IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Jasjit Khaira (the “accused”) married Rina Gill (the “complainant”) in India in 2015. This was an arranged marriage approved by the complainant’s parents.

[2]           At the time that arrangements were being made for the marriage, the accused was living in India and the complainant was living in the Lower Mainland.

[3]           In 2017, the complainant sponsored the accused to come to Canada. As a result of that sponsorship he received Permanent Residency (“PR”) status.

[4]           The marriage did not blossom.

[5]           In the evening hours of September 23, 2018, an altercation took place between the accused and the complainant in the basement suite of their residence in Vancouver.

[6]           During the course of the altercation, the complainant received a stab wound to her abdominal wall. The police were called and the accused was arrested in the basement suite.

[7]           The accused has been charged with the following three offences:

[8]           Other than the accused and the complainant there were no other witnesses to the altercation. They both testified at this trial. Their versions of the events that took place during the course of the altercation are irreconcilable.

[9]           The complainant testified that the accused was the instigator of the altercation during the course of which he threatened to kill her, assaulted her and stabbed her with a small paring knife.

[10]        The accused testified that the complainant was the instigator of the altercation during the course of which she attacked him with a heavy metal skillet and that he had to escape from the basement suite fearful for his life.

[11]        He denies stabbing the complainant. It is his belief that she stabbed herself to deflect blame onto the accused for the marriage breakdown.

[12]        As the two versions are incompatible, the credibility and ultimate reliability of both the accused and the complainant must be determined.

[13]        Credibility and reliability are different evidentiary concepts. The British Columbia Court of Appeal in R. v. Khan, 2015 BCCA 320, at para. 44, noted the distinction between the two concepts as follows:

[14]        In assessing credibility, a court should not embark on a credibility contest. David M. Paciocco proposes the approach that trial judges should take where there is conflicting evidence:

[15]        Additionally, the credibility of testimony in a trial will be impacted by evidence that materially confirms or contradicts a witness’s testimony: R. v. Eddison, 2019 BCPC 139 (CanLII), 2019 BCPC139 (CanLII), at para. 387

[16]        The accused elected to testify. Accordingly, the credibility framework developed by the Supreme Court of Canada (the “SCC”) in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at p. 757 is applicable. It was designed to explain what reasonable doubt means in the context of conflicting testimonial accounts:

[17]        David M. Paciocco, supra, at p. 2, provides a useful approach in applying the W.(D.) framework:

[18]        Finally, it must be kept in mind that the onus rests upon the Crown to establish all elements of the three offences beyond a reasonable doubt. The majority of the SCC in R. v. Starr, 2000 SCC 40, at para. 242, instructs, in part, that the concept of proof beyond a reasonable doubt is “much closer to absolute certainty than to proof on a balance of probabilities”.

[19]        The complainant testified in direct examination that when she sponsored the accused to come to Canada, they both secured employment doing security work. The accused was not content with his employment and wanted to find more lucrative employment.

[20]        In early September 2018, he expressed an interest in completing a truck driving course to become a truck driver.

[21]        On the day of the altercation both parties were in the kitchen when the complainant first learned the accused’s plan to travel to Winnipeg on September 30 to attend a truck driving course.

[22]        She suggested that she would go with him. The accused told her that it was not necessary as he would only be gone for six to eight weeks and the cost for two of them to go to Winnipeg exceeded their means.

[23]        She testified that the accused then told her that he would leave his personal belongings with a friend. She became upset believing that he was going to leave her, there would otherwise be no need for him to leave his personal belongings with a friend.

[24]        She picked up his wallet and suggested he came to Canada just for his PR card. The accused became angry and shoved the complainant’s front shoulders with sufficient force causing her to be pushed back towards the rear wall of the kitchen.

[25]        He then turned and grabbed a paring knife with his right hand from the knife block that was located to the left on the kitchen counter and, at the same time, told her in Punjabi that he was going to kill her.

[26]        To defend herself, the complainant grabbed a heavy metal skillet from the stove top, which she used as a shield to deflect the blade of the knife that the accused thrust towards her torso.

[27]        The accused then attacked her again with the knife. She was unable to deflect the knife with the skillet, so she grabbed his hand as it was coming towards her. However, she was unable to prevent the knife from entering deep into her lower left abdomen.

[28]        In the following exchange, the complainant was asked to describe what next happened immediately after she was stabbed:

[29]        After the complainant shoved the accused out of the suite and locked the deadbolt, he began banging on the door telling her that he was going to kill her. In response, she told him that she was going to call the police. The banging stopped.

[30]        The complainant called the police on their 911 emergency line. During the 911 call, she became alarmed when it was apparent to her that the accused was trying to re-enter the suite using his key on the deadbolt lock.

[31]        The accused was unable to open the deadbolt. Shortly thereafter, the police arrived and arrested the accused.

[32]        The complainant testified that she was wearing a T-shirt on her upper body underneath a sweater. She identified a hole in the lower left portion of the sweater that she believed was caused by the knife. She also noted some discolouration on the front of her T-shirt that she believed was probably the blood from the stab wound.

[33]        She testified that she was taken to the hospital where she spent the night. In the following exchange, she described the treatment that she received:

[34]        She testified that she was off work for three months, she had difficulty bending, standing up and walking over extended periods, all as a result of the altercation.

[35]        Further, that it took approximately two to three weeks for the wound to close due to the painful internal muscle damage. She also received counselling for emotional distress arising from the altercation.

[36]        The complainant identified her voice from the 911 audio recording that was played in court.

[37]        She denied that she stabbed herself.

[38]        The complainant was extensively cross-examined. The impact of the cross-examination on her credibility and reliability will be addressed in the court’s analysis and findings of the evidence led at this trial.

[39]        The accused testified in direct examination that he was unhappy working in security business and decided to improve his employment situation by taking a trucking course to secure his Class 1 licence.

[40]        His brother, who lives in Washington State, is involved in the trucking industry.

[41]        A mutual friend made the accused aware of a driving school in Winnipeg that offered a Class 1 licence course. This was ideal, as the accused had a cousin who lived in Winnipeg with whom he could stay.

[42]        The accused testified that the course offered in Winnipeg was both on easier and faster means to obtain a Class 1 licence than driving courses offered in British Columbia. The course in Winnipeg took approximately four to six weeks.

[43]        On the date of the altercation with the complainant, the accused first went to his in-law’s basement suite as he was unable to contact the complainant on her cellular device. It was his assertion that the complainant spent a great deal of time with her parents at their basement suite.

[44]        At his in-laws, the accused spoke to the complainant and told her that he was planning to go to Manitoba. He also told her that he was feeling hungry and asked whether she wanted to come with him to a local Superstore to get some food, an offer she declined.

[45]        The accused left his in-law’s basement suite and stopped off at the Superstore where he bought some food and returned to his basement suite in Vancouver where he prepared a meal and began watching a television program on Netflix.

[46]        At approximately 8:30 PM, the complainant arrived at the basement suite. Shortly after her arrival, she was sitting next to the accused on a couch and demanded to know, “Where is my ticket?” He responded by stating, “What ticket?”

[47]        The accused testified that the complainant became angry and confronted him in the following exchange:

[48]        He testified that the complainant told him to go ahead and buy a ticket and that he should put his personal belongings in a public storage locker. He felt that was inappropriate as he was already paying rent for the basement suite and that he was going to be back in four to six weeks.

[49]        She responded by telling him to “F-off” and to, “Get out of my house.”

[50]        The accused then went into the bedroom to grab his wallet and keys. However, before he could do so, she pushed by him and grabbed his wallet and his keys that were attached to a lanyard and ran out towards the kitchen. He followed her to the kitchen.

[51]        In the kitchen, the complainant opened up the wallet and referring to his PR card she said, “You came here for this.” At the same time he described the complainant twisted his wallet like a “dishrag.” She continued to hold his keys.

[52]        The accused hoped that she would calm down so that they could talk about his plan to go to Winnipeg. He was also concerned about getting his wallet and his keys, but was able to grab his lanyard of keys and wallet from her hand.

[53]        He testified the complainant then grabbed a heavy metal skillet from the stove top and she struck his lower leg and feet four to five times and then stomped on one of his bare feet which he described as, “really painful.”

[54]        In a state of shock, the accused moved backwards just as the complainant raised the skillet with two hands above her head and brought it down in front of him, but without striking his head or face. He responded by opening the door of the suite and running into the laundry room and the bathroom area and from there exiting the basement door out into the adjacent alley.

[55]        Once outside, the accused used his cellular device to call his brother for advice. After speaking to his brother for three to four minutes, he went back into the basement suite to try to reason with the complainant.

[56]        The door to their basement suite remained locked. He tried unsuccessfully to open the door with his key. He believed the complainant was holding the deadbolt to prevent it from opening. At the same time, he described that the complainant continued to scream and yell while he knocked on the door asking her why she was ruining his life and whether they could talk about it.

[57]        He believed the complainant was on the telephone as he recalled her saying words to the effect, “He will kill me.”

[58]        Shortly after that, the police arrived and he was arrested. He told one of the arresting officers that he had been struck with the metal skillet.

[59]        The accused identified a contusion to his right shin area in a photograph that was taken at his lawyer’s office the next day. He also experienced some swelling to the top of his right foot, which was stomped on.

[60]        The accused denied that he stabbed the complainant in her abdomen through her sweater. He denied ever holding a knife during the altercation. He denied threatening the complainant.

[61]        The accused was extensively cross-examined. The impact of the cross-examination on his credibility and reliability will be addressed in the Court’s analysis and findings of the evidence led at this trial.

[62]        The Crown submitted that the Court must assess in the totality of the evidence to determine whether or not the Crown has established the guilt of the accused beyond a reasonable doubt.

[63]        In that assessment, the Crown submitted that the complainant was both credible and reliable in establishing beyond a reasonable doubt that she was attacked by the accused during the course of which she was stabbed.

[64]        The other submissions of the Crown can be summarized as follows:

[65]        The accused submitted that the Court must take into account that English was not his first language.

[66]        The other submissions of the accused can be summarized as follows:

[67]        In their respective cross-examination, both the complainant and the accused minimized the importance that the PR card issued to the accused played in the dynamic of their marriage.

[68]        The complainant testified that she was only “slightly” upset when she grabbed the accused’s wallet before the altercation broke out in the kitchen. She justified her actions of grabbing his wallet as she “possibly” believed that his PR card was inside and explained that she did not open his wallet: Transcript, November 18, 2019, p. 27, ll. 1-30.

[69]        The accused testified that when the complainant suggested that he only married her so that he could secure a PR card that it only annoyed him, “… a little bit”: Transcript, November 19, 2019, p. 24, ll. 44-47.

[70]        I find that this marriage was unravelling as of September 23, 2018. The complainant and the accused were both clearly frustrated in this relationship. There was a breakdown in mutual communication.

[71]        In R. v. Grafe, 2015 ONSC 971, at para. 41, the expression “embellish” was judicially defined:

[72]        In this case, both the complainant and the accused embellished portions of their testimony to add fictitious interest to their narratives.

[73]        The complainant testified in cross-examination that she was subjected to a concerted and relentless attack by the accused, as he attempted to repeatedly stab her in her torso area with the paring knife. She was only able to fight him off by using the metal skillet as a shield and using her spare hand to grasp hold of his right hand in which he held the knife. He was still able to deeply penetrate her left lower abdomen with the knife.

[74]        She testified that after the accused fled she pulled out of the knife and placed it on the floor. Had she not done so that at the time the police arrived it was her belief that the knife would have remained stuck in her abdomen: Transcript, November 18, 2019, p. 47, ll. 39-45.

[75]        In the following exchange, she disagreed with the suggestion of the accused that the knife wound was a shallow wound that was described in various medical reports as a “superficial laceration”:

[76]        This testimony respecting the nature of the complainant’s injury is inconsistent with the various filed medical reports [Exh. 13].

[77]        The Trauma Nursing Assessment Record generated on September 23, 2018, under the heading “Injuries Reported” notes, “<1cm superficial lac @ l lower quad”.

[78]        The British Columbia Emergency Health Services (“BCEHS”) record generated on September 23, 2018, notes, in part, that at the time the complainant was stabbed that she was “… wearing a sweater and a shirt and a knife penetrated through and into the abdomen. PT has a 4 cm stab wound to Lower L abdo below navel… Blade of the knife at scene had blood on blade about ½ inch from the tip. Wound seems superficial…”

[79]        The Vancouver General Hospital Discharge Record generated on September 24, 2018, notes, in part, “… CT was performed in the emergency room and revealed a superficial laceration to her abdominal wall with no intra-abdominal injuries…”

[80]        There is no indication from the various above-noted medical records that any of the medical personnel diagnosed a deep wound and that medical personnel did not want to insert stitches as they were concerned that it would cause an infection as noted in her testimony in direct examination as reproduced at paragraph 33 of this judgment.

[81]        While the outer sweater that she was wearing appears to have a tear in the lower left area, there is no similar tear on the shirt she was wearing underneath the sweater though it was reported in the BCEHS record that the knife penetrated both the sweater and a shirt before penetrating into her abdomen.

[82]        I find that the complainant is neither credible nor reliable in her assertion that she was subjected to a concerted and relentless attack by the accused, which resulted in her being stabbed by the accused deep into her lower left abdomen.

[83]        I find that she is neither credible nor reliable in her testimony that the wound was so deep that medical personnel did not want an infection to set in which was why sutures were not utilized. That testimony simply did not make sense.

[84]        Without question, an altercation did take place between the complainant and the accused in the kitchen area of the basement suite. However, I find that she either embellished, or was not truthful, in her testimony respecting the nature of events that transpired in the basement suite that led to the altercation in the kitchen.

[85]        The accused testified in cross-examination that he was subjected to a relentless attack by the complainant, which caused him to fear for his life to the extent that he fled from the basement suite.

[86]        He testified that while they were face to face during the course of the attack, that he nevertheless had time to unlock the door that leads to the laundry room and bathroom of the basement suite.

[87]        He testified that this door was always locked when they were in the basement suite.

[88]        Both the accused and the complainant testified that there were no other occupants in the basement suite.

[89]        It did not make sense that this door would always be locked as no one else was residing in the residence. It merely led from the kitchen area of the basement suite to the laundry room and bathroom. There was a further lock equipped door leading from the basement suite to the exterior yard.

[90]        The accused testified that the complainant was aggressively trying to strike him with the metal skillet, yet she was unable to hit him anywhere on his upper body, however, she somehow managed, through a downward sweeping motion, to strike his right shin area resulting in a minor scrape.

[91]        In the following exchange, the accused testified that throughout this ordeal he never physically laid a finger on the complainant:

[92]        Yet, while fearing for his life, which caused him to flee to the exterior of the basement suite, he returned within minutes after speaking to his brother back into the basement suite and attempted to regain entry into the kitchen.

[93]        In the following exchange, the accused explained why he came back into the basement suite and attempted to get back into the kitchen area of the basement suite:

[94]        The explanation given by the accused did not make sense. Nor does it make sense that he would return into the kitchen area of the basement suite to discuss matters with the complainant who had, moments before, violently attacked him with the metal skillet.

[95]        The accused also testified that it only annoyed him “a little bit” when the complainant accused him of marrying her only for the privilege of getting a PR card.

[96]        He testified that he was only marginally frustrated by the lack of communication between himself and the complainant, but he then agreed that the statement that he gave to the police he expressed frustration from “day one” in trying to talk to the complainant.

[97]        I find that the accused minimized the importance of both the PR card and his frustration in communicating with the complainant.

[98]        I find that the accused accepts no responsibility for causing any marital conflicts between himself and the complainant. He went out of his way to put the blame squarely on the complainant.

[99]        I find the accused is neither credible nor reliable in his assertion that he was subjected to a concerted and relentless attack by the complainant causing him to flee from the basement suite fearing for his life.

[100]     Without question, an altercation did take place between the accused and the complainant in the kitchen area of the basement suite. However, I find that the accused either embellished, or was not truthful, in his testimony respecting the nature of events that transpired in the basement suite that led to the altercation in the kitchen.

[101]     I have found the testimony of both the complainant and the accused to be neither credible nor reliable in relation to their respective versions of events that transpired in the basement suite that led to the altercation in the kitchen.

[102]     In relation to the complainant’s 911 call to the police, she sounded terrified. Certainly, her version of events makes more sense than the version of events asserted by the accused. I am prepared to find that it is more likely than not that the complainant’s version of events is the more probable version.

[103]     However, I am prohibited from preferring one version of events over another version of events to establish proof beyond a reasonable doubt. This is the very situation identified by David M. Paciocco, supra, at p. 2:

[104]     After considering all of the evidence, the sense of that evidence, the exhibits and the submissions of counsel, I have concluded that I must find the accused not guilty.

[105]     At paragraph 102, I found that it is more likely than not that the complainant’s version of events is the more probable version. I have a legitimate apprehension of a future potential for the breach of the peace by the accused in which he may threaten or harm the complainant.

[106]     In R. v. Fiendell, 2006 BCPC 456 (CanLII) this court imposed a Preventative Order following the acquittal of the accused for criminal harassment. At paras. 108-110 the court framed it’s authority for imposing a Preventative Order:

[107]     Subject to any evidence which the accused may wish to call or the submissions of counsel on his behalf, it is my intent to order that the accused enter into a Recognizance, in the sum of $500.00, without deposit and without surety, for a period of 12 months, with the following terms and conditions: