Court File and Parties

Ontario Court of Justice

Date: 2019-06-18

Court File No.: 17-14463

Between:

Her Majesty the Queen

— and —

Manjit Singh and Kanwar Hundal

Before: Justice A. D. Dellandrea

Heard on: September 5, 6, 2018; March 26; April 2, 2019

Reasons for Judgment released on: June 18, 2019

Counsel:

• Ms. R. Prihar, counsel for the Crown
• Mr. B. Dickson, counsel for the accused Manjit Singh
• Mr. R. MacDonald, counsel for Kanwar Hundal

DELLANDREA J.:

Introduction and History of Proceedings

[1] On December 2, 2017, there was an incident at a family residence in Brampton which left one of its members with extensive facial bruising, stitches, and two significant fractures to her orbital bone. This much is not in dispute.

[2] The single disputed issue at this trial was how the complainant, Prabhdeep Hundal, came to receive her injuries, and more particularly, whether her husband Kanwar Hundal and brother-in-law Manjit Singh, who are jointly charged with her aggravated assault, are legally responsible for their infliction.

[3] Ms. Hundal gave two different versions of how she came to be hurt on December 2, 2017.

[4] In her first account, given right after the incident to medical staff and to police, Ms. Hundal stated that a verbal argument between herself and both defendants over household chores escalated to the point that she was knocked to the floor of her bedroom, then repeatedly kicked and punched in the head by both men. She described fleeing the home after the attack, and driving herself directly to the hospital for help. Injuries to her head and face were documented in medical records and introduced at trial. Ms. Hundal named the defendants to police as her assailants, and they were promptly charged.

[5] The following day, on December 3, 2017, Ms. Hundal attended the police station where she provided a sworn, videotaped statement to police in which she described having been attacked by her husband and brother-in-law. Her injuries were photographed, and Ms. Hundal signed a release for the disclosure of her medical records.

[6] On September 4th and 5th, 2018, Ms. Hundal was called as the Crown's principal witness at this trial. In her testimony, Ms. Hundal recanted her earlier account of what happened to her on December 2nd, 2017, and denied that either defendant had ever harmed her. Rather, she testified that it was her own agitation over their family dynamics which prompted her to flee the bedroom in a panic, trip, and fall down the stairs – essentially causing her own injuries.

[7] The Crown was permitted to cross-examine Ms. Hundal pursuant to s. 9(2) of the Canada Evidence Act, owing to the clear and significant inconsistencies between her in-court testimony, and her earlier KGB statement. Despite Ms. Prihar's very skilled cross-examination, Ms. Hundal was unmoved in her position.

[8] The Crown then applied to have Ms. Hundal's December 3rd, 2017 statement admitted pursuant to the KGB doctrine. A voir dire was held, and on March 1, 2019, I ruled that the statement met the test for threshold admissibility under the KGB doctrine.

[9] Finally, following the admission of the KGB statement, defence counsel cross-examined the complainant again, and once more, she agreed with each of their suggestions that neither defendant had assaulted her in any way on the day of the incident.

[10] In this case, as in any other, the Crown must prove the elements of the offence with respect to both defendants beyond a reasonable doubt. There is no obligation on the defendants to disprove their guilt or to establish their innocence. The onerous burden of proof remains exclusively on the Crown, and the defendants are entitled to the benefit of any reasonable doubt which may exist on all of the evidence.

Issues and Positions of the Parties

[11] The credibility of the complainant is central to the determination of this case.

[12] Here, the Crown's principal witness gave two completely different and irreconcilable accounts of what happened inside her home on December 2, 2017. In the first account, the complainant detailed a violent attack by the defendants which, if believed, would amount to an aggravated assault by both parties. In her second account, she testified that no assault had occurred by either party, and that her injuries were result of accident.

[13] I am urged by Ms. Prihar, for the Crown, to accept Ms. Hundal's KGB statement as the more reliable, credible and accurate account of what occurred. The statement was made promptly following the incident on a voluntary basis, under oath and on videotape. It was preceded by a clear caution with respect to the implications of lying to police. The Crown submits that I should find Ms. Hundal's more animated and detailed description of the defendants' attack in her KGB statement as more credible than the complainant's comparatively flat recantation in court, which she submits was contrived in an effort to terminate the prosecution, and permit her family to be reunited, which she admitted she was highly motivated to do.

[14] Counsel for the defendants point to what they suggest are the numerous frailties of Ms. Hundal's KGB statement, most notably her comparatively fragile mental state at the time of the incident, resulting from her withdrawal from the anti-depressants which she testified to have not taken, and the resulting panic attack which she suffered at her home at the outset of the verbal argument on Dec 2nd. Mr. MacDonald and Mr. Dickson further submit that Ms. Hundal was highly motivated to fabricate the allegations against both parties, based on the chronic mistreatment and conflict which she felt being directed towards her at home, mostly by her brother-in-law Mr. Singh, and his wife. It is suggested that the combined effect of her animus against her family and her disordered thinking caused by her mental health issues on December 2nd and 3rd, 2017 should lead me to reject Ms. Hundal's KGB statement as being neither credible, nor reliable. By contrast, they characterize Ms. Hundal's in-court testimony as reflective of a more stable mental state, and comparatively more lucid and reliable account of what occurred.

[15] I am also reminded by counsel that if I have a doubt about which of Ms. Hundal's statements is true, then I must acquit the defendants.

[16] One thing is for certain in this case: Prabhdeep Hundal is a demonstrated liar. The two accounts which she gave cannot be reconciled as being the product of either mistake or lapsed memory. No one confuses being beaten with falling down the stairs. The inescapable inference is that Ms. Hundal either deliberately misled the police into investigating an offence that didn't happen, or she delivered evidence in court calculated to cover up a serious criminal offence, and undermine the administration of justice.

[17] The KGB regime is designed to permit the court to make a reasoned assessment of the comparative trustworthiness of conflicting evidence emanating from the same witness: R. v. B. (K.G.), [1993] 1 S.C.R. 740.

[18] In his recent decision in Jeffers, [2019] O.J. 1711 (C.J.), Justice Duncan cautioned against the erroneous risk of allowing the very existence of divergent accounts from a Crown witness to lead inexorably to a wholesale rejection of the witnesses' evidence. At paragraph 15, the court stated:

The KGB rule was developed so the trier of fact could, in appropriate cases, consider a witness's prior out-of-court statement for its truth and accept and act upon it even where the witness at trial swears that it is not true and testifies to the contrary. The rule was designed to advance the truth-seeking function of the courts and also to reduce the potential benefit that could be achieved by witness intimidation or improper influence. For the court to simply throw up its hands and declare that the witness's perjury means that neither version can be accepted would be to take a step backwards, undo a long overdue modification of the law and defeat its purposes.

[19] Having determined that Ms. Hundal's KGB statement achieved the requisite threshold of reliability to be admitted into evidence, I must assess it in the same manner as her in-court testimony, with a view to determining, if possible, the ultimate reliability of each of her accounts.

[20] Given that Ms. Hundal's testimony before me was entirely exculpatory, the principles of W.D. are necessarily engaged in the determination of whether the Crown has met its burden of proof. Therefore if I believe Ms. Hundal's testimonial account of what happened on December 2, 2017, then I must acquit. Even if I do not believe Ms. Hundal's testimony, but it leaves me in a state of reasonable doubt, I must also acquit. And finally, were I to reject her testimony altogether and find that it does not leave me in a state of reasonable doubt, I must go on to determine whether on the basis of the evidence that I do accept, the Crown has proven the charge beyond any reasonable doubt.

[21] Of course this is not an all-or-nothing exercise. I can accept some, all, or none of both versions given by the complainant to determine what parts, if any, of her evidence are credible.

Evidence of Prabhdeep Hundal

a) KGB Statement

[22] Ms. Hundal entered the interview room at 21 Division of Peel police at 7:50 p.m. on December 3, 2017. She had been given a ride to the station by her sister. She was calm and composed while she awaited the officer in the interview room.

[23] Ms. Hundal was met by Constable Briggs who began the videotaped statement with a fulsome explanation of the audio and video recordings, the significance of the oath or affirmation, and the implications of perjury or providing false or misleading information to the police. The officer told Ms. Hundal that she might be a witness at a criminal trial arising from any charges laid, and warned her that she was liable for prosecution for giving false evidence. Ms. Hundal can be observed nodding throughout the instructions. She sought clarification of any issues she didn't understand, and ultimately proceeded to affirm her statement with the Commissioner of Oaths at 7:59 p.m.

[24] Ms. Hundal confirmed at the outset that police had been called to the hospital at her request the preceding day for her to report what had happened.

[25] For the next hour, she went on to provide a detailed account of the verbal argument which had erupted over the quality of the vacuuming in her bedroom. Ms. Hundal explained that there was always "lots of drama" between she and her extended family members, and that she was routinely the brunt of their verbal exchanges, particularly those of her brother-in-law.

[26] Ms. Hundal said that a screaming match ensued between she and her brother-in-law through her locked master bedroom door which her mother-in-law attempted to quell, and her husband withdrew from, effectively taking his brother's side over his wife's. She felt her own anger intensifying and a sense of panic building. Mr. Singh began banging aggressively on the bedroom door, to the point that a painting on her bedroom wall fell down from his blows.

[27] Ms. Hundal said she grabbed her phone and retreated to her closet, hoping to call the police or someone to "end this." She said her husband followed her into the closet, and snatched her phone from her hand. It was then that she realized that the banging had stopped, and that her brother-in-law had broken the door, and was now inside the bedroom.

[28] Ms. Hundal then described her husband as having used his hand to cover her mouth to stifle her from speaking. While describing this, Ms. Hundal positioned herself in the interview room in the posture which she claims to have been in when her husband reached around and grabbed her between her nose and face. She said his left hand was "definitely" there, and he was doing it in "not a very nice way" and that she struggled to breathe.

[29] At this point, Ms. Hundal believed that both Mr. Singh and her mother-in-law were on the other side of the closet door in her bedroom. She said she felt a panic attack coming on, and knew that she needed to get away. So she bit her husband's finger to get him to let go. But her efforts were unsuccessful. Ms. Hundal said:

A. So, um, and I wanted to, okay, maybe he feel down or something – something, I should go. But it doesn't happen because he has too much power.

Q: Mm-hmm

A: nothing of that happened. I couldn't. it went opposite on me actually, because I was trying to get away. So he got a hold of over me more and then he started hitting me. At that time, because I fell down.

Q: how does he get his hand away? Did you just let his …his finger kind of go?

A: Uh, yes. Because I think he's hitting me with the other hand.

[30] Ms. Hundal described being punched on the ground by her husband on both the front and back of her head, face and shoulder. She gestured in the video while touching the places on her body where she described receiving the blows. She said he used his "hands and arms" to strike her head, and his feet to kick her in the lungs.

[31] When asked by the officer how many times her husband had struck her, Ms. Hundal said "at least two times….two or three times." As he was striking her in the closet, Ms. Hundal said her husband told her that he would not let her leave, and that he expected her to apologize to his brother.

[32] It was then that Ms. Hundal described the closet door being opened, and her brother-in-law joining in the attack. She said Mr. Singh grabbed her by the shirt to move her outside of the closet, into the bedroom. Ms. Hundal said Mr. Singh got "this authority drama" and began to demand that she say sorry to him.

[33] When she refused, and threatened to leave the family with her children, she said "it goes rough from there." She said Mr. Singh became enraged, threw her to the floor and began hitting her. She couldn't see clearly how he was striking her, because she was turning her face away. The assault progressed when her husband rejoined the attack, and both defendants were kicking her while she lay on the floor. She estimated that both men kicked her about ten times, mostly on her upper body. During the attack, they were cursing and insulting both she and her family in India.

[34] Ms. Hundal said her mother-in-law was trying to stop both of her sons from striking Ms. Hundal by physically laying on top of her to shield her from their blows and insisting that they stop. Finally, they complied with their mother's demands and dispersed. Mr. Singh delivered a few more kicks to Ms. Hundal's head after her husband had stepped away. Ms. Hundal said "the last one hit badly…it was hurting here and here," gesturing to the side and top of her head. Ms. Hundal described these last blows by Mr. Singh as "a foot in here and very sharp, like very hard hit." She said "the crack (to her cheekbone) is definitely from that."

[35] As a result of the attack, Ms. Hundal said she couldn't see properly and she noticed "so much blood" soaked in the carpet from the injuries to her head. Despite her obvious injuries, she said Mr. Singh and her mother-in-law continued to taunt her. Ms. Hundal described feeling this way: "all I can hear from their voices is that nobody cares that I can't see anything. I'm saying I can't see anything, let me sit for a moment, and everyone is 'you can get up and get to the washroom and clean everything up, put on a real nice suit and come down pretending be this. And I can't pretend.'"

[36] Ms. Hundal said she sat down and realized "I'm suffering inside and I have suffered enough. I can't keep it inside. I'm not going to keep it inside. I'm not being able to keep it inside." Ms. Hundal started to think about what she needed to take when she fled the home. She searched for her phone, grabbed a small purse, went downstairs, grabbed a car key on the way out and departed for her car. She said "I just put my shoes as it is. It's not even half in, half out. I grab the jacket from the door and I just run with the key as fast as I can to the car...I open the car, threw my stuff in, jacket in and I backed the car – I'm not even wearing a jacket."

[37] Ms. Hundal said as she began to drive she debated whether to go straight to a police station or to the hospital. She said that because of the extreme pain in her eye, she was worried that she was going to go blind, so she opted for the hospital first. She described her turban as being "totally dipped in blood" and said that people were looking at her when she arrived at the emergency department because she was such a "mess."

b) Medical Evidence

[38] Ms. Hundal's medical records for her December 2, 2017 visit to the Emergency Department of Brampton Civic Hospital were introduced as an exhibit. Her diagnostic imaging revealed swelling to her right eye and a "left orbital floor blowout fracture with early extraocular muscle herniation through the orbital floor defect."

[39] Ms. Hundal testified that as a result of her injuries she required stitches to her forehead and surgery to repair the larger fracture to her left orbital bone.

c) Evidence at Trial

[40] With respect to the incident of December 2, 2017, Ms. Hundal's testimony was consistent with her KGB as it relates to the origin of the dispute between she and her family members: namely, an argument about the quality of vacuuming by her sister-in-law, which devolved into a verbal argument first between she and her husband, but thereafter with additional family members. The general sequence of the initial portion of the incident was also the same: she complained to her husband about the vacuuming and promptly lost her temper. She started yelling, and he reciprocated. Her mother-in-law came to the locked door of the master bedroom to tell them to quiet down, and get ready for the prayer ceremony scheduled in their home that day. Her husband went to shower, and then Ms. Hundal heard her brother-in-law on the other side of her door, joining the argument and chastising her. She said her mother-in-law was also there, now telling everyone to settle down.

[41] Things didn't settle, she said. Her brother-in-law began banging on the door to her bedroom as they argued. Ms. Hundal testified that when her husband got out of the shower, she started to feel "very panicked and very angry" and could not control her emotions. She said she grabbed her phone and ran into the walk-in closet in their bedroom. Ms. Hundal testified that she said she was going to call someone, and her husband grabbed her phone and threw it on the bed.

[42] Ms. Hundal said that when her husband put his hand over her mouth to try to quiet her, she bit his finger so that he would let her go, drawing blood. Ms. Hundal's testimonial narrative up to this point was generally consistent with her original KGB version.

[43] However, Ms. Hundal's testimony on the remaining details of the incident on December 2, 2017 were significantly divergent. Essentially, her in-court testimony simply excluded the existence of any form of assault by either her husband or her brother-in-law in the moments preceding her flight from the home, and added an additional, rather notable variable to the account to explain the presence of her injuries – namely, an accidental fall down the stairs.

[44] Ms. Hundal testified that after biting her husband's hand to get out of the closet, she went past her husband and grabbed some belongings in order to flee the room. She described seeing his blood on the carpet. Ms. Hundal testified that she could still hear the voices of her brother-in-law, mother-in-law and sister-in-law talking somewhere outside her bedroom door, but that none of them had ever entered.

[45] Ms. Hundal then stated in her testimony that she exited the bedroom hurriedly, and slipped at the top of the flight of 13 carpeted stairs from the second floor, down to the first. She testified:

"I fell down very hard and I grabbed whatever I could. There is – I grabbed the first key I could - handle, and I could feel my hands are with blood. I could feel my – blood on my head. And then I grabbed whatever I could find from the front door. I just got the first jacket then my purse, I think, and I just took the car that was behind every other car.

[46] Ms. Hundal testified that she drove straight to Brampton Civic Hospital, in the throes of an effective panic attack. She realized she had blurry vision and was bleeding from her head, making it difficult to concentrate on driving.

[47] Ms. Hundal testified that once she arrived at the hospital, and was asked how she received her injuries, she lied and told them that she had been hurt by her husband and brother-in-law because of "all of the pressure and resentment building over and over" within her family. She said she was "very much angry that this was going nowhere. I was not being heard of. I was not being included in family decisions, other things that you can usually expect your family to do." Ms. Hundal testified that wherever she had been hurt from the fall, she told the medical staff she had been hit.

[48] Ms. Hundal testified that sometime between being released from the hospital on December 2nd and when she attended 21 Division for her interview at 7:50 p.m. on December 3rd, she had attended a lawyer's office to get information about her rights. Ms. Hundal was unable to recall the lawyer's name, or area of specialization. All that the complainant claimed to recall was the lawyer's direction to Ms. Hundal that she would "be in trouble" if she didn't "tell the same thing" that she had told in the hospital, and that as long as she got a transcript of her interview by police she would "be ok." Ms. Hundal testified that she felt that the lawyer may have "manipulated" her into believing that she had no choice but to give the police a statement, even though the complainant did not want to.

[49] Ms. Hundal also testified that she felt compelled to attend the police station and give a statement because no one ever explicitly told her that she was under no legal obligation to do so. Had she known that she had the right to refuse to attend, she claims she would not have made a statement to the police.

[50] Ms. Hundal said she was unaware that the justice system would "go so far" in response to her allegation of having been beaten by her family members. She claims to have believed that at most, the police would have called the defendants to warn them after she named them as her assailants.

[51] In her testimony, Ms. Hundal adamantly maintained her position that she was simply not "thinking properly" when she made her police statement, due to her agitated emotional state, symptoms of withdrawal from her Effexor, and her misguided wish to "punish" her family members for treating her poorly in the home by making a false report which she never imagined being taken seriously by the authorities.

Analysis of the Complainant's Credibility

[52] I make the following observations and conclusions about the respective credibility of Ms. Hundal's KGB statement versus her trial evidence.

(1) Ms. Hundal is an articulate, highly-educated, intelligent woman. She holds a master's degree in computer science, and works full-time in the software development industry. In my view, she was in complete control while giving both of her statements, first to the police, and then to the court. In particular, I reject the submission that Ms. Hundal was either irate or irrational when giving her KGB statement. To the contrary, as I held in my earlier ruling on the threshold admissibility of her statement, I found Ms. Hundal to have been lucid, thoughtful and articulate when giving her statement to the police.

(2) I find that the December 3, 2017 statement to police was a spontaneous one, free of any form of leading, coercion or suggestion.

(3) I reject Ms. Hundal's explanation given at trial that she felt "manipulated" by the purported advice received by a lawyer on the evening of December 2nd to the effect that she had no choice but to tell the police whatever it was that she had initially told the staff at Brampton Civic hospital – regardless of whether or not it was true. As stated previously, Ms. Hundal is a highly intelligent woman who would not have been accepted such dubious and unethical advice without questioning it. And even if she had – the explicit cautions against lying which were provided by Cst. Briggs at the outset of her KGB statement were clearly understood by Ms. Hundal, and could have left no doubt in her mind as to her duty when making the statement – which was her duty to tell the truth.

(4) Ms. Hundal's KGB statement was rich in textured detail, replete with significant contextual quotes related to the verbal exchanges between the parties, and was accompanied by her frequent use of gestures or body language to simulate the positions of the various parties at different stages of the narrative. To the extent that she was emotional during the interview, I considered her agitation to be consistent with her description of what was an unexpectedly traumatic event within her own home, at the hands of her family members. Ms. Hundal was thoughtful in giving her answers, reasonable in conceding what she could remember or precisely recall, and resistant of guessing or exaggerating any details. One example of this which Ms. Prihar highlighted in her submissions was Ms. Hundal's statement that at times she simply didn't know who was hitting her or what was going on at a certain point in the room, because she was on the ground with her eyes closed. I accept the Crown's submission that it would be unusual for a completely fabricated account of wrongdoing to also include fictionalized gaps of perception or memory.

(5) I agree with defence counsel's general characterization of Ms. Hundal's in-court testimony as having been calm and coherent. However, I can't agree that these features necessarily operated to make it more credible. In contrast to her KGB statement, Ms. Hundal's in-court testimony, and particularly the portion on the mechanics of her fall were vague, devoid of particular detail, somewhat inconsistent, and in my view, poorly contrived. When pressed by the Crown to explain how she received injuries exclusively to her head and face from the fall, Ms. Hundal responded with: "I fell with my head down and it was only the second stair." Later in her evidence, when asked which parts of her body made contact with the stairs or railing, she said: "my shoulders, my – one side of my back here, and my face." She testified that she tried to grab the railing on the way down but couldn't catch it, and landed "front down."

(6) Another frailty of Ms. Hundal's in-court testimony arose from her hesitation and even equivocation in certain of her answers relating to how she received her injuries. Ms. Hundal was evasive in response to the Crown's questioning about whether she was bleeding from anywhere before she left the bedroom for the stairs. She repeatedly testified that she couldn't remember if she was bleeding, and might have been – which is of course a curious answer to give if in truth there had been no violence committed against her in the bedroom. Similarly, Ms. Hundal did not want to look at the photos of her injuries and said she preferred not to. Her position on this issue, in my view, belied a sense of discomfort with the narrative which she was presenting to the court.

(7) Similarly implausible was Ms. Hundal's testimony that despite her extensive head injuries having been the result of no more than her own haste and clumsiness, no one from her household offered to drive her to the hospital. Nor did she think to ask anyone to drive her there. I find it difficult to accept that Ms. Hundal's purported distress over what she said was merely a verbal argument would have superceded hers or her family's interest in seeing her safely at the hospital after such a grievous injury was inflicted. I consider Ms. Hundal's panicked departure from the home, alone, to be far more consistent with the scenario of assaultive conduct from which she was escaping.

[53] For all of these reasons, I reject the complainant's evidence at trial where it conflicts with the KGB statement on material points. I do not believe Ms. Hundal's evidence that she tripped and fell down the stairs, nor does it leave me with a reasonable doubt that it could be true. However, I must yet go on, according to WD, to consider whether on the basis of the evidence which I do accept, that I am satisfied beyond a reasonable doubt that the Crown has proven the charge against both defendants.

[54] While I have accepted Ms. Hundal's account to the police in her KGB account as being more credible, her apparent willingness to give false testimony in court over the course of three days' evidence must figure prominently in my assessment of her ultimate credibility and reliability. I accept Mr. MacDonald and Mr. Dickson's submission that I must exercise significant caution before relying on the evidence of a witness who has calculated to subvert the truth and undermine the administration of justice.

[55] I return once again to Justice Duncan's recent decision in Jeffers for what I consider to be a principled and restrained approach to the assessment of KGB statements which are preferred over the misleading in-court testimony of witnesses. Such was the finding in that case, where Duncan, J. held that it would be unsafe to rely on the complainant's prior statement in these circumstances, absent some evidence of additional corroboration or support. At paragraph 35 of Jeffers, the court explained:

While I could be satisfied to the required standard on the evidence of the complainant alone, the need for caution leads me to conclude that I should not do so unless there is corroboration, or, less formally, evidence or circumstances that tend to support her evidence in respect of a particular count.

[56] I have taken a similar approach to that taken by Justice Duncan in Jeffers as well as by Justice Lauwers in Frietas, 2010 ONSC 2031, in determining whether the Crown has proven the charge against each defendant in this case, namely: one which recognizes the danger of relying on a conclusively unreliable witness in the absence of some other corroborative evidence or supportive circumstances.

[57] I have carefully considered the external physical evidence in this case in an effort to determine if it corroborates or detracts from the credibility and reliability of Ms. Hundal's allegations of assault in her KGB statement. In particular, I looked closely at the photographs of Ms. Hundal's injuries as well as her medical records to compare these with her competing accounts of the mechanism of their infliction. I am unable to conclude that this evidence conclusively supports Ms. Hundal's KGB account of how she received her injuries, namely, by the described assault. The medical records and photos on their own could be said to be equally supportive of Ms. Hundal's account of having struck her head and face on the stairs during a fall. I note that neither the photos nor the records detail injuries to any other parts of Ms. Hundal's body beyond her head and face, which corresponds to some logical degree with her description of having been kicked and punched primarily about the head. However I cannot speculate on the basis of the photos and emergency records alone that she must not have been injured elsewhere, and therefore that this evidence supports her KGB statement. It is equally possible Ms. Hundal did suffer injuries to other parts of her body, which simply went unexamined and undocumented in the reports tendered from December 2nd. I am not a medical expert, and without an expert opinion it would be unsafe, in my view, to consider the injuries in this case as supportive of the allegations of assault as an inexorable "common sense conclusion." (see: Theoret, 2018 ONCA 700, at para. 10)

[58] The physical evidence at the scene is similarly of no real assistance to the Crown. While the police officer's observation of a hole to the outside of the bedroom door is somewhat consistent with Ms. Hundal's description of Mr. Singh having somehow broken into the room, it is not directly supportive of the later allegation of a physical attack, nor is it inconsistent with the possibility of it having come to be damaged merely as a result of banging, but not entering the room.

[59] And as both defence counsel have properly emphasized, Ms. Hundal's description of the pool of her blood on the carpet following the assault was not corroborated by the police officer's inspection of the room later that same night. Thus there remains an absence of corroboration in the physical evidence tendered.

[60] Finally, another critical contextual circumstance which I have considered on the ultimate reliability of Ms. Hundal's KGB statement is motive to fabricate. I find that there was some evidence of Ms. Hundal's motive to fabricate both of her accounts in this case. The Crown urges me to conclude that the complainant's motivation to have lied in court in order to reunite her family, and relieve the inordinate pressure which their family separation caused was clearly the stronger of the two motives, such that I ought not to be troubled by her explanation at trial as to why she would have concocted the allegations against them.

[61] However, as Mr. MacDonald astutely observed, the choice between a witness's competing motives for lying is an extremely difficult, and thus dangerous one, particularly where the standard required for the ultimate determination of guilt at a criminal trial is proof beyond a reasonable doubt. Can it be said that Ms. Hundal's explanation at trial for inventing false allegations is so specious that it can be entirely rejected without leading to any reasonable doubt?

[62] Ms. Hundal's evidence on the emotionally abusive dynamics within her family were consistently told across both of her statements. Despite being among the main income earners in her household, Ms. Hundal described being made to feel like a virtual outsider within her own home by her husband's family. She described being both criticized, patronized and ignored at home, particularly by her brother-in-law, and his wife. There were often arguments over seemingly innocuous issues which left her feeling increasingly marginalized and mistreated. The last words of her KGB statement to the police were "I can't believe I had to say sorry." I believed every word of what Ms. Hundal said about her emotional abuse within her home.

[63] In both of her accounts, Ms. Hundal also consistently described suffering from anxiety, which she said was exacerbated by the chronic tension at home. In the months preceding the incident, she was prescribed antidepressants by her doctor. Ms. Hundal testified that she was unhappy with some of the side-effects of her medication which included what she called "cloudy" thinking, drowsiness and dramatic mood swings. As a result, she said she didn't always take her medication regularly, which also produced unpleasant symptoms of withdrawal such as disordered thinking, panic attacks, and extreme agitation. The uncontested evidence was that Ms. Hundal didn't take her medication the day before the incident, and had been sleepless and agitated for two nights before it happened.

[64] In their submissions, I am urged by Mr. Dickson and Mr. MacDonald to recognize the strong motive which Ms. Hundal had to fabricate the allegations of assault against both parties. Counsel have drawn my attention to the following portions of Ms. Hundal's evidence on this issue:

…misunderstandings and arguments were over and over again...And then anxiety, then I had to go for meds for anxiety as well and I would blame them for my health conditions because I was perfectly healthy before that time. And that I had to take my meds because of them. I'm going crazy because of them. I had so much resentment. Every time I will have a side effect I will get more angry inside and that this is the issue…..

I was feeling this because – I was blaming them. That otherwise if there's no argument, if there is nothing, I would not sustain those injuries and to that extent I have to up in – like, I would not be running if it's not their argument – I would not have been there in the first place.

[65] While it's true, as Ms. Prihar has pointed out, that the bulk of the verbal discord described by Ms. Hundal was between she and her brother-in-law, Ms. Hundal also testified to having felt a sense of real betrayal in her husband's actions on December 2nd when he tried to quiet her down, rather than standing up for her to his brother instead. She testified that this was a circumstance which she often found herself in, and which she could no longer tolerate. I accept that the isolation, resentment and loneliness which Ms. Hundal felt within her own marriage and her own home was real, and that it could have operated to some degree in motivating Ms. Hundal to fabricate the allegations against both parties.

[66] Ms. Hundal's denied that anyone was blaming her for her family's separation or putting pressure on her to recant in order that the family could be reunited. She made it clear, however, that she blamed herself for this circumstance. Ms. Hundal testified:

"I did not – they didn't do anything in simple language I'll say. But we did have an argument and I blamed them for the injuries that I sustained at that time which, in my clearer mind, I think if I watched myself better walking up the stairs I would not have fallen and they are not to blame for that."

And so I believe I should tell the truth now that that's what happened and I feel guilty for so long – for this has happened and I was not thinking that this is going to happen just because I say that I had, like – I should have told sooner that that's - what the correct thing was had happened. And that's the truth. I should have told it much, much sooner than later and - we had not lost those months."

[67] In a fairly recent decision of R. v. A.M., [2017] N.B.J. No. 101 (Q.B.), that court was tasked with a similar challenge in evaluating the recantation by a complainant who was found to have been suffering from addiction at the time of the allegations. At paragraph 28, the court concluded that it was required to "pause for concern" with the witness's veracity, given her preparedness to "play loose with the truth if it suited her." The court in A.M. also relied on the following passage from Ghomeshi, 2016 ONCJ 155 at para 139:

The harsh reality is that once a witness has shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of truth.

[68] Ms. Hundal made it quite apparent in her testimony before me that she was well prepared to play loose with the truth, as it suited her to do, while giving her evidence to this court. I am also convinced that Ms. Hundal's mental health was in an acutely fragile state in the weeks, if not months leading up to the incident, owing to the unhealthy dynamics within her home.

Conclusion

[69] In considering the evidence as a whole, it is plain to me that Ms. Hundal was in real emotional pain and distress when she described the alleged assault by her husband and brother-in-law to police on December 3, 2017. There was clearly a tumultuous triggering event on December 2nd, which resulted in Ms. Hundal being grievously injured within her own home. The depth of her longstanding sense of resentment from her family's betrayal and mistreatment of her was the most consistent theme across both the complainant's KGB statement, as well as her recantation. While I have concluded that Ms. Hundal's testimony before me was almost entirely contrived, I am troubled by the intensity of her very understandable sense of resentment at the time of making her statement, and the potential for this factor to have influenced her account.

[70] As Mr. MacDonald fairly conceded in his submissions, the evidence against both accused here is highly suspicious of their having engaged in a vicious and cowardly attack against a defenceless woman who was a member of their own family.

[71] Indeed, the evidence in this case is more than sufficient to satisfy me that the assault by these men probably happened, just as Ms. Hundal described it in her December 3rd account.

[72] However, the standard for conviction for all criminal matters is an appropriately high, and onerous one, which cannot be achieved in the presence of any reasonable doubt. I have concluded that it would be dangerous to convict on the basis of Ms. Hundal's statement alone, in the absence of other independent corroborative evidence. There was no such confirmatory evidence on which the Crown could rely in the case. Finally, the complainant's motive to fabricate the allegations, while largely unconvincing, was sufficient when combined with my previously stated concerns with respect to her reliability, to leave me with a reasonable doubt.

[73] The charge against both defendants will therefore be dismissed.

Released: June 18, 2019

Signed: Justice A.D. Dellandrea