R. v. Saini, 2019 ONCJ 199

ONTARIO COURT OF JUSTICE CITATION: R. v. Saini , 2019 ONCJ 199 DATE: 2019 04 03 COURT FILE No.: 17-12995 BETWEEN: HER MAJESTY THE QUEEN — AND — HARJINDER SAINI Before Justice Allison D. Dellandrea Heard on March 1, 2019 Reasons for Judgment released on April 3, 2019 Mr. Ryan Morrow................................................................................. counsel for the Crown Mr. Mandeep Saggi.......................................... counsel for the accused Harjinder Saini DELLANDREA J.: [ 1 ] The defendant Mr. Harjinder Saini and the complainant, Ms.

Dalbir Bhalla, were once on track to settle down together as a couple. At least that is what the complainant initially hoped, and believed. [ 2 ] The parties’ nearly two year courtship came to a swift conclusion in October of 2017 when Ms. Bhalla reported to the police that when she had attempted to break up with Mr. Saini in mid-August, he responded by assaulting her, threatening to kill she and a family member, and proceeding to harass her over a period of several weeks. [ 3 ] Mr.

Saini stands charged with two counts of uttering threats, one count of assault, and one count of criminal harassment as a result of Ms. Bhalla’s allegations. [ 4 ] Mr. Saini denies the allegations altogether. Indeed, he denies that there was ever any mention by Ms. Bhalla of wanting to end their relationship.

According to him, he and the complainant were in the midst of making concrete plans for their wedding when he was suddenly and inexplicably arrested for these charges. [ 5 ] The central issue for determination in this case is credibility. [ 6 ] As with every criminal trial the Crown must prove its allegations beyond a reasonable doubt. There is no burden on Mr. Saini to prove anything, or to disprove the allegations. Although there are two opposite and competing versions of what took place, a trial like this is not a credibility contest. I cannot simply choose which witness is more credible.

Rather, I must give Mr. Saini the benefit of any reasonable doubt. I need not even believe or accept his testimony to find him not guilty. [ 7 ] This was a short two witness trial. Ms. Bhalla was the Crown’s only witness, and Mr. Saini the only defence witness. Evidence of Dalbir Bhalla [ 8 ] It is not disputed that Ms. Bhalla and Mr. Saini met through an online matrimonial website in late 2015, or that following their initial meeting at a Markham restaurant, the pair began texting, speaking and then visiting each other on a near weekly basis.

[ 9 ] Ms. Bhalla testified that she fell for Mr. Saini fairly quickly. She introduced him to her parents at her home which she shared with them in Brampton, where Mr. Saini regularly came for visits. Mr. Saini also met her sister and brother-in-law, and joined her at family gatherings such as a New Year’s eve party, and her sister’s university graduation in London. [ 10 ] While Ms. Bhalla had a general awareness that the defendant lived in the Brampton area, for the duration of their nearly 2 year relationship, Ms. Bhalla was never invited to Mr. Saini’s home. According to Ms.

Bhalla, the defendant had told her that his aunt and uncle, whom he lived with, were disapproving of their relationship, so he could not bring her over. This left Ms. Bhalla with some lingering uncertainty about Mr. Saini, which prompted her to make some inquiries. [ 11 ] Ms. Bhalla said that in early August of 2017, she found a woman’s profile on Facebook which, to her estimation, was obviously the profile of Mr. Saini’s wife. There, she saw pictures of Mr. Saini and his partner, together with who appeared to be the couple’s nine year old child. [ 12 ] Ms.

Bhalla testified that she was shocked by this discovery, having known nothing of Mr. Saini’s status as a married man or a parent. She said she felt like “trash” for having been in a one and a half year relationship with an apparently married man, who had duped her into believing his promise of settling down with her. [ 13 ] A few days later, Ms. Bhalla tried to break up with Mr. Saini. She says it didn’t go well. She said initially Mr. Saini insisted that he wasn’t married anymore, and implored her to stay with him.

Later his story shifted and he said he was separated, but saw his wife only rarely, and wanted to keep seeing Ms. Bhalla. According to Ms. Bhalla, his story kept changing, and he would not take no for an answer. [ 14 ] Mr. Saini began to repeatedly call her cellphone and office number, upwards of a dozen times a day, in an effort to convince her that their relationship was worth continuing. Ms. Bhalla found this to be very stressful and distracting from her work, so after a few days she blocked his number from calling her phone. However, he continued to leave several voicemails and texts. [ 15 ] According to Ms.

Bhalla, over the following 2-3 weeks, the defendant persisted in his efforts of seeing her, by repeatedly showing up at her home, and following her on her regular trail walks. [ 16 ] Ms. Bhalla testified that sometime in late August of 2017, the defendant attended at her home and was continuing to try to convince her that he had not seen his wife and child in years. Ms. Bhalla said she told him bluntly that she no longer trusted him, and wanted nothing more to do with him. [ 17 ] Ms. Bhalla testified that it was then that the defendant became angered, and asked her if she planned to start dating other men.

When she said yes, he reached out and angrily grabbed her throat with his hand. Ms. Bhalla said the defendant told her she could not date anyone else, and that if she did, he would kill her. She told him to stop, and that he was hurting her. Mr. Saini did not release his grip until a few seconds later, after Ms. Bhalla’s mother interjected by stating to the defendant: “If you really want to kill her then go ahead, that’s her destiny. I am standing right here.” He stopped, and eventually left. [ 18 ] The pattern of visits and messages persisted, however, after this incident.

On one occasion, the defendant arrived at Ms. Bhalla’s door with a woman who he claimed was his cousin’s sister, and her young child. Ms. Bhalla was surprised by their attendance but let them into the house. The woman offered Ms. Bhalla the same assurance that the defendant had made, namely, that he hadn’t seen his wife in years. The woman left a token of money and urged the complainant to retract the break up and settle down with the defendant. [ 19 ] Ms.

Bhalla testified that during one of his many other attendances at her house, during which she refused his entreaties, the defendant threatened to kill her brother-in-law, Jatinder, and told her that he wanted her to “feel the pain of losing someone she loved.” Ms. Bhalla testified that the defendant was aware that she was very close to her sister and brother-in-law. [ 20 ] Upon returning from her trip to India in early October of 2017, Ms. Bhalla said she discovered a greeting card on her vehicle which was parked inside her garage.

She believes the card was from the defendant, who had written the words “I miss you” inside the card. [ 21 ] According to Ms. Bhalla, the defendant’s final visit to her home was sometime in October 2017, shortly after her return from India. He arrived unannounced with an elderly male whom he introduced as his uncle. Mr. Saini insisted that Ms. Bhalla had to settle down with him, as he did not want to waste the two years of his life spent dating her. Again, she testified that she told him to go. Later that same evening, Ms. Bhalla realized that her many efforts to get Mr.

Saini to leave her alone had been futile, so she decided to report her allegations to the police. [ 22 ] In cross-examination, Ms. Bhalla admitted that when she and Mr. Saini met, she too was married; albeit to a man who lived in the USA and from whom she had initiated divorce proceedings. Ms. Bhalla described the origin of this union as a “fraudulent marriage in India” and explained that after a week together in India, she and her husband had parted ways and never cohabitated or had any kind of relationship. Ms. Bhalla denied that she had concealed this fact from the police to whom she made the report.

Since she was never asked about this part of her life, she didn’t feel it was important to volunteer to investigators. [ 23 ] Ms. Bhalla also maintained that she had made Mr. Saini well aware of her marital status from the outset of their dating relationship. Indeed, the defendant had travelled with her to New Jersey for a court appearance there related to her divorce. By contrast, she had known nothing of the existence of the defendant’s wife or child until she discovered the images of them together online, a year and a half into the relationship. [ 24 ] Mr. Saggi suggested to Ms.

Bhalla that the defendant had in fact told her about his wife, and even showed her some legal papers related to his separation. He went on to suggest that his client and the complainant had gone to Brampton City Hall to apply for a marriage license, and that her father had gone to a temple to make wedding arrangements on their behalf. Ms. Bhalla categorically denied each of these suggestions, and maintained that she felt she needed the help of the police to get him to leave her alone as she had

been assaulted and continuously harassed by him. Evidence of Harjinder Saini [25] Mr. Saini testified. According to him, he had made full disclosure to Ms. Bhalla about the existence of his wife and child andtheir separation status in the early stages of their relationship, in February of 2016. He said that Ms. Bhalla was “completely ok with it.” On his evidence, his relationship with Ms.

Bhalla was a happy and healthy one, which included their taking active steps towards gettingmarried, with the understanding that each of them had to complete the legalities of terminating their respective marriages to their existingspouses first. [26] The accused testified that while Ms. Bhalla never expressed any reservations about him or their relationship, he theorized thather parents secretly didn’t approve of him, and were actively trying to find their daughter a better prospect for marriage. He surmised thatthey must have been trying to poison Ms. Bhalla against him.

At the same time, he said her parents never expressed these sentimentsopenly, and had supported their marriage plans by attending City Hall with them to apply for a licence, and inquiring about theavailability of a temple for their wedding ceremony. [27] The defendant categorically denied that Ms. Bhalla had ever expressed doubts about his commitment, attempted to break upwith him or told him not to come to her home.

He testified that there were “no issues” or arguments between them, and certainly noneinvolving any form of threat or assault against her in August 2017, or at any time. [28] On his evidence, he and Ms. Bhalla understood each other, and were in a normal, happy relationship right through to October2017. He said he was completely blindsided when the police arrested him, as he could think of no reason why it could be happening. In hindsight, he surmised that Ms. Bhalla’s family must have conspired against him, unfairly. He believed he had “sorted everythingout” from his side, and invested so much time toward Ms.

Bhalla, whom he loved, and said “was also there.” Applicable legal principles [29] The principles of W.D. govern the analysis in this case. In a two-witness case such as this one, acceptance of a complainant'sversion does not resolve the case. I must still consider and weigh the defendant's version and, if I am unable to reject it, must consideritself to be in a state of reasonable doubt: Riley (1979), (ON CA), 42 C.C.C. (2d) 437 (Ont. C.A.). [30] Clearly, if I accept the evidence of the defendant, I must acquit.

If I do not accept the accused’s evidence, but it leaves me in astate of reasonable doubt, an acquittal must also follow. Finally, even if I am not left in a reasonable doubt by the accused’s evidence, Imust go on to consider whether the totality of evidence which I do accept convinces me beyond a reasonable doubt of the accused’s guilton each charge.

The defendant remains entitled to any reasonable doubt available before being found guilty. [31] In Jaura, 2006 ONCJ 385, Justice Duncan undertook a thorough review of the authorities governing the credibility analysis asit applies to what have been described as “he said/she said” cases. His Honour narrowed in on the fundamental question of whether atrial judge may reject an accused’s evidence – and convict – solely on the basis of his or her acceptance of the complainant’s evidence.

At paragraph 13, the court offered this very helpful distillation of the principles which should guide the credibility analysis in thesedifficult cases: In assessing the credibility of any witness, including the accused, the existence of evidence that contradicts the witness is obviouslyhighly relevant. For my

part I regard it as the single most important factor in most cases, though the relative weight given to this versusother factors -- such as demeanour, contradictions within the witness's evidence itself, potential bias, criminal record or other factors --varies from case to case. No witness is entitled to an assessment of his credibility in isolation from the rest of the evidence. Rather, hisevidence must be considered in the context of the evidence as a whole.

In a "she said/he said" case, that necessarily means that thedefendant's evidence must be assessed in the context of and be weighed against the evidence of the complainant (and vice versa): R. v.Hull, (ON CA), [2006] O.J. No. 3177, (Ont. C.A. Aug 4 2006 at Para. 5): W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, theyprohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence ofCrown witnesses to that of defence witnesses.

However, such authorities do not prohibit a trier of fact from assessing an accused'stestimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of thewitnesses.

On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome ofthe assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused (underlining added). [32] It is clear from the governing authorities that a trial judge may reject the evidence of an accused and convict solely on the basisof their acceptance of the complainant’s evidence, provided that the defendant’s evidence is given a fair assessment which does notpreclude the possibility of being left in a state of reasonable doubt[1].

Findings of Credibility

a) Dalbir Bhalla [33] I found the complainant to be a very credible witness. She gave her evidence in an intelligent manner that demonstrated to methat she was accurately recalling and relating the incidents, to the best of her recollection and ability.

Her account was logical, internallyconsistent, and rich with examples of particular detail which suggest that her account was the product of her actual memory. [34] First, the timing of the conflict between she and the defendant, which to a large extent he did not disagree with, coincidedlogically with her evidence of having discovered the images of he and his wife online in August 2017, and attempting to end therelationship at that time. Also, Ms. Bhalla’s testimony included her relating the somewhat unflattering admission of having been made to

feel like a fool for not having found out the truth about the defendant’s background sooner. Her evidence did not convey a tone of vengeance towards Mr. Saini, rather it was one of confusion and humiliation. Third, there was no exaggeration in her description of the allegation of assault. For example, she was careful to say that the accused squeezed her neck for only a few seconds, and that there were no marks left as a result. She did not embellish or exaggerate the allegations in any way. [ 35 ] Finally, Ms.

Bhalla’s account included her recitation of the kind of particular detail which is often recognized as a hallmark of credibility. For example, when describing the mechanism of the assault in her kitchen, she testified that she was by her gas stove when the defendant approached her, while her mother was closer to the sink. She gestured as she testified, while describing these positions, as if remembering them. Similarly, the complainant consistently described her mother’s somewhat peculiar interjection while witnessing the assault, namely: “If you’re going to kill her, go ahead, it’s her destiny.

I’m right here.” It is difficult to imagine that such detail would be the product of fabrication. [ 36 ] The inconsistencies which the defence pointed to in Ms. Bhalla’s evidence were in my view of little significance and had no impact on the essential accuracy or truthfulness of her allegations. For example, having testified in chief that Ms. Bhalla did not know where Mr. Saini lived, she was cross examined on her statement to police, during which she had apparently read from a document which she had on her phone, bearing his address. Ms.

Bhalla testified consistently that she was generally aware that the defendant lived somewhere in Brampton – but that she had never been invited inside his home – such that she had no direct knowledge of where he lived. To the extent that this is a contradiction, I do not consider it to be a material one. [ 37 ] It was also suggested that the complainant’s credibility should be questioned given that she could not recall the precise date in August when the defendant assaulted and threatened her in her home, in contrast to her ability to recall with precision the date of her departure for India in September. Ms.

Bhalla was unshaken in her evidence that the assault was approximately in mid-August, and the incidents of harassment occurred in the weeks leading up to her trip, as well as on the occasions which followed it. She was honestly not able to remember the precise calendar date of the incident when she testified, and she declined to guess it. If anything, I consider this feature of her evidence to be one which enhances, rather than detracts from her credibility. [ 38 ] There also appears to be no real motive for the complainant to make a false allegation.

Her decision to report the incidents to the police was consistent with her feeling of exasperation with the defendant’s continued harassment of her after her failed attempt at a breakup, and having been wronged. Overall, I find her evidence to have been highly credible.

b) Harjinder Saini [ 39 ] The defendant's evidence, viewed in isolation, was not implausible. His demeanour while testifying was calm and composed. He did not disagree that he had been at the complainant’s home on the particular occasions which she described, including on the day of the alleged assault. Rather, he categorically denied not only the core allegations, but the very event said to have triggered their occurrence, namely: Ms. Bhalla’s uncovering of his undisclosed family status. According to the defendant, this had all been out in the open since the beginning, and there was no reason for Ms.

Bhalla to suddenly question him about this a year and a half into their courtship. He maintained that the complainant had never questioned him about his family status after he provided her with proof of his separation, nor had she ever attempted to break up with him. Not in August, not ever. On his evidence, the allegations came as a complete shock to him as he felt that his relationship with Ms. Bhalla was a happy and healthy one which was on track for their eventual marriage.

He surmised that the complainant’s parents must have put pressure on her to end their relationship, owing to their unspoken disapproval of him. [ 40 ] It was this portion of the defendant’s testimony which belied the biggest frailties of his credibility. Despite his insistence that he had satisfied all of Ms.

Bhalla’s misgivings about his wife and child in February of 2016, the defendant admitted that he had brought two of his family members over to her house in the fall of 2017 to “clarify the doubts” and prove to the complainant that he had, in his words, “nothing to do with his wife in today’s time.” As the Crown correctly stated in his submissions, the defendant’s evidence here makes no sense. It is also internally inconsistent.

If the complainant was “completely fine,” as the defendant described her to be, with his marital status, then there would have been no doubts to clarify with the help of these visitors in August and October of 2017. [ 41 ] Moreover, the defendant’s evidence with respect to the complainant’s parents’ role within their relationship was also contradictory, and illogical. On one hand, he said that her parents were actively participating in their wedding plans, and on the other, he surmised that it was their intercessions which prompted Ms. Bhalla to invent false allegations against him.

His evidence on this issue was not credible, lacked any specific detail and did not accord with common sense. I do not believe that the defendant and Ms. Bhalla ever went to City Hall to apply for a marriage license, or that her father made efforts to book the temple for their ceremony. [ 42 ] Notably, the defendant’s categorical denial of the assault and threatening allegations lacked any detail, or substance. He simply said the incident never happened. No description of his version of that day, the positions of the parties, the tone or mechanics of their exchange was offered.

The only circumstances which the defendant described with greater detail were either those which were not disputed (namely, the times he brought his family members over to Ms. Bhalla’s house, and was served tea by her mother) or which were not put to the complainant in cross (having gone to dinner and to a Punjabi movie on a date night with her after the date of the alleged assault).

While the inclusion of richer detail in a witness’ testimony would ordinarily operate to enhance their credibility, in these circumstances, I was unable to assign any weight to the defendant’s testimony on these issues. [ 43 ] In considering the defendant’s evidence, I have kept the burden of proof and principle of reasonable doubt firmly in mind. Having allowed for the possibility of being left in a state of reasonable doubt, when I consider the defendant’s evidence in the context of all of the evidence, including the complainant’s, I am not left with any reasonable doubt about what happened between Mr.

Saini and Ms. Bhalla. I reject the defendant’s evidence based on its own internal inconsistency and illogical elements, as well as for its conflict with the elements of the complainant’s evidence which I accept. Central to these findings is my acceptance of the complainant’s explanation for why the conflict between she and Mr. Saini arose in August 2017, almost two years into what both parties had hoped would be a long- term union: the discovery of his wife and child.

Her conduct, as well as much of the accused’s own conduct – in delivering family members to her door to act as his advocate in patching things up with her – logically accord with this event having occurred, exactly as she described it.

[ 44 ] Notwithstanding the defendant’s denial, I have no reasonable doubt that the defendant assaulted, threatened and harassed Ms. Bhalla, following her decision to end their relationship when she discovered his deception. Disposition [ 45 ] There will be findings of guilt on all charges. Released: April 3, 2019 Signed: Justice A.D. Dellandrea