ONTARIO COURT OF JUSTICE

DATE: 2014·02·05

COURT FILE No.: Brampton Information #00357

Citation: R. v. Chand, 2014 ONCJ 63

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RAKESH CHAND

Before Justice P.F. Band

Heard on January 24, 2014

Reasons for Judgment released on February 5, 2014

Ms. C. Sibian ........................................................................................... counsel for the Crown

Mr. S. Virk ......................................................... counsel for the defendant Mr. Rakesh Chand

BAND J.:

[1] Mr. Rakesh Chand is charged with committing an assault on his wife, Ms. Heena Klair Chand and uttering a threat to cause her death, on March 23, 2013. The incidents are said to have occurred shortly after noon in their bedroom in the basement apartment they shared with Mr. Chand’s mother, brother, sister-in-law and niece. They were sparked by a dispute surrounding Mr. Chand’s cellular phone.

[2] The Crown’s evidence consisted of Mrs. Chand’s testimony. Mr. Chand testified on his own behalf, and denied the allegations. In fact, he testified that he had been the victim of assault at her hands on that date. Both of them testified through the Punjabi interpreter.

[3] The case is a “he said-she said.” That is, the Crown’s entire case depends on the credibility of Ms. Chand. Implicit in the arguments of counsel is the view that, if I am convinced beyond a reasonable doubt of Mrs. Chand’s allegations, then findings of guilt for assault and utter threat must follow. Put another way, the defence did not challenge the elements of the offences, if proven.

[4] I begin by observing the central principle of our criminal law that Mr. Chand benefits from the presumption of innocence throughout the proceedings. The corollary to this principle is that the Crown bears the burden of proving Mr. Chand’s guilt beyond a reasonable doubt. That burden never shifts to Mr. Chand.

[5] If the Crown is unable to do prove Mr. Chand’s guilt beyond a reasonable doubt, he must be found not guilty.

[6] I direct myself pursuant to R. v. W.D. (1991), 1991 93 (SCC), 63 CCC (3d) 397 (S.C.C.), as follows:

a. First, if I believe Mr. Chand’s evidence, obviously I must acquit.

b. Secondly, if I do not believe Mr. Chand’s testimony but am left in reasonable doubt by it, I must acquit.

c. Thirdly, even if I am not left in doubt by Mr. Chand’s evidence, I must ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. Chand’s guilt.

[7] As the Supreme Court of Canada has stated in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23, in a case such as this, which turns solely on credibility,

…the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt.

[8] In doing so, I am permitted to assess Mr. Chand’s evidence in light of the whole evidence, including the testimony of the complainant, and in so doing, comparing the evidence of the two of them: see R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 (C.A.).

Background

[9] To properly understand the events of March 23, 2013, it is important to understand Mr. and Mrs. Chand’s background. The following facts are not controversial.

[10] Rakesh Chand and Heena Chand grew up in India. Mr. Chand came to Canada before he met Mrs. Chand. In 2012, Mr. Chand went to India to be married to Mrs. Chand. The two met approximately 2 weeks prior to the marriage, which was described as “semi-arranged.” That is, a marriage that was not based on love. He returned to Canada shortly after the marriage, and began the process of sponsoring his wife to come join him. She arrived alone, some 10 months later, in January 2013. Her family remained in India, and she has no family in Canada.

[11] Between her arrival in Canada and March 23, the couple lived in the basement apartment with other members of Mr. Chand’s family. Mr. Chand worked as a security guard. Mrs. Chand stayed at home. Mr. Chand had a cellular phone, which he would take with him to work. Mrs. Chand did not have a cellular phone, but was allowed to use Mr. Chand’s or his mother’s from time to time.

The Evidence

Evidence of Heena Chand – in-chief

[12] Mrs. Chand testified that while she has no family in Canada, she was aware that people from her native village lived in the community.

[13] Mr. Chand was very nice to her for the first week or so after her arrival in Canada. Then, after about 10 days, he began to rebuke her, prevented her from leaving the home and from speaking to her parents. She testified that for no reason, Mr. Chand beat her up and wanted her out of the house. She denied that Mr. Chand had any “issues” with her parents.

[14] Specifically, Mrs. Chand testified that on March 23, shortly after noon, she was sitting on her bed when Mr. Chand’s cellular phone rang. She thought it was her parents calling from India, so she took hold of the phone. Mr. Chand immediately grabbed it from her and pushed her on the bed, saying “you can’t put hands on my phone.” She fell backwards and struck her back against the headboard. This caused her to feel pain in her back.

[15] Then, Mr. Chand’s phone rang again. She stood up and tried to answer it, but Mr. Chand took it from her again, saying that she could not put her hand on his phone or he would kill her. She responded “you can’t kill me” and Mr. Chand grabbed her neck with his left hand, pushed her downwards so that she was again seated on the bed, and slapped her on the left cheek two or three times using his right hand. He was in a rage at that time. She testified that the hold of her neck was not so strong as to prevent her from being able to escape.

[16] She pushed him backwards and ran out to seek help from the landlord, who lived upstairs. Mr. Chand followed her, and caught up to her as she was two or three steps from the top of the staircase. He pulled her from behind, by the shoulders, which caused her to fall to the stairs. The landlord intervened and told Mr. Chand not to do that and that the two should sit down and talk.

[17] Using her own cellular phone, Mr. Chand’s mother then called her other son to tell him that Mr. Chand was fighting with his wife, and that he should come. Mrs. Chand wanted to speak to her brother-in-law, so she took the phone, locked herself in the bedroom and called 911. She experienced pain, but did not suffer any injury.

Evidence of Heena Chand – cross-examination

[18] In cross-examination, Mrs. Chand denied that she had any idea in her mind of coming to Canada until she met Mr. Chand. She also denied any plan of sponsoring other members of her family to immigrate to Canada. She testified that her mother-in-law rarely let her use her cellular phone, but would allow her to from time to time if her parents called. She testified that she was told not to tell her parents about things that were happening at home.

[19] Aside from two or three times – when she was taken to get a bank account, a health card and to a store – she was never allowed out of the house to shop or run errands. She was like a captive. She explained that she had never been introduced to the landlord, but that approximately 15-20 days prior to the incidents in question, when the family had gone for groceries, she told him that her husband was beating her. He advised her that he would help her if it happened again.

[20] It was put to her that Mr. Chand had assaulted her in the past, and that she was being beaten “repeatedly.” Quite forcefully, Mr. Virk pursued this line of questioning by suggesting to her that she could have left the apartment and sought help from people from her village. She responded that she did not know their phone numbers or addresses.

[21] She also acknowledged that she had not told police that she was “captive” during her interview on videotape. She explained that this is because she was just asked about the events of the particular incident of the day in question, and that her only concern was to save herself at that point.

[22] Mrs. Chand testified that Mr. Chand had only made one threat to her – that is, “if you put your hand on my phone again, I’ll kill you.” She denied telling police that Mr. Chand had threatened to kill her if she called police, but upon being reminded of the contents of her 911 call, she responded that this had been a second threat. She acknowledged that she had not mentioned this second threat in her subsequent statement to police on video. She explained that she did not repeat it to police because she was really upset, nervous and scared at the time.

[23] She explained that when Mr. Chand had assaulted her previously, police came to the house. The assault consisted of Mr. Chand trying to push her out of the house while accusing her of being unfaithful. She told police that Mr. Chand would approach her as if he was going to hit her. This was “concerning very small things.” She told police that she was afraid of him. No charges were laid, but police told him to leave and warned him not to remain in the house. He did not listen to them, and returned after two days.

[24] In response to questions about Mr. Chand’s motives, Mrs. Chand said that she was unable to understand his reasons, but that he abused her and her parents. She was confronted with the fact that she had earlier testified that Mr. Chand had no “issues” with her parents, and explained that her parents had no problem with him but that he had problems with them. They remained in India throughout. But in front of her, he would abuse or curse them.

[25] She agreed that she did not show the police any injuries, and added that this was because there was no blood, just pain.

[26] When asked if Mr. Chand was injured, she responded “I just pushed him.” Again, in response to the question “no marks, no scratches, no nothing?” she responded “No, I just pushed him.”

[27] In response to the suggestion that it was she who assaulted Mr. Chand, Mrs. Chand responded “No way! I can’t! I did not! No, I just pushed him away to save myself and I went out for help from [the landlord].”

Evidence of Rakesh Chand – in-chief

[28] After eliciting some background information from Mr. Chand, Mr. Virk asked him what his relationship with his wife was like in the first two months after her arrival in Canada. In response, Mr. Chand asked whether Mr. Virk meant their “sexual or conversational” relationship.

[29] When directed to describe their conversational relationship, Mr. Chand explained that he was working night shifts at the time, and that his wife would be at home. He denied that her freedom to leave was restricted. He testified that she had gone with him to do groceries as well as with his parents, but that he had not taken her to any other places.

[30] He agreed that she had no cell phone, but that she had access to his when he was at home and to his mother’s as well.

[31] In response to whether he knew about other people from her village, he said that “I have family. I don’t know anything about people from her village.”

[32] In relation to the incident in question, Mr. Chand testified that he returned from a nightshift at approximately 10 a.m., ate lunch and went to his bedroom. It was then that his phone rang. He knew it was Mrs. Chand’s parents. He handed the phone to his wife and told her that he had just finished the night shift, was tired and wanted to sleep. He asked her to please go out and talk on his mother’s phone. In doing so, he advanced towards her. She pushed him, and he struck his forearm against the headboard as he fell, causing a scratch. He moved towards the door to hang his clothes up and asked her to go talk on his mother’s phone. She pushed him again, and he struck the same forearm on the door frame. She ran out and called the landlord. He told her “don’t run outside.”

[33] At the time, Mr. Chand’s mother was near him, and the door was open. She saw everything.

[34] Mr. Chand denied physically touching Mrs. Chand in any way that day, as well as assaulting her at any time in the past. He also denied threatening her.

Evidence of Rakesh Chand – cross-examination

[35] Mr. Chand was cross-examined at some length concerning his position when he was first pushed by Mrs. Chand. In response to certain pointed questions like “when she first pushed you, were you near the bed?” Mr. Chand responded by reiterating much of the substance of his evidence in chief. By and large, his evidence about the altercation remained consistent throughout.

[36] During the course of cross-examination on the specifics of the altercation, Mr. Chand was asked to make marks on Exhibit 1, which was Mrs. Chand’s drawing of the bedroom. As he did so, Mr. Chand declared “she used me to come to Canada.” This was unsolicited.

[37] The Crown closed her cross-examination by asking Mr. Chand “if she had your cell phone, why did she have to use your mother’s to call the police?” He replied that “she had the phone, I handed it to her, she ran away and after coming there she just used my mother’s phone to call police.”

[38] Mr. Virk did not re-examine Mr. Chand. As Mr. Chand got up from the witness stand, he stated “she just used me to come to Canada. My mom is a witness, but I don’t need her.” This, too, was unsolicited.

Agreed Statement of Facts

[39] Counsel agreed that, during his videotaped interview with police on March 23, Mr. Chand showed them injuries to his left forearm.

Credibility

[40] In assessing credibility, it is important to determine whether the witness is honestly endeavouring to tell the truth, is sincere and frank, or whether he or she is biased, reticent and evasive. Where the Crown’s case depends entirely on the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented: R. v. White (1947), 89 C.C.C. (S.C.C.) 148 at page 151; R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. CA).

[41] I have considered the evidence of both Mr. and Mrs. Chand in the context of each other’s and the burden of proof. As counsel put it, they diverge almost diametrically in relation to the altercation.

Evidence of Rakesh Chand

[42] For the following reasons, I did not believe Mr. Chand’s evidence. In my view, Mr. Chand showed a strong animus against the complainant throughout his testimony, beginning at the very earliest stages. In asking his counsel if, by relationship, he meant “sexual or conversational”, Mr. Chand betrayed a disdain or dissatisfaction for his wife, with whom he had spent less than 3 months in person. Their sexual relationship could not possibly have had any bearing on any issue in this trial, and was not pursued by counsel. I also find that this disdain or dissatisfaction tends to support Mrs. Chand’s evidence that Mr. Chand began to abuse her and try to throw her out while accusing her of being unfaithful, and that she could not understand why.

[43] On two occasions, both unsolicited, Mr. Chand saw fit to accuse his wife of using him to come to Canada. This is in contrast to Mrs. Chand’s evidence, in cross-examination, that coming to Canada had not been in her mind until she met Mr. Chand. Mr. Virk did not press the issue and did not ask Mr. Chand about it during his evidence. I find as a fact that Mrs. Chand did not do so, and that Mr. Chand’s assertion that she did was an attempt to cast her in poor light.

[44] I found that Mr. Chand’s unsolicited assertion that his mother saw everything and could testify – but that he did not need her to – was an attempt to bolster his own credibility and cast Mrs. Chand’s in poor light. The defence did not call Mr. Chand’s mother to testify.

[45] The Ontario Court of Appeal has recently held that an adverse inference about the accused’s credibility was available to a trial judge in very similar circumstances: see R. v. N.L.P. 2013 ONCA 773. It is important to note that even where an adverse inference is drawn, it cannot be used to bolster the Crown’s case.

[46] In this case, I would not go so far as to draw an adverse inference. I simply find that Mr. Chand’s mother’s evidence would not have assisted him. In other words, I must decide this case based on the evidence before me.

[47] While Mr. Virk acknowledged that Mr. Chand’s lengthy and repetitive answers to the Crown’s questions could be seen as “evasive or ambiguous,” he urged me to find that they were a function of his “instinct … to keep telling his story entirely” and that he had withstood cross-examination. I found that those answers by Mr. Chand were unresponsive and evasive. They were his attempt to remain “on message.”

[48] I also find a central aspect of Mr. Chand’s evidence to be implausible. On his version of events, it simply does not make sense that his wife would use her mother-in-law’s cellular phone to call police when he had given her his to use.

[49] Mr. Virk urged me to find that the injuries to Mr. Chand’s arm corroborated his version of events. I disagree. I do not believe Mr. Chand’s version of events.

[50] By itself, Mr. Chand’s evidence does not raise a reasonable doubt in my mind. But that is not the end of the inquiry.

Evidence of Heena Chand

[51] I found Mrs. Chand to be a credible and reliable witness who was doing her best to tell the truth. She did not exaggerate or embellish, even when the opportunity presented itself. I would refer to two instances in particular: she denied being injured in any way, and also admitted, during examination-in-chief, that Mr. Chand’s hold on her neck was not so forceful as to be inescapable. I also find that Mrs. Chand’s denial that she was the aggressor was credible. She appeared to be genuinely shocked and surprised at the suggestion, and I saw this as sincere.

[52] Mr. Virk urged me to question her evidence on the basis that she did not show the police her back. I believe Mrs. Chand’s evidence that the altercation caused her pain but no injuries (visible or otherwise). The absence of injury can be telling where the degree of violence is so high that injuries must have resulted from it. This is not such a case. I believe Mrs. Chand that being pushed against the headboard of the bed caused her pain but no injury. I also believe her that she was not injured by the slaps to her face.

[53] Mr. Virk urged me to find that Mrs. Chand’s testimony about the prior police involvement was telling against her credibility because, on her version, police did not lay a charge despite the fact that she alleged a domestic assault and claimed to be in fear of her husband. During submissions, Mr. Virk agreed that he was asking me to take judicial notice of the fact that in those circumstances, the Peel Regional Police Service would always lay charges. He further submitted that that fact made Mrs. Chand’s account “difficult to believe.”

[54] According to the authors of McWilliams, “there is no judicial authority for taking notice of disputed facts.”[^1] According to the Supreme Court of Canada’s decision in R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 at 115 and 123, a condition precedent to taking judicial notice of a fact is that it must be “beyond reasonable debate.” The proposition that the Peel Regional Police Service would always lay charges in the situation described was not admitted by the Crown. It constitutes a disputed fact and is certainly not beyond debate. I decline to make that finding. This argument has no impact on Mrs. Chand’s credibility.

[55] I would add that Mr. Chand was not asked about any prior police involvement, much less whether he had been told to leave his own home. He was clearly in a position to give evidence on this point.

[56] Mr. Chand does not bear any burden to disprove the Crown’s evidence. But where the accused, who testifies, does not contradict the complainant with evidence that is entirely known to him, the trial judge is left with the complainant’s evidence. On this point, I believe Mrs. Chand.

[57] Mr. Virk submitted that Mrs. Chand’s evidence contained two important inconsistencies. The first is that she omitted to testify about the threat “if she called police” until it was put to her that she had alleged just that in the 911 tape. This is compounded, according to Mr. Virk, by the fact that she did not reiterate this particular threat in her subsequent videotaped interview.

[58] I do not find this to be an inconsistency in the sense of giving contradictory or irreconcilable evidence on two different occasions. Mrs. Chand provided this evidence to police during a 911 call. She explained that she did not mention it in the subsequent interview due to her emotional state at the time, but agreed that it had happened once her memory was refreshed at trial. Even if it is an inconsistency, in the sense that she testified that only one threat was made until her memory was refreshed, I find that it was a function of forgetfulness and stress which were natural in the circumstances. I believe her that that threat was made in addition to the one in the bedroom. I also find that such a threat was motivated by Mr. Chand’s previous interaction with police.

[59] The second inconsistency is said to lie in the fact that Mrs. Chand initially denied that Mr. Chand had “issues” with her parents, but later explained that these were manifest only with her. I find that the use of the word “issues” in the Crown’s question was vague. It is a word that is often used in our society in many contexts, such as “mental health issues” or simply “he has issues.” It is imprecise in the extreme. I do not know how it could be translated into Punjabi with any more precision. And I would pause here to note that the initial question had been put to Mrs. Chand through an interpreter whose abilities were subsequently called into question and who was replaced at the lunch hour.

[60] Finally, Mr. Virk urges me to disbelieve Mrs. Chand’s account that she was “captive” because she had opportunities to leave and did not describe herself that way to police. First, I did not interpret Mrs. Chand to be claiming that she was a shackled prisoner. I interpreted her description as that of a person who is very isolated. Mrs. Chand had no family or friends of her own in Canada. She had no cell phone. Her husband worked long hours. She was unemployed and stayed home. She lived with his family in a basement apartment in a new country. She spoke very little English.

[61] Mr. Virk described her as “back pedalling” when she testified that she had not sought help from people from her native village because she did not know their addresses or telephone numbers. I disagree. I believed Mrs. Chand on this point. What is more, I find that Mr. Chand’s own evidence tended to confirm Mrs. Chand’s assertion. He testified that he knew nothing of people from her village. Given that she was dependant on Mr. Chand and his mother for the use of a phone and that all of them lived in such close confines, I find that he would have known something about those other people had Mrs. Chand known their contact information.

Conclusion

[62] For the reasons articulated above, I am convinced beyond a reasonable doubt that Mrs. Chand was testifying truthfully. I reject Mr. Chand’s evidence where it conflicts with Mrs. Chand’s. After having reviewed the evidence in its entirety, I am not left in a state of reasonable doubt by Mr. Chand’s evidence.

[63] Therefore, I find Mr. Chand guilty as charged.

Released: February 5, 2014

Signed: “Justice P.F. Band”

[^1]: Hill, S. Casey, David M. Tanovich and Louis P. Strezos, eds., McWilliams' Canadian Criminal Evidence, looseleaf, 5th ed. (Aurora, Ont.: Canada Law Book, 2013), p. 26-25