Court Information

Ontario Court of Justice

Date: 2018-10-25

Court File No.: Toronto 4817 998 17-75002441

Between:

Her Majesty the Queen

— and —

Sukhbaj Singh

Before: Justice Richard Blouin

Heard on: July 31, August 1, and August 2, 2018

Submissions heard on: September 26, 2018

Reasons for Judgment released on: October 25, 2018

Counsel

Mr. Sam Scratch — counsel for the Crown

Mr. Jordan Weisz — counsel for the defendant Sukhbaj Singh

BLOUIN, J.:

Facts

[1] Danielle Reiss (18 at the time) ordered an Uber to take her from Yonge and Eglinton in Toronto to her home in Mississauga. Nearing the Hershey Centre in Brampton, the Uber driver (the defendant, 24) cancelled the trip and circled back towards his home in Toronto. Approximately 45 minutes later, he stopped his vehicle in a plaza in Scarborough to buy some vodka at the LCBO. Ms. Reiss took this opportunity to exit the vehicle, enter a Winners' store and make contact with police. The defendant stood trial on charges of unlawful confinement of Ms. Reiss and assault (for holding her hand).

[2] This case turns on whether Ms. Reiss consented to the cancellation of the trip home, and the re-routing to Scarborough. And, if she did not consent, on whether the defendant knew, or was willfully blind to the fact, that she was not consenting.

[3] The complainant, her older sister Gabby, and her best friend Rachel testified. Cell phone correspondence between Ms. Reiss and the other two young women during the Uber ride was made Exhibit 3. Those interchanges between the complainant and the other two women display Ms. Reiss's concern that the defendant is not listening to her, and is refusing to take her home. The defendant did not testify. Mr. Weisz conceded that Ms. Reiss did not consent, at least during the period after 3:22 p.m. However, he contends that the evidence of the complainant was not reliable, not credible at times, and, in any event, ambiguous regarding consent, and, as a result, there exists an evidentiary foundation for assessing the defendant's belief regarding consent as being an honestly held one. In addition, he submits the LCBO surveillance video of his client purchasing vodka captures a real time visual reflecting his client's state of mind.

Honest but Mistaken Belief in Consent

[4] In examining the parameters of the defence, the belief does not necessarily have to be reasonable, only honestly held (that is R. v. Pappajohn, 2 SCR 120 1980 SCC). As a matter of logic, and indeed common sense, I find it nearly impossible to assess the honesty of the defendant's belief that the complainant consented, when I don't know what he believed. As mentioned, he did not testify. Nor was any statement by the defendant introduced into evidence. However, Mr. Weisz submits that the law provides that the belief evidence does not have to come from the mouth of his client.

Complainant's Evidence

[5] Mr. Weisz refers to paragraph 69 of R. v. Niedermeir (2005 BCCA 15, 2005 BCJ 25), which cites Pappajohn. Justice McIntyre writes at paragraph 31 of Pappajohn:

…bearing in mind that the object of the judicial search must be evidence of a mistaken but honest belief in the consent of the complainant, one must first ask the question "Where is this evidence to be found?" It cannot be found in the evidence of the complainant. She denies actual consent and her evidence cannot provide any support for a mistaken belief in consent.

[6] The natural inference from the passage above, he submits, is that an honest belief can be found in the complainant's evidence. In Pappajohn, the facts did not allow a finding of mistaken belief. In this case, he continues, there is some support for a mistaken belief in consent contained in the evidence of the complainant. There are two examples of that evidence that I consider particularly instructive of that issue.

[7] Firstly, the complainant was cross-examined regarding what she said to the defendant during the nine-minute period after the trip home was cancelled. When it was suggested that she did not tell the defendant that she did not want to go to his place and wanted to go home, she maintained "Yes, I did". Then, she allowed that it was only possible that she did say that. Then, that she was not certain. And finally, that she may not have said anything to the defendant about wanting to go home (transcript – July 31, p. 116-118).

[8] Secondly, after being told by her sister on the cell call that she must come home immediately, the complainant hung up. Ms. Reiss testified that she then "played along", meaning that she was trying to make it appear that she was agreeing with the defendant regarding his desire to take her to his home (transcript – August 1, p. 92).

Other Evidence

[9] In addition, Mr. Weisz points to the LCBO video as further support for the honesty of the defendant's belief in consent. It is abundantly obvious that Mr. Singh is in no particular hurry to buy vodka. It even appears he is asking a sales associate for advice on the right selection. I find this behaviour to be inconsistent with a man who knowingly has a young woman confined in his unlocked vehicle. I placed great weight in that video because of its independent recording of the last five minutes of this evolving scenario.

[10] There is one other piece of evidence that I would like to mention, and that involves the wishes of the complainant that no police be called. Her texts to her friend and her sister reflect that she is being driven away without her consent. When they express alarm, she responds "No cops pls". Only just before the LCBO stop does Ms. Reiss relent and agree the police can be called. I mention this, not because the defendant would be aware of it, but, because it displays uncertainty as to the gravity of the situation. This uncertainty is consistent with the complainant's "playing along" evidence.

[11] Although not necessary to decide the above issues, I agree with defence regarding the submission that Ms. Reiss was not reliable on certain significant aspects of the Uber ride, including what she said she was doing (texting) at the time the trip was cancelled. She clearly was not texting her friend until a significant period after the cancellation. Also, in cross-examination she conceded that the defendant placed his hand on hers for a few seconds. In chief, she said the defendant grabbed her hand for "a good amount of minutes". Those inconsistencies were just a few. There were others.

Conclusion

[12] Mr. Singh's conduct was reprehensible – both morally and professionally. As a driver for hire his is a position of trust. How he could have decided that ending an Uber ride with a barely legal young woman was appropriate, even if he thought she was consenting to drinks with him, is unfathomable. However, when I assess the complainant's evidence outlined above, eventually conceding doubt as to what she communicated to the defendant and playing along with his wishes, and, most significantly, the LCBO video evidence, I conclude not only an "air of reality" to the honest belief submission, but a reasonable doubt that the Crown has established the necessary mens rea, including wilful blindness.

[13] Accordingly, the defendant must be found not guilty on the unlawful confinement count. Mr. Scratch fairly conceded that if I found the defendant not guilty on the primary count, I should do likewise on the secondary count of assault. The defendant is not guilty of assault.

Released: October 25, 2018

Signed: "Justice Blouin"