Court File and Parties

MILTON COURT FILE NO.: 199/2012 DATE: 2013/11/04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Narinder Khasria Respondent

Counsel: S. Bradley, for the Appellant/Crown No one appearing for the Respondent

HEARD: August 19, 2013

REASONS FOR JUDGMENT

[On appeal from a judgment entered by the Honourable Mr. Justice K.G. Lenz, from a judgment on October 22, 2012]

DURNO J.

[1] The respondent was charged with domestic assault. On the trial date, his wife, who had been personally served with the subpoena, did not attend court and could not be reached by telephone. The trial judge was asked to issue a material witness warrant and refused to do so. The trial judge was asked to adjourn the trial and refused to do so. The respondent was arraigned, pled not guilty and was acquitted when no evidence was called.

[2] The Crown appeals contending the trial judge erred in failing to act judicially in refusing to grant the material witness application and in refusing to adjourn the trial.

[3] For the following reasons, the appeal is allowed and a new trial ordered.

The Allegations

[4] On October 15, 2011, the respondent’s wife, Gurwinder Khasria, provided police with a sworn videotaped KGB statement in which she said she was living with the respondent and his parents in a residence full of emotional turmoil. There were a lot of issues at play between the complainant and the respondent and his family. The family was concerned that she was not keeping up her duties and responsibilities as the respondent’s wife. She was being treated like a maid, with frequent arguments over housework and chores. She was expected to buy groceries but they were being consumed too quickly and she had no money to replenish them. However, it was her job to do so. On occasion, she had left home and gone to a shelter because she was afraid and had nowhere else to go. Ms. Khasria was not from Canada, did not work and therefore, was dependent on the respondent and his family for a place to stay.

[5] Gurwinder Khasria told police that on October 15, 2011, she was slapped in the face once and kicked in the stomach once by her husband. Their six year old child was present and saw the assault. He also provided a videotaped statement to the police in which he said he saw his father slap his mother twice and kick her in the stomach. Ms. Khasria said alcohol was a factor as her husband seemed to be drinking more when his parents were at home. The more he drank, the more they argued.

The Events from the Respondent’s Arrest to the Trial Date

[6] Six days after the charge was laid the Crown Attorney’s office received the following letter from Gurwinder Khasria:

Sir-Madam

Subject: Request to withdraw case no. 2011-175251 dated October 15, 2011

I Gurwinder Khasria residence of 1215 Christie circle, Milton, I9T 6V4 like to state that we had a argument in our house on October 15, 2011 with my husband Narinder Khasria & police was called by me & police officers came to our house & charged my husband in assault & put restriction order so he cannot come home.

Even though what had happened on that day, in viewing all those things, I still like to keep my marriage alive. It will be good for my children future and my future. My children are only 5 and 6 years old and also need their father. He was doing all his fatherly duties nicely.

I like to withdraw my case against him please give us one chance to keep our marriage & house alive. I will be very much thankful to you if you give us another chance to keep my family together.

Yours sincerely, signed, Gurwinder Khasria.

[7] It was agreed that the trial judge could regard the letter as genuine, that it was written by the complainant.

[8] The Crown did not withdraw the charge.

[9] On March 29, 2012, the Victim Witness Coordinator, Kimberly Watt, sent Ms. Khasria a letter telling her the trial date was set for October 22, 2012.

[10] On September 24, 2012, Ms. Watt called Ms. Khasria to set up a meeting to prepare for trial. It was confirmed that Ms. Khasria had received her subpoena as well as one for her son. October 12, 2012, was arranged as the meeting date. Ms. Watt told Ms. Khasria that she would ask whether it was necessary for her son to come to court. On September 27, 2012, Ms. Watt told Ms. Khasria that her son would be required.

[11] The meeting was then re-scheduled for October 17. Ms. Khasria was going to attend with her son for the interview. One hour before the meeting with the Crown, police and Victim Witness personnel, Ms. Khasria called to say she would not be attending. She was very upset, far too upset and stressed to be attending the meeting. While Ms. Watt told her the purpose of the meeting was to address any concerns she had, Ms. Khasria flatly refused to attend and said she would just see them on the trial date. She ended the conversation with"I’ll see you Monday."

[12] On the trial date, the officer-in-charge called the complainant's phone number and there was no answer. The Crown established that the subpoena was properly served. She acknowledged that the decision to call the six year old child to testify was hers.

[13] The officer-in-charge testified and during cross-examination, by the respondent’s counsel, agreed that there were no reported injuries from the assault and no visible injuries. When asked if it was fair to say that based on what had transpired before the trial date that Ms. Khasria was not interested in proceeding with the case, the officer said that was what was in the letter. The trial judge interjected:

Under the circumstances, I can tell you, sir, that having read the letter and she having not appeared, I am of the view that she doesn’t wish to proceed. I don’t think there’s been an accident or she’s disappeared from the face of the earth.

[14] When His Honour asked the Crown if she agreed, Ms. Ward said she would tweak it a bit and say she was not at court that day and continued:

We don’t know whether she’s been threatened or pressured in some way. So she could have a desire to be here, but has chosen not to come for some reason. I have no way of knowing that.

[15] His Honour replied"It seems to me that she doesn’t wish to be here, counsel."

[16] When questioned about why she did not take witness statements from the respondent's parents who were present at the house, the officer said that with the 9-1-1 call and the statements from the complainant and her son, she felt that they had enough evidence. She agreed that no interpreter was used to take the complainant's KGB statement and some points had to be clarified. However, the officer felt the complainant understood what was happening.

[17] During submissions, the respondent’s counsel said the Crown had refused to consent to a bail variation but acknowledged that no bail review had been brought. He said that the charge was over a year old, the respondent wanted an earlier trial date, he did not believe the complainant would necessarily inculpate the respondent, and he expected that it would be a situation where her evidence, at best, would be contradictory within itself. He also argued it would not be in the public interest to issue a material witness warrant or adjourn the case. Finally, he told His Honour that the respondent was not waiving his s. 11(b) rights.

The Reasons for Refusing to Issue a Material Witness Warrant

[18] His Honour framed the issue as follows:

The issue in regards to whether or not the warrant is issued, in this particular case, which is my discretion, is whether or not it is in the public interest that the Court issue a warrant for the arrest of the complainant, thereby of course, punishing her, yet again, in regards to this matter.

[19] The trial judge briefly reviewed the allegations, including that there were no visible injuries and no hospitalization required. The argument preceding the incident related to the respondent's and his parent’s view of the complainant’s housekeeping skills. She felt as though she was being treated like a maid and did not get enough groceries.

[20] Acknowledging that all domestic or relationship assaults are serious, the trial judge found this one was probably a two on a scale of one to ten. It was not as though the complainant was alleging the respondent had abused her or the children in the past. The argument did not relate to her physical safety. Rather, it was because she was being put upon by the respondent and his parents.

[21] Regrettably, the six year old son witnessed the assault and was going to be a witness. It was not surprising that he had not attended. The Crown was not seeking a material witness warrant "because it always looks bad when you arrest a six year old and the person obviously in control of that six year old is his mother."

[22] His Honour found the videotaped statements largely confirmed her verbal account of what had occurred. Not surprisingly, the Crown received a letter six days later from the complainant. It was not a recantation or a denial that there was an assault. Since the respondent was released by an officer-in-charge, he could have appeared before a justice of the peace and, in effect, had a bail hearing.

[23] The trial judge found the complainant was properly served, she knew the date, time and place of trial and had chosen not to appear. She had not suffered some form of misadventure. Nor was there a speck of evidence that she was coerced although His Honour could not ignore that possibility. Her failure to appear was because she wanted her family reunited and did not want her six year old to testify.

[24] She had also not attended the pre-trial preparation meeting. Meaning no disrespect to anyone, His Honour could not think of anything worse for a child or family than having a child testify against a parent.

[25] The trial judge continued:

I have come to the conclusion that even if there is a trial today or some point down the road, this particular complainant is not going to be a forthcoming witness if the trial proceeds. … I think it most unlikely that she will testify in respect to the assault.

Now the Crown has an opportunity because she has given a video statement to cross-examine her thereon. What will transpire, if that takes place, is the court will be led to a conclusion that the lady was either lying under oath to the police or in all likelihood, lying under oath to the court. Her credit would suffer and in my books when something like that happens, it impacts greatly on the credibility of the complainant.

Frankly, based on 20 years plus of experience, in my opinion, it is unlikely a conviction will follow a trial. Thus, there will be none of the usual impacts following a trial on the merits, of general deterrence probation, etcetera, because there is not going to be, in my opinion, any conviction. I cannot see any public interest that is going to be served by having a trial in which the defendant is going to be acquitted in any event.

[26] The trial judge continued noting that another trial date would be months away and the family would remain apart contrary to the wishes of the complainant. It was not in their interest or the public interest to see the family remain separated.

[27] The issuing of a material witness warrant involved the exercise of discretion with the Crown required to show the witness would give material evidence. Bearing in mind her behaviour, it was highly unlikely that she would give material evidence. She would either refuse to testify or would testify in such a fashion that it would not result in material evidence. It was unlikely that she would give material evidence and the Crown had failed to meet the prerequisite so the Court probably had no discretion to issue a warrant.

[28] However, if he was in error in that conclusion, at trial the Crown would be faced with a recalcitrant witness, one who was apparently willing to risk arrest by disobeying a court order. It was highly unlikely there would be a conviction thereby negating any public interest. The only thing that would flow is harm to the complainant who would be arrested and held, resulting in more harm to the family than the public interest in proceeding.

[29] While the need to uphold court orders was apparent, in this case, the interests of the complainant and her family outweighed that concern in respect of upholding the respect of the community for court orders.

[30] The trial judge refused to issue a material witness warrant.

The Reasons for Refusing to Grant an Adjournment

[31] His Honour reiterated the background facts including that there were no visible injuries, no hospitalization, and although all relationship assaults were serious, this incident fell on the low end of a relationship assault.

[32] Based on 23 years plus of experience, the trial judge found it unlikely a conviction would follow a trial. He was hard pressed to see what the public interest was in the proceeding.

[33] Whether to grant an adjournment involved the balancing of the state’s right to proceed with a trial on the merits and the right of the defendant to have a trial in a reasonable length of time on the date specified. A trial had benefits in terms of specific deterrence, but in this case there was no history of violence and if the respondent had not been deterred by a year separation he could not see how a conviction was going to do any more.

[34] His Honour acknowledged that convictions lead to general deterrence but there were no newspaper reporters in the courtroom. Although it was a great theory, he was hard pressed to understand, how a trial in those circumstances creates any general deterrence because no one ever finds out about it.

[35] As regards rehabilitation following a conviction, there was no evidence that it was needed per se and protecting the complainant was not a concern as her letter did not suggest fear; rather there was hope for reconciliation.

[36] His Honour returned to the twelve month delay from the offence to the trial date. If there was an adjournment, the respondent could bring a s. 11(b) application. That would be an added expense of the trial. He would also remain subject to the restrictive bail terms. Having balanced all the factors, the balance favoured the respondent.

[37] In reaching that conclusion, His Honour considered: the minimal nature of the assault, the likelihood of a conviction, the purposeful contempt of the complainant versus the respondent who was at court ready to proceed which would seem to reward the complainant over the respondent, there would be a cost to society from another trial date as would there be a cost to the respondent, and the Crown had other options such as a stay of proceedings. If the Crown stayed the charges and it was determined that there had been coercion or threatening towards the complainant, the respondent could be charged with other offences and the stay removed for a trial on the original charge.

[38] The trial judge refused to grant the adjournment.

[39] The Crown did not stay the proceedings.

The Trial

[40] The respondent was arraigned, no evidence was called and an acquittal entered. After taking "full responsibility as a result of the earlier rulings" His Honour dismissed the charge and then addressed the respondent as follows:

I am not going to speculate on whether this transpired or not. My strong suspicion is it did and then the complainant is unhappy with the ramifications and has decided not to appear today. I hope against hope that it is not as a result of coercion or threatening by you which I understand you to say to be true. But remember this sir, as a result of the allegation of assault … you have been away from your family for a year, you have been under restrictions, you are going to have to pay your lawyer with regards to costs. It would be far better that you work out your problems with your significant other without threats, coercion or the possibility of a laying on of hands it would cost you a lot less money and it will be not nearly as destructive of your family to sort matters out in some way other than using physical violence. Am I making myself perfectly clear, sir?

Narinder Khasria: Yes

The Court: Because all it will take is another call from your wife if you lay one hand on and you will be back, away from your family for another year – etcetera, etcetera, etcetera. So even from a financial, if not moral standpoint, I would make sure you will not tempt your wife in calling the police again. In fact, it may be that she has the upper hand. Go away, do not come back.

Analysis

The Court's Jurisdiction to Hear the Appeal in the Absence of the Respondent

[41] The respondent was served with the Notice of Appeal, the Crown's factum and the notice of the appeal hearing date. The appeal was adjourned to permit personal service on the respondent. I am satisfied that he was personally served and has chosen not to attend the appeal.

[42] In these circumstances, pursuant to Rule 40.22(2) of the Criminal Proceedings Rules the appeal court may determine the appeal in the absence of the respondent or argument from the respondent. Having been notified of two appeal dates and not appearing on either date, the appeal proceeded in his absence.

The Material Witness Application

[43] A material witness warrant may be issued pursuant to s. 705(1) of the Criminal Code that states:

705. (1) Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established

(a) that the subpoena has been served in accordance with this Part, and

(b) that the person is likely to give material evidence,

issue or cause to be issued a warrant in Form 17 for the arrest of that person.

[44] The decision to grant or refuse a material witness warrant is an exercise of the trial judge’s discretion that should not be lightly overturned by an appellate court. R. v. Scott, [1990] 3 S.C.R. 979 at para. 55. It is a question of mixed fact and law. R. v. Meech, 2013 ONCA 338.

[45] The person seeking a material witness warrant must establish the subpoena has been properly served and that the witness is likely to give evidence that is material to the issues at trial. Meech, at para. 6.

[46] The second criteria is the one upon which the trial judge found the Crown had not met the onus. Generally, the second criteria is met with evidence the witness has material evidence to give. Given the initial complaint and that Ms. Khasria had given a KGB statement, it could not be said that she had no material evidence to give. Whether the witness will actually testify in accordance with their sworn statement is not often the subject of evidence or arguments. Here, it was pivotal to His Honour’s decision as was his consideration of whether it was in the public interest to issue the warrant.

[47] I am persuaded that in making that determination the trial judge failed to act judicially because he refused the application on improper bases. The trial judge effectively conducted the trial on the basis of his assumptions about a witness he had never seen and whose KGB statement was never seen by the trial judge. That the complainant had written a letter six days after the arrest seeking to withdraw the charge was neither unusual nor surprising. As the trial judge found, it was not a recantation. Indeed, there is nothing in the letter to suggest that her initial complaint was inaccurate. It can be read as an affirmation of what she had told police - "Even though what happened on that day ..."

[48] The trial judge proceeded on the basis that the witness was not going to testify in accordance with her KGB statement. While she had written the letter and failed to attend the pre-trial meeting, there was nothing upon which the trial judge could reach that conclusion. Defence counsel conceded she had evidence to give in relation to the matter, but continued"whether it will be evidence that inculpates my client, I don’t believe it will be necessarily, from my understanding of what’s gone on." No source was given for this information. While it is uncertain whether that submission was the basis for His Honour’s finding that Ms. Khasria would not give evidence that would support a conviction, if he did so, in the absence of some indication where that information came from, it was improper.

[49] Assuming that the complainant had given evidence inconsistent with her videotaped KGB statement, the Crown could have applied to refresh the witness’ memory, find the statement was past recollection recorded, apply under s. 9 of the Canada Evidence Act, or to have the statement admitted under the principles exception to the hearsay rule. In relation to the last application, a trial judge would have been entitled to look for confirmatory evidence outside the statement. The six year old son's statement included some confirmatory evidence.

[50] The trial judge never considered the scenario in which the complainant’s KGB statement was admissible on a substantive basis and relied upon by the trial judge to convict. He appears to say that if the Crown was granted leave to cross-examine her, the witness’ credibility would be irreparably damaged to the extent that a conviction would be unlikely. Given the trial judge had never seen or heard the witness or watched the KGB statement, the effective conclusion that no judge would find the Crown had established the elements of the offence, was either speculation or a generalized assertion that is what happens when there are KGB statements and the witness testifies to a different set of facts. Both are wrong. The weight to be given to evidence is a case-specific determination - not a generalized assumption. Whether the evidence would have provided an evidentiary basis upon which to convict was for the trial judge to determine after hearing and seeing the evidence given in court.

[51] In addition, what is missing from the reasoning and the inferences drawn is any reference to the situation in which the complainant found herself in Canada. She had no one else to turn to, her husband and his parents treated her like a maid. To simply conclude that she had voluntarily absented herself without more was an arbitrary determination, without an evidentiary basis. When speaking to the respondent after the acquittal, His Honour said that he hoped against hope that it was not the result of coercion or threatening. He said the respondent had said that there were no threats and no coercion. There is nothing on the record to support that conclusion.

[52] That Gurwinder Khasria was reluctant to testify and possibly upset about the prospects of her child having to testify, does not mean she would not testify in accordance with her initial statement. The trial judge obviously took a very dim view of the Crown subpoenaing the child. No doubt the prospect of having a six year old testify against his father, is a trial strategy upon which reasonable people would differ. However, that does not mean the parent can ignore a subpoena or that the parent would lie under oath.

[53] That this was not as serious as other domestic assaults played a role in both of His Honour’s decisions. No doubt assaults that result in medical attention being required and visible injuries are more serious. However, higher courts have repeatedly held that domestic assaults are a serious issue. The allegation included a slap and a kick to the stomach. While not as serious as some, this was not a minor incident. It involved a slap in the face and a kick to the stomach in a domestic context and in front of the couple's six year old son.

[54] The trial judge proceeded on the basis that this was an isolated incident of physical abuse, that the complainant was not in fear of the respondent and that the argument was over domestic chores. There was no mention that the complainant had left the home and gone to a shelter in the past because she was afraid or to her being isolated in Canada. In R. v. Bates (2000), 146 C.C.C. (3d) 321 the Court of Appeal held:

30. The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.

[55] It is apparent that these concerns were ignored by the trial judge.

[56] In the circumstances, I am persuaded the trial judge erred in refusing to issue a material witness warrant. This error alone merits a new trial. If I am wrong in that conclusion, I will examine the second ground of appeal.

The Adjournment Application

[57] In R. v. Darville (1956), 116 C.C.C. 113, the Supreme Court of Canada addressed the granting of adjournments to obtain witnesses as follows:

… nothing was shown to establish in a judicial way that the witnesses were material to the case, that there had been no neglect in omitting to endeavour to procure their attendance, and that there was reasonable expectation that they would be present at a future date if a postponement were granted.

[58] The three factors have become the criteria applied when adjournments are sought to obtain witnesses who have not attended:

i. is the witness material? ii. has there been any neglect in attempting to have the witness appear? iii. was there a reasonable expectation that the witness would be present at a future date?

[59] There was no suggestion the Crown was not diligent in attempting to have the witness attend. Since there was no evidence she had left the jurisdiction or was unable to attend on a later date, the only issue was whether she was material. She was.

[60] If the criteria include that the witness must be likely to give material evidence, for the same reasons noted above, the trial judge erred.

[61] In addition, the trial judge’s references to delay, the bail terms and s. 11(b) and the expense of another trial date and a Charter application were misplaced. The frequently asserted failure of the Crown to consent to bail variations are entitled to little, if any weight when no bail review was conducted. Crowns cannot veto requests to vary bail terms.

[62] The concerns regarding s. 11(b) issues were also misplaced. Whether the failure of a Crown witness to attend contributes to systemic or Crown delay would have to be litigated. When the new trial date would have been was never canvassed.

[63] Finally, while it dealt with a case of domestic abuse involving serious personal injuries, I find the Court of Appeal judgment in R. v. Henry [1987] O.J. No. 947 provides helpful assistance. There a trial judge had refused an adjournment when the complainant had not attended. The Court held that trial judges should take reasonable steps to satisfy itself that that absence of the victim was not because of intimidation or fear. While this case did not involve bodily harm, the same approach should be taken. To refuse the Crown’s request to determine why the complainant had failed to attend when she said she would, was wrong. As noted above, His Honour's conclusion that this was a voluntary absence was speculative.

[64] In the alternative, to suggest that a voluntary absence can defeat the public interest in a trial on the merits in a domestic abuse case, is to send the wrong message about domestic abuse - a message that for domestic assaults that are not as serious as others where children are subpoenaed, the failure of a reluctant witness to attend will result in an acquittal.

[65] I note, as well, that if the adjournment had been granted, the trial judge’s concerns for the arrest of the complainant were eliminated.

[66] The last area of concern is the trial judge's "invitation" to the Crown to stay the proceedings instead of having the respondent arraigned. The effect of that would have been a stay to circumvent an inevitable acquittal. Having failed to obtain an adjournment, the stay would effectively achieve what had just been refused. His Honour’s concern for the costs of a potential s. 11(b) application would have been transferred to an abuse of process application even though it would have been at the Court's suggestion.

[67] I am persuaded His Honour improperly refused the adjournment application.

Conclusion

[68] The appeal is allowed and a new trial ordered. The Crown may take steps to summons the respondent.

Durno J.

Released: November 4, 2013

MILTON COURT FILE NO.: 199/2012 DATE: 2013/11/04

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Narinder Khasria

REASONS FOR JUDGMENT

[On appeal from a judgment entered by the Honourable Mr. Justice K.G. Lenz, from a judgment on October 22, 2012]

Durno J.

Released: November 4, 2013