had an uncle come to pick her up at the airport when she came to Canada. This was never really explained. She also did not explain why the defendant was angry with her. For her this was almost a litany of abuse from her first appearance in Canada.

[17] This witness says that she did not feel accepted by the defendant, her husband, and this was the source of a lot of the tension in the marriage. She would repeat several times in cross-examination that he kept telling her to leave.

[18] The defendant was a long distance truck driver and was away from her and her child for extended periods of time. She made the statement, "He would come home for a few days and abuse me and then go away." She did not say what type of abuse it was. I can only assume it was not physical as she did not give any other details.

[19] When the complainant first went to the police she was concerned a lot about her welfare and only spoke of abuse much later in the statement in response to a direct question. She also told the police that she thought the defendant had actually moved out of the apartment they were staying in, and she became aware of this some two days before going to the police.

[20] She admitted that he had spent about $10,000 to have her come to Canada. She denied the defence suggestion that she had used him to get into Canada and this assault allegation was a means to get away from him and get resources here.

Rakesh Kamboj

[21] The defendant testified on his own defence. He stated that he paid about $10,000 in various fees to bring his wife from the arranged marriage to Canada. He stated that he brought her and her son to his sister's house (where they were to live) and there was a happy party on her arrival. He testified that they were together for a day or so and he left on the 19th of August for his trucking route. He denied ever harming the son on that day or any other day.

[22] He had his log book to confirm his comings and goings.

[23] The defendant denied ever assaulting his wife, or even getting angry at her. When asked whether there were any difficulties, he simply said that his wife missed her parents and her home. He thought that by living with his sister (he moved there just before his wife came to Canada) it would be easier for his wife to adjust to living in Canada.

Annapurna Sahi

[24] Annapurna Sahi is the first cousin of the defendant. It was to her home that the defendant came to live and bring his new wife and her child. She confirmed that they had a party to welcome her when she came to Canada, and also confirmed the living arrangements.

[25] She confirmed that she had made efforts to assist the complainant and her child and went shopping and helped her to look for training as a nurse. She did not see or hear any arguments or harsh words between the defendant and the complainant.

[26] She gave her evidence in a forthright manner. When pressed by the Crown about the familial arrangements, and insinuating that her loyalty to the defendant would compel her to lie, she responded by saying, "I have come here to say the truth." In all respects I have no reason to doubt the truthfulness of her assertions. Her evidence does not afford a complete defence to the defendant, but it does support his contention that he did indeed wish to have his wife and child come to live with him in Canada and the family was prepared to assist her in adjusting to life in Canada. She contradicts in many ways the assertions by the complainant that she was almost abandoned by the defendant and his family.

Analysis

[27] According to the case of R. v. W.D., 63 C.C.C. (3d) 397, I must assess the defendant's evidence and determine if I believe it and, even if I do not believe it, does it leave me with a reasonable doubt and, if not in doubt, I must still assess the evidence that I do accept to decide if the Crown has proven the case beyond a reasonable doubt.

[28] It was the defendant's contention that he wanted his wife to come to Canada so he could have a new family. He denied the Crown's suggestions that he had somehow changed his mind. He denied treating the complainant in the way she had described. He denied assaulting her. The Crown pressed the defendant on the amount of money that he had spent on the immigration process, and wondered why he brought no invoices to prove the amounts spent. I am prepared to concede that he may have exaggerated his financial commitment in this regard, but I accept his main point that he had spent some significant funds to get her and her son into Canada, and therefore there was no reason for him to drive her away.

[29] He asserted (through his counsel) that she may have used him to get to Canada and then leave him. I am not entirely convinced that this was the case; however that issue need not be decided by me. In fact, the Crown's contention that he really did not want her to come is not something I need to decide either.

[30] Ultimately, his evidence was not seriously shaken by the Crown. Even if I do not accept all of his evidence, it would be difficult for me to not have a reasonable doubt after hearing his evidence and the evidence of his cousin.

[31] I accept that the complainant stuck to her story in the witness box. I am concerned about what her real motives were in attending at the police. It seemed to me that she felt abandoned and adrift and went to the police because she had nowhere else to turn with these feelings. It is entirely possible that she was subject to abuse by the defendant, and certainly possible that he pushed her when she was holding her child. I have already commented on the difficulty I have with the child's evidence in this matter and I cannot accept it as any real corroboration of the complainant's testimony.

Conclusion

[32] As a result, I find that after review of the defendant's evidence I am left in a state of doubt and am also in doubt when I consider the complainant's evidence in isolation.

[33] Being in such doubt I must acquit the defendant of the remaining charges and I do so.

Released: September 4, 2012

Signed: Justice P.N. Bourque