COURT FILE NO.: BR(P) 512/20

DATE: 2020 11 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Michael Morris for the Respondent Crown

• and –

BARINDERJIT KHINDA

Robert Lepore for the Defendant Applicant

HEARD: November 16, 2020 by Zoom conference

PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE ONLY WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES

RULING ON SECTION 520 BAIL VARIATION

D.E HARRIS J.

1This case provides a glimpse into the dynamics at work in the context of a domestic assault bail release. The accused and complainant join together to ask that a variation be permitted to delete the no contact clause and to allow the accused Applicant to return home.

THE BACKGROUND

2On January 14, 2020, the complainant Manpreet Kaur attended at the police station to report that the Applicant, her husband, had slapped her about two or three weeks before. He had accused her of having a boyfriend and an argument had erupted. He slapped her in the face and walked away. The Applicant is charged with assault with respect to this incident.

3At the same time, the complainant reported an incident that took place between August 1, to September 30, 2019. At about 10 a.m. one morning, again there was a verbal argument. The Applicant that time as well accused the Applicant of having a boyfriend. Again he slapped her in the face. He demanded her passport. She bent down to retrieve it in the closet. The Applicant proceeded to bite her in the right shoulder and the left hand. He took the passport from her, returning it two to three days later. This incident was charged as robbery, which although technically speaking may fit the circumstances, appears to be a clear instance of overcharging.

4When Ms. Kaur attempted to call 911, the Applicant, wielding a kitchen knife, said that he would kill her. He is charged with assault with a weapon and threatening for this allegation.

5Pictures were taken of the bite marks. The complainant also told the police that before the couple immigrated to Canada from India, there were incidents of abuse. In one situation, the Applicant had been drinking and threw a bottle at the complainant who was pregnant at the time. Luckily, the bottle missed her.

6The complainant made a KGB statement when she reported these incidents at the police station. The Applicant was arrested and was released on a promise to appear and an undertaking requiring him not to communicate with his wife and not to attend at the family home. He was required to move out.

7After he had been on the undertaking release for just over a month, on the morning of February 26, 2020, a person contacted the police out of concern for the complainant’s safety. She was in the presence of her husband at a shopping mall. The police attended and the complainant reluctantly agreed that her husband had been with her. She provided a written statement. Footage from security cameras was obtained and showed that the two had been together for about two hours at the mall. The complainant said that she had needed medicine but had no money and her husband had given her money for the medicine.

8The Applicant was arrested, charged with violation of his bail, and released on consent of the Crown on February 28, 2020. The bail was a $5000 surety release with the usual no contact and no attendance at the home conditions. The Applicant was required to live with his surety. Defence counsel said that there was no need for the Applicant to go back to the home to retrieve belongings.

9A letter dated November 10, 2020 was filed on this application from a registered psychotherapist recording that the Applicant has completed four one hour anger management sessions and is to complete six more in the near future.

10In an affidavit sworn in March 2020 in an attempt to convince the Crown to agree to a bail variation, the complainant played down the seriousness of the allegations against her husband and retracted some of them. She stated that she did not wish to be a witness against her husband. Ms. Kaur also said that she was not fearful of her husband and wanted him back home as soon as possible. In another affidavit sworn November 10, 2020 for this bail review, she adopted the contents of the earlier affidavit.

11In this most recent affidavit, Ms. Kaur also outlined the effect on their young daughter of not having her father at home. She cries after she talks to him and does not understand why he cannot come home. For her part, Ms. Kaur says that she relies on her husband for emotional and financial support. Financially, it has been difficult to make ends meet since both their incomes are barely enough to cover expenses. Raising their daughter and maintaining their household has been difficult.

12At the hearing in this matter, in cross-examination, following the hints in her affidavits, the complainant went all the way to a full recantation. She neither remembered the KGB video she gave the police nor the assaults themselves. She claimed that this was the truth and not just a means to get her husband back home.

SHOULD THE VARIATION BE GRANTED?

13The concatenation of events in this case is all too familiar. The pattern is a well-worn one: the allegation of an assault or threatening offence, the consequent bail order banishing the accused from the home and prohibiting contact, the ensuing hardship to the complainant, and then the recantation. This is a scenario acted out in domestic cases with alarming regularity. Ms. Kaur said what many complainants in domestic assault cases say. If she had known that her complaint would put all this in motion, she would never have made it.

THE PUSH AND PULL OF NO CONTACT BAIL CONDITIONS IN THE DOMESTIC CONTEXT

14The plight of complainants in these type of cases is a sympathetic one. They are in a vulnerable position. It could be said that they are between a rock and a hard place. There is powerful financial and emotional pressure brought to bear on them as a result of the court ordered separation. Generally speaking, there is a strong incentive to reconcile with the accused.

15The accused suffers hardship as well. The stress caused by bail conditions in domestic assaults has been recognized by the Court of Appeal, albeit in the context of a house arrest bail: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (Ont. C.A.) at para. 33. Bail violations of the no-contact bail conditions are often the rule, not the exception.

16The repercussions from the bail order in this case are obviously impacting heavily on both the complainant and the accused. But there is a countervailing public interest in ensuring that the complainant is protected from harm. In his book, “The Law of Bail in Canada” (3rd ed, 2017) at Section 3.3(b)(iii) Justice Trotter explains the dangers:

Another type of offending that causes an apprehension of repetition is domestic violence, particularly if there has been a history of this type of behaviour. Numerous bail judges have recognized the volatile nature of these situations, especially when alcohol is added to the mix. These situations are complicated by the desire of some complainants to re-establish contact with the accused, and by joint parental responsibilities.

The criminal justice system has been forced to take a hard look at the way it deals with spousal assault. Awareness of the "cycle of violence," typical in many abusive relationships, along with certain catastrophic and highly publicized failures of the criminal justice system (especially the bail system) in this context, have created real concern about offending while on bail for spousal assault. Unless conditions of release can meaningfully protect the physical integrity of the victim, then the detention of the accused person pending trial may be the only alternative.

[Footnotes Omitted]

17At the same time, the damage wrought to the family unit, including children, cannot be ignored. In the family law context, Justice Pugsley has written in Shaw v. Shaw 2008 ONCJ 130, [2008] O.J. No. 1111 (Ont. C.J.):

5 The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace. These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact. Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant's children without any consideration of the factors that this court must apply by law before determining incidents of custody or access. This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted. I observe, however, that the damage of which I speak is not from the laying of the charge - this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties. Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system - from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency - effect the lives of the members of the defendant's family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved. Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.

(Emphasis Added)

18Also see Gonzalez v. Trobradovic, 2014 ONSC 2468 (Ont. S.C.J.) at paras. 32-35.

19In both Shaw and Gonzalez, the man in the relationship was the complainant and the woman was the accused. It is not surprising that the judges in both cases complained about the routine imposition of banishment from the home with no allowance for the exercise of discretion. There are some crimes in which men are generally the accused and women are predominately the victims. Child sexual abuse is one example recently recognized by the Supreme Court: R v Friesen, 2020 SCC 9, [2019] S,C.J. No. 100 (S.C.C.) at para. 68. Domestic assault is another area in which, by and large, men are the alleged aggressors and women are the victims. Both Shaw and Gonzalez were examples in which despite this common dynamic being reversed, the accused women were excluded from the family home. There was reason to doubt whether there was appropriate discretion applied as opposed to an unthinking blanket policy with reference to anyone accused of domestic assaults. The ire of the judges expressed in those cases, in light of this, was understandable.

20The Court of Appeal has emphasized the importance of exercising discretion in the domestic assault bail context: see R. v. Rashid, 2010 ONCA 591 (Ont. C.A.). Given the potential damage to the family unit brought about by bail conditions, this is imperative. The risk aversion culture seen with respect to bails (R. v. Zora, 2020 SCC 14 (S.C.C.) at para. 77) is particularly prominent in domestic assault situations.

21When domestic assault belatedly appeared on the judicial radar several decades ago, prosecutors and police were, as a matter of policy, permitted no discretion whatsoever. That was easy to implement and, most attractively, completely avoided any degree of risk. But in its uniform inflexibility, it was frequently unfair to accused persons. Now, more is expected. Discretion is vital. It must be a discretion, however, attune to the seriousness of the contours of the problem, a serious problem by any estimation. The safety of the complainant must be paramount.

22The prospect that jealousy and emotional turmoil could erupt into domestic violence is exceedingly difficult to gauge with any degree of reliability. What happens between two people in an intimate relationship is impossible for an outsider to fully appreciate. Once some violence has taken place, it may well happen again. “Battered wife syndrome” was recognized by the Supreme Court of Canada 30 years ago in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36, 108 (S.C.C.). Some form or another of battered wife syndrome is common in domestic violence cases. The wife is attracted to the husband like a moth to the flame. This leads, as it must, to a cautious approach to bail. Codifying this, the Criminal Code contains a new provision, Section 515(3)(a), which requires a bail judge to consider the issue of “intimate partner” violence. But caution does not mean treating every case alike or precluding innovative solutions.

23Unfortunately, this case is one where relaxation of the banishment or the no contact conditions would be imprudent. Quite often, despite the parties expressed desire to reconcile, judicial paternalism is necessary. The complainant may not be able to fully appreciate the dangers ahead. Judicial experience plays an invaluable function in this context. Bail restrictions or even pre-trial detention may well be necessary to ensure that a complainant is adequately protected.

24That is inescapably the case here. This is not a persuasive case for variation. The reasons why the conditions must be maintained are these:

a) There is a significant history of violence. There was the incident or incidents in India and then at least the two charged incidents in Canada.

b) The brandishing of a knife in order to prevent the complainant calling 911 is troubling.

c) Alcohol was involved in the incident in India.

d) There was a common theme of jealousy of another man motivating these alleged assaults. There is every chance that this was more imagined than real but that does not alleviate the danger. Jealousy is a highly volatile, combustible quantity.

e) The bail breach at the mall was brazen. It also showed that the complainant is quite dependant economically on the accused which, if anything, increases the chances that her judgment cannot be trusted. Variation applications like this are always more compelling if an Applicant can show a good track record of compliance. Violations of domestic assault bails should always give pause.

f) The recantation, a transparent attempt to assist the accused, is another warning sign. The desperation evident in the recantation is indicative of the severe pressure on the complainant.

25Furthermore, in order to maintain the confidence of the public, it would be ill-advised to reward the highly suspicious and quite unconvincing recantation expressed by the complainant by acceding to her wishes. It becomes an issue of the integrity of the administration of justice: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.) at para. 27; R. v. St. Cloud 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.) at para. 33.

26The case, based on the KGB statement and the photographs of the injuries, remains fully viable. At this stage at least, the psychotherapy work the Applicant has done is insufficient to allay the concerns. The report filed does not provide an assessment of the Applicant. It is important, however, that this work continue as it will unquestionably benefit him and his legal case.

27For these reasons, the application is dismissed. The Supreme Court in R. v. Myers, 2019 SCC 18, 2019 CSC 18, 53 C.R. (7th) 1 (S.C.C.) at para. 24 recommended that one way to deal with trial delays causing prejudice to an accused’s liberty interests is an order to expedite the trial. In order to alleviate the prejudice from the bail conditions, I make an order expediting the trial. To facilitate an early date, Crown and defence should attempt to condense the time allocation for this trial.