WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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

Ontario Court of Justice

Date: January 8, 2016

Court File No.: Brampton 13-11189

Between:

Her Majesty the Queen

— AND —

Dawood Hashmi

Before: Justice D.F. McLeod

Heard on: February 11, August 14, 25, 2015

Reasons for Judgment released on: January 8, 2016

Counsel:

• E. Normand — counsel for the Crown
• D. Zbarski — counsel for the defendant Hashmi

D.F. McLEOD J.:

Charge

[1] Mr. Hashmi is charged with committing sexual assault against Ms. S., on or about the 1st day of July 2013.

Evidence of Ms. S.

[2] Ms. S. is a young woman who has Cerebral Palsy and as a result of her disability relies on specialized vehicles for the disabled in order to get around the city. On July 1, 2013 Ms. S. relied on the services of a company known as "Mobility Plus," which was encumbered to transport her to Mississauga Square One.

[3] Ms. S. recalls being asked a series of questions by the driver such as her address, her relationship status, as well as her date of birth. In her responses she was less than candid because she was unsure of the driver's motivations.

[4] Ms. S. was meeting a friend of hers at Celebration Square and upon arrival at the Humber College location, the driver got out of the vehicle to put the ramp at the back of the vehicle down.

[5] Eventually Mr. Hashmi unstrapped one of the seatbelts during which, according to Ms. S., she indicated to him to stop. He did not stop however and a short time later he began to unstrap the other side.

[6] The reason Ms. S. asked Mr. Hashmi to stop was because he was intentionally touching her breasts while under the guise of loosening her seat belt. Ms. S. indicted that he at one point had both of his hands over both of her breasts in a cupped-like manner, which would have lasted about 2 seconds. Ms. S. also described the pressure applied as gentle.

[7] During the entire interaction with her, Mr. Hashmi did not say anything. Eventually Ms. S. is dropped off at the event; however according to her testimony, she is dropped off some 15 minutes away from the pre-arranged meeting spot.

[8] Ms. S. testified that she did see two police officers when she was dropped off but did not approach them to advise them of what had transpired. Instead Ms. S. took a picture of the licence plate of the vehicle and upon exiting she phoned her mother and explained what had transpired.

[9] Ms. S. remained at the event for another 6 – 7 hours before returning to her residence. The police were contacted the following day by her mother.

Evidence of Mr. Hashmi

[10] Mr. Hashmi has been a taxi driver for the past 7 years and was employed with Diamond Taxi Service at the time of the alleged incident.

[11] Mr. Hashmi was fired from Diamond Taxi Service 4 days after the alleged incident.

[12] Mr. Hashmi was dispatched to pick up Ms. S. at 3:10pm on the afternoon in question.

[13] When he arrived at the address he noticed a woman sitting in a wheel chair in the front of the hospital. He approached the woman and asked for her name to ensure that this was in fact the woman he was supposed to pick up. Mr. Hashmi confirmed the information that was necessary to confirm her identity and then they left for the destination she requested.

[14] Mr. Hashmi explained to the court that while he was attempting to secure Ms. S.'s shoulder belt on the left side of the truck he noticed that it was tangled and while he was attempting to unbuckle the belt he lost his footing.

[15] At the time that he was falling and in an attempt to break his fall his hand grazed the left side of Ms. S.'s chest. This was for a split second according to his testimony and was unintentional.

[16] He also apologized to Ms. S. about what had taken place. When this was done Ms. S. did not speak or react in any way.

[17] After regaining his composure and balance he then attempted again to untangle the belt and then secured Ms. S. in her seat in order to ensure that her seat remains stable while she is travelling in the vehicle.

[18] When asked in examination in chief to determine if he ever asked Ms. S. if she was married or single, his response was that he did not recall asking that question and in fact generally does not ask personal questions of the clients that he is driving.

[19] He even recalls speaking to security guards when he was having her depart his vehicle. He indicated that he has a client in a wheel chair and she cannot walk. He asked if he could gain entry. They did open the area and he was allowed to have her disembark at this point.

[20] He also recalls her seeing her friends and wanting to be dropped close to where they are located. She insisted to be dropped at the back part of the building closer to where her friends were located. He said he would take one more drive around to see if there was a more suitable location to drop her.

[21] She also asked him to loosen her belt because it was too tight; he did as she asked and loosened the shoulder belt. As he explains it, when the vehicle moves the chair shakes and in so doing tightens the belt.

[22] According to the evidence of Mr. Hashmi, he was also asked by the complainant to come back and pick her up after the event she was attending. He was told by dispatch to get her number and when she is getting picked up they will be able to contact her and find out where she is waiting.

The Reasonable Doubt Standard

[23] The burden of proof rests on the prosecution throughout the trial and never shifts to the accused: R. v. Lifchus, (1997), 118 C.C.C. (3d) 1 (S.C.C.). The standard of proof on the crown has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40.

[24] The Supreme Court requires that this standard be applied to the issue of credibility: R. v. W.(D), (1991), 63 C.C.C. (3d) 397 (S.C.C.). In W.(D)., Cory J. directed that the trial judge must acquit if the evidence of the accused is believed or if he is left in reasonable doubt by it even if he does not believe that evidence. The third element of W.(D) obliges the judge to ask himself even if he is not left in reasonable doubt by the evidence of the accused, whether he is convinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence which he does accept.

[25] In this analysis, rejection of an accused's evidence may be derived from a "considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence," but not on the basis of preferring the worth of one over the other: R. v. J.J.R.D.; R. v. Maharaj; (2004), 186 C.C.C. (3d) 247 (Ont. C.A.).

[26] The trier of fact is entitled to assess an accused's testimony in light of the whole evidence including the testimony of the complainant, and in so doing, comparing the evidence of the witnesses: R. v. Hull. In fact, the court made reference in this regard to the "positive duty to carry out such an assessment," given the possibility that the judge may be left in reasonable doubt concerning the guilt of the accused.

[27] In a thoughtful review of these authorities and this issue, given the difficult application of W.(D). principles to the standard of proof in cases pitting one complainant against one accused, Justice Duncan came to a conclusion, with which I respectfully agree both in logic and principle, that "a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence:" R. v. Jaura, 2006 ONCJ 385 (Ont. C.J.).

Application

[28] The evidence of both Ms. S. as well as Mr. Hashmi was cogent and fair. Both individuals recounted their versions of events but in many respects both versions were not perfect in their delivery and had their fair share of questionable moments.

[29] Both witnesses provided plausible explanations for their actions and both witnesses were willing to accept responsibility for those answers that did not necessarily place them in a positive light.

[30] It was apparent to this court that Mr. Hashmi, although providing his responses through an interpreter, did not always appreciate (this court would note) the nuance behind questions being posed, particularly those questions dealing with his memory of the events or why he was unable to recount certain details.

[31] With respect to Ms. S., her answers, although easily understandable, caused this court some considerable pause with respect to her actions or lack thereof on the day in question as well as the various inconsistencies that were brought out between her statement on July 5, 2013 and her testimony during this trial.

[32] On the main issue in contention in this matter, the evidence of both witnesses lay in stark opposition. This case is without any independent witness testimony, forensic evidence, or strong testimonial inconsistencies.

[33] When balancing my obligations and reviewing the case law with respect to R v. W.D. I am unable to come to a decision beyond a reasonable doubt. In coming to this realization it is not lost on me that I am somewhat sensitive to the vulnerabilities that Ms. S. and others in her physical circumstance finds themselves; however, a decision of this sort is not made solely on preference but rather on the evidence as it is presented.

[34] As such an acquittal will be entered with respect to this matter.

Released: January 8, 2016

Signed: "Justice D.F. McLeod"