WARNING
The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 victim of the right to make an application for the order; and
(b) on application made by the victim, 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 —
Sunil Mehra
Before: Justice E.A. Carlton
Heard on: January 22, January 23, and February 25, 2019
Reasons for Judgment released on: May 8, 2019
Counsel
Miriam Villamil-Pallister counsel for the Crown
Tom Bryson counsel for the defendant Sunil Mehra
Judgment
Charge
1Sunil Mehra stands charged that he sexually assaulted G.M.S. on June 6, 2017 contrary to section 271 of the Criminal Code.
2At that time both parties were patients on the cardiac-renal floor of the Royal Victoria Hospital in Barrie.
3Ms. S. testified that while spending time with Mr. Mehra in his room he served her a drink that caused her to become disoriented. She testified that when he took her back to her room she became aware that he was touching her breasts without her consent.
4Mr. Mehra testified that the two did spend time together in his room and that when he took Ms. S. to her room she kissed him and placed his hand on her breast. He testified that any sexual activity was consensual.
5The Crown called five witnesses at the trial: the complainant, two security officers and two registered nurses from the cardiac-renal floor. The Crown also tendered surveillance video from the hospital. Mr. Mehra testified in his own defence.
Onus and Burden of Proof
6Mr. Mehra is presumed innocent. There is no obligation on him to prove anything in this case. He can only be found guilty if the Crown proves the essential elements of the charge against him beyond a reasonable doubt.
7In using the term "reasonable doubt" I rely on the definition as set out in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
8Both parties agree that the approach set out in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 applies in this case.
9Accordingly, if I accept the exculpatory evidence of Mr. Mehra or any other evidence inconsistent with guilt then I must acquit.
10Even if I do not accept the exculpatory evidence of Mr. Mehra or any other evidence inconsistent with guilt but I am left with a reasonable doubt about that evidence then I must acquit.
11Even if I do not accept nor I am left with a reasonable doubt about the exculpatory evidence of Mr. Mehra or any other evidence inconsistent with guilt I may only convict if, on the basis of the evidence I do accept, I find that the Crown has proven the essential elements of the offence beyond a reasonable doubt.
12This approach underlines that this case, like all criminal cases, is not a credibility contest. The court is not simply to choose which version of events, either that of Ms. S. or that of Mr. Mehra, it prefers. It is for the Crown to prove its case beyond a reasonable doubt.
Offence of Sexual Assault
13The components of sexual assault are set out in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330. At para. 25 the Court states that "the actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact and (iii) the absence of consent". The first two elements are objective. The absence of consent is made out if the Court accepts the evidence of the complainant that he or she subjectively did not consent to the sexual activity. This is "determined by reference to the complainant's subjective internal state of mind, towards the touching, at the time it occurred" (at para. 26).
14At paragraph 42 of that decision the Court states that "the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched".
15It is accepted by both principal witnesses in this case that there was a touching of a sexual nature. It is also clear that, absent consent, the conduct alleged would violate the sexual integrity of Ms. S.
16The only issue before the Court is the issue of consent. This case is one that can be described as a consent/no consent case. It is not one in which a defence of an honest but mistaken belief in consent is advanced. On the critical issue of what sexual activity occurred the testimony of the two principals is opposed. If I accept or have a reasonable doubt about the evidence of Mr. Mehra it is clear that the complainant was consenting to the sexual activity. If I reject that evidence and accept to the criminal standard the evidence of Ms. S. it is equally clear that she did not consent and that Mr. Mehra would have knowledge of or be reckless or willfully blind to the absence of consent.
Summary of the Relevant Evidence
i) Ms. S.
17Ms. S. suffered a heart attack in early June 2017 and was hospitalized on the cardiac-renal floor at the Royal Victoria Hospital in Barrie. She had a private room on the floor near the end of short wing of patient rooms. She was using a wheelchair to move about the floor.
18Ms. S. described meeting Mr. Mehra at the nursing station. He was going outside for a cigarette and offered to bring her with him. She agreed and the two left the floor and took the elevator to the main entrance. She thought that this occurred about 3 p.m. as it was before the arrival of her family.
19An excerpt from the hospital surveillance system were entered as an exhibit. It shows Ms. S. and Mr. Mehra leaving the floor at 11:01 p.m. The footage is unremarkable. A summary of their movements of the two throughout the hospital was also entered. It shows the two returned to the cardiac-renal floor at 11:23 p.m. on June 6, 2017.
20Ms. S. testified that while they were gone from the floor Mr. Mehra told her that he had some alcohol. She testified that Mr. Mehra pushed her wheelchair back to the floor. She thought he would take her to her room but instead he took her into his room. She was in her wheelchair opposite the door on the other side of the bed. She testified that she has a panic disorder and "froze" on entering his room.
21Mr. Mehra poured each of them a drink from a brown bottle and a bottle of Coke. She believed she was being given a glass of Coke. She testified that she took two sips, or about 4 ounces, and that the liquid tasted horrible and did not taste like Coke. She testified that after the second sip that she became "kind of unconscious".
22Ms. S. testified that her next memory is being woken up in her room. She does not know how she made it from his room across the hall to her own room. She was lying in her bed with Mr. Mehra standing over her, kissing her and touching or pinching her breasts beneath her hospital gown. She also testified that her vaginal area was sore after this encounter. Ms. S. testified that she did not consent to nor want any of this touching to occur.
23Mr. Mehra was asking her if she wanted him, if she wanted him to kiss her and if she wanted him to touch her. She testified that initially she could only "make noises" and was probably trying to say "no". The pain resulting from Mr. Mehra pinching or squeezing her breasts caused her to wake up and screamed at him to get out of her room. Mr. Mehra told her to be quiet. She now whispered loudly to him to get out. She testified that a nurse came into the room to ask what was going on. Mr. Mehra told her that he was helping to put Ms. S. back into bed. The nurse stated that she would take over and Mr. Mehra left the room.
24Ms. S. testified that she made no complaint to that nurse. She testified that she was still very sleepy and "out of it".
25Ms. S. testified that the next morning she was in her room in her wheelchair when Mr. Mehra appeared at the door. She came towards the doorway to stop him from entering and said to him that "what you did to me last night will never happen again". She testified that Mr. Mehra stated "that was nothing" and walked away.
26Ms. S. testified that she told a nurse later this next day about what had happened in her room. She then told hospital security staff. She was moved to a different room. She met with police the following day and ultimately provided written and video statements to police.
ii) Security Officers
27Two security officers of the Royal Victoria Hospital testified for the Crown. Their evidence discloses that the complaint was made by Ms. S. shortly before 9 p.m. on June 6, 2017. At that time Ms. S. was calm and coherent. At that time Ms. S. did not wish to make a complaint to police.
28This interaction with Ms. S. did not prompt a search for the alcohol or liquid containing any substance that might have affected Ms. S.
29Security met again with Ms. S. the next day. At that time she advised that she did wish to pursue a complaint. Security obtained a written statement and forwarded the complaint to police.
iii) The Nursing Evidence
30The Court heard from two registered nurses working on the cardiac-renal floor: Brandie Muir and Christine Wanzel. Both worked the nightshift from June 5 to June 6.
31Ms. Muir was the nurse assigned to both Ms. S. and Mr. Mehra. She observed that Ms. S. was in Mr. Mehra's room for a significant portion of the evening before the two left the floor. The two were conversing. She observed the two again in Mr. Mehra's room after the trip outside which she estimated to be after midnight and before 1 a.m.
32Her next contact was at 4 a.m. when Ms. S. called her into her room. Ms. S. asked her to keep Mr. Mehra out of her room. Ms. Muir initially described Ms. S. as upset but later agreed that she appeared to be in good spirits. Ms. Muir responded that she would and closed the room door when she left.
33Ms. Muir returned for the next night shift. At around 7:30 p.m. Ms. S. made a complaint about Mr. Mehra's conduct from the night before. Ms. Muir called security and that led to their involvement as set out above. Ms. S. was moved to a room close to the nursing station.
34Ms. Muir agreed that Mr. Mehra's condition was such that he should not have engaged in heavy lifting, including lifting an adult woman out of a wheelchair and into her bed.
35Ms. Wanzel did not have direct responsibility for either Ms. S. or Mr. Mehra. She did meet Mr. Mehra at the nursing station the night of June 6, 2017 and had conversation about his medical procedure set for the next morning. She testified that Ms. S. asked if she could accompany Mr. Mehra on his trip to have a cigarette. Ms. Wanzel observed the two to leave the floor together on foot.
36Ms. Wanzel testified that when they returned Ms. S. was in a wheelchair and reported that she was not feeling well but was otherwise fine. Ms. Wanzel was not sure if each patient then went into their assigned rooms.
37Later, she saw that Ms. S. was in Mr. Mehra's room on a bench by the window during her midnight rounds. The two were chatting. She saw them still in Mr. Mehra's room at her 1:00 a.m. rounds which she estimated occurred at around 12:50 a.m. before she went on break at 1 a.m. Her observations were that Ms. S. was laughing and talking and appeared to enjoy the company of Mr. Mehra. Ms. Wanzel asked that Ms. S. leave as Mr. Mehra had an important procedure in the morning and needed to sleep.
38Ms. Wanzel's last observation was to see the two principals walking across the hallway to Ms. S.'s room. She described the actions as Mr. Mehra "guiding" or "motioning" to Ms. S. that it was time to go. Ms. Wanzel asked Ms. S. where she was going and Ms. S. replied that she was going to her room. This conversation occurred in the hallway.
iv) Evidence of Sunil Mehra
39Mr. Mehra was the sole defence witness. He testified that he had a heart attack on June 2, 2017 and was in the ward in preparation for an angioplasty to be carried out the next morning at Southlake Hospital in Newmarket. He has a lengthy history of heart problems. He knew that the procedure carried a risk of death.
40Mr. Mehra testified that he met Ms. S. the morning of June 5, 2017. He bought her a coffee when he was off the ward. In the early evening a friend visited. He had a drink with that friend to take his mind off the procedure. The friend left him with a bottle of rye.
41After his friend left he went to the lounge where he met Ms. S. They chatted and he invited her to his room for a drink. She agreed and he and Ms. S. each had a drink of the rye. When he stated that he was going outside for a smoke Ms. S. asked to go with him. The nursing staff gave their approval and he pushed Ms. S. in her wheelchair off the floor and outside the hospital. He describes the mood between them as very good throughout the evening.
42When they returned to the floor Mr. Mehra testified that Ms. S. wanted to keep talking and the two returned to his room. No alcohol was consumed in this second period of time in his room. He estimates that they were in the room about 20-25 minutes. He confirms that Ms. Wanzel told him that as he had a procedure in the morning that he should get to sleep.
43Mr. Mehra testified that Ms. S. stated to him, "Sonny, can you pull my wheelchair to my room" and he agreed. He took her to her room. At the room he stopped the wheelchair beside her bed. She asked that he rub her shoulders. He began to do so. Mr. Mehra testified that she placed her hand on his and pulled it on to her breast. She leaned back in her chair and asked for a kiss. He testified that he gave her a quick kiss on the lips. He testified that he then realized what he was doing and left the room. He describes this sexual contact as "mutual".
44Mr. Mehra testified to seeing Ms. S. briefly the next morning in the lounge. They each said good morning to each other. Ms. S. began to say that she wanted to talk to him about what happened last night. Mr. Mehra noticed that three people were coming into the lounge so he left the lounge to prevent there being a public discussion of the events of the prior evening.
45A statement made by Mr. Mehra to the investigating officer was admitted as voluntary for purposes of cross-examination. In that statement Mr. Mehra denied any touching of Ms. S. or even going outside the hospital with her. He denies consuming any alcohol and says he was in bed by 10 p.m. Mr. Mehra acknowledged that he was untruthful with the officer. He testified that he felt uneasy, nervous and claustrophobic when speaking with the officer. He was concerned about the impact of these allegations on his marriage. It caused him to deny even those matters which were captured on video.
Credibility and Reliability Findings
46The security and nursing evidence is largely uncontradicted and reliable. This evidence gives a platform to assess the evidence of the two principal witnesses: Ms. S. and Mr. Mehra.
47I do accept that Ms. Wanzel has an incorrect recollection as to the mobility of Ms. S. She testified to Ms. S. leaving the floor under her own power when the two went for a cigarette and to seeing the two walk from Mr. Mehra's room back to Ms. S.'s room shortly before 1:00 a.m. It is the evidence of the two principals that Ms. S. was in a wheelchair when they left the floor (and confirmed by video) and when the two later walked across the hall from Mr. Mehra's room to Ms. S.'s room. Her recollection on this point is incorrect. I do not find that Mr. Mehra was motioning for Ms. S. to go back across the hallway to her own room. That said, I otherwise do accept that evidence of Ms. Wanzel as to the movements of the two after the trip off the floor which is in part confirmed by Ms. Muir.
48The Court has real issues with both the credibility and reliability of the evidence of Ms. S.
49Notably, I do not accept her evidence that she suffered ill effects from a single drink that she shared with Mr. Mehra. This evidence is at odds with the evidence of Ms. Wanzel which has her conscious and in good condition when seen in Mr. Mehra's room and when crossing the hallway back to her room. While Ms. S. was in the hospital for a significant medical issue and was on several medications at the time there is no evidence that any of those medications would cause her to become almost instantly unconscious when combined with consuming a small quantity of alcohol. In general, Ms. S. appeared to be quite impacted by these events. It may be that she now believes that she did have such a reaction to the drink as opposed to being deliberately untruthful with the Court. Alternatively, it may be that she is being deliberately untruthful in giving this evidence in order to explain or excuse her own actions that she now regrets.
50Many of the elements of the evidence of Ms. S. are contradicted by the objective evidence in this case. This undermines the reliability of her evidence. Some of those elements are:
She describes the trip the two took off the ward as occurring in the afternoon, around 3 p.m., and prior to the arrival of her family. She stated that she had no uncertainty about that as "long as remembering events correctly". It is accepted that this trip occurred between 11 and 11:30 p.m. The actual time of the trip is not material to whether the touching was or was not consensual. The touching, though, is bound up with a narrative of events including that it was late at night and the nurse was urging Mr. Mehra to get some sleep. Ms. S.'s recollection of the surrounding circumstances is at odds with the actual course of events.
Ms. S. never mentioned experiencing pain in her vagina to police in a written statement made on June 7, 2017 or in a video statement given to police at her home made on June 19, 2017. As recently as January 17, 2019, or just 6 days prior to her testimony, in a meeting prior to the trial, she again made no reference to this recollection. This is a significant addition to her evidence that was heard for the first time at trial. If this were the only issue with her evidence it could be placed into context. Ms. S. appeared to be a very private person. She appeared acutely embarrassed at saying the word vagina in court. I accept that this sense of personal privacy may have caused her not to disclose this evidence prior to trial.
Ms. S. gave no evidence of contact with Mr. Mehra before the two left the floor. It is clear from the evidence of Ms. Muir that the two spent a considerable time together prior to the 11:00 p.m. trip while in Mr. Mehra's room. It is consistent with the length of that visit that this is the period in which the alcohol was consumed.
Ms. S. testified she "froze" on entering Mr. Mehra's room after the return to the floor. This is contradicted by the evidence of Ms. Muir for the time prior to the 11:00 p.m. trip and by both nurses for the time after the 11:00 p.m. trip which describe the two as talking and laughing when the two were in the room together.
Ms. S. testified that she came to when Mr. Mehra was squeezing her breast and while she was on the bed. She claims no recollection as to how she moved from Mr. Mehra's room to being on her bed. The logical conclusion to this evidence is that Mr. Mehra moved her himself. Mr. Mehra was hours away from major heart procedure arising from a recent heart attack. The nursing evidence is that it would not just be inadvisable but nearly impossible for Mr. Mehra to move Ms. S. from a wheelchair on to her bed by himself. Moreover, the evidence of Ms. Wanzel, although incorrectly having Ms. S. under her own power, makes it clear that Ms. S. was conscious and alert when she moved from Mr. Mehra's room back to her own moments before the sexual activity.
Ms. S. testified that was "screaming" for Mr. Mehra to get out of her room and that a nurse came in and asked what was going on. The nurse told Mr. Mehra to leave and stated that she would take over. The Court heard from Ms. S.'s personal nurse, Ms. Muir, and from Ms. Wanzel who was in the hallway as Mr. Mehra was returning Ms. S. to her room. Neither testify to hearing a call for Mr. Mehra to get out of the room or coming into the room to assist Ms. S. It appears unlikely that there was a third nurse in the hallway who was involved in such a manner unknown to the other two nurses.
51There was considerable evidence about contact between the two parties after this event. It is clear that there was a short conversation between the two sometime the next day. The two principals gave conflicting evidence about the location of this conversation and what was said. It is clear that the conversation referred to the events of the night before. On neither account does Mr. Mehra make any statement consistent with the events having been without the consent of Ms. S.
52There was also considerable evidence about the disclosure of this matter to police. I accept that Ms. S. did ask her nurse Ms. Muir to keep Mr. Mehra away from her at around 4:00 a.m. that day. Later the next night she made a complaint about Mr. Mehra's behaviour that ultimately led to the police involvement. While this evidence does set out how the matter resulted in the laying of a charge it does little to assist the Court in resolving issues of credibility or reliability.
53In approaching the W.D. framework I must assess whether I believe the evidence of Mr. Mehra.
54I do not decide this case on the first stage of the W.D. test. In general, I found that Mr. Mehra understated his interest in Ms. S. Mr. Mehra testified that Ms. S. was flirting with him but that he was not interested. He testified that he spent time with her as a means of taking his mind away from his heart procedure and testified that it was Ms. S.'s suggestion that the two return to his room after the 11:00 p.m. trip. This appears to be a joint decision. Mr. Mehra was pushing her wheelchair and could have simply taken Ms. S. back to her room. When Ms. Wanzel told him that it was time to sleep he could have asked Ms. Wanzel to return Ms. S. to her room or let Ms. S. do this herself. On his own evidence he commenced giving her a back massage when the two were alone in her room late at night on a hospital ward after spending a considerable amount of time together.
55I also note that Mr. Mehra denied any touching or any real interaction with Ms. S. to police. Some elements of his evidence were not put directly to Ms. S. While I do accept that he was nervous when speaking to police these issues taken together undermine the credibility of Mr. Mehra and the weight that I can attach to his evidence. On the critical issue of consent and how he came to be touching the breast of Ms. S. I cannot say that I accept Mr. Mehra's evidence.
56On the second arm of W.D. I do find that his evidence does, at a minimum, raise a reasonable doubt on the charge before the court. In general, the evidence of Mr. Mehra coheres far better to the objective evidence in this case than does the evidence of Ms. S. Mr. Mehra's account is consistent with the evidence of Ms. Muir as to a lengthy visit with Ms. S. in his room prior to the 11:00 p.m. trip. Mr. Mehra's evidence is consistent with the sharing of a normal alcoholic drink with Ms. S. as seen in the condition of Ms. S. when observed by nursing staff. Mr. Mehra's evidence about the second visit to his room and the trip from his room to Ms. S.'s room is largely confirmed by the evidence of Ms. Muir and Ms. Wanzel. His account of the sexual touching in the room does not include any call for assistance by Ms. S. or any intervention by a nurse. The evidence of either version of the conversation between Ms. S. and Mr. Mehra the next day is not inconsistent with his own reaction to the event: a brief, consensual and unwise contact that neither party wished to repeat.
57Given this finding it is not necessary that I go on and consider the third arm of the W.D. test. I will note, nonetheless, that a reasonable doubt arises from the reliability of the evidence of Ms. S. Such a finding arises from the issues discussed earlier in this judgment and, in particular, her evidence about the effect of the single drink and the intervention of the nurse moments after the assault is inconsistent with the objective evidence in this case. The evidence in this case does not prove the charge of sexual assault beyond a reasonable doubt.
58There will be a finding of not guilty on the charge before the court.
Released: May 8, 2019
Signed: Justice Carlton