Court File and Parties

Date: October 7, 2016

Court File No.: Brampton 15-13682

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Harveer Binepal

Before: Justice Paul F. Monahan

Heard on: September 15, 2016

Reasons for Judgment released on: October 7, 2016

Counsel:

Mr. R. Levan — counsel for the Crown

Mr. R. Christie — counsel for the defendant Harveer Binepal

MONAHAN J.:

Introduction

[1] Mr. Harveer Binepal is charged with the following, all of which relate to events alleged to have occurred on or about October 29, 2015:

i) theft of a cellphone of Kanwaljit Ghumman, an item having a value not exceeding $5,000.00 (contrary to s.334 (b) of the Criminal Code of Canada (the "Code");

ii) assault on Kanwaljit Ghumman (contrary to s.266 of the Code);

iii) unlawful confinement of Kanwaljit Ghumman (contrary to s.279(2) of the Code);

iv) uttering a threat to kill Kanwaljit Ghumman (contrary to s.264.1(1) (a) of the Code).

[2] The trial was held on September 15, 2016. The Crown called three witnesses: Ms. Kanwaljit Ghumman (the complainant); Mr. Zachary MacDonald (a neighbour of Ms. Ghumman and Mr. Binepal's), and Officer Renee Lirette, a Peel Regional Police officer who dealt with Ms. Ghumman on October 29 and 30, 2015. The defence called no evidence.

[3] After the evidence was heard, the Crown advised that it was not seeking a conviction of the theft charge, given the lack of evidence on the point. That leaves the assault, the unlawful confinement and threat charges. It is the position of the Crown that the three remaining charges have been proved beyond a reasonable doubt. It is the position of the defence that none of the remaining charges have been proved beyond a reasonable doubt.

[4] In particular, it is the position of the defence that the unlawful confinement has not been proved beyond a reasonable doubt and that the evidence is equally consistent with no confinement at all. As concerns the threat charge, the defence submits that the evidence does not establish beyond a reasonable doubt that the threat was made. As concerns the assault charge, the defence submits that the facts of the assault have not been proved beyond a reasonable doubt and that, if they have been so proved, the defendant acted in self-defence.

Facts and Evidence

[5] I will give a brief overview of the evidence. Some of the facts were not contested. I will address the findings of the contested facts in the analysis section below and I may also expand upon some of the facts in that section of my reasons.

[6] As concerns the uncontested facts, it was common ground that Ms. Ghumman and Mr. Binepal were living as husband and wife on October 29, 2015. At that time, there were some concerns they both had as to whether or not the relationship would continue.

[7] They had had some form of verbal argument a few days before October 29, 2015 and were barely speaking to one another on October 29, 2015 although they were still living together.

[8] On October 29, 2015, Ms. Ghumman made dinner for the two of them. Afterwards, Mr. Binepal went upstairs to the bedroom. Ms. Ghumman followed him. She entered the bedroom and Mr. Binepal was apparently on the bed. He was videotaping her with the video camera on his phone. It is unclear as to why he was videotaping her but based on my review of the videos and what is said on them, it appears to be an attempt by Mr. Binepal to have an independent record of their interaction. As she approached him, he filmed two video clips which were introduced as exhibits at trial. The first video shows her slapping his phone and perhaps Mr. Binepal's head or some other part of his body apparently trying to stop him from videotaping her. Part of the subsequent audio sounds like a scuffle between them which is not depicted on the video.

[9] In the second video, apparently taken shortly after the first, he says to her that she is slapping him and she says to him that he is touching her and it is clearly depicted on the video that he is grabbing her forearm. She appears to slap his phone. Towards the end of the video she asks him, "Do you want to make it work yes or no". He says, "No". She says, "I'm going to call".

[10] At trial she testified that nothing had happened as of the completion of the events depicted on the second video and that she was going to call the police at that point. When asked by the defence at trial as to why she was going to call the police at that point in time, she said "to get him in trouble."

[11] It is common ground that there was an interaction between them (not captured on tape) after the second video clip described above. It is during that interaction after the second video clip that the events giving rise to the criminal charges are alleged to have occurred. Beyond that, the nature and scope of the interaction and whether Mr. Binepal acted in self-defence is contested.

[12] As concerns the disputed interaction, Ms. Ghumman testified at trial that the following occurred, among other things:

1. Mr. Binepal slapped her in the face five or six times with force;

2. He held his hand to her upper chest and neck area and she saw stars;

3. He kicked her in the stomach with his foot or knee;

4. He threatened to kill her by drowning her in a creek or river; and

5. She was unable to leave the bedroom and/or bathroom due to his actions and she opened the window of the bathroom which she considered as a possible form of escape.

[13] It is common ground that Ms. Ghumman left the house by the front door and ran to the neighbour's house in her pyjamas and bare feet. She did not know the neighbour (Mr. MacDonald). The neighbour said that she appeared panicked and upset. Mr. Binepal went to the neighbour's house and calmly asked to speak to her but she did not want to. The police were called.

[14] Officer Renee Lirette met with Ms. Ghumman on October 29, 2015. She said that Ms. Ghumman was crying and upset. Officer Lirette said she saw a red mark on the front of Ms. Ghumman's neck and that the police photographs introduced in evidence otherwise depicted the injuries she saw on Ms. Ghumman that night.

[15] Ms. Ghumman also testified as to the photographs. As concerns the bruising on her upper right arm, she could not say whether it was there before the interaction with Mr. Binepal. The same was true of the marks near her wrist. She said that the significant bruise on the upper left arm was not there before. She also testified to a mark/bruise to the left of her left eye. She did not specifically say whether that injury was caused by Mr. Binepal but it is my view that that was the implication of her evidence taken as a whole including during her cross-examination (i.e. that she was saying that it was caused by Mr. Binepal).

[16] I will make an observation about the nature of Ms. Ghumman's evidence overall and how it came out at trial. Ms. Ghumman was a somewhat reluctant witness in my view. She testified that she currently wanted to reconcile with the defendant. When she came to Court on September 15, 2016, before testifying she reviewed her videotaped statement that she had given to police at the time of the events. She initially testified to the effect that Mr. Binepal had slapped her in the face but she could not remember how many times although she said it was more than once and was with force. In her initial testimony in-chief, she made no mention of the threat to kill her and made no mention of any confinement nor any other alleged aspects of the assault or other charges. Only after reviewing her videotaped statement a second time on September 15, this time in open Court, did she give her further evidence of the alleged assault and related allegations. At that time, she testified that he had slapped her five or six times and threatened to kill her and kicked her in the stomach. She also testified that he held his hand to her neck and chest area and that she saw stars in connection with this alleged event. She gave some favourable evidence to the defence, including that some of the bruises and marks near her hands might have been there before; that she had wanted to get him into trouble with police prior to the alleged events which formed the subject matter of the charges even though nothing had happened; that he may have followed her to the bathroom to see if she was okay rather than confine her; and that perhaps she had not heard the threat at all. As concerns whether she heard the threat she said she thought she heard it but maybe she was just "tripping out".

Legal Framework and Analysis

[17] In order to determine whether the Crown has proved beyond a reasonable doubt the assault, unlawful confinement and threat charges, it makes logical sense to first determine the facts and issues surrounding the assault charge and whether it has been proven beyond a reasonable doubt. Thereafter, I will consider the other charges.

[18] In this case, the defence submits that the assault has not been proved beyond a reasonable doubt. In addition, the defence raises self-defence in response to the assault charge.

[19] Where a defence of self-defence is raised, before the Court takes steps to fully consider it, the Court must first decide whether there is an air of reality to the self-defence point.

[20] When a trial judge determines whether there is an air of reality to a self-defence argument, the trial judge does not make credibility findings, weigh evidence, make findings of fact or draw factual inferences. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury or the trier of fact and not how the jury or trier of fact should ultimately decide the issue: R. v. Cinous 2002 SCC 29 at para. 54. The air of reality test is not a high burden: R. v. Elliott, [2016] O.J. No. 3227 at para. 62.

[21] If there is an air of reality to the defence of self-defence, then the Crown must disprove beyond a reasonable doubt that the defendant acted in self-defence. The Crown can do this by proving beyond a reasonable doubt that one or more of the preconditions for self-defence in s.34(1) of the Code do not apply as follows:

1. Did the accused believe on reasonable grounds that force or a threat of force was being used against him?;

2. Was the act that constitutes the offence committed for the purpose of defending or protecting the accused from the use or threat of force?; or

3. Was the act committed reasonable in the circumstances?

[22] In considering the third point above, the Court must consider (but is not limited to) the factors set out in s.34(2) which include, among other things, the nature of the force or threat; the extent to which the use of force was imminent; whether there were other means available to respond to the use of force; the size, age, gender and physical capabilities of the parties to the incident; the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; and the nature and proportionality of the person's response to the use or threat of force.

[23] Accordingly, in a self-defence case, it must first be determined if there is an air of reality to the self-defence point raised. I consider that the evidence in support of self-defence in this case is thin. However, given the low standard that exists to raise the defence of self-defence, I am prepared to consider the self-defence argument raised on the basis that there is an air of reality to it in this case. That air of reality is based on the evidence as a whole, including:

1. The two short video clips and related evidence of Ms. Ghumman where she hits Mr. Binepal's phone and person;

2. The acknowledgment by Ms. Ghumman with respect to the video evidence prior to the alleged slapping and chest/neck incident, that Mr. Binepal was trying to restrain her from hitting him; and

3. Some evidence Ms. Ghumman gave in testifying to the events after the video clip (when the alleged assault is said to have taken place) to the effect that Mr. Binepal was trying to restrain her motions and was holding her down.

[24] Continuing with the legal framework to be applied in this case, the question arises as to how the self-defence issues fit with the W.(D.) test.

[25] The W.(D.) test is well known and is set forth in R. v. W.(D.), [1991] 1 S.C.R. 742 at para. 28. It is common ground that the W.(D.) test applies even where the defendant has not testified as was the case here. The defendant can point to any conflicting evidence in the Crown's case or the defence's case to support the argument that there is a reasonable doubt or to support the argument that the Crown has not proved the case beyond a reasonable doubt. The onus remains on the Crown at all times to prove guilt beyond a reasonable doubt. The onus never shifts the defence.

[26] The Ontario Court of Appeal dealt with the relationship between self-defence and the W.(D.) test in R. v. Reid (2003), 65 O.R. (3d) 723. Justice Moldaver, as he then was, for the Ontario Court of Appeal, had the following to say at para. 72:

I would suggest that in future cases, when the defence of self-defence is raised and the trial judge believes that a W.(D.) instruction is warranted, the jury should be instructed along these lines with respect to the first two principles:

1. If you accept the accused's evidence and on the basis of it, you believe or have reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

2. Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

[27] I note as well that a defendant who acts in self-defence is not expected to judge the force used to a nicety: R. v. Elliott, supra at para. 70 citing R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont.C.A.).

[28] Finally, I note that in assessing the self-defence issue and the reasonableness of a defendant's response, it is the nature of the force used and not the consequences of the force used which bears on the question of self-defence: R. v. Kandola (1993), 80 C.C.C. (3d) 481 at 488-89 (B.C.C.A.). So the Court does not simply look at the injuries caused and simply say that the response of the defendant was unreasonable. However, the Court can consider the injuries caused as some evidence of the force used: R. v. Weber (1994), 95 C.C.C. (3d) 334 at 352 (Ont. Ct. Gen. Div.).

Findings of Contested Facts and Application of the Law to the Facts

[29] In this case, the first question is whether a touching of Ms. Ghumman by Mr. Binepal occurred and, if so, what was the scope of it. The W.(D.) framework applies to this question. If the touching did occur, that does not end the matter. Then the question of self-defence arises and the W.(D.) framework together with the self-defence framework as set out in Reid, supra, must be applied. I must say that the principal defence was not that Mr. Binepal had not touched Ms. Ghumman, although there were issues about the nature and scope of the touching, but rather the main point raised by the defence whether the Crown had proved beyond reasonable doubt that Mr. Binepal was not acting in self-defence.

[30] Let me turn to the question of whether a touching has been proven, putting aside the question of self-defence in the first instance. Did Mr. Binepal slap Ms. Ghumman in the face five or six times; compress her chest/neck area with his hand which resulted in her seeing stars; kick or knee her in the stomach; and make further contact with her such that he caused the bruising on her upper left arm? Did he do none, some or all of these things?

[31] The defence submitted that the five or six slaps did not occur by pointing to the size of Mr. Binepal, which was acknowledged by Ms. Ghumman to be 6'1 and 6'2 and 250 pounds. It was then put to her in cross-examination that if Mr. Binepal had "hauled off and hit you, you would have more than a small bruise" to which Ms. Ghumman agreed. But her evidence was not that he had "hauled off and hit her" – it was that he had slapped her five or six times with some force and she did not move off that point in my view.

[32] The defence further submits that Ms. Ghumman admitted she was going to call the police "to get him in trouble" when nothing had happened and that this casts reasonable doubt on the entire alleged touching/assault and assists on the self-defence point as well. I agree with the defence that her testimony that prior to the alleged events she wanted to get him in trouble is a concern but in my view it does not seriously undermine her evidence as to what happened subsequent to this point in time: namely the slapping to her head; the kick/knee to the stomach; the bruising to grabbing of her left arm (and very likely her right) and the holding of her chest/neck area. Most of this evidence (except for the kick) was corroborated to some degree by the photographs or by Police Constable Lirette, or by both. I note as well that corroboration is not required.

[33] Notwithstanding Ms. Ghumman's testimony on the point, I also consider that it is not entirely fair to say that nothing had happened to the point in time when she was apparently going to call the police. Regardless of who was right or wrong, there had been some scuffling between them as disclosed in the video clips.

[34] Applying the W.(D.) framework, in my view, none of the conflicting evidence which includes the wanting to get him trouble comment; the "hauled off and hit you point"; and the "tripping out" comment about the threat raises a reasonable doubt in my mind as to whether the touching that Ms. Ghumman said happened, actually occurred. Further, considering the evidence as a whole, in my view the Crown has proved beyond a reasonable doubt that the defendant hit Ms. Ghumman by slapping her in the face five or six times; compressing her chest/neck area with his hand which resulted in her seeing stars; kicked or kneed her in the stomach and make further contact with her such that he caused the bruising on her upper left arm. As I said above, most of this evidence was corroborated, at least to some degree, by other evidence. Further, I found Ms. Ghumman to be an honest witness. She wants to reconcile with him and did not want to get him in trouble. Still, she held to her evidence as to what occurred as concerns the assault and, considering the evidence as a whole, I accept her evidence.

[35] As indicated above, the fact that the foregoing actions occurred does not prove the Crown's case. The Court must still consider the issue of self-defence and apply the Reid framework set out above. While I have said that there is an air of reality to this defence, I am satisfied that the Crown has proved beyond a reasonable doubt that the defence is not made out on the evidence. I do not believe that Mr. Binepal was acting in self-defence nor do I have a reasonable doubt about it. In particular, Mr. Binepal's actions were not "reasonable in the circumstances" (s.34(1)(c)) nor were they for the purpose of defending himself (s.34(1)(b)). My reasons in support of this conclusion are as follows:

1. In the two video-clips Ms. Ghumman is seen slapping Mr. Binepal's phone and the defendant to some extent. He is 6'1" or 6'2" and 250 pounds. She is a woman of average size – much smaller than him and this is apparent from the photographs. He sounds relaxed in the videos, easily handling her advances while he is lying down on the bed. The point here is that given the disparity in their respective sizes, in my view, he did not need to use any significant force against Ms. Ghumman to stop any slapping of him or his phone;

2. The photos corroborate the evidence of Ms. Ghumman and show a bruising to the left part of her eye and very significant bruising to the upper left part of her arm. As I indicated above, I recognize that the Court cannot simply look at the photographs and say that the force was unreasonable but they are an appropriate factor to consider in determining the amount of force used amongst all of the evidence. In my view, the injuries are not consistent with reasonable responsive acts of force by Mr. Binepal;

3. There is no detailed evidence that she was attacking or using force or the threat of force against him after the video clips when the assault is said to have occurred. There is an admission by Ms. Ghumman that there was a scuffle between them after the video clips and that he had used his foot to keep her at a distance and that he held her down by putting her across the bed. It is reasonable to infer that Ms. Ghumman's actions after the two video clips were similar in nature to her actions depicted on the two video clips. The nature of the force used against the defendant was minor at best (see s.34(2)(a));

4. There was a scuffle between them at the time of the first two video clips and after. As indicated, she used minor force against him. In response, he slapped her in the head five or six times with his hand or hands with force, he applied his hand in a forceful way to her neck and chest area (causing her to see stars), he grabbed her upper left arm causing significant bruising and he kicked her with his foot or knee in her stomach area. Mr. Binepal was much bigger and stronger than her (see s.34(2)(a)) and the proportionality of his response was excessive and unreasonable in my view (see s.34(2)(g));

5. Further, other means were available to Mr. Binepal to deal with the steps taken by Ms. Ghumman (s.34(2)(b)). What had apparently upset her, among other things, was that he was videotaping her. The defence argues that it was legal for him to videotape her. This question does not have to be decided. Among other things, Mr. Binepal could have simply put his phone away and talked to his wife or walked away in any event. He apparently did put his phone away because he did not apparently video his subsequent assault of her for which he now claims self-defence. Recall that in the first two video clips, he was lying relaxed on the bed easily fending off her slaps to his phone/person. The assault occurs thereafter. Mr. Binepal could have put his phone away and walked to another room or walked downstairs. I recognize that a person has no general duty to retreat. I further recognize that a person against whom force is being used or threatened does not need to retreat from their own home: R. v. Lavallee (1990), 55 C.C.C. (3d) 97 at 124 (S.C.C.). Still, other reasonable alternatives (including walking away but remaining in his own home) were available to him short of the assault that he committed. It comes back to this point: the force, if any, being used against Mr. Binepal was minor. He did not need to take the steps that he did to defend himself or his property. To the extent that he was entitled to take any steps to defend himself or his property, as indicated above, the steps taken were an unreasonable use of force.

[36] I also consider that the running to the neighbours in her bare feet and pyjamas is much more consistent with having suffered an assault at her husband's hands although I acknowledge that she might well have been upset even if he had been acting in self-defence as the defence submits. As a result, I put limited weight on the point that she appeared upset to both Mr. MacDonald and Police Constable Lirette but I do not consider that it supports the Crown's case to a limited degree.

[37] I have considered all of the circumstances and evidence and concluded that the defendant assaulted Ms. Ghumman. He was not acting in self-defence. In my view there is no reasonable doubt in this regard and the Crown has proved that point beyond a reasonable doubt.

Other Charges

[38] As to the issue of the threat, I think it is likely that Mr. Binepal did make a threat to drown her in a creek or river. But given her evidence on cross-examination that perhaps she was just "tripping out" and may not have heard it, I am not prepared to find beyond a reasonable doubt that he made the threat.

[39] As to the unlawful confinement charge, there is some evidence to support this charge but it is weak. The evidence in support is that he was apparently trying to stop her from leaving the bedroom and followed her to the bathroom whereupon she opened up the window for a possible escape. Ms. Ghumman may have perceived that she was being confined and she may well have been but the evidence does not meet the high standard for the proof of this charge. I am aware of the legal requirements for proof of an unlawful confinement (see R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont.C.A.)) and that they do not require total physical restraint. Nevertheless, in my view the mens rea and actus reus are not proved beyond a reasonable doubt in this case.

Summary

[40] In summary I find Mr. Binepal guilty of the assault. There will be an acquittal on the theft, unlawful confinement and threat charges.

Released: October 7, 2016

Justice Paul F. Monahan