Court File and Parties
Court File No.: Central East - Newmarket 4911-998-11-08330-00 Date: 2013-05-15 Ontario Court of Justice
Between: Her Majesty the Queen — and — Parwinder Chana
Before: Justice K.P. Wright
Heard on: April 10, June 28, August 17, 2012 and April 19, 2013
Reasons for Judgment released on: May 15, 2013
Counsel: M. Dionne for the Crown R. Singh for the accused P. Chana
WRIGHT J.:
Introduction
[1] Parwinder Chana comes before this court charged with one count of domestic assault and one count of unlawful confinement. Both charges stem from an incident that took place on September 15, 2011 between himself and his wife at the time, Jaswinder Chana.
[2] The trial of this matter was heard over the course of three days; April 10, June 28 and August 17, 2012. Counsel made their final arguments on April 19, 2013 and the matter was put over to today for judgment.
[3] This is my judgement.
Brief Overview of the Evidence
[4] I will now give a very brief overview of the evidence. I will further develop the evidence when necessary in my analysis.
[5] Jaswinder Chana came to Canada from India in 1997 to marry Parwinder Chana. At the time of this incident they had been married 13 years and had four children as a result of that union.
[6] There is no dispute that by September 15, 2011 the relationship between this couple was replete with argument and tension. The marriage had been deteriorating for some time and on this particular day, after the older children had gone to school, Mr. Chana returned home so he and Jaswinder Chana could discuss their situation.
[7] Jaswinder Chana testified that when Mr. Chana returned that morning things got heated between the two quickly. She said that Mr. Chana was demanding that she leave the house and that he did not want to see her face again. She said he pushed her shoulder, spit in her face and threw a knife and plate at her. She said she grabbed his cell phone and ran into the garage in an attempt to leave the home. She said he ran after her and closed the garage door, preventing her from leaving, and then grabbed her by the hair and forced her back into the house. She said he let go and she fell on the step that goes into the living room and as a result got a bruise on her arm. She said at one point Mr. Chana was holding both her arms. When he finally let her go he went outside the premise and waited for the police to arrive.
[8] Mr. Chana testified that when he returned to the home on the morning of September 15, he sat on the couch watching television with his son when Jaswinder Chana threatened to break his legs and ruin his life. He said when he told her he was recording what she said she became upset and attempted to get his cell phone from him. He pushed her away and she began to punch him in the neck. He said he fell to the floor and it was then that she took his cell phone. He said at one point, in an effort to get his phone back, he put her in a bear hug, but she was still pushing and punching him. He said when she ran into the garage he followed and again used one arm to bear hug her and the other to get his phone, all the while she was still pushing and punching him. Once he retrieved his phone he went back to the living room and sat down. He said when Jaswinder came back into the living room, it was then that she ripped his shirt. He said after that she went out to his motor vehicle and bent his licence plate.
The Principles to be Applied
[9] The principles to be applied in this case are the same as those to be applied in any criminal trial.
[10] In this case, Parwinder Chana is presumed to be innocent, unless and until the Crown has proven each essential element of the offence beyond a reasonable doubt.
[11] Reasonable doubt is based upon reason and common sense. In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. W.(D.), [1991] C.C.C. (3d) 397:
First, if I believe the evidence of Mr. Chana, I must acquit.
Second, if I do not believe the evidence Mr. Chana, but am left in reasonable doubt by it, then I must acquit.
Third, even if I am not left in doubt by the evidence of Mr. Chana I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt.
Analysis
[12] I will first turn to the evidence of Jaswinder Chana.
[13] Mrs. Chana testified over the course of two days. She came to Canada from India 13 years ago. Although Punjabi is her first language, I was sufficiently satisfied that she could speak and understand English and did not need the assistance of an interpreter. An interpreter was, however, present for her assistance if the need arose.
[14] Mrs. Chana was visibly upset at different times during her testimony. This of course is completely understandable given the nature of her testimony. These are personal and difficult things to speak of and, to her credit, despite being overwhelmed with emotion she remained thoughtful and respectful to both counsel at all times.
[15] Mrs. Chana was also a very animated witness. In examination in-chief she described with precision detail the entire incident from start to finish. She described the assaults, the words used, her movements, and Mr. Chana's movements. I have to admit that initially it all seemed very persuasive and compelling.
[16] However, as her testimony wore on some cracks began to appear. Some of the details began to change. She didn't tell the police in her video statement that Mr. Chana spit in her face. It was in cross-examination when for the first time she said that she probably did rip Mr. Chana's shirt. She didn't tell the police in her video statement that she took his phone to call 911. In fact her evidence on this point only got more and more confusing. Initially she testified that she took the phone because he was recording, which if true begs the question why would she worry about what he was recording unless it was going to reflect poorly on her. Then she said she took it because she was scared and wanted to call 911. While this is a somewhat more understandable explanation, it makes her testimony that she was really afraid of him less believable.
[17] In my view, Mrs. Chana's evidence got more confusing and more difficult to follow as it went on. I don't think she was intentionally attempting to mislead the court, in fact quite the opposite; I think she was doing her best to recall the events of September 15, 2012. However, it is her ability to recall that concerns me. Her reliability is very much in issue. I am aware that many things can impact on a person's ability to accurately recall an incident; the passage of time, the amount of emotional trauma suffered at the time or after the event. The list is an endless one; the result however is the same. The quality of Mrs. Chana's evidence did not reach the standard of proof beyond a reasonable doubt.
[18] Although it is not necessary for me to continue my analysis, I do feel compelled to mention the evidence given by Mr. Chana. I did not find his evidence to be particularly compelling or persuasive. In many ways his evidence made no sense and was not believable.
[19] However, as I stated earlier, it is not for Mr. Chana to prove his innocence, it is for the Crown to prove his guilt beyond a reasonable doubt.
[20] I find that the Crown has not met that onus today and, as a result Mr. Chana, I find you not guilty on counts 1 and 2.
Released: May 15, 2013
Signed: Justice K.P. Wright