WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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.: Sudbury 4182-10

Date: 2012-06-19

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Aadesh Lovepreet Singh Lally

Before: Justice John D. Keast

Heard on: November 14, 15, 23, 2011 and March 20, 2012

Reasons for Judgment released on: June 19, 2012

Counsel:

Natalie Boivin for the Crown

Glenn Sandberg for the accused Aadesh Lovepreet Singh Lally

JOHN D. KEAST J.:

DECISION

1: INTRODUCTION

[1] The following is a description of an act of sex. In reading such, there are a number of questions raised:

• Does the male partner appear to have a reasonable level of experience in love making?
• Is he sensitive to the female partner's needs and pace of arousal?
• Is he 'alive' to satisfying his partner?
• Is the female enjoying this act of love making?
• Is he in tune as to whether she is 'ready' for intercourse?
• Is there anything in this description of the sex act associated with a particular world culture, to distinguish it from other cultures?
• Would you expect to find the female with multiple injuries following this act?

[2] He was sitting on the chair; she was sitting on the mattress. She was looking at him in a suggestive way. She invited him to join her on the mattress. They started holding hands and kissing each other. She took off her own clothes. He took off his clothes. She asked him if he had a condom. He complied and produced a condom. After taking off their clothes, they continued hugging and kissing. She lay on her back on the mattress and he started kissing her breasts. They were both becoming aroused. The kissing continued. He then started kissing her vagina. He then went back to her breasts and continued to kiss them. He says she was becoming aroused when he was kissing her nipples. The pace of her breathing was increasing. He performed oral sex on her and the pace of her breathing was increasing and she was now moving. She asked him to commence sexual intercourse. She was becoming increasingly aroused. He complied with her direction to commence intercourse and proceeded at a certain pace. She then asked him to go faster and faster.

[3] The accused Aadesh Lovepreet Singh Lally is charged that on or about […], 2010, he did commit a sexual assault on L.G., contrary to section 271 of the Criminal Code of Canada.

[4] The complainant and the accused had sexual intercourse. The issue is whether the intercourse was consensual. So stark is the two versions of the event, that one thing is clear – one of them is not telling the truth. Though there are many issues raised, the underlying issue permeating all other issues is that of credibility.

2: THE EVIDENCE

2:1 The Complainant – L.G.

[5] At the time of the incident, she was 20 years of age. She resides in North Bay, Ontario. She has some post-secondary education and was employed at a call centre. At the time, she had a boyfriend and was in a serious relationship for well over one year.

[6] One of her best friends was S.G.. S.G. turned 19 years old on […], 2010 the day before this incident.

[7] As is common for many 19 year olds who have finally reached that magic age, Ms. S.G. decided to party. Ms. G. drove from North Bay to Sudbury to join the festivities.

[8] She worked during the evening of […], 2010. At around 11:30 p.m. she drove to Sudbury. At 1:00 a.m. on […], 2010, she met up with Ms. S.G., Ms. S.G.'s sister and seven male East Indians, one of whom was the accused. Before the arrival of Ms. G., this group had already been partying.

[9] Ms. S.G. lived in an apartment unit in an apartment complex on E[…] Street in the City of Greater Sudbury. The accused, and three other males, also lived in an apartment on E[…] Street in the City of Greater Sudbury. The apartments in question were directly across the street from each other.

[10] Ms. G. met this group at approximately 1:00 a.m. on […], 2010. The group initially went to the apartment of the accused so Ms. S.G. could go to the bathroom. The group stayed there for five minutes.

[11] The group then went to a pizza business on E[…] Street. Ms. G. became the designated driver. She drove her vehicle to the pizza business. Also in the vehicle were S.G., Mr. Lally, and a close friend of Mr. Lally, who lived with him in the apartment on E[…] Street, Jatinder (John) Singh. At the pizza business, Ms. S.G. was the only one to exit the vehicle to go into the store. During this time, Ms. G. observed the two males in her vehicle were conversing mostly in Punjabi.

[12] When Ms. S.G. finished her business in the pizza store, Ms. G. then drove the four of them in her vehicle to Ms. S.G.'s apartment building wherein her vehicle was parked. These four people then walked across the street to the apartment building of Mr. Lally and his friend. By this time, it was approximately 2:00 a.m.

[13] Up to that point, Ms. G. observed that Ms. S.G., Mr. Lally and Mr. Singh were demonstrating signs of the consumption of alcohol. She smelled an alcoholic odour on the three of them and said they were "acting tipsy". Prior to arriving at the apartment of Mr. Lally she had not consumed any alcohol.

[14] She had no prior familiarity or association with either Mr. Lally or Mr. Singh. She had met them for the first time at 1:00 a.m. on […], 2010, one hour before this group of four entered the apartment unit of Mr. Lally.

[15] This was a two bedroom apartment. The furnishings were spartan. There were a couple of chairs and two mattresses in the living room.

[16] After entering the apartment unit she and Ms. S.G. sat on one of the two mattresses. Mr. Lally and his friend sat on the other mattress. The group watched videos on YouTube.

[17] Some 20 minutes after the four of them entered the living room, Ms. S.G., without saying anything, left the room and went into one of the bedrooms. A few minutes later, Mr. Singh, also left and went into the same bedroom. He likewise said nothing. Now the complainant and the accused were left alone in the living room. A few minutes after Mr. Singh left the living room to go into the bedroom, he came back into the living room to retrieve a condom that was in a bowl on a shelf.

[18] When the two of them were alone, Mr. Lally then moved closer to Ms. G.. He lay across her legs. This made her feel awkward. As he was lying across her legs, he told her he wanted to marry a Canadian girl because he thinks they are nice and helpful. He made a number of comments that she was beautiful. (He was in Canada on a student visa).

[19] She had to go to the bathroom but also did so for an interlude because she was uncomfortable with the conversation.

[20] She exited the bathroom and went back to the living room but the lights were now off in the living room. She did not really know how to react and was a little scared.

[21] It was difficult to see Mr. Lally. She went toward the mattress because she knew where it was. At that point she was pushed onto the mattress by Mr. Lally who took her hand and said "I have a condom on, feel".

[22] After being pushed she landed on her back. He was erect. His pants were down to his ankles. He was wearing a t-shirt.

[23] She was wearing jeans, tank top and shirt. As well, she was wearing panties and a bra.

[24] After he took her hand and directed it to his erect penis, she told him she did not want to "do it". He did not respond to this comment.

[25] He lay down beside her on the mattress. She demonstrated how he put his right arm across her breast area with his right hand coming to rest on her shoulder. He was on her right side. She told him she had a boyfriend and did not want to "do it". He said he did not want to hear about this.

[26] He kept telling her that deep down she wanted to "do it".

[27] With his right arm across her upper body and resting on her shoulder, she was unable to move for she was pinned down. He used the other arm to remove her clothing. She described her feelings as one of "shock" and repeatedly told him she did not want to "do it".

[28] Her top and shirt were taken off over her head. Her bra was pushed down below the breasts. The jeans and panties were also taken off.

[29] She tried to call out for Ms. S.G. but he bit her lip and stuck his tongue in her mouth. He also bit both nipples. The biting of these three areas was painful. When he was biting her, she was scared and shocked and did not know what to do. She was trying to squirm so he would not do anything else but it did not work.

[30] He performed oral sex on her for a few seconds. His tongue was touching her clitoris. He was attempting to hold down her legs in order to perform the oral sex and she was flailing her arms to prevent it. He gave up performing oral sex because she was moving too much.

[31] He then rose from the oral sex position and inserted his penis into her vagina. She was still lying on her back. He was thrusting and she kept trying to move her legs and squirm.

[32] She was finally able to push him off. She grabbed her clothes and went to the bathroom.

[33] Once in the bathroom she was in a better position to observe herself. She was bleeding from her vagina. She was not menstruating. She observed injuries to her vagina, nipples and lip. She put her clothes on and left the bathroom to go to the room where Ms. S.G. was. She was crying. The door to the room was closed. She spoke through the door and told her she had to leave. Ms. S.G. came out of the bedroom and the two of them went into the bathroom. She told Ms. S.G. what happened. She told her she was hurt, shocked and violated. Ms. S.G. was upset, worried and scared. They stayed in the bathroom for a few minutes.

[34] Ms. S.G. left the bathroom first. She could then hear Ms. S.G. yell. Ms. S.G. then came back into the bathroom with Ms. G.'s jacket. The two women left the bathroom together and walked down the stairs. They walked past Mr. Lally and Mr. Singh. Mr. Lally then followed them down the stairs and started apologizing to her by saying "I'm so sorry. I love you."

[35] The two women left the apartment together and went across the street to Ms. S.G.'s apartment. After a few minutes, for a more detailed observation of the injuries, the two left for the hospital. Police officers also attended the hospital. After the hospital, she went to the police station.

2:2 Cross-Examination of L.G.

[36] It was obvious to her, that Mr. Lally, because of his appearance, speech and accent, was not from Canada. She was aware he was in the country for a period of time on a student visa.

[37] She did not hear any sound from Ms. S.G. or Mr. Singh coming out of the bedroom, but she was not listening for any sound.

[38] At the outset of this incident, before she went to the bathroom the first time, she was uncomfortable with his physical proximity to her, but did not ask him to take his leg off of her. She did not extricate herself from the situation. She did not re-position her own body. She did not get up and sit on one of the chairs. He was not making any threats.

[39] When he was taking her clothes off, his own pants were down around his ankles. The two tops she was wearing did not have any buttons or fasteners. She was flailing her arms around to make it more difficult for him to take her top off over her head.

[40] He bit her lip more than once and stuck his tongue in her mouth a few times. She wanted to yell for help or yell for Ms. S.G. but the biting of the lip and inserting of the tongue in the mouth prevented her from doing so.

[41] Her jeans had a button and zipper fly and were tight. She wore a belt. At the point he was attempting to take her jeans off, she was kicking her legs in an attempt to make it more difficult to do so.

[42] She is 5'3" and weighs 125 lbs.

[43] In the few times he bit her nipples she cried out in pain.

[44] She did not scream or yell.

[45] She then agreed with defence counsel questioning that she called for Ms. S.G. to get in here and help. Again the questioner suggested to her that she called out to Ms. S.G. again and she did not come. The immediate response to this suggestion was "I didn't yell for help".

[46] She emphasizes she did not yell for Ms. S.G..

[47] The questioner pointed out the contradiction that after saying she did not call out for help, she then did call out for help. She said when she thought she was agreeing with the questioner, that he meant something else.

[48] She repeated, she did not call out for help to Ms. S.G..

[49] She made a small noise after he pushed her onto the mattress. She made noise when he bit her on the lip but did not know how loud it was.

[50] The questioner suggested to her that what they had was rough and crude sex but consensual. She denied this.

[51] The questioner suggests to her that in light of her injuries, she would owe an explanation to her boyfriend. In order to save face with the boyfriend, she had little choice but to go to the police which would help give credibility to her explanation as to what happened to her. She wrongly accused Mr. Lally of non-consensual intercourse in order to save face with the boyfriend. She strongly denied this scenario.

2.3 S.G.

[52] Ms. S.G. met Ms. G. in high school. They were close friends. Ms. S.G.'s 19th birthday was on the day before the incident, […], 2010.

[53] She met Mr. Lally in Sudbury. She also knew Mr. Singh. She met him through some friends. (She, Mr. Lally and Mr. Singh were students at C[…] College, a post-secondary institution in the City of Greater Sudbury).

[54] On the afternoon of her birthday, she was at C[…] College. She was there until 7:30 p.m. She had plans for the evening of her birthday. The plan was to celebrate with her sister and a number of friends, including Mr. Lally and Mr. Singh. The group went to bars during the evening of […], 2010.

[55] She met up with Ms. G. during the early morning hours of […], 2010. They met in a parking lot at a local bar. Mr. Lally and Mr. Singh were present. It was the first time Ms. G. met these two men.

[56] After attending the pizza establishment the group broke up. There were four left in the group. They went to the apartment of Mr. Lally and Mr. Singh.

[57] Prior to arriving at the apartment, she was feeling the effects of alcohol but did not believe such had an impact on the quality of her memory as to what happened that evening.

[58] She had been at this apartment in the past.

[59] The four of them went into the living room and socialized for a period of time.

[60] After a brief period of socializing, she left the living room and went into the first of two bedrooms, the bedroom closest to the living room, which was somewhere between 10 to 20 feet away. After a few minutes, John left the living room and joined her in the bedroom. He closed the door behind him. (They had sex).

[61] She heard no sound and no cry for help from the living room.

[62] She next saw Ms. G. when she came to the bedroom door crying and asking for her. She immediately got up and went to the door.

[63] Her initial observation of Ms. G. was one of crying and in a panic. The two of them went into the washroom. Ms. G. continued to cry in the washroom and she asked her what was wrong. She then described what happened with Mr. Lally.

[64] Ms. S.G. left the washroom and spoke to Mr. Lally. She was angry and asked him why he had done what she said he had done. He replied "But she loves me." She then replied to Mr. Lally "Are you stupid? She does not love you. She doesn't even know your name. You can't do that to someone who says no". She went back to the washroom.

[65] The two women left together and went across the street to Ms. S.G.'s apartment. The purpose of this was to have a better opportunity to observe Ms. G.. She took Ms. G. into the washroom and observed the bleeding from the vaginal area. The two of them then went to the hospital.

2:4 Evidence of the Forensic Nurse – Roberta O'Reilly

[66] She has been a registered nurse for 32 years, currently employed by Health Sciences North in the City of Greater Sudbury, Ontario. For the past 8 years, she has been employed in the sexual assault unit as a forensic nurse.

[67] The duties of a forensic nurse is to meet with patients who have come into the hospital with an allegation they have been sexually assaulted or abused by their intimate partners. Part of her duties is to conduct physical examination of these women and to record injuries. She has collected forensic evidence in 41 sexual assault cases.

[68] She observed three injuries to the right nipple and two injuries to the left nipple. These were abrasions and red marks.

[69] She conducted an examination of the vaginal area. She filled in two diagrams depicting the vaginal area, which diagrams recorded the multiple injuries to the vaginal area. There were approximately 12 injuries. The language used to describe these injuries were "tear", "abrasion", "bruise", "scratch", "swelling" and "redness".

[70] She could not conduct a full examination of the entire vaginal area because it was too painful for Ms. G..

[71] Theoretically, there can be injuries in consensual sex and no injuries in non consensual sex.

2:5 Evidence of the Accused – Aadesh Lovepreet Singh Lally

2:5:1 Examination in Chief

[72] He is 21 years old and is in Canada on a student visa, studying hotel and restaurant management at C[…] College. He has a part-time job at a gas station.

[73] He shared a two bedroom apartment with three other people. When in the bedrooms, you can hear sounds and voices coming from the living room.

[74] As described in the evidence of others, he confirms the four of them entered the apartment and went into the living room. After a period of socializing, Ms. S.G. left to go into the bedroom. A few minutes later, Mr. Singh left to join her in the bedroom.

[75] He was initially sitting on a chair next to one of the mattresses. He went from the chair to join Ms. G. on the mattress. They started holding each other's hands and kissing each other. She then went to the bathroom. The light was on when she went to the bathroom and was also on when she came back from the bathroom.

[76] He turned the light off at the request of Ms. G.. She took off her own clothes. He took off his clothes. She asked him if he had a condom.

[77] After taking off their clothes, they continued hugging and kissing. She lay on her back on the mattress and he started kissing her breasts. They were both becoming aroused. The kissing continued. He then started kissing her vagina. He then went back to her breasts and continued to kiss them.

[78] After kissing her breasts for a while, they commenced to have intercourse. He describes her as becoming very excited to the point she was asking him to go faster and faster. After completing intercourse, they put their clothes back on.

[79] This was his first experience with sexual intercourse since he was in Canada.

[80] Prior to the sexual intercourse with Ms. G., he had sexual intercourse three times, all in the country of India.

[81] He was asked the following question:

"And was your approach [to the sex] the same [with Ms. G.] or different?" [compared to the three prior times]

Answer: "The same".

[82] He denies pushing her down onto the mattress. He denies turning the light off when she returned from the bathroom. He denies taking her clothes off contrary to her will. He is emphatic they had consensual sex.

[83] His observation was she was happy with the sexual encounter. However, five minutes after the completion of the sex, she suddenly started to cry. He quotes her as saying: "You forced me into it". He responded that their sex was with the will of both of them and nothing was done forcefully.

2:5:2 Cross Examination

[84] Before anything started, they were having a general conversation about his country and whether he liked Canadian girls. If he had the opportunity he would like to marry a Canadian girl.

[85] After Ms. S.G. and Mr. Singh went to the bedroom, they continued to talk wherein he was sitting on the chair and she was sitting on the mattress. She was the one who initiated sexual interest and he responded. She was making suggestions to him with her eyes. He considered those looks to be sexually suggestive. After she demonstrated a sexual interest in him, he started to show a "little bit" interest in her.

[86] She asked him to leave the chair and move closer to her on the mattress. She then started rubbing his hand.

[87] The Crown asks him if he understands a woman has to be 'ready' before sexual intercourse commences. He said he understood this.

[88] The Crown asks him the following question:

"And you are telling us that you don't know a woman can be hurt if she is not ready for a man to enter her?"

Answer: "Because my culture is different, I did whatever there is in my culture. I did it according to that with her".

[89] The Crown continues:

Question – "And this element of trust between two people who are about to engage in sex involves the man making sure the woman is ready?"

Answer – "She was ready to have it with me that time."

Question -- "You'll agree with me, sir, that it is important for the man to ensure that the woman is ready before the man enters her during the sexual act?"

Answer – "Yes, you can say that."

Question – "And the reason for that is that if the woman is not ready she could be hurt?"

Answer – "I do not know that much".

Question – "You have had sexual intercourse with three women before L.G.?"

Answer – "Yes, Ma'am".

Question – "And are you telling us that you don't know a woman can be hurt if she is not ready for a man to enter her?"

Answer – "Because my culture is different, I did whatever there is in my culture. I did it according to that with her."

Question – "So, I'm trying to understand your answer because it doesn't directly answer my question. Do you know whether a woman can be hurt if you enter her without her being ready?"

Answer – "We can say that but I performed sex with her the way I know from my culture background, you can call it what I learned from my. There is not that much attention paid in that".

Question – "So it doesn't matter, what you're saying to us, Mr. Singh Lally, is that in your culture it doesn't matter if the woman is hurt during the sexual act?"

Answer – "Like, in my culture, being ready is not that much, like, there is a different way of having sex in Canada, and in my culture it's different. Because, in my culture, after a little bit of hugging and kissing they start having sex, this is my culture."

Question – "So if a woman hugs you or kisses you, that means she's ready to have you enter her?"

Answer – "When she was saying it herself to me".

Question – "So you're saying, Mr. Singh Lally, that she invited you to enter her?"

Answer – "Yes, she was saying that we have to have sex and when we were hugging and kissing, after that, she had asked me to enter her."

[90] He emphasizes sexual intercourse only commenced after she invited him to do so.

[91] He denies biting her lip. He does not recall sticking his tongue in her mouth. He denies biting her nipples, he was only kissing them. He makes it clear she was becoming aroused when he was kissing her nipples. The pace of her breathing was increasing.

[92] When he performed oral sex on her, the pace of her breathing was increasing and she was also moving.

[93] He repeated she was the one who requested the pace of the sexual intercourse be quickened.

[94] He emphasizes she in no way conveyed any concern to him she was being hurt.

[95] He denies she went to the bathroom after they finished intercourse. He concedes she was angry with him before she left the apartment. He denies apologizing to her. He denies telling Ms. S.G. that Ms. G. loved him. He also denies telling Mr. Singh the same thing.

2:6 Evidence of Jatinder (John) Singh

2:6:1 Examination in Chief

[96] When in his bedroom he can hear voices and sounds coming from the living room.

[97] He and Ms. S.G. had consensual sexual intercourse.

[98] Ms. G. knocked on the bedroom door. Ms. S.G. answered the door and the two women went into the bathroom.

2:6:1 Cross Examination

[99] Lengthy cross examination focused on two particular points. The first point was how much time elapsed from the time he and Ms. S.G. went in the bedroom together to the point and time Ms. G. knocked on the door requesting to speak to Ms. S.G.. In his evidence, he indicated the time lapse was between 15 to 18 minutes. After questioning and referencing his video statement he conceded he indicated in the video statement the time lapse was between 5 and 7 minutes.

[100] He further concedes Ms. G. was not happy after coming out of the bathroom and was crying when she was in the bathroom.

[101] The second point, which required lengthy questioning to be elicited, was that the accused told him that Ms. G. loved him.

3: THE LAW

[102] When the primary issue is credibility, the applicable legal principles are contained in R. v. W.(D.), [1991] 1 S.C.R. 742 (Supreme Court of Canada).

[103] This trial has pitted the credibility of the complainant against the credibility of the accused. In such a scenario, the rule of reasonable doubt applies to the credibility issue. The trier of fact need not firmly believe or disbelieve any witness or set of witnesses. The approach to the credibility assessment is contained in three parts:

a) If the trier of the facts believes the evidence of the accused, the accused must be acquitted;

b) If the trier of the facts does not believe the evidence of the accused, but is left in reasonable doubt by it, there must be an acquittal;

c) Even if the trier of the facts is not left in doubt by the evidence of the accused, the trier of the facts must ask, whether, on the basis of the evidence which is accepted, is the trier of the facts convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[104] My reasons, in part, involve a consideration of certain statutory provisions of the Criminal Code of Canada. There are sections 265(3); section 273.1 and section 273.2:

265 (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

1992, c. 38, s. 1.

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused's belief arose from the accused's

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

1992, c. 38, s. 1.

4: DISCUSSION AND ANALYSIS

4:1 Human Behaviour Reactions

[105] Before embarking on the analysis of the evidence of the complainant, there are two important concepts to be addressed. The first is the predictability of human behaviour in reaction to discomfort, stress, upset, fear or shock. The second is the mechanics of memory recollection of an incident or event.

[106] The Crown and defence talked about human behaviour reactions. From the Crown's perspective, reactions to an array of stressors are variable and unpredictable. Because of this, in the credibility analysis, the variability of responses and reactions should not detrimentally impact the credibility of a witness. The unpredictability of reactive behaviours does not lend itself to value judging the actions of a complainant.

[107] The defence emphasizes a reasonable person test, wherein a complainant, who is in a stressed position, should react with certain measures to support his or her stated intentions. For example, if a complainant says there was no consent to sex, then there would be a set of predictable responses to support the non-consent. If those predictable, reasonable or logical responses are not present, then this would detrimentally impact the credibility of a complainant.

[108] There has been considerable research on the 'fight or flight' response when people find themselves in a situation of stress, fear, shock or crisis. The reality is behaviour responses to these scenarios are highly unpredictable. We all have a tendency, and perhaps even a strong desire, to structure human behaviour on the basis of predictability and certainty. Life is easier to live that way. We operate more effectively in all areas of our lives, when our reactive scripts are predictable, certain and logical.

[109] Thus, I can understand those who would view the behaviours of Ms. G. and ask 'you could have done this' or 'you should have done that' or 'why didn't you do this' or 'why didn't you do that'. Those who approach it this way want to classify her behaviour according to the paradigm of predictability, certainty and logic.

[110] The danger of this approach is two-fold. Firstly, reactive human behaviour is variable and unpredictable. The humanness of this must be understood. Generally, so-called, non-logical behaviour should not be allowed to detrimentally impact the credibility assessment. A woman's credibility should not be considered on the basis of predetermined scripts as to how she should behave.

[111] Secondly, the reasonable person test approach risks falling into stereotypical thinking as to how a female complainant should react in a given scenario.

[112] This is precisely the trap the trial judge and one of the Court of Appeal judges fell into in R. v. Ewanchuk, [1999] 1 S.C.R. 330 (Supreme Court of Canada). The reasons of L'Heureux-Dubé and Gonthier JJ, as well as the reasons of Chief Justice Fraser of the Alberta Court of Appeal, are particularly instructive to trial judges on the issue of stereotypical thinking impacting on the credibility analysis. In particular, Chief Justice Fraser states stereotypical thinking does not derive from the findings of fact but from mythical assumptions that when a woman says 'no' she is really saying 'yes', 'try again', or 'persuade me'. The Chief Justice points out such an approach, denies women's sexual autonomy and implies that women are 'walking around this country in a state of constant consent to sexual activity'. In the case at bar, despite Ms. G.'s repeated indications of no, Mr. Lally persisted by saying, 'deep down you really want it'.

[113] The Crown submits the defence in this case is typical of comments made by the trial judge and by one of the Alberta Court of Appeal judges, which was sharply criticized by Chief Justice Fraser and by the Supreme Court of Canada.

4:2 Memory Recollection

[114] The second concept to be addressed is the mechanics of memory recollection. As with human reactive behaviour, this is an area in which there has been considerable research. The research involves the recollection of the particulars of an event and reducing such to written or video statements and ultimately to testimony at a trial. For example, there would be a staged event with a group of observers who have to answer questions shortly after the event and then at time intervals over the span of time after an event. There was considerable variability as to the answers.

[115] What is clear from this research is when the mind recollects the particulars of an event and reduces such in a medium like a written statement, video statement or testimony at trial, the recollection is not like a video recorder simply playing back the particulars of an event as it occurred in real time.

[116] An individual's personality traits, values and emotional make-up can have a significant impact on memory recollection. This is why, for many witnesses, there will be inconsistencies in statements and evidence. In particular, this occurs when a question is asked for the first time at trial, which was not previously asked during the investigative process and reduced to a written or video statement. This does not necessarily render evidence unreliable. Trial judges must be aware of these dynamics and determine at what point inconsistencies will materially impact credibility and reliability.

4:3 Credibility of the Complainant

[117] Keeping these concepts in mind, and analyzing the evidence of Ms. G., including viewing her evidence in the context of the totality of the evidence, I find her to be a credible and reliable witness. I accept the essence of her evidence – she engaged in non-consensual sex, as a result of force and violence used against her by the accused.

[118] I found her to be thoughtful, careful and measured in answering questions from Crown counsel and defence counsel. Her evidence was internally congruent and externally congruent to the evidence of other witnesses at the trial, including some of the evidence of the accused.

[119] The defence submits, outside of Ms. G.'s narrative of the non-consensual sex, that I must carefully analyze the collateral conduct of the complainant as to choices she made or choices she did not make, all of which impact on her credibility.

[120] The defence catalogues a litany of things Ms. G. should have done or could have done. They are:

• When she first entered the room, she chose to sit on one of the two mattresses and not one of the two chairs. This conveyed an open mind as to the possibility of sex.

(This was a spartanly furnished room. The vast majority of the sitting surfaces in the room were on the mattresses. The evidence is the group of them chose to sit on the mattresses.)

• After Ms. S.G. and Mr. Singh left the living room, the accused put part of his body over her legs. There is no dispute as to this fact. Though she says she was uncomfortable with his actions, she chose to say nothing to him nor did she choose to get off the mattress and sit on one of the chairs. This demonstrated a furtherance of her sexual interest in the accused. Her silence and acquiescence was an invitation to proceed further with sexual play.

(Though she did not disclose her discomfort, she did make a decision to extricate herself from the situation. She went to the bathroom, not only because of the biological need, but to collect her thoughts. At that point, the activity was quite benign. It is understandable why she did not go and knock on the door to speak with Ms. S.G. or leave the premises outright.)

• When she came out of the bathroom and noticed the light was off, she should have looked for her purse and left or she should have looked for the light switch. She should have asked the accused to turn on the light. She should have asked why it was dark. She chose to go back to the mattress with an individual with whom she was uncomfortable.

• When she was pushed onto the mattress by the accused, her reaction was minimal. She said 'whoa'. In these circumstances, she should have screamed and yelled for her friend and tried to escape before she can be pinned down.

• She says she wanted to call out or yell for her friend but such was prevented by the accused biting on her lip and stuffing his tongue into her mouth. However, when he was biting her nipples, her mouth was now free, allowing her to yell and scream for her friend, but she chose not to do so.

• She had other opportunities throughout this event to yell out for her friend and chose not to do so.

[121] For the reasons I have already provided, I do not draw detrimental inferences as to Ms. G.'s credibility, based on the above. Human reactive behaviour is too unpredictable to use it as a measuring stick against reliability. One reason she did not cry out is she was in a state of fear and had to be concerned what might happen to her if she makes too much noise, especially when force and violence are being used against her by the accused. She viewed the hard bit on the lip and the aggressive use of the tongue in the mouth as attempts to suppress any calling out or yelling behaviour. She dutifully complied. When her nipples were bitten, causing much pain, though the mouth was now free to cry out, the reason she did not cry out was that fear suppressed such a response.

[122] In theory, her mouth was free to yell out during intercourse but she was still fearful and in pain. The fear, pain and uncertainty as to where everything was going caused her not to yell out.

[123] What I focus on is what the complainant did. She repeatedly told the accused she did not want to have sex. At one point, she told him about the boyfriend as one of her reasons for not wanting to have sex. He rebuffed her. When the boyfriend was mentioned he said he did not want to hear that. He says deep down she really does want to have sex. She continues to tell him she does not want to have sex. In addition to her verbal utterances, her actions indicated she did not want to have sex. During the sexual process, she would be flailing her arms or her legs or squirming and moving in such a way to prevent him from having intercourse.

[124] The defence submits the complainant has made contradictory statements as to whether she called or yelled out for her friend. Though she said several times she did not call out for her friend, she changed her mind at one point and said she did. She then responded that she misunderstood what the questioner was talking about. The defence feels this is a material inconsistency. I do not agree. The totality of the evidence would suggest she did not cry out loud or yell for her friend. Ms. S.G. and Mr. Singh were a short distance away and would have heard a loud yell. Their evidence is consistent with her evidence on this point. One contradiction wherein she appeared to be confused is not sufficient to have a material impact on her credibility.

[125] The defence submits the conduct of Ms. S.G. and Mr. Singh should be considered in the credibility analysis of the complainant on the consent issue. These four individuals were part of a larger group. The four of them broke off from the larger group. They went to the apartment of Mr. Lally and Mr. Singh. They further separated into two couples. The one couple clearly planned to have sexual intercourse. The group of them either silently or openly decided to have sex. Ms. S.G. made a decision to have sex with a stranger, so the fact that Ms. G. and Mr. Lally were strangers, is not particularly important.

[126] My response is Ms. S.G. and Mr. Singh were not strangers. I cannot ascertain how well they knew each other, but they had a familiarity with each other. They lived across the street from each other. They went to the same school. Ms. S.G. decided to party with a group of friends on her 19th birthday and Mr. Singh and Mr. Lally were part of that group of friends. Further, Ms. S.G. stated in her evidence she was at the Lally/Singh apartment prior to […], 2010.

[127] The consensual sex of Mr. Singh and Ms. S.G. has no impact on my credibility assessment on the issue of consent sex between Ms. G. and Mr. Lally. It is too laden with conjecture to draw such a connection.

[128] The defence submits the complainant contrived the non-consensual sexual scenario, in order to explain the sex to her boyfriend. Had she not had any injuries to sexual body parts, her boyfriend would have no way of knowing she was deceitful in having consensual sex with another man. Because of the injuries, she would not be able to conceal the act of consensual sex from the boyfriend. Since he was going to find out she had sex, she had to portray the sex as non-consensual. In order to do this, she had to feign anger to Mr. Lally and Ms. S.G.. To provide corroboration for the contrivance, she must follow through with attending at the hospital claiming she had non-consensual sex and further, contacting the police and having Mr. Lally charged with sexual assault.

[129] Again, such a scenario is pure conjecture. Such is not a reasonable inference to be drawn from the evidence. The only source of information about the existence of a boyfriend came from Ms. G. herself. She mentioned the boyfriend in the context as to why she did not want to have sex. Had she not made this comment, the information about the boyfriend would never have been known.

[130] The accused does corroborate Ms. G. commenting about the boyfriend, however, he does not provide any particulars as to the context of the boyfriend reference by Ms. G.. Thus, when Ms. G. said she mentioned the boyfriend as part of her reason to not have sex – the intertwining of the boyfriend and a lack of desire for sex is not contradicted by the accused. Thus, that important piece of evidence of the context in referencing the boyfriend goes unchallenged. Therefore, I find as a fact the boyfriend comment was directly connected to not consenting to sex. Looking at it another way, if it is accurate she wanted to conceal consensual sex from the boyfriend, then, she would not have mentioned the boyfriend in the first place.

[131] The defence submits the complainant's evidence as to how the clothing was removed, in particular because she was wearing tight jeans, is impossible and implausible.

[132] A complainant in these circumstances is not cataloguing a sequence by sequence by sequence inventory of exactly and precisely how each and every item of clothing came off and the location of each leg and arm at any given time during the process.

[133] A highly stressed individual acts instinctively as to what to do or not to do. Decisions are made instinctively as opposed to rationally. When you are resisting your clothes forcefully being taken off, the reaction is instinctive as to how you resist. Therefore, when you try to remember at a later time the precise details, it will be a struggle to recall them. The cross examiner questioned as if the approach was a slow motion, frame by frame by frame video replay. Answering questions like that with precision is not feasible.

[134] I do not agree with the defence characterization of her evidence. Because her resistant reactions are instinctive as opposed to rational thought, her memory is going to lack a precise frame by frame by frame detail that you would see in a slow motion video replay.

[135] The jeans may be tight but this does not mean they cannot be removed with sufficient force. Defence counsel says the accused is not a big, muscular and athletic person. However, there is no evidence of such before the court. Even if there had been, it probably would not have been helpful. Size has little to do with strength. A determined individual, prepared to use force and violence, can subdue another into compliance.

4:4 Corroboration

[136] There is strong support and corroboration for the complainant's version of events. Also, her actions immediately following intercourse were consistent with an individual determined to follow-up as quickly as possible with this indignity.

[137] She immediately gathered her clothes and went to the bathroom. This provided a brief escape so she might observe her body. Indeed she observed the multiple injuries as well as the vaginal bleeding. She immediately knocked on the door of the bedroom asking her friend for help. Ms. S.G. responded immediately and went into the bathroom and not only observed the injuries but was told what happened. Ms. S.G. was angry and quickly expressed the anger toward Mr. Lally.

[138] The two of them left the apartment and immediately went to Ms. S.G.'s apartment across the street, to conduct a further visual examination of the body of Ms. G.. Then they immediately went to the hospital wherein the extensive forensic examination was conducted. From there she went to the police station. In this sequence of events, there were no undue delays or hesitation on her part.

[139] The multiple injuries corroborate her version of non-consensual sex. The lip was painful and clearly injured. The one nipple had three injuries and the other had two. This corroborates her version the lip and nipples were bitten.

[140] The vaginal injuries corroborate the use of force met with her resistance. She had considerable vaginal pain. Because of this, the forensic nurse could not conduct a full examination.

[141] Her state of mind following the sexual act is corroborated by the accused, Ms. S.G. and Mr. Singh.

[142] Mr. Lally corroborates, as I have already indicated, the fact she mentioned her boyfriend. Given he does not provide any particulars of such, I accept her statement as to referencing a desire not to have sex because of the relationship with the boyfriend.

4:5 Credibility of the Accused – Aadesh Lovepreet Singh Lally

[143] The accused was not a credible witness. I do not believe his evidence as to the essential core issues of this case. At times I found his evidence to be confusing, incomplete, disconnected and contradictory.

[144] His counsel argues, if Mr. Lally did not appreciate she was not consenting to sexual intercourse, his lack of sexual experience coupled with cultural factors impaired his ability to discern her lack of consent. Further, the injuries caused during the sex act are likewise explained by a lack of experience and culture factor. In essence, he is saying he unwittingly caused the injuries but did not appreciate the consequences of his actions.

[145] The lack of experience argument is confusing and lacks in details. He says he had three prior acts of sexual intercourse with three different women, all in India. Ms. G. was the first act of intercourse in Canada. He does not explain the particulars of the three prior sexual acts and how this creates a lack of experience in dealing with Ms. G.. Were any of those three women injured? What did he actually learn in having sex with these three women? If a 21 year old has three prior acts of intercourse, is that to be construed as a lack of experience? Many may suggest otherwise.

[146] Experience is not required in order to ascertain whether a woman is consenting to sex. The sex act and everything associated with it is so ingrained in humanity that common sense dictates you do not have sex with a woman unless she consents. A male virgin with no experience will not have difficulty understanding when a woman is clear and consistent in not wanting intercourse – such as the complainant in this case. I do not accept the lack of experience argument.

[147] Another problem with the lack of experience defence is he denies outright causing the injuries to the lip and nipples. This is incongruent with the defence of lack of experience and culture. He cannot have it both ways. If he denies causing some of the injuries at all, then it is difficult to advance the experience and culture defence, because this approach assumes he's caused the injuries though unwittingly. He does not see the distinction and is adamant he did not bite the lip and nipples.

[148] He argues culture has a two-fold impact on this sex act. Firstly, it is a barrier impacting his ability to discern her lack of consent. Secondly, those from his culture take less time with foreplay, and perhaps their partners are put at greater risk of injury, because they are not 'ready' for intercourse.

[149] Mr. Lally is of East Indian heritage in particular from the Sikh religious group. Culture should not be a barrier in ascertaining consent, so long as a couple are communicating in the same language. Since he has been in Canada, Mr. Lally has functioned primarily in the English language. His studies at school are in English. On the night in question, the four of them conversed in English. When the complainant and the accused were alone, they conversed in the English language. There is nothing to suggest he does not understand the English language. As with the experience defence, the culture defence lacks sufficient details and a baseline of information. The common aspects of sexuality transcend the world cultures. No matter what culture; 'no' means 'no'. She consistently and clearly communicated her lack of consent to sex. Culture did not impact his ability to understand this.

[150] Mr. Lally says he had sex with Ms. G. just as it is done in the East Indian culture. He explains the shorter period of foreplay which is common in his culture, may have caused her injuries. She may not have been 'ready' for intercourse. He infers many East Indian women are at greater risk for injuries because of this cultural value. So is it common for East Indian women to have the multiplicity of injuries following sex, such as occurred to Ms. G.? I highly doubt that is the case. I am sure there are many East Indian men and women who would be appalled at what happened to Ms. G., wherein her injuries are explained by a peculiar cultural sexual practice. In my view, Mr. Lally defames East Indian men and insults East Indian culture.

[151] In addition to the rejection of the experience and culture defence, the most significant detriment to Mr. Lally's credibility, is the disconnect between his actual narrative of the sexual act and the defences he puts forward to explain the multiplicity of injuries.

[152] In the introduction to this decision, I set out a paragraph describing a sexual act. This paragraph is the narrative from the evidence of Mr. Lally as to how sex unfolded with Ms. G..

[153] This narrative contradicts and is disconnected from large parts of the balance of his evidence. It is also materially disconnected from the balance of the trial evidence. Mr. Lally's self-narrative demonstrates he is an experienced lover. The narrative demonstrates he is sensitive to the pace of the sex and gradual arousal of his partner. He ensures she is 'ready' for intercourse by allowing her to determine when intercourse commences. He lets her set the pace of the intercourse and responds to her directions. There is little in this narrative which would suggest a lack of experience. There is nothing in this narrative to demonstrate a cultural factor. Further, there is nothing in this narrative which would even hint at a multiplicity of injuries caused during the sex act. This narrative could be a typical description of a sex act anywhere in the world.

[154] There was much discussion whether Mr. Lally was wilfully blind as to the lack of consent. These circumstances go well beyond wilful blindness. Mr. Lally knew exactly what he was doing. When she would not comply, he used force and violence to further his intent of sexual intercourse. Though I reject his narrative as being the actual sex which took place in this case, the narrative does indicate he understands in a theoretical sense the proper way to have sex with a woman. There is no lack of experience nor is there any detrimental, cultural impact. There could not be a starker contrast between what he said he did and the physical condition of Ms. G. when the sex was complete.

5: CONCLUSION

[155] Following the structure of R. v. W.(D.), I accept the evidence of the complainant. I also accept the evidence of Ms. S.G., the forensic nurse and Mr. Singh in part. I reject the evidence of Mr. Lally. Though I do not believe his evidence, it does not raise a reasonable doubt.

[156] I am satisfied, based on the evidence I have accepted, that the Crown has proven its case beyond a reasonable doubt. There shall be a finding of guilt.

Released: June 19, 2012

Signed: "Justice John D. Keast"