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 of the Criminal Code:

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

486.6 (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: 2018-07-19

Court File No.: Brampton 3111 998 17 520 00

Between:

Her Majesty the Queen

— AND —

Bikramjit Singh

Before: Justice H.S. Amarshi

Heard on: May 14 and 15, 2018

Reasons for Judgment released on: July 19, 2018

Counsel:

• Alana Fedak-Tarnopolsky, counsel for the Crown
• Bally Hundal, counsel for Bikramjit Singh

Introduction

[1] Bikramjit Singh is charged with one count of sexual assault. I issued a non-publication order pursuant to s 486.4 of the Criminal Code at the outset of the trial and I will hereinafter refer to the complainant as P.D.

[2] The sexual assault is alleged to have occurred on October 28, 2016 on an Air Canada flight between Toronto and New Delhi.

[3] The jurisdiction for this court to hear this matter is not disputed.

The Elements of the Offence

[4] "Sexual assault" as defined in the Criminal Code covers a broad range of offensive conduct including the allegations in this case which involve uninvited sexual touching. The incident as described by P.D. taken at face value, falls within this definition.

The Evidence

(i) Evidence of the Complainant

[5] P.D. is a 52-year-old married female. On October 28, 2016, she was on an Air Canada flight from Toronto to New Delhi. P.D. had visited India in the past. She was alone. On this occasion she was attending a yoga teacher training course in Rishikesh, a small town north of the Indian capital.

[6] In order to attend the training, P.D. had been saving funds for two years.

[7] She was seated in the aisle seat. The flight time is approximately 14 hours. Mr. Singh was seated in the middle seat, just to her right. The window seat was also occupied. Singh was visiting his elderly mother in India.

[8] P.D. and the accused exchanged some small talk at the outset of the flight.

[9] According to P.D. during the first meal service, Mr. Singh told the complainant her meal wasn't cooked and told the flight attendant to remove the meal. It was not replaced, causing P.D. to be upset. In her evidence, she did not have drinks during the dinner service.

[10] She describes Mr. Singh however as having a number of drinks, including scotch, Jack Daniels and vodka.

[11] She was able to recall the type and number of drinks he consumed, because she was beside the accused and closest to the flight attendant when he ordered them. At one point, Mr. Singh orders two scotch, which are consumed, followed at some point by two small glasses of Jack Daniels. These four drinks were consumed within a half hour. Mr. Singh further ordered two vodkas.

[12] At some point after the meal service, P.D. testified that Mr. Singh made two separate sexually explicit remarks to her. P.D. reported the comments to a female flight attendant. She was not moved however to another seat after telling the flight attendant she would be "fine" in her current seat. She also told the flight attendant that the accused had been drinking. However, nothing was done in response to this.

[13] P.D. decided to sleep. She pulled a blanket up to her chest. She testified she felt a need to protect herself given the explicit comments the accused had made earlier and propped a pillow between her and Mr. Singh. She estimates she went to sleep at about 2:30 or 3 a.m.

[14] It is unclear how long P.D. was asleep but when she awoke her right hand was on the erect penis of the accused. Mr. Singh's pants and underwear had been lowered to just above his knees. A blanket covered his torso. It was the motion of the accused moving his pelvis that awoke P.D.

[15] She screamed "help" and ran or crawled to the front area of the plane, where there was a small group of three or four flight attendants. She used the illuminated lights along the floor or possibly ceiling as a guide to move to the front.

[16] During P.D.'s cross-examination on this area of evidence she conceded that she told the police "I flew like Batgirl to the front." She agreed with that characterization.

[17] She was upset and crying. P.D. does not recall the name, but specifically recalls telling one male flight attendant about the incident at her seat. He seated her in the front of the economy section of the plane and went to retrieve her belongings.

[18] While seated she had a glass of wine. She does not recall drinking any additional alcohol over the course of the remaining time on the flight. She does not remember whether she had alcohol prior to the incident, but believes she just drank water.

[19] She did not wish to speak to the Indian police about the incident upon arrival in New Delhi. She told the male flight attendant that she would wait until she returned to Canada to contact police to file a complaint.

[20] During cross-examination P.D. explained why she did not want to report the incident to Indian police. She was afraid to speak to them, given what she had read in the media. She stated that she wasn't sure how passionate they would be. I took her to mean compassionate, but her point was clear, she was unsure of the reception she would receive from Indian police given some of the widely reported cases of sexual assault in India. The Crown further conceded that one of the reasons she gave in her police statement as an explanation for not wanting to speak to Indian police was that she did not think they spoke English.

[21] As a result of the in-flight move P.D. was now seated beside a woman who she testified held her hand and consoled her.

[22] According to P.D. there were 5 hours left in the flight to New Delhi at the point she was moved to the front of the plane. She further testified the incident occurred within 2 or 3 hours of the flight leaving Toronto.

[23] When she disembarked from the flight, she testified that Mr. Singh approached her and asked, "Are we okay?" She did not respond.

[24] While in India she spent a week with a friend and his family in New Delhi celebrating Diwali – a major holiday in India. She then travelled to Rishikesh to start her yoga teacher training program. She was in Rishikesh for 10 days but cut short her training. She described feeling traumatized by what happened on the plane and felt ashamed. She told her husband about some of the details of incident. He told her it was best for her to return to Canada. She did not give her husband the full details of the incident because she did not want to worry him.

[25] When she returned to Toronto, police were waiting for her at Pearson International Airport. They had been alerted she believes by the pilot prior to her arrival.

[26] P.D. testified that she has brought a civil suit against the accused and Air Canada as a result of this alleged incident.

[27] She denied during cross-examination she left India early because of a lack of hot water or pollution. She had been to India before. She describes being heartbroken that her trip was cut short.

(ii) Evidence of Dennis Poulin

[28] Dennis Poulin has been a flight attendant with Air Canada for 28 years. On this particular flight he was the Service Director, a position where he oversees the service operations for passengers on the plane.

[29] On the October 28, 2016 flight, he was assigned to business class. Approximately one hour before the flight was to arrive in Delhi, Poulin walks to the back of the airplane starting in the economy section to complete a final pick-up of items from passengers. He is pulling a trolley. He testified the pick-up duties also give him an opportunity to monitor the cabin prior to arrival at the flight's destination.

[30] During pick-up, he notices a passenger looking at him. He testified that he felt something was not right and approaches P.D. who advises him she would like to speak. He asks P.D. to follow him to the front of the economy class section of the plane. He draws the curtains.

[31] P.D. tells him that she has been touched inappropriately by another passenger. She is crying. He testified that she looked embarrassed and uncomfortable. P.D. asks to demonstrate the touching. She puts her hand near Mr. Poulin's knee and traces her hand to his thigh.

[32] He asks her if she wanted the Indian authorities to meet the flight in Delhi. P.D. declines, telling Mr. Poulin that she does not believe the Indian police would take her allegations seriously. He observes her to be sober.

[33] He seats her near the front. A second flight attendant provides her a glass of wine.

[34] Poulin approaches Mr. Singh and asks for identification, which the accused provides. He observes that Singh is mildly intoxicated.

[35] The accused denied touching P.D. and says she had fallen asleep with her head on his shoulder.

[36] Mr. Poulin later encounters P.D. when the flight has landed and after passengers have disembarked. He asks her how she is doing. She responds that she will be fine. She is alone when he speaks to her.

(iii) Evidence of the Accused

[37] Bikramjit Singh occupied the middle seat on the flight to New Delhi. He was originally assigned to another seat but agreed to move in order for a family to be able to sit together. He assisted P.D. in putting a heavy bag in the overhead compartment prior to the flight taking off.

[38] He testified that he engaged in some small talk with the complainant prior to the first meal service. He observed P.D. to take one small bottle of hard liquor from the flight attendant on two separate occasions. He further believed she had a glass of red wine.

[39] Singh agrees he drank alcohol on the flight. He took small bottles of Wisers – a whisky, on two separate occasions. The quantity is the usual portion size found on flights and served in miniature bottles. In addition, he had two small bottles of red wine. The alcohol came from two different flight attendants.

[40] One of the bottles of red wine came from a male seated to his right at the window. The accused had earlier asked this passenger, who was not drinking alcohol, to order red wine on his behalf during the dinner service.

[41] He conceded he felt the effects of the alcohol, agreeing in cross-examination that he was "a little bit intoxicated."

[42] He further testified that he believed P.D. to be drunk or feeling the effects of alcohol because her eyes were red, although he agreed it may have been a result of her sleeping on the flight. Another sign of intoxication, according to Singh, was that the complainant kept dropping her glasses. He testified that P.D. dropped her glasses on three separate occasions. They fell to the ground and he assisted in retrieving them.

[43] P.D. fell asleep after the dinner service and according to the accused she proceeded to put her head on his shoulder. He testified that he told P.D. to sit straight up and not put her "weight" on him. He said the request was made in a polite manner. P.D. in her evidence does not recall whether she put her head on the accused's shoulder while she slept.

[44] A few minutes later, P.D. again puts her head on the accused's shoulder after dozing off. At some point she awakens and starts to watch a movie. Mr. Singh testified that he suffers from a slipped disk and rolled up his airplane blanket and placed it at the small of his back for support. He only had one blanket, despite a request to a flight attendant to bring another. He was wearing a jacket. This evidence contradicts P.D., who says he placed her hand on his penis under his airplane blanket.

[45] The accused denies making any sexually explicit comments to P.D. He denies placing her hand on his penis. He further denies touching her thigh.

[46] He agreed he was feeling some of the effects of the alcohol, but denied being intoxicated, saying he had his "full senses."

[47] Mr. Singh made a statement to Peel Regional Police upon his return to Canada. In that statement, provided with the assistance of an interpreter, he denies touching P.D. inappropriately. He further denies being intoxicated. He specifically says in that statement, "If I would have been intoxicated, I would have talked in bad manners" and further, "If I would have been intoxicated, I would have misbehaved with someone."

[48] Crown counsel suggested to the accused that both of these statements illustrate a past history of sexually inappropriate behaviour while intoxicated.

[49] Singh disagreed and clarified at the time he made the statement he was trying to explain to the police that he has known people who are drunk that have behaved badly.

[50] I have reviewed this evidence carefully and although awkwardly phrased and initially confusing, I accept Mr. Singh's explanation and I do not see this as an admission of previous assaultive behavior. It was clear from his evidence and the context he provided about the police statement in his evidence, that he was trying to illustrate to police the dangers of intoxication. He specifically denies either touching P.D. or speaking to her in a sexually explicit manner. He conceded he had been drinking but was not drunk.

[51] Once the flight lands Mr. Singh says he does not speak to nor does he see P.D. again. This too contradicts P.D.'s evidence, where she testified that the accused had spoken to her after the flight had landed.

Analysis

(i) Multiple Inconsistencies

[52] The evidence of Dennis Poulin, the Air Canada Service Director, and P.D. conflict in significant ways. During cross-examination she conceded that she told police "I flew like Bat Girl to the front." She further agreed with that characterization during her testimony and adopted it.

[53] P.D. was clearly suggesting in her evidence that she moved quickly and urgently to leave the situation she had found herself in when she awoke.

[54] She screamed "help" and ran or crawled to the front area of the plane, where there was a small group of three or four flight attendants. She used the illuminated lights along the floor or possibly ceiling as a guide to move to the front.

[55] Mr. Poulin describes a version of events that is quite different. He was completing a pick-up of items near the end of the flight and had passed P.D. with his trolley. While facing her row he notices P.D. looking at him and sensed something was wrong. He approaches her and P.D. asks to speak. Poulin proceeds to escort her to the front of the plane, where she tells him that she had been touched by the accused.

[56] It is hard to reconcile these differing versions of the same event. Mr. Poulin is an experienced flight attendant who gave evidence in a straightforward and thoughtful manner. He had a particularly strong recollection of the incident that is subject to these proceedings. I found him to be a credible witness, who gave reliable evidence.

[57] I prefer his evidence on this point, specifically how the incident comes to his attention and it undermines the reliability of P.D.'s testimony.

[58] The complainant further testified that there were 5 hours left in the flight when this incident occurs. She further elaborated on this evidence saying the incident occurred two or three hours into the flight. Her timeline for the incident therefore is either a relatively short time into the flight or close to the half-way point of the 14-hour flight. According to Mr. Poulin, whose evidence I accept on this point, there was only 1 hour left in the flight, which is why he was picking up items near the end of the flight. I appreciate that perceptions of time or the duration of events, especially relayed well after the fact, may not always be particularly accurate. It is not uncommon for witnesses to have some difficulty recalling time. However, this specific inconsistency is not minor and reflective of multiple inconsistencies in P.D.'s evidence, which I will further outline later in this decision.

[59] It is reasonable to expect that a witness be able to provide an accurate account of events that allows a court to have sufficient confidence in the reliability of their evidence. I had some real concerns about P.D.'s ability to accurately recall events.

(ii) Recent Fabrication

[60] The Crown tendered evidence from Dennis Poulin for the limited purpose of refuting an allegation of recent fabrication. I admitted into evidence the fact that P.D. made a complaint of inappropriate touching to Mr. Poulin while still on the flight.

[61] In the usual course, a similar consistent statement of a witness is not admissible at trial as a means of bolstering the credibility of a witness. In certain prescribed situations however a prior consistent statement can be relevant and admitted for a purpose where the defence alleges that a complainant fabricated their evidence for one reason or another. In this context, a previous statement has evidentiary value to demonstrate that the complaint of sexual assault was made prior to the witness having a motive to fabricate or to confirm the present version of events is not new, but in fact stated on an earlier occasion. To be clear a previous complaint is tendered for a limited purpose, to rebut an allegation of recent fabrication and not act as corroboration of the complainant's version of events.

[62] The Crown tendered this evidence, after the defence raised the issue of timeliness of the complaint in this case. The allegation of sexual assault to the police was not made until P.D. returned to Canada. The complaint was not made immediately while she was still in India, which would have been the first opportunity.

[63] I accepted P.D.'s explanation for the reason behind the delayed disclosure in this case. Her reluctance to report the incident to Indian police was coloured by media reports of how Indian authorities had dealt with sexual assault cases in that country. Whether such a concern is reasonably based is not particularly relevant. It reflects her state of mind at the time.

[64] That said, even had P.D. not provided an explanation, I would have attached limited weight to that argument in the circumstances. The Supreme Court of Canada in R. v. D.D., 2000 SCC 43, has stated that the timing of a complaint is a factor to consider, but, standing alone, is insufficient to draw a negative inference against a complainant.

[65] The court in D.D. goes on to emphasize that the significance of the complainant's failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how victims should react to acts of sexual abuse.

[66] On this issue of false stereotypes, in addition to delayed disclosure, the defence further suggested that P.D.'s actions following the alleged assault were peculiar or at odds of how a complainant should react following a sexual assault. Problematic according to the defence, was P.D. celebrating the Diwali holidays in New Delhi with her friend in the days following the flight. I am cognizant that courts must be cautious in applying certain stereotypes concerning the expected conduct of complainants. In this particular context, I reject any negative inferences that the defence suggests be drawn by P.D.'s actions in the days following the alleged assault. It is simply not probative of any of the issues before me.

(iii) Further Inconsistencies

[67] Although a prior consistent statement can be tendered under limited circumstances, for example, to negate an inference of recent fabrication, a prior inconstant statement may be relevant in assessing credibility.

[68] In this case P.D. testified that when she awoke her hand was on Mr. Singh's erect penis. His pants were down. She told the police the same thing. But again, she conveys a different version of events to Mr. Poulin. According to his evidence, P.D. told him that the accused had his hand on her leg. There is no mention of his pants being pulled down. No mention of her hand being placed on the accused's penis. Further P.D. demonstrates the touching. She places her hand on Mr. Poulin's knee and thigh to provide a further physical and visual aid to supplement her complaint.

[69] Of additional concern, P.D. testified that she never demonstrated the nature of the assault to Poulin with a physical aid i.e. the touching of his leg, but clearly she did if I accept Mr. Poulin's evidence. This last inconsistency isn't a particularly significant one, but again undermines an assessment of the reliability of the complainant's evidence.

Relevant Legal Principles

[70] The central issue in this case is the credibility and reliability of the complainant's evidence.

[71] Justice Watt in R. v. H.C., 2009 ONCA 56, explained the difference between credibility and reliability:

Credibility has to do with a witness's veracity, reliability relates to the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe;

ii. recall; and

iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

[72] I note that minor inconsistencies do not necessarily undermine the credibility of a witness, in some ways it is to be expected. There is no standard of perfection in a criminal trial. Witnesses may perceive, reflect and recall events differently. I appreciate that.

[73] The difficulty arises when there are multiple inconsistencies as was the case with P.D.'s testimony. The reliability of her evidence was undermined by the testimony of Dennis Poulin. I have already found Mr. Poulin to be a credible and reliable witness in this case. There are aspects of P.D.'s evidence which simply cannot be reconciled with his evidence.

[74] As Justice Feldman noted in R. v. Hooching, 2007 ONCA 577, "The evidence of any witness, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable."

[75] That is what has happened in this case. Mr. Poulin has given evidence, when reflected upon, that has caused this court some real concern over P.D.'s ability to accurately recall and accurately recount what occurred on the flight to New Delhi. The testimony of P.D. is inconsistent with prior statements made on relevant details. It is the cumulative effect of these inconsistencies when all of the evidence is considered that undermines this court's confidence in some aspects of her evidence.

[76] I want to note, and this is important, I am not saying P.D. fabricated these allegations or that she is dishonest. Indeed I believe something occurred on that flight between these parties, I am just unsure what occurred. There were many aspects of P.D.'s evidence that were credible and she gave compelling and at times thoughtful evidence.

[77] Clearly there was an incident that occurred on that flight that has caused P.D. significant distress. The evidence falls short however, where I can make definite findings of fact or conclusions that would support a finding of guilt in a criminal trial.

[78] If there was a different standard, there may indeed have been a different outcome in this trial, something happened on that flight, but it would be unsafe to convict Mr. Singh on the evidence of P.D. Likely guilt or probable guilt cannot be the basis to sustain a conviction.

[79] The main issue in the end for this court and the major obstacle in supporting a finding of guilt relates as I have noted with the reliability of P.D.'s evidence.

W.D. Analysis

[80] Given this conclusion I won't spend too much time on the W.D. analysis, but I have made certain conclusions. Mr. Singh gave a reasonable amount of detail in his evidence. He denied the allegations. He was subject to a vigorous and skilled cross-examination and maintained his position that he did not touch P.D. inappropriately or make sexually suggestive comments to her. His evidence however was prone to exaggeration and there were aspects of his testimony that were frankly unconvincing. His portrayal of P.D. as being intoxicated or being affected by alcohol, was not believable and in fact this evidence was contradicted by Mr. Poulin who described P.D. as sober.

[81] His testimony that he politely asked on multiple occasions that P.D. not rest her head on his shoulder was not particularly believable.

[82] That said there were aspects of his evidence that I found credible. He readily conceded that he felt the effects of alcohol for example and Mr. Singh provided significant detail about the amount of alcohol he consumed on the flight, including using his seatmate to secure additional wine for him. In fact, the amount of alcohol that the accused had access to on this flight is broadly concerning and Air Canada staff did little or nothing to monitor his alcohol consumption.

[83] I believe P.D., when she testified that she advised a female Air Canada flight attendant that Mr. Singh had consumed too much alcohol and that he was drinking too much. That is a finding of fact of this court. I also believe she alerted some concern to that same flight attendant, however what exactly was conveyed is unclear. Nothing was done and Mr. Singh was allowed to consume the drinks he had been served. No action was taken by flight staff or a determination made that P.D. should be moved to another section of the plane.

[84] Mr. Poulin made observations that Mr. Singh was slightly intoxicated. Of note, this was at the end of the flight and most of the alcohol consumption according to the evidence I heard happened prior and during the meal service some several hours before Mr. Poulin made his observations. It is reasonable to conclude, or a conclusion can be drawn that some of the effects of the alcohol had worn off by the time Mr. Poulin interacted with the accused.

[85] That conclusion does not change the result in this case, but it is clear that Mr. Singh was given too much to drink on this flight.

[86] As noted, I had some real concerns over aspects of Mr. Singh's evidence, so that the first prong of W.D. is not satisfied.

[87] However, after applying the second step of W.D. and carefully considering all of the evidence in this case, the accused has raised a reasonable doubt and I must find him not guilty.

H.S. Amarshi J.

Footnotes

[1] See R. v. Evans, [1993] 2 SCR 629

[2] R. v. D.D., 2000 SCC 43, at para. 63.

[3] R. v. H.C., 2009 ONCA 56 at para. 41.

[4] R. v. Hooching, 2007 ONCA 577 at para. 15.