minicounsel

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

DATE: 2022 02 11 COURT FILE No.: 20-15003178 Toronto Region – Old City Hall

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JEHANGIR KHAN

Before Justice H. Pringle Heard on July 15-16, 2021; October 8, 2021; November 22, 2021 Reasons for Judgment released orally on January 19, 2022 Reasons for Judgment released in writing on February 11, 2022

Counsel: Melissa Atkin....................................................................................... counsel for the Crown Rafik Kodsy and Hussein Aly................................................... counsel for the defendant

OVERVIEW OF THE CASE

1The defendant, Jehangir (Jay) Khan was charged with committing a sexual assault on his former friend, UI, in February 2020.

2All evidence was heard, by videoconference, on consent. The Crown called the complainant UI, her friend TG, and PW, a family friend of the defendant. The defence called Mr. Khan. Both Crown and defence tendered documentary exhibits, which largely consisted of Instagram text chats.

3On January 19, 2022, I acquitted the defendant in brief oral reasons with supplemental written reasons to follow.

THE CROWN’S CASE: TESTIMONY OF THE COMPLAINANT

4This offence was alleged to have occurred in the early morning hours of February 17, 2020. Back in February 2020, Crown witnesses UI and TG were roommates and best friends. Another friend, R., was close to them both, and spent most of her time at their home.

5R. introduced the defendant and UI back in 2019. They had a lot in common and became friends. Both were in the club promotion business. They socialized together, followed one another on Instagram, and promoted their own and each other’s business on social media.

6Mr. Khan regularly promoted at Lost and Found, a King Street West nightclub. The complainant and her friends were frequently on his guest list. This got them free admission and alcohol. They would socialize at his booth and sometimes together after the club.

7A few days before the alleged offence, the defendant and UI had a minor, work-related dispute. Mr. Khan had accused UI of pulling customers away from Lost and Found. But they worked through it and, by February 16, 2020, were friends once more.

8On the night of Sunday, February 16th, UI came home from dinner to find TG and R. ready to go clubbing. The defendant was promoting at Lost and Found that Sunday. It was a long weekend. UI was tired, but decided to go anyway. The group set out for the club, arriving at about 11:30 p.m.

9Once inside, they hung out at JK’s booth and all was normal. Everyone was drinking alcohol and having a good time. The complainant testified that at the club, she consumed six or seven drinks. Between 1:45 a.m. and 2:30 a.m., she, TG, and R. left for home by Uber.

10After arriving home, UI said, she got a text from the defendant inviting her to an after-party. The party was at PW’s condo, across the street from Lost and Found. They decided to go, and left again in an Uber.

11While en route to the after-party, the complainant and Mr. Khan texted one another through Instagram. Two different versions of that same conversation were made exhibits. The first, which given my findings I have described as the “altered texts”, was as follows [1]:

Feb 17, 2:29 a.m. JK: Where r u JK: We at after party UI: I’m dropping this guy home. Just left lost and coming JK: Okay come JK: We all here JK: You have any coke link? JK: Yea JK: Bring it I got you in cash JK: (address of after party) JK started a video chat Video chat ended JK: Please come quick we need it JK: I just ordered a bunch of food as well JK: Okay littt JK: Qw got drinks JK: We got drinks JK: I just ordered bunch of McDonald’s JK: N you got coca right? JK: Cuz we need that UI: I’m coming JK: Okay lit JK: ( address of after party ) JK: Come we jamming here JK: How far JK: Food is here already UI: 10 mins i. The Uber JK: Okay littt JK: Come food is getting cold JK: Let me know when at the door I’ll come get you UI: Yeah I’ll call you in 5 UI: ( heart emoji ) JK: Okay JK: ( name of complainant ) JK: We neeeeed u JK: Where r 7 JK: U UI: Yes 1 min away UI: AvtuLly I’m here JK: Ok UI: Come down JK: I’m outside UI: Wheee UI: I’m here JK: I’m outside

12In cross-examination, UI was shown the other version of this conversation which, given my findings, I have described as the “unaltered texts”. She denied this was an accurate version of that conversation [2]:

Feb 17, 2:29 a.m. JK: Where r u JK: We at after party UI: I’m dropping this guy home. Just left lost and coming JK: Okay come JK: We all here JK: You have any coke link? UI: I do. UI: It’s $80 a g UI: Are you down JK: Yea JK: I got you. JK: Bring it I got you in cash JK: ( address of after party ) JK started a video chat Video chat ended JK: Please come quick we need it JK: I just ordered a bunch of food as well UI: Yes I’m On my way rn UI: Literally 15 mins with the shits JK: Okay littt JK: Qw got drinks JK: We got drinks JK: I just ordered bunch of McDonald’s JK: N you got coca right? JK: Cuz we need that UI: Yeah Gotchu UI: I’m coming JK: Okay lit JK: ( address of after party ) JK: Come we jamming here JK: How far JK: Food is here already UI: 10 mins i. The Uber JK: Okay littt JK: Come food is getting cold JK: Let me know when at the door I’ll come get you UI: Yeah I’ll call you in 5 UI: ( heart emoji ) JK: Okay JK: ( name of complainant ) JK: We neeeeed u JK: Where r 7 JK: U UI: Yes 1 min away UI: AvtuLly I’m here JK: Ok UI: Come down JK: I’m outside UI: Wheee UI: I’m here JK: I’m outside

13UI steadfastly denied this version of the conversation, adding “I also have a screenshot of that day and this is not the conversation that we had”. She acknowledged it was possible for an Instagram user to delete their side, and only their side, of a two-sided text chat.

14UI said she brought no alcohol to the after party, but she did bring “chase….like coke, like Coca Cola”. In cross-examination, she denied that the defendant asked her to bring cocaine, stating that the defendant “asked me to bring chase”. Her testimony about bringing Coke, the drink, was later mirrored by her best friend TG.

15UI said that when they arrived at PW’s, they entered through the back patio. Inside was the defendant, PW, PW’s roommate, and his girlfriend. She amended this slightly, to seeing the defendant on the back patio first, after being shown the chats.

16UI consumed up to ten alcoholic drinks at the after-party. This amount, coupled with the alcohol she drank at Lost and Found, could have totaled up to seventeen drinks. UI said this was a common amount of alcohol for her to consume and strenuously resisted any suggestion of being impaired.

17On UI’s testimony, both Mr. Khan and PW were openly using cocaine at the after party. She was not. She denied bringing any cocaine, selling any cocaine, or using any cocaine at PW’s. She did not mention the presence of cocaine, at the party, during her direct examination. She had not mentioned the presence of cocaine, at the party, to police.

18TG left around 9:00 a.m. UI decided to stay, sleep a bit, and then go to brunch with PW and Mr. Khan. At approximately 9:30 a.m., PW and JK showed her where PW’s bedroom was. She went to sleep there for between 45 to 90 minutes, alone and still in her clubbing clothes. PW and the defendant stayed awake, still drinking.

19UI testified that she woke up because the defendant’s penis was obstructing her airway and she could not breathe. She tasted skin, and, after opening her eyes, saw Mr. Khan with his pants undone. She “guessed” that his knees were on the bed. She saw his penis, which he was putting in her mouth.

20UI said she screamed and pulled the blanket over her. Mr. Khan responded, “Oh my god, I am so sorry, I thought you were my wife”. That made no sense to UI. Mr. Khan’s wife lived outside Canada.

21On UI’s account – indeed, on all accounts – there was a loud confrontation between she and Mr. Khan in PW’s condo that morning. The two were yelling and screaming at each other.

22UI kept screaming and crying, so much that this had “woken up” PW. He appeared in the bedroom and asked what happened. She told PW the defendant had put his penis in her mouth. At her request, PW gave her a hoodie and sweatpants to wear. He then brought her into the washroom, saying “I can make you feel safe”.

23She lay on the bathroom floor, hysterical and telling PW she needed to go home. But the “teary-eyed” and “apologetic” PW kept her in the bathroom to calm her breathing. Meanwhile, Mr. Khan was apologizing and banging on the door.

24They stayed inside that bathroom for between 30 to 45 minutes. Then, according to UI, they heard Mr. Khan say, “I have a knife” and “I’m going to kill myself”. PW opened the bathroom door, grabbed the knife Mr. Khan was holding, and closed the door again. He and UI realized the knife had cut PW’s hand. They ran water over the wound, to stop the bleeding.

25UI then said they needed to leave. They exited the bathroom and the condo, leaving the defendant behind. Unconcerned about the suicidal friend inside his home, PW took UI to a nearby restaurant for brunch. She and PW then Ubered back to her apartment about ten minutes away.

26They arrived at about 1:00 or 1:30 p.m., and R. and TG were both there. UI cried for two hours and then slept. PW stayed at her home until 9:00 p.m. to “comfort” her. The whole time, Mr. Khan was “blowing up” PW’s phone. PW was ignoring him. UI later went out for dinner with her friend, dropping PW off on their way out.

27After a few days, UI began trying to get Mr. Khan fired for sexually assaulting her. She made great efforts to communicate the danger the defendant presented, as a club promoter around drunk women. She reached out with this message to the owner of Lost and Found. She reached out to major promoters at the club. Her efforts were met with no response.

28Next, UI then posted on Instagram about the alleged sexual assault. More specifically, she posted that Jay Khan sexually assaulted her and Lost and Found was ignoring her emails about it. She wanted the defendant fired. After the club’s management continued to ignore her, on or about May 31, 2020, UI reported Mr. Khan to police.

THE CROWN’S CASE: TESTIMONY OF TG

29TG, the complainant’s best friend, testified for the Crown after UI completed her evidence. He was part of UI’s social circle and sometimes frequented Lost and Found. He and Mr. Khan got along well, until UI alleged this sexual assault. After that, Mr. Khan was “dead” to TG.

30The night of February 16, 2020, TG said, everyone got along well at the club. He had been told about the recent dispute between UI and Mr. Khan, but it seemed resolved. Everyone was drinking mixed drinks, with TG consuming perhaps five or six vodkas.

31TG said they were still at the club when the defendant invited them to PW’s. They went home instead, leaving the club at 2:15 or 2:30 a.m. Once they got home, the defendant called UI and she and TG decided to go to the after-party after all. TG was shown the “altered texts” and agreed its timeline was generally consistent with them going home and then back to PW’s.

32TG said they got out of the Uber at PW’s and walked over to a convenience store. There, they bought “chaser”, meaning Coca Cola and Sprite, to consume after doing an alcoholic shot. No one had asked them to bring this, but UI had decided they needed it. TG denied UI stopping somewhere to pick up cocaine. The convenience store was their only stop between home and PW’s.

33There was vodka and whiskey at the after-party, TG said, as well as a baggie of cocaine. This cocaine was laying out on the kitchen island. TG and UI were drinking vodka, while the others drank whiskey. Only the defendant and PW were using cocaine. TG had no recall of seeing any food and drinks there from McDonald’s.

34After a few more hours of drinking and socializing, TG called for an Uber. It was 8:42 a.m., a fact TG offered to confirm by providing a screenshot. He canceled that Uber after the defendant invited he and UI to stay, sleep, and then go for brunch. But then, feeling tired, TG re-ordered another Uber and went home. UI stayed.

35Around 12:30 p.m. to 1:00 p.m., R. woke TG up to tell him that “something happened”. PW, R., and UI were all in the living room. UI was “screaming” and “in hysterics”. She was breathing really hard and makeup was streaked down her face.

36According to TG, a conversation ensued about UI’s sexual assault allegation. PW was part of that conversation, and even showed TG a 4 cm knife wound, like a slice, across the palm of his hand. TG described that wound as “pretty big” and “a pretty long cut”. PW stayed at their home until 9 or 10 p.m. Like UI, TG said that PW was ignoring the defendant’s repeated calls.

37After that night, TG knew about UI trying to get the defendant fired. In support, he re-posted her allegations on his own Instagram. He knew the posts did not have the desired effect of getting Mr. Khan fired.

38A few months before trial, TG sent an email to police containing his statement of events. He did this because UI told him having more witnesses would be “beneficial”. Before TG sent his statement, UI reviewed it and said he could “go ahead and send it”.

39At trial, TG was shown the both the “altered” and “unaltered” versions of UI and JK’s text chats from that night. Without, purportedly, knowing the context of why he was being shown these messages, TG was quick to discredit the authenticity of the “unaltered texts”.

40This eventually led to questions about contact with UI about her testimony. TG first denied speaking to UI after she testified. Immediately after saying this, TG then admitted he had called UI the night before. In this call, he asked about court, but UI just said it was “okay” and she was going to bed.

41This phone call took place before TG testified, and after UI testified. TG denied lying about its length and content. When asked if he was willing to confirm the brevity of this call by showing his call log to the court, he refused.

THE CROWN’S CASE: TESTIMONY OF PW

42PW was the owner of the after-party condo and a good friend of the defendant. They had known each other for many years. When Mr. Khan was working downtown, he would message PW and they would meet up. These meet-ups were typically once or twice, every two months.

43Lost and Found was very close to PW’s condo. He had been to the club with Mr. Khan, and had met UI and her friends a few times. They had, in the past, come over to his condo after the club. PW found the complainant to be a nice, respectful person.

44On February 16, 2020, PW and the defendant went to Lost and Found and then returned to PW’s condo. Mr. Khan said that he wanted to get cocaine. PW was uncomfortable with the notion of a drug dealer inside his home. But when Mr. Khan said the person with the cocaine was the complainant, PW remembered her and agreed.

45TG and the complainant arrived at his home between 3:00 a.m. and 4:00 a.m. The complainant brought cocaine, enough to share between a few people. The group had a few drinks, and both the complainant and Mr. Khan were using cocaine. PW was unsure whether TG had used cocaine. He himself used none.

46The group continued to socialize all night and morning. The party was small, and PW characterized everyone as being “respectful” guests. After awhile, PW grew tired. TG declined an offer to sleep at PW’s and went home. The complainant stayed. She and Mr. Khan used a bit more cocaine, and the three had a few more drinks. The group then decided to sleep a bit before brunch.

47PW offered UI his king-sized bed to sleep in alone, but she said all three could pass out together in the huge bed. They did. The complainant was in the middle, wearing track pants PW had given her to sleep in. Mr. Khan slept on the left side of the bed and PW slept on the right side of his bed.

48PW awoke to a loud argument. His two remaining guests were cursing each other out. PW did not entirely understand the context of their argument, but testified that they referenced drugs, money, and favours the defendant had done for UI such as getting her friends into the club.

49PW was groggy and very unhappy about his two guests making a scene. At some point the complainant had gone inside the bathroom and was getting herself ready. But she kept yelling at Mr. Khan from inside and Mr. Khan kept yelling at her from outside. So PW went inside the bathroom too, closing the door behind him.

50When asked why he did this, PW said his intent was to separate the two of them and calm UI down. He did not close himself inside the bathroom to make her “feel safe”. He repeatedly emphasized worries about the loud and incessant argument about drugs and money.

51Even after he separated them, PW said, she and Mr. Khan continued to argue through the bathroom door. He stayed inside the bathroom for approximately 15 to 20 minutes. UI remained agitated and angry, and Mr. Khan was shouting on the other side of the door. But there was no suicide threat, on PW’s version, since no one had or used knives that morning. PW also denied his hand getting cut by a knife that morning, and was quick to show unscarred palms to the court when asked.

52PW said he continued to be distressed by this loud argument in his home. He was worried about the neighbours hearing, he was worried about having had drugs inside his home, he did not want any complaints and, as he put it, he “just wanted this to end”. So PW took UI out to brunch as planned, but left Mr. Khan in the condo. He knew Mr. Khan had a car there and could get to his own home.

53Before she exited the condo, UI said to Mr. Khan that if she reported him, she could screw him over. PW did not know what that meant. When he was asked if this comment made him concerned for Mr. Khan, he replied said his concern at the time was just getting people to stop screaming inside his condo.

54The brunch place was next to the entrance of PW’s condo. UI, who had said she was hungry, ate brunch and calmed down considerably. She and PW then Ubered to her apartment about ten minutes away. PW said his intent was to ensure she reached her home, but when they arrived, UI invited him in.

55R. was there and she, UI, and PW had a few drinks. UI was laughing and talking, and then PW, who had not slept much, passed out on their living room couch. He slept for hours. He denied having stayed at UI’s place for such a long time in order to console her.

56When PW woke up, it was evening. The complainant and her friends were getting ready to go for dinner. PW declined their dinner invitation but accepted a ride back to his home. Mr. Khan wasn’t there. Later, PW testified, he saw pictures of the group’s dinner on social media.

57A few days later, Mr. Khan told him UI was posting about him on social media. UI had also reached out to PW after that night, to ask if Mr. Khan was apologizing yet. PW had the sense the two were trying, through him, to assess how the other was feeling.

58About three to four months before testifying at trial, PW received unsolicited text contact from the complainant’s friend R. She said that “to prove she (UI) was traumatized by his (the defendant’s) actions we have to mention that you helped make her feel safe and took her out of your apartment and consoled her at her place where I was present”.

59At trial, PW said that because of the specifics included in R.’s messages, and the fact that she had contacted him out of nowhere, he felt he was being used. He moved to one or two word responses and ended the conversation when he could.

60PW denied having any knowledge about a sexual assault. He stated, “they were both nice to me” and was quick to add that he did not know if Mr. Khan was guilty or not. He only knew he had not witnessed a sexual assault.

THE DEFENCE CASE: TESTIMONY OF THE DEFENDANT

61Mr. Khan was the only defence witness. He described his job, as a club promoter with Lost and Found, before moving to the events of February 16 and 17, 2020. He testified that UI messaged him that Thursday, asking that she and her friends be placed on his guest list.

62He said that at the club, UI told him that she had a link for cocaine and to message her if he wanted some. She had supplied him with cocaine before. While still at the club, the defendant invited UI and her friends to the after-party at PWs. He did not ask for anyone to bring alcohol, food, or drinks.

63Mr. Khan and PW left the club at about 2 a.m. and went over to PW’s nearby condo. The defendant, at 2:55 a.m., ordered McDonald’s for their guests to snack on. A receipt confirmed the defendant’s testimony on this point. The specifics of that order included various food items and five medium Coca Colas.

64He and UI texted, via Instagram chats, prior to her arrival. The defendant attested to the “unaltered texts” as the full and accurate version of this conversation. He explained their conversation was about the purchase of cocaine, the location of the party, the food and drinks that had been ordered, and the whereabouts of UI.

65When UI and TG arrived, the defendant came downstairs to let them inside. She had brought the requested cocaine, and she, TG, and the defendant began to use it. The quality was poor and no one got high. They continued to do more until, after four grams in, they gave up and continued to party with just alcohol.

66In the morning, TG decided to go home. UI decided to stay, rest, and then go for brunch with PW and Mr. Khan. All three slept in PW’s king-sized bed. Mr. Khan set an alarm so they would wake up after an hour and a half.

67When that alarm went off, only he and UI got up. UI began to get ready in the bathroom. She told the defendant he have to pay for her brunch and that he owed her $400. The defendant refused to pay, and their discussion evolved into a bitter argument. The two were name-calling and cursing each other out. This woke PW up.

68PW told the defendant to “shut up”, went into the bathroom and told UI to stop screaming. Eventually the situation calmed down somewhat. PW said he was going to leave with UI and for Mr. Khan to stay back. Before she left, UI told Mr. Khan he “was going to regret this”, and Mr. Khan replied, “you’ll see”.

69The defendant waited around for a bit, but when PW did not return from brunch, he left and went home. He acknowledged that, while sleeping in that same bed, he had had the opportunity to sexually assault UI. He denied committing a sexual assault. He denied putting his penis in her mouth. He became aware of the allegation shortly after, when UI started posting it on social media and trying to get him fired.

70After he was arrested, the defendant took screenshots of his Instagram chat with UI and gave them to counsel. On June 23, 2020, he discovered that part of UI’s texts to him, which he had earlier captured in screenshots, was now missing from their original conversation. He testified that he took a video of this “altered version” of their Instagram, and provided that to counsel as well.

THIS IS A W.D. CASE

71Everyone is in agreement that this case turns on the application of R. v. W.(D.). If I believe the defence evidence, I must acquit. If don’t believe the defendant but his testimony raised a reasonable doubt, I must acquit. Even if the defendant’s evidence is disbelieved and does not raise reasonable doubt, I must then consider the evidence I do accept, and ascertain if the Crown proved the charge beyond reasonable doubt.

72I found in the defence favour on all three tiers of W.(D.).

73Beginning with the testimony of Mr. Khan, he denied sexually assaulting UI and I believed him. I accepted his evidence as both true and accurate. He was unshaken during a careful, thorough cross-examination. No material inconsistencies were established, which lent itself to a conclusion that his evidence was reliable as well as credible.

74I must add that there was no onus on Mr. Khan to show how alleging sexual assault benefited UI, or to explain why she would end a beneficial relationship by falsely allege a sexual assault. Both were irrelevant to assessing Mr. Khan’s credibility. As the Court of Appeal said at para. 31 of R. v. Ignacio, 2021 ONCA 69, “ motives can remain hidden or there may be no motive at all” [3].

75In assessing Mr. Khan’s credibility, I also placed no weight on the failure to put the exact amount of drug debt, as Mr. Khan testified to it, to the complainant. Defence counsel’s suggestions fully tracked all material aspects of Mr. Khan’s subsequent testimony. This is all that is required. As the Court of Appeal held in R. v. Quansah, 2015 ONCA 237 at para. 81:

Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness …

76But most importantly, I found Mr. Khan’s version of events was inherently logical, plausible, and consistent with common sense. I believed he did not put his penis in UI’s mouth. Most of his testimony was corroborated by PW, who was resistant to aligning himself to a “side”. For example, both PW and Mr. Khan said UI slept in the king-sized bed with them. Both PW and Mr. Khan said the argument that morning involved drugs and money. Both said Mr. Khan did not threaten to kill himself, and both said PW did not cut himself while stopping Mr. Khan’s suicide attempt.

77Mr. Khan’s testimony was also corroborated by the Instagram messages UI sent him that night. I concluded Mr. Khan altered none of the messages. I accepted that shortly after his arrest, he discovered parts of UI’s side of the chat were gone. [4]

78His testimony on this point was supported by the very content of the messages. The conversation flowed naturally and logically in the “unaltered texts”. By way of contrast, the “altered texts” had several portions where the defendant appeared to be nonsensically conversing with himself. In addition, it made little sense for Mr. Khan to fake a conversation about purchasing cocaine to exculpate himself from sexual assault allegations as opposed to one that directly discredited her allegations.

79I understand that accepting Mr. Khan’s testimony about the text messages does not equate to automatically accepting his denial of sexual assault. This was a piece of the credibility puzzle only. But considering Mr. Khan’s evidence as a whole, I found him to be a credible and reliable witness and I believed him. Even if I had not believed him, his testimony would certainly have raised a reasonable doubt in my mind.

80Moving to the third tier of W.D., had I not believed Mr. Khan and his evidence had not raised at least a reasonable doubt, I would still have acquitted him. The Crown’s case raised ample reasonable doubt in a variety of ways.

The Complainant UI was not a believable witness

81To begin, I found UI altered the Instagram messages to remove her side of the cocaine transaction. She then left that aspect of events out of her narrative. Further, she misled the court about the manipulated text messages. I had little faith that UI placed much import on her oath.

82This was an easy conclusion to reach, quite frankly. An Instagram user has the ability to delete their messages from a conversation. Doing so might, as it did in this case, leave a disjointed one-sided narrative. In this case, the altered version left the impression that Mr. Khan was asking for “coke” and “coca” without getting any substantive response from UI.

83Only UI would perceive benefit from editing out her own responses. Ironically, had she left this issue alone instead of tampering with it, I would have cared little about the provision of party cocaine in the context of an alleged sexual assault. But the lengths she went to, in order to hide this fact from the court, supported a finding that UI was an incredible witness.

84Further, the contrived testimony about bringing “Coca Cola” reinforced this conclusion. I did not accept UI’s testimony, or TG’s for that matter, about bringing “chase” and/or the stop at the store for “chase”. UI was not asked to bring any drinks to the after-party. Specifically, Mr. Khan clearly did not ask UI to bring “chase”:

JK: Please come quick we need it JK: I just ordered a bunch of food as well UI: Yes I’m On my way rn UI: Literally 15 mins with the shits JK: Okay littt JK: Qw got drinks JK: We got drinks JK: I just ordered bunch of McDonald’s JK: N you got coca right? JK: Cuz we need that UI: Yeah Gotchu

85I did not believe the claim that despite being told drinks were at the party, and being told that McDonald’s had been ordered, UI decided to walk over to a convenience store at 3 a.m. for the sole purpose of buying “Coke”. No doubt she hoped that this might paint the “coke” reference, if her text messages came up, in a more innocent light.

86Other factors underlying my rejection of UI’s testimony included her frequent evasiveness and non-responsiveness. In cross-examination, UI was clearly trying to anticipate defence counsel’s questions and the point they were hoping to establish in asking them. This is a natural human response, and not uncommon in court. But in this case, UI’s answers were designed to advance her own narrative instead, and to put paid to what she thought counsel was hoping to establish.

87This was not an isolated instance. There was a pattern of deflection apparent. A repeating example would occur when, instead of answering questions, UI challenged defence counsel for trying to discredit her.

88This arose, for example, when Mr. Aly asked her if she brought chaser to the party as well as “coke”. UI denied this, specifying it was “Coca Cola”. Mr. Aly then asked if she had any connection to cocaine. After saying, interestingly, “I knew this was gonna come – you were going to say that”, UI replied that defence counsel was trying to discredit her, that this was very traumatic for her, that the defence was going to suggest she was under the influence of cocaine, and of alcohol, and would then suggest her memory was unreliable as a result.

89While I appreciate demeanour is but one piece of the puzzle, UI’s manner of testifying in these exchange, and others, led to the conclusion she was deflecting and distracting from subjects she wished to avoid. Clearly, the topic of cocaine versus “Coca-Cola” was one such topic for her. At another juncture, UI avoided a difficult question by asserting she would not stand for defence counsel tricking her.

90UI was also non-responsive when asked for consent to release her Instagram records. This topic was raised after repeatedly asserting the “unaltered texts” were not real. UI had every right to deny that consent. But the manner in which she did so was evasive and non-responsive. Her answers changed quickly, before she deflected the question by asking counsel a question instead.

91I found she did this because she was uncomfortable with her ‘text message’ testimony being checked out through a disinterested third party. She was uncomfortable with that because her ‘text message’ testimony was not true. I did not place great weight on this aspect of her evidence, but it fit into a general, ongoing pattern of evading and deflecting away from topics that did not fit her desired narrative.

92In addition to manipulating the Instagram chat messages, misleading the court about that, and attempting to deflect uncomfortable questions instead of answering them, UI was at times materially and internally inconsistent. For example:

When being confronted with the unaltered texts, UI said she had a screenshot of the conversation which was different than what defence counsel was showing her;
She later said she had no access to those same text messages because she “blocked” the defendant which caused her Instagram messages to disappear;
In her statement to the police, UI said she saw the defendant’s pants undone and his shirt still on, but did not claim saw the defendant’s penis;
In her evidence, she said she saw the defendant’s penis;
When asked about this, UI attributed the difference to having difficulty coming up with details and words. She said the police statement, on this point, was the same as her testimony. It was not.

The Inconsistencies between UI and PW

93I found PW to be a particularly candid witness, straightforward and doing his best not to align himself with one side or the other. PW was resistant to the obvious attempt by R. to plant their version of events into his narrative. He was also quick to state that he could not say if the defendant had, or had not, sexually assaulted UI.

94PW’s version of events was consistent and made so much more practical sense than UI’s testimony. When I considered the complainant’s evidence in light of PW’s evidence, there were inconsistencies established that materially impacted UI’s credibility, such as:

UI brought cocaine to his after-party;
UI slept in the king-size bed with both he and the defendant;
The argument PW awoke to, which included references to drugs and money;
PW went in the bathroom to calm UI down and diffuse the loud scene;
The defendant did not threaten to kill himself;
PW did not slice open his palm while taking a knife from the defendant;
PW was at UI’s home for hours because he passed out there, after drinking through the night and morning while sleeping very little.

95I appreciate that PW could not confirm or deny whether a sexual assault occurred. But where PW’s testimony differed from that of the complainant, I accepted his version of events as true and accurate without hesitation. These differences were not minor, and they were not caused because UI was mistaken about certain events. I found these differences arose because she was not telling the truth.

Witness Contamination and Collaboration

96When it came to assessing TG’s testimony, I had grave concerns his evidence was specifically designed to corroborate UI wherever it could. I found he was not telling the truth as he best remembered it. His version was contaminated by collusion and collaboration. Evidence supportive of this included:

The multiple conversations TG and UI had about the events of that night. The two had nowhere close to separate narratives. While this is a natural human response as between friends, it hardly assisted to characterize TG as an independent witness;
Months after UI reported the defendant, TG gave a statement to police because the complainant had been told it would “help”. He sought UI’s approval of his statement before emailing it to the officer-in-charge;
R.’s involvement in this case showed a blatant team effort between she, TG, and UI. UI and TG were both aware that R. had reached out to PW in advance of trial;
The content of R.’s text messages showed the group taking a collaborative approach to creating this trial’s evidentiary record. I found she reached out to PW because she, UI, and TG had aligned themselves on a “side” and were doing their level best to ensure his testimony supported their “side”;
TG’s immediate denial of having spoken to UI by phone after she testified and before he testified, which was followed, in his very next breath, by the admission that he had called her and asked about court;
The contrast between TG’s general demeanour and his refusal to show his call log to the court. I appreciate demeanour can be a red herring, and cautioned myself against giving it too much weight. But, still, there was a notable, observable difference between TG’s general openness, as exemplified in his offer of the Uber receipt, and his quick shift to defensive, nervous behaviour when asked to confirm the brevity of his call with UI the night before;
The inclusion of stopping at the store for “chaser” before going to the after-party. TG did not mention this in his statement to police. But he felt it important to mention in his testimony, which of course began after UI completed her testimony. I found UI’s “chaser” purchase was fabricated to prove an innocent explanation for the “coke” text message. The fact that UI’s false narrative showed up in TG’s testimony confirmed their collaboration.

Conclusion: The Crown’s Case and W.(D.)

97The Crown’s case, when considered as a whole, fell far short of proof beyond a reasonable doubt. The sexual assault allegation rested on UI’s testimonial word. I found that word to be an untrustworthy foundation. I took no comfort in any corroborative aspects of TG’s testimony.

98I must add this. Lying about altered text messages does not automatically equate to lies about sexual assault. Lying about bringing cocaine to the after-party does not automatically equate to lies about being sexually assaulted. I appreciate that her cocaine obfuscation and her sexual assault allegation are two different things.

99But when I assessed these lies, they had impact on the broader context of this case. They showed UI’s willingness to craft a narrative which best served her interests, instead of simply telling the truth. Crafting this narrative did not seem to have any ethical limits. She deleted parts of her text messages with Mr. Khan to make herself look better. She misled the court about that. She collaborated with other witnesses about her manipulated narrative, and she misled the court about that too.

100I had, consequentially, no faith that UI was telling the truth about anything, or that her oath bound her conscience in any meaningful way. As a result, I could not find the Crown’s case proven beyond a reasonable doubt. Application of the third tier of W.D., therefore, led to the conclusion that Mr. Khan must be acquitted.

Released: February 11, 2022 Signed: Justice H. Pringle

1Bold font emphasis added for ease of reference.

2Bold font added for ease of reference, underlined emphasis shows difference from first set.

3Albeit in the context of proof of no motive to fabricate.

4I did not use his comments during the Exhibit 7 video to reach this conclusion, since in my view these were prior consistent statements.