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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
DATE: 2025-01-09
Toronto Region
Ontario Court of Justice
Between:
His Majesty the King
— and —
Sharmake Sheikh
Before Justice Michael Waby
Heard on 25th and 26th November, 2024
Reasons for Judgment released on January 9, 2025
V. Di Iorio .................................................................................................................. for the Crown
C. Cotton-O’Brien ................................................................................................... for the Accused
Overview
[1] Sharmake Sheikh is charged with one count of sexual assault as against C.N. The parties, who were previously unknown to each other, met in the early hours of the morning at an after-hours club in downtown Toronto.
[2] The sexual assault is alleged to have happened in the early hours of July 22-23, 2023 and is alleged to be a course of conduct that commenced shortly after the complainant and accused began travelling in a cab together and which concluded shortly after the accused dropped Ms. N. off at a nearby apartment building.
[3] Mr. Sheikh pleaded not guilty.
Admissions and Agreed Facts
[4] The following admissions were made at trial: identity, date, jurisdiction, continuity of surveillance video and the continuity of the Sexual Assault Evidence Kit that was prepared in this case.
[5] It was also agreed as between the parties that at the time of the allegations the complainant, Ms. N., was not a resident of 99 Howard Street, Toronto which is the apartment building she was subsequently dropped off at. It is also agreed that the DNA of the accused was recovered and identified from a swab that was taken from the complainant’s left breast.
Overview
[6] The case for the Crown is advanced through the testimony of the complainant Ms. N., as well as that of Benedict Cumberbatch, a gentleman who encountered the complainant at his apartment building and also through the introduction of video evidence that was entered as an exhibit at the trial. Mr. Sheikh testified in his defence and called no additional evidence or witnesses.
[7] It is common ground between the parties that the Crown’s case stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this trial.
[8] The test that governs the analysis of credibility in this context is proof beyond a reasonable doubt. It was explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and other case law as follows:
- If I believe Mr. Sheikh’s evidence, I must acquit him.
- Even if I do not believe his evidence but I am left in reasonable doubt by it, or any of the other evidence, I must acquit him.
- Finally, even if I am not left in doubt by his evidence, I still must consider it and all of the evidence and ask myself, on the basis of the evidence that I do accept, whether the Crown has proven guilt beyond a reasonable doubt. Proof beyond a reasonable doubt goes hand in hand with the presumption of innocence which is a fundamental principal of our system of justice.
- The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense.
- I may accept some, all or none of a witness’ evidence.
- To be clear, it is not sufficient that on the whole of the evidence I am satisfied that Mr. Sheikh is probably guilty and a criminal trial is not a credibility contest. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances a judge must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy the court of the guilt of the accused beyond a reasonable doubt.
- In R. v. J.H.S., 2008 SCC 30, the Supreme Court qualified the W(D) instruction with an additional prong, partly in recognition that a trier of fact “may believe some, none, or all of the testimony of any witness, including that of an accused” (para 10). This prong is that where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal (paras. 11-12).
- Put another way, it reflects that the trier of fact must not treat “conflicting testimonial accounts” as a credibility contest, in the sense of deciding whether they accept one or the other. “The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt”: JHS, ibid at para. 13.
- The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).
Issues
[9] The central issues in this case before me are those of reliability and credibility. The complainant and the accused presented two diametrically opposed accounts of the alleged events at trial. Simply put, it is the Crown’s position that the accused sexually assaulted the complainant and Mr. Sheikh’s position that Ms. N. consented to any sexual activity with him or that in the alternative he had an honest but mistaken belief that she gave her consent.
Summary of Relevant Evidence
[10] In addition to the Admissions and agreed facts, the following viva voce evidence was tendered at trial.
Viva voce Evidence
Evidence of C.N.
[11] Ms. N. testified that on the date of the alleged incident she attended an after-hours club near Parliament Street in downtown Toronto in the early hours of the morning. She was planning to meet friends there and did so. It was her evidence that while she was sitting with friends, the accused approached her and started talking to her. She testified that she initially ignored him and focused on her phone as she was not interested in him. Yet despite this, the accused kept asking her questions, such as how tall she was. The accused then left her alone but at closing time he returned to her booth and began speaking to her again.
[12] It was her evidence that the accused placed his arm around her shoulder and neck as she was waiting for her friend and that they began talking about their respective days and discovered that each had attended Afro-Fest the previous day. Ms. N. testified that she had ordered an Uber and was planning on going home and that the accused effectively walked her out of the club with his arm around her and they exited onto Parliament Street together. She gave evidence that the accused told her that he had a driver and would take her home and that as they were walking on Parliament Street, he continued to keep his arm around her.
[13] She testified that she told the accused that she had her own ride coming and did not need a ride from him. She described feeling confused at this stage as she was not sure of the accused's intentions and that at some point, the accused pointed to a car that he said had his driver in and that he then walked her towards the car, opened a rear door and told her to get in which she did.
[14] Ms. N. gave evidence that she could not recall the exact words the accused had used and that things seemed to happen fast but that once she was seated in the rear of the car, she felt nervous and scared. She described sitting behind the front passenger seat and the accused getting in next to her behind the driver’s seat. The accused then asked her for her address and told the driver that he was to take her home. She described moving across the rear of the car to put some distance between her and the accused and then Mr. Sheikh moving closer to her and began ‘getting touchy’.
[15] Ms. N. gave evidence that she came up with a fake address of 77 Howard Street and provided that to the accused as it was close to where she lived but not her actual address. The driver then put the address in his phone and began to drive. She then testified that as the car set off the accused became very touchy and leant over and kissed her on the lips and began touching her all over her body including on her breasts and her thighs.
[16] She described there being very little conversation by the accused, but she told him she did not want to do this and kept trying to push him away. However, he kept getting closer and by the time the car reached Gerard Street not far from the club, the accused was touching her breasts and pulled down her top and tried to suck on her breast. Ms. N. told him to stop and pulled up her top and she recalled making eye contact with the driver who looked at her in the rearview mirror but did not do or say anything.
[17] Ms. N. estimated that the accused kissed her on the mouth approximately 5 times and she felt it was aggressive like he was trying to bite her lip and at one point, he grabbed her neck and pulled her in towards him. She testified that she was wearing a spaghetti top that was easily pulled down and that the accused pulled it and her bra down and then sucked on her breast.
[18] She also testified that the accused tried to force her to touch him, that at one point he looked like he was about to unbuckle his pants and grabbed her hand multiple times to place it on his penis. She further testified the accused was pulling her head towards her penis. It was her evidence that she repeatedly told him to stop but he just kept trying throughout the whole ride and he continued to touch her despite her protestations. She described the accused being very different from how he was in the club where he had seemed nice.
[19] The complainant gave evidence that once the driver turned on to Howard Street, he stopped at the first apartment building he saw which was not the fake address she had previously given. Nevertheless, she saw this as her opportunity to get out of the taxi which she did. The accused also got out with her and she testified that she was trying to say thank you for the ride and that she was now going home.
[20] It was her evidence that the accused kept asking to come back to his place and then after they stood on the sidewalk, they both began walking towards the apartment building that the driver had dropped them outside of.
[21] The complainant testified that she just wanted to make it look like she was going home, she planned to go to the door and pretend to open it and hope that the accused would stay with his car but he did not. She asked him if they could exchange details on social media in the hope that he would take the hint but the accused told her he was too old for social media and asked for her phone number.
[22] The complainant testified that she did not want to give the accused her phone number and ask him for his number and name to put them in her.
[23] The complainant testified that they walked from the car to the apartment and that the accused indicated to her to open the door to the building but she could not as she did not live there. The accused told her to put the code and the complainant tried to play for time and testified that that is when she asked him about exchanging social messaging details. It was her evidence that she was trying to get out of the situation but she did not know how as the accused was waiting for her to open the door to let him in and that she was becoming increasingly scared.
[24] Ms. N. testified in cross-examination that they left the club together at around 6:00 a.m. She agreed that she had been drinking but not heavily and that although it was late, she did not feel intoxicated. She believed she arrived at the club at around 4:00 a.m. and had had two or three drinks in total at the club. She testified that when he finally departed the accused said to her “I'll spare your ass” and tried to kiss her before he eventually walked away. The complainant gave evidence that this last comment by the accused made it clear to her as to what his intentions were after everything that had happened and that she felt things could have become much worse. She described it as adding to the shock that she was feeling.
[25] In cross-examination, the complainant agreed that video footage outside of the apartment building showed her smiling at one point and briefly taking the accused’s hand. She also agreed with defence counsel that at one point she was seen laughing. The complainant testified that when she was doing this, she was trying to distract the accused and keep the peace. The complainant gave evidence in cross-examination that she had not drunk much alcohol at the festival she had been to the day before and that the festival was more about food than alcohol.
[26] Her recollection was that she had one to two drinks at the club she attended before meeting the accused. She testified that she was not intoxicated. She rejected the suggestion that the accused bought her a drink at the club when she met him.
[27] When asked by defence counsel what they had spoken about in the club when they met, the complainant testified she could not recall specifics but she knew the accused had asked her about her day. It was her evidence that she had tried to pull away from him when he had his arm around her, but was unable to do so. She agreed that the accused did not push her into the car and she agreed with defence counsel that throughout the incident she had access to her phone, which was not taken from her by the accused at any point.
[28] She agreed with defence counsel that it was possible she had told the police that she had cancelled her Uber ride, but could not recall. She also agreed with defence counsel that if she was confused about some details, it is possible that that may have been because of her alcohol consumption. When asked by defence counsel why she got into the car with the accused, the complainant testified that “she felt cornered and didn't feel she had space to walk away from him”.
[29] When asked by defence counsel why she had chosen the false address that she had given, the complainant responded that she picked that particular address as she had needed to provide a fake address before and it was not far from where she lived. When asked why she did not text anybody for help on her phone when she was in the car, the complainant testified that this was not realistic as the accused was sitting right next to her and could see her phone. She agreed that she did not say anything to anybody as she was exiting the club or seek help from them at that point.
[30] Defence counsel suggested that the accused’s comment of “I’m going to spare your ass” had changed her interpretation of what had happened beforehand and made her reinterpret the events in the taxi differently. The complainant disagreed with this suggestion. Defence counsel then went on to suggest this comment was not in fact made. Again, the complainant disagreed.
[31] Ms. N. disagreed with defence counsel’s suggestions that she was dancing with the accused in the after-hours club and was drinking with him or that she took shots from the bottle that he had purchased. She further rejected the defence suggestion that she had willingly engaged in heavy ‘making out’ with the accused in the back of the taxi. She rejected defence counsel’s suggestions that she had not told the accused to stop his sexual behaviour in the rear of the taxi. She also rejected the suggestion that she had not pushed him away. She further denied a defence suggestion that the reason she had become angry with the accused was because she had become aware that he had received a phone call from another woman. She agreed video from the apartment building lobby showed her kissing the accused once and testified that she was looking for him to leave and that she kissed the accused in response to his request to “give me one last kiss” and that she did so to try and make him leave.
Evidence of Benedict Cumberbatch
[32] Mr. Cumberbatch was an occupant of the apartment building at which the accused dropped off the complainant and outside of which video footage captured a significant portion of their interactions. Mr. Cumberbatch testified that he was on his way to do laundry and through the glass doors of the apartment building he noticed the complainant and the accused outside. Some five minutes later, he returned through the lobby and again looked through the glass doors and saw the complainant.
[33] He described her as looking nervous and pulling at the doors to the building seeking entry. Mr. Cumberbatch let Ms. N. into the building, he testified that she seemed to be in the company of the accused and that she seemed ‘visibly shaken’. He asked her if she needed help to which she replied ‘yes’ and Mr. Cumberbatch advised her to call 911 if she needed help. Ms. N. subsequently did this.
Evidence of Sharmake Sheikh
[34] The accused, Mr. Sheikh, testified that he arrived at the club at around 3:45 a.m. to meet a friend who had previously texted him. It was his evidence that he had been at another venue from approximately 12:00 a.m. to 3:00 a.m. He arrived at the after-hours club by cab and travelled there alone. He testified that when he arrived there, he saw an older white male outside with whom he spoke who indicated that he was an Uber driver. Mr. Sheikh testified he took down the man’s details and he then went into the club where he saw his friend and some other people there.
[35] The accused testified that he chatted with friends. He bought a bottle of liquor and believes that other people he was with purchased liquor as well. It was his evidence that the waitress said it would take some 20 minutes for service and while this was happening, the accused was checking out who else was in the club. Mr. Sheikh testified that whilst he was looking around the room, he “locked eyes” on the complainant, whom he described as looking at him the whole time from where she was seated in her booth.
[36] Mr. Sheikh testified that he invited her to come over and she did so and sat down with him and his friends. He described the complainant as being flirtatious and he gave her a shot of alcohol from the bottle that he had ordered. It was his evidence that the complainant said to him “As soon as I saw you, I wanted to talk to you” and that they then began to talk about their respective days.
[37] The accused testified that there was music playing in the club and he asked the complainant if she wanted to dance and that they got up and danced together. The accused described the dancing as “like winding” and that the complainant danced closely to him and that they danced for two songs. He testified that she was complimenting him and was not moving away from him as he danced closer to her.
[38] It was his evidence that he felt there was a spark and that the complainant was excited to talk to him. He gave evidence that he asked her if she was with someone and she said “no”. It was his evidence that they had two or three more shots together and that he told the complainant to pour herself as much drink as she wanted from the bottle he had bought.
[39] Mr. Sheikh testified that they then got up and danced again together in a manner that he described as “face to face, eye to eye”. He testified that they then kissed, although he could not recall who initiated it. He described it as feeling ‘mutual and passionate’ and said that he tried to go with the flow. At some point, the accused testified he got up to go to the washroom and the complainant grabbed him and said, “Don't leave, you're mine for tonight”.
[40] The accused testified that the complainant then went to the washroom at some point and that when she returned, she discovered her friends had left. When the lights came on in the club, the accused testified that the complainant said to him, “I want to go home, I was supposed to go with my friend.” Mr. Sheikh testified he told her “That’s no problem, I can take you home” to which the complainant agreed.
[41] The accused testified he had a bottle in one hand while they were talking and that when they went down the staircase, he held her hand to make sure she was okay as they left the club. He testified his arm was around her shoulders and not her neck and that he had his arm placed here because he felt they had a rapport. He testified the complainant did not pull away from him.
[42] As they exited the club, the accused testified that he was looking for a ride and the complainant said to him she had a place they could go and hang out. The accused asked her if they could “Chill, chill” and that he believed the complainant knew what he was implying which was that they were going to go back and have sex together. It was his evidence that the only reason he felt this was because of how sensual the complainant was with him at the club. The accused testified that he was looking for the Uber driver he had spoken with earlier when they left the club and that they walked to this vehicle when he saw it. He gave evidence that he opened the door and the complainant got in and he asked her what address they were going to and he gave this address to the driver.
[43] The accused testified he had not used the Uber app as he was planning on paying the driver in cash. Mr. Sheikh then testified that he and Ms. N. were holding hands and began kissing and making out on the rear seat of the motor vehicle. He testified that there was mutual kissing and that the complainant was groping his thighs and genitals.
[44] He said he was kind of watching the driver to make sure it was okay as he did not want to upset the driver. The accused gave evidence that before they got to the address the complainant had given him, he got a phone call from a friend of his. It was his evidence the complainant could hear this conversation was with a woman and that she became upset and asked him why this woman was calling him as and told me “I was hers for tonight”. He testified that the complainant appeared upset and believed he was the woman's boyfriend and did not believe his denials. The accused testified that he tried to reassure her and told her “if you're going to act like this, maybe they shouldn't see each other”. He testified that once he said this, the complainant then calmed down.
[45] Mr. Sheikh gave evidence that the complainant said she still wanted to be with him but she did not trust any other females. It was his evidence that he reassured the complainant and that after about a minute, she got over it. He testified that once they arrived at the apartment building, they got out of the cab and walked towards the building and the complainant was using her phone and that he believed she was trying to contact her friends inside the apartment.
[46] He testified that he took the complainant’s hand as they had been having a great time and “a hot session inside the car”. He offered his hand to her and she took it. When asked what was going through his mind, Mr. Sheikh testified “nothing much”. When asked to describe the complainant's demeanour, the accused repeatedly described the complainant as being ‘playful’.
[47] The accused described the vibe between him and the complainant outside the apartment building as the same as it had been in the club and in the cab. The accused testified that he gave the complainant his phone number and that he expected to hear from her as he felt that they had a connection. He testified that he felt the complainant was pursuing him the whole time and that she was attracted to him. He agreed that he was attracted to her and when asked whether he would have wanted to have seen her again, his evidence was “Maybe, maybe not”. She said she had a situation with someone.
[48] In cross-examination, the accused testified that he could not recall the name of the Uber driver he had spoken with or his phone number. The accused testified that when he saw the complainant in the club, he believed she was interested in him and that she had locked her eyes on him. It was his evidence that they were initially dancing in their own sections in the club, which also had a separate section for strippers. It was his evidence that the complainant came over from her booth with a female friend and began talking to him. The accused testified because of the complainant behaviour with him in the club, which included, on his evidence, dancing and kissing this was why he felt confident to put his arm around her and lead her to the motor vehicle outside.
[49] Crown played video footage to the accused which showed him and the complainant exiting the club and subsequently locating a brown Audi SUV that he and her got into. The Crown then played video footage from Exhibit 3 which showed the brown Audi SUV pulling up outside the apartment building.
[50] The accused agreed with the Crown that the video footage showed him and the complainant standing by the motor vehicle and talking for some time. It then showed the accused hugging the complainant. The Crown suggested that the complainant had told him she wanted to go home and that that was the end of the night. The accused disagreed and testified that the hug was him reassuring her because of the phone call he had received from his female friend. He agreed with the Crown’s suggestion that it was his impression at this point that the complainant wanted to have sex with him.
[51] The accused testified he did not recall saying to the complainant “let's go up”. When asked whether this is what the video showed, the accused testified “could be”. When the Crown suggested to Mr. Sheikh that the video showed the complainant placing her palms on his torso to hold him back from her, Mr. Sheikh described this as, “a playful thing and that Ms. N. was doing it the whole time and that they were pulling at each other.” He described the complainant as still being interested in him and being playful. When the video showed the accused grabbing Ms. N.’s face and her pushing him away, he also described this as being playful.
[52] When the Crown suggested to Mr. Sheikh that the video showed him reaching to the front of the complainant’s top with his hand and pulling it where her breasts were, the accused disagreed. He agreed with the Crown that the video showed him grabbing her top and pulling it down and the complainant pulled away and moved his hand.
[53] The accused testified that this was another example of them being playful and engaging in banter. He agreed the video at this point had not showed the complainant pulling the accused towards her. He did agree it had shown him grabbing her around the neck, her taking steps backwards and him pulling her towards him. The accused described this as another example of them being playful. The accused testified that he did believe the video showed the complainant pushing him away.
[54] When the Crown suggested to the accused that the video outside the apartment building clearly showed the complainant trying to leave and go home, the accused disagreed. The accused agreed with the Crown that at one point he motioned to the complainant to turn around and he “checked her out”. He disagreed with the Crown suggestion that he wanted one last look before the evening was over.
[55] He also disagreed with the Crown’s suggestion that the video showed him putting his hand down the back of the complainant's pants. It was the accused's evidence that the video simply showed his hand on her waist. When the Crown suggested to Mr. Sheikh that the video showed the complainant remove his hands, the accused again disagreed and testified that this showed the complainant trying to pull him into her. He testified, “Quite frankly, if she didn't like it, she wouldn't have pulled me in.”
[56] The accused disagreed with the Crown suggestion that he asked the complainant to go upstairs and that the complainant was not motivated to go into the building with him. He denied the Crown's suggestion the complainant was repeatedly saying “no” and testified at no point did the complainant say they were not going into the building. The accused denied the Crown’s suggestion that he had uttered the phrase “I'll spare your ass.”
[57] The accused disagreed with the Crown’s suggestion that the video showed him returning to the complainant after they had said goodbye and him kissing the complainant while she tried to escape from his grip.
[58] After a lengthy pause, the accused also disagreed with the Crown suggestion that the video showed him grabbing the complainant’s left hand and trying to pull it to where his penis was. The accused did agree with the Crown that the video showed him pulling the complainant’s top down again and that he was seen on the video to grab the complainant’s backside.
[59] When it was suggested to him that whilst he was kissing the complainant at this point, she was trying to lean away from him, the accused testified “That's just the angle of the video”. The accused agreed that the video then showed him grabbing the complainant by the neck and pulling her towards him to continue the kiss. When the Crown suggested that the video showed the complainant pushing his hand away, the accused testified “We had this playful back and forth for the whole time.”
[60] The accused denied that the video footage showed him gesturing to the complainant to let him into the building. The accused testified that the complainant did not ask him for his social media details. When asked at what point he had given the complainant his phone number, the accused testified he had done so in the car but could not remember if it was at the beginning or end of the journey.
[61] The Crown suggested to Mr. Sheikh that the entire video showed that he was making unwanted advances to the complainant. The accused testified I asked her if this is okay and she said “I’m okay”. When asked at what point this occurred in the video, the accused testified. “Not in the video. I guess it was more in the car in the club.”
[62] When asked by the Crown if he was hoping to pursue something with the complainant, the accused testified “No, she was trying to pursue something with me.” When asked by the Crown if he was happy to go along with that if it included intercourse with the complainant, the accused responded “no”. When asked if he was happy to pursue the complainant with the goal of sex, the accused testified “no”.
[63] In cross-examination, the accused denied that he said he believed he would be having sex with the complainant and asked the Crown to reframe this question in a less tricky way. The accused then testified that the complainant had told him she wanted to go back to her place with him for sex and that this is what his phrase “chill, chill” meant. When the Crown again put to Mr. Sheikh that he was happy to go along with that, the accused testified “Happy in what way? It was implied and she had said it”. When asked about the Crown about the playful banter, he had described the accused described it as playful sexual banter throughout their whole time together.
[64] In response to the Crown’s suggestion that what he described as sexual, playful banter was more accurately shown on the video as him making advances and the complainant pushing him away. The accused testified “Not in the way you're saying. She didn't reject any sexual back and forth at any time” when asked by the Crown to explain what the video showed when the complainant was seen to push him away the accused responded “I don't know”, but he rejected the Crown's suggestion that the complainant told him she did not want to do any of this.
[65] The accused rejected the Crown’s suggestion that despite all the complainant’s actions, he had ignored what she was doing and saying and only gave up when it was clear she was not going to let him into the apartment building. The accused also rejected the Crown's suggestion that it was clear to him that the complainant did not have any sexual interest in him once they were in the Uber. The accused testified that it was clear that the complainant wished to return home with him.
Summary
[66] It is clear that there are two mutually inconsistent accounts of what took place in respect of the events that are alleged to have happened once Ms. N. and Mr. Sheikh met in the after-hours bar on Parliament Street.
[67] I am mindful that courts should not assume a credibility gap in a complainant in sexual assault cases because of inconsistencies in their evidence around minor issues which may have a legitimate explanation. However, on the evidence before me, I do find that it is likely that Ms. N. downplayed the exact nature and extent of her contact with the accused prior to them leaving the after-hours bar together.
[68] I accept that she was clear and consistent in the evidence that she gave on this portion of the events, however, her evidence as it relates solely to this portion of the events, appeared unrealistic and I am left in some doubt with respect to it both by her own account and the account of the accused. The accused was similarly clear and consistent and largely unshaken in his evidence as to his version of events in the club. I find it unlikely that based upon her evidence of negligible contact with the accused that she would have left with the accused in the manner they did and to have then gone together to the Uber. The reality is that the Court is unable to reconcile the two versions of events of what occurred in the club although I am mindful of the danger of artificially parsing the evidence into discrete pieces rather than considering it as a whole.
[69] While this portion of the complainant’s evidence may impact her credibility somewhat, I do not find that she was lacking in credibility on the events that she testified to that occurred once she and the accused got into the cab. Whether Ms. N. felt that by acknowledging greater contact with the accused in the club would create the impression that she was a willing participant to the events that followed, I cannot say. However, the courts have made it abundantly clear that consent to one particular act does not mean consent to a different one and such outmoded thinking has rightly been consigned to history. For example, consenting to a kiss or a close dance does not represent consent to any other subsequent sexual activity.
[70] As Crown counsel rightly submitted, consent is not about “testing the waters” and the court may look to both direct and circumstantial evidence to assist in determining the issue of consent as well as having regard to the provisions of section 273.2 of the Criminal Code. Credibility and reliability of a witness’s evidence are to be assessed in light of all of the evidence, [R. v. C.P., 2021 SCC para. 34].
[71] Mr. Cotton-O’Brien submits that the evidence establishes that any sexual activity as between the parties was consensual. In the alternative, he submits that the court should find that there was an honest but mistaken belief in consent on the part of the accused and that the Crown has not met its onus in this case.
[72] The Crown must prove that the accused intentionally touched the complainant and that the accused knew the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent. R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481. The accused’s perception of consent is part of the mens rea of the offence, including the defence of honest but mistaken belief in communicated consent R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, 376 C.C.C. (3d) 1.
Law and Analysis
[73] The admitted forensic evidence in this case makes it clear that sexual activity occurred as between the complainant and the accused in the cab in which they were travelling. The accused testified that this was consensual or in the alternative that the conduct of the complainant legitimately led him to conclude that she was consenting. The complainant testified that she repeatedly told the accused to stop and that he ignored her and continued to assail her with his unwanted advances.
[74] While there is no other direct evidence before the court to corroborate the events that occurred in the cab, there is significant video footage in the immediate aftermath of that journey, as well as circumstantial evidence on which the court can rely.
[75] Circumstantial evidence is “any fact from the existence of which the trier of fact may infer the existence of a fact in issue.” D. Watt, Manual of Criminal Evidence (2022) s. 9.01. Any such deduction must be logically and reasonably drawn. In R. v. Arp, 1998 SCC 769, [1998] 3 SCR 339 at para. 45, the Court framed the assessment of probative value as whether the circumstantial evidence pointing towards guilt was unlikely to be a product of coincidence.
[76] Whatever happened in the club between Ms. N. and Mr. Sheikh, it is clear that by the time the complainant found herself in the cab with him, she did not wish the accused to know where she lived nor did she wish him to come home with her. Almost immediately upon entering the cab, both Ms. N. and Mr. Sheikh testified that the complainant provided an address to the accused and the cab driver. It is part of the Agreed Statement of Facts that this was not the complainant’s address. This accords with the complainant’s evidence that she deliberately and immediately provided a false address to the accused because she simply wanted him to drop her off and end the night and no longer wished to spend any more time with Mr. Sheikh. By this point, she found herself in a situation from which she felt she could not otherwise safely extricate herself.
[77] The driver managed to locate a different address and building to the false one that Ms. N. provided but she nevertheless exited the cab with a view to ending her encounter with the accused. There is clear, compelling and high-quality video of the accused and Ms. N. following their exit from the cab that then captures their remaining time together.
[78] The footage in this case is compelling and is frequently at variance with the evidence of the accused. While I accept distress may be manifest in a variety of ways on the part of a complainant, not all of which are immediately obvious or visible, the fact that a complainant is not in tears or screaming for help does not in and of itself undermine their credibility.
[79] The video in this case makes for frustrating viewing. It is abundantly clear that the accused is determined to try and achieve his goal of engaging in sexual activity with Ms. N. He repeatedly manhandles her, paws at her and tries to cajole her into acquiescence over the course of several minutes while they are outside the apartment building. It is similarly clear that she is trying to placate the accused, not inflame the situation and to try and disengage on good terms. Her situation is made worse by the fact that Ms. N. is unable to access the building she pretended to occupy because she did not know the door code.
[80] The video clearly shows a number of actions by the accused. These include him clearly attempting to place his hand down the rear of the complainant’s pants as she pulls away, he also roughly grabs her top and exposes her breasts before the complainant rapidly covers herself up in obvious embarrassment. He also grabs her neck and pulls her towards him to kiss her while she places her hands up against his torso while they stand outside the doors to the apartment building.
[81] I reject the accused evidence on the events that occurred once he and the complainant had exited the cab and I contrast it with the video and observable facts. It is apparent to any dispassionate and reasonable observer that Ms. N. is a young woman receiving the unwanted attentions of a male and trying to fashion an escape in the safest way possible.
[82] I reject the accused evidence that the video discloses consensual, playful behaviour of a sexual nature by the complainant. The complainant repeatedly retreats or pushes the accused away from her when he makes contact with her and is seen to constantly try and disengage from Mr. Sheikh. I accept that at one point on the video Ms. N. briefly takes the hand of the accused after he had offered it to her and that near the very end of her encounter with him, she briefly submits to a kiss. In my view, these specific acts in the context of this incident support her evidence and the observable facts that she was doing all she could to try and end this encounter without inflaming her situation and it is clear she was effectively coerced into so doing.
[83] In addition to the observable actions of the accused and complainant regarding their physical encounter, the video also shows Ms. N. rushing into the apartment building the moment Mr. Cumberbatch opens the door to admit her. She does not linger and moves inside to safety as quickly as she can. I find this is also consistent with the evidence of Ms. N. and the fear and anxiety she described. Once inside, she contacted the police almost immediately.
[84] I also note the observations of Mr. Cumberbatch with respect to the apparent distress of Ms. N. outside the building which is supported by substantial portions of the video footage and the evidence of Ms. N.
[85] Although I have indicated that Ms. N. may have downplayed her level of contact with the accused in the club, I am satisfied that her evidence in all other regards was credible and trustworthy, and she presented as a credible witness. There is no evidence before me that would enable me to conclude that she, or indeed the accused, was obviously intoxicated. Neither of them exhibited any observable indicia of impairment in the video footage and I am not able to draw any reasonable inferences as to the level of intoxication of anyone shown in the video footage that was an exhibit at this trial.
[86] Ms. N. made reasonable concessions in some of her evidence. She did not guess or speculate or try and mislead the court and all the key elements of her evidence had the hallmarks of a truthful witness. Importantly, she was consistent and clear and unshaken on the key elements of her evidence as they related to the sexual assault and her clearly communicated lack of consent.
[87] By contrast, Mr. Sheikh presented as an increasingly evasive and unreliable witness. His credibility was substantially undermined by his refusals to acknowledge the reality of clearly observable actions on the part of himself and the complainant as shown on the video footage outside the apartment. His repeated characterization of the complainant’s actions and behavior as being playful and part of her sexual attraction to him are simply not sustainable.
[88] His evidence while in cross-examination became increasingly strained and evasive with repeated requests on his part to have the Crown repeat or re-phrase clear and simple questions. Indeed, Mr. Sheikh became almost pathologically reluctant to answer simple questions put to him as cross-examination continued. I do not accept defence counsel’s suggestion that the reasonable explanation for this was simply “nerves” on the part of Mr. Sheikh as someone who is unfamiliar with the court process. The accused presented his version of events in-chief in a clear and articulate manner and without the extensive evasion he engaged in during cross-examination.
[89] I also reject the accused evidence at the point that it relates to him and the complainant entering the cab. Aside from the evidence of the complainant, Mr. Sheikh’s evidence is manifestly inconsistent with the collaborative direct video evidence available to the court as well as the evidence of Mr. Cumberbatch. The accused evidence is manifestly not compatible with his observed actions.
[90] This substantially undermined his credibility and reliability with respect to his evidence as to what took place in the Uber. Seconds after he and the complainant exited the Uber, they are captured on video at the apartment building and it is clear the complainant does not wish to remain in his company and certainly does not wish to have sexual contact with him.
[91] Based upon his account and that of the complainant, it is clear that the accused was trying to impress the complainant by falsely claiming he had a personal driver at his disposal. The evidence is clear that the extent of this personal driver amounted to an Uber driver he had met who was readily available for hire by anyone who wanted his services. There is no crime in trying to impress someone through exaggeration but I am satisfied that Mr. Sheikh told the complainant that he had a private driver to try and enhance his standing in her eyes. I reject the accused evidence that he did not do so and this further undermines his credibility.
[92] I note that defence counsel submitted that the complainant retrospectively reassessed the context of the events of the night in question because of the phrase that she alleged the accused uttered of “I’ll spare your ass”. Defence counsel then also put to the complainant that Mr. Sheikh never uttered this phrase. Ms. N. rejected both of these contradictory suggestions. I find that Mr. Sheikh did utter the phrase “I’ll spare your ass” as he finally departed and that this is consistent with the sense of entitlement he exhibited during this incident. I do not find that there is any basis to conclude that this caused Ms. N. to reimagine what had occurred.
[93] The courts have long acknowledged that “no” does not mean keep trying. This is a reality that Mr. Sheikh would have done well to acknowledge and accept. He did not. I am satisfied that he repeatedly forced sexual contact on the complainant throughout the course of his contact with her from the point at which they both got into the taxi until he reluctantly departed from the apartment building.
[94] This behaviour extended to unwanted kissing and groping. I am also satisfied that it included the unwanted exposing and kissing of Ms. N.’s breast in the taxi. It also included grabbing her backside, trying to place his hand inside her pants, pulling her top down to expose her breasts, as well as pulling her towards him to enable him to kiss her. Mr. Sheikh’s behaviour exhibits a degree of entitlement completely at odds with the demeanour of the complainant as shown on the video.
Honest but Mistaken Belief in Consent
[95] The relevant question for purposes of this defence is this: Did the accused honestly believe that the complainant effectively said ‘yes’ through her words and/or actions? (Barton (SCC), supra at para. 90, citing Ewanchuk, supra at para. 47)
[96] While this defence was historically known as “honest but mistaken belief in consent,” the Supreme Court of Canada recently clarified in Barton (SCC), supra at para. 91 that in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct.
[97] As L’Heureux-Dubé J. stated in Park (1995 104 (SCC), [1995] 2 SCR 836), ‘[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary’ (para. 44 (emphasis in original)). Accordingly, the defence is now known as honest but mistaken belief in communicated consent. “This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent”: Barton (SCC), ibid at para 92.
[98] Essentially, honest but mistaken belief in communicated consent is a claim that the accused committed the actus reus of the offence while “mistakenly perceiving facts that negate, or raise a reasonable doubt about, the fault element”: Barton (SCC), supra at para 95. This defence arises only once the trier of fact is satisfied that the actus reus of the offence has been made out beyond a reasonable doubt; recall that the actus reus includes the complainant’s subjective lack of consent: R. v. Davis, [1999] 3 SCR 759 at para 81; see also Kirkpatrick, supra at para 102.
[99] In many cases, the complainant and the accused tell “diametrically opposed stories”; for example, the complainant will testify that she vigorously resisted while the defence contends that she was an active and willing partner. Honest but mistaken belief in communicated consent will not arise in such cases unless the accounts of the complainant and the accused can be “spliced” in such a way that the only material contradiction between them concerns not what happened, but their interpretation of what happened; there must be “evidence of a situation of ambiguity.” Where their evidence cannot be so spliced, “the trial becomes, essentially, a pure question of credibility” as to the complainant’s lack of consent: Davis, supra at paras 85-86. See also:
- R. v. Derksen, 2023 MBCA 85 at para. 32 (leave to appeal refused: [2023] SCCA No 501)
- Lafrance c R, 2017 QCCA 1642 at paras 84-86
- R. v. Flaviano, 2013 ABCA 219 (affirmed: 2014 SCC 14)
- R. v. Esau, [1997] 2 SCR 777 at paras 38-48
- R. v. Park, [1995] 2 SCR 836.
[100] The defence must have an air of reality. Although honest but mistaken belief in communicated consent is not “a positive defence,” it is akin to traditional criminal law defences in that it may be considered by the trier of fact only where it is found to have an air of reality. The test for an air of reality is whether there is evidence upon which a properly instructed jury, acting reasonably, could acquit if it believed the evidence to be true: R. v. Cinous, 2002 SCC 29 at para 65. A bare assertion by the accused that he believed the complainant was consenting will not suffice to lend an air of reality to an honest but mistaken belief in communicated consent. Rather, this assertion must be “supported to some degree by other evidence or circumstances”: Esau, supra at para 14; R. v. Osolin, [1993] 4 SCR 595 at 648-649; R. v. Bulmer, [1987] 1 SCR 782 at 790.
[101] Evidence raising an air of reality can come from the accused, the complainant, other persons, the factual circumstances of the case “or any other evidential source on the record”: Cinous, supra at para. 53. In determining whether there is an air of reality to this defence, the trial judge must “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”: Barton (SCC), supra at para 121. The defence cannot be considered by the trier of fact where “there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain that the complainant was consenting”: R. v. Gagnon, 2018 SCC at para. 2.
[102] Depending on the type of evidence on the record, the trial judge may need to engage in a limited weighing of the evidence when carrying out the air of reality test. However, he or she should not consider the credibility or reliability of witnesses, weigh evidence substantively, make findings of fact or draw determinate factual inferences at this stage of the analysis; nor should he or she assess the likelihood that the defence will succeed (Cinous, supra at para. 54). Rather, “[w]here the evidence […] requires the drawing of inferences in order to establish the elements of a defence,” the judge engages in a limited weighing to determine whether these elements can reasonably be inferred from the evidence. Any doubt as to the existence of air of reality should be resolved in favour of leaving the defence with the trier of fact: R. v. Cairney, 2013 SCC 55 at para 22; R. v. Pappas, 2013 SCC 56 at paras 22-26.
[103] Where there is an air of reality to honest but mistaken belief in communicated consent, the onus shifts to the Crown to negative the defence. Typically, the Crown will do so by attempting to prove beyond a reasonable doubt that the accused did not take reasonable steps. If the Crown fails in this, the trier of fact must still consider whether the Crown has proved beyond a reasonable doubt that the accused did not have an honest but mistaken belief in communicated consent. If the Crown fails in this, the accused must be acquitted: Barton (SCC), supra at para 123.
[104] Reasonable steps are a precondition to the defence of honest but mistaken belief in communicated consent. The air of reality test will not be met where there is no evidence that the accused took reasonable steps: Barton (SCC), ibid at paras 104 and 121; Gagnon, supra.
[105] Given my earlier findings with respect to the evidence before the court, I reject the contention by the accused that he took any steps to ascertain consent on the part of the complainant. I find Mr. Sheikh launched himself on a determined and sustained course of unwanted sexual conduct and did so in the face of clear rejection by the complainant. I am satisfied that the complainant clearly and repeatedly communicated her lack of consent to the accused both in the Uber and outside the apartment building and that this lack of consent would have been readily apparent to the accused. The reality is that Mr. Sheikh was determined to continue his behavior whatever Ms. N. said and he simply hoped to wear down her resistance.
[106] To the extent that Ms. N. briefly held Mr. Sheikh’s hand or submitted to a kiss at the end of this incident, I note that these occurred after a lengthy series of unwanted sexual contacts had already occurred and that the video makes it clear such actions were the product of a young woman being coerced into acquiescence. The reality is that there were no mixed messages being sent to Mr. Sheikh by Ms. N.
[107] The Crown submits that subjective lack of consent on the part of Ms. N. would and should have been apparent to the accused from her words and actions and that on the totality of the evidence before the court, Mr. Sheikh should be found guilty of sexual assault. I agree with the Crown.
[108] The evidence in this case points to the overwhelming conclusion that the accused had set his mind on pursuing and achieving a sexual encounter with the complainant once they left the after-hours club. It was only after sustained, varied and numerous efforts on Ms. N.’s part that the accused very reluctantly abandoned his attempts and finally departed, leaving her to escape to the relative safety of the apartment building with the help of an observant resident.
[109] For the foregoing reasons, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Sheikh sexually assaulted the complainant as alleged and I find the Crown has proved beyond a reasonable doubt that the accused did not have an honest but mistaken belief in communicated consent on the part of Ms. N.
[110] I find Mr. Sheikh guilty of sexual assault.
Released: January 9, 2025
Signed: Justice Michael Waby
