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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.: Halton 11-1287

Date: 2013-04-10

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Arif Billah Chowdhury

Before: Justice L.M. Baldwin

Heard on: April 10/12; April 11/12; June 15/12; October 26/12; December 11/12

Reasons for Judgment released on: April 10, 2013

Counsel:

K. Frew for the Crown

B. Hundal for the accused Arif Billah Chowdhury

BALDWIN J.:

Charges

[1] Arif Chowdhury pled not guilty to charges as follows:

(1) that on or about the 29th day of May, 2010, at the Town of Milton, he did commit a sexual assault on A.F., contrary to s. 271 of the CCC;

(2) that on or about the 29th day of May, 2010, at the Town of Milton, he did for a sexual purpose touch A.F., a person under the age of 16 years directly with a part of his body, to wit: his mouth and hands, contrary to section 151 of the CCC;

(3) that on or about the 21st day of September, 2010, at the Town of Milton and or elsewhere in the Province of Ontario, he did commit a sexual assault on Y.M., contrary to s. 271 of the CCC.

[2] The Crown proceeded summarily on consent as the Information was laid outside the 6 month limitation period.

[3] During the course of this investigation, the accused provided three different statements to police. The voluntariness of those statements was admitted at the outset of trial. Dates, jurisdiction and identification were also admitted.

[4] The accused was assisted throughout the trial by a Bengali interpreter.

[5] After the Crown called the two complainants, and an undercover female officer, a Similar Act Application was argued. The Similar Act Application was granted.

Summary of the Evidence

Summary of the Testimony of Y.M.

(Note: Ms. M.'s testimony appears from page 11 to 33 in the April 10/12 transcript)

[6] Ms. M. testified that September 21st, 2010 is a date she will never forget.

[7] At approximately 8 pm that day she had attended the Mohawk Raceway to play the penny slot machines.

[8] She attended Mohawk that evening because she was very upset that day and she did not want to talk to anyone.

[9] Ms. M. explained the reason for her emotional upset as follows:

The reason I was there at the Mohawk that day, I had received a phone call in the afternoon telling me that the man that had taken my daughter's life away had asked for early release and I was to go up to Lindsay Correctional Centre within 30 days to have that animal stay behind bars for …the balance of his term…I had a hundred dollars to spend that I was prepared to give to Mohawk, one penny at a time, and I was not there to win. I was there to get rid of the memory that I had to go through or the vision of going to the court the following month to keep that animal behind bars that took my 12-year-old daughter's life. (pp. 12, 13; repeated in X pp. 24)

[10] After about an hour, they asked her to leave. When she asked why, they told her it was because she had been drinking. She had not been drinking. She was upset. Ms. M. testified that staff do not like it when people are upset at the racetrack.

[11] A security guard named Judy escorted her out to the parking lot and said that the racetrack would be sending her home by taxi and they were going to pay for it.

[12] Judy called the taxi and escorted her to it. Judy opened the door and she put her inside the front passenger seat of the cab. The accused before the court was the taxi cab driver and he was on a cell phone at the time.

[13] Ms. M. observed that there were no markings or front visor identification indicating that the light coloured four-door sedan was a taxi. There was no 'helmet' on the top of the car. There was no number for the taxi company anywhere.

[14] As they proceeded to her home down Five Side Road they passed over the 401 towards the Milton area.

[15] The accused pointed over to her and said that he lived over there, indicating the Hawthorne Village Mattamy Home development area.

[16] Ms. M. sells real estate in that area. She produced her business card and told the accused that if he needed a salesperson, to call her.

So then the shenanigans began. He started talking to me about his wife. That he only gets sex once every two months. That he has a 5-year-old daughter. That he has a 12-inch penis that could stand up for hours on end and I would enjoy myself, as he looked over his shoulder into the back of his car. I was floored by this type of conversation. I'd never been privy to that in my life and nor do I intend to be again. As I sat there, he continued on discussing his manly functions with me and how much I would enjoy it and looked over his shoulder and said, 'We can even do it back there'.

I have a disability on my left arm. I've had clavicle surgery. I do not have the ability to move very quickly and I don't have the ability to move out of the way very fast or to defend myself. He grabbed me by my left breast like that (demonstrated in Court). I jumped as far as I could out of his way into the corner of the car….I was terrified. There was nowhere to stop because we were on a side road, Five Side Road, and it's dark, and there are no streetlights. There's nothing except for him and I and a backseat and a 12-inch cock that he wants to share with me." (pp. 14, 15; repeated in X pp. 29, 30 31)

[17] Ms. M. had previously ordered Chinese Food to be delivered to her home for dinner for herself and her two sons.

[18] As the taxi pulled into her driveway, the Chinese Food delivery man pulled in behind the cab.

[19] She threw two five-dollar bills at the accused. He looked at her card. He looked at her house number. He had her name and cell phone number because it was on her business card.

[20] Ms. M. exited the cab and spoke to the Chinese Food delivery man. She asked him not to leave his spot until she was inside her house and the lights were turned off.

[21] She entered her house, closed the curtains and locked the door. She had a King Shepherd dog with her in the house. The next day she had a security system put in.

[22] Ms. M. testified that she lived on Mountainview in Georgetown at the time. The taxi ride took exactly 22 minutes.

[23] During the course of the ride, the accused did not use any electronic equipment. The car radio was not on.

[24] Ms. M. explained that the accused grabbed her left breast with his right hand and lifted it.

[25] The next day she decided to tell the Mohawk staff what had happened in the cab so they would not subject another woman to this maltreatment.

[26] Ms. M. explained that she did not intend to give a police statement. She explained: "I am tired of our system. I've been part of it myself for quite some time and did not want anyone else to be hurt."

[27] It was the Mohawk staff that called the police.

[28] When she spoke to the police she said that she did not want to press charges. She wanted the police to go over and tell the accused to leave her and her family alone, as he had her address. (p. 20)

[29] In cross-examination, Ms. M. testified that she has not been in a relationship for over 12 years. She did not have a conversation with the accused about having a cottage and a boyfriend. She did not have a boyfriend. She is not divorced from her second husband – they have been separated for a number of years.

[30] Ms. M. denied hitting the accused's arm while in the cab. The accused did not swerve the cab almost off the road. "He did not swerve the car and he did grab my breast and my left arm did not touch him, period." (p. 29)

[31] Ms. M. denied smoking cigarettes in the cab.

[32] Ms. M. testified that she had not consumed alcohol for six months prior to the incident. She explained that she had been medicated after her daughter's death on October 28th, 2007 at 4:15. She was no longer on the medication.

[33] Ms. M. repeated her reluctance to be involved in these proceedings as follows:

Given that my daughter's man had killed her, was charged with criminal negligence involving death to my daughter and bodily harm to my son, and I was involved with that legal system since October 28th, 2007, until just recently this year, I did not want to go through any more of this system for somebody's that's a schmuck. They should not have a taxi driver that should not be able to drive somebody around. The only thing I wanted to accomplish that day by going back to the track was to let them know not to let anybody else become a victim of that predator." (p. 32)

Summary of the Testimony of A.F.

(Note: A.F.'s testimony appears on pages 35 through to 58 of the April 10/12 Transcript; the DVD and the transcript of the statement that she provided to police were adopted pursuant to s. 715.1 and filed as Exhibits at trial. A.F. was 17 years of age at the time of her trial testimony. She testified via CCTV equipment and had the benefit of a neutral support person.)

[34] On May 29th, 2010, A.F. was 15 years of age.

[35] That day she had spent from approximately 4:00 p.m. until 9:00 p.m. at a friend's house (J.G.) with her boyfriend (P.D.).

[36] They watched two movies in the basement that day. She drank two cold shots of beer and smoked a cigarette.

[37] She was not feeling well because she had her period.

[38] Her father needed her to come home and babysit a younger sibling and a cab was called.

[39] P.D. and J.G. waited with her outside the house for 5 to 10 minutes before the cab arrived.

[40] She did not recall any difficulty getting into the cab. She was inside the cab about one minute after it arrived. She sat in the front passenger seat. It was a white coloured four-door older model sedan. A.F. did not recall any signage on the top.

[41] A.F. testified that she was not drunk that evening. She did tell the accused cab driver that she was not feeling well, but she did not tell him why.

[42] She does not recall any discussion with the accused about a flat rate for a drive home. She does not believe that conversation took place. She had $10.00 with her and she could have asked her father for more money if she needed to when she got home. It was only an eight-minute drive from J.G.'s house to hers.

[43] The accused started asking her about her night. "What did you do tonight?" "And I told him I was with my boyfriend, just hanging out and then he started asking me, how's life with your boyfriend…it started to turn sexual…if she has sex with her boyfriend, if she likes sex…" (Transcript April 10/12 p. 40) "He was asking me like what do you and your boyfriend do, do you guys like to have sex and how many times a day do you have sex and he was really sexual about it." (Transcript of Video p. 37)

[44] He then told her that he does not get any chances with any of the girls. He told her "how he'll buy rooms and he'll buy booze and he'll buy like anything for these girls". (Exhibit #2 – Transcript of video-taped statement to police dated June 2, 2010 p. 36)

[45] He asked her what she would do for $40.00 for half an hour. She took that to mean what she would do sexually for him. A.F. responded by laughing because she thought he was "like joking or something". (p. 36)

[46] He asked her the same question again and offered her $60.00. She replied that she wouldn't do that. (p. 36)

[47] When the cab reached A.F.'s home, he pulled in past the front of her home still on the road. He did not park in her driveway. He did not turn the interior light of the cab on.

[48] The meter read $10.75 and A.F. had $10.00. She began to dig into her pocket and the accused told her not to worry, just to give him a hug. After she gave him the money, he reached across the cab, was rubbing her back, and he hugged her and kissed her on her left cheek and moved to try to kiss her on the lips. He told her she was a nice girl and he hoped he would be seeing her soon.

[49] She pushed him away and exited the cab and went into her home. She texted P.D. and told him what happened.

[50] She told her father K.F. what happened and he called the cab company right away. He called the police the next morning.

Summary of the Testimony of K.F.

[51] Mr. F. testified that his daughter was not at all intoxicated that evening. She was upset, scared and nervous when she got home.

[52] She told him that the cab driver was propositioning her – offering her money. She said that he had tried to touch her, but she would not tell him the whole story.

Summary of the Testimony of Tara Knight

(Officer Knight's testimony appears in the April 10/12 Transcript from pages 63 through to 101)

[53] Officer Knight has worked with the Halton Regional Police Service for 8 years.

[54] On April 7, 2011 she was requested to be an undercover officer in this investigation by the lead investigator, Officer Derek Golba.

All I was aware of was that there was a sexual assault investigation being conducted and I was requested to get into a cab with the target…(Transcript April 10/12 p. 65)…to gain evidence that would lead to either a criminal investigation or to have a taxi operator permit revocation…I was given the name of Arif Billah Chowdhury and I knew that he would be operating a Milton taxi with an Ontario marker of BHXL578 and it was taxi cab number five….I had one beer and that was to provide a continuous odour of alcohol on my breath as I was to appear as though I had been drinking and was intoxicated that evening (pp. 66, 67)…(I was to) ask for a cab ride to the hotel…(p. 83)…I didn't know any details of what had happened prior to me becoming involved…(p. 89).

[55] At 9:50 pm, Officer Knight was deployed to get into the accused's cab which was in the parking lot of the Ned Devine's Bar in Milton. She went up to the cab and asked the accused if she could get a ride to the Holiday Express located in Oakville.

[56] The accused replied "yes, not a problem" and she got into the front seat of the taxi which is her custom because she gets motion sickness when seated in the back.

[57] The cab exited onto Derry Road going westbound and then turned southbound at Highway 25.

[58] Almost immediately, Officer Knight noticed that the accused was travelling below the speed limit of 60 kilometres an hour. Most of the time, the cab was travelling at 40 kilometres an hour.

[59] The accused asked her what she liked to do for fun and if she liked to have fun. She asked him what he meant by fun. He started to discuss different bars in the Burlington and Oakville area.

Then he asked what my name was and I told him it was Tara. And I asked his name and he said it was Alli and I asked him to spell it and he said A-L-L-I. He shook my hand and said it was very nice to meet me. He then started asking again about what I liked to do for fun…I gave very limited answers or just giggling. (p. 69)

He did most of the talking. He asked how old I was. I told him I was 30. And he said that he was also 30. He then looked at me and said that I had a nice body. I did not respond. He then said he had a hot body. Again I did not respond. While we're driving down the road, I noticed that he continuously veers – again, we're going below the speed limit – and he continuously veers off the shoulder towards the west shoulder and I would catch him looking over at my chest area when he would veer off the road. (p. 69)

He then (asked me) "What are you doing tonight? I replied that I had lost my friend. I had come in from out of town with a girlfriend and we'd been at a bar together and then she had left me and I didn't know where she was and I couldn't get a hold of her on the phone and I was going back to the hotel in hopes of finding her there. He then (asked) what do you like to do for fun? He also asked about my friend and what does she like to do for fun?...he said perhaps she's met a guy and she's having her own fun…He then said perhaps he should come to my hotel room to party with me…he says he likes me, he thinks I'm nice…asks again what I like to do for fun. (p. 70)

[60] They arrived at the hotel and the accused drove to the drop-off location at the front. Officer Knight observed that the metre read $27.50. The accused turned off the meter and again asked her what she liked to do for fun. Again he asked if her girlfriend was in the hotel room.

[61] Again the Officer asked the accused what he meant by fun. His answer was, "you know, fun".

[62] The Officer asked how much the cab ride was. The accused told her it was $40.00. When she questioned that, he said "It was $30.00, but you owe me a $10.00 tip because I was very nice and good to you and not everyone would have been so good to you in your state of intoxication…or drunken state." (p. 71; and at June 15/12 transcript p. 39 – the accused agrees with this evidence)

[63] The Officer gave him a $50.00 bill and he gave her $10.00 back and upon request provided a receipt which was filed as an Exhibit in this trial.

"He then again started …asking me what I liked to do for fun and again I said I don't know what you mean…he states that he can't talk about it in front of the hotel. So he turned the car back on and he drives through the parking lot and goes…southbound in the parking lot and parks the car away from the front of the building…there's no other vehicles around where we're parked and he turns the car off….he again asks what I like to do for fun. And this time I say I like to go drinking. He says, "You've had too much to drink. No more drinking for you…he's talking with his hands and…the back of his right hand brushed my left breast just sort of the top, very faintly…and he moved back to his side…I sort of flinched, moving away…again he asks what I like to do for fun…he reclines his seat back several inches and then he asks me to recline my seat back and close my eyes and tell him what I like to do for fun. I did recline my seat back maybe an inch or two, but I told him I couldn't close my eyes because I'd had so much to drink I would get dizzy…again he asks what I like to do for fun. I say, 'I drink, but I don't do any drugs.' And he says, 'No that's not what I mean'. He tells me that he's never done drugs. He doesn't drink and he doesn't smoke. He then asks if I'm married…I said no. Then he asked if I had a boyfriend and I again said no. I asked him if he's married. He says 'Yes, 15 years.' And then he says 'I haven't had sex with my wife in two months.' (pp. 72, 73, 74)

He said maybe my friend had found someone and she was having sex with him right now. And he stated "Sex is good". (p. 75)

At this point in time, he reaches out with his right hand and he grabs my chin with his thumb and forefinger…I pulled my face away from him…(p. 75)…(after) 10 to 15 seconds of silence he then says "I have a big dick"…"I'm so hard right now" And while he's saying that, with his right hand, he starts rubbing his penis, which was in his pants, so he's rubbing his penis through his pants…I said, "you need to take me back to the hotel"…he says "Okay no problem, I'm a gentleman, I'll drive you back…I guess the fun is over". (p. 76)

He then asks me not to tell anyone about what happened in the car…he says he likes me and hopes he gets to see me again sometime. (pp. 76, 77)

[64] He turned into the front entrance of the hotel and the Officer exited the cab. She had been in the cab for 38 minutes.

[65] The Officer estimated that they were behind the hotel for 5 to 10 minutes.

[66] In cross-examination, it was suggested to the Officer that she told the accused not to tell anybody that she was 30 years old; she told the accused that he looked good for his age; she told the accused that she needed more alcohol; she suggested to the accused that they go to the back of the hotel. The Officer denied all these suggestions.

Decision on the Similar Act Application

[67] The Crown filed a Similar Act Application at the outset of trial. Verbal submissions from both counsel were received at the end of the first day of testimony on April 10, 2012.

[68] On April 11, 2012, I ruled that the Crown had met its onus of proof on the Application and that the evidence of A.F., Y.M. and Constable Tara Knight is admissible as Similar Act Evidence to support the credibility of each complainant, to negate a defence of consent and to demonstrate a pattern of behaviour on the part of the accused.

Defence Case

[69] The Defence called four witnesses. Mr. Chowdhury began his testimony on April 10, 2012 and completed his testimony on June 15, 2012. (His testimony appears on pages 2 through to 72 on April 10, 2012 and on pages 1 through to 58 on June 15, 2012)

[70] On June 15, 2012, the Defence called P.D. and J.G. as witnesses. I will briefly touch on their evidence.

Summary of Testimony of P.D.

[71] P.D. was 22 years of age when he testified.

[72] He and A.F. were dating during the period in question. They broke up over a year ago.

[73] On May 29, 2010, they were both over visiting J.G. at his house. They arrived at approximately 4:00 p.m. and A.F. left at approximately 10:00 p.m.

[74] At J.G.'s house they were playing video games in the basement. P.D. was pretty sure that he was the only one drinking beer. He was also the only one smoking some weed.

[75] J.G. had nothing to drink. He was pretty sure that A.F. had nothing to drink.

[76] He was the one who called the cab for A.F.. He watched her get into the cab. She had no difficulty getting into the cab.

Summary of the Testimony of J.G.

[77] J.G. was 19 years of age when he testified at trial.

[78] He remembers May 29, 2010 when P.D. and A.F. came over to his house.

[79] He recalls the three of them being in the basement watching TV.

[80] P.D. and A.F. drank some alcohol. A.F. only had a small beer can shot or two. J.G. was not drinking at all.

[81] J.G. did not smoke any marijuana. He did not think that the other two smoked any that night.

[82] A.F. wanted to go home and P.D. called her a cab.

[83] When A.F. left she was a bit drowsy, perhaps tired, and maybe a little affected by the alcohol. A.F. never said that she felt drunk.

[84] He stayed in the basement when A.F. went out for the cab.

[85] Later, A.F. called P.D. back and said she had been assaulted by the cab driver.

Summary of the Testimony of Officer Derek Golba

[86] On December 11, 2012 the Defence called Officer Derek Golba to testify as to the history of his investigation into these charges. During the course of the investigation, Mr. Chowdhury was interviewed three times by Officer Golba. All three statements were admitted to be voluntary. All three statements are exculpatory wherein Mr. Chowdhury maintained that the complainants were drunk and he denied any wrongdoing.

[87] Mr. Chowdhury was arrested on these charges on April 26, 2011.

[88] It is not necessary for me to review the investigative history in these reasons.

Summary of the Testimony of Arif Chowdhury

[89] Following 2 days of testimony, Mr. Chowdhury ended his evidence by repeating that he cannot remember what he said or what he did with respect to the complainants or the undercover officer.

[90] From page 48 through to 57 in the June 15, 2012 transcript where Mr. Chowdhury is being cross-examined on the undercover officer's evidence about what happened when they arrived at the Oakville hotel, he provides the following answers:

I don't remember…I don't remember…I really don't remember where she told me or not…I really don't remember…I don't remember…I didn't pay that much attention what they were doing…I don't remember…I don't remember…I don't remember…I was focusing on driving…I don't remember…I don't remember…I don't know whether I said something like that…I don't remember whether I said that…I don't remember…I don't remember actually what I said…I don't remember what I said long time ago…I don't remember what I said…I don't remember whether I said or not…I don't remember exactly…I don't remember. I don't remember anything…I don't remember…I don't remember…I don't remember what I said or what I did…I don't remember…I don't remember…I don't remember what I said…I don't remember…I don't recall what I said…I don't recall what were the conversation. Nothing is coming to my mind…I don't remember what I said. It's a long time ago…I don't remember what were the conversation…I don't remember what I said…I don't remember…I don't remember…I don't remember anything…I don't remember something like that…I don't remember…I don't remember what were the conversation, what I did…I'm hundred percent possible I didn't say anything like that, and I don't remember either…I can't remember either…I don't remember…I don't remember what happened, what I did, two years ago…I don't remember what I say, what I did…I don't remember anything I don't remember…but the way they were acting, I thought they were drunk.

[91] Mr. Chowdhury testified in-Chief that he currently works as a taxi driver with Milton Taxi Company. Before that he worked in a restaurant. He was born in Bangladesh and came to Canada in 1996. He was married in August of 1997 and has a daughter.

Re: Y.M. – Accused's Evidence, Examination in-Chief:

[92] The Milton Taxi Company sent him to pick up a fare at the Mohawk Raceway.

[93] A security person was forcing a woman to get into his taxi. The woman was refusing and screaming and saying that she wants to play more. Security forced the woman into his taxi.

[94] The security person gave him a voucher and told him to take the woman home. He was told that she was drunk and she lost money and the racetrack was not going to let her play anymore. The woman was put into the front passenger seat of his cab.

[95] The woman was "talking in a loud voice like a drunk person does". (Transcript p. 7, 9)

[96] She started to smoke a cigarette in his cab even though he told her not to.

[97] She told him that she had a brokerage business and gave her his card. "She says if you think you need my service, give me a call". (p. 9)

She was smoking and I was driving, holding my hands on the steering, and then she was pushing on my right hand…close to the elbow…I was losing control of my vehicle because it was going on the curb and then I did get control of my car. (p. 10)

She was laughing…and smoking…On the second time when she pushed me, I was focusing on driving and I pushed her like that. I moved her hand…with my right hand…I told her 'why you are doing like that? I was almost off the road. (p. 11)

[98] Mr. Chowdhury repeatedly said that he had no idea what part of her body he made contact with because he was focused on driving.

[99] She asked him if he had a girlfriend and told her no, that he is married and has an 8-year-old daughter.

[100] He did not tell her anything else about himself. (p. 14)

[101] He did not tell her that his penis was 12 inches long and he did not discuss his sexual relations with his wife. "No, I didn't and I don't remember…I don't remember and I didn't say it". (p. 15)

[102] Mr. Chowdhury testified that he does not remember if he asked the passenger if she wanted to have sex with him. (p. 16)

[103] When he pulled into the passenger's driveway another car parked behind him. A man came out of the car holding a package and the passenger got out of the cab and walked to her house with the man "and they both started laughing". (p. 17)

Re: A.F. – Accused's Evidence, Examination in-Chief:

[104] On May 29, 2010 he was sent on a call to provide a taxi ride to Ontario Street in Milton sometime between 9:30 p.m. and ten o'clock.

[105] He saw two boys and a girl standing outside. The girl was hugging one of the boys. They were kissing.

[106] The girl came toward his car. "She had no control over her motion and she tried once, twice, and third time she opened the door and get in to my car…she wasn't like a normal person…she wasn't walking straight". (p. 20)

[107] She got into the passenger front seat and he could smell alcohol on her breath.

[108] She told him to stop the meter and give her a flat rate because she did not have any money. He told her there was no flat rate in the city.

[109] He asked her if she had been drinking and she said yes. "She told me she had five beer and had liquor". (p. 22) "She was drunk…" (p. 28)

[110] He asked her how old she was and she said she was 15 years old. He told her she was not allowed to drink at 15.

[111] He asked her "Do you have any boyfriend? She says, 'Yes'". (p. 23)

[112] When they got to her house she told him to park beside the road.

[113] "She dropped $10 over my body and I don't know how much came to the meter, but it was more than $10…She threw $10 toward me and she pulled the door and she got out of the cab. I don't know which way she went". (p. 26)

[114] He did not offer her any money during the cab ride and he did not tell her that he never got any chances with girls. He did not tell her that he would buy booze for girls and get them hotel rooms. He did not ask her about her sex life with her boyfriend. He did not ask her if she liked to have sex. (pp. 29, 30)

[115] He did not kiss her or hug her. He had no physical contact with her. (p. 31)

Re: Officer Knight – Accused's Evidence, Examination in-Chief

[116] On April 7, 2011 at Ned Devine's Bar he was waiting for a fare sometime in the evening.

[117] A woman got into the front passenger seat of his car and told him that she wanted to go to the Holiday Inn in Oakville.

[118] She told him that she had lost her friend and that she needed more drinks. It looked like she was drunk. (p. 35, 39)

[119] She asked him if he knew any bars, if he drinks, if he smokes cocaine or marijuana. He told her no. (p. 36)

[120] She told him that she was 30 years old and not to tell anybody.

[121] He told her that she was very young and has a nice body. (p. 37)

[122] She asked him if he had a girlfriend and he told her that he was married and has a daughter 8 years old.

[123] He asked her if she was married and she said no, she has a boyfriend. She said she wanted more wine and wants to have fun. (p. 37)

[124] When he arrived at the hotel he told her "I was so nice to you when you were drunk and safely I bring you to your hotel, that's why I ask for $10 tips". This was on top of the $30 fare.

[125] Mr. Chowdhury testified that he deserved the $10 tip. (p. 40) "Because she forced me to go there and she lost her friend…(and) she was drunk…". (pp. 47, 48)

[126] She told him that she did not want to go back to the hotel; she wanted more wine; she needed to find her friend; she needed to go to the bar. (p. 40)

[127] She pointed to a parking lot of the Holiday Inn and asked if they could go there. She did not say why.

[128] They parked there for 5 to 10 minutes.

[129] He told her she is very young and looks nice. She was asking about bars. Then he said he had to go back to work and make some money.

[130] He did not say she had a hot body. He did not tell her to recline her seat back. He did not touch her. He did not tell her that his penis was hard. He did not touch his penis. He did not talk about sex with his wife. He did not say that he had a big penis.

[131] "The reason I say I'm hot, because the heat was on in the car". (p. 45)

Position of the Defence

[132] Counsel submits that A.F.'s recollection of the events in question is not reliable given the fact that she had consumed some alcohol and was not a frequent drinker at just 15 years of age.

[133] The defence submits that the Court should be concerned about the reliability of her complaint to the police given the fact that charges were not laid until the second complaint was made and an undercover officer was deployed.

[134] The defence submits that A.F.'s first disclosure to her father did not involve the cab driver touching her or kissing. She only disclosed that the cab driver "tried to touch her", which should be of concern regarding her credibility.

[135] The defence submits that any physical contact with Y.M.'s body was accidental.

[136] The defence submits that Officer Knight observed that Mr. Chowdhury talks with his hands, which explains any touching of her as being accidental.

[137] The defence submits that Mr. Chowdhury gave his evidence in a straightforward manner and he has adamantly denied any intentional touching of the two complainants and the undercover officer. He denies all sexual conversation.

[138] Based on the WD analysis, the defence submits that the Crown has not met their onus of proof in this case.

Position of the Crown

[139] The Crown made extensive submissions in this case concluding that they have proven the three charges before the Court beyond a reasonable doubt.

[140] In brief, the Crown submits that the three independent witnesses (two complainants and undercover officer) have given consistent accounts of what took place during their cab rides with Mr. Chowdhury. None of these witnesses where aware of the others' complaints. Ms. M. did not want to be involved in the criminal trial process and has provided a compelling explanation as to why.

[141] The Crown submits that the Court can use the Similar Act Application in assessing the credibility of each complaint.

[142] The Crown submits that Mr. Chowdhury's statements to police, and his trial testimony, were evasive, unclear and inconsistent. The Crown submits that his denials should be rejected.

Analysis

[143] I have applied the three-pronged test in WD in assessing the reliability and the credibility of each of the witnesses.

[144] I find the evidence of the two complainants and the undercover officer to be reliable, credible and true. The similarities in the accounts of these three witnesses were striking. There was no collusion in this case.

[145] A.F. had consumed a small amount of alcohol and was not intoxicated when she entered the accused's cab. Her testimony in this regard was corroborated by her father, P.D. and J.G.

[146] Her version of events has been consistent throughout and she disclosed some of the events to her father immediately, and to her boyfriend the same evening.

[147] I find as fact that Mr. Chowdhury began to speak of sex with this 15-year-old passenger, offered her money for sex, and intentionally touched her for a sexual purpose.

[148] Mr. Chowdhury's evidence is rejected as being highly inconsistent and vague. He has given differing versions of events in his three police statements, in his examination in-Chief and during cross-examination. Even accounting for English being his second language, his denials of the events were dizzying to listen to as his versions changed around and then culminated on the last day with answers like "I don't remember what I say or what I did". (Reference paragraph 90)

[149] I find as fact that Mr. Chowdhury began to speak of sex, said he wanted to have sex, and intentionally touched Ms. M. for a sexual purpose that violated her sexual integrity.

[150] Mr. Chowdhury's claim that it was Ms. M. who was touching him is rejected as fabrication. For the reasons noted above, his evidence is rejected outright.

[151] I find as fact that Mr. Chowdhury initiated a sexual conversation with the undercover officer, drove her to a secluded parking lot and intentionally touched her for a sexual purpose which violated her sexual integrity.

[152] I find as a fact that Mr. Chowdhury believed the two complainants and the undercover officer were intoxicated. I find as a fact that Mr. Chowdhury believes intoxicated female passengers in his taxi cab are his sexual prey.

Decisions

[153] The Crown has met their onus of proof on all three counts.

[154] The Kienapple principle was not addressed in counsel's submissions. (Reference R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524)

[155] The facts in support of the sexual assault and the sexual interference with respect to A.F. are the same. Accordingly a Stay is registered on Count #1 - the Sexual Assault of A.F.

[156] A Finding of Guilt is registered on Count #2 – Sexual Interference of A.F.

[157] A Finding of Guilt is registered on Count #3 – Sexual Assault of Y.M.

Released: April 10, 2013

Signed: "Justice Lesley M. Baldwin"

Sufficiency of Reasons for Judgment

During the course of this long split-up trial (which was originally scheduled to take only 2 days) the Court heard from a number of witnesses and Exhibits were filed. All of the witnesses' evidence, the Exhibits filed, and submissions heard, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. In Halton, the fastest growing Region in Canada, judgment writing time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. S. (T.) [2012] ONCA 289; R. v. H. (J.M.) 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Drabinsky 2011 ONCA 582, [2011] 107 O.R. (3d) 595 (OCA); R. v. Dinardo 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869.