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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Information No. 11 – S1484

ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario)

BETWEEN:

HER MAJESTY THE QUEEN

• and -

SATTAR PALANI

Reasons for Judgment

Counsel:

• Ms. S. McCartan for the Crown
• Mr. A.B. Harnett for Sattar Palani

An order has been made under s. 486.4 directing that any information that could identify the complainant, B.T., shall not be published in any document or broadcast or transmitted in any way.

NADEL, J.:

Introduction

[1] On Sunday, April 10, 2011, within minutes of leaving Sattar Palani's taxi at about 12:38 a.m., B.T. called the police to report that Palani had sexually assaulted her. Palani's DNA, from the semen that he had ejaculated into B.T.'s mouth, was identified when her mouth was swabbed at the hospital. Shortly after 2:46 a.m., P.C. Conroy detained Palani, who was still driving his cab. Conroy noted that Palani's shirt was not tucked into his pants and the two bottom buttons of the shirt were undone. The bottom portion of Palani's shirt was wrinkled, as if it had previously been tucked into the waistband of his pants. Conroy found a single long blond hair on the driver's seat in the area of Palani's crotch. Palani is charged with one count of sexual assault on which the Crown proceeded summarily.

[2] In April of 2011, B.T. was a 19-year-old Brock student on the University's cheerleading squad. At 5'7" tall and weighing 140 pounds, she was, by anyone's measure, an attractive young woman. She shared the rear apartment at G[…] Street, St. Catharines with a friend named M.. In April of 2011, Palani was 47 years old. He was six feet tall, weighed 250 pounds and had been driving a cab for more than a decade.

A Thumbnail of B.T.'s Evidence

[3] B.T. spent the evening with her girlfriend, C.G.. They drank at B.T.'s home and then took a cab, which B.T. paid for, to a nightclub. They arrived at about 11:00 p.m. They socialized at the club and then left together at perhaps 12:15 a.m. C.G. negotiated the fare with Palani, who dropped her off first. He then took B.T. home. B.T. was sitting up front beside Palani. A few blocks before her address, Palani suddenly pulled into a dark "alley". He undid his pants. B.T. knew something was badly wrong and tried to get out of the cab. Palani grabbed her by the nape of her hair, pulled her over and down onto his penis and, now holding her head in both hands, forced her head up and down until he ejaculated into her mouth. She was choking and had to swallow his ejaculate. He then drove her home and let her out. She ran into her apartment, told her roommate about what had just transpired and called the police.

A Thumbnail of Palani's Evidence

[4] B.T. was sitting on a rear bench seat of the taxi when her girlfriend was dropped off. The girlfriend told Palani that B.T. would be paying the $17.00 fare. When B.T.'s debit card was rejected during the initial minutes of the ride, she began to make overtures to Palani. First, she put her hand on Palani's chest while she was sitting behind him. Then she moved to and sat on the console that separates the two front seats with her back to the windshield. She then reached down and touched his penis. She returned to the rear bench seat at his direction. Then she said that she was going to vomit and needed to be let out. Palani pulled off the street and into a plaza for her safety so she would not be hit by a car when she got out. Once he stopped the taxi, she did get out but she did not vomit. Rather, she got into the front passenger seat and offered to fellate him for the fare. He agreed to her proposition. She positioned herself to do so, undid his zipper, took his penis out of his underwear through the front opening and proceeded. He ejaculated into her mouth. He then carried on the few blocks to her home. During that ride, she offered to prostitute herself to him for the night at a price of $200.00. When he rejected her offer, she threatened to complain about him to his company. He said, "go ahead" and dropped her off. He then continued working until he was detained by the police some hours later.

Judgment

[5] I find Sattar Palani guilty of committing a sexual assault upon B.T.. I will explain my finding in the balance of these reasons.

The Theory and Submissions of the Crown

[6] The Crown's theory was that Palani's evidence was unbelievable and should be rejected. According to the Crown, his story was an incredible fabrication that was rent by an insurmountable internal inconsistency. Moreover, it was contrary to common sense and human experience. To begin with, Palani said that he asked for his fare almost immediately upon commencing the final leg of a ten to fifteen minute trip. The Crown says that we all know that is not how cabbies operate. Next, the Crown submits that Palani's chest touching testimony and his console mounting and penis touching testimony were unbelievable inventions. In the Crown's submission, had B.T. done these things, Palani would have ejected her from his taxi. Most significantly, the Crown submits that Palani's testimony that he parked behind the plaza to ensure that B.T. would not be endangered by traffic when she left the cab to vomit is a complete fabrication. That piece of testimony was a lie that he told in an unsuccessful attempt to offer an innocent explanation for parking in that dark and isolated spot. The Crown submits that testimony was a lie because, by Palani's own testimony, the taxi had sliding doors on both sides of its passenger compartment. If B.T. had really complained of a need to vomit, Palani would have pulled to the curb on G[…] Street and opened the curb-side door to allow his passenger a prompt and safe exit. There was no innocent basis for him to drive away from the lighted street. The only reason that he did so was to sexually assault his passenger.

[7] Finally, the Crown submits that while there were some inconsistencies between B.T.'s evidence and C.G.'s evidence, and while there were some weaknesses in B.T.'s evidence, she was credible, her story was believable and the Crown has proved its case to the exclusion of any reasonable doubt.

The Theory of the Defence

[8] The defence theory was that B.T. got herself "reasonably drunk" and decided that "she was going to go a little wild that night." When she was left by her friend to cover a $17.00 cab fare, she found herself without enough money. In a lapse of judgment that was something completely outside of her character, she decided that she was going to pay for her cab fare by performing sex on the cab driver. Having done so, she was full of self-loathing. She realized that she had done something completely out of character and stupid and she decided to call the police because no cab driver should ever take advantage of a woman. Despite this act having been something that B.T. drunkenly and stupidly offered, in her view, Palani should never have accepted her offer. His behaviour in having accepted that transaction made B.T. so angry that, even though she knows the consensual role that she played, she still thinks Palani should be convicted and so she testified as she did. The only role that Palani played was to allow B.T. to pay for her cab fare with a "blow-job."

The Submissions of the Defence

[9] Mr. Harnett submits that pared down, this was a "he said – she said" prosecution. He contends that the Crown has not met its very heavy onus and burden of proof in "a case in which nobody wins."

[10] It was the defence's characterization that the only witness who came through this prosecution "looking like a reasonable human being" was C.G.. Despite submitting that she "gilded the lily" and "shaded" her evidence on occasion, the defence submitted that C.G. did her best to try and be candid and fair with the court. It was the position of the defence that elements of C.G.'s evidence were "stark and clear" and had a "delicious ring of truth" that significantly undercut B.T.'s evidence on a number of points. Mr. Harnett acknowledged that "a brick is not a wall"; but, he submitted that there were a lot of bricks available to the defence in a case such as this where there was no video, i.e., no precise and independent witness to the crucial moments of the interaction between B.T. and Palani.

[11] Given the nature and quality of the evidence in this prosecution, the defence urged that the Crown did not meet the high burden of proof that is cast upon the prosecution in a criminal case because, as R. v. Lifchus mandates, the meaning of proof beyond a reasonable doubt sets a standard of proof that is higher than a mere balance of probabilities, albeit less than proof to an absolute certainty. Moreover, and by way of a clarification that leaves no room for misunderstanding, the Supreme Court of Canada in R. v. Starr explained that the reasonable doubt standard falls much closer to absolute certainty than to a mere balance of probabilities. Finally, Mr. Harnett provided a cautionary reminder that a court cannot go wrong by following R. v. W.(D.).

The Defence Submissions Respecting Palani's Evidence

[12] In light of R. v. W.(D.), I propose to deal with Mr. Harnett's submissions respecting Palani's evidence before setting out his submissions regarding B.T. and the balance of the evidence since, if I believe Palani's evidence, an acquittal follows and even if I don't believe his testimony but am left in a state of reasonable doubt by it, equally an acquittal follows.

[13] Mr. Harnett began his submissions on Palani's evidence by pointing out that driving his passenger home and then returning to the spot where he initially picked up both women to continue working is evidence that is inconsistent with a guilty conscience. Mr. Harnett characterizes this testimony as after-the-fact conduct which implies a lack of criminal activity. Mr. Harnett submits that that conduct is tantamount to consciousness of innocence from a criminal perspective, notwithstanding that Palani's acceptance of B.T.'s offer of sex for her indebtedness to him was morally deplorable. In that regard, Mr. Harnett submits that an act of this sort – a taxi ride paid for by sexual favours – would not be a novel occurrence.

[14] I do not accept that the evidence pointed to by the defence is "consciousness of innocence." Nor do I accept that it is after-the-fact conduct which speaks to the question of criminal culpability at all. I do not draw any such inferences from this evidence. Going back to work is a piece of evidence that is equivocal at best and there are other non-innocent inferences available to explain both of the actions pointed to by the defence. These pieces of evidence are not as strong as, but in any event are much more like R. v. Kavanagh (which held that the evidence was not obviously consciousness of innocence) than it is like R. v. S.C.B. Further, Mr. Harnett's submission that paying for a taxi fare with sex is not a novel occurrence is akin to giving evidence. Such a submission is not a matter of judicial notice and the submission about the behaviour of others is irrelevant in any event.

[15] Next, Mr. Harnett submitted that Palani's evidence was "given with a certain spontaneity characteristic of people who are trying to remember rather than repeat a rote story." While there may be something to counsel's submission as a general observation, it is not an apt description of Palani's evidence. It may be that his evidence was somewhat stilted as an artefact of translation but it certainly was not given with spontaneity.

[16] Mr. Harnett then urged that Palani's evidence was "full of detail" and that his evidence remained consistent even when the Crown misstated his evidence back to him on a couple of occasions. Defence counsel submitted that when a witness can do that – remain consistent in the face of a misstatement – that presentation is of some value to a court when assessing reliability and credibility. Once again, while there may be some value in counsel's latter observation, in some cases, that submission is of little moment where the items said to be implicated by it were not identified by counsel and where the filter of translation imposes a necessary artificiality to the give-and-take of a cross-examination. As to the former submission, I disagree that Palani's evidence was full of detail or that the extent of such details as were provided by him conferred an aura of reliability to his evidence.

[17] Counsel submitted that the defendant was "responsive to virtually every question keeping in mind his antecedents, level of education and level of English and such" as well as being patient with the prosecutor. All of that may be true and yet, in my view, it could be equally said of all of the examinations of all of the witnesses in this trial.

[18] Mr. Harnett contended that Palani's story is believable and moreover that it is unreasonable to expect that he ought to have stopped his vehicle and ejected B.T. as an unruly passenger when she began acting out. Worse yet, counsel suggested that as a taxi driver, Palani was vulnerable to a false accusation of sexual impropriety. The defence argues that the accused had this attractive intoxicated woman in his car and that she became a bit like a loose cannon on the deck of a boat so that "he's damned if he does and he's damned if he doesn't." Mr. Harnett says that at the point where B.T. made her proposition, Palani wrongly followed his instincts. Having done so, Palani felt unable to complain to the police about being extorted by B.T. because he felt that he would be seen as ridiculous to complain to the police that this beautiful woman had performed fellatio on him. Here again, counsel is giving evidence since that was not Palani's testimony. More to the point, the submission that it is unreasonable to expect the defendant to have ejected B.T. is inconsistent with the submission that Palani was vulnerable to a false accusation of sexual impropriety. If that was the case, he would have had added incentive to eject B.T. as a fare and in any event he was able to communicate with his dispatcher if such a need arose.

[19] Ultimately, I disagree with the submission that Palani's testimony is believable. Mr. Harnett submitted that "the Crown would be hard-pressed to demonstrate an area where he was making up a story." In my view, such a challenge was easily met by the Crown based upon a number of areas of Palani's evidence.

[20] To begin with, unless there is an innocuous or innocent reason for Palani driving off the main thoroughfare of G[…] Street and stopping his taxi behind a row of businesses, that diversion is a telling piece of evidence against him. As noted above at paragraph [6], the evidence is that Palani did not drive B.T. directly home. He diverted from his route and drove away from the street. He says he did so because in his version of the events, B.T. was behind him in the middle bench seat and B.T. said she was going to vomit. His position was that in order to ensure her safety, he drove away from the street because if he had let her out on the street side of the van, then she might have gotten struck by a car. The problem with that evidence is that his van was equipped with sliding doors on both sides. If B.T. said that she needed to get out to vomit, then all he had to do was pull to the curb and let B.T. out onto the sidewalk. He did not. First, he turned off G[…] Street; but, even then, he did not stop. Moreover, he did not turn into the front parking lot of G[…] Square. Instead, he drove down the side street until he was behind the plaza before turning into an area isolated from G[…] Street by the G[…] Square plaza's buildings.

[21] Palani says that he only drove ten or fifteen metres off G[…] Street but that clearly cannot be true given the size of G[…] Square. More significantly, by his testimony, B.T. was not visibly impaired by alcohol and, so far as he testified, she was not otherwise indisposed. So, on his evidence, she had no need to vomit and therefore no need to exit the vehicle for that purpose. Indeed, in cross-examination, he agreed that her request to leave the vehicle was a ruse to get him to stop, presumably so that she could get into the front seat and offer to fellate him for the fare. That, at least, appears to be the logic of his testimony.

[22] I find the defendant's testimony to be preposterous on many levels. To begin with, I find it incredible and unbelievable that B.T. attempted to seduce Palani to compensate him for $10.11. The cab fare for the two trips (C.G.'s ride and then B.T.'s) was $17.00 in total and the defence agrees that B.T. had $6.89 available through her debit card. In addition, B.T. had her passport with her in her clutch purse so that either as surety or as a pawn to secure her payment of the outstanding fare, she had rock solid proof of her identity. I find it incredible that she would willingly resort to the seduction Palani postulates to cover a paltry debt.

[23] Moreover, I reject Palani's testimony that B.T. sat on the console between the front seats with her back to the window and reached down and fondled Palani's penis. According to Palani, he did not stop driving and it is apparent that he did not check in with his dispatcher; he merely told her to return to her seat. The event as he described it and his reaction to it are simply unbelievable. Additionally, if B.T.'s alleged vomit gambit was merely to allow her to get into the front seat to make her offer, she could have made the offer from the back seat or she could have clambered over the console and sat in the front seat and made the offer. In my view, Palani's testimony is nonsensical and incredible.

[24] I have dealt with the internal inconsistencies of the alleged vomit ruse and Palani's explanation for taking the detour at paragraphs [20] and [21]. I incorporate my comments set out there by reference to them here. As is evident, I accept the Crown's submissions about this detour, as set out at paragraph [6].

[25] In my judgment, Palani's testimony about B.T.'s behaviour during the final leg of the trip dissolves when compared and contrasted against reason and common sense. Put another way, as stated in R. v. Pressley, "The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case."

[26] I simply do not believe that B.T. would offer to perform fellatio on Palani in satisfaction of this alleged debt. Further, I do not believe that she would offer to fellate Palani without the protection of a condom, given that she could not know when he had last washed, how clean he was and whether he had any sexually transmissible diseases or infections. Further, I do not believe, given these factors, that she would willingly allow him to ejaculate into her mouth. Beyond all of that, she was within easy walking distance of her home and had her passport as identification. While I am prepared to accept that someone in the throes of an addiction and in need of ready money might resort to prostitution to obtain money to maintain a drug habit, that is not this case. This portion of the accused's testimony beggars the imagination and it does not end there.

[27] Having performed unprotected fellatio on him, Palani then says that on the way home, B.T. offered to prostitute herself to him for the balance of the night at a cost to him of $200.00. Given their respective positions in life and given the totality of their circumstances, including the fact that B.T. had a roommate, this testimony is unbelievable and I reject it utterly.

[28] Accordingly, I do not believe the evidence of the accused about what took place after he dropped C.G. off. Second, I reject the defendant's denial of forced fellatio and further I am not left in a state of reasonable doubt about his guilt by virtue of his evidence. As a result, I will now turn to the defence submissions dealing with the balance of the evidence and determine whether the Crown has proved that Sattar Palani sexually assaulted B.T. by forcing her to fellate him to the exclusion of any reasonable doubt.

The Defence Submissions Respecting B.T. and the Balance of the Evidence

[29] Mr. Harnett submitted that there were so many worrisome aspects of B.T.'s evidence that the Crown's case falters on the third branch of W.(D.) Her evidence is so fractured by weaknesses as to preclude reliance upon it to the exclusion of any reasonable doubt so the Court will be duty bound to dismiss the charge. Put otherwise, B.T.'s evidence does not permit the Court to know with sufficient certainty what took place in the cab and as a result of that assessment the charge must be dismissed.

Cross-Examination on Drug Use

[30] Mr. Harnett submits that B.T. is a dangerous witness. In the submission of the defence, she is a witness who has been shown to be able to lie convincingly. He says this can be seen from her cross-examination dealing with whether she and C.G. consumed any drugs. When she denied using any drugs, counsel pressed her – "Are you sure there were no drugs?" Counsel submits that she "startled" on being pressed, that she responded with a look of "amazement and incredulity," as if counsel's question was a "bizarre and impossible" suggestion. Counsel submits that B.T.'s ability to believably evince amazement at the suggestion of drug use clearly demonstrates that she is a witness whose evidence a Court must treat carefully because she is capable of saying something not true and being believed; that her denial looked good.

[31] Mr. Harnett makes this submission because although both B.T. and C.G. denied the use of any drugs (other than alcohol), C.G. said that B.T. suggested they smoke some marijuana that night but they did not have any and C.G. did not like doing so. That is as far as the evidence regarding drug use went.

[32] In my view, Mr. Harnett makes far too much of this exchange and this contradiction between the evidence of B.T. and C.G.. Even if B.T.'s demeanour was accurately described by counsel, this matter is of little moment. Her answer that the two friends did not consume any drugs was true and confirmed by C.G.. Further, neither she nor C.G. had any marijuana. There is no suggestion that B.T. returned to the subject with C.G. or importuned or pressed the suggestion. In my view, the contradiction between their recollections was the matter of a moment.

[33] Moreover, and this may be a theme that I will return to time and again, it is clear to me that B.T. was not properly prepared to give evidence at this trial. First, the events she testified to occurred about 17 months earlier. Second, she was not provided with a copy of the transcript of her DVD interview with the officer-in-charge. Third, so far as her access to that statement is concerned, the only evidence is that she had the chance to review it at some unspecified date prior to her testimony and apparently only once. Accepting C.G.'s recollection on the point, I do not view B.T.'s denial of a request that the friends seek out and smoke some marijuana as evidence of mendacity. She likely made the request but clearly did not recall doing so, in my view of her evidence.

P.C. Bonazzo's Evidence

[34] Near the end of his cross-examination, Mr. Harnett had B.T. confirm that nothing else unusual occurred on the taxi ride home after C.G. was dropped off until Palani detoured behind G[…] Square. He also had her confirm that the police officer (P.C. Giuseppe Bonazzo) who brought her to the hospital asked her questions that she answered. He then put the defence pièce de résistance or perhaps, from the defence perspective, the coup de grâce to B.T.; viz., that it was absolutely not the case that Palani leaned over with his right hand and stuck it up her skirt and that B.T. said, "Don't" and then said that she wanted to get out and pay for the ride to that location.

[35] From my perspective, B.T. was genuinely dumbstruck and flummoxed by this suggestion. The suggestion was a bolt from the blue and B.T. clearly had no current memory of saying such a thing, let alone suggesting that it had happened. She asked Mr. Harnett, "Are you serious? I don't remember that happening;" to which Mr. Harnett retorted, "Well it didn't!" Notwithstanding, Mr. Harnett then went on to have B.T. confirm other facts that she did recall disclosing to Bonazzo and subsequently, Bonazzo was called as a defence witness.

[36] In my view, B.T.'s quizzical response to the suggestion that she told Bonazzo that Palani put his hand up her skirt was patently genuine. Nonetheless, that response remains very problematic because, as will be seen, she clearly told Bonazzo that she had been fingered by Palani and yet that allegation was not part of her testimony. Mr. Harnett observed that this allegation was a matter of graphic detail that she has disavowed. He submits that it does not fit in with any of the narratives so that it ought to be viewed with alarm. Given the emphasis to be placed on this contradiction, Mr. Harnett sought to have Bonazzo recount all that B.T. said to him and Ms. McCartan agreed. The salient portions of Bonazzo's evidence follow.

[37] Bonazzo had had about two and a half years of experience when he dealt with B.T.. He was dispatched to G[…] Street and arrived at 12:59 a.m. and spoke with B.T.. Bonazzo then drove B.T. to the St. Catharines General Hospital where they arrived at 1:45 a.m. By about 1:59 a.m., he and B.T. were in a room waiting for what Bonazzo called "medical clearance"; i.e., waiting for a doctor and a sexual assault nurse to examine B.T.. It was at that point that he began to take details from B.T. for his "report", which he wrote down in his police duty-book. At some point, a "victim service person" came into the room but Bonazzo was not sure when that other person arrived.

[38] Bonazzo tried to write down as much as B.T. said. She was very upset and he tried to "just jot it down quickly." If she said something that he could not get down, then on occasion, he asked her to repeat herself. Bonazzo continued to note down her comments until about 2:33 a.m., when a doctor arrived. This is what he noted.

[39] In answer to a question about whether she had anything to drink while she was at the club, she said that she had consumed four shots: two of vodka and two of Wiser's whiskey. In response to when she got to the club, he noted her answer to be 11:07 p.m. Further, Bonazzo's notes indicate that she said that she took a cab to go home at 12:05 a.m., so that she was at the club for about an hour. She then told Bonazzo that her friend was dropped off at G[…]. At that point, she was "told" to sit in the front by the cab driver. She was in the rear of the van and the cabbie "asked" her to sit in the front in the middle bench seat. Before they got to the intersection of W[…] and G[…], she explained to the driver that she might not have enough money for the cab fare. Bonazzo then said that he believes she said that she might not have enough money to pay the driver.

[40] At that point, the driver turned right into the rear lot of the Avondale plaza where "he undid his pants and opened up his zipper and pulled out his penis." He reached over with his right hand and grabbed her by the head and she said she did not want to do that and he brought her head down to his lap.

[41] At this point in his testimony, Bonazzo explained that "it" did not go in exact order because B.T. was very upset and she was going all over the place, as he was trying to write as she was talking. Prior to "that," the driver had "leaned over with his right hand and reached up her skirt and moved her underwear over and penetrated her vagina with his finger." She protested that by saying, "No – don't" and that she wanted to get out and she would pay for "however distance" she had gone already, to which the driver said, "It's okay, I'll bring you home."

[42] Bonazzo again said that his notes jump around a bit and that the driver parked behind the Avondale, grabbed her head, brought it down to his penis and moved her head "back and forth". He ejaculated in her mouth and "from what [B.T.] told [him] she tried to get out but the door was locked. She tried to get out and [the driver] said, 'No, no, it's okay; I'll drive you home.'" B.T. told Bonazzo that she just wanted to get out. The driver brought her home and let her out and she asked if she needed to pay and the driver said no and drove away.

[43] While Bonazzo could smell alcohol coming from B.T.'s breath, he was unable to assess her level of intoxication because her emotional state masked his ability to determine how drunk she may have been. Indeed, he said that B.T. was so upset that "her story went all over the place."

[44] Finally, in cross-examination by the Crown, Bonazzo explained that he did not have her sign his book because, to him, it was not a written witness statement. Further, he could not be sure that he had B.T. review his notes in any fashion and finally, he conceded that B.T. could still have been impaired by alcohol when she spoke to him.

[45] When the doctor arrived at 2:33 a.m., Bonazzo waited elsewhere and then drove B.T. home at 4:50 a.m.

[46] Mr. Harnett's position is that B.T.'s allegation to Bonazzo of digital penetration and her failure to repeat the allegation in her DVD statement is reason enough to dismiss the charge. From the defence perspective, B.T. either lied to Bonazzo about this incident, which raises more than a reasonable doubt about the credibility of her complaint of forced fellatio, or, more charitably, she is so unreliable a witness that this Court cannot find the Crown has met its burden on the strength of such a witness.

The "Leg Touching" Allegation

[47] Mr. Harnett also cross-examined B.T. with respect to comments she made at the very end of her DVD statement. He began by asking if she told the officer that the driver had reached over and grabbed her leg and that she had brushed his hand off and said, "Let me off here." B.T.'s answer was that she did not know if she said that. In response, Mr. Harnett played the salient portion of her recorded interview and quizzed B.T. about the exchange. Beyond B.T.'s apparent reversal of left and right, she testified that she was not certain of whether what she told the officer was "a real memory". When pressed on why she would allege something that she was not sure had happened, she attempted to excuse her behaviour by saying that she felt the officer was pushing her to offer up more information. There are many aspects of this allegation and her explanation for it that are concerning; the foremost being that creating complaints ex nihilo, i.e., lying, is anathema to credibility. Further, doing so in response to perceived pressure reflects poorly on B.T.'s reliability as well.

The Effect of Bonazzo's Evidence and the "Leg Touching" Evidence

[48] I have given these matters anxious consideration and despite the questions that they raise, I do not have any reasonable doubt about the guilt of the accused. Bonazzo was a young and relatively inexperienced officer who tried to keep up with an emotionally distraught complainant. His notes demonstrate a series of immediate errors. Despite that, I have no doubt that B.T. told him that before she was forced to fellate Palani, he "fingered" her, too. B.T.'s level of intoxication was a matter in substantial dispute and Bonazzo conceded that he could not assess it. Nonetheless, it is hard to see how he could be mistaken about that complaint or that he mistook or misheard or miswrote the essence of that complaint. Yet B.T. had no memory of making that complaint about twelve hours later. Why? Is it because she was lying about the lack of consent to the fellatio and simply added this complaint to her lie and then forgot that she did? That is the defence position. Is it because, as nasty as being digitally penetrated may have been or seemed, it paled in comparison to being forced to swallow the ejaculate of a stranger in a violent confrontation so that in her intoxicated state she did not recall the event? Frankly, I do not know and given the balance of the evidence, I am not obliged to solve the mystery. Notwithstanding, I venture the following possible explanation.

[49] I believe that the resolution is likely a product of B.T.'s circumstances and the processes of her interrogations. The evidence does not disclose when B.T. awoke on Saturday but it is clear she was awake until at least 4:50 a.m. on Sunday. By her own evidence, she drank too much to be safe to drive that night. She was interviewed at about 1:00 p.m. on Sunday so that she had no more than perhaps five hours of sleep. Her demeanour in the snippets of her recorded interview that were played demonstrates that she was still emotionally distraught. She was "all over the place" during her statement to Bonazzo and he clearly did not review his notes with her, hence the initial series of factual errors that they contain. While it is clear that the officer who conducted her DVD interview had access to the substance of Bonazzo's notes, he never expressly directed her mind to the comments she apparently made hours before. Nor did he challenge B.T. on the apparent inconsistency in a timely way; so, she did not have the opportunity to explain the apparent inconsistency. What is clear is that B.T. had no memory of any inconsistency since she said: "I've told you everything I know, everything I've told you is the exact same as what I told the police last night."

[50] Despite the questions and issues that these aspects of B.T.'s evidence leave unresolved and despite the balance of Mr. Harnett's "top ten" points (which I shall address momentarily, more or less in the order in which they were made), for reasons that I will ultimately make plain, given the totality of the balance of B.T.'s and C.G.'s evidence, I am not in doubt about Sattar Palani's guilt.

The Type and Amount of Alcohol Consumed

[51] B.T. testified she had four shots of alcohol at home before going to the club – two Bacardi Breezers and two shots of vodka with fruit juice as a "chaser" and that she had nothing to drink at the club. In her DVD statement, she said that she had two shots of Wiser's and two of vodka. Is there a contradiction? Yes. Does it mean anything? No, especially given the failure of the Crown to allow her to be properly prepared for the experience of a trial. C.G. initially denied buying a drink for B.T. at the club but when challenged by her audio-statement, she accepted that she bought a drink for each of them at the club. Is there a contradiction? Yes. Was it significant? Not really. Both women agreed they were intoxicated and C.G. more so than B.T.. She kept track of what she drank by writing the number of drinks she consumed on her arm and that number ended up at six. Further, she said that while she was pouring full shots for herself, B.T. was matching her but only pouring half shots to each of her full shots. While Mr. Harnett sought to make something of B.T.'s naivety about Wiser's ("Wiser's, what's that?"), it is clear that B.T. was not certain on April 11, 2011 that Wiser's was a whiskey and by the time of the trial, seventeen months later, her usual tipple was a Bacardi Breezer, which has the same "z" sound to its name.

[52] Oddly, the Crown sought C.G.'s assessment of B.T.'s level of sobriety, which was not very helpful given that C.G. drank much more than B.T.. Additionally, the benchmarks met (B.T. could walk unaided, appeared to understand her surroundings and could answer when spoken to) hardly bespeak a reassuring level of sobriety. The point is that B.T. conceded she drank too much to be able to drive safely and that her ability to operate a motor vehicle was impaired by her consumption of alcohol, which was why they took a cab to the club.

Leavings

[53] Mr. Harnett submits that it is an "uncontroverted fact" that B.T. was ejected from the club; that C.G. conceded that a bouncer requested that they go. Yet, he submits that when he put that to B.T., she denied she was asked to leave. Counsel says he was trying to see if B.T. would be candid about leaving the club and her response was, "oh well it was time and C.G. had to get up in the morning." He submits B.T. was intentionally not being candid with the court. The problem with the submission is that while C.G. admits a bouncer said something to her, she testified that she had no idea what he was talking about. She did not adopt his hearsay statement. Further, there is no evidence that she ever told B.T. about what the bouncer said to her and she confirmed that she did have to leave early because she had to work the next day. Mr. Harnett attempted to make something sinister of B.T.'s denial that she was kicked out of the club, in a colloquially put submission: "Kicked out of a club? Why no!" But, as he had to concede, that was a loop that did not close.

The Hot Tub

[54] C.G. testified that after B.T. picked her up, they visited a male friend and used his hot tub for an hour before returning to B.T.'s apartment. B.T. never mentioned that in her testimony. Counsel urges that this reflects badly on B.T.'s reliability. I disagree. The matter, at worst if it is a matter, is likely a product of the manner in which B.T. was interviewed in her two sessions with police. B.T.'s failure to report this event has no evidentiary significance.

Positions and Payments

[55] B.T. paid for the cab ride to the club. The fare was $7.00 plus a small tip. B.T. said Brock students got a flat rate fee for shorter hops. The cost of the rides home was to be $17.00 for both legs, according to C.G. and Palani. I accept that. Everyone agrees that Palani drove C.G. home first. He says she asked to be dropped off first but C.G. denies making that request. Indeed, both women presumed B.T. would be taken home first since her stop was a matter of a very few blocks away from the club. Nonetheless, all agree that C.G. sat up front and B.T. was in the middle bench seat on the way to C.G.'s address. The events that occurred when C.G. was dropped vary.

[56] B.T. said that C.G. and the driver spoke and he refused her payment saying, "No, no, it's okay". However, she could not hear clearly because she was in the back and the driver may have been refusing a tip. She got out and hugged C.G. goodbye and then was asked by the driver to sit up front for the final leg. She agrees she told the police that the driver "made" her sit up front, which is not what occurred.

[57] C.G. said that she told the driver that her friend would pay the fare and that she turned back into the rear seat and awkwardly hugged B.T. and gave her $12.00 in cash as her share of the $17.00 fare. When she left the cab, B.T. was still in the rear seat. Palani agreed with that but he testified that he did not know what, if anything, C.G. gave to B.T..

[58] It is a central plank of the defence that B.T. was in the back of the cab until the chest touching, console mounting, and the exit to vomit saw her get into the front. Mr. Harnett urges that Palani's evidence on this point is supported by C.G.'s and this finding, if made, is how B.T.'s complaint unravels. If B.T. was in the back on the turnaround, then from the defence viewpoint, things turn much more heavily in favour of the accused's version of the events where she has to get into the front somehow; because Palani has got an explanation for how she got in the front.

[59] My view is that in this submission, the defence sought to "privilege" one aspect of C.G.'s testimony while blithely ignoring an integral component of it, namely that she gave B.T. $12.00 in cash. I have previously rejected Palani's evidence about what happened on the return trip. I accept B.T.'s evidence that she got out and hugged C.G. goodbye and I accept that C.G. gave B.T. $12.00 as her share of the fare. I accept that Palani did not "make" B.T. get into the front but that he suggested she ride up with him, which she did. In my view, B.T.'s use of the word "made" rather than "invite" was a product of what occurred some minutes after that invitation. I find that B.T. was given C.G.'s share of the fare because I believe C.G. on the point and because her doing so equalized the money each had to pay for cabs that night. The rides home were $17.00 and the ride to the club was $7.00; i.e., a total of $24.00. When C.G. gave B.T. the $12.00, that meant each paid or was to pay $12.00. B.T. had $6.89 available on debit. With C.G.'s $12.00, all she needed was $5.00 more and she still had room for a tip. While B.T. did not recall receiving the money, that speaks to her level of intoxication and C.G. had some concern about her friend's well-being. She asked B.T. to text her that she arrived home safely. C.G. did get a text. It read: "He made me suck his dirk I'm calling the clops".

More on Money

[60] B.T.'s evidence about what money she had with her that night and what money she had available to draw upon was worse than merely inconsistent. She began, in-chief, confidently saying that she had a $20.00 bill in her clutch purse. Yet she had to concede that in her DVD statement (on the second page of 20), she flatly contradicted that. Indeed, Bonazzo noted her as telling the driver prior to arriving at W[…] and G[…] that she might not have enough money for the cab fare. And then as Mr. Harnett was "pinning her to the mat" on these points, she offered that her debit card could access a savings account, too. On this issue, her trial testimony was not very impressive. There were other blows landed on the issue of who paid the cover charges to enter the club. Not having been schooled for the rigours of cross and not having been provided with the tools to allow her to prepare herself, she squirmed, weaseled and likely confabulated some of her evidence about what funds she had available. Despite that, on her own evidence, after the threshing performed by Mr. Harnett, she, at a minimum, had a debit card available to access $6.89.

[61] Despite achieving all of these defence coups, I find the following passage from B.T.'s DVD interview significant. It is a passage that Mr. Harnett read to B.T. and had her adopt so that he could use it for other purposes.

"We walked out of L3 there was a van and she hopped in the front seat and I hopped in the back. It was a van and I was in the middle and he dropped her off first at G[…]. She didn't pay. He didn't put her information into the meter at all and I was the next one that went home. And as we are going, before we had even got to my house, when C.G. was still in the car I said, "Oh C.G. I don't know if I have enough money to pay, because I had $17.39 in my account before I had went out that night. I couldn't take out $20 to pay for the bar so C.G. was going to pay for cover because she had cash and I was going to pay for the cab"."

This passage confirms that B.T. told C.G. she (B.T.) needed money for the cab fare. It dovetails with C.G.'s evidence that she gave B.T. $12.00 before leaving the cab as set out at [57] in these reasons.

Flashbacks

[62] At a point in her testimony, B.T. said that she suffered a "flashback" of the number four or perhaps forty-four with respect to the identity of the taxi. Mr. Harnett urged that a court should be wary of witnesses who claim to have "flashbacks". If the circumstances and the evidence warrant, such a caution may be necessary, but not here. All that B.T. was saying, albeit not well, is that some things "triggered", that is to say, reminded her of this experience. While there was no numeral four in the taxi's plate number, that number which was conspicuously painted on the van was a four-digit number.

Secret Contact

[63] Mr. Harnett submits that there were some unexplained shenanigans going on between C.G. and B.T.. He arrives at that conclusion and submission as a result of a comment made by B.T. in her DVD statement in which she implied that she and C.G. had a conversation or communication of some sort before their formal police interviews. Neither woman recalled the matter. The comment in question suggests they spoke about the colour of the taxi. Mr. Harnett submits that this leaves open the possibility that these witnesses may not be honest when they say that they did not talk about the events before their police interviews. My view is that the defence cannot have it both ways. There are so many inconsistencies between their recollections that it is unlikely that they communicated and if they did, it was not a pernicious communication. Once again, I return to a somewhat tired refrain – witnesses need to be and are entitled to be prepared for the experience of a trial, particularly major witnesses.

Sinister Sequences

[64] The defence argues the women made more than they ought to have done about the order in which Palani drove them home. Indeed, Ms. McCartan unsuccessfully attempted to develop a line of cross-examination with Palani on that point, viz., that he quickly sized them up and targeted B.T. from the get-go. I do not find it at all surprising that, given how things turned out, both C.G. and B.T. found that the route order seemed sinister. But, that is simply a matter of hindsight. Nonetheless, I accept C.G.'s evidence that she did not tell Palani to take her home first and that she did not tell him to do so because she had to work in the morning.

Clumps

[65] During her direct examination, B.T. described the force being used on her as severe enough to cause her to lose clumps of hair. When Mr. Harnett challenged her that she had never said this before, her response was that she was saying so now. Given Duncan J.'s discussion in R. v. Zack as explained by him in R. v. Golubentsev, such a complaint has more impact when directed to a professional witness. I find it much less compelling in B.T.'s circumstances, especially given that I am only entitled to consider the snippets of her DVD interview that were played in court and given that no medical testimony was called (not even for the limited purposes of demeanour). On the other hand, only one long blond hair was found in Palani's vehicle.

Door Locks

[66] The defence complains that B.T.'s evidence about when she tried to get out of the car and why she was unable to do so was "clear as mud" and not credible. I disagree. It is clear to me she tried to escape when she appreciated her peril and she could not find the door lock to operate its mechanism and unlatch it. Whether Palani had a lock override on the control panel of the driver's door armrest was something that was not clearly identified by the evidence.

Lifters

[67] Mr. Harnett began to develop a conspicuously obvious line of cross-examination designed to obtain admissions from B.T. about how fit and strong she was, leading to a conclusion that B.T. was too fit and strong to be manhandled as she alleged. He made his points intending to provoke minimizing responses from B.T. and succeeded in doing so. The upshot was that she denied being a "lifter" in the cheerleading squad. Subsequently, during C.G.'s evidence, she said that if you weren't a "flyer," then you were a lifter. By Mr. Harnett's own submission, this was a "throwaway" and I give this contradiction the weight it merits; because, as tall and slim and fit as B.T. was, at 5'7" and 140 pounds, she was no physical match for Palani, who stood 6' tall and weighed 250 pounds.

Conclusion

[68] Despite all of these challenges to the credibility or reliability of B.T., I still believe her testimony that Sattar Palani forced her to perform an unprotected act of fellatio upon him. One may ask why that is so given the demonstrated lack of reliability as a historian that Bonazzo's evidence indicates. I say reliability and not credibility because if I harboured a reasonable doubt about the veracity of her complaint, I would act on that doubt as the law demands. Further, one may ask why the cumulative effects of the various attacks on her evidence do not result in a reasonable doubt about the accused's guilt having been raised. The answer to both inquiries is that this case is not a "who done it?" This trial is a "what is it?" type of case; i.e., was this a consensual act or a sexual assault.

[69] There is no issue about an act of fellatio having occurred between Palani and B.T.. The remnant of his semen that he ejaculated into her mouth was discovered by scientific means. The issue to be decided is whether or not the Crown has proved to the exclusion of any reasonable doubt that this act was a sexual assault. For the purposes of the facts at issue here, an assault is a non-consensual and intentional touching of one person by another for a sexual purpose. I have previously rejected Palani's evidence that B.T. offered to sell herself to him in an act of informal prostitution as payment for a $17.00 cab fare. As a result of that finding, I am not required to determine whether B.T. was still so drunk during her cab ride that she lacked the capacity to consent to engage in sexual activity. However, it is clear that she was still intoxicated to some extent, as the misspellings in her text message to C.G. and the evidence of Bonazzo indicate.

[70] All of the challenges to B.T.'s reliability as a witness and even some attacks on her credibility do not cause me to doubt the essence of her testimony, which was that she did not consent to engaging in any sexual activity with Palani. I accept the essence of her evidence that he isolated her by driving her away from public view. I accept her evidence that she did not fight him but submission is not consent. In any event, Palani obviously had vastly superior size and strength, which was further augmented by B.T.'s inebriated condition. I accept her testimony and find that Sattar Palani sexually molested B.T. as she described in her testimony before me.

[71] As detailed earlier and elsewhere in these reasons, B.T. had both money ($12.00) and an accessible debit card balance ($6.89) in her clutch purse. She had the funds to pay for the $17.00 fare. She had photo I.D. She had a roommate at home. I have previously rejected Palani's evidence about B.T.'s alleged offers and act of prostitution. I accept her testimony that shortly before they came to her address, she rummaged in her purse to get ready to pay for the fare. I accept that as she was going into her bag, Palani detoured and attacked her. B.T. had no motive to make the offer or act as the defence alleged. B.T.'s demeanour and her actions after being attacked were consistent with having been attacked as she claimed. Her description of the sexual assault was confirmed by independent scientific examinations.

[72] While B.T. was not an impressive witness, I am of the view that a substantial cause of that was the fact that she did not have copies of the transcripts of what she said so many months earlier available to her to refresh her memory. That defect was exposed and exploited by an expert cross-examination conducted by Mr. Harnett.

[73] Notwithstanding that expert cross-examination, I believe B.T.'s testimony that she was attacked by Sattar Palani and forced to fellate him. I am satisfied to the exclusion of any reasonable doubt that Sattar Palani is guilty as charged.

Dated this 11th day of January 2013 at St. Catharines, Ontario

J.S. Nadel (O.C.J.)