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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

ONTARIO COURT OF JUSTICE

DATE: 2021 02 19 COURT FILE No.: West Region / at Kitchener / 19-7973

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RANVEER SINGH

Before: Justice C.A. PARRY

Heard on: November 25 and 27, 2020; and January 15, 2021 Reasons for Judgment released on: February 19, 2021

Counsel: B. Schnell............................................................................................. counsel for the Crown L. Sandhu......................................................... counsel for the defendant Ranveer Singh

PARRY J.:

I. INTRODUCTION

[1] Mr. Singh stands charged a single count of sexual assault. The offence allegedly occurred during the course of his employment for a Rogers Cable contractor, Ramkey Communications. The complainant, T.R., was a Rogers customer who had experienced issues with her Rogers Ignite services. The incident that led to the charges occurred on November 6th, 2019, when Mr. Singh attended T.R.’s home on a service call.

[2] Having considered the entirety of the evidence, I have concluded that the Crown has failed to establish beyond a reasonable doubt that T.R. did not consent to the physical contact in question. The evidence also leaves me with some doubt about the precise nature and location of the touching that occurred.

II. THE CASE FOR THE CROWN

[3] The Crown’s case relied almost entirely upon the evidence of T.R. To augment her evidence, the Crown also called her ex-fiancé, A.K., and Mr. Singh’s former supervisor, Ioan Kanustyak. A.K. provided evidence of T.R.’s emotional demeanour following the incident. Mr. Kanustyak provided evidence that Mr. Singh called in sick shortly after the incident and took a long-planned vacation the day after the incident. The Crown placed no reliance upon the evidence of Mr. Kanustyak in submissions, so the relevance and importance of his submissions would seem to be minimal and I do not intend to summarize it further.

[4] T.R.’s evidence raised concerns about her credibility and reliability as a witness. In reviewing T.R.’s evidence, I have kept in mind that victims of crimes, including sexual assaults, react to those crimes in various manners. There is no one way in which a victim ought to respond to an offence. Having said that, there were times in T.R.’s narrative in which she purported to act in a manner apparently at odds with her own stated motives, thoughts, and emotions. The incongruity between her thoughts and actions at times impacted upon her credibility and reliability. There are also some occasions in which T.R.’s apparently inconsistent recounting of facts raised concerns about her credibility and reliability. As I recount her narrative of the event, I will endeavour to highlight aspects of her evidence that raised concerns.

[5] T.R. lived with her fiancé, A.K., at the time of the incident. They shared a split-level home with a ground floor, two split upper floors, and a basement. They also shared the home with two dogs and 7 cats. One of the dogs was a large breed: a shepherd rottweiler mix.

[6] T.R. explained that she called Rogers to address concerns about her Rogers Ignite service. She had subscribed to Rogers Ignite TV and Internet and was having connection issues. She booked a time for a service call. Rogers sent a 3rd party contractor, Ramkey Communications to address the issue. Ramkey employed Mr. Singh and assigned the service call to him. Rogers provided her with a service time slot that began at 10 a.m. She arrived home a little late, perhaps nearing 10:15 a.m. At 10:25 a.m., Mr. Singh called her to advise that he was at her house. She locked her dogs in crates before he came inside.

[7] Mr. Singh entered via the garage entranceway. They exchanged pleasantries and then she showed him the location of her modem and tv boxes. The modem was located in the den/office on the first split level above the main floor. TV boxes were located in the master bedroom at the top level and the living room on the main floor.

[8] The visit lasted for approximately 60-90 minutes. Throughout almost the entirety of the service call, they exchanged small talk and pleasantries. T.R. described Mr. Singh as very friendly and casual; according to her, almost too friendly. She purported to feeling slightly uncomfortable from this friendliness. Nevertheless, she followed Mr. Singh from room to room and continued to exchange pleasantries while he worked. She explained that she had previously worked for Rogers, was quite familiar with their systems, and knew how to trouble-shoot. At the same time, she purported to have a concern about leaving him alone anywhere and leaving herself exposed to the risk of theft. Mr. Singh’s mission did not, however, involve fixing the devices currently in place. He was there to swap-out the existing devices in exchange for new ones. There was no suggestion in her evidence that he made any attempts to sleuth-out an issue or “trouble-shoot” her earlier problems.

[9] In any event, after Mr. Singh had installed all the new devices, T.R. then began the process of connecting her living room Chromecast device [a google product that allows a standard TV to access the internet and streaming services such as Netflix Amazon Prime, and Crave] to the network. She used her cellphone to connect remotely to the Chromecast. She stood between the TV and the couch, at one side of a coffee table and facing the TV as she linked the Chromecast. At this juncture, Mr. Singh’s assigned work was done. Nevertheless, he and T.R. continued to chat while she worked on connecting her Chromecast.

[10] As the two chatted, conversation turned to T.R.’s tattoos. T.R. possessed numerous tattoos, some of which were plainly visible. As it happens, T.R. had obtained a new tattoo a day or two before the service call. This tattoo was large, extending from her right knee, along her right thigh, onto her hip and buttock, and up her side to her bra-line.

[11] According to T.R., Mr. Singh asked to see the new tattoo. She agreed. At first, she raised her t-shirt to reveal the portion of the tattoo on her torso. Then she pulled down the right side of her trackpants to reveal a portion on the hip area. She described the action as follows:

Then I pulled down a little bit of the right side of my pants, not to expose my personal areas, and showed him a portion of it on the right side around my stomach and hip.

I didn’t feel particularly comfortable showing him the whole portion – a portion of it does go around on my right bum cheek. It wasn’t something that I felt at first to show the extent to a technician – the full extent to a technician.

T.R. made clear that at this juncture, she was taking pains to avoid exposing her bum and vagina, mindful that she was not wearing any underwear. Essentially, then, she attempted to expose only her hip, but acknowledged that she may well have exposed some portion of her right buttock [which of course flows into the hip].

[12] T.R. testified that as she exposed her hip, Mr. Singh touched her hip with his fingers. It was a light touch, as if done for the purpose of turning her as he examined the tattoo. According to T.R., despite believing that he was simply turning her to examine the tattoo, the touch made her “incredibly uncomfortable” and she pulled up her pants. Her purported belief about the touching’s innocent purpose seems somewhat incongruous with her purported reaction to that purpose. This causes me to have concern about the veracity of her purported discomfort – a factual claim that is directly relevant to the central issue of consent.

[13] According to T.R., she then moved to the other side of the coffee table, in an effort to put some distance between her and Mr. Singh. Mr. Singh did not follow or pursue her when she moved. She then continued to work on setting up her Chromecast – a process which seems to have taken quite a long time. Despite purporting to feel “incredibly uncomfortable,” T.R. moved from the opposite side of the coffee table back towards the side of the coffee table at which Mr. Singh was located. She testified that she did so “to finish with my TV [which was in front of her, whether she stood on one side of the coffee table or the other] and essentially, hopefully walk him back to the door.” After moving back to Mr. Singh’s vicinity, she continued to work on setting up her Chromecast. Despite feeling incredibly uncomfortable as a result of Mr. Singh’s alleged behaviour, she also purported to have lost sight of Mr. Singh’s movements after walking back towards him. Earlier she wanted to keep an eye on him to protect her belongings, when he had yet to pose any threat to her, but at this point, she lost track of him after he had done something to cause her extreme discomfort. I am therefore suspicious of her claim that, immediately after walking back to his vicinity, she lost awareness of the whereabouts of the man who had just made her feel incredibly uncomfortable. Also, I find the decision to walk back to the immediate vicinity of Mr. Singh to be incongruous with T.R.’s purported incredible discomfort at Mr. Singh’s behaviour and her purported desire to distance herself from him. T.R.’s decision to continue to work on the Chromecast setup also causes me to question the veracity of her claim that she wanted to escort him to the door. The decision to continue the slow Chromecast setup did nothing to further her purported desire to escort Mr. Singh to the door. Instead, it prolonged her exposure to a situation from which she allegedly wanted to extricate herself. The above noted incongruity between T.R.’s actions and her purported feelings and motivations causes me concern about her credibility and reliability generally and on the central issue of consent.

[14] While T.R. continued to work on her Chromecast, Mr. Singh made himself comfortable on the chaise immediately behind T.R. As noted, T.R. did not notice this at first. According to her, she noticed him sitting behind her when he asked to see her tattoo again.

[15] T.R. agreed to show Mr. Singh her new tattoo again. According to her, she agreed to show him her tattoo again because,

I had a very bad feeling in the pit of my stomach. I had a very uncomfortable feeling that if did not do what was being asked of me that another repercussion would take place.

I infer from this ominous statement that T.R. implied a subjective belief that Mr. Singh wanted to repeat what he did moments before; and she implied a subjective belief in the possibility of a more significant violation of her physical and sexual integrity than the violation she claimed had already occurred. T.R. went on to indicate that she did not feel like she had control over the situation. She indicated that this loss of control stemmed from the fact that Mr. Singh had made himself feel comfortable on the couch after the first tattoo-reveal.

[16] To sum up, T.R. purported to have felt coerced by the conduct of Mr. Singh. The coercive actions she describes can be summed up as follows: he was very friendly and casual with her; he exchanged casual conversation with her for 60 to 90 minutes; during that casual and friendly conversation, he asked permission to look at her tattoo; he lightly and briefly touched her as if to turn her in an effort to view the tattoo she willingly showed him; he did not follow when she moved away from him; he sat on the couch when she moved back towards him; and he then sought permission to see the tattoo again – a request that I infer T.R. perceived to be a request for a similar interaction as the one that occurred in the first viewing. Simply put, she describes nothing that could credibly support her claim that she felt coerced. So, while I accept that she reasonably and subjectively concluded that she might be touched again if she pulled down her pants again, I have my doubts about her claim that she felt coerced to do so. I do not find this claim, which is highly relevant to the central issue of consent, to be credible or reliable.

[17] I note as well, that Mr. Singh did not specifically request that T.R. pull down her pants. He asked to see the tattoo again – a tattoo which spanned from her knee to her bra-line. In the first viewing, she initially pulled up her t-shirt to reveal the tattoo, thus revealing an area of her body more distant from her genital and anal regions. In the second viewing, despite claims of extreme discomfort, she opted immediately to pull down her pants, rather than pull up her shirt to reveal her waste and rib cage. Also, despite purportedly feeling “incredibly uncomfortable” and being fearful of more nefarious repercussions, T.R. pulled her pants down further than she did the first time. She described her second reveal as follows:

I did the same thing I did prior, with pulling a portion of my pants down. My bum was exposed this time ….

I find it odd that she would immediately choose to expose her buttocks area rather than her rib cage, if she was indeed truly fearful of Mr. Singh in the way her evidence so obviously implies. Also, I find there to be an incongruity between T.R.’s act of exposing more of herself than previously, on the one hand, and her simultaneous intimation that she apprehended a recurrence of the first incident, or something even worse [“another repercussion”]. In defiance of her own stated apprehensions, she performed an act that more greatly facilitated a feared outcome than her previous actions did. In this regard, T.R.’s conduct seems again at odds with her purported state of mind and motivations. This incongruity, which again is highly relevant to the central issue of consent, causes me to have concern about her credibility and reliability.

[18] I turn then to T.R.’s description of what transpired when she pulled her pants down for a second time. According to T.R., Mr. Singh grabbed her hip slightly with his fingers, moving her skin around. While he did so, she continued to hold her pants down for him for approximately two minutes. She testified that his fingers moved around on her tattoo and he began to move them towards her bum. Initially, she testified that “his hand was always on the tattoo” – making it explicitly and unmistakably clear that Mr. Singh’s hand never left her tattoo. She also testified, however, that Mr. Singh’s fingers travelled towards “the lower portion of my bum and underneath, and then more towards what is essentially known as the gooch.” She described the “gooch” as being the space between the “bum hole” and the vagina – the perineum, in medical parlance. She indicated that his fingers reached within ½ a finger length of her “gooch” – which I infer to be an inch or two away and along the underside of the buttocks. The difficulty with this description is that the tattoo in question does not extend anywhere near that close to the perineum – a fact made clear by the diagram T.R. drew of her tattoo [exhibit 3] and by T.R.’s own acknowledgement in cross-examination. If Mr. Singh’s fingers never departed the tattoo, then they could not have extended as near to the “gooch” as T.R. claimed. When the defence pursued this point during cross-examination, T.R. then claimed that Mr. Singh’s fingers did in fact leave her tattoo. When asked by the Crown in re-examination to explain the clear contradiction, T.R. explained,

I believe I could have potentially misunderstood your question in regards to if he was always touching the tattoo. The first incident he didn’t stray from the tattoo, but the second incident is where he did move his fingers past. I’m not sure if I misunderstood the question or where that could have been misconstrued, but the second incident he did move his fingers down….

Frankly, T.R.’s explanation does not hold water. When declaring in-chief that Mr. Singh’s hand never left her tattoo, the subject of the discussion was the second incident. The declaration occurred as the Crown was following up on T.R.’s mention of how Mr. Singh’s hand approached her “gooch.” Understandably, the Crown appears to have inferred that T.R.’s evidence necessitated an assertion that Mr. Singh’s had departed from the tattoo. The Crown thus asked the following leading question, “Are you able to describe about how long he was touching the tattoo before his hands started moving away?” This leading question led to an interjection by the court and a caution to the Crown about leading questions. The interjection was as follows: “…So, if you could make clear to me, when his hand was touching your body, was it ever not touching the tattoo?” In answer to this question, T.R. answered, “No, it was always on the tattoo.” T.R.’s subsequent re-examination explanation of her clearly inconsistent evidence therefore lacked credibility. Likewise, the clear contradiction between her initial assertion that the hand never departed the tattoo stands at odds with her claim that Mr. Singh’s hand came perilously close to the “gooch.” This aspect of T.R.’s evidence causes me concern about her credibility and reliability.

[19] According to T.R., she pulled her pants up and moved away to the other side of the coffee table after Mr. Singh’s hand went astray on her buttocks. She also testified that Mr. Singh remained in the house at least another ten minutes. While her evidence highlights certain aspects of Mr. Singh’s departure, it does not make clear all that occurred during this timeframe. In any event, T.R. testified that Mr. Singh approached her after her retreat to the other side of the coffee table. In response, she testified that she “went to thank him for coming.” Elaborating, she testified that she “went to shake his hand” when she saw him extending his own hand. She further testified that Mr. Singh pulled her in for a hug as they shook hands. She described the hug as a perfunctory one, the kind that involves a “pat on the back.” She was unsure as to whether she reciprocated this hug. Mr. Singh then departed for the front door and she departed to the kitchen, at the rear of the house.

[20] According to T.R., Mr. Singh made an “incredibly vulgar” remark before departing. He asked her, “Do you like big cocks?” T.R. reportedly responded, “No, I have a husband.” She testified that Mr. Singh then grabbed his own crotch and asked her if she wanted to see his penis. She declined the invitation and thanked him for his service. He allegedly replied, “Okay, you’re welcome. Have a nice day,” before departing through the garage doorway. T.R. then locked the doors and called her friend, Austin. She also let her dogs out of their crates.

[21] While speaking with her friend Austin, Mr. Singh banged on the garage door and then the front door. She then received a phone call from Mr. Singh, which she did not answer.

[22] T.R. discovered belatedly that Mr. Singh had left some equipment at her home. She did not realize this at the time she heard the knocking on her door or received the phone call from Mr. Singh.

[23] After speaking with her friend, Austin, she the contacted the police and then her fiancé, A.K. She also called two other female friends, “K” and “A”. According to T.R., “A” pressured her to go to the hospital for a sexual assault examination. T.R. then went to the hospital, where the staff allegedly suggested that a “rape kit” would yield little evidence. Consequently, she left the hospital without undergoing a sexual assault examination.

[24] The Crown called A.K. who provided evidence about his communications with T.R. and about her demeanour following the incident with Mr. Singh.

[25] According to A.K., T.R. texted him about the incident while he was at work. In the text, T.R. told him that she was “almost molested” and asked him to come home. This text declaration is puzzling, particularly when one juxtaposes this declaration to her in-court declaration that she was “sexually assaulted by a Rogers employee”. I say the declaration is puzzling, because the words “almost molested” suggest a perception that a molestation never occurred – in the same way that a declarant who states that she “almost got to Toronto” implies she believes she never reached her destination. Unlike when texting A.K., T.R. declared an unequivocal belief in court that she had been “sexually assaulted” by Mr. Singh. One can be forgiven for wondering why someone who later viewed a particular physical touching as a sexual assault would earlier have viewed this same physical touching as rendering her “almost molested.” I can certainly conceive of evidence capable of resolving this apparent inconsistency. For example, had T.R. been recalled, perhaps she might have explained that she used the term “almost molested” to convey the claim that Mr. Singh almost touched her “gooch.” However, the Crown did not recall T.R., and as a result I can only speculate as to whether T.R. would have provided a rational explanation for two apparently contradictory perceptions of the same event. T.R.’s text to A.K. therefore gives rise to some concern about her credibility and reliability. This, however, is a relatively minor area of concern, given the ambiguity of the text and its place the factual matrix of the entirety of the case. Nevertheless, it does raise some concern.

[26] As noted, A.K. also provided evidence about T.R.’s demeanour. At her request, he departed work and came home. Upon arriving home, he observed T.R. to be quite upset, gasping for air, and crying a lot. This observation is consistent with T.R.’s own description of her post-incident behaviour, which purportedly included her taping cardboard to all the windows. Given T.R.’s evidence that she suffers from a “panic disorder” for which she takes prescription medications, it becomes difficult to assess the degree to which any weight should be given to this post-incident demeanour evidence. As a result, I do not find that this evidence provides sufficient assistance in assuaging the above-summarized concerns that arise in the Crown’s case.

III. THE CASE FOR THE DEFENCE

[27] Mr. Singh was the only defence witness. In essence, Mr. Singh painted T.R. as being the one who pursued physical and sexual contact with Mr. Singh. He claimed that T.R. consented to Mr. Singh’s physical contact, that she communicated this consent through her conduct, and that he perceived her to be consenting to this contact, despite not explicitly seeking consent himself.

[28] As with T.R., there were various aspects of Mr. Singh’s evidence that caused me concern about his credibility and reliability. As I did with T.R.’s evidence, I will endeavour to highlight areas of concern as I summarize Mr. Singh’s narrative.

[29] Mr. Singh generally agreed with T.R.’s broader description of the nature of his service call. He arrived there shortly after 10 a.m. for the purpose of exchanging her existing equipment with new equipment. In addition to exchanging the Wi-fi box and TV boxes, Mr. Singh also testified that he installed 3 Wi-fi extenders. He also provided some details about the nature of the advice he gave her about utilizing Rogers Ignite software to maintain and monitor her devices.

[30] According to Mr. Singh, T.R. twice interrupted him and told him, “I like you,” while he was attempting to explain certain aspects of Rogers Ignite to her.

[31] According to Mr. Singh, he entered the living room more than once during the installation. He testified that he last entered the living room in fulfillment of T.R.’s request that he set up her TV for her. He testified that she made the request after he had told her he had finished and was leaving. He agreed to the request.

[32] He testified that during this last visit to the living room, he noticed T.R. stretch, which caused him to ask her, “Long day?” At this juncture, she allegedly informed him of the tattoo she had received the day previously. According to Mr. Singh, she started to show him her tattoos – the implication being that she was proud of her tattoos. For what it is worth, I would observe that she appeared proud of her tattoos as she described them during her testimony. In any event, Mr. Singh testified that T.R. then pulled the right side of her t-shirt over her head, revealing much of her torso – an assertion denied by T.R. in her evidence. He was shocked by her removal of half her shirt. He testified he said, “It’s okay…”, suggesting he tried to dissuade her from her immodest display. He further testified that she told him that she didn’t care and that she was going to remove it when he was gone anyway. She then put the shirt back on.

[33] According to Mr. Singh, T.R. then pulled down her pants, unprompted, and showed him the portion of the new tattoo that extended down her leg. He told the court that he started to think that she might be escalating things and might be interested in sex. He claimed that he gestured with his hand, as if to brush her away and discourage her exposition. In his evidence in-chief, he testified that he made contact with her when making this gesture, but the contact was unintentional. In cross-examination, however, he testified that he patted her, with a swatting motion, and made contact for one or two seconds. His demonstration and description implied intentional contact, in apparent contradiction to his in-chief evidence. This contradiction negatively affected my perception of his credibility and reliability.

[34] Mr. Singh informed the court that he had a fiancé. His evidence suggested he was experiencing an inner conflict. On the one hand, the events were extending beyond the bounds of an appropriate and professional service call. Also, reciprocation of the perceived advances was problematic, because he had a fiancé. On the other hand, he revealed that he experienced temptation to reciprocate the perceived advances. At one point, he indicated that he was “50/50” when asking himself “should I do it?” To sum up, he purported to be simultaneously uncomfortable and tempted by what was transpiring.

[35] According to Mr. Singh, the two of them continued to discuss her tattoos after she pulled up her pants. T.R. explained some of the tattoos on her arms. She also discussed her new lion tattoo. During this conversation, he expressed admiration for her tattoo and also told her he had some interest in getting one. In Mr. Singh’s telling, T.R. pulled down her pants again to reveal the new lion tattoo. On his telling, like hers, she pulled her pants down further the second time. However, unlike her account, Mr. Singh alleged that she pulled down both sides of her pants and bent over as she did so. He claimed that she had her hands resting on her thighs and was exposing her entire backside to him, revealing both her anus and vagina. Mr. Singh began to wonder again if T.R. was interested in sex.

[36] Mr. Singh testified that he put his palm on the lion tattoo on her hip/buttocks and purported to do so for entirely platonic purposes. He claimed to be attempting to feel the texture of the tattoo, to see what it felt like. [1] He also purported to have interest in the tattoo because lions have significance in his religion and culture. He claimed not to be uncomfortable as he touched her tattoo, precisely because he was only touching it for non-sexual purposes. I do not find his characterization of his conduct credible or reliable. Despite the fact that T.R. was revealing her vagina and anus to him, despite the fact that he purported to believe that she was making sexual advances towards him, and despite the fact that he purported to be “50/50” in resolving his temptation to “do it”, Mr. Singh also purported to be focussing solely on T.R.’s lion tattoo as he touched it for 20-25 seconds. The incongruity is palpably clear – and so is the impact upon Mr. Singh’s credibility and reliability.

[37] Mr. Singh’s contradictory stance is further revealed by his testimony about his belief in T.R.’s consent to being touched. He made clear that he inferred T.R.’s consent to physical contact from her own physical behaviours, chief among them the exposition of “all her parts.” He testified that he believed she was sending him signals and that she was communicating consent “by action.” In providing this stance in both in-chief and cross-examination, Mr. Singh remained steadfast in his assertion that T.R. was making sexual advances towards him and that he inferred from those sexual advances, she was consenting to be touched. Then, while admitting to being sexually tempted and while believing he had received an invitation to sexual touching, he purported to engage solely in a platonic examination of the lion tattoo. I simply don’t buy that characterization of his motives.

[38] I would stress, however, that, given a not-insignificant overlap between Mr. Singh’s description of T.R.’s conduct and T.R.’s own description, I cannot outright reject his description of her conduct. I would add that although some of the behaviours he attributes to T.R. seem outlandish to me, they are perhaps no more outlandish than some of the behaviours T.R. attributes to him. The outlandishness of the allegations each make against the other do not, in my view, inherently undermine the credibility of either of their allegations against the other – the outlandishness of the cross-allegations could only impact upon their credibility if I were to rely upon impermissible stereotypes of how either men or women behave when attempting to seduce someone. Given my inability to reject Mr. Singh’s description of T.R.’s behaviour, I also cannot I reject his purported subjective interpretation of T.R.’s motives and consent. However, I do reject, Mr. Singh’s claim of non-sexual motivations during what he describes as a highly sexually charged interaction.

[39] Mr. Singh testified that after he touched T.R.’s tattoo for about 20-25 seconds, she stood up and pulled up her pants. He also stood up. T.R. then asked him for a hug, and they did a side hug. On his evidence, she initiated the hug. He denied extending his hand to initiate any kind of farewell embrace. After the hug, she smiled at him, licked her lips, and looked at him in what he felt was a seductive manner. He purported to continue to feel uncomfortable with internal conflict. Ultimately, he told her that he was leaving, and he departed. He denied making the outlandish and obscene overtures described by T.R. as he departed.

[40] Shortly after Mr. Singh departed, he realized he had left some equipment inside. He knocked on the door but received no response. He then called T.R.’s phone number, still receiving no response. After departing, he decided to call in sick for the rest of the afternoon. The next day, he departed on a long-planned vacation.

[41] I suspect that the Crown may have at one juncture intended to rely upon Mr. Singh’s decision to call-in sick and his subsequent vacation time as post-offence conduct capable of establishing Mr. Singh’s consciousness of guilt. However, given that the Crown made no submission in this regard, and given that other innocent reasonable explanations for his conduct might reasonably be inferred, I am not inclined to make any inferences of guilt from that aspect of the evidence, nor am I inclined to devote any more attention to the issue in this judgment.

IV. ANALYSIS

[42] Many of the elements of the unlawful act are conceded. Others are beyond rational dispute. Mr. Singh concedes making physical contact with T.R. He admits that contact occurred in the general location of T.R.’s right hip and buttock as he touched her tattoo. He disputes any assertion that his hand strayed from the tattoo and T.R.’s suggestion to the contrary is fatally undermined by her contradictory testimony on the issue. However, Mr. Singh’s assertion that he had no sexual motives or intentions when making physical contact with T.R.’s hip and buttock is equally flawed. He suggests T.R. extended a sexually charged albeit non-verbal invitation to him to touch her hip yet claims simultaneously that his acceptance of that invitation was devoid of sexual connotations. He cannot have it both ways. The notion that the physical touching in this case had a sexual dimension is beyond rational dispute, in my opinion.

[43] The primary element of the alleged unlawful act that remains in issue is the element of consent.

[44] As far as the issue of Mr. Singh’s unlawful intent is concerned, Mr. Singh acknowledges intentionally touching T.R. at least once. An intentional application of force therefore occurred. Therefore, the only element of the mental component of the alleged offence that remains in dispute is Mr. Singh’s claim that he honestly believed that T.R. consented to him physically touching her.

[45] I will deal first with the issue of consent.

[46] The absence of consent is a component of the unlawful act. Section 273.1(1) of the Criminal Code defines consent as, “the voluntary agreement of the complainant to engage in the sexual activity in question.” The issue of consent (or its absence) is a question of the complainant’s subjective state of mind. Section 273.1(1.1) requires that consent be present at the time the sexual activity in question took place. The accused does not, however, have the burden of proving the existence of this consent. Rather, the Crown bears the burden of proving its absence at the time the sexual activity in question took place. [2]

[47] The issue of consent – or its absence – may be proven by either direct or circumstantial evidence. The complainant’s testimony about her own state of mind at the time of the incident constitutes direct evidence on the subject. Evidence of the complainant’s conduct and communications before, during, and after the sexual activity may give rise to reasonable inferences about the complainant’s state of mind at the time of the sexual activity, and thus operate as circumstantial evidence relevant to the issue of consent. This circumstantial evidence may arise out of evidence tendered at any point during the trial, during either the case for the Crown or the defence. At times, the inferences from the complainant’s conduct and communications may support the complainant’s direct evidence on the issue of consent. At other times, the complainant’s conduct or communications may serve to undermine their direct evidence on the issue. [3]

[48] When it comes to the issue of consent, having considered the entirety of the evidence, I am not sure what – or who – to believe. As I have already noted, there are various points in T.R.’s evidence that cause me to have concerns about her credibility and reliability generally. Several of those points in her evidence are also directly relevant to the central issue of T.R.’s subjective consent – or the absence thereof. Having already highlighted those areas, I do not intend to repeat them here. Those concerns are sufficient to cause me to harbour a reasonable doubt about the veracity of T.R.’s assertion that she did not consent to physical contact made by Mr. Singh. I harbour this doubt whether I view T.R.’s evidence in the context of the entire case or unopposed and in isolation. In my view, her evidence was not capable on its own of establishing the absence of consent – and no other witness, Crown or defence, cured the doubts caused by her evidence. However, as noted above, there are also aspects of Mr. Singh’s evidence that leave me with concern about his credibility and reliability. My degree of doubt about the veracity of his evidence is similar to the doubt I harbour in relation to T.R.’s evidence. As with T.R., though, I cannot reject his evidence outright. In my view, his evidence about T.R.’s conduct and communications constitutes circumstantial evidence of T.R.’s state of mind that is capable of raising a doubt about her professed lack of consent. Taken collectively, her alleged conduct and communications, despite the absence of any explicit invitation to engage in sexual touching, are capable of resulting in a reasonable inference that she desired sexual activity with Mr. Singh and attempted to convey that desire through her conduct and communications. I hasten to add that I do not accept as gospel Mr. Singh’s account of the events. I simply cannot reject his account beyond a reasonable doubt, despite harbouring concerns about his credibility and reliability.

[49] Given the Crown’s inability to prove the absence of consent beyond a reasonable doubt, Mr. Singh must be acquitted.

[50] It is therefore unnecessary for me to consider in any great detail Mr. Singh’s mens rea defence. However, I would point out that the conduct and communications that Mr. Singh ascribes to T.R. are capable of giving rise to a reasonable inference that T.R. was consenting to the sexual activity in question and was communicating that consent to Mr. Singh. Section 273.2 of the Criminal Code requires that Mr. Singh take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting. The circumstances known to Mr. Singh at the time included the alleged conducted and communications of T.R. The accused's observation and perception of the conduct and communications of the complainant may be sufficient in some cases to obviate the need for further inquiry: see R. v. Chapman 2016 ONCA 310. In my view, when viewed in its entirety, Mr. Singh’s evidence purports that he perceived T.R. to be conveying her consent through her conduct and communications. There exists an air of reality to this claim. The Crown therefore bears the burden of disproving beyond a reasonable doubt Mr. Singh’s purported belief in the complainant’s consent and his purported claim that he took reasonable steps to ascertain that consent. Given the evidence of Mr. Singh, which I have been unable to reject beyond a reasonable doubt, I conclude that the Crown has failed to discharge its burden.

[51] Mr. Singh will be acquitted of the charge before the court.

Released: February 19, 2021 Signed: Justice C.A. PARRY

[1] He purported to touch only the area of her hip that contained the tattoo, but he acknowledged that his thumb may have extended beyond the tattoo. However, when providing demonstrative evidence, his right thumb pointed upwards – not in the direction of T.R.’s “gooch” -- as he simulated his touching motion.

[2] R v Ewanchuk, [1999] 1 SCR 330; see also Lisa Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” 2019Docs 4280, p. 322;

[3] Dufraimont, supra at pp. 322 to 329.