WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Khalid Obied Mir
Before: Justice Lesley M. Baldwin
Heard on: January 19, 2012; January 31, 2012; and May 31, 2012
Reasons for Judgment released on: September 5, 2012
Counsel:
E. Pecorella — for the Crown
R. Stone — for the accused Khalid Obied Mir
BALDWIN, J.:
Charge and Admissions
1Khalid Obied Mir is charged with sexual assaulting K.D. on August 20, 2010 in Halton Hills.
2At the outset of trial, date, jurisdiction and identity were admitted.
3The allegation is that 19 year old K.D. was a passenger in a taxi cab driven by Khalid Mir (dob […]68) when he sexually assaulted her.
4The defence at trial was that the sexual activity was consensual and was payment for a free cab ride; alternatively, the defence is that the accused had an honest but mistaken belief that the sexual activity was consensual and was payment for a free cab ride.
Summary of the Testimony of K.D.
5K.D. was 20 years of age when she testified at this trial.
6She was in her third year of University.
7On August 20, 2010, she was living at home with her parents and 2 sisters.
8At about 10:30 p.m. that night she and a bunch of friends took a cab to the Boston Pizza located on Guelph Line in Georgetown.
9She consumed approximately 4 or 5 cups of beer as she socialized with her friends. She was 'tipsy' from the alcohol but she was not intoxicated or drunk.
10At approximately 1:30 a.m., she left the Boston Pizza with a friend K.K.. They were going to take a cab ride together to their respective homes.
11Outside the Boston Pizza a cab was 'just waiting there'.
12K.D. got into the front passenger seat of the cab and K.K. got into the back seat.
13K.D. testified that she usually gets into the front seat of cars.
14K.D. did not know if K.K. knew the cab driver (Mr. Mir). K.D. did not think that K.K. knew him.
15K.D. did not know Mr. Mir as a cab driver she had used before.
16They asked to be driven to the McDonalds' drive-thru, which was a 2 minute drive from the Boston Pizza.
17During the drive, K.D. was texting her friend Derek Thomas who was in Vancouver playing in a Lacrosse Tournament.
18K.D. testified that she did not know what K.K. was doing in the back seat.
19During the ride K.D. and K.K. spoke about an argument K.D. had with another female friend at the Boston Pizza that evening.
20There was no conversation with Mr. Mir.
21After the McDonalds' drive-thru, K.K. asked to be dropped off at her house which was approximately a one minute drive from McDonalds. K.D. was to be dropped off at her house after that stop.
22Before K.K. got out of the cab which was stopped at the end of her driveway, the cab driver made a comment about flashing him her breasts for a free cab ride.
23K.D. testified that she and K.K. looked confusingly at each other when this comment was made.
24Then they both "kinda laughed" like he must be kidding.
25K.K. asked K.D. if she wanted to sleep over at her house, but K.D. declined because she had to work at her father's office the next morning at 8 a.m.
26K.K. did not pay for the cab ride; K.D. was going to take care of that.
27K.D. initially had no concerns when Mr. Mir began to drive to her home, which was located approximately 10 minutes away from K.K.'s.
28However, "almost immediately" as the drive to her house started, Mr. Mir began to rub her left thigh with his right hand.
29K.D. was wearing shorts with a belt, items that were filed as Exhibits numbered 1 and 2 at trial.
30Mr. Mir rubbed her thigh for approximately one minute as she was texting Derek.
31K.D. testified that she was "freaking out" and told Derek about the flashing comment and that the cab driver was now rubbing her leg.
32K.D. was crying as she gave this testimony.
33Derek told her to tell the cab driver to stop.
34K.D. then shifted her legs toward the door.
35K.D. repeated throughout her testimony that she said nothing to Mr. Mir because she was scared.
36Mr. Mir said nothing to her.
37Then he undid her belt buckle and the button on her shorts and put his hand into her shorts over top of her underwear just above her pubic area. His hand was there for approximately 30 seconds.
38K.D. still said nothing to him because she was scared. She thought if she said something to him he might do something worse like drive her off somewhere.
39She asked Derek in a text to call her on the phone.
40When her phone rang, Mr. Mir removed his hand from inside of her shorts.
41Mr. Mir asked her if she liked it. She did not respond.
42Mr. Mir did not stop the cab at the end of her driveway. He pulled into the middle of the road.
43K.D. did up her shorts and belt. Then he began to rub her left thigh again for approximately 10 seconds. At this point, K.D. began to cry and Mr. Mir stopped touching her.
44The taxi cab meter showed the fare to be $17.00. K.D. offered to pay him $20.00 and Mr. Mir "shrugged it off".
45K.D. handed him the $20.00 and Mr. Mir "waved it off".
46K.D. told him to take the money and he said no.
47K.D. left the money on the seat when she got out of the cab.
48She went into her house at approximately 2:00 a.m. Her parents and sisters were asleep and she did not want to wake them up. She made a decision to tell her parents in the morning.
49K.D. 'skyped' Derek and they had a video chat wherein they continued to talk about the incident in the cab.
50K.D. calmed down a bit and went to sleep.
51When she woke up at 7:45 a.m. for work in the morning she was crying and upset. She told her mother what had happened, but did not give her all the details.
52When she got to her father's office she told him what happened. Her father left work to check their home surveillance camera to get the name of the taxi cab company that had driven her home.
53En route her father came upon a police officer who was at a nearby recreation centre.
54Her father asked the officer to attend their house regarding the incident. Her father called her to come home where she made her first report to the police.
55K.D. also typed out a statement with everything she could remember and provided it to Det./Cst. Parsons of HRPS.
56In cross-examination K.D. repeated that she was not intoxicated during the drive home in the cab. She was not hung-over the next morning.
57K.D. testified that she had money with her to pay for the cab fare. She also had her debit card.
58K.D. denied that there was an agreement between her, K.K. and the cab driver to get a free cab ride if they flashed their breasts at him.
59K.D. denied that K.K. raised up her shirt or flashed Mr. Mir in anyway.
60K.D. denied that K.K. let Mr. Mir touch her breasts.
61K.K. did not tell her that she had flashed cab drivers before for free rides.
62Mr. Mir directed the 'flashing' request more to K.K. than to her.
63K.D. did not think about getting into the back seat of the cab after K.K. exited the cab because she was not fearful of Mr. Mir at the time.
64K.D. repeated that she didn't say anything to Mr. Mir when he was touching her because she was scared and didn't know what to do, think or say. She was "troubled, bothered, upset".
65K.D. agreed that she did not ask Mr. Mir to stop the cab and she did not try to exit the cab. She was scared to say or do anything. She was not thinking straight and she just wanted to get home.
66K.D. denied fabricating the incident in the cab because she was upset about the earlier argument at Boston Pizza with a friend.
67K.D. repeated that she did not do or say anything to Mr. Mir that would indicate consent to touch her.
Summary of the Testimony of K.K.
68K.K. was 22 years of age when she testified at trial. She is a college student.
69She has known K.D. for a few years. K.D. is younger than she is. In the small town of Georgetown they would socialize together at bars and keep in touch with each other over the phone.
70In the summer of 2010, K.K. had been up in North Bay and K.D. had been in Ottawa.
71On August 20, 2010 they got together with a large group of friends.
72Six or seven girl friends went to one of the friend's house first where they had a few drinks before they all headed out to join the larger group at Boston Pizza.
73K.K. testified that she and K.D. were not "intoxicated at all" when they got to Boston Pizza.
74They arrived there after 10 p.m. because she remembers the restaurant being closed. They sat in the bar part of the Boston Pizza.
75She was not with K.D. at all times in the Boston Pizza.
76She saw K.D. drinking but she cannot say how much or what.
77She left the bar at closing time with K.D..
78K.K. testified that she herself was "fairly intoxicated" when she left the bar. She described that as being unable to drive and needing to take a cab home. She knew what she was doing and saying and had no trouble walking.
79K.K. could not comment on K.D.'s sobriety. K.D. could walk fine.
80When they exited the Boston Pizza, cabs were lined up outside "like at any bar in Georgetown".
81Earlier K.K. had thought of calling a cab but she didn't need to as the cabs were already lined up outside the bar.
82In Georgetown, the two cab companies are MCab and GTown taxi. She is not sure which company's cab she and K.D. got into.
83They asked the cab driver to take them to McDonalds.
84K.K. testified that she did not recognize the driver. She had not seen him before that she was aware of.
85K.K. got into the back seat behind the driver. K.D. sat in the front passenger seat.
86It did not appear to her that K.D. knew the cab driver.
87K.D. did not appear to be upset during the cab ride.
88She and K.D. did not speak to the cab driver on the drive to McDonalds.
89She does not remember if K.D. was talking to her during the drive.
90After she got some food at the drive-thru, the driver took her to her house.
91When she was still in the cab outside of her driveway, Mr. Mir asked her to show him her breasts for a free cab ride.
92She said no and may have said 'you're gross'.
93She cannot recall if K.D. said anything to the driver.
94K.K. testified that it was awkward when the cab driver asked to see her breasts, but she was getting out of the cab at that point and she had no concerns for her safety or for K.D.'s safety.
95She may have asked K.D. to stay over at her house; if she did, it was for no particular reason.
96She thinks that K.D. offered to pay for the cab ride as she was getting out of the car.
97Paying for the fare was not a big deal. She had money with her to pay taxi fare. It was only a $6.00 taxi fare from Boston Pizza to her house.
98The next morning she opened a text that K.D. had sent her about what the cab driver had done to her on the way to her home. K.D. was very upset and used 'emotive symbols'.
99In cross-examination, K.K. testified that she often goes to Boston Pizza to socialize as it is one of the only bars in Georgetown.
100She agreed that in her police statement she said that when she and K.D. left the bar that night they were intoxicated. She said that because they had been to a bar and had some drinks. There was nothing about K.D.'s conduct that led her to conclude that K.D. was drunk.
101She agreed that K.D. was 'tipsy' but said that K.D. was not falling down, did not have slurred speech and was not acting silly.
102K.K. disagreed that her memory of the night was affected by alcohol. She testified that her memory is pretty clear about the events in question.
103K.K. could not recall K.D. having an argument with one of her friends at the bar. They were not together all the time – K.D. had her friends and she was with her group.
104They left the bar at approximately 1:30 a.m., when the bar called 'last call'.
105K.K. testified that she had no rapport with the taxi cab driver during the ride. He was a complete stranger to her.
106It was not unusual for K.D. to get into the front seat of the cab – people do it all the time – it's called riding "shotgun".
107K.K. testified that she has never been asked to flash her breasts to a GTown cab driver.
108No cab driver is anymore familiar to her than another.
109She has never offered to flash her breasts for a free cab ride.
110Although she felt awkward about the comment, she did not assume that the cab driver would do something just because he said something.
111The comment did not make her feel unsafe.
112When the cab was stopped at her driveway, it took her approximately 2 minutes to finish eating her food, get her stuff, and exit the cab.
113K.K. agreed that the ride from her house to K.D.'s is approximately 10 minutes.
Summary of the Testimony of Derek Thomas
114Derek was 18 years of age when he testified at trial.
115He attends school in the United States on a Lacrosse scholarship.
116He has known K.D. since Grade 9 and they have always been close friends.
117He did not meet K.K. until after this incident. They worked together 4 or 5 times at a restaurant in Georgetown. They are casual friends. He has never discussed the incident with K.K..
118On August 20, 2010, Derek was in B.C. playing in a Lacrosse tournament. He was texting K.D. throughout the tournament.
119At approximately 1 a.m. Ontario time, K.D. sent him a text saying that she was at the Boston Pizza and she was going to get a cab home with K.K..
120After K.K. had been dropped off, K.D. 'texted' him and wrote that the cab driver was touching her.
121Derek asked her to explain.
122K.D. texted that the cab driver was rubbing her leg.
123Derek told her to tell him to stop and to call him.
124On the phone K.D. was crying.
125She said that she was still in the cab and the cab driver was rubbing her leg, undoing her pants and working his way toward her crotch. Then K.D. went "quiet".
126K.D. was still crying and stayed on the phone with him.
127Derek asked if the driver was still touching her and she said no.
128Derek asked if she was almost home and she said yes.
129Derek could hear her open the cab door and get out. Derek heard her offer money to the driver. Derek heard her say here's $20.00 just take it. Derek heard the driver say no.
130Derek heard them argue about the money for approximately 15 seconds. K.D. kept offering the money and the driver kept refusing to take it.
131Derek estimated that he was on the phone with K.D. when she was in the cab for 20 minutes.
132He was still on the phone with her when she ran up her driveway crying.
133Derek heard her enter her house. K.D. told him she was going to skype him and she did.
134Derek could see her crying during the skype call. They discussed the cab incident again.
135Derek recommended that she call the police, but to tell her parents first.
136K.D. did not want to wake her parents up.
137Derek testified that there was nothing unusual in his texts with K.D. that day until she was in the cab.
138In cross-examination, Derek testified that he has no reason to discuss the incident with K.D.. He does not see her often as he is away at school.
139It was two to three minutes after K.K. had been dropped off that K.D. texted him and said the cab driver was touching her.
140Shortly after that, they were on the phone with each other.
141When Derek told her to tell the driver to stop or to get out of the cab, K.D. said nothing.
142K.D. could hardly talk and she was crying. She sounded like she was "in shock, scared, upset".
143Derek testified that he was not aware of any other reason for K.D. to be upset that night.
144His next conversation with K.D. was when he returned from the B.C. tournament.
Summary of the Testimony of Kimberly Derikx
145Kimberly is K.D.'s mother.
146On August 21, 2010 at 8:30 a.m. K.D. was nervous, crying and upset.
147K.D. told her that after her friend had been dropped off in the cab, the cab driver undid her belt, rubbed her leg and tried to put his hand down her pants. Then she moved closer to the front passenger door.
148She was on the phone with Derek and the driver stopped touching her.
149Kimberly told K.D. that she should tell her father what happened when she got into work.
150Shortly after, her husband called the house to say he was coming home to check the outside video camera and to call the police.
151In cross-examination, Kimberly testified that her daughter does not wake up in the morning crying.
152K.D. did not tell her about an argument at the Boston Pizza with a friend.
153K.D. had $20.00 with her that night to pay for the cab ride.
Summary of the Testimony of Khalid Mir
154Mr. Mir testified that he was born in Pakistan and came to Canada in 2005.
155He lived in Mississauga at the time and married in September of 2009. He has no children.
156He started the GTown Taxi company in 2008. He has 10 partners in the company. He is the one who sets the drivers' schedules.
157On August 20, 2010 he started working in Georgetown at 6 or 7 p.m.
158He would wait outside of bars for people to come out. The bars are Shoeless Joes, the Boston Pizza and West Seven.
159As he waited for customers outside of the Boston Pizza, there was a cab from another company parked on the other side of the bar exit called 'Easy cab company'.
160He saw "K.K.", which he later learned was K.K.'s nickname, heading toward the Easy cab.
161She left them because she knows him and headed toward his cab.
162He had given her rides 3 times before.
163K.K. first came alone, then she called her friend to come and sit in the cab.
164Mr. Mir testified that he thinks he last gave K.K. a cab ride one year before the incident in question.
165She would ask him to give her "favours".
166He knew K.K. "because she all the time asks me for favours".
167K.K. said she wanted to go to McDonalds.
168He was talking on his phone to one of his friends at the time.
169K.K. and her friend didn't appear drunk. They may have had some alcohol because they had been at the Boston Pizza.
170He put the cab meter on and drove to the drive-thru.
171He knew K.K.'s address and drove there.
172K.K. asked him to stop on the corner of the street – ten feet from her house.
173K.K. said how about if I flash you for a free ride.
174He said no.
175K.K. had asked him this before.
176K.D. said give us a free ride. K.D. touched his cheek with her hand and touched his shoulder. K.D. said I will show you my breasts.
177Both of them said we will show you our breasts and you will give us a free ride. We will flash our boobs for you.
178He stopped the car and shut off the engine and said okay.
179He told K.K. to show him and she pulled up her shirt. She took her breasts out of her bra.
180He asked K.K. if he could touch them and she said yes.
181K.K. was still eating her McDonalds food at the time.
182K.D. said I will show you now.
183He told K.D. that he would see hers when he dropped her home.
184It was just a "friendly talk" that he had in the cab with them.
185K.K. got out of the cab and he drove to K.D.'s house.
186K.D. was typing on her cell phone during the drive.
187"It was a deal for K.D. to show her breasts to him".
188He put his hand on her thigh and did not feel it was wrong.
189He touched her left thigh and her belly above the belt area.
190He touched her stomach area over the clothing because he was driving at the time.
191For two to four minutes they did not speak.
192When she became upset he was surprised because "they had a deal".
193He was touching her on and off. She didn't do or say anything to make him stop.
194When he saw an uncomfortable look on her face he stopped.
195During the cab ride K.D. got a "spoken" call on her phone.
196He was talking with his friends on his phone at the time.
197He stopped the cab in front of her house and she offered him money.
198He said no to the money because they had a deal.
199She got out of the cab and went home.
200The fare was $17.00 or $18.00.
201K.D. was upset when she got out of the cab. She was still on the phone.
202A few days later the police called him.
203He went to the station and learned that "one of the girls put a complaint against me".
204After he was charged, he hired an investigator. He learned in the investigator's report that the second crown witness' nickname is 'K.K.".
205In cross-examination Mr. Mir testified that when K.K. approached his cab at the Boston Pizza she said hey buddy how you doing?
206The first time he had picked her up outside the Shoeless Joe's bar she said she was a University student and she only had $5:00. He said "okay".
207There had been a previous time when she had offered to show him her breasts.
208He told her that he does not do those kind of things. There were 3 young kids in the back of the cab at the time.
209This time he changed his mind – "after all I'm a man – it was a free offer – like a deal you know".
210Mr. Mir testified that if he was allowed to see her breasts, he was allowed to touch them – it was part of the deal.
211"I think if they say they will show me, I can touch it".
212He did not think he had met K.D. before.
213He did not undue her belt and did not try to put his hand on her vagina.
214He didn't want to go for that much.
215He touched her leg without asking her if he could because they had a "deal".
216"I had a deal with the one girl, it's a deal with the second girl – that's the arrangement".
217"I just assumed it was okay".
218Mr. Mir disagreed that K.D. was crying.
219When K.D. offered him money for the ride he was confused. He let her go even though she didn't show him her breasts.
220He gives people free rides sometimes.
221It was K.K. that started all these things.
222K.D. started touching him and she put him in this "whole thing".
223He knows he needs consent to touch a person. "I'm not that stupid".
Positions of the Parties
Defence
224Counsel submits that K.D. is not a credible and reliable witness.
225He submits that K.D. had been drinking alcohol before she got into the cab and she was "tipsy".
226There was a barter arrangement in place between the girls and the accused to get a free ride in exchange for sex acts. K.K. had engaged in this kind of barter with the accused before.
227It is submitted that K.D. could have vacated the cab at any time if she was uncomfortable with the accused. She could have left the cab when it was stopped at K.K.'s house. Alternatively, she could have got out of the cab and got into the back seat. The fact that K.D. did not change her seat or get out of the cab is consistent with the accused's evidence that they had a 'deal' and she was not afraid of Mr. Mir.
228It is submitted that K.D. was upset about her argument earlier that night with a friend at the Boston Pizza. It is submitted that it was not Mr. Mir's actions that made her upset.
229It is submitted that K.D.'s testimony is not credible or reliable because she did not tell anybody in her house what happened that night. She did not call K.K. or the police that night.
230Counsel submits that Mr. Mir has testified and has not denied sexual contact. He maintains that the three of them had an arrangement based on his past dealings with K.K. Mr. Mir stopped (touching) K.D. as soon as he saw her getting upset.
231Mr. Mir believed he had K.D.'s consent to touch her.
232Defence counsel submits that this generation of young woman live in a new world with respect to standards of decency. If they can get a free cab ride by "flashing your breasts – why not?"
233Defence counsel submits that these otherwise decent University students did offer to flash their breasts for "fun".
234The defence submits that after a WD analysis, the Crown has not established their case beyond a reasonable doubt.
Crown
235The Crown submits that their witnesses have been consistent, credible and reliable.
236K.D. went to the Boston Pizza to socialize with friends. She had some drinks but was not drunk. This evidence is supported by K.K. and Derek, both of whom were communicating with her that evening.
237K.D.'s credibility is enhanced by the fact that she has no motive to lie about this encounter in the cab with Mr. Mir as he is a total stranger to her.
238Further, there is no evidence of any collision between the Crown witnesses. They remain friendly but they are in different schools and on their own life paths.
239K.D. explained in her testimony why she did not change seats in the cab or get out of the cab at K.K.'s house. At that point in time she was not afraid of Mr. Mir. She thought he was joking when he made the 'flashing your boobs for a free ride' comment to K.K.. She and K.K. just shrugged the comment off.
240K.D. has explained why she felt fearful in the cab when Mr. Mir began to sexually touch her. She was alone in a cab being driven by a stranger. She was afraid he might drive her off somewhere. This is a reasonable response for a 19 year old young woman. She testified that she did not know what to do.
241The Crown submits that verbal silence on her part does not constitute consent to touch her.
242K.D. did shift her legs away from Mr. Mir and she did text Derek and asked him to call her on her cell phone.
243It wasn't until she started crying that Mr. Mir stopped touching her.
244K.D. has reasonably explained why she did not call the police or wake people up in her house when she got home.
245She disclosed to her mother as soon as she saw her in the early morning.
246The Crown submits that Mr. Mir's version of a barter or deal should be rejected.
247Even on the evidence of Mr. Mir alone, he had no consent to touch K.D.. According to his evidence the deal was a free ride for a breast flash.
248K.K. was firm in her evidence that she did not recognize Mr. Mir as a cab driver who had driven her before. K.K. had the same reaction to Mr. Mir's comment that she should flash him for a free cab ride. She thought it was a crude joke.
249K.K. denies showing Mr. Mir her breasts or letting him touch them at any time.
250The Crown submits that no weight can attach to Mr. Mir's evidence that K.D. touched his face and shoulder first. This suggestion was not put to K.D. during cross-examination and violates the rule in Browne and Dunn.
251The Crown submits that Mr. Mir did not want to take the money K.D. left him for the cab fare because he knew that he had touched her without her consent – she was crying and distressed and he was now worried that he could be in trouble.
Analysis
252I have applied the WD analysis in my assessment of the testimony heard in this case.
253I accept the Crown's submissions noted above.
254I assessed K.D., K.K. and Derek to be articulate, intelligent and precise witnesses.
255I find that it is not unusual for young women to hear lewd comments, like the boob flash offer in this case, and to feel awkward about it, but not infer or fear that the speaker of such a comment would then start sexually touching them.
256I accept that K.D. "froze" when Mr. Mir started sexually touching her. She was trying to process what was happening to her and how best to get safely out of the situation. She repeatedly testified as to her fear of things escalating. This "freeze response" is understandable. She was a young woman who felt trapped in the cab by the much older driver, in the early morning hours in the dark. Her silence did not give Mr. Mir consent to touch her in anyway.
257K.D. has reasonably explained why she delayed reporting of the assault until her parents were awake the next morning. I note that her report to her mother was approximately 6 hours after the event in question, which is hardly a delay in reporting as we have come to know that term in the sexual assault case law. Further, K.D. made real-time disclosure to Derek on her cell phone. There is no concern about delayed disclosure in this case.
258I reject as fabrication Mr. Mir's testimony that he had some free ride deal with these young women.
259I reject his evidence that one year or so before this incident, "K.K." offered to flash him her breasts in exchange for a free ride in his cab and that he turned her down.
260Mr. Mir did not know K.K.'s name until he hired a private investigator to check into her background and activities in this case after he was charged. I conclude that his professed familiarity with her has been fabricated.
261Mr. Mir's testimony is also rejected because he was inconsistent. First he spoke of the deal being to have breasts flashed for a free ride. As his testimony progressed, the deal became a breast flash which gave him the right to touch them. And if one of the women did so, he had the right to do it to the other woman. In his evidence he stated "If I'm allowed to see her breasts, then I'm allowed to touch them…I think if they say they will show me, I can touch it…I had a deal with the one girl, it is a deal with the second girl – that's the arrangement."
262Mr. Mir had no deal with these young women. They had money for the cab fare and K.D. paid him for the cab fare.
263Mr. Mir made a lewd offer to them and he was laughed off.
264Mr. Mir did not have consent to sexually touch K.D.. There is no air of reality to the alternate defence of a mistaken belief in consent. (Reference sections 273.1 CCC; 273.2 CCC; 265(4) CCC; R. v. Ewanchuk, [1999] 1 S.C.R. 330, 131 CCC (3d) 481)
265For these reasons, a finding of guilt was made following the trial on May 31, 2012 and a PSR was ordered.
Sufficiency of Reasons for Judgment
266During the course of this three (3) day trial, the Court heard from six (6) witnesses and Exhibits were filed. All of the witnesses' evidence, the Exhibits filed, and submissions heard, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. In Halton, the fastest growing Region in Canada, judgment writing time is being eroded by the increasing trial case load and the pile up of long, split up trial continuations.
267This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. S. (T.) [2012] ONCA 289 (OCA); R. v. H. (J.M.) 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Drabinsky 2011 ONCA 582, [2011] 107 O.R. (3d) 595 (OCA); R. v. Dinardo 2008 SCC 24, [2008] 1 S.C.R 788; R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869.
Released: September 5, 2012
Signed: "Justice Lesley M. Baldwin"