R. v. Narain, 2011 ONCJ 356

COURT FILE No.: Toronto Region Citation: R. v. Narain , 2011 ONCJ 356 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Medeiros, ) for the Crown ) — AND — ) ) ) VEDANT NARAIN ) C. Barhydt, ) for the accused ) ) ) ) HEARD: December 8, 2010, February 10, March 17, July 5, 2011 FELDMAN J.: [ 1 ] Vedant Narain entered not guilty pleas to charges of Assault and Forcible Confinement. It is alleged that on September 2, 2009, he choked and assaulted his former girlfriend, Chantelle Seukeran, and briefly, but forcibly, confined her in his home. [ 2 ] The Crown called Ms.

Seukeran, in support of its case and, in addition, filed transcripts of some disturbing text messages sent by the accused to the complainant. Mr. Narain testified in his own behalf. [ 3 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown. The Evidence (

a) Background [ 4 ] In 2005, Ms. Seukeran, at age 22, began an affair with the defendant with whom she worked. When he separated from his wife in 2006, they got together as a couple but he later conceived a child with his wife and moved back in with her. Not surprisingly, the complainant lost trust in the defendant, but continued to see him as she still had feelings for him despite his personal deficits. She broke off the relationship in February of 2009, she says, because of his lies and infidelity. She indicated, as well, that his drinking and depression contributed to the break up. [ 5 ] Ms.

Seukeran testified that the defendant did not accept her decision to move on. She said he called her almost every day, sometimes more than once, depending on his mood. He ignored her plea to stop. When drunk, she said he could be aggressive or angry and blamed her for his troubles. He questioned her relationships with other men and became emotional if he thought she was seeing someone else.

This is made apparent in a number of text messages he sent her during the time frame leading up to the alleged offences and to which reference will be made later on in these reasons. [ 6 ] Nonetheless, despite what she described as the defendant’s erratic and possessive nature, the complainant said she still felt emotionally involved and continued to communicate with him until some time before the events of September 2. Some of her text messages during this period indicate she had not firmly extricated herself from this seemingly unhealthy relationship. [ 7 ] In a May 4 th message, Ms.

Seukeran thanked the defendant for lunch and a wonderful day. However, on May 19, she texted him, “Drop dead, deadbeat…You will never have me”, later messaging him, as follows: “Don’t ever contact me! I am through with you and your selfish unkind disgusting ways toward me! Treating me like a blasted slave and gopher! Only available for your damn pleasure and convenience! Go back to your trash and treat that nasty bitch like that!” [ 8 ] Mr.

Narain’s responding text messages and others sent during the months leading up to the September incident tend to support the complainant’s assertion that he was jealous of her relationships, imagined or not, and that when she was not compliant in the face of his controlling behaviour, the defendant would resort to denigration and threats.

He would not let her go, seemingly indifferent to the impact on her of his emotional abuse. [ 9 ] On May 22, he texted the complainant about her former boyfriend, “Send that 2 a true fag a like Steven your ass still smells like her stink cunt that’s your new name ha ha oh fuck die now pls have fun luv ya”. The defendant agrees he was motivated by jealousy and that the language he used was despicable. He might have also said vile and threatening.

The text message permits the inference that the accused could become enraged when unable to control or have access to the complainant. [ 10 ] The irrational and angry nature of his jealousy was again apparent in his puerile threat to kill his own tenant for purported contact with the complainant, when he texted her on May 24, “U better try 2 kill md and soon what iam about 2 do both”, later writing, “George why now u die”, and adding, 9 minutes later, “If you care 4 him tell not 2 come back here I put the word out u now watch my power just once”.

These comments were sinister and cruel in their intent, perhaps fuelled by alcohol, but indicating, nonetheless, the personal inadequacies of this man. His denial of being jealous of the tenant was, on the evidence, unworthy of credit.

[11] Earlier on May 23, the defendant messaged the complainant, “I pray u crash and die in hell fat fuck”. While the meaning isclear, Mr. Narain couldn’t, or more likely wouldn’t, explain it when pressed. Unable to put an innocuous spin on the words, he avoidedanswering questions about it. To be charitable, he was not straightforward. [12] On May 24, the defendant piled on the threats when he wrote, “I have a crew from new york coming”, an assertion that is tobe seen in the context of the other texts in that time frame. In telling the court he did not know what he meant by this, he again incrediblychose to avoid answering the question. (

b) The September 2 Incident [13] Prior to this incident, the complainant said she hadn’t see Mr. Narain for a long time. She testified that leading up to hervisit to the defendant’s home, he pressed her constantly that day to meet with him after she initially refused, indicating it was urgent thathe see her. The complainant finally agreed and arrived after work around 5:30 – 6:00 p.m. She said the accused, dressed in boxer shorts,was intoxicated but calm. He had her drive his mother and brother home shortly after her arrival. [14] When she returned they spoke in the computer room.

She said he asked if she was seeing someone. She ignored him andtried to leave but said he blocked the way with both hands before she was able to brush by him and head to the television room to get herpurse and leave. She told the court she did so because she had prior experience with the defendant getting riled up after questioning heron her relationships with other men. [15] Ms. Seukeran told the court the defendant grabbed her purse, threw it on the floor and pushed her onto the couch. She saidhe pinned her hands, placed his legs over her and began to cry, asking her to marry him and have his children.

She told the court she felttrapped and angry and told him to get off. She said he continued to sob. This behaviour, if true, is bizarre to the degree that indicatesdistorted thinking likely caused by alcohol or emotional instability. [16] Ms. Seukeran indicated she was able to slide out from under the defendant onto the floor but that he came after her, holdinghis leg over hers and choking her to the point she felt unable to breathe. She said he then let go. [17] He again asked her if she was with someone.

She said she falsely indicated she was so as to emphasize she wanted no partof him and told him she loved that person. The complainant testified this led to further brief choking, during which the defendant asked,“what does he have that I don’t”. She said she herself was crying during this episode. She was relieved when the defendant eased upand let her go. She left, feeling a slight pain in her neck. She said her neck was red and sore until the next day. [18] The complainant told the court she called the defendant the next day in order to calm him down.

She explained that herexperience with him taught her that if she was not kind after one of his outbursts, she would face a backlash. She indicated that thedefendant was nonchalant about what had taken place and blamed it on alcohol. She said she was mindful that Mr. Narain had told her anumber of times that he would make her suffer were she to leave him and that he had warned her that he knew how to get things donewithout getting his hands dirty. [19] Ms. Seukeran complained to the police about 10 days later, she says, after a family friend told her the abuse would nototherwise stop. [20] Mr.

Narain is 39 years old and lives alone. His daughter is now 3 years old. He says his relationship with the complainantis neither a healthy nor trusting one, but he denies the allegations. [21] The defendant told the court that the two of them were still arguing a lot after she broke up with him, that he only asked hercome over to let her know he was moving on and that he was not drawn to her romantically. He later agreed he called her more than shecalled him and was more persistent in sending messages to her. He also conceded in cross-examination that he had feelings for her andstill wanted to be with her.

He also admitted being jealous of her relationship with Steven. [22] As noted earlier, when challenged on the meaning and intent of his texting to the complainant, he was unable tosatisfactorily explain the nasty and threatening language he used, all of which belie his claim that he felt he had to meet with thecomplainant to encourage an end to the bickering, as well as announce he was over her, a message he apparently felt incapable ofdelivering over the phone or asserting by merely leaving her alone. His transparently weak and contradictory answers do not enhance hiscredibility. [23] Mr.

Narain testified that he believes the complainant became upset and decided to make a false allegation against himbecause she was angry he had displayed a number of his daughter’s pictures in the house, that she, in turn, upset him by what she calledhis daughter, although he could not remember the words she used and that she barged out of his house after they argued about it. [24] This explanation suggests irrational behaviour on the part of the complainant that is not apparent on the evidence andsuggests an effort by the defendant to disparage the complainant in a manner that is in my view contrived and self-serving.

The Reasonable Doubt Standard [25] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence: R. v. Lifchus (1997) (SCC), 118 C.C.C. (3d) 1 (S.C.C.). This standard of proof has beendescribed as proof to a near certainty: R. v. Starr, 2000 SCC 40. The burden of proof rests with the prosecution throughout the trial andnever shifts to the accused: R. v. Lifchus. [26] Where credibility is important, as in this case, the Supreme Court of Canada requires that the rule of reasonable doubt beapplied to that issue: R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. There, Cory J directed trial judgesto acquit initially if the evidence of the accused is believed or secondarily if he or she is left in reasonable doubt by it, even if the judgedoes not believe that evidence. The third element of W.(D.) obliges the judge to ask him or herself, even if not left in reasonable doubt by

the evidence of the accused, whether he or she is convinced beyond a reasonable doubt of the guilt of the accused on the balance of theevidence which the judge does accept. [27] In this analysis, rejection of an accused’s evidence may be derived from “a considered and reasoned acceptance beyond areasonable doubt of the truth of conflicting credible evidence, but not on the basis of preferring the worth of one over the other.”: R. v.Maharaj (2004), (ON CA), 186 C.C.C. (3d) 247 (Ont.

C.A.). [28] The trier of fact is, however, entitled to assess an accused’s testimony in light of the whole evidence, including thetestimony of the complainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, (ON CA), [2006]O.J. No. 3177 (Ont. C.A.). In fact, the court made reference in this regard to “the positive duty to carry out such an assessment”, giventhe possibility that the judge may be left in reasonable doubt concerning the guilt of the accused. [29] In similar vein, although not referred to in Hull, the court, in an earlier endorsement in R. v. Boffo, [1997] O.J. No. 5156(Ont.

C.A.), appeal dismissed, 1998 S.C.C.A.

No. 111 (S.C.C.), accepted that a trier of fact may reject the accused’s evidence primarilybecause it is inconsistent with credible evidence from the Crown witnesses who contradict his or her version of the events, as long as thecourt remains alert to the prospect that a reasonable doubt might arise from the accused’s evidence, even if it is rejected, or from all ofthe evidence. [30] In a thoughtful analysis of these authorities and this issue, given the difficult application of W.(D.) principles to the standardof proof in cases pitting one complainant against one accused, Justice Duncan, in R. v.

Jaura, 2006 ONCJ 385, came to a conclusion, onewith which I agree both in logic and principle, that “a trial judge can reject the evidence of an accused and convict solely on the basis ofhis or her acceptance of the evidence of the complainant, provided that the judge also gives the evidence of the defendant a fairassessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence”. Findings of Credibility and Fact [31] On the evidence, I found the complainant to have testified in a straightforward manner without embellishment or animus.

In fact, it is clear she still cared about the defendant given their history but she claims to have given up on him because of his lies andbetrayal, as well as the impact on her of his drinking, depression and possessiveness. The evidence tends to support her testimony in thismaterial regard, including, for example, Mr. Narain’s continuing affair with her while fathering a child with his “wife”.

As well, hisslovenly appearance, alcohol consumption and allegedly irrational behaviour on September 2 while at home on a working day permit aninference of depression or instability. [32] I accept the evidence of the complainant that she had broken off her relationship with the defendant for these reasons. Hertext messages to him expressing frustration with his treatment of her and his vile responses tend to corroborate her version of events. [33] In fact, the complainant’s explanation for her delayed complaint, to put an end to his abusive treatment, is a plausible one inthe circumstances.

She still had feelings for the defendant and succumbed to his persistence in coming to his home on September 2,despite her reluctance, where she says she was subject to his aggression. She was persuaded to stop this treatment. [34] Finally, the complainant was not seriously challenged on the material issues of fact. I find her evidence to be credible andwould rely on it. [35] By contrast, I would not rely on the accused’s evidence. Initially denying he was jealous of the complainant’s possiblerelationships with other men, he later admitted he was.

He was not straightforward when pressed to explain the nasty and threateninglanguage he used in his text messages to the complainant and tended to minimize his intent. I reject his evidence in this important regardand infer that his words reflect the possessive and controlling nature complained of by Ms. Seukeran that culminated in the September 2incident. On the evidence, his suggestion that the complainant left his home in anger because some photos of his daughter were ondisplay makes little sense.

As well, I would not rely on the defendant’s evidence, in part, because of my acceptance of the complainant’stestimony. [36] On all the evidence, I am satisfied beyond a reasonable doubt that on September 2, the defendant, likely fuelled by alcohol,manhandled the complainant as she described. He will be found guilty of assault. [37] I take a different view of the forcible confinement charge.

The authorities indicate that while there need not be totalphysical restraint depriving a person of his or her liberty to move from one place to another, the confinement must have lasted, in thecircumstances, a significant period of time: R. v. Tremblay (1997), (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.). Inaddition, the mens rea element must involve “some blameworthy condition of mind” or “at least an intention to do a wrong or to breakthe law”: R. v. Elder (1978), (SK KB), 40 C.C.C. (2d) 122 (Sask. Dist. Ct.). [38] The brief confinement of the complainant was tied up in the assault and from which Ms.

Seukeran was able to extricateherself. Importantly, the bizarre behaviour of the desperate and likely intoxicated defendant leaves me in reasonable doubt that he hadthe necessary mens rea to commit the offence. That charge will be dismissed.

Released: July 5, 2011 Signed: “Justice L. Feldman”