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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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

Court File No.: 0611-998-18-1446

Date: February 21, 2020

Ontario Court of Justice

Central West Region

Parties

Between:

Her Majesty the Queen

— and —

Shahid Rajput

Before: Mr. Justice Richard H.K. Schwarzl at Orangeville

Heard on: December 12, 2019 and January 10, 2020

Reasons released on: February 21, 2020

Counsel:

Ms. Christina Lynch — for the Crown

Mr. Stephen Whitzman — for the Defendant

SCHWARZL, J.

REASONS FOR JUDGMENT

1.0: INTRODUCTION

[1] The Defendant, Mr. Shahid Rajput, is charged with sexually assaulting the Complainant, A.J., in an automobile on November 1, 2018 while the two were returning to Caledon from Toronto.

[2] A trial was held. A.J. and his mother, V.R., testified for the prosecution. Mr. Rajput gave evidence for the defence wherein he denied touching A.J. in the manner complained of.

2.0: THE EVIDENCE

2.1: Facts Not in Dispute

[3] The evidence of the parties shows that they agree on many facts. Relevant facts not in dispute are as follows.

[4] Between 2013 and November 1, 2018 the Defendant was a cabbie who regularly drove the Complainant between Caledon and Toronto for the Complainant's bi-weekly medical appointments.

[5] Over time, the Defendant and the Complainant enjoyed a commercial relationship with significant elements of friendship. The Complainant's mother described the Defendant as "a family friend." The Complainant agreed that the Defendant was his friend and that the Defendant was his driver of choice. Sometimes, the Complainant would ride along with the Defendant during his duties and, on rare occasions, would go to his home for meals. The Defendant described the Complainant as a very good regular customer with whom he became very friendly. He knew the Complainant was a recluse and sometimes donated his time to get the Complainant out of the house.

[6] Prior to November 1, 2018 neither the Complainant nor his mother had any reason to be concerned about the Defendant's attitude or behaviour towards A.J. At no time did the Defendant ever say or do anything to indicate that he wanted to be more than just a friend to the Complainant.

[7] On November 1, 2018 the Defendant picked up the Complainant at his house to drive him with his Lincoln Towncar to Toronto. Nothing unusual happened prior to arriving at the Complainant's medical appointment.

[8] On the way home from that appointment, the Complainant appeared to fall asleep in the front seat. The Defendant tried to wake up the Complainant by shaking his shoulder several times.

[9] After the appointment, the Defendant drove the Complainant straight home through busy Toronto rush hour traffic. He and the Complainant were the only two occupants of the Defendant's car.

[10] When they arrived at the Complainant's house about an hour after leaving Toronto, they said good-bye to one another.

2.2: Divergent Evidence as to what happened on November 1, 2018

2.2.1: The Complainant's Evidence

[11] The Complainant said that after his appointment, the Defendant picked him up as usual. The Complainant said he felt tired and tried to get some rest by closing his eyes. He thought he got some rest when the Defendant grabbed his shoulders a few times while calling his name and telling him to get up. The Complainant said he kept his eyes closed while the Defendant was calling his name. He said that the Defendant repeatedly asked, "How come you're hard?" while grabbing his penis and while moving his hand around as he asked. The Complainant said he did not reply – other than to say he was awake – while the Defendant felt his inner thigh and handled his penis and scrotum over his clothing. He said that he pretended to sleep while the Defendant assaulted him. The Complainant testified that the assault started within minutes of leaving the appointment and continued ceaselessly until arriving at home but for a few instances when the Defendant momentarily returned both hands to the steering wheel.

[12] In cross-examination the Complainant stated that he did, in fact, have an erection but he did not know why. He agreed that there might have been an armrest in between them but he was not sure. The complainant acknowledged that the traffic from the appointment until they were out of Toronto was heavy.

2.2.2: The Defendant's Evidence

[13] The Defendant initially said that when he dropped him off for his appointment, the Complainant said that he was horny. The Defendant said that he did not notice at that time whether the Complainant appeared aroused. He said that he laughed nervously at what the Complainant said because he had never spoken to him like that before.

[14] After the appointment, the Complainant got in the front seat as usual. There was a broad and tall armrest between them. As they started to drive towards the Gardiner Expressway, the Complainant repeated twice that he was horny. This time, the Defendant noticed the Complainant had an erection but said nothing. In cross-examination the Defendant agreed that he laughed when the Complainant told him on the way home that he was horny. He said that he was wrong when he thought this happened when dropping off the Complainant.

[15] The Defendant's trial evidence that he saw that the Complainant had an erection was contradicted by his voluntary statement to the police that he didn't notice one because he was too busy driving. He also admitted that he never told the police that the Complainant told him that he was horny. The Defendant explained the inconsistencies by saying that he was nervous and scared when he spoke with the police.

[16] He maintained throughout his evidence that he never said anything to the Complainant about his erection. He also maintained that it was the Complainant, not he, who brought up the subject of the Defendant's arousal.

[17] The Defendant said that within a few minutes after leaving the appointment the Complainant fell asleep. He shook his shoulder and called for him to wake up. He did this a few times but without response. The Defendant said that the Complainant did not wake up and kept his eyes closed for most of the journey home. The Defendant tried waking the Complainant because in his training and experience, sleeping passengers in the front seat can be distracting as a driver.

[18] The Defendant denied ever touching the complainant's crotch or leg; only his shoulder. He said that he never touched the Complainant for a sexual purpose. The Defendant said that given the traffic, he always had to keep both hands on the wheel other than the occasional and momentary shaking of the Complainant's shoulder.

[19] Sometime after November 1, 2018, the Defendant texted the Complainant. He testified that he invited the Complainant out for a ride along as he had done in the past. When confronted with his statement to police that the text was an invitation to feed birds, the Defendant said he was not sure what the content of the text was but he was firm that the purpose for sending it was to encourage the Complainant to get out of doors. He disagreed that the purpose for sending the text was to test the Complainant after knowingly violating him.

3.0: RELEVANT LEGAL PRINCIPLES

[20] The court may believe none, some, or all of a witness's evidence: R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at ¶ 65; R. v. Hunter, [2000] O.J. No. 4089 (C.A.) at ¶ 5. The court is entitled to accept parts of a witness's evidence and reject other parts. Similarly, the court can accord different weight to different parts of the evidence that it has accepted: R. v. J.H. (2005), 192 C.C.C. (3d) 480 (Ont. C.A.) at ¶ 44.

[21] The vast majority of assault prosecutions turn on the evidence of the two principals – the complainant and the accused: R. v. S.C.M., [1997] O.J. No. 1624 (C.A.) at ¶ 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1 (S.C.C.); R. v. A.G. (2000), 2000 SCC 17, 143 C.C.C. (3d) 46 (S.C.C.). However, reaching a verdict must not devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the unshifting burden on the Crown of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 397 (S.C.C.) at p. 409.

[22] It must be emphasized that mere disbelief of the Accused's evidence does not satisfy the burden of persuasion upon the Crown: W.(D.) v. The Queen, supra at p. 409. In other words, to use disbelief of the Accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes a legal error: R. v. Dore, (2004), 189 C.C.C. (3d) 526 (Ont. C.A.) at p. 527; R. v. S.H., [2001] O.J. No. 118 (C.A.) at ¶ 4-6. The court must not reach its verdict based on merely choosing between the defence and prosecution evidence. Instead, the court must be satisfied on the totality of all the evidence that there is no reasonable doubt as to the Accused's guilt: R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.) at ¶19 – 24; R. v. C.L.Y. (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.); R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.) at ¶ 23; R. v. J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.); R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at ¶ 67; R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.).

[23] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 116 C.C.C. (3d) 435 (Ont. C.A.); R. v. Mina, [1994] O.J. No. 1715 (C.A.) (affirmed, [1995] 2 S.C.R. 415). In approaching the issue of credibility, the court in not only entitled to compare the evidence of the Accused to the complainant, but it has a positive duty to assess the evidence of the Accused in light of the whole of the evidence, including the testimony of the complainant: R. v. Hull, [2006] O.J. No. 3177 (C.A.); R. v. Boffo, [1997] O.J. No. 5156 (C.A.) at ¶ 12.

[24] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: R. v. Wadforth, supra at ¶ 66.

[25] An outright rejection of the Accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of his evidence as is a rejection based on a problem identified with the way he testified or the substance of his evidence: R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at ¶ 53 (leave to appeal dismissed [2007] S.C.C.A. No. 69); R. v. R.E.M., supra, at ¶ 66; R. v. C.F., 2010 ONCA 424, [2010] O.J. No. 2499 (C.A.) at ¶ 9; R. v. J.A., 2010 ONCA 491, [2010] O.J. No. 2902 (C.A.) at ¶ 19 to 23; R. v. J.C., [2013] O.J. No. 3383 (C.A.) at ¶ 7; R. v. J.W., [2014] O.J. No. 1979 (C.A.); R. v. O.M., [2014] 3210 (C.A.).

[26] The court may reject the evidence of the Accused and convict solely on the basis of accepting the evidence of the complainant provided that the court also gives the evidence of the Accused a fair assessment and allows for the possibility of being left in reasonable doubt, notwithstanding acceptance of the complainant's evidence: R. v. Jaura, [2006] O.J. No. 4157 (O.C.J.); R. v. J.J.R.D., supra; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.) at ¶ 77; R. v. Woollam, [2012] O.J. No. 3868 (S.C.J.), affirmed [2013] O.J. No. 5300 (C.A.).

[27] Where there are significant inconsistencies or contradictions within a complainant's testimony, or when considered against conflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established: R. v. Norman (1993), 87 C.C.C. (3d) 153 (Ont. C.A.) at pages 172-4; R. v. Stewart (1994), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Oziel, [1997] O.J. No. 1185 (C.A.) at ¶ 8 and 9.

[28] Demeanour evidence, while relevant, alone cannot suffice to found a finding of guilt: Yuill v. Yuill, [1945] 1 All ER 183 (CA); R. v. K.A. (1999), 137 C.C.C. (3d) 554 (Ont. C.A.); R. v. W.S. (1994), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.).

[29] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the Accused or confirm the complainant's evidence in every respect – the evidence should, however, be capable of restoring the court's faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at pages 5 and 6; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.) at page 429 (leave to appeal refused [1998] 1 S.C.R. vi, [1997] S.C.C.A. No. 461); R. v. Michaud (1996), 107 C.C.C. (3d) 193 (S.C.C.).

[30] The fact that a complainant pursues a complaint cannot be a piece of evidence bolstering his or her credibility, otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 35 C.R. (4th) 340 (Ont. C.A.) at ¶ 3.

[31] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.) at page 300; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at ¶ 2-8; R. v. M.W.M., [1998] O.J. No. 4847 (C.A.) at ¶ 3; R. v. Jackson, [1995] O.J. No. 2471 (C.A.) at ¶ 4 and 5; R. v. Windibank, 2012 ONCA 237, [2012] O.J. No. 1604 (C.A.) at ¶ 8 - 13. The court must remain vigilant to the fact that the burdens of production and persuasion rests upon the prosecution and that the Accused need not prove a motive to fabricate on the part of a principal Crown witness: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.); R. v. L. (L.) (2009), 2009 ONCA 413, 244 C.C.C. (3d) 149 (Ont. C.A.). Evidence of a witness' motive to lie is relevant to the Accused as witness: R. v. Murray (1997), 115 C.C.C. (3d) 225 (Ont. C.A.) at ¶ 11-14.

4.0: LEGAL PRINCIPLES APPLIED TO THIS CASE

[32] Both parties agree that the Complainant presented as a credible witness whose evidence was given in a consistent, sincere, and forthright manner. The parties disagree, however, on the quality of the Defendant's evidence. The Crown submits that the Defendant was discredited and unreliable; the defence argues the opposite.

[33] Upon considering the totality of the evidence as well as the able submissions of both parties, and upon applying the relevant legal principles, I find that for reasons I will explain that the Crown has not met its heavy burden of proof beyond a reasonable doubt.

[34] Although the Complainant was a credible witness, I have a reasonable doubt about his reliability. His evidence that he was molested virtually non-stop whilst being driven in rush hour traffic when he was either partially or mostly asleep left me concerned about his perceptions of the events. I find it hard to accept that the Defendant could have safely driven one-handed in congested road conditions while constantly and simultaneously manipulating the Complainant's genitals. In this regard, I accept the evidence of the Defendant that but for a few shakes of the Complainant's shoulder to wake him up, both his hands were on the wheel throughout the drive. I further accept the Defendant's evidence that as a professional driver he was required to minimize distractions, which is why he tried to wake the Complainant. To attempt to negotiate downtown Toronto rush hour traffic with one hand on the wheel while the other hand is playing with a passenger's crotch would be not only distracting but very dangerous. Furthermore, the Complainant's evidence that he was asleep or sleepy is corroborated by the Defendant. His perceptions of events must be assessed bearing mind his self-acknowledged drowsy state. I am not sure that at the relevant times he wasn't actually sleeping as opposed pretending as he said, which calls into question the reliability of the experience he earnestly described.

[35] The Defendant's evidence was not free from difficulty, either. He gave exculpatory evidence of events not put to the Complainant. However, the failure to do so was offset by the admission of both parties that had his version of events been put to A.J., he would have disagreed with it.

[36] The Defendant also contradicted himself by giving answers in court different than those he gave to the police, including whether the complainant said he was horny, whether or not he saw the Complainant with an erection, as well as the topic of his post-offence text to the Complainant. He also contradicted himself as to when he first came to notice the complainant's arousal; he first said it was when he dropped him off, but later he said it was after he picked him up. In the end, I do not find these contradictions to be fatal to his overall credibility and reliability because (a) his explanations about being scared and nervous when talking to the police are plausible, if not understandable; (b) irrespective of when he noticed the complainant's erection, the complainant agreed that he indeed had one; and (c) despite having poor recall about the contents of his text to the Complainant he remained unshaken that its purpose was not to probe the Complainant's state of mind about what happened in the cab ride but to invite him out knowing that the Complainant was a recluse.

[37] Despite these problems with the Defendant's evidence, he was as sincere and consistent in his denial of touching the Complainant for a sexual purpose as the Complainant was in his accusation. At no point did I find the Defendant to be a cunning, evasive, or mendacious witness. Thus, after considering the evidence as a whole, I cannot say that I disbelieved the Defendant on the central issue of sexual touching. In the alternative, I unable to find that his evidence could not reasonably be true.

[38] Given the welter of conflicting credible evidence, I find myself left in a state of reasonable doubt what happened between the Defendant and the Complainant in the car on the way home on November 1, 2018. In other words, I cannot find that the Crown has proven the allegations to the high burden of proof placed upon them.

[39] As a result, I must register a verdict of not guilty on the sole count of sexual assault on Information 18-1446. The charge against Shahid Rajput is therefore dismissed.

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice