Court File and Parties

Ontario Court of Justice

Date: 2019-01-17

Court File No.: Toronto 4817 998 17-75003015

Between:

Her Majesty the Queen

— and —

Ahmad Jawad Malik

Before: Justice Howard Borenstein

Heard on: December 10, 11, 12 and 14, 2018

Reasons for Judgment released on: January 17, 2019

Counsel:

• Mr. Scott Graham, counsel for the Crown
• Mr. Alan Sobcuff, s. 486 counsel for the defendant Ahmad Jawad Malik
• The defendant Ahmad Jawad Malik, on his own behalf

BORENSTEIN, J.:

Introduction

[1] Ahmad Malik is charged with one count of sexual assault.

[2] He is a cab driver. English is not his first language. He picked up five women just after midnight after the Pride festival in Toronto. The alleged victim sat in the front seat. Her mother, grandmother, girlfriend and friend all sat in the back.

[3] It is alleged that, while stopped at a red light shortly after the five got in, another cab from the same company pulled up on the right of Malik's cab. Malik and this other, unknown driver exchanged words in a foreign language and the other driver then pulled out his cell phone camera apparently to take a picture of the complainant. At that moment, Malik is alleged to have reached over and tried to pull down the complainant's top by pulling at the V-neck area of her leotard top. The complainant said "No". Yet, he did it again. She said "No" louder. None of the four passengers in the back saw him do this but heard her say something like: Why did you touch me? At that point, based on what the complainant just said, the passengers and the complainant all began yelling at Malik, accusing him of touching the complainant. One of the four then began videotaping the events in the cab. It shows the passengers yelling and accusing Malik of touching the complainant, and Malik saying sorry. They then exit at their destination without paying. The defendant testified and denied touching the complainant. That is the alleged sexual assault.

[4] Malik testified and denied doing any such thing. He said the complainant and the others were loud and boisterous when they entered the cab, and they had a dispute about the music and the fare. The complainant was arguing with him about that and then accused him of touching her. The passengers all began accusing him of touching her. He was shocked and scared. He denied it a few times before the video began, but the passengers kept yelling and accusing him. By the time the video is turned on, he was scared and just kept apologizing hoping to de-escalate the situation and get them out of the car.

[5] While all of the passengers provide important evidence as to the context and aftermath, it was only the complainant who witnessed this alleged assault upon her.

Witness Evidence

A.D. (Complainant)

[6] Ms. A.D. testified that she spent the day at the Pride parade with her mother, grandmother, girlfriend and another friend. They drove from out of Toronto to her girlfriend's parent's home in Toronto around noon, and had a beer together at the family home. The five then spent the day at the Pride parade. She testified that she had maybe one beer during the day and one more at dinner. They had nothing further to drink after 8 pm.

[7] At around midnight, her mother called a cab to take them back to her girlfriend's parent's to retrieve their car.

[8] They walked north on Church Street to where the street opened up to traffic, as it had been closed to the festival.

[9] The five entered the cab. Ms. A.D. sat in the front passenger seat. The other four sat in the back. There was no music on at that time. The address was given to the cab driver. He turned on the music and began to drive. The five women were all in a good mood. The cab then stopped at a red light. Another cab pulled up on their right. It was the same cab company. The defendant and that driver spoke to each other in a different language. That driver then pulled out a cell phone and appeared to direct the camera to their cab as if he were taking a picture. All of a sudden, the defendant reached over and placed two fingers at the top of Ms. A.D.'s top, which was a leotard top, and tried to pull it down. She said "No, no okay" and he did it again, pulling it down lower. This time, Ms. A.D. got loud. The passengers in the back heard her, though they did not see what happened, and they all began yelling at the driver.

[10] One of the passengers pulled out a cell phone and began to record the event in the cab. That video was shown to Ms. A.D.. In it, Ms. A.D. demands to be taken home. When the cab arrived a few minutes later, the passengers all got out without paying.

[11] In cross-examination by s. 486 counsel, Ms. A.D. testified that there was no conversation with the defendant before this incident. There was no dispute about the fare, nor did the defendant initially refuse to take five passengers until she gave him $20.00. She denied swaying or moving to the music in the car or turning up the music on her own. She denied telling the driver to give her some money back or she would call the police.

G.M. (Complainant's Mother)

[12] Ms. G.M., the complainant's mother, testified. Her evidence was essentially consistent with respect to the events prior to and at the Pride Parade. She had about a beer and a half, and did not take drugs. With respect to the drive home, she called a cab and they walked to the outskirts of the closed in area of Church Street. The defendant asked if they called a cab and they got in.

[13] After about a block, another cab pulled up on the right. Both cab drivers were speaking in another language. She saw the other driver raise his phone and point it toward her daughter. Before their own cab pulled away from the light, her daughter said, "Why did you do that?" several times. Ms. G.M. asked what did he do and her daughter said he pulled down her top when they stopped. Although Ms. G.M. did not see it, she became extremely upset and pulled out her phone and began recording. She said they should get out but her daughter insisted he drive them to where she was going. The driver kept apologizing saying he was sorry or didn't mean to do that. The video was played and it shows Ms. G.M. yelling at the driver, repeatedly. She denied that there was any conversation about a fare, or five versus four passengers, or any money given to the driver. There was no dancing or swaying in the cab.

E.C. (Complainant's Grandmother)

[14] E.C., the complainant's grandmother, testified. The drivers of the two cabs were talking. Her granddaughter then said, "Why did you do that?" She repeated that twice. Why did you pull my shirt down? She did not see the defendant do that. There was no discussion about fares or the number of passengers and she did not see any money exchanged.

S.J. (Complainant's Girlfriend)

[15] S.J., Ms. A.D.'s girlfriend, testified. She gave consistent evidence about the events of the day. With respect to entering the car, she too testified about the two drivers talking to each other. She saw the other driver's phone come out and the complainant say, "Why would you do that to me?" She too did not see the defendant reach over and touch the complainant.

A.M. (Friend)

[16] A.M. testified. With respect to the events in the cab, she testified that she has "brain fog". She remembers the day, though not certain things. She testified that the two cab drivers were talking to each other. The complainant was yelling at the driver saying, "Don't do that" and "Don't do that again," like to get his hands off her. She did not see the defendant touch the complainant. She did not hear any discussion about the number of passengers or any discussion about the fare. She did not see anyone pay the driver.

Ahmad Malik (Defendant)

[17] The defendant testified. He has been driving a cab since 2002. Punjabi is his first language. He has no criminal record. The night in question was a busy night. He picked up the five women and an argument ensued right away. He told them he was only allowed four passengers in the cab. They were five. They insisted remaining in the cab. The complainant got in the front and handed him $20.00. They began to drive. Someone in the back said that was too much money for the fare and said he should return some. The complainant turned up the radio loud. Malik asked her to turn it down and then turned it down himself. He did not remember any other cab pulling up but speculated that if one did, it was just a random encounter and they may have made small talk. The complainant argued with him about the fare and the volume of the radio and then said: Why did you touch me?" Malik was not expecting such a comment. The complainant threatened to call the police. The defendant apologized, thinking she was upset about the music. He let them out and they did not pay the fare.

[18] About two hours later, he was called by the police and asked to come to 55 Division. He did, and was arrested, and remained there for three or four hours.

[19] The defendant denied touching the complainant and said how he could do such a thing in front of four other witnesses.

[20] In cross-examination, he repeated his evidence. He said this began as a fare dispute. He said the tape only covers about a minute of a four- to six-minute drive and that before the tape was turned on, he denied touching the complainant ten times. He then just apologized to try to de-escalate the situation, get them out of his cab and move on with his night. He was scared.

[21] He testified that he wished the police had retrieved the cab's video or stills taken from that video. He said he did not have access to the cab's video, that only the police do. He pointed to the officer-in-charge, who was sitting in court and said that he told the officer that very day to check the video from his cab, but the officer ignored him. The officer was not called in reply to refute that claim.

The Cell Phone Video

[22] The video lasts less than 90 seconds. It shows the tail end of the complainant and the passengers yelling at the driver, calling him a "piece of shit," accusing him of touching the complainant, and saying they were going to call the police. He kept saying sorry. The complainant tells the other passengers that the defendant told her he had daughters.

[23] That was the evidence called in this case.

[24] While there are five Crown witnesses and the video, it is only the alleged victim who testified as to the touching that constitutes the alleged offence. The other passengers testify to the immediate accusation and the yelling in the cab that then occurred. The defendant denied the touching. He testified that the complainant made the accusation, which he denied and that the events that ensued, which scared him.

[25] It is not a question of having to choose between one side or the other, or who has more witnesses. It is whether the Crown has proved the case beyond a reasonable doubt.

Credibility and Reasons

[26] The defendant testified. Since he is self-represented, he should understand that, to prove its case, the Crown must call credible and reliable evidence to establish guilt beyond a reasonable doubt. You need not prove your innocence.

[27] The touching as described by the complainant, if it happened, would be a sexual assault. If, at the end of the trial, there is a reasonable doubt about whether you touched the complainant in the manner described, you will be found not guilty.

[28] I also must explain to you that, if I believe your evidence, you will be acquitted. Even if I do not believe your evidence but am left with a reasonable doubt by it, you will be found not guilty. Finally, even if I do not believe your evidence and am not left with any doubt by it, you will only be found guilty, if, based on the evidence, I do accept, I am sure – or satisfied beyond a reasonable doubt that you intentionally pulled down the complainant's top.

[29] I will begin with my general observations of all the credibility of the witnesses, beginning with the Crown witnesses. They all seemed truthful and consistent, both internally, as well as with each other, as well as with the cell phone video. There was nothing in the evidence or the way in which they gave it that caused me to think they were trying to deceive the Court. The appeared sincere and truthful in their evidence. Any contradictions between them or within their evidence were not particularly material, and did not affect their credibility nor their reliability on essential matters. That said, at bottom, only the complainant witnessed the alleged assault. The others did not see it occur. They do provide evidence about the complainant's accusation and the aftermath that ensued, including their yelling at the driver, his apology, as well as the absence of any dispute about the fare or money, or music.

[30] Turning to the defendant's evidence. He has no criminal record. He testified about his innocence in what seemed like an earnest manner. There was nothing about the way he gave his evidence that caused me to think he was trying to deceive the Court. He seemed sickened by the allegation, which he denied. His evidence that he was scared when the complainant made her allegation and the four passengers began yelling at him, and that he apologized to de-escalate the situation is certainty possible. As for not denying the allegation itself on tape, he replied that he denied it ten times before the camera was turned on and pointed out that the tape only captures about one minute of the four- to six-minute encounter. He testified that despite his denial, they kept yelling at him and he apologized and wanted them out of the cab to de-escalate the situation.

Findings

[31] As I said at the outset, the Crown must prove guilt beyond a reasonable doubt. That is a far higher standard of proof than in a civil case where the issue is which version is more likely true. On that standard, the Crown's case would prevail. It would prevail because I prefer the evidence of the Crown witnesses, including their evidence that there was no fare discussed in the cab. However, I do note that, based on the complainant's evidence where she said the defendant told her he had daughters, there was somewhat more discussed than the complainant recalled.

[32] In my view, the fact that the four witnesses did not see the defendant reach over and pull the complainant's top down, not once but twice, does not, in itself raise a doubt though it does tend to support the defendant's version. Nor does the fact that it seems somewhat unlikely, as the defendant himself said, that someone would do this in front of four other witnesses. Yet, people do strange things all the time. So, again, on its own, that does not raise a doubt. But, when those two factors are combined, with the apparently forthright manner in which the defendant testified, denying the allegation and explaining why he was apologizing, a doubt begins to emerge, though it does not mean the incident did not happen. The final piece of evidence that causes the balance to tip toward the defendant was his evidence that he told the officer-in-charge that very day to check his cab's video, and was ignored. No reply evidence was called to refute that claim, and I find that he did tell the officer to check the cab's video. That comment to the officer made at the time is as close to an offer to provide proof of what occurred. He testified that he had no access to the cab's video, only the police do. That combined with all the other points causes me to have a reasonable doubt. This does not mean the sexual assault did not happen. It may well have happened based on the complainant's evidence, but I have a reasonable doubt about his evidence and he will benefit from that doubt.

Released: January 17, 2019

Signed: "Justice Borenstein"