R. v. Bhullar Date:, 2011 BCPC 299

Citation: R. v. Bhullar Date: 20111017 2011 BCPC 0299 File No: 84302-1K Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MOHINDER BHULLAR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: D. Lloyd Counsel for the Accused: S. Kooner Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: October 17, 2011 Date of Judgment: October 17, 2011 [ 1 ] THE COURT : The accused is charged with assaulting his spouse on July 4th, 2010 at their family home located at 25292 130th Avenue in the Municipality of Maple Ridge, British Columbia. [ 2 ] In addition, on the same date, he was charged with three counts of breaching certain conditions in a recognizance, sometimes called a peace bond, entered into on March 25th, 2010, namely conditions 4, 6 and 11. The evidence of the accused's probation officer, Ms.

Franklin, is that she read these terms to the accused on April 4th, 2010. [ 3 ] It is alleged that he entered the family home and, as well, made contact with his spouse and her brother, Mr. Brar, contrary to the above provisions in the recognizance which prevented him from entering the home and contacting Mr. Brar. [ 4 ] The accused has pleaded not guilty to all four charges before the Court. [ 5 ] Certain facts are not in dispute in this case. [ 6 ] The accused and the complainant spouse were married on January 29th, 2001 in India. It was an arranged marriage. They immigrated to Canada in March 2002.

He testified in his own defence and said at the time of his marriage he and his wife agreed that they would sponsor her parents to come to Canada, which they jointly did, and the two parents, now aged 54 and 56, arrived in October

2009. [ 7 ] At some point they agreed to sponsor the wife's three brothers, now ages 22, 23 and 28, and one sister, now aged 26. They immigrated to Canada in October and November 2009, the last to come being the wife's older brother, Mr. Brar, who testified before me at trial. [ 8 ] From November 2009, all these members of the wife's family lived in the residence located on 130th Avenue in Maple Ridge (hereinafter referred to as "the residence"). This residence at all material times has been owned by the accused and his wife.

They have two children as well, being approximately ages five and seven, at least in November 2010. Hence, from November 2009 to date, the family home has had either 11 people residing in it or, since February 2010, ten, because the accused was not able to enter the residence.

His own mother resided there at all material times. [ 9 ] There is some dispute over the following matters. [ 10 ] The accused testified that when he agreed with his wife that they would sponsor her family to come to Canada and live with them, the arrangement was that this was to be only for a short period of time, some two to three months, and then the parents and siblings were to move out and reside in their own place. [ 11 ] The complainant testified that they were going to move out after they settled, but that she needed their help.

She said this at p. 68 of her cross-examination: Q How did it make you feel that Mr. Bhullar wanted your parents and your brothers and your sister out of the house? A It's not only that, they were going to eventually at one point after they were settled. The thing was that they were, you know, and I still needed their help. You know, they were helpful for me and in my understanding there was no problem for them staying there because they were all just playing their part towards, you know, helping us and even they were helping him too, so -- Q Did you have more to say on that? A No. Q Okay.

And you provided a statement to Constable Dickenson and you stated that -- you stated that -- you stated that your family were new immigrants. A Yes. Q And they were staying at that residence? A That's right. Q Is it fair to say that you were also helping your new immigrant family as well. A Yeah, I was helping them like giving them ride and you know, this and that you know, just the families do for each other. Q Okay. You did not want them to be removed from your home, did you? A No, I didn't.

I sponsored them and I was -- both of us sponsored them and we were responsible for them to take care of them while they were here. Q So it must have made you feel upset that Mr. Bhullar was wanting to remove them out of the home. A Well, he was, you know abusive towards them too, that not only he wanted to remove them out of the house, he was pushing them around after he was drunk and all those kinds of things were upsetting.

Obviously having young kids around the house it was upsetting. [ 12 ] The accused said that both he and his wife contributed in 2009 to the appropriate $2,000 monthly cost of the mortgage and line of credit payment on the home depositing money into the parties' joint account which was used for this purpose. [ 13 ] After he was charged in early 2010 and left the family residence, he ceased to fund their joint account from which the mortgage payments were drawn and she then made all the payments.

As well, he did not contribute to the household expenses after approximately February 2010. [ 14 ] His source of income in 2010 was money earned from his very small greenhouse business operated on approximately four acres of the 8.3 acre property on which the residence is situate and from certain work at a nursery in Pitt Meadows. He had no employees in 2010 and said his business was very slow due to the recession. He did most of the work himself.

He said his net income in 2010 from the nursery was between $22,000 and $25,000 and further that for seven to eight months only he drew out a $2,000 allotment each month in salary. [ 15 ] The complainant's source of income was from her full-time work as a registered nurse at the Maple Ridge Hospital. Her parents and siblings worked doing various things including picking berries or at various entry level jobs.

There is no evidence as to the level of their earnings. [ 16 ] The complainant testified that in the summer of 2010, her brothers and two parents were working in a cannery, orange packing and blueberry packaging. All worked at the same place. She was unsure if they had worked on July 4th or if they started later by say, mid-July. Her brother, Mr. Brar, also worked at a pizza place in the evenings.

[ 17 ] The accused suggested in his evidence that while the wife's parents at some point found some seasonal work as did her siblings, they contributed not a lot to the costs of running the accused's family home. He and his wife paid for most of their expenses after their arrival in Canada. [ 18 ] As well, the accused suggested that her family had debts in India and said he regularly sent money to them in India for ten years before they immigrated to Canada. [ 19 ] Mr. Brar was cross-examined on his contribution to the household costs after he commenced living with his sister and the accused.

He said that "we" -- I assume meaning his family or at least the three brothers -- "helped his sister pay the mortgage and stuff". It was unclear what costs or debts he was referring to. He could not give an exact amount that they paid each month, nor did he say when they started to help out or the amounts for example paid to the trial date. He said whenever she needed something, "We give it to her"; whatever she needed for the mortgage, child care and groceries. There was no set amount of rent he paid each month.

They never counted what they paid towards the mortgage from 2009 when he arrived in Canada sponsored by his sister and the accused to March 21st, 2011. [ 20 ] My impression from his evidence was that if he contributed to the household costs, it could not have been very much.

He was certainly unable to provide any details at trial. [ 21 ] The accused said that when his in-laws did not leave pursuant to the agreement he felt he had with the complainant and I suppose indirectly with them, this became a source of tension and gave rise to arguments in his relationship with the complainant and I think too her family members, although he did say he did not after a while speak to her parents at all.

He wanted them out of his home and felt both that they were overstaying their welcome and in breach of his agreement with his spouse but were also essentially freeloading -- my term not his -- as they were not fairly contributing to the overall costs of running the home. [ 22 ] In 2009, due to their disagreement over her parents' length of stay in the family home, the accused said their marital relationship had deteriorated and was not very good.

He said initially he had a reasonable relationship with his three brothers-in-law and occasionally they would help him with his nursery business he ran on the property. [ 23 ] It is not in dispute that the residence in this case is a three-storey home with four separate floors situate, as I have said, on some approximately eight acres of land, and that part of the land is operated as a nursery business with four greenhouses and an outbuilding associated with this business. The nursery business covers approximately four acres of the land. The residence had three bedrooms on the top floor.

There are none on the main floor. The home is a split-level design with a living room area in the lower floor with three bedrooms. Certain other rooms were also used as bedrooms. The home had sleeping accommodation on all three levels. [ 24 ] The nursery outbuilding that I have referred to has a separate entrance road which, according to the accused, passes within 25 feet of the main residence. [ 25 ] The accused said he did seek to have his in-laws move out by January 1st, 2010.

When he would raise this issue with them approximately two-and-a-half months after their arrival, he received a series of excuses such as they were looking for another place such as a basement suite but could not find one as there were too many of them. When they did not move out, he found this frustrating and hurtful. He is the man of the house who is being ignored.

As well, he said there were too many people in the house and it lacked privacy, and as well it was too difficult paying all their expenses. [ 26 ] The complainant, according to the accused, was not happy with the idea that her family would move out and did not support this idea at all. She wanted them to stay longer. [ 27 ] He believed they all had a plan for them to stay longer, save money, and be in a position to supply money for dowries for their children's marriages in India. His insistence that her parents move out had a negative effect on their relationship.

It angered her. [ 28 ] He also testified that after her parents permanently resided with them, his wife started to act more aggressively towards him as she felt they would support her. [ 29 ] The accused described the extended family dynamic after November 2009. He said his wife was the boss and as far as her siblings were concerned, they would do what she said. [ 30 ] He did not think in reality, contrary to Mr. Brar's evidence, that he paid any money to his wife to defray household expenses and certainly did not to him. Whatever money Mr.

Brar earned the accused understood he sent back to India as he had a loan to pay off in India. [ 31 ] Things came to a head in or about February 2010 when, as I understand it, the accused was either charged with or alleged to have committed a spousal assault. Eventually, a peace bond was entered into on March 25th, 2010 for a term of one year. The accused had not been in the residence since February 2010 as a result of this alleged assault and peace bond or recognizance prior to July 4th, 2010.

This fact is not disputed. [ 32 ] Hence, the complainant and her family have continued, since February 2010 to date, to occupy the residence to the complete exclusion of the accused.

The accused was allowed to be on the property and attend to his nursery business on July 4th, but not to enter the residence in which the complainant and her entire family then resided. [ 33 ] On July 6th, 2010, Woods P.C.J. in a recognizance of bail limited the hours during which the accused could be on the property attending to his business to week days between noon to 7:00 p.m., and weekends from 8:00 a.m. to 7:00 p.m. [ 34 ] As I have said, as things stood on the date of the alleged offence, namely, July 4th, 2010, the accused had not according to the evidence been inside the residence contrary to the terms of the peace bond or made contact with any of the named persons, all family members of the wife since February 25th, 2010.

He had been on the property however I think with some regularity since then running

his nursery business. He did not have any employees in July 2010 and could not by reason of condition number 11 in the peace bond even contact one of three brothers-in-law to get him to help in any way with it, for example, to turn on or off a light or a watering device.

This simple communication would have been in breach of the orders in the peace bond. [ 35 ] I find, on July 4th, 2010, based on all the evidence in this case, that the peace bond existed, was lawfully made, and contained the above terms numbered 4, 6, 7, and 11 and that they were known to the accused, and he knew that he could not enter the home this day or at all without being in breach of the various orders in the peace bond. [ 36 ] It is very clear in this case that at all material times the accused was not on the same page as were the complainant or her family members as to who should live in the residence and who should go.

As I have said, she did not want them to go. He alone did. I doubt any of her family members wanted to leave, especially after the accused had left by reason of the events that preceded the peace bond of March 25th, 2010. It was clearly cheaper for them to live in his house than find their own place. [ 37 ] There is some suggestion in the evidence before me it would have been difficult for them to all move into affordable accommodation, for example, a basement suite.

If the accused was not home or around or could not communicate with any of them, they were spared his no doubt regular entreaties to leave and the discomfort that no doubt resulted from being subjected to them and the need, certainly according to the accused at least, to make excuses for why they were not moving to their own place. [ 38 ] There was clearly a financial incentive for them to stay in his home because it was cheaper than elsewhere and it was easier for them all to do so without him around and if he could not communicate with them pursuant to a Court order.

Money not spent on rent could be sent to India as necessary or wherever the family members wished. [ 39 ] I turn to the events of July 4th, 2010. [ 40 ] Mr. Brar, the wife's brother, admitted that he and she had discussed these events. I find these discussions occurred before the trial of these charges commenced before me. His testimony on point is as follows: Q Mr. Brar, I understand from your evidence that you have indicated that you were present at the scene on July 4th, 2010. I understand that bit. A Yes.

Q But what I want to know is have you spoken about what happened on that particular day with Karamjad (phonetic) Bhullar since July 4th, 2010? A Not much. Q But you did in fact talk to her about July 4th, 2010? A Yes, we do discuss, like for example if somebody else come in the family start asking what happened, yes we explain that. Q Okay. Just to make the answer more clear, so have you discussed July 4th, 2010 since July 4th, 2010 with relatives? A Yes, I did. Q And going back to the relatives, when you speak of relatives, did you also speak to Karamjad Bhullar about July 4th, 2010 as well?

A Yes, we did. [ 41 ] I turn now to the evidence of the complainant as to what she says occurred on July 4th, 2010. She said on this date she was sleeping in an upstairs bedroom with her two children when she was awakened by the accused in the bedroom. Clearly, had he been there this would have been in breach of condition number 4 of the peace bond prohibiting his entry into the residence. [ 42 ] She said her parents, three brothers, and the accused's mother were also in the home at the material time of the accused's entry, said to be about 10:00 p.m. She heard her room door open which awakened her.

She saw the accused and asked him what he was doing there. It was unclear if he entered the room. Her evidence conflicts on this point. [ 43 ] She said he was very angry and said that it was his house and he could come there if he wanted. She reminded him of the restraining orders and asked him to leave and he refused. She asked him again and he got angry and grabbed for her right upper arm. She said she then managed to push him back for her own safety. She went downstairs. Her brother, Mr. Brar, who had just got off work, was in the kitchen. [ 44 ] She kept telling the accused to leave.

He was mad and aggressive and followed her down to the kitchen. In the kitchen she said he came at her very quickly and grabbed her neck and pushed her back again because he was very angry. She said that he put his right hand on her upper chest or neck area towards her throat, she felt pressure and he pushed her back. She said she was trying to push him back too. He did not let go of her neck that easily and she felt he touched her for a few seconds. She did not say that he had been drinking.

As well, she said that she was not violent at all with him at any time during the course of the evening. [ 45 ] I note that she did not say he had earlier pushed her back when he first grabbed her right arm. In any event, she said that she then told him she was going to call the police. She also said that she said this earlier on the way down the stairs. Shortly after, the accused placed his hand on her neck and then her brother stepped in and separated them. [ 46 ] She then grabbed the kitchen phone and called the police. The accused then went upstairs.

His keys and wallet were upstairs and he went and grabbed his keys. She heard the noise of the keys and then he came back down and left. She also said she was at this

time and earlier scared by the accused's actions. As she called the police, he left through the kitchen door. [ 47 ] She testified that her children sleeping in the same bed as she was did not awaken and did not notice anything. [ 48 ] Later in her direct evidence, but not at the outset therein, she said the accused when he grabbed her upper right arm scratched it. She also said that upstairs she pushed him back once only and did not further touch him as she went around him to go downstairs. She described the accused inside the house to be loud and angry. [ 49 ] She estimated the whole event from the time Mr.

Bhullar came into her bedroom until he left to be approximately ten minutes in duration. [ 50 ] She testified that the police took a photo of her on the same evening on July 4th, 2010 (but did not state when) one of her neck showing what she said were marks from the accused holding her neck with all the force.

The photo was entered as an exhibit and the complainant said that it showed that her blouse had been torn in the kitchen when he pushed her around and held her and she tried to release his hand which got onto her shirt and the shirt got torn apart. [ 51 ] I note that while the complainant testified that the accused had scratched her upper right arm and said at trial that she still had a mark on it, no photo was taken of this injury. There is no explanation offered for this oversight if it can properly be said to be that.

Had she told the police about such an injury, it seems likely to me they would have photographed it. [ 52 ] In cross-examination, she said her parents and his mother and her two brothers were asleep downstairs when the accused entered the home. She said as well that at no time did she try to be aggressive towards him. All she did was to try to protect herself in a defensive manner. Neither she nor her brother hit Mr. Bhullar. She did not know why he was at the house on July 4th, 2010. She agreed that the accused was not drunk on July 4th, 2010.

She agreed in the past when he had been abusive, it was most of the time related to his alcohol related problems. She could not think of any times when he had been abusive but was not drunk. [ 53 ] Finally, she agreed it was a bit unusual that he had pushed her and grabbed her neck when he was not drunk. She said it was hard to explain this change in his behaviour, in other words, his being abusive towards her when sober. [ 54 ] She also told the police on July 4th she did not want the accused to come to the nursery anymore.

Her family members were then scared of getting kicked out of the home. [ 55 ] The complainant also testified at trial on November 29th, 2010 that while she was then still married to the accused that she was then in the process of separation. She told the police on July 4th that she had been having problems with her husband for a long time, at least since she came to Canada with him in March 2002.

She told them it got worse in the past years and she said it was due to his alcoholism. [ 56 ] She agreed the accused had not had a good relationship with her parents and that since they came to Canada in October 2009 he wanted them removed from their home. He did not want them to stay there and support her. She said as a result of his arrest in February 2010 the peace bond conditions were placed on him on March 25th, 2010. [ 57 ] The complainant's oldest brother, Mr. Brar, testified that on July 4th in the evening he had come home after working in a pizza place.

He was getting some clothing from a cupboard near the residence kitchen when he saw the accused enter the kitchen area and go upstairs, eight to ten feet from where he stood. He had been home for ten to 15 minutes and then knew the accused was not to be inside the home. Everyone else was sleeping. [ 58 ] I observe if his evidence is truthful, he did nothing to stop the accused even though he knew his sister and her two children were then sleeping upstairs in one of the bedrooms. Mr. Brar said the accused was upstairs for five to seven minutes and he could hear arguments from upstairs during this time.

He could hear both of their voices upstairs in a louder than normal speaking tone and they were arguing when they came down. He said the voices he heard were loud. [ 59 ] Notwithstanding these loud voices, he still did not go upstairs to intervene and to see if his sister and the children were okay. [ 60 ] He saw them together in the kitchen. He did not see them enter as his back was to them. He turned. He then saw them fighting and said the accused's hand was on the base of his sister's throat and he was pushing her. The two were then also arguing in a loud voice. He did not recall what they talked about.

He then stepped between them and separated them. This happened very quickly. When asked in direct if the accused touched his sister anywhere else in the kitchen he said there was not that much time. He then said the accused pulled and ripped her t-shirt. He gave no evidence that the accused's shirt was ever ripped in the alleged incident inside the house by either his sister or him. He was standing four to five feet away from them when he moved in to separate them.

He said that his sister was pushing the accused's hand away or trying to do so at this time. [ 61 ] He recalled his sister then called the police right away. The accused then went out, leaving quite quickly. He did not testify the accused first went upstairs to retrieve his wallet and keys. This evidence is different from that given by his sister, the complainant. [ 62 ] On cross-examination, when asked if he was aware that the accused did not want him to live in the residence, he said that the accused had never said anything to him.

In answer to a question from the Court later, he said the accused when he had been drinking did tell him two or three times he wanted him to go and live somewhere else but he did not know why he said this. His evidence on point is therefore in conflict. [ 63 ] He knew for sure on July 4th, 2010 Mr. Bhullar was subject to a condition that he not enter the home. He did not tell him to leave when he first saw him inside, believing because it was his sister's house, it was in essence not his place to do so. In answer to several questions from the Court as to how he got on with Mr.

Bhullar before July 4th, 2010, he said they never had arguments or fights. [ 64 ] The accused testified as to the events on Sunday, July 4th, 2010. He said he worked all day in the greenhouses on the property.

At 7:00 p.m. he shifted the watering in one and then went to Abbotsford to visit with a friend, leaving the water on. The watering was to continue for several hours as his plants were very dry. After this visit, he returned to the nursery at about 10:00 p.m. and to the greenhouse area for purposes of shutting off the watering device. [ 65 ] He had been on the premises for some five minutes when he saw his wife approaching him, swearing at him, calling him "bastard" and "dog"; all kinds of names. She asked him what he was doing there? He explained he was there to shut off the water to his plants.

It was not contested at trial that at this time, he had no full or part-time employees to do the watering, nor by reason of Court orders, could he have called and asked his wife or one of her brothers to do so on his behalf. [ 66 ] He was outside one of the greenhouses beside its door when she approached according to this testimony. He said he was visible where he stood from inside the residence. The water tap near where he was standing was some 40 to 45 feet from the residence.

The accused testified that his spouse, who was very upset, challenged him on the need to water the plants in the fashion he had adopted on Sunday, July 4th, and that she did not believe his explanation that the plants needed water. As well, she suggested to him that he had come very frequently to his business just to irritate her and her parents. [ 67 ] She was angry and pushed him with both her hands and he went backwards. He said this was not the first time she had pushed him. She pulled his hair. He removed her hands from his hair leaving it looking unruly and rough.

She then grabbed his shirt collar and ripped his shirt down so that certain or all of the buttons came off and the front pocket ripped. [ 68 ] Then her brother who was close by came from behind him and pushed her away. As he did so, his back was towards the accused. The brother then proceeded to carry his sister away, eventually inside the residence. While doing so, she called out to the accused using such turns of phrase as "motherfucker".

While thus in transit with her brother, she also yelled at him words to the effect, "I'll put you in jail" or "I'm going to call 9-1-1". [ 69 ] He testified that when she went into the residence, he knew she would call 9-1-1 and of course he was right; she did. He said in cross-examination that during previous arguments she had said lots of times that she was going to call 9-1-1 and would get him picked up. This evidence was not challenged. [ 70 ] When the police attended, the accused testified that he had told them the same story as to what occurred as per his testimony in court.

The accused admitted it was unusual for him to be on the property as late as 10:00 p.m. He usually left between 5:00 and 6:00 p.m. This was the first time he had stayed late. He did so because in essence this was the only time he could turn the water off as he was then working somewhere else. He said he had consumed no alcohol in the evening in question. This fact is not in dispute. [ 71 ] He testified that on July 4th when he returned at 10:00 p.m., almost all the house lights were on and he then believed that save for his mother, his wife's entire extended family was home. All their cars were outside.

Typically at 10:00 p.m. with the residence lights on, they would be up watching TV. Nonetheless, on July 4th he did not know if anyone was up. [ 72 ] To get to the greenhouse to turn the water off, he had to drive along a road leading to it which passed within 20 to 25 feet of the residence. He parked near the greenhouse or nursery building. It seems probable his arrival would be heard by someone inside the residence, if anyone was up. [ 73 ] In cross-examination he was asked why he had remained on the property after his wife had attacked him outside?

He said he knew she had called the police and he would let them come and check things out. He said, "I had to stay there". He denied three times that he had entered the residence. He knew he was bound by conditions not to do so. He also denied his clothing was dishevelled because he had physically struggled with his wife. [ 74 ] I have carefully reviewed the accused's evidence as to what he said in his direct evidence as to what transpired on July 4th between he and his wife and his evidence on same given in cross-examination.

There are in my view no material internal inconsistencies in the two pieces of evidence. [ 75 ] Finally, and I think importantly, the accused gave evidence (much of it elicited from him by Crown counsel in cross- examination) that his wife was hot-tempered and that it was in her nature to argue with some frequency, and that she had done so before their separation, both with him and members of her own family, including her own mother. [ 76 ] These arguments certainly between him and her were ongoing even before her parents arrived.

He recalled that when they were together, she would pick a fight with him on every small thing. After an argument, they would not speak to one another for a day or two, and then things would return to normal. During these arguments, they would swear at one another. She would also at times approach him and push him around and then say to him, "You're scared of me". He denied he had ever been physical with her during an argument. [ 77 ] Constable Barr attended at the residence on July 4th and eventually arrested the accused.

He was aware of the conditions that bound the accused but did not arrest him or charge him with a breach of, for example, condition 9 which specified that the accused must abstain absolutely from the consumption of alcohol. [ 78 ] He also noted that on arrival and after he met the accused at the rear of the property, the accused looked quite dishevelled. His hair was a bit of a mess. His upper shirt pocket was ripped and the shirt itself was ripped at the top and the buttons were open. It appeared to Constable Barr that the buttons had been ripped off. [ 79 ] Mr.

Bhullar's first comment to Constable Barr was to the effect that his conditions allowed him to be there. Constable Barr then detained the accused for an investigation and placed him in the rear of his police car. After speaking to the complainant inside the residence and I think clearly accepting her story as true, he concluded an assault had occurred. He then shortly arrested Mr. Bhullar for same and for breaching his conditions in the peace bond.

He had earlier caused the RCMP dispatch to forward the conditions (marked as Exhibit 1 at trial) to his cruiser's onboard computer and had read them before charging the accused. [ 80 ] Constable Barr also recalled the accused tried to explain to him what had occurred with respect to his ripped shirt but could not

recall exactly what he said going by memory. [81] On cross-examination he was referred to his notes he made on the evening in question of his discussion with among others theaccused where he had noted that the accused then told him he had been assaulted by the complainant and her brothers. [82] The final note he made was to the effect the accused "continued to claim he was not in the residence and he was attacked". Theonly sense of this entry is that the altercation occurred outside and not within the residence.

I will return to this point later. [83] I note the accused had not fled from the residence after he allegedly entered the residence allegedly in breach of the peace bondand is said to have assaulted his wife. Constable Barr confirmed this fact and further said that for the most part, the accused was quitecooperative with him during his investigation. [84] The police took photos of the wife on July 4th, 2010. I have referred to one above. It appears to show a torn t-shirt, the rightstrap only, and some very minimal redness on the complainant's neck. [85] Constable Barr testified in re-examination by Ms.

Lloyd that he did not observe any visible injuries on Mr. Bhullar on theevening in question. He was not asked in his direct examination by Crown counsel if when he met with the complainant inside theresidence, he had observed any visible injuries on her person or even enquired on this point. [86] I observe that Constable Barr was the first witness called by the Crown at the trial. Crown would have had an extract of hispolice notebook in advance of the trial and is to be taken to be familiar with its contents relevant to the matters before me.

Crowntherefore knew both from this source and from the sworn evidence given by Constable Barr that the accused on the evening of thealleged assault was claiming: 1. he was assaulted by the complainant and her brothers; and 2. that he had not entered the residence; and 3. that the assault he had told the police about on July 4th had occurred outside and not within the residence. [87] Crown was fixed with this knowledge of the accused's likely story should he testify at trial in his own defence when thecomplainant was called to testify and as well, long before this event at the disclosure stage of this case. [88] Ms.

Franklin testified in cross-examination that she saw the accused weekly after July 4th, 2010. Between April 14th and July4th, 2010 she saw him not less than once per month. During this time she had no reason to believe he was not being compliant with thepeace bond orders marked as Exhibit 1 at the trial. POSITION OF THE PARTIES The Crown [89] Ms. Lloyd argues that I should accept the evidence of the complainant corroborated by her brother, Mr. Brar, and convict theaccused on all counts on the Information before the Court. The Defence [90] Mr.

Kooner argues that there are some inconsistencies in the evidence of the Crown witnesses; essentially some things that donot make sense in their stories that should raise a reasonable doubt in my mind as to whether they are being truthful. As well, theaccused's story, while different than that of Crown witnesses, is credible and if not so, again should at least raise a reasonable doubt. [91] This very brief

summary is wholly incomplete with respect to all points made by both counsel, all of which I have considered. Itdoes set out I think the essence of their positions at trial save for one issue I shall now deal with. Duty to Cross-examine: The Rule in Browne v. Dunn, (1894), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) [92] This principle is discussed in McWilliams Canadian Criminal Evidence, 4th ed. at

section 18:70:30 under the heading "Duty toCross-examine".

This point was raised by me as the presiding judge after I had heard all the evidence led at trial by both Crown anddefence and before either party had made their final submissions in argument. [93] I had noticed that during cross-examination of the complainant and her brother, defence counsel had not put squarely to eitherwitness the version of events testified to by his client, the accused, namely, that the confrontation had occurred outside the residence nearthe nursery outbuilding and the complainant was the aggressor. [94] I requested that each counsel be prepared to make submissions on this issue in closing argument which they did in due course. [95] This principle is referred to in various cases provided by counsel and several which I drew to their attention on the last day of thetrial when I raised this above issue.

The relevant cases argued are as follows: 1. R. v. Mete (1973), (BC CA), 3 W.W.R. 709 (B.C.C.A.) 2. R. v. Khuc, 2000 BCCA 20 3. R. v. McNeill (2000), (ON CA), 144 C.C.C. (3d) 551 (B.C.C.A.) 4. R. v. Carter, 2005 BCCA 381

5. R. v. Ali, 2009 BCCA 464 [96] This principle that arises certainly from the House of Lords decision in Browne v. Dunn, supra, is well explained by Mr. JusticeThackray in R. v. Carter, supra, at paras. 54 to 60 of his reasons. He says this at paras. 54 to 56: [54] The Crown, on this appeal, relies upon the "rule" in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) which itsays is properly stated in R. v.

Henderson (1999), (ON CA), 134 C.C.C. (3d) 131, 120 O.A.C. 99 [cited to C.C.C.] atpara. 18, as: [I]f counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance toaddress the contradictory evidence in cross-examination while he or she is in the witness-box. [55] The "rule" is categorized by Crown counsel on this appeal as one of common sense and that a breach of it transgresses the rule offairness. The Crown relies upon the words of Southin J.A. (in separate reasons concurring in the result) in R. v.

O.G.K., (1994), (BC CA), 40 B.C.A.C. 54, 28 C.R. (4th) 129 [cited to B.C.A.C] who, after setting out relevant portions of the reasons inBrowne v. Dunn, said this at paragraph 20: What underlies these expressions of a duty to cross-examine and the effect of a failure to cross-examine is the fundamental propositionthat a court of law must treat all persons who come before it in whatever capacity fairly.

It is not fair to a witness to adduce evidencewhich casts doubt upon his veracity when he has not been given an opportunity to deal with that evidence. [56] However, application of the principle must be tailored to the circumstances of each case. There is no absolute. An articulationof the flexibility with which the "rule" must be applied was given by Doherty J.A., for the Court, in R. v.

Paris, supra: [22] Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party thenleads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration inassessing the credibility of that witness and the contradictory evidence offered by the opposing party.

The effect of the failure tochallenge a witness's version of events on significant matters that are later contradicted in evidence offered by the opposing party is notcontrolled by a hard and fast legal rule, but depends on the circumstances of each case [case references omitted]. [23] The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a complainant on matters thatthe accused subsequently contradicts in his testimony will depend on many factors.

These include the nature of the matters on which thewitness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence. In somecircumstances, the position of the defence on the matters on which the complainant was not cross-examined will be clear even withoutcross-examination. In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall contextof the case. In such situations, the failure to cross-examine will have no significance in the assessment of the accused's credibility.

Inother circumstances, however, where a central feature of the complainant's evidence is left untouched in cross-examination or evenimplicitly accepted in that cross-examination, then the absence of cross-examination may have a negative impact on the accused'scredibility. [emphasis added by Thackray J.A.] [97] The facts in R. v. Carter, supra, are set out in the headnote of the case as follows: Appeal by Carter from three indecent assault convictions. The complainants were two brothers, 14 and 16 years old when the allegedassaults occurred.

Carter was 27 at the time, and a military officer with responsibilities relating to a recreation centre the complainantsfrequented. The brothers alleged Carter engaged them in sexual activity while on trips and at the recreation centre. They claimed theydid not consent to and at times resisted the activity. Carter denied that some of the incidents described by the complainants occurred,and claimed those that did occur were with consent. Credibility was a central issue.

The Crown, in closing, noted Carter's counsel didnot put Carter's version of the events leading to the charges to the complainants on cross examination. The Crown told the jury it coulddraw an adverse inference regarding Carter's credibility because of this.

The judge instructed the jury that Carter was not obliged toadduce evidence to refute every detail of the complainants' evidence. [98] Our Court of Appeal considered whether Crown in its closing address at trial to the jury in Carter, supra, ought properly to haveinvited them to draw an adverse inference against the credibility of the accused because his story was not put to the Crown complainantin cross-examination. [99] The Court held as follows at paras. 60 and 65 of the reasons: [60] The complainants were given every opportunity to address the defence position that either the sexual events did not happen or, ifthey did, they were by consent.

They were treated fairly, not as in O.G.K. where a matter fundamental to the case was not put to thecomplainant on cross-examination. Nor were the complainants "ambushed" by the testimony of Mr. Carter. In R. v. Verney (1993), (ON CA), 87 C.C.C. (3d) 363, 67 O.A.C. 279 [cited to C.C.C.], the trial judge had instructed the jury that defencecounsel should have put to a Crown witness all aspects of the defence evidence where it was in conflict with the testimony of thewitness. Finlayson J.A., on behalf of the Court, said, at 376: This admonition, based on a civil case, Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67, was not warranted in this case. Browne v. Dunn is a rule of fairness that prevents the "ambush" of a witness by not giving him an opportunity to state his position withrespect to later evidence which contradict him on an essential matter. It is not, however, an absolute rule and counsel must not feelobliged to slog through a witness's evidence-in-chief, putting him on notice of every detail that defence does not accept. Defencecounsel must be free to use his own judgment about how to cross-examine a hostile witness. [Emphasis added by Thackray J.A.]

[65] While there may be a judicial divergence as to the degree to which a client should be held responsible for the tactics employedby counsel, the case at bar, in my opinion, does not turn on that issue. In this case there was no lack of confrontation in cross-examination. The complainants were mature adults, who well knew that the issues were whether the incidents occurred at all and, if so,whether they were by consent. The complainants were not denied any substantial right nor were they hindered in any way.

Mostsignificantly, the jury was not denied the opportunity to have a full picture from which to come to its verdict. Crown counsel's address tothe jury extended the requirement to cross-examine well beyond the "rule" in Browne v. Dunn and beyond that which common sensewould suggest. Position of the Parties on the Applicability of the Rule in Browne v. Dunn in this Case [100] Crown counsel argues that defence counsel ought to have cross-examined the Crown witnesses on his version of events given byhim in evidence. In the result, he not having done so, I should give his evidence less weight.

The Crown witnesses were not given achance to address his version of events. They were not treated fairly. [101] Ms. Lloyd in a very clear submission on the relevant legal principles emphasized that the duty arising is to cross-examine onsignificant or central features of here, the defence version as opposed to mere details. [102] In R. v. Khuc, supra, at para. 44 she points out that Chief Justice McEachern said the following: [44] Crown counsel's point is well taken.

There can be no doubt that the general rule is that counsel must confront a witness with anynew material he or she intends to adduce or rely on after the witness has left the box. However, the rule does not go so far as to requirecounsel to ask contradicting questions about straightforward matters of fact on which the witness has already given evidence that he orshe is very unlikely to change. Judges tell juries that they may accept or disbelieve all or any part of the evidence of a witness. Thatinstruction does not depend upon opposing counsel asking unnecessary questions.

With respect, I believe the law is correctly stated inthe case of R. v. Mete, (BC CA), [1973] 3 W.W.R. 709 (B.C.C.A.), particularly at 713. I do not believe the rule isany different if the evidence on which there is no cross-examination directly contradicts the evidence of the Crown or merely supports afact inconsistent with the Crown's theory of the case.

Counsel who does not cross-examine takes the chance that the evidence will beaccepted; but rather than embark upon a futile cross-examination, counsel is entitled, as Crown counsel did in this case, to rely on thejudgment of the jury as to what evidence it will accept. [103] Ms. Lloyd argued that the accused's version of events as to how the physical confrontation occurred is not to be seen as astraightforward matter of fact on which the Crown witnesses had already given evidence that he or she was unlikely to change.

Shenonetheless made it clear that the parameters of the principle now under discussion were such that the trial judge had a discretion as tohow to use unchallenged testimony and that the effect to be given to the absence of cross-examination depends on the circumstances ofeach case (see R. v. Ali, supra). [104] Ms. Lloyd said that while some of the above authorities might suggest an aggrieved party, here the Crown who was not put onnotice of the opponent's case, might seek to recall a witness, she did not here seek to do so or call reply or rebuttal evidence to meet theaccused's version of events.

It was not practical to recall the Crown witnesses. [105] Ms.

Lloyd said that the matters not put to the Crown witnesses in cross-examination by defence counsel which should have beenare as follows: 1. that the location of the confrontation was outside the residence; 2. that the complainant attacked the accused; 3. that she pulled his hair and tore his shirt; 4. that her brother was outside and eventually carried her in; 5. that her family was up and the lights were on; 6. that there were financial issues that were a source of contention between the parties and family members; 7. that they disliked one another, the complainant and the accused, there was an animus between them. [106] Finally, she concluded that the evidence given by the Crown witnesses should not be given less weight as it was not challengedbut rather submitted that the accused's evidence should receive less weight because his counsel failed to cross-examine the Crownwitnesses on the above points. [107] Mr.

Kooner in an equally helpful submission on this point argued that it was a mere detail as to whether the confrontation tookplace within or without the residence. As such, he was under no duty to cross-examine on this point. In addition, he drew my attention topara. 44 of R. v.

Khuc, supra, set out in part above and seemed to suggest in his submission that the Crown witnesses did have a chanceto respond on all significant issues. [108] Having considered all counsel's submissions, in my view at the end of the day and based very much on perhaps the unique factsand circumstances of this case, defence counsel's failure to cross-examine Crown witnesses on any of the above items on Ms.

Lloyd'sshopping list should not and does not in itself cause me to give either more or less weight to the evidence of any witness who testifiedbefore me. [109] Insofar as fairness lies at the heart of the principle under discussion (and only Crown argues that Crown witnesses were treatedunfairly and are I suppose technically the aggrieved parties) I do not feel or find they were in any way ambushed or treated unfairly byreason of their not being confronted with the accused's story in cross-examination by defence counsel.

[110] Central to this finding is the fact that Crown counsel likely had Constable Barr's police notes at a very early date in this case. That, in my understanding, is how Crown disclosure works. [111] These notes as I have said above make it clear that the accused had said to this officer on arrest in essence that the confrontationoccurred outside the residence and that he was attacked by the complainant.

This is surely the only reasonable construction to be givento this note referred in Constable Barr's testimony given in cross-examination. [112] This version of events was therefore not unknown to the Crown at the start of the trial.

Crown might have dealt with it in directevidence, not by way of asking the complainant if she could comment on the accuracy of the note, but for example by asking her ownwitness a very simple question: was there ever any confrontation between her and the accused on July 4th, 2010 outside the residence? [113] Where Crown as here is on notice at the start of its case that the accused may take this position if he testifies, I do not think itcan be said that a Crown witness is ambushed or unfairly treated if the accused later does so testify where, as here, Crown was on noticeat the outset before the trial began that this testimony was at least a reasonable prospect. [114] As to points (5) to (7) on Ms.

Lloyd's list of matters that the accused's counsel ought to have cross-examined the Crownwitnesses upon, again I do not find in the circumstances of this case there was any duty on defence counsel to do so. None of theseissues can be seen as central to the case or to the accused's testimony in my view. The poor relationship between the accused and thecomplainant was obvious. [115] As well, I find on all the evidence in this case that had the accused's story been put to the complainant in cross-examination, thatit would likely have been a futile exercise.

I think it is very unlikely that she would have changed her direct evidence already given as tothe manner in which the alleged assault is said to have occurred. Credibility [116] This is a central issue in this case and because the accused testified, clearly the well known principles in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 and R. v. H. are applicable. I shall return to them shortly. [117] One helpful decision on credibility is that of R. v.

Parent, 2000 BCPC 11, a decision of Her Honour Judge Ann Rounthwaite ofthis Court wherein she dealt with the credibility of witnesses generally and how a trial judge can assess it at paras. 4 to 5 of her reasonswhere she stated as follows: [4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately, 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accusedperson to avoid conviction would place an accused at an unfair disadvantage.

As a result, I do not consider that possible motive whenassessing an accused's testimony. 7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors, which may affect demeanour.

Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. [118] In para. 9 of her reasons, Her Honour Judge Rounthwaite used the term "ring of truth" as a different way of expressing the pointin para. 5 above, namely, the "sense" of the witness's evidence. [119] On this same point, our British Columbia Court of Appeal has also commented in a case called Faryna v. Chorny (1952), (BC CA), 2 D.L.R. 354 albeit in the context of credibility in civil actions where there is a lower and different burden of proofas compared to criminal cases.

Nonetheless, Faryna is often referred to as containing a guiding principle for trial judges in assessingcredibility in criminal cases. Therein Mr. Justice O'Halloran said this in part on point: [11] The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. [120] Judges in making decisions are required more than occasionally to employ their common sense. Credible evidence should makesense. [121] I turn now to assess the credibility of the various witnesses in this case. [122] Constable Barr's evidence was not really challenged. I accept that he was a credible witness who testified with the benefit of

certain written notes made on July 4th, 2010 as events he was involved unfolded. [ 123 ] Likewise, Ms. Franklin's evidence is not in dispute in this case. [ 124 ] Mr.

Kooner at the outset of the case made two simple and helpful admissions: 1. that the identity of the accused was not in issue; and 2. that the s. 810 peace bond, Exhibit 1, made by Spence P.C.J. on March 25th, 2010 was valid and in force on July 4th, 2010. [ 125 ] I turn to the evidence of the two Crown witnesses and in the view I have formed of this case, the credibility of their testimony can be considered at one and the same time. [ 126 ] As I have indicated, and I find, these two witnesses if they did not discuss their evidence before trial at least discussed the events of July 4th between themselves and with others. [ 127 ] While consistency in the evidence given by different witnesses as to the same events can be seen as a hallmark enhancing the reliability of the evidence, where it appears witnesses have in essence discussed their evidence or what occurred before they testify at trial, the Court is concerned that there may be a blurring between what a witness recalls and what he or she recounts in testimony based on the observations of others (as per: R. v.

Stelter , 2011 BCPC 165 a judgment of Woods P.C.J. at para. 83 et seq ). This concern is a factor in this case and affects the credibility of both these witnesses. [ 128 ] In addition, the sixth factor referred to in R. v. Parent , supra , motive to lie or mislead the Court, bias or advantage, is in my judgment a very significant factor in this case. [ 129 ] The two Crown witnesses were hardly independent of one another. They were brother and sister. The brother was sponsored by his sister in part and lived in her home. He had at best an entry level job.

After February 2010 when the accused left the home, she was the person in charge. [ 130 ] It is abundantly clear there were at all material times two "camps" in this extended family, a large one populated by the complainant and her family comprising three brothers, one sister, her mother and father, and two children, and a second much smaller one populated by the accused and possibly his mother. [ 131 ] There was prior to and no doubt after their arrival in Canada a fundamental and divisive issue between the two spouses.

The accused was I think fed up with supporting his spouse's family including financially and wanted them to move out, whereas she did not and I think too they did not wish to go. The complainant looked to them for support, not to the accused. Tension resulted from her view of what her family should or should not do. This single festering issue created a source and cause for ongoing, frequent, and I think bitter arguments between the complainant and the accused. [ 132 ] It was clearly in the interests of both the complainant and her brother, Mr.

Brar (not to mention the rest of her family or camp) to have the accused out of the residence and bound by a no-contact order. If this occurred, he was clearly unseated from any position of leadership in the family and his desire immediately became something both she and her family could disregard. [ 133 ] I find both Crown witnesses had an obvious and compelling motive to act and testify in Court in a way that would after February 2010 keep the accused out of the residence and unable to talk to them for as long as possible.

This in my view is such an obvious factor in this case that nothing whatsoever turns on the extent to which accused's counsel did or did not cross-examine either Crown witnesses on motive to mislead the Court. The evidence of both Crown witnesses is suspect for this reason alone. [ 134 ] In addition, I find I have pursuant to the above Faryna , supra , concept strong difficulties with the sense of their evidence. [ 135 ] Firstly, as to Mr. Brar, he says on July 4th he saw the accused enter the residence and go upstairs.

It is unclear from his evidence whether or not the accused saw him when he allegedly entered the residence by a kitchen door. This does not matter in my view. Mr. Brar then knew that the accused was not to be in the residence and was to have no contact with the complainant, his own sister. Yet he said he made no effort to stop him going upstairs. I find his reason for not doing so is frankly lame, namely that it was her house and not his place to say or do anything. This evidence lacks an air of reality.

It is not believable. [ 136 ] Brothers, especially those living in their sisters' homes and being substantially kept by them, generally are protective of sisters. There are no doubt exceptions to this proposition but I observe there is no evidence of anything negative in the relationship between Mr. Brar and the complainant. [ 137 ] If his evidence is credible, he did not react to the accused in the usual expected way a brother would when his sister's safety is potentially at risk. [ 138 ] Mr. Brar said he overheard the accused and his sister yelling upstairs. Still he did not come up.

There is no evidence the parties' two children, said to be sleeping in the same bed, or anyone else then living in the residence, awoke. None of this makes any sense. [ 139 ] The accused did not really seem to be challenged when he testified typically on a Sunday evening and on July 4th the inhabitants were up and the lights on and everyone was watching TV. The Crown witnesses suggest everyone was asleep. [ 140 ] The complainant agreed in cross-examination that the accused was not drunk on the evening of July 4th, 2010.

She also agreed that prior to July 4th, most of the time when she said he had abused her, that he was drunk. She could not think of anytime when he had been physically abusive to her when he was not drunk. She felt it was unusual for him to act as she alleged he had on July 4th when sober. [ 141 ] This evidence frankly in my view also brings into question the reliability of the evidence given by the brother and sister.

[ 142 ] Crown counsel admitted that the consumption of alcohol and its effects on the human body is generally to lower one's inhibitions.

This usual effect cannot be said to have been a factor on July 4th to explain why the accused might have either entered the residence or assaulted her as alleged. [ 143 ] Crown counsel argues that if the complainant's story with respect to the alleged assault was fabricated (as defence in effect argues it was in the face of the accused's evidence) that she, or she and her brother, would have included an ingredient in the fabrication to the effect that he was drunk on the evening of July 4th. [ 144 ] I reject this analysis.

One significant problem with it is the independent witness Constable Barr who could testify on the state of the accused's sobriety if the complainant lied on this point in Court. Hence the absence of evidence that the accused was drunk or had been drinking on July 4th is a further factor that makes me suspicious about the reliability of the Crown evidence concerning the alleged assault to the effect that it unusually occurred when the accused was not functioning under the effects of excessive consumption of alcohol. [ 145 ] There is no evidence as to why the accused would on this evening enter the residence.

He clearly did not do so because he was drunk and his inhibitions were lowered. If the complainant's story is true, he must have known that he would be caught and reported to the police. Seen in this light, his entry contrary to the Court orders in the peace bond must be seen as some form of death wish on his part. This also makes no sense. [ 146 ] I observe there is no evidence, for example from Ms. Franklin, that the accused at any earlier time ever breached any order in the peace bond. There is no evidence of any event that would have precipitated his entry into the home as alleged by the complainant.

He had no reason to go after her. Had he wanted his in-laws out of the family home, and he did, why would his barging in on her in a houseful of her family members do anything to accomplish this task? How would choking her as alleged accomplish this goal? [ 147 ] Very importantly in my assessment of the Crown evidence is a lack of any reasonable explanation therein as to how his shirt was ripped in the manner both Constable Barr and the accused described.

In my view, the evidence led by Crown on this point is wholly inadequate to do so. [ 148 ] The onus was on Crown in this case to prove the alleged assault beyond a reasonable doubt. It was known to Crown the moment Constable Barr's notes were obtained in pre-trial disclosure what he found on arresting the accused. The complainant and Mr. Brar in my judgment could have been asked if as a result of their defensive pushes for example any of the accused's clothing was torn in any way. This would not in my view be asking them to comment on another witness's evidence. The accused was not cross-examined on this point.

He was not asked whether for example he ripped it himself. [ 149 ] In the result, the Court is left -- as far as the Crown evidence is concerned -- with some doubt as to the precise or even likely mechanism by which the ripping of the shirt occurred and indeed some doubt that it occurred at all in the alleged assault as per the Crown's evidence. [ 150 ] The complainant's story that the accused left his keys and wallet upstairs and after trying to choke her went back up and retrieved them before leaving makes little sense to me.

This would not seem to be the type of thing an assailant in breach of court orders would do. I have noted Mr. Brar did not so testify. [ 151 ] There seemed to be some internal inconsistency in the complainant's evidence as to whether or not the accused entered her bedroom or not on July 4th. I was unclear exactly what she was telling me on this point. The accused did not flee after the alleged assault but stayed to meet with the police whom he reasonably believed were on the way.

The story he then told Constable Barr is essentially what he gave in evidence in his own defence at trial. [ 152 ] All of these above factors cause me to have a reasonable doubt that the Crown version of the alleged assault is true and reliable. [ 153 ] As far as the accused's evidence is concerned, Crown counsel argues that his version of events makes no sense, for example, why would the complainant go out to confront him? She was a person who had been historically abused by him. Why would she go outside and expose herself to a further assault?

She had no motive to start anything. [ 154 ] I do not accept this submission. Firstly, it seems the complainant did not go out alone. She had her brother reasonably close at hand. The accused testified that after the complainant's brother and family had arrived and started living with her, she seemed thereafter with their support to be almost emboldened in her aggression towards him. She was therefore not physically at risk on July 4th. [ 155 ] He denied that he had physically assaulted her historically. It is the complainant alone who alleges historical abuse and assaultative behaviour on his part.

The fact that a peace bond was made is not in my view an historical admission by this accused that he either assaulted or abused her at any time. [ 156 ] The admission typically made by an accused as a pre-condition to orders being made under s. 810 of the Code need not go so far as to admit to an assault and typically does not.

No evidence has been led in his case as to what the exact admission was in any event that led to the making of the peace bond in the first instance. [ 157 ] The complainant could well have gone out to challenge her spouse as to why he had arrived so late and was he intending to harass her and her family in so doing? She may well have been looking out for an opportunity to charge him. I need not make this finding. [ 158 ] It is clear even if I accept his version of events as truthful that shortly this opportunity presented itself and she made good on it.

He said more than once before July 4th, 2010 she had threatened to call the police on him and have him jailed. This evidence was unchallenged. On July 4th it would seem she made good on such historical threats. [ 159 ] In my view, on July 4th she was not lacking in a motive to want to start a confrontation with her spouse as I have discussed at

some length above. [160] Crown said that the accused was evasive in the way he answered certain questions in cross-examination. I do not find him to beso in the manner in which he testified. [161] Following the confrontation with his estranged spouse he stayed, and when the police officer attended, namely, Constable Barr,the accused told him essentially the same story he gave in evidence-in-chief. This evidence was initially led by Crown counsel throughConstable Barr and really was clarified in cross-examination by defence counsel with no objection from Crown counsel. [162] The effect of statements made on arrest is dealt with in a very

summary way in Sopinka's well-known Evidence text at p. 319where he states in part as follows: (

f) Statements Made on Arrest The statements made by an accused upon his or her arrest which are exculpatory in nature have been said to be admissible as anexception to the general rule prohibiting self-serving evidence. The problem, however, is that it appears that it is receivable in evidenceonly if tendered by the Crown but not by defence. However, it should be noted that in the Supreme Court of Canada decision in R. v.Hughes defence counsel elicited upon the cross-examination of a Crown witness the earlier exculpatory remarks made by the accused ina conversation with that witness.

The Supreme Court of Canada was more explicit in Lucas v. The Queen where it had indicated that itwas permissible for an accused to testify in his examination-in-chief about an exculpatory statement made to the police upon arrestsimilar to the testimony that the accused was giving in the courtroom. In essence, the prior exculpatory statement is tendered to rebutany inference of his guilt arising from any silence on his part at the time of the arrest. Although such an inference cannot be drawn as amatter of law, by reason of the right to remain silent it might be drawn in fact.

The accused can adduce the exculpatory statement as amatter of good tactics. [163] Because this evidence was not in any way made an issue at trial, namely the admissibility of what the accused said to the policeofficer on arrest, I do not intend to deal with it at any length save to note that in R. v.

Lucas (1963), (SCC), 1 C.C.C. 1a judgment of the Supreme Court of Canada, Chief Justice Kerwin said at pp. 10-11 of the Court's reasons that it was open to defence toobtain evidence from the accused/appellant to the effect that he had made a statement to the police following arrest which was similar tothe evidence which he had given at trial. In Lucas Crown led the statement from its police witness. [164] In R. v.

Knox (1968), 2 C.C.C. (2d) 348 Branca J.A. of our Court of Appeal said that such statements made by an accused afterarrest could only be introduced by the Crown and once so introduced, the evidence became evidence both for and against the Crown (seep. 360-361). [165] The Alberta Court of Appeal in R. v.

Keller, (1977) 36 CCC (2d) 9, seems to take a narrower view of this issue. [166] I give the fact that the accused before me told essentially the same story on July 4th and at trial some limited weight in thecircumstances of this case. [167] While in a criminal trial I am not required to choose or make a finding as to which version of events I believe (see R. v.Avetysan, 2000 SCC 56 at p. 2 of 12 SCC), I find in the case at bar I believe the accused. [168] I would make this finding whether or not I gave limited weight to his statement made on arrest to Constable Barr. The accused'sstory makes sense to me.

This day was unusual. He returned later than he normally did. He was sober. There was no one to turn off thewater his dry plants then required. His wife had been historically aggressive with him. Clearly, she did not want him around. [169] He had not earlier breached any Court order relating to contact or communication with her nor with respect to entry of theresidence. There was no reason at all for him to do so on July 4th. I find he well knew and believed this evening that if he entered theresidence, he would shortly be arrested. This is the "death wish" I have alluded to above.

His description of events, in my view, bestdescribes his own physical condition as seen by the only independent witness in this case, namely Constable Barr, and I believe him. CONCLUSION [170] In the result, applying the principles in R. v. W.(D.), supra, and both because I believe him and have a reasonable doubt as to theveracity of the Crown witnesses and their story, the accused is acquitted on all the charges before the Court. (ORAL REASONS FOR JUDGMENT CONCLUDED)