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Self-Defence or Excessive Force? International Indian Student Charged with Aggravated Assault Amidst Controversy

Dr Neelam Batra-Verma

In the wake of Indian External Affairs Minister S Jaishankar’s recent concern over the deaths of 11 Indian students in the US in 2024, another distressing incident involving an Indian student has surfaced, this time in Canada. Unlike the tragic fate of Vivek Saini, who was fatally attacked while working at a convenience store in the US state of Georgia, Tejashwar Kalia bravely defended himself against an armed assailant in the suburb of Peterborough, Ontario, earlier this year.

Despite acting in self-defence during the confrontation with an armed robber wielding a bat and a knife at 2 am while on duty at the convenience store, 22-year-old Kalia now finds himself facing charges of aggravated assault and placed under house arrest.

Self video clip not an enough proof?
A widely circulated video online captures the harrowing moment when the assailant forcefully enters the store and strikes Kalia with a bat. Despite sustaining injuries, Kalia courageously fights back, and the altercation spills onto the street. The attacker, identified as Jonathan Handal, is revealed to be a drug addict with a history of violence and a battery of assault and drug related charges. Shockingly, Handal was on probation at the time of the incident, and despite his criminal record, he received a lenient sentence of just 14 months in prison. In contrast, Kalia, who is now facing charges of aggravated assault, could potentially face the 14 years of imprisonment if convicted.

However, Jeff Ayotte, Kalia’s lawyer is confident that the video is very evident and believes that once the case goes to trial, he will be found not guilty. Says he, “The area where Tejashwar works is a violence prone area and the store had been robbed before though not during Tejashwar’s watch. He was initially arrested and then released on bail. The conditions are extremely strict though. He was on house arrest for a number of weeks. Then I was recruited as his defence attorney. I negotiated a change with the prosecution as a result of which he is now on curfew from 11 pm to 7 am. He has a preliminary hearing set in Peterborough for October 15 this year, following which the case might be set down for trial in a Superior Court, which means that the trial will take place a year from now.”

According to Jeff, he is charged with aggravated assault, which is an indictable offence on the grounds that he went further in self-defence and used too much force on the accused. “They believe that he used unreasonable force, though I do not believe that. So that is the basis for aggravated assault, though when I look at the video it is clear that he is acting in self defence.

Tejashwar did not bring the weapon and was hit very hard. On a second glance, Tejashwar did not hit Jonathan very hard. If you slow down the video you can see that he started it hard but slowed down. And hits the accused on the shoulder and arms avoiding his head, thus creating less damage. For me that is evidence that Kalia is not trying to cause too much damage. There are allegations that the assailant had a knife too. So it is evident that though Tejashwar was able to control the bat, the assailant still
had a weapon and Tejashwar was till threatened. The entire incident from the time when the robber enters the store and everyone is outside is just 51 seconds. The amount of time is less than 3 seconds when Tejashwar has the bat and hits the assailant. So there is no time to think about what he is doing except to defend himself.”

Tejashwar came to Canada in August 2021 to pursue a course in Fitness and Health Promotion from Sanford Fleming College in Ontario. Originally from Punjab, today Tejashwar is stuck at home as he can neither go home nor take up a job. He says he lost two jobs, and his resources are depleting fast. He is now dependent on friends who have started a GoFundMe page to support him. Till the time of writing, as much as $12,000 have been collected for Tejashwar. A sportsperson, who once played for the National under 17 soccer team in India, is sharing his little apartment with other students. They are a big support for him.

Tejashwar right now is studying from home as his college has agreed to let him study online. Says he, “ I like Peterborough and would continue to live here. No, I don’t regret coming to Canada, I am not that kind of person, I love Canada, and Peterborough and the Community.”

Should racism angle be explored?
The community is rallying around Tejashwar and is blaming Peterborough Police Chief Stu Betts of racism. The chief denied that the charges stem from racism. In a public statement he said, “This is not about politics – politics have nothing to do with the facts. This is not about race – as some have suggested. This is not about the perception that criminals go free while victims of crime are penalized – this is about the law.”

Going through the justice system is nothing but a lengthy and expensive ordeal in Canada. If this case goes to trial, it would be nothing but shocking as Tejashwar was merely trying to defend himself. Charges of aggravated assault will be difficult to prove in court beyond a reasonable doubt as the most essential element for assault– motive – is missing. Tejashwar had no motive to hit Jonathan and therefore, mens rea will be difficult to prove. The video clearly shows Jonathan entering the store with a bat and starts to hit Tejashwar when the latter grabs the bat as Jonathan rushes outside. Tejashwar follows and hits Jonathan on his back.

Earlier this month, the court acquitted Moshfeghi Sadeh, a man charged with dangerous driving causing death and dangerous driving causing bodily harm, in relation to a 2021 crash that killed a toddler in downtown Vancouver. The judge termed the accident a momentary lapse of attention with a tragic outcome. The Judge ruled that it was not a criminal act. There are other similar cases where the accused gets acquitted due to lack of motive. However, while motive isn’t the sole determining factor in the prosecution’s case, its presence or absence holds significance. Yet, the complete absence of motive can alter the perspective, often favouring the accused.

Amidst calls for justice and accountability, Kalia remains resolute in his determination to clear his name and uphold his right to self-defence. As the case unfolds, it raises crucial questions about the interpretation of law and the pursuit of justice in modern-day Canada.

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