2015 MBPC 35, 2015 MBPC 35

Cite # 2015 MBPC 35 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Kevin Clayton for the Crown ) - and – ) ) Nirbhai Singh Bhullar ) Harvey Pollock Q.C. and Noah Globerman for the Accused ) ) Judgment delivered: July 9, 2015 ) CORRIN, P.J. Introduction [ 1 ] The complainant Gurpinder Bhullar and her husband Nirbhai Bhullar were living in a tense and conflictive marital relationship at the time she alleged two assaults to Winnipeg Police Services.

The Crown stayed the first such charge after the complainant admitted, during her direct-examination, that she’d never been assaulted in the month of August 2014 as initially related to police investigators on September 30 th , 2014. [ 2 ] The remaining count, the only one before the court at the conclusion of the trial, was an assault alleged to have occurred on Sunday, September 28 th , 2014. This assault was initially described as consisting of two slaps to the complainant’s face, two pinches to her arm and two or three kicks to her left leg.

The assault, which allegedly spanned some “almost 20 minutes”, was not reported to police until September 30 th , 2014. At trial both the complainant and the accused testified that they had been arguing on the early evening of September 29 th , not the 28 th as the complainant originally alleged to police, and that the complainant had left their residence and called the police for assistance. The Crown successfully moved for an amendment of the charge, changing the alleged incident date from the 28 th to the 29 th of September.

The complainant conceded on cross-examination that she hadn’t actually mentioned being assaulted to the police officers who were dispatched to their residence on the 29 th , that she had only complained about being locked out of the house by the accused. The complainant was the only witness called by the Crown. The investigating officers weren’t called to give evidence. [ 3 ] As mentioned before, the parties testified that their marriage was causing both of them unhappiness.

The complainant described the husband as being prone to follow the dictates of his family and as such, according to her, constantly refused to accede to what she perceived as reasonable requests. She also acknowledged that his constant insistence on their obtaining a divorce had been extremely troublesome to contend with. Both agreed that the accused had wanted a divorce soon after their marriage nuptials were celebrated. [ 4 ] The husband related that the complainant had been complaining about his family and his relationships with same and refused to eat dinner with him on the evening of the 29 th .

He also stated that he had subsequently asserted his ownership and personal entitlement to possession of certain “gold” objects in an ensuing argument. The complainant, somewhat disingenuously in the Court’s opinion, claimed to have no recollection of what they had been arguing about before the alleged assault. Notwithstanding this, the Crown, during cross-examination, asked the accused if he’d been angry with the complainant because of her failure to attend an arranged appointment with a divorce property dissolution mediator named Paul Sandhu, which had been scheduled for September 27 th .

The question seemed anomalous because the Crown’s witness, the complainant, when previously cross-examined on this subject, had herself adamantly disclaimed any personal knowledge of such a meeting. [ 5 ] The accused also testified that he’d attended the Hartford Avenue office of Winnipeg Police Service on the 27 th of September, after the alleged failed meeting with Sandhu, and had met with a Constable Gulash, whose business card was entered as an exhibit in the proceedings.

According to the accused he had told Gulash that he feared that his wife, the complainant, might soon come to the police and falsely accuse him of assault. The accused went on to explain that he had feared such a complaint because Ms. Bhullar had told his sister Rajhinder Brar that she could get him deported by alleging a criminal assault because he was only in Canada on a temporary resident visa. It was Mr. Bhullar’s testimony that such an immigration status presented a highly precarious situation if he were ever to be convicted of such a criminal offence. The accused’s sister Ms.

Brar, also testified on this point, confirming that her sister-in-law had on a number of occasions mentioned the possibility of charging the accused with assault in order to get him deported back to India if he persisted in importuning her for a divorce. It was her evidence that these threats were associated with Ms. Bhullar’s strident opposition

to demands made by the accused for a mutual reciprocated divorce. Ms. Brar told Court that such threats caused her to fear for herbrother’s safety which in turn ultimately caused her to disclose same to him. [6] This is a case which must be determined on the basis of the test set out by the Supreme Court of Canada in R. v. W.(D)., (1991) (SCC), 1 S.C.R. 742.

The approach described in W.(D)., meant to ensure that the trier of fact remains focussed on theprinciple of reasonable doubt, requires that the following analysis be undertaken (at paragraph 758): First, if you believe the evidence of the accused, obviously you must acquit; Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [7] The manner in which the evidence can be considered in the application of the test in W.(D). is a question of law.

See R. v.Hoohing

(2007) ONCA 577, R. v. Vuradin, 2013 SCC 38 and R. v. Menow, 2013 MBCA 72. These cases make clear that the analysis inW.(D). is contextual and when considering the evidence of an accused, a trial judge is entitled to consider all the evidence called at trial. A verdict cannot be simply based on whether the trier of fact believes the defence evidence or the prosecution’s evidence. The properinquiry is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused.

The firstW.(D). question does not isolate or vacuum seal the accused’s testimony for analysis, it rather ensures that the trier of fact actuallyassesses the accused’s credibility, instead of marginalising it as a consequence of believing Crown witnesses.

The case law makes clearthat it is contrary to principles of fundamental justice for a trier of fact to ignore or disregard evidence favourable to an accused whenassessing his or her credibility. [8] In this case the Court must conscientiously observe that it is left with a reasonable doubt on the basis of both the accused’stestimony and that of the complainant herself. In the latter regard, the Court found the complainant’s testimony to be both self-contradictory and inherently inconsistent and lacking credibility. Examples of these evidential defects abound.

For instance, thecomplainant related receiving two facial slaps on direct-examination and when pressed on cross-examination conceded that she’d beenslapped only once. Further, with respect to the same subject matter that she had told police she had been “grabbed, not pinched” duringthe assault. When challenged with respect to this discrepancy, the complainant blamed the police for improperly transcribing what she’drelated even though she acknowledged that they had read the statement verbatim to her prior to her signing same.

And as mentioned atthe outset of these reasons, the complainant completely and inexplicably withdrew her allegation of physical violence occurring in August 2014 that she’d made to police. A further concern also arises from her failure to disclose the alleged September 29th assault toattending police officers when initially interviewed by same on such date.

And of course incident to this failure to disclose, which sheattributed to fear of the accused, is the outright lie she had previously provided to the Court in respect of this very subject matter – that she had told the attending police that she’d been assaulted on the evening of the 29th. The Court agrees with defence’s submission thatthe complainant told the police and the Court distinctly different things. [9] As a consequence of these determinations I am not satisfied that the Crown has proven beyond a reasonable doubt that thematerial events occurred as described by the complainant.

Her testimony cannot in my view be objectively described as having beengiven in a straightforward and candid manner. Indeed, there is good reason to believe that she may have attempted to opportunisticallyembellish her evidence in order to secure a criminal conviction against her spouse.

The Court is also of the view that the accused’stestimony and his version of events in and of itself raises a reasonable doubt as to the guilt of the accused because his version wasinformed by salient detail and seemingly consistent with a plausible explanation in relation to the incident which formed the basis of thecomplainant’s allegation. The Court observes that the accused’s evidence in such respect was seemingly forthright and certainlywithstood the challenge presented by the Crown’s cross-examination.

Accordingly, I acquit the accused with respect to the only chargestill before this court. “Original signed by” CORRIN, P.J.