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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 12 09 COURT FILE No.: Windsor 22-81103473
BETWEEN:
HIS MAJESTY THE KING
— AND —
SEVAN HALABI
Before Justice S. G. Pratt
Heard on 22, 28, 30 October 2024
Reasons for Judgment released on 9 December 2024
Andrea Harris........................................................................................ Counsel for the Crown Ahmad Ammar................................................................................ Counsel for the defendant
1On 9 October 2022, K.M. needed a ride home. She used the Uber app to request a pickup. That request was answered by the Defendant Sevan Halabi. What could have been a short drive to her house instead became the charge before this Court.
2The Crown argues I should accept the Complainant’s evidence and find beyond a reasonable doubt that the Defendant sexually assaulted her in his vehicle. Counsel for the Defendant says I should accept his evidence that all sexual contact between them that night was consensual, or that he had an honest but mistaken belief in the Complainant’s communicated consent. This case comes down to my assessment of each witness’s credibility and reliability.
3For the reasons that follow, I find the Crown has proved its case beyond a reasonable doubt. The Defendant will be found guilty.
Admissions
4The following points were admitted at the outset of trial: Date, time, identity of the Defendant, the authenticity of a surveillance video, and the fact that the Defendant was working as an Uber driver using his own vehicle on the night in question. The continuity of forensic evidence was also admitted but no such evidence was presented.
Issues
5I see two issues to be determined in this case:
(1) Was the sexual contact between the Defendant and Complainant consensual?
(2) Did the Defendant have an honest but mistaken belief in communicated consent by the Complainant?
6If the answer to issue 1 is yes, that will end the analysis. Only if the answer is no should I then consider issue 2.
Issue 1: Was the sexual contact between the Defendant and Complainant consensual?
7Consent to sexual activity must be conscious and ongoing. It cannot be given in advance but must be contemporaneous with the activity. It also cannot be based on “silence, passivity or ambiguous conduct” (See: R. v. Ewanchuk, [1999] 1 S.C.R. 330 at par. 51).
8Rather than set out the Complainant’s and Defendant’s evidence in detail, I will provide a brief summary of each witness’s testimony and refer to the salient specifics of their evidence as it relates to the relevant issues.
9I remind myself that while this trial only involved testimony from the Defendant and Complainant, it is not a contest to determine who I believe. There is no burden on the Defendant to prove his innocence. The burden is always on the Crown to prove his guilt beyond a reasonable doubt. Likely or probable guilt is not sufficient. On the basis of the totality of the evidence, I must be sure of his guilt before I convict. Anything less must result in an acquittal.
10The Complainant testified to being at a party on the night the charge arose. It was at a residence on Churchill Street in Windsor. She said she arrived at the party around 9pm the night of 8 October and left sometime after 1am on the morning of the 9th. While she had been drinking that night, she stopped between 11pm and midnight and was “pretty much sober” by 1am. She left by way of a rideshare she booked on the Uber app. The Defendant was the driver who picked her up.
11Her residence was a short drive from the location of the party. She was familiar with the area as she had a friend who lived on that street. At the intersection of Mount Royal Drive and Cabana Road, the Defendant should have turned right. Instead, he turned left. He drove briefly on Cabana before turning into the deserted parking lot of St. Clair College.
12Once in the lot, she asked where they were going and what was going on. He didn’t respond. Instead, he parked and shut off the engine. He turned off the Uber app on his phone, which led to her getting a notification of a message from Uber to the effect that the ride ended early and asking if she was ok. He left the driver’s seat and got in the driver’s side back seat. He slid close to the Complainant. He turned towards her and kissed her on the mouth. She said she pulled her head back and did not reciprocate. She remembered the smell of cigarettes as he kissed her and put his tongue in her mouth.
13She tried to pull away and give him excuses for why he couldn’t do this, like her family was waiting for her and she had a boyfriend. He told her it didn’t matter.
14He then slid his hand up her leg and under her dress. He touched her vaginal area over her underwear. He began moving his hand up towards the waistband of her underwear. At that point she either said no or started trying to remove her seatbelt. She had resolved by then to exit the vehicle.
15She asked if he would driver her home and he refused. She got out of the car, and he returned to the driver’s seat. He drove away, leaving her in the parking lot.
16She called a friend and then her parents. Her father came to pick her up and took her home. At her father’s insistence, they called 911 on the way. She spoke with officers that night and gave a formal statement at a later date.
17The Defendant confirmed he was working as an Uber driver that night. He received a request for a ride through the Uber app. The customer was only a minute or two away, so he accepted the request. He first pulled into the St. Clair College parking lot and messaged “I’ve arrived”. He said the customer messaged him that he was in the wrong spot. Through their messages, he learned where to go. He found the customer and she got in his vehicle. It was the Complainant.
18He said they conversed as he drove. Based on her agreement, he drove to the St. Clair College parking lot. He stopped the car, shut the engine off, and moved to the back seat. He said they started kissing. She took his hand and put it on her breast. She then told him to rub her vagina. She opened her legs slightly and he touched her vaginal area over her underwear.
19As he couldn’t touch her skin, he pulled his hand back. He kissed her again, but she did not respond. He slid away from her on the seat. She got out, he returned to the driver’s seat, and he left the area.
20Later that night, he was awakened by police knocking on his door. They arrested him for the charge before the Court.
21Throughout the trial, the Defendant maintained that all sexual contact was consensual. To secure a conviction, the Crown must prove the conduct in issue was without the Complainant’s consent. Whether it was consensual turns on what I find was said between the parties in the brief period between her entering his car and the sexual contact in the parking lot.
22The Complainant testified to their conversation. When she first opened the door, she asked if he was Sevan and how to pronounce his name. She said he didn’t respond. The make, model, and license plate of the car matched what she’d been provided by Uber, and the driver looked like the photo they’d sent her, so despite his lack of response she got in his car.
23To avoid what she termed an “awkward silence” she said she asked him how busy his night had been. She didn’t think he answered. She told him about her night, including how she’d spoken to a male at the party. She told the Defendant that the person she’d spoken to was too young for her. He was 19, she said, and she preferred older men. He responded by saying, “we’re going to have fun”, and possibly adding the word “tonight”. He said this several times. She laughed nervously and brushed it off but eventually said, “maybe one time” simply to placate him.
24She testified to his comment making her feel uncomfortable and “a little creeped out”. She said she’d heard similar comments on other occasions and would usually try to shrug it off or say something polite in response.
25The drive was ordinary until they reached the intersection of Mount Royal and Cabana. At this point in the drive, he should have turned right. Instead, he turned left. She testified that she never told him to change the route or go anywhere but her home. When he turned in the opposite direction, she assumed the app would reroute him.
26She was asked if she said anything to him when he made the wrong turn. She said she did not as she became very fearful. In her words, her “flight or fight” kicked in and she was paralyzed. She felt something bad was about to happen to her, but she couldn’t speak or move.
27Once he entered the St. Clair College parking lot and stopped the car, she did ask him something like where are we going or why are we here. She said he didn’t answer. He got into the back seat and slid close to her. He kissed her and touched her as described above. She tried to tell him her family was waiting, that she needed to go home, and that she had a boyfriend. She pleaded with him to just drive her home. She did not recall specifically saying no to his advances but did physically pull away and did not kiss him back. When he touched her vaginal area she thought she may have said no or tried to unbuckle her seatbelt.
28After he slid away from her, she asked if he would still drive her home. When he said no, she got out of the car and sarcastically said, “thank you, have a good night”. He then drove away.
29The Defendant also testified to what was said that night.
30He agreed that when the Complainant got in his car, she said hi. He said he responded in kind. She asked if he was busy and he said yes. He asked her if she had been at a party and she said yes but that she hadn’t been happy. He asked why. She said she was 24 years old and did not have a boyfriend. She said a man had talked to her at the party, but he was only 19 and too young for her. She liked older men, she said, like the Defendant.
31He then asked her, “do you want to spend a fun time, just for tonight?”. She said yes. He followed up: “let’s go to do sex just one time tonight”. Again, she said yes. He then asked if they could go to the St. Clair College parking lot. Another yes.
32Based on this agreement, he turned left onto Cabana, towards St. Clair College and away from the Complainant’s destination. She didn’t ask him why he was turning left instead of right.
33Once they arrived in the parking lot, he parked and turned off the engine. He moved from the driver’s seat to the back. He said they began kissing each other. She put his hand on her breast and told him to rub her vagina. He tried, but only touched her over her underwear. He then tried to kiss her again, but she did not reciprocate. That is when he slid away from her and closer to the driver’s side rear door.
34She then asked for his phone number so she could call him later. He did not give it to her but asked her to leave the car. She then reached over and touched his face, telling him he was nice and that she liked him. He said he pulled his face away and she asked him to take her home. He refused and told her to leave again. She did, and he left.
35The evidence of the Defendant is exculpatory. I must therefore employ the analysis set out by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742. If I believe his exculpatory evidence or if it leaves me with a reasonable doubt, I must find him not guilty. If I neither believe it nor am left with a doubt by it, I must consider if the Crown has proved the charge beyond a reasonable doubt on the basis of the evidence I do accept.
36I do not believe the Defendant’s evidence.
37In my view, his evidence was unclear and he was frequently unresponsive. He had to be asked simple questions multiple times before he would provide an answer. As one example, he was asked by the Crown if he had looked back at the Complainant after she got in his car. It took seven attempts, six by counsel and one by me, to get him to answer this question.
38Shortly after that, he was asked about the Complainant saying yes to his suggestion that they spend a fun time just for tonight. He was asked how she said that. Despite being asked several times, he did not explain the tone of voice the Complainant used when she said yes.
39I pause to note that counsel objected to some of the interpretation provided at this stage of the trial. The Crown asked if the Complainant had said yes in an enthusiastic way. Counsel said the interpreter interpreted the word “enthusiastic” as “confirmation”, which was incorrect. I then asked the interpreter if there was a word in the Arabic language that equated to “enthusiastic”. The interpreter said yes and offered two different words, one that equated with “excitement”. I directed that the Defendant should be asked if she said yes with “excitement”. There was no objection or misgiving communicated by counsel at that point. Also on the interpreter issue, the Defendant was asked in re-examination about any other problems that may have arisen. He testified to one word being translated differently. He said the Complainant used an English slang term for her vagina but that the interpreter translated the word for vagina. Counsel advised the Defendant does speak some English and so recognized this slightly different translation. He made no other complaint about how the evidence in the case was translated and the issue was not mentioned again.
40To the question whether she had responded with excitement, he only reviewed the questions he’d asked and repeated that she’d said yes. He was then asked twice what her tone of voice was. Both times, he simply repeated that she said yes. He never did testify to her tone of voice.
41He was asked what she said after saying yes to his suggestions. He said she was silent as they waited to turn left onto Cabana. To that point, according to the Defendant, the Complainant had been talkative: asking him about his evening, telling him all about the party and the 19-year old who spoke to her, and about her unhappiness in being single. But after she agreed to have sex with him, she suddenly stopped talking. He was asked if he thought that change in her behaviour seemed strange to him. Another simple question.
42His response? “But I was silent too.”
43It was argued by the Crown in submissions that the Defendant seemed to be following a script and would not be lightly moved off it. I would agree. While I acknowledge there was a language barrier in this case, and that there was at one point some confusion over how the questions put to him were being interpreted, there is no evidence to suggest his lack of facility with English prevented him from answering straightforward questions. At other times in his testimony, he asked for clarification when he didn’t understand something. He did not do that when asked the questions I’ve noted. Instead, he kept repeating the same non-responsive answers.
44I also have difficulty with the narrative plausibility of his evidence. At the risk of being repetitive, I will again review his account of their meeting.
45He picked up the Complainant, who was a stranger to him. She told him she liked older men (“like him”, he said) and so he immediately suggested sex in a parking lot. She agreed without hesitation.
46When they got to the lot, he went to the back seat. They started kissing each other. She put his hand on her breast and asked him to rub her vagina. According to what the Defendant said he was expecting, all was going according to plan. He put his hand under her skirt and touched her underwear. He said it was tight. He did not testify to trying to move the underwear or get around it. Instead, he withdrew his hand entirely. He then kissed her again but she did not kiss him back. He stopped and slid away from her, to the opposite end of the back seat.
47What happened? Without a word being spoken aside from the Complainant asking him to rub her vagina, they went from amorous to completely separate. He never asked why she didn’t kiss him, she never asked why he pulled away. But for some reason, she was no longer a willing participant. When she didn’t kiss him back, he understood she was no longer interested in proceeding.
48So what was her first action after failing to kiss him back? He said she asked for his phone number. Even though he had been clear with her that this was a one-time rendezvous, he said she wanted to call him in the future. He refused to give it to her. Instead, he told her to get out of his car. He gave no explanation for his own sudden disinterest. Sex in the parking lot was his idea. When she suddenly lost interest, apparently, he did nothing to find out why. She responded to him refusing to give her his number and telling her to leave by leaning over, putting her hand on his face, and saying, “you’re nice, I like you”.
49Respectfully, his account makes no logical or narrative sense whatsoever. First, he says they’re both willing participants. Things start off well. He then stops trying to touch her as she asked, and she stops kissing him. At that point, for whatever reason, the attraction of the moment has seemingly passed. But then, after refusing to kiss him back, she asks for his number? And after he says no and tells her to get out of the car, she touches his face and says, “you’re nice, I like you?” That is absurd. His evidence appears to me to be more concerned with convincing me of her consent than with providing an honest account of their time together.
50For the same reason I do not believe the Defendant’s evidence, it also does not leave me with a reasonable doubt. I remind myself that there is no burden on the Defendant to provide any explanation at all in order to raise a reasonable doubt. The burden is always on the Crown to prove their case beyond a reasonable doubt. I should not consider if his evidence could reasonably be true as that would imply a burden on him to persuade me. There is no such burden (see: R. v. Rattray, 2007 ONCA 164, [2007] O.J. No. 884 (C.A.)).
51I find the Defendant is not a credible witness for the reasons I have set out. His account is internally inconsistent and illogical. I reject it. I neither believe it nor am I left with a reasonable doubt by it.
52I find the Complainant testified clearly and candidly. Her evidence was not perfect, but on the central points it was consistent. She acknowledged hearing the Defendant mention “fun one time” or words to that effect, and admitted she said “maybe one time” knowing he was likely talking about sex. This is a significant admission that could conceivably work against her. She also admitted, after the alleged assault, that she still asked the Defendant to driver her home. On the surface, this seems incongruous with what she said had just taken place. But she did not hesitate to acknowledge she did it.
53She also testified that she did not say the word no until later in their interaction, and even then, she wasn’t certain she did. She said it may have been said when he was touching her vagina over her underwear. Like her saying “maybe one time” initially, only saying no near the end of the incident could potentially weaken her evidence. Regardless, she did not try to minimize this point.
54Counsel specifically brought up another point that I will address. The Complainant could not say definitively if she’d driven to the party that night. Her lack of memory on that point does not trouble me. It is a peripheral point that is not relevant to the allegations. She testified that if she drank any alcohol, she would not have wanted to drive. So either she called for a ride because she’d been drinking earlier in the night and didn’t want to drive, or she called for a ride because she had no other way home. The difference is not relevant to my assessment.
55Taking all of the Complainant’s evidence into account, I find her to be a credible witness. She was not shaken on cross-examination. She made admissions that could be interpreted as against her interest. At no point did she try to embellish or shade her testimony to make the Defendant appear worse. As an example of that last point, the Complainant was asked if she received a text from the Uber app after the Defendant parked in the lot. She clarified that it was a notification. She then said:
WITNESS: …But I didn’t answer because I was afraid that he would see me fidgeting with my phone and get, uh, get more aggressive. Not more aggressive, but aggressive.
56Leaving her answer as “more aggressive” would suggest she was saying he’d been aggressive to that point. She was very careful and stepped back from that statement. In my view this is a hallmark of a credible witness trying to be honest with the court.
57When the Complainant says she did not consent to the sexual contact that occurred that night, I believe her. I accept her account of what happened in the Defendant’s vehicle. I find as a fact that the Complainant did not consent to the Defendant’s actions. The actus reus of the offence has been established. The answer to the first issue is no.
58I want to return to her admission of saying “maybe one time” to his suggestion. I will address the legal significance of this admission when I consider the second issue in this case, but I see the point as sufficiently important to merit further discussion.
59Context is important when assessing a person’s conduct. This is especially so when that assessment is taking place years later in the quiet of a courtroom. What a witness says is important. Why they say it, and the circumstances surrounding their words, are just as significant.
60The Complainant had just gotten into a stranger’s vehicle. She was alone. It was very late at night. She was trusting, through the officiality and reliability of the Uber rideshare service that she would be ferried home safely. Within moments of the ride starting, however, the driver started making comments that left her “creeped out”. At this point, he was in control. He was driving. She testified to having heard similar comments before, and that she would usually just laugh them off and say something to end the conversation. I place no substantive significance on her saying “maybe one time” in answer to his suggestion of anonymous sex in a car. It is hardly surprising to hear that her fear, as he began driving away from her house after making those comments, limited her ability to respond meaningfully. I find as a fact that she was in a very vulnerable position, and only trying to nip a potentially bad situation in the bud.
Issue 2: Did the Defendant have an honest but mistaken belief in communicated consent by the Complainant?
61Even if a complainant does not actually consent, it is possible that a defendant could be under a misapprehension on that point. If a defendant has an honest but mistaken belief in the communicated consent of the complainant, they may be entitled to an acquittal. The question to be asked at this stage of the analysis can be found at paragraph 90 of the Supreme Court of Canada decision in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33:
Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions" (ibid., at para. 47).
62This is not, strictly speaking, a positive defence that would place any kind of burden on a defendant. It is a denial of the mens rea of the charged offence. The burden remains on the Crown to prove a defendant’s guilty mind beyond a reasonable doubt.
63That said, before a defendant can argue he had an honest but mistaken belief in communicated consent, he must first show an air of reality to that claim. Is there evidence on which a properly instructed jury, acting reasonably, could acquit? If the answer is yes, there is an air of reality to the claim. If the answer is no, there isn’t (see: R. v. Cinous, [2002] 2 S.C.R. 3 at par. 49).
64Justice Moldaver in Barton provided the following summary of the issue relevant to an honest but mistaken belief in communicated consent at paragraph 121:
An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to the defence. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent. This Court recently confirmed that where there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent, the defence of honest but mistaken belief in communicated consent must not be left with the jury (see R. v. Gagnon, 2018 SCC 41).
65At the air of reality stage, I must consider if there is any evidence the Defendant took reasonable steps to ascertain the Complainant’s consent and that he honestly believed she had communicated consent. Both must be present. At paragraph 104 of Barton, Justice Moldaver said the following:
Section 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent -- no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time (citations omitted)
66Again, context is important. When deciding if there is any evidence the Defendant took reasonable steps to ascertain the Complainant’s consent, I must first consider what those reasonable steps could have been. Justice Moldaver confirmed that the definition of reasonable steps in a sexual assault case is not universal. They can and should be adapted to different situations. This is from paragraphs 108 and 109:
108 It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.
109 Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person's bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care -- mere lip service will not do.
67What is reasonable in one situation may not be reasonable in another. But things like silence or ambiguity cannot be equated with communicated consent.
68Turning to the evidence of this case, the steps he took to ensure communicated consent were as follows:
(1) He received an answer of “maybe one time” when he suggested sex; and
(2) The Complainant did not question why he turned left onto Cabana instead of right.
69The Defendant did nothing else to ascertain the Complainant’s consent. When he parked and got in the back seat, he did not say a word to her. He took no other step to ensure she was agreeing to what he had suggested.
70As ambiguity and passivity cannot be relied on as a basis for consent, neither can obtaining ambiguous or passive responses be considered reasonable steps.
71Engaging in the contextual analysis set out by Justice Moldaver, I find the standard for what would constitute reasonable steps in this specific case are elevated. The parties were strangers to each other and had never communicated before that night. There was a language barrier between them. The Defendant was in a position of control over the Complainant as he was the one driving the car. The sexual conduct being suggested was a random, one-time act the Defendant envisioned taking place in the back seat of his car. All of these factors placed a greater burden on him to ensure the Complainant was consenting.
72In my view, there is no evidence of reasonable steps having been taken that a properly instructed jury, acting reasonably, could use to acquit the Defendant. The steps taken by the Defendant fell painfully short of what the situation required. The claim of an honest but mistaken belief in communicated consent falls at the first hurdle set out by Justice Moldaver at paragraph 121 of Barton. There is no air of reality to the claim.
73As the defence of an honest but mistaken belief in communicated consent is not legally available, the answer to Issue 2 must be no.
Result
74The Crown has proved both the actus reus and the mens rea of the charged offence beyond a reasonable doubt. The Defendant will be found guilty.
Released: 9 December 2024 Signed: Justice S. G. Pratt