R. v. P. Date:, 2011 BCPC 182

Citation: R. v. P. Date: 20110704 2011 BCPC 0182 File No: 54886-3-KC Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: Joanna Medjuck Counsel for the Defendant: Gregory P. Delbigio Place of Hearing: Richmond , B.C.

Dates of Hearing: June 27, 28 & 29, 2011 Date of Judgment: July 4, 2011 [ 1 ] J.P. has been charged with two counts of committing sexual assault of V.P. between August 1, 2009 to August 31, 2009 and between September 1, 2009 and November 21 st , 2009. [ 2 ] I have heard evidence from the Complainant, her aunt R.S. and her uncle J.S. in the Crown’s case. The Accused testified on his own behalf.

The primary issue in this case is credibility – in particular the credibility of the Accused and the Complainant. [ 3 ] In order to properly assess this issue, it is necessary to review the evidence in some detail. [ 4 ] The Complainant married the Accused’s son, R., in November 2008 in New Delhi India. After the Accused’s wife M. and the Complainant’s uncle had introduced them, R. and the Complainant began communicating with each other in 2007, first by email and later by telephone. Prior to their marriage, the Complainant had never met either R. or any member of his family in person.

After the wedding, R. and his family returned to Canada. The Complainant arrived in Canada as a permanent resident in May 2009 and moved in with R. in his parent’s house. Besides R. and the Complainant, the Accused (R.’s father), his wife M. and his daughters C. and J. all lived in the same house. The Complainant, who was then in her mid-twenties, had never lived apart from her parents before, had never been to Canada before, and the only people that she knew in Canada were her uncle and aunt, J.S. and R.S., who resided in Surrey and operated a beauty salon there.

The Complainant lived with the P. family from May 13, 2009 until she was removed from the home by police on November 21, 2009.

[ 5 ] The Complainant’s testimony described a steadily deteriorating relationship between her, and her husband and in-laws. On three separate occasions, her mother-in law, M., called her uncle and aunt, J.S. and R.S., to come to the P. house to discuss complaints the P. family had about the Complainant.

The Complainant and all members of the P. family except J. attended these meetings. [ 6 ] The first meeting about a month after the Complainant’s arrival in Canada concerned a loan that the Complainant had taken out in India to pay for the wedding. [ 7 ] The Complainant had a university degree and had been working full-time for an advertising agency in New Delhi prior to her marriage. She had been able to make some payments but, because of the interest, still owed about $800.00 by the time the immigration papers were ready for her to immigrate to Canada.

As she had no employment lined up in Canada, she asked her new husband, R., whether he would prefer she stay in India until she had paid off the loan. She told R. that she didn’t want the loan to be a burden on him, but R. told her to come to Canada. R. paid the first two installments but after the 2 nd payment, his father, the Accused, discovered that money was missing from R’s account and questioned him about it. [ 8 ] After R. told his family about the loan, the Accused said to the Complainant that she had come into the marriage with “a debt on her head”.

He told her to tell her parents to pay off the wedding loan, and also her credit card, as quickly as possible and to provide proof that these debts had been cleared. M. called J.S. and R.S. to come to their home for a meeting. At this meeting the P. family, and M. in particular, complained to the S.’s about the Complainant’s debt. It was clear that the P. family was very upset about it.

The S.’s agreed that R. would make no further payments and that they and the Complainant’s parents would take full responsibility for the loan. [ 9 ] Notwithstanding this agreement, the P. family was still very concerned about the wedding debt, continued to pester the Complainant for proof that the loan had been paid, and kept asking why it was taking so long.

According to the Complainant, the loan was fully paid off by July 2009. [ 10 ] However, the Complainant’s relationship with the P. family did not improve after the loan was paid off. [ 11 ] According to the Complainant’s evidence, the P. family felt she was ignorant about home-making, couldn’t clean properly and didn’t know how to cook. The Complainant acknowledged that she had issues with cooking for the P. family – especially cooking the meat the P.’s liked to eat, as she and her family were vegetarians in India. She had never touched meat before and she was not used to cooking frozen vegetables.

The Complainant testified that the P.’s would constantly complain about the food she tried to cook for them and about her cleaning not being adequate. [ 12 ] The S.’s were called to another meeting at the P. house where they listened to complaints about the Complainant’s cooking and cleaning. The S.’s tried to explain that the Complainant may be used to a different cooking style and suggested that they try to teach her how to cook meat and how to use the spices they were used to. J.S. testified that he told the P.’s that the Complainant was a “qualified” girl with a college degree.

The meeting started around 9:30 or 10:00 p.m. and lasted till 3:00 or 4:00 a.m. but nothing was resolved. [ 13 ] The Complainant described another series of incidents at the P. home where she lost her ability to communicate with her family in India. [ 14 ] According to the Complainant, the P. family put restrictions on her calls to her parents in India. They said that her parents could call her but she could call them less. On June 30, R. refused her permission to call her parents to wish them a happy wedding anniversary.

The next day, the Accused found out about it and instructed R. to get out a calling card so that the Complainant could make the call. Even when she did speak to her family in India on the phone, the Complainant testified, the P.’s would be listening on the other phone. The Complainant would tell her sister and parents not to ask questions of her like why she couldn’t phone and why she was so busy. [ 15 ] In August or September, the Complainant emailed her sister confiding in her about her difficulties in the P. home.

The sister emailed a reply suggesting that she and R. consider moving out of the P. family home if things were not working out. R. found out about this email and told his family. They confronted the Complainant with her emails in the middle of the night. M. asked for an apology from the Complainant’s sister and the sister phoned to apologize. The Complainant apologized as well. [ 16 ] After that incident, R. told the Complainant not to use the family computer again.

The Complainant did use the computer one more time in early September, to try to email her sister and uncle, but R. found out about it the next morning when he checked the computer. He grabbed the Complainant by the arm, took her to the garage and slapped her for lying and disobeying him. After that the Complainant was not able communicate with her family by email. [ 17 ] By late September, the Complainant was feeling very despondent. According to her evidence, M. and C. were constantly criticizing her and complaining about her cooking and cleaning.

They would not stop calling her a cheat for coming to the marriage with a “debt on her head”. They would constantly use abusive language to her and about her parents. She testified that she was stressed out and could not figure out what they wanted from her. [ 18 ] The Complainant decided to attempt suicide. She tried to access R.’s gun but it was in a locked box, she then tried to cut her wrists and then tried to strangle herself. According to the Complainant’s evidence, she wrapped a rubber belt around her neck and twisted it until she couldn’t breathe.

M., her daughter C. and the Accused came to the bathroom and found the Complainant in the jacuzzi. C. grabbed the Complainant, asked her if she was “mental” and then slapped her in the presence of the Accused and M. [ 19 ] After the suicide attempt, M. called the Complainant’s aunt and uncle, J.S. and R.S., to come to their house for another meeting. [ 20 ] When the S.’s arrived at the P. house, R. had placed the black box with the gun inside, the belt and the blade on the table.

He also showed the S.’s two handwritten letters by the Complainant – one to the family and one to R. – saying that she was not able to understand them, that she was trying hard but no one was able to understand her. The letters said that the way things were going, she didn’t think she would be able to handle it.

[ 21 ] The Complainant testified that M. and C. said she was trying to “pull a drama” on them. The Accused said the Complainant “had a devil in her” and was trying to get emotional attention from the family. The P. family said that the Complainant was being selfish and jeopardizing R.’s position as the sponsor responsible for her. They complained again about the Complainant’s cooking and cleaning. When her uncle and aunt asked the Complainant why she had done this, the Complainant testified that she said she could hardly talk, but tried to explain how stressful it was being in the P. house.

The Complainant, R.S. and J.S. each testified that, during this meeting, the Accused said a phrase in Hindi which they translated as “people who can’t understand by talking will have to be made to understand by force”. According to the evidence of R.S., M. asked her to strike the Complainant, saying “ask her why she did this, I want you to hit her”.

R.S. refused, saying that in their family they did not hit people and did not deal with problems by hitting. [ 22 ] J.S. described that the members of the P. family attending the meeting were emotional and screaming. [ 23 ] Both J.S. and R.S. testified that the Accused denigrated the Complainant’s college degree saying that they should “take it down, rip it up, wipe their ass with it and flush it down the toilet”. [ 24 ] This meeting also lasted from 9:30 or 10:00 p.m. till around 4 a.m.

In the end nothing was resolved except that the P. family would give the Complainant a break from housework. [ 25 ] However, according to the Complainant, it was after that meeting that the P. family began inflicting physical violence on her. [ 26 ] The Complainant testified that, after this meeting, the P. family decided that they would now teach her by hitting her. She testified that most of the hitting was done by M., but R. and her sister-in-law C. also participated in hitting her and that these assaults would occur in the presence of the Accused. R. introduced the idea of hitting her with spoons.

R. kept upgrading the implements used by M. to strike the Complainant, from wooden spoons, to larger wooden ladles and then to a steel ladle, which bent after hitting her. M. would use these implements to strike the Complainant on the arms, legs, face and cheeks. R. would assault her with a belt. The Complainant described that on one occasion she was pushed down to the ground by M. with such force that she struck her head on the ground. The Complainant described another occasion where R. came up to her from behind and struck her on the side of the head so hard she lost consciousness.

Members of the P. family then shook her and got her to her feet, accusing her of faking. The Complainant testified “I didn’t say anything because they were already hitting me”. [ 27 ] The Complainant testified that the Accused never struck her but did see her being struck by other family members. One time when M. moved to hit the Complainant while she was doing the dishes, the Accused intervened and stopped her. [ 28 ] The Complainant testified that one evening in August, she went to the freezer in the garage to get something and turned to see the Accused in front of her.

The Accused hugged her and moved his hand inside her pants to touch her bare buttock. The Complainant pushed him away and the next day the Accused said he was sorry. [ 29 ] The Complainant testified that the Accused kissed her 2 or 3 times on the lips. Each time she would tell him “not on the lips, on the cheek”.

She told R. about his father kissing her, saying that in her culture this was not appropriate for a father-in-law to do to a daughter-in-law, but R. ignored her complaint. [ 30 ] At one point, R. stopped talking to the Complainant and would not explain to her why. [ 31 ] One evening, while doing the dishes in the kitchen, the Complainant asked the Accused what was wrong with R., and why had he stopped talking to her. The Complainant testified that at that point, the Accused said “it’s going to be fine” and hugged her.

She moved aside and asked if she were not good-looking enough for R. and whether she was too thin. The Accused then approached her again, grabbed her breasts with both his hands and squeezed them twice, saying “you have to grow these”. The Complainant moved away and said she wanted to solve the problem with R. According to her testimony, the Accused then asked her to marry him.

She felt disgusted by that and replied “no, I’m married to R.” [ 32 ] According to the Complainant, this incident was in September or October after the physical violence had started against her. [ 33 ] On November 21 st , M., C., the Accused and the Complainant went to R.S.’s beauty salon. M. had come for a facial, C. wanted her eyebrows and upper lip done and the Accused wanted a haircut. R.S. took the Complainant into another room and gave her a hug asking her “how are you?” The Complainant pulled back her clothes and showed R.S. her shoulders which were heavily bruised.

R.S. was about to scream when she saw the extent of the injuries, but the Complainant placed her hand over R.S.’s mouth and said “chachee (an Indian word for ‘auntie’) be quiet or they will hear you”. When R.S. asked who had done this, the Complainant indicated that it was M. [ 34 ] R.S. told the Complainant that she couldn’t go back to the P. house but the Complainant insisted that she had to go back there, or R. would divorce her.

R.S. suggested that the Complainant come to stay at her house for a few days and talk things over but the Complainant would not do that either. [ 35 ] R.S. then went to M. and asked how things were.

When M. told her that things were not good and that R. was not happy, R.S. suggested that they leave the Complainant to stay with them for a few days, but M. told her that R. had said he would divorce the Complainant if she didn’t come home and suggested that R.S. talk to R. about it. [ 36 ] Later that day, R.S. telephoned the Complainant at the P. house to tell her that they would close the salon at 6:00pm and come to pick her up. The Complainant again refused, saying “chachee, everything is ok, you guys don’t have to pick me up.

Please don’t come to pick me up.” When R.S. told her that she and her husband had made the decision to come pick her up, the Complainant said to her “chachee you are interfering”. R.S. felt that someone was listening on the line and that the Complainant was not expressing her true

feelings. The S.’s then called the police to report the abuse and the Complainant was removed from the P. house that night and taken to stay with her aunt and uncle, J.S. and R.S. [ 37 ] A book of photographs was filed as Exhibit 1. These photographs were taken on the night of November 21 st and the early morning hours of November 22 after the Complainant was taken to the police detachment. They show extensive bruising of the Complainant’s arms, legs and right hip, scratches to her face and swollen lips. [ 38 ] The Accused gave evidence on his own behalf and was the only witness for the defence.

He testified that when the Complainant came to live in his house, she was always happy but after a couple of months seemed to be unhappy. According to the Accused, he was never told why she was unhappy and they never talked about it. [ 39 ] The Accused acknowledged hearing once in a while about the Complainant’s cooking and that she did not clean very well. He testified that he suggested to his family that the Complainant would slowly learn and get better at cooking.

The Accused said the same thing in regard to the Complainant’s cleaning chores – that she would learn and that she was getting better at it. [ 40 ] The Accused testified that he never saw any bruises or sign of injury on the Complainant and that he never saw anyone hit her except once, when he stopped M. from hitting her. [ 41 ] The Accused also acknowledged a discussion about the Complainant’s wedding loan from India and stated that in his culture, the bride’s side should have paid that money. [ 42 ] The Accused testified that he was at home the day the Complainant attempted suicide.

He was called upstairs by his wife, M., and his daughter, C., came upstairs after him. They saw the Complainant laying in the jacuzzi with her eyes closed. He denied that C. had slapped the Complainant. He testified that C. tried to wake the Complainant up by softly caressing her cheek until her eyes opened. [ 43 ] The Accused acknowledged the meetings where the S.’s were summoned to their home. He denied ever saying the Hindi phrase that “people who don’t understand by talking have to be hit”.

He denied ever making the comment suggesting that the Complainant’s degree should be used for toilet paper. [ 44 ] The Accused denied all of the incidents of sexual assault. He testified that he never placed his hand inside the Complainant’s pants or touched her buttock, that he never touched her breasts, that he never said “marry me” and that he never kissed the Complainant.

He testified that he was never alone with the Complainant in the garage when he hugged her and that R. was with them. [ 45 ] As I stated earlier, the issue in this trial is that of credibility. [ 46 ] I found the evidence of the Complainant to be clear, logical and very detailed. Despite the amount of detail, it was internally consistent and externally consistent with that of the independent witnesses and with the photographs of her injuries as they presented on November 21, 2009. I found her tone and demeanor to be appropriate to her evidence and that she presented as earnest, sincere and natural.

For example, when reviewing the photographs, she was asked about a cut on her right leg. Without the slightest hesitation, she replied in a matter-of-fact way, “that was the belt buckle”. [ 47 ] I found that the Complainant’s evidence had the ring of truth. [ 48 ] I found the Accused’s evidence to be bereft of detail – particularly in regard to what was happening to the Complainant in the P. home. He appeared to be not only unaware of what the Complainant was experiencing in his home, but also unconcerned.

He acknowledged that the Complainant appeared unhappy after the first couple of months at his house but he did not have any interest in finding out why. He testified “we never talked about it”. He acknowledged that the Complainant had tried to commit suicide by cutting her arms and trying to strangle herself but, when it was put to him in cross-examination, “you didn’t think it was serious”, the Accused replied, “no, nothing happened”. [ 49 ] The Accused appeared to have no interest in finding out what might have caused his daughter-in-law to attempt suicide.

He acknowledged in cross-examination that he took no steps to seek medical attention or counselling for the Complainant after her suicide attempt. I found his evidence revealed an attitude towards the Complainant that was cold, unconcerned and totally lacking in empathy. [ 50 ] I found the Accused at times evasive and vague. When cross-examined about the meeting the P.’s had summoned the S.’s to at the P. house after the Complainant’s suicide attempt, this exchange took place: “ Q. V.’s uncle J. asked her why she did this and she couldn’t answer, right? A. I don’t know. I don’t remember. Q.

You don’t remember anything from that meeting? A. I remember the meeting. Q. You don’t remember what was said at the meeting? A. I can’t explain word for word, sentence by sentence. In general, I know. Q. Can you tell me, in general, what happened at the meeting? A. I’m not good at explaining things .” [ 51 ] I found that the Accused contradicted himself and that his evidence was internally inconsistent. He acknowledged in cross- examination that he believed that the bride’s side of the family should pay for the wedding, that he was “very upset” when he found out

about the Complainant’s wedding loan and that it was so upsetting that the Complainant’s aunt and uncle were summoned to a meeting at his house to talk about it. He was adamant that his family would not be responsible for any part of this loan. [ 52 ] Shortly after this exchange however, the Accused testified that he had told his son R. to send the money to pay for the loan.

Defence counsel submitted that the Accused did not contradict himself with respect to this portion of his evidence and that what he had intended to mean was either that R. had paid off the loan or had paid one or two installments of the loan. [ 53 ] But even if that were what the Accused had meant by this comment, it still makes no sense. His evidence that he was upset because he felt that the P. family should take no responsibility for this loan, is completely inconsistent with his telling his son R. to pay even a portion of it.

If the Accused had meant by this testimony that he had told his son to pay the entire loan, then that would be inconsistent with there being a meeting with the S.’s to complain about the loan and to insist that the Complainant’s parents pay it. That was the whole point of the first meeting. [ 54 ] The Accused’s evidence was also inconsistent with the evidence, not only of the Complainant, V.S., but also with that of the independent witnesses. The Accused denied making the comment that the Complainant’s degree should be used for toilet paper but both J.S. and R.S. testified that he did make it.

I find that the nature of this comment is such that it would be memorable. The Accused denied saying the Hindi phrase that translated roughly as “if people cannot understand by talking they must be made to understand by force” (or “by hitting”). The Complainant, J.S. and R.S. all testified that the Accused made this comment in Hindi.

Each of them repeated the same Hindi phrase in their evidence, and each gave the same approximate English translation of it. [ 55 ] The Accused testified that when they found the Complainant in the jacuzzi after her suicide attempt, his daughter, C., did not slap the Complainant but only caressed her cheek softly until she opened her eyes. [ 56 ] R.S. testified that, at the meeting held following the suicide attempt, C. had volunteered “I pulled her out of the tub, I slapped her and asked her if she was mental.

Why are you doing this?” This evidence was consistent with the evidence of the Complainant but inconsistent with the Accused’s evidence. [ 57 ] I have described the evidence in considerable detail. Defence counsel submitted that nothing turns on the background evidence and that I should consider only the direct evidence pertaining to the allegations of sexual assault. I disagree. [ 58 ] In R. v. S.B. [1996] O.J. No. 1187 , a case from the Ontario Court of Justice, Hill, J. stated the following at paragraph 30, in case involving spousal abuse: “30.

Violence between strangers, as a general rule, involves a narrative of circumstances of limited temporal duration. Violence within a relationship, spousal or otherwise, necessarily, and frequently, involves the complex dynamics and subtleties of the personalities of the principals within the context of their individual and shared experiences, understandings, roles and emotions.” [ 59 ] At paragraph 35, Hill, J. stated: “35. The evidence of earlier history permits a comprehension of the true nature of the relationship between the parties.

If accepted, the evidence establishes a pattern of dominance, control, possessiveness and fear promoted by the accused in his relationship with his spouse.” [ 60 ] At paragraph 44, Hill, J. stated: “44. The relationship of the parties may assist in explaining otherwise unusual aspects of the Complainant’s behaviour including fear of reporting or fear to take flight from danger.” [ 61 ] The Complainant’s evidence provided a coherent narrative of her time with the P. family from the day she landed on May 13, 2009 until the night she was removed from their house on November 21, 2009.

It was a narrative that described the step-by-step degradation and destruction of the Complainant’s sense of self and her self-respect. It was a narrative that described the Complainant’s descent from a bright young college graduate working in an advertising firm, fluent in both English and Hindi, and living in a home where she was loved and cherished, to becoming a virtual slave in the P. home. I find that the Complainant was not only abused, she was transformed - into a sufferer who would accept her abuse without complaint or argument.

Thrust into a strange land thousands of miles from home, she found herself in a culture that was completely different from the one she was raised in. Isolated to the point where she was no longer able to even email her parents, how would she know that the hitting and abuse she suffered was not normal and acceptable behavior here in Canada? [ 62 ] The Complainant did not have a job after coming to Canada. She was completely dependent on her abusers.

I find her reluctance to complain or resist her abuse and her reluctance to be rescued by her uncle and aunt to be consistent with her feeling trapped and powerless. [ 63 ] Although she is now seeking a divorce from R., the Complainant initially expressed fear of being divorced. That is understandable in the context of her vulnerability and her complete dependence on the P. family at the time. [ 64 ] I find that the evidence regarding the entire experience of the Complainant at the P. house also helps to explain why she was initially reluctant to disclose the allegations of the Accused’s sexual assaults of her.

The fact that the Accused was the only family member who did not inflict violence on her (other than her sister-in-law J.P. who was sickly, stricken with cancer and disabled) and was the only family member who showed her any kindness also helps to explain this initial reluctance to disclose. [ 65 ] In contrast to the Complainant’s sense of powerlessness, the Accused presented as a powerful figure in the P. household. He demonstrated that power when he forced R. to provide the Complainant with a phone card to enable her to phone her parents to wish them ‘happy anniversary’ after R. had initially forbidden it.

He demonstrated his power again when he intervened and stopped his wife on one occasion from hitting the Complainant. He demonstrated his power most dramatically when he said at the last meeting with the

S.’s, “if people cannot understand by talking they must be made to understand by force” (or “by hitting”). The physical violence towards the Complainant commenced almost immediately after that meeting.

It was clear to the Complainant that the violence started because the family had decided to teach her by hitting. [ 66 ] In my view, the only reasonable inference to be drawn is that the other members of the P. family took the Accused’s utterance of that Hindi phrase as an authorization to commence assaulting the Complainant. [ 67 ] I find that the sexual assaults against the Complainant by the Accused formed part of the pattern of escalating abuse of the Complainant by the entire P. family. [ 68 ] I accept the evidence of the Complainant and that of the other Crown witnesses, J.S. and R.S..

I find their evidence to be credible, trustworthy and compelling. I find the Accused’s evidence does not have the air of reality, and to be so unworthy of belief that I must reject it. [ 69 ] On the basis of the evidence that I have accepted, I find that the Crown has proven each element of the charges against the Accused beyond a reasonable doubt. I find the Accused guilty as charged on both counts. ________________________ P. Chen Provincial Court Judge