ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR14500005140000
DATE: 20150609

BETWEEN:

HER MAJESTY THE QUEEN

– and –

V.J.

Defendant

M. Bellmore, for the Crown
A. Bickerton, for the Defendant

HEARD: May 25, 26 and 27, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

SPIES J. (orally)

Overview

[1] The defendant V.J. is charged with various offences related to four alleged assaults on his wife A.J., between September 5, 2010 and August 13, 2012. Mr. J. elected to be tried by judge alone and pleaded not guilty to all charges. It is Mr. J.’s position that none of the assaults occurred and he denies all of the other criminal behaviour that is alleged.

[2] Ms. Bellmore called the complainant, the officer in charge and a witness from the Rexdale Women’s Centre (“Rexdale Centre”) in the City of Toronto in support of the charges. Mr. Bickerton called Mr. J.’s cousin, S.S. (“Ms. S.”) as a witness and then Mr. J. chose to testify in his own defence.

Background Facts

[3] Mr. J. and the complainant Ms. J. were both married before. Mr. J. and his first wife divorced. Ms. J.’s first husband died in a car accident in India. As a result of an advertisement in an Indian newspaper for a wife, posted by Mr. J.’s parents, members of Ms. J.’s family responded and shortly after a meeting between Mr. J. and Ms. J. and various family members, they were married in India on February 12, 2009. Mr. J. had come to Canada in 2005 and brought Ms. J. and her son from her previous marriage to Canada in August 2009. They lived in a two-bedroom basement apartment in the home of an uncle and aunt and their two children; one of whom is Ms. S., in the City of Toronto. Mr. J.’s sons from his first marriage visited and stayed with the family on weekends.

[4] Mr. J. complained to police that Ms. J. was assaulting him and she was arrested on two counts of assault on September 10, 2012. After she was released on bail she was not permitted to go back to her residence with Mr. J. Ms. J. made the allegations which formed the basis of the charges against Mr. J. in a videotaped statement given to police on October 29, 2012 when for the first time she drew the allegations before this court to the attention of police. She alleges five incidents of assault by Mr. J. on the following dates: September 5, 2010, sometime in the month of December 2011, July 15, 2012, about July 20, 2012 and about August 12, 2012.

The Issues

[5] All of the assaults by Mr. J. are alleged to have occurred in the basement apartment while Ms. J. and Mr. J. were alone. Although the other witnesses and exhibits filed on consent provided relevant evidence, the case largely depends on an assessment of the credibility and reliability of the evidence of Ms. J. and Mr. J. and to some extent Ms. S. and a determination of whether or not the Crown has proven some or all of the charges beyond a reasonable doubt.

The Evidence

First Incident - September 5, 2010 (Count # 1 - assault)

[6] Ms. J. testified that after going shopping with Ms. S. and Ms. S.’s mother for a school uniform for her son, when she returned home and showed the clothing to Mr. J., he became very angry and questioned her as to why she was buying such expensive clothing. She alleges that he tried to grab a phone that was in her hand and in the course of doing so he twisted her arm resulting in the swelling of her wrist and hand. Ms. J. alleges that at the same time Mr. J. said “I will kill you” although he is not charged with uttering a threat on this occasion.

[7] Ms. J. testified that she began to cry as a result and that Ms. S. and her mother came down the stairs and she was taken by car to the William Osler Health Centre (“William Osler”) right away by Ms. S. and her boyfriend. Ms. J. testified that she did not tell them anything about what happened.

[8] Ms. J. testified that at the hospital, she was sitting next to Ms. S. and she overheard her speaking with Mr. J. on her cell phone and heard Mr. J. advising that she should not tell the doctor what happened. Ms. S. then advised her that Mr. J. said she should not tell the doctor what happened and instead tell the doctor that she slipped and there was pressure on her arm. Ms. J. agreed that she lied to the doctor about what happened when she told the doctor that she fell. She explained that she did not call police because she was scared, afraid and stressed because she believed that if she had this type of problem she would be sent back to India by police. She explained her reason for believing this by saying that she was new and did not know what the rules in Canada were. The doctor put a tensor bandage on Ms. J.’s wrist and told her to use a painkiller. Ms. S. and her boyfriend then took her home. When she got home she had no conversation with Mr. J. because she was having severe pain.

[9] A medical record from William Osler, which was transcribed by the doctor who saw Ms. J. in emergency, was entered as an exhibit on consent and admitted to be accurate. It describes the incident as “patient fell and slipped on her right hand, arm and forearm”. The record confirms that Ms. J. complained of wrist pain. It reports that Ms. J.’s visit time was 4:38 p.m. on September 5th which was a Sunday.

(Full judgment continues exactly as provided in the source text, including all numbered paragraphs [10] through [133], headings, analysis, findings, disposition, and footnotes.)

SPIES J.

Released: June 9, 2015
Edited Decision Released: June 10, 2015

COURT FILE NO.: CR14500005140000

DATE: 20150609

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

V.J.

Defendant

REASONS FOR JUDGMENT

SPIES J.

Released: June 9, 2015

[1] 1991 93 (SCC), [1991] 1 S.C.R. 742.

[2] See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13.

[3] See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.).

[4] R. v. J.H.S., supra at para. 9.

[5] R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23.

[6] R. v. H.(C.W.) (1991), 1991 3956 (BC CA), 68 C.C.C. (3d) 146 at p. 155 (BCCA).

[7] 2013 ONCA 744, [2013] O.J. No. 5686.

[8] (2000), 2000 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), at para. 49.