ONTARIO COURT OF JUSTICE

CITATION: R. v. Singh, 2021 ONCJ 132

DATE: 2021 02 25

COURT FILE No.: Toronto – College Park 17-75002441

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

SUKHBAJ SINGH

Before Justice Lori Anne Thomas

Heard on November 23, 24, 25, 27 and December 21 and 22, 2020

Reasons for Judgment released on February 25, 2021

David Spence ............................................................................. Counsel for the Crown Jordan Weisz ............................................ Counsel for the defendant Sukhbaj Singh

Thomas J.:

[1] This is the second trial for Sukhbaj Singh, who is charged with unlawful confinement and assault. The allegations arise from an Uber ride, where Mr. Singh (the driver) drove the complainant Danielle Reiss in the opposite direction of her intended destination. Further, during the ride, Mr. Singh is said to have briefly grasped her hand without permission.

[2] Mr. Singh did not testify at this trial. The Crown called the complainant, Danielle Reiss, her sister Gabrielle and her best friend, Rachel. Further evidence included text messages between Ms. Reiss and the two women and documents relating to the Uber ride.

[3] There is no issue of identity. The question is whether Ms. Reiss is reliable and credible. In this case, contemporaneous text messages support the complainant's version of events. However, The Defence submits that I should consider whether the complainant was concealing the true state of affairs from her sister and friend.

[4] The Crown concedes if an acquittal is entered on the unlawful confinement count, then an acquittal should be entered on the assault.

[5] Further, if Ms. Reiss is found to be reliable and credible, the Defence advances that there is an air of reality for a defence of honest but mistaken belief that Ms. Reiss consented to stay in the car until it reached the LCBO.

The Law on Credibility

[6] When assessing inconsistencies, some might be inconsequential, while others may be fatal to the witness' credibility. As stated by R. v. A.M., 2014 ONCA 769, at paras. 12-14:

[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[7] When a witness does not adopt a prior inconsistent statement, the prior statement is only admissible for assessing the witness' credibility and not for the truth of its contents: R. v. Latimer, 2013 ONCA 195 at para 17.

[8] In assessing evidence inconsistent with previous testimony or statements, there may be reasonable concerns related to the witness's credibility and reliability when there is little or no explanation given by the witness as to the reason for the inconsistency: R. v. L.H., 2017 ONSC 7291, at para. 57.

Facts

[9] At the time of the event, Ms. Reiss was 18 years old, while Mr. Singh was 24 years old.

[10] Ms. Reiss had stayed over an Airbnb in the Yonge and Eglinton area, which her boyfriend rented. This was an unexpected overnight stay, as she intended to go home after the Saturday evening party had concluded. She could not recall if anyone else stayed over.

[11] Ms. Reiss' family and friends did not like her ex-boyfriend, Abu[^1]. But they were aware that she was still meeting up with him.

[12] At the time, Ms. Reiss' three-year-old daughter was in the care of her parents. She testified her parents were not upset about her being late or taking care of her child for a more extended than expected period. Her sister indicated that there was some irritation for Ms. Reiss not being home earlier the Sunday morning.

[13] That day, Ms. Reiss had plans to meet with Rachel at 2 p.m. in Mississauga. However, Ms. Reiss did not get into the Uber until 2:43 p.m. According to the Uber app, Ms. Reiss was expected to arrive home at 3:19 p.m.

[14] When Mr. Singh arrived, he spoke with Abu in a non-English language. Ms. Reiss sat in the Uber's front seat and waited for a few minutes while the two men talked.

[15] Though Ms. Reiss was confident the Uber drove along the Gardiner, since she recognized the highway, the evidence demonstrated the car drove along Highway 401.

[16] During the ride, the two had conversed. Ms. Reiss testified at this trial that 20 minutes into the ride, Mr. Singh called her cute. After the comment, the tenor of the conversation changed. Mr. Singh became insistent that she have drinks with him and come to his house for them since she could not drink at a bar due to her age.

[17] At 3:13:19 pm, the Uber trip was cancelled, and the GPS was deactivated. The car was westbound on 401 between the airport and Highway 403. The duration of the ride before it was cancelled was 30 minutes.

[18] During the ride, Rachel repeatedly attempted to reach Ms. Reiss to confirm her estimated time of arrival. Ms. Reiss did not respond until 3:19 p.m. when she advised Rachel that she did not know where she was.

[19] At 3:21 p.m., Ms. Reiss advised Rachel through text that her Uber driver was not taking her home.

[20] Ms. Reiss initially declined a phone call with Rachel, concerned that Mr. Singh "could do something". However, between 3:27 and 3:31 p.m., she had a phone call with her sister Gabrielle and Rachel.

[21] During that call, Ms. Reiss negotiated times to return home, repeating times stated by Mr. Singh. Gabrielle was insistent that she come straight home. Ms. Reiss testified that she purposely gave a false impression that she was willingly going with Mr. Singh during the call. After the call, Ms. Reiss texted her sister, "Go along with it gabby I'm just as scared".

[22] Gabrielle and Rachel inquired if Ms. Reiss required assistance and if they should call the police. Ms. Reiss responded to both that she did not want the police involved. Despite her insistence that police not become involved, the women involved the police.

[23] At 3:46 p.m., Rachel advised that her father was talking to a Toronto Police officer named Al. When Ms. Reiss confirmed the police involvement, she agreed with Rachel that it was okay to call the police. A minute later, she advised that Mr. Singh was stopping by LCBO.

[24] Ms. Reiss messaged her sister not to be mad as it was not her (Ms. Reiss') fault. Then for four minutes, Ms. Reiss' messages to her sister did not transmit.

[25] Ms. Reiss had exited the vehicle when Mr. Singh went into the LCBO at 1900 Eglinton. Ms. Reiss went into the Winners in the same plaza. Her phone was unable to receive reception when in the Winners. She called 911 through the assistance of a cashier.

Analysis

[26] I have carefully considered the law, the evidence and counsel's submissions and am left with considerable difficulty accepting Ms. Reiss' evidence, despite the contemporaneous text messages. My concerns about Ms. Reiss' credibility and reliability are primarily rooted in the following aspects of her evidence, in order of occurrence, not relevancy. These are the most noteworthy of the concerns I have concerning Ms. Reiss' evidence.

i. Choice of Seats

[27] Ms. Reiss testified her choice to sit in the front passenger seat was completely random. She testified that she had no preferred area to sit in Uber vehicles and tended to arbitrarily sit in either the front or back seat in Uber cars.

[28] In the police car video, immediately after the event, Ms. Reiss told the police officer she usually sits in the back. The police officer was cautioning her not to sit in the front seat of paid rides. She agreed her statement to the police officer was not accurate, but she believed that to be the case at the time.

[29] In the first trial, she testified that she sat in the front seat due to a fire hydrant blocking the back door. During that trial, she was shown that no hydrant could block a car door. In response, she testified, at that trial, she presumed it was something like a pylon. [30] When questioned on the discrepancy, Ms. Reiss testified she could not recall what was blocking the door as she was not paying attention to the obstacle.

ii. The Conversation Within the Uber

[31] Ms. Reiss testified that the two started to have a normal conversation in the first 10-20 minutes of the ride. She could only recall discussing sports until Mr. Singh commented that she was cute and suggested they get drinks. Ms. Reiss testified that Mr. Singh became insistent on having drinks at his house for ten minutes prior to the trip cancellation.

[32] Ms. Reiss testified that she repeatedly told him that she was not interested in drinks. However, Mr. Singh is alleged to have indicated that he would take her home after the drinks.

[33] Notably, Ms. Reiss testified that once Mr. Singh called her cute, the conversation's tone changed. At this point, she would not share any personal details of her life.

[34] However, this is inconsistent with her evidence at the first trial, where Ms. Reiss testified that Mr. Singh called her cute immediately upon entering the Uber. Further, the two discussed their personal relationships, including being single and Abu was her exboyfriend. At this trial, she testified she shared this information because she was being polite. However, she agreed it was not normal for her to share personal information. Both Rachel and Gabrielle confirmed it was unusual for her to share personal details with strangers.

[35] When pressed during cross-examination, Ms. Reiss testified that she could not recall whether the "cute" comment was made immediately or towards the end. She offered no explanation as to why the divergence in her testimony on this point.

iii. Messaging During the Ride

[36] At the first trial, she initially testified that she was texting Rachel throughout the entirety of the initial 20-minutes of the ride.

[37] When in the police car, leaving the Winners, she advised the officer she was in the middle of texting Rachel when the ride was cancelled. At the first trial, she reiterated that she was in the middle of texting with Rachel when the ride was cancelled. At this trial, she agreed that was not the case.

[38] In the chief-examination, she could not recall when the text messages occurred, but it was at a few different points during the ride.

[39] However, it is clear from the evidence, for almost 30 minutes, Rachel made several unsuccessful attempts to get an update from Ms. Reiss of her whereabouts.

[40] Rachel testified she made numerous attempts to call Ms. Reiss, and the calls were declined or not answered. As per Rachel, the lack of response was unusual for Ms. Reiss. [41] Moreover, Gabrielle also testified that her calls and text messages were similarly ignored.

[42] When cross-examined at the first trial, Ms. Reiss testified she kept checking her phone and putting it down. At this trial, she testified that was not true.

[43] I note that she had other additional answers during the first trial examination. Ms. Reiss testified at that time that she was holding her phone but not looking at it. Further, she stated that she did not look at her phone until 3:19 p.m.

[44] When the contradictions of the first trial were put to her, Ms. Reiss stated she could not remember what was accurate.

[45] The only way to describe Ms. Reiss' testimony on this point is either unreliable or tailored to the evidence of the text messages.

[46] Ms. Reiss testified that she was more interested in texting her friend and not conversing with Mr. Singh. However, the evidence contradicts that assertion.

iv. Delayed Response

[47] Related to her non-responsiveness is the delayed response or explanation for her delayed response to Rachel when it became apparent that she was not going to her home.

[48] There are two to three messages from Rachel during the period where Mr. Singh is said to be persistent about having drinks and before the Uber ride is cancelled.

[49] Further, there are three more texts from Rachel after the cancellation that did not receive a prompt response: "Danielle"; "Seriously where the fuck are you" and "how far".

[50] Ms. Reiss responded first that she does not know how far she was from home. Rachel told her to ask. Ms. Reiss sent a text, "Give me a min". It was a minute later, at 3:20 p.m., seven minutes after the ride is cancelled, that Ms. Reiss sent a text indicating that her driver was not taking her home.

[51] In cross-examination, Ms. Reiss was asked to explain the reason for her delay. Her response was, "I don't know. It was three years ago".

[52] At the first trial, she indicated that she was possibly speaking with the driver or looking out the window.

v. Explanation for Non-Response

[53] When asked why she was ignoring calls and messages from her sister and Rachel, Ms. Reiss testified that she might have had her phone notifications turned off. However, she admitted this was no more than a guess.

[54] This explanation does not explain why she told the police she was in the middle of text messaging Rachel when the ride was cancelled nor why she testified at the first trial that she was text messaging Rachel throughout the entirety of the first 20 minutes of the ride when it was simply untrue.

[55] Rachel testified Ms. Reiss explained she missed the text messages as she was saying goodbye to Abu. Ms. Reiss could not recall what reason she gave to Rachel but eventually agreed that the explanation would have been a lie.

[56] Gabrielle testified she was calling Ms. Reiss for 20 minutes before hearing from her. Gabrielle testified that their mother and Ms. Reiss' child were asking about her whereabouts. Gabrielle was getting frustrated because she did not receive a response to her calls and texts, even though Ms. Reiss typically has her phone in hand. According to Gabrielle, Ms. Reiss explained she missed the calls and texts due to lost service on her phone.

[57] Based on the evidence before me, Ms. Reiss only lost service at 3:59 p.m., well after the period described by Gabrielle.

vi. Negotiating Return Time

[58] At one point, Ms. Reiss was on the phone with her sister, who was with Rachel. Gabrielle insisted Ms. Reiss return immediately. However, Ms. Reiss and Mr. Singh suggested various later times to return.

[59] Gabrielle could hear "8 p.m.", "7 p.m." or "two hours" from a male in the background. Ms. Reiss would then repeat what the male said. When Gabrielle would respond for her to come home immediately, shorter time frames were offered.

[60] In the first trial, Ms. Reiss confirm this to be accurate. The end result of the negotiation was "30 minutes to an hour" and then Ms. Reiss hung up on her sister. Gabrielle could not tell if Ms. Reiss hung up on her or she lost service.

[61] During this trial, Ms. Reiss would remember portions of that call, for example, "two hours" but not hanging up or saying, "30 minutes to an hour".

[62] Gabrielle reiterated her evidence from the first trial. She believed the calm tone of Ms. Reiss indicated she was scared, as Ms. Reiss tended to be more talkative.

[63] After the call, Ms. Reiss sent Rachel's messages to tell her sister to go along with what she was saying. Further, she texted: "Tell her I know it's not okay but I asked and he said 30 to hour".

[64] After which, she shared her location and indicated she was scared. She continued to text her sister and friend, imploring no police.

vii. No Police Request

[65] In-chief examination, Ms. Reiss testified that she was trying to convince Mr. Singh to take her home every time she insisted on no police.

[66] In the first trial, she testified she was trying to "play along" with Mr. Singh's suggestion for drinks.

[67] During cross-examination, she testified she could not recall the truth regarding whether she was playing along or trying to convince him to take her home.

[68] In general, I found Ms. Reiss unable to recall significant portions of events, particularly during cross-examination. At times, I found her to be evasive in her responses during cross-examination.

[69] I am genuinely concerned by the events on May 21, 2017. It was a young woman in a vehicle for hire. She was not taken to her initially chosen destination.

[70] The text messages appear to corroborate her testimony, in part. Ms. Reiss is the narrator of those text messages. If she wished to convey events contrary to the truth, it was within her ability to do so.

[71] Since I have substantial concerns with Ms. Reiss's reliability and credibility, I cannot be certain about what transpired in the Uber on that date. As such, Mr. Singh is acquitted of both counts.

Released: February 25, 2021

Signed: Justice Lori Anne Thomas

[^1]: Ms. Reiss could not recall Abu’s last name. He was not a witness at this trial.