Court Information
Court: Ontario Court of Justice
Between: Her Majesty the Queen — AND — Waqas Ahmad
Before: Justice P. Harris
Judgment delivered on: June 11, 2014
Counsel:
- M. Newhouse for the Crown
- J. Neuberger for the Defence
BACKGROUND
[1] Waqas Ahmad was charged with having committed a sexual assault on A.D. on December 1st, 2012. The Crown proceeded by summary conviction on the trial date, May 28th, 2014, and the defendant pleaded not guilty. Evidence was heard on May 28th, and May 29th, and the case was adjourned to June 11th, 2014 for judgment.
THE EVIDENCE OF A.D.
[2] The complainant, A.D., testified in-chief that she attended a Friday night social event at the Royal Ontario Museum in Toronto on December 1, 2012 during which there was a bar service and attendees could purchase drinks, enjoy the food and music and wander through the museum looking at the exhibits. A.D., 28, was there with three other female friends and she consumed a number of alcoholic drinks between 7:00 p.m. or thereabouts and 11:00 p.m. at which time the function was over for the evening. A.D. and her friends emerged onto Bloor Street West with the intention of hailing a taxi and going home together.
[3] A.D. testified that they were four in number and so she entered the front passenger seat of the cab thinking the other three would follow her into the cab and sit in the back seat. She gave evidence that after a brief discussion the others decided to "stay downtown and go to a party". When she realized her friends were not getting in the back seat she said she was "too lazy to switch seats and sit behind the driver". She also testified that the time she sat in the cab it "hit" her and she realized she was "drunk" and "didn't feel great any more". She thought she had drunk four gin and tonics up to the time the venue closed but was not sure about her alcohol consumption.
[4] A.D. gave evidence that "throughout the ride", "he kept his hand on my genitals" with "maybe brief pauses". The witness later amended that statement to say that his hand "remained there for the majority of the trip." She said the touching was over her clothing but she was wearing thin pants and she "felt everything" as he continually moved "one or two fingers".
[5] The complainant testified he first started touching her without consent when he was "putting on my seat belt" and about five minutes after the taxi began to move she "threw up". She says she told him to stop touching her and was trying to brush him away with her left hand but he would not stop and continually said "it's okay". She said she remembered him reaching over her and clicking the seat belt on because she recalled "taking it off when I got out". A.D. was asked why she didn't "hop out of the cab when this started?" and she replied: "I'm not sure, okay. I didn't want to walk home". A.D. testified that once she knew where she was she got out. She said that when she was closer to her home and on College Street she told him to stop. "I had enough". She paid with a credit card, got out and called her cousin, S.M., with whom she had attended the R.O.M. earlier that evening and told her about the touching. One of her friends called the police and she later attended the station and provided a statement. The Crown introduced a contact sheet of photographs taken by the security camera in the cab and the complainant commented that the photos "don't show everything". She said "they were taken on kind of an off-angle". (See contact sheet Exhibit 1).
[6] Under cross-examination, the complainant agreed that the cab ride was close to 15 minutes in length. She agreed there were no security photos depicting the driver touching her but stated his arm would have been at a 45 degree angle. She was asked: "He took your seat belt and clicked it in [closed]?" And she answered: "yes". She agreed she gave a statement on December 1st, 2012 and was asked the question: "Did he ever clip [the seat belt] in?" and she responded: "I don't think so…I don't remember if it was clicked or not". She was asked on the witness stand what hand he touched her with and she testified: "His right hand". She agreed that in her statement she was asked if she knew which hand he used and she replied: "I'm sorry, no I don't".
[7] The complainant was directed to part of her statement in which she said: "He held the seat belt on me and moved it around. Not much happened beyond that." She agreed that is what she told the police officer. When asked: "So he would have to be holding his seat belt in the same hand as the one he was touching you with for this to be true?" she replied: "That's physically impossible. So he clicked it in [the seat belt] and then touched me with his hand." The complainant said she was using her left hand "to get him off of me". When asked if she recalled one of her hands in contact with his to remove his hand, she replied: "I can't say I do." A.D. was shown a photograph on the contact sheet and asked if it depicted her against the window of the passenger door holding her nose and she replied: "Yes". She was asked: "You were feeling unwell in the cab?" and she answered: "Yes". She agreed there was a console between the front seats of the cab, that his identification was displayed prominently on the dash-board, there was a water bottle and gear shift in the centre of the console, and that in many frames of the contact sheet she is shown bending over holding her head and at times leaning close to the window.
[8] A.D. was asked about the reference in her statement to drinking a "couple of glasses of wine and some gin" that evening and she stated she could have had a couple glasses of wine at home and four gin and tonics at the R.O.M. She agreed she was "more drunk" that night than she had been in the recent past. She was asked: "When you threw up, you didn't exit and get in the back seat, or use the phone or call the police and make a report?" She replied: "It never occurred to me. I was drunk and wanted to go home". A.D. was asked: "How do you get around [Toronto]?" and she replied: "I use the TTC or taxi if I'm really drunk and want to get home fast."
THE EVIDENCE OF S.M.
[9] S.M., age 29, had been a teacher for 3.5 years at the time of the events of December 1, 2012. She stated she was A.D.'s first cousin and had been at the R.O.M. December 1st, 2012 with her and two other friends. She testified that they went to a cab just before midnight and A.D. left in the cab because "we were not ready to go home". S.M. stated that she seemed fine ─ "not passed out, not throwing up" ─ but about 15 minutes after midnight, she received a call from A.D. – she was crying, distraught and said: "he had touched her inappropriately and she was on her way back to her house". S.M. then proceeded to A.D.'s home when she seemed "traumatized on the couch, with her head down". She was "quieter" and "seemed more drunk at home". She agreed in cross-examination she had told the police that when they left her in the cab she [A.D.] was not well and she had to work the next day. She testified that on the night of December 1st after the event at the R.O.M., A.D. "was drunk" but was "not staggering". She agreed she stated to police that A.D. had told her that the cab "stopped a couple of times" while "she threw up."
THE EVIDENCE OF WAQAS AHMAD
[10] The defendant, Waqas Ahmad, gave evidence that he was 28 years of age and married with one young child, 1 ½ years of age. He testified he was born in Pakistan where he later completed a B.A. at the Punjabi University in Lahore. He emigrated to the United States and later to Canada, arriving in this country in 2009. He stated he had worked as an associate producer for a television channel and after being laid off, he began work as a taxicab driver for Beck Taxi. He stated he picked "the lady up at about 11:45 p.m." as he was heading west on Bloor Street toward Spadina Avenue. He said he requested that she sit in the back seat and she replied that she was drunk and not able to move to the back. He said he asked her to put on the seat belt but she did not put on the belt. He asked her where she was going and she said "College Street" so he proceeded down Spadina Avenue to Harbord Street at which time she said she felt like she was going to vomit. He gave her a plastic bag and she opened the door and vomited in front of a "post box". He stated she got back in the cab and he gave her another plastic shopping bag "in case she vomited again". He gave evidence that after she closed the door, she had her head on her knees. He said he again asked her to put on the seat belt because he was afraid that if he had to stop fast "she would hit her head on the dashboard."
[11] He said he again asked her where she was going and realized "she was so disoriented she couldn't tell me". He proceeded to College and Bathurst Streets (see route map of taxi ride prepared by Mr. Ahmed, Exhibit 2) and she told him to "go west", so he turned right and proceeded west. He stated he proceeded west and then she said turn around. He asked where she wanted to go and she became upset and said "take me to my home". He said: "you are not giving me an address. How can I take you home?" He said she then vomited into the shopping bag and threw it out the window. He said he gave her another bag "so the car would not get dirty". He said she then asked him to drive south from College Street the wrong way on a one-way street. He offered to go around and up the street legally, but she became upset and was speaking loudly "kind of yelling." He said "I can't go any further, you can get out here". He testified she said she was not going to pay "because I just ripped her off". He then said he would call the police and in response she handed him a credit card. They completed a credit card transaction for $14.00. He stated she called him an "asshole" and said "I will see you later on." "She got out, slammed the door and left".
[12] Mr. Ahmed testified he did not commit sexual assault and that he never came in contact with her body at any time and he did not try to put the seat belt on her. He said, "If I did it would be on camera". He said he was aware of the security camera in the cab: "It was part of our [taxi] education." He stated he had no access to the camera and there is no way to turn it off. He gave evidence he never made any attempt to block the camera.
[13] Under cross-examination, Mr. Ahmad testified that after the complainant sat in the front seat, "no one approached, others were at a distance" (estimated as 10-12 feet away). He stated, "She said College Street and I drove"…she wouldn't take the rear seat, said she was drunk and not going there. Since I was in the second lane and mindful of the traffic, I went towards College Street". He did not agree there was a period of time when she was seated in the front and her friends were talking by themselves. He said, "She did not communicate with any others and we left". Mr. Ahmed was asked: "If you didn't know whether to go east or west on College Street, why go to Spadina and south, rather than down St. George Street or Huron Street?" [These are closer access routes to College Street]. Mr. Ahmed said: "St. George had a lower speed limit and university students run across the road". As to Huron Street, he said, "I don't remember using that street very often". He was then asked: "So why did you go to College Street and Bathurst Street if she didn't tell you where to go?" He said that after she vomited at Spadina and Harbord, "her direction was west". He stated: "She said 'go west' when we got to Bathurst and College Streets".
[14] Mr. Ahmed was asked pointedly about why he didn't refuse to drive the complainant if she was vomiting, angry and belligerent. He was asked: "Were you allowed to refuse them [a ride]?" He replied: "Yes, if I'm scared of someone. Not if drunk. I have to take them and use a bag, napkin but not to refuse." He was asked: "you can say 'get out' if person was yelling? He answered: "Yes". He was asked: "You could have told her to get out? He replied: "Yes"… "She was belligerent saying you're a bad man and I ripped her off. I said I'll call the police. She gave me a card and I put it in machine".
[15] Mr. Ahmed was asked about his knowledge of the security camera in his cab. He said he learned about it in his taxi license course. He said he was told it was a video camera but was never shown camera results at any time. He said, "I didn't know how much the camera is going to cover. I thought it was the full cab." He said: "In my mind, it takes every moment and could even take pictures of feet coming in the cab".
[16] The defendant was asked in cross-examination why he seemed to be looking at his passenger so often, "looking down at her genitals." He answered by saying: "Sometimes I am looking quickly. Her head was down. If I brake hard she hit dashboard. I had to think why head is down. We need to watch road as well"…. "I look when I ask questions. Maybe I watch back mirror". He stated: "I need to look at her to talk to her. And when she gets into [cab], to ask her where she goes". He explained that on the first page of the photo contact sheets, "she is coming in I stopped to talk to her." "On the second page, I check the mirror and messages in the dashboard, from dispatch, with the cab radio, maybe pager". He explained that his pager was in the front of the dashboard at the gear shifter and described it as 2½ to 3 inches in size. Referring to the contact sheet, he stated: "I can only guess what the pictures mean". He was asked: "Did you touch her?" He replied: "I'm 110% sure I did not touch her at all and did not take advantage of her".
ANALYSIS
[17] The issue to be resolved is whether the Crown has proven that the defendant, Mr. Ahmad, committed a sexual assault on the complainant beyond a reasonable doubt. There is no question that the complainant, A.D., described the actions of the taxi driver, Mr. Ahmad, as a touching of a sexual nature without her consent which, if accepted, would constitute a sexual assault as defined in R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481 (S.C.C.). In this particular case then, the twin questions for analysis are credibility and reliability.
[18] After extensive consideration and having applied the usual three-part test found in R. v. W.(D.), [1991] 1 S.C.R. 742 in which Cory J. for the majority, describes the correct method of assessing credibility, I have concluded that the charge of sexual assault has not been proven beyond a reasonable doubt. I will deal with the evidence of the witnesses in turn, beginning with the testimony of A.D.:
Assessment of A.D.'s Evidence
(a) Credibility
I found her evidence credible for the most part. I am satisfied with her explanation as to why she initially sat in the front seat and why she did not go to the back seat or leave the cab altogether after she had vomited. I can well imagine that she thought her friends were going to sit in the back seat and when they changed their minds, she felt too 'under the weather' to move to the back. Equally, I'm not surprised that she did not leave the cab at the first place it stopped when she was being sick because she did not know the city and was concerned for her safety.
(b) Reliability Concerns
I accept that A.D. was "more drunk" (as she said) than she had been in the recent past. As a result of her state of intoxication during the taxi ride, it is difficult to ascertain what happened in the cab. In chief she was asked: "Throughout the ride the taxi driver was extending his arm and touching you? She answered: "Yes, with maybe brief pauses". She later said his hand remained in her genital area "for the majority of the trip". In her statement to police she stated: "He held the seat belt on me and would move it around. Not much happened beyond that". There was some (minor) discrepancy between what she told the police about whether her belt was on ("I don't think so…") and what she told the Court. While I believe A.D. would know if she was touched in the area of her genitals while riding in the taxi, and I am confident she sincerely believes that is what happened, there is a reliability gap in her evidence because of her state of intoxication that leaves me with a reasonable doubt. In fact, there was no particularity to what happened for most of the cab ride aside from being "touched in the genital area" over her clothing. For example, I have no evidence of what occurred when she leaned forward on her lap (with her head on her knees) when she was feeling sick, what happened when she tried to move his hand away, what took place when she crossed her legs and when she moved to the right (close to the passenger door) and while she was being sick outside the cab. It is the lack of detail that raises important questions.
(c) Photographic Evidence
Further, and most significantly, the photographic evidence on the contact sheet (Exhibit 1) tends to raise a reasonable inference that nothing untoward was taking place. The complainant is demonstrably unwell while seated in the passenger seat, either as evidenced by the fact there is nobody in the passenger seat (because she had opened the passenger door while being sick) or as evidenced from her posture ― with her head forward on her knees. Based on what can be seen in the photos it is hard to imagine a touching taking place "throughout" her ride or even if for a "majority of the time" given her changing positions and obvious distress. It is of no assistance to count the number of times the driver looked to the right in the general direction of the passenger as if that implied some malevolent purpose. Without any auditory input, without knowing the position and configuration of equipment in the vehicle (the side mirrors, cab radio, the console, his pager), without some evidence of the distance between the driver and passenger in relation to his arm's length and how often he might have reasonably looked the right to check on the welfare of a passenger who was being sick, there can be very few fact-based inferences to be drawn from the photos. Deductions from facial expressions would be equally unproductive and fraught with subjectivity. (See literature on the unreliability of demeanour evidence, for example: "A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanour Evidence in Assessing Witness Credibility", Professor J. Blumenthal, (1993) 72 Neb. L. Rev. 1157). As a result of the photographic evidence, as limited as it may be, there is every indication of a normal taxi ride with a passenger who is unwell and consequently, I have some misgivings as to the reliability of the complainant's evidence.
Assessment of Mr. Ahmad's Evidence
[19] While I am not sure I believe the defendant's evidence, I have concluded it raises a reasonable doubt for the following reasons:
(a) Consistency and Plausibility
He was not shaken in cross-examination and his version of events was reasonably plausible. His testimony was fairly consistent and logical. He explained that he asked her to sit in the back of the cab, she refused, he proceeded to College Street with limited instructions as to where she was going and after she had been sick twice and became angry, he eventually left her where she wished to exit and she paid by credit card. He explained the directions he took, the difficulty he had with the passenger and how she yelled at him and called him an "asshole" before leaving the cab. I could conclude that he took advantage of an inebriated woman who conveniently sat in the front passenger seat and then invented a story about a sick and irate passenger who was trying to cause trouble for him in order to damage her credibility. I was asked to consider why he would continue to drive an angry, vomiting drunk if it were not for the opportunity to molest her. I was asked to conclude he tried to make her seem more confused by saying she did not provide proper directions so as to create the impression of a passenger who was quarrelsome, irrational and generally incapable of belief. The difficulty with this approach to a credibility analysis is that such cynicism about his evidence without any basis in fact or rational inference tends to undermine the presumption of innocence. His testimony was just as consistent with the known and undisputed evidence of a difficult taxi ride as was hers. Events could have transpired the way he described. It could be that he felt a sense of duty to continue even if she was drunk and physically sick. As he said, he was not allowed to refuse a person who was drunk. "I have to take them, use a bag and a napkin. Not to refuse". Additionally, he said that if at the start of the trip they begin "yelling", he could refuse the fare and could tell them to "get out if they were yelling" during the trip. A reasonable inference from the facts of the instant case could well be that he proceeded until he could not take her any further because of the lack of clear instructions and the abuse: he then stopped and asked her to pay the fare.
(b) Security Camera Evidence
Crown Counsel argued that a second major area of concern with his evidence was his insistence that he believed the security camera had a wide visual range such that it could record everything taking place in the cab including the feet of a person entering the rear door. Ms. Newhouse submitted that this belief in the "robot-like" properties of the camera was belied by his previous occupational experience as a television producer, during which he would have learned how to recognise camera lenses and how to operate surreptitiously "below the radar", as it were. In my view, this assertion calls for speculation and assumptions about what transpired. There was no evidence as to the size of the camera or how it was mounted, or whether it would have been obvious to a person familiar with television cameras that this security camera was not capable of recording the full visual field of what could be seen in the taxi. Would Mr. Ahmad have known that the camera lens could not record the image of any person in the front seats of the cab below shoulder level? In fact I have no reason to disbelieve his evidence that he had never seen the recorded "results" before and that he thought it was a video camera that "would cover the full cab". In fact, one may wonder what purpose this in-car security camera would serve with such a limited range. I may have reached a different conclusion if an expert witness had given evidence that a person familiar with cameras would be aware of the limited range of this security camera.
(c) Minor Discrepancies
It was submitted that Mr. Ahmad lied in his evidence about a discussion at roadside among the three friends as to who was going to go home and who wanted to stay downtown. He did not agree there was a period of time when she was seated in the front and her friends were talking by themselves. He said, "She did not communicate with any others and we left." I agree it is likely that there was a momentary group discussion as to whether the group wanted to go home or stay downtown, but I would not characterize his testimony as a lie. In fact, he heard the testimony about a brief meeting from A.D. and S.M. and if he wanted to lie he could have tailored his evidence to conform to their testimony ― as nothing turned on this issue. It is just as likely, in my view, that he simply does not remember a discussion and brief delay because it was unimportant at that point and he was likely distracted by traffic backing up behind his vehicle which had stopped (according to him) in the second lane from the curb in heavy traffic. A final concern that was expressed was about the route he took to College Street and why he continued to proceed west if the only instruction from her was "College Street." Mr. Ahmed was asked: "If you didn't know whether to go east or west on College Street, why go to Spadina and south, rather than down St. George Street or Huron Street?" I do not view this evidence as a major lapse in credibility. Judicial notice can be taken of the fact that Spadina Avenue was a "quick way to go to College Street" as it was a considerably wider thoroughfare than the other two streets and that most residential housing in the area of College Street was west of Spadina. Additionally, he testified that "after she vomited, [at Spadina and Harbord] her direction was west." He further stated in evidence that: "I go to Bathurst and ask her where she want to go. She said 'go west'." In my view, he adequately explained how he arrived at College Street and Euclid Avenue, in spite of very limited instructions.
CONCLUSION
[20] In the result, while I have serious reliability concerns, I do not disbelieve the evidence of A.D. or Mr. Ahmad. Having considered all of the direct and circumstantial evidence in this case, I am not able to determine what took place with any degree of confidence, and consequently, on the whole of the evidence, I am left with a reasonable doubt. For that reason I find that the charge of sexual assault has not been proven beyond a reasonable doubt and the charge against Waqas Ahmad is therefore dismissed.
P. Harris, J
June 11, 2014