Court File and Parties

ONTARIO COURT OF JUSTICE DATE: December 6, 2024 INFORMATION No.: 23-2314493

BETWEEN:

HIS MAJESTY THE KING

— AND —

SIMRANJIT SINGH

Before: Justice J. Miller

Heard on: November 19, 20, and 22, 2024 Reasons for Judgment released on: December 6, 2024

Counsel: Mr. Lafleur, counsel for the Crown Mr. T. Khan, counsel for the Accused

REASONS FOR JUDGEMENT AT TRIAL

Miller J.

INTRODUCTION

[1] Mr. Simranjit Singh is before me on one information number 23-2314493 that alleges, he, between the dates of April 24 and 25, 2023, committed the offence of sexual assault on A.B. [1] contrary to s.271 of the Criminal Code.

[2] The Crown called the complainant in this matter, A.B. The defence also called a single witness, the accused, Simranjit Singh.

[3] The central dispute in this matter involves the interactions between the accused Mr. Singh and the complainant A.B. starting sometime on April 24, 2023, and leading into the morning of April 25, 2023. Specifically, A.B. alleges three instances of nonconsensual touching by Mr. Singh on her. The first involved pouring some sort of oil like substance on her back and massaging her back, under her bralette. The second, involved a brief attempt to spoon her. The third involved her waking to find that Mr. Singh was digitally penetrating her. Mr. Singh denies all three allegations outright. As I have only heard from the two, their credibility and reliability form central issues I must resolve.

THE LAW

[4] In assessing the evidence, I instruct myself on several key elements of our criminal law. Simranjit Singh is presumed innocent. The Crown bears the burden of displacing that presumption and can only do so where the level of proof satisfies me that it is beyond a reasonable doubt that the accused committed the offences he is charged with. The burden of proof never shifts. It remains with the Crown throughout.

[5] Proof beyond a reasonable doubt is inextricably linked with the presumption of innocence and is entrenched in the Canadian Charter of Rights and Freedoms in section 11(d). A reasonable doubt is not based upon sympathy or prejudice but upon reason and common sense that is logically connected to the evidence or the lack of evidence. A reasonable doubt is not an imaginary or frivolous doubt. The Crown does not need to prove the offence to an absolute certainty since that would be an unrealistically high standard. [2] Finally, the beyond-a-reasonable-doubt standard does not apply to individual pieces of evidence but instead is considered once the evidence can be viewed as a whole. [3]

[6] Further, because this is a case where the accused testified, the presumption of innocence is best protected by applying the legal principles enunciated by the Supreme Court of Canada in R. v. W.(D.). [4] In that case, the Court encouraged a specific reasoning process to ensure that a trial court does not accidentally reverse the burden onto the accused at any point during a criminal trial.

[7] The principles simply put, are as follows:

• First, if I believe the evidence of the accused in this case, which is a denial of the offences, I must find him not guilty.
• Second, even if I don’t believe the accused’s evidence, if I am left in reasonable doubt by his evidence, I must also find him not guilty.
• Finally, even if I totally reject the accused’s evidence, I must still determine whether on the evidence I have accepted, the Crown has met their high onus of proving the offences beyond a reasonable doubt.

[8] To apply W.(D.) correctly, the Court's reasoning process, particularly in assessing credibility and reliability, is vital. As often stated, I can believe all, some, or none of a witness's evidence.

[9] When looking at credibility, assessing a witness' trustworthiness becomes a very case-specific task. Does what the witness say make sense and accord with common sense and logic? Is the witness internally or externally consistent? Do they have an apparent motive to lie? Does other material evidence support or contradict the witness' evidence? These are but some of the considerations that come into play.

[10] Apart from assessing credibility or whether I believe the witness is genuinely being honest, I must also focus on the important issue of reliability. When assessing reliability, I must assess the witness' ability to accurately observe, recall and recount events. Generally, a witness who lacks credibility cannot give reliable evidence. An unreliable witness, however, may still be credible.

[11] In weighing the evidence of the witnesses, I have considered what I view to be objective measures of reliability, such as the plausibility of the evidence, whether it was internally and externally consistent, and the witnesses' ability to recall events. I have assigned little weight to the demeanour of the witnesses as it can be an unreliable indicator of credibility or reliability. [5]

[12] I also remind myself that this is not a credibility contest between the accused and complainant, with only one who can win and one who can lose. Indeed, the W.(D.) Framework makes this clear: for example, I can disbelieve the accused, believe the complainant, and still have a reasonable doubt. Further, it may be that I cannot decide whom to believe beyond a reasonable doubt, which also entitles the accused to an acquittal. Also, if exculpatory evidence arises from any witness in a case that leaves reasonable doubt, I must acquit no matter who I believe. This is not a binary choice between the evidence of the Crown and the evidence of the defence.

[13] In a case where only the complainant and the accused testify, however, there will almost inevitably be a need to compare their evidence. As the Ontario Court of Appeal stated in R. v. A.J.K.: 2022 ONCA 487, [2022] O.J. No. 2862 at para. 32:

“ There is nothing inherently wrong, and much right, with a trial judge contrasting and comparing evidence with an accused's evidence. Engaging in this kind of contrast and comparison does not in and of itself reflect a misplacement of the burden. To the contrary, engaging in this exercise will often reflect a proper consideration of an accused's evidence in light of the evidence as a whole, including a complainant's evidence…”. [6]

[14] Indeed, the W.(D.) analysis could result in the rejection of an accused's evidence beyond a reasonable doubt, based mainly or entirely on the acceptance of contrary evidence beyond a reasonable doubt from other witnesses, including when the judge is not able to articulate other issues with the accused’s evidence. [7]

[15] In applying the W.(D.) test, many courts have consistently held there is no formulaic way to do it. While evidence given by witnesses must be assessed on the whole of the evidence in a case, a judge must start somewhere to explain their conclusions in a matter. There is no requirement that the judge proceeds in the step-by-step manner laid out in W.(D.). However, they may do so. [8]

[16] In making my findings, I can rely on common sense assumptions based on my life experiences and acquired knowledge of human behaviour. However, I may not do so if it would engage either of the twin myths legislated to protect sexual assault complainants from myths and stereotypes. Further, I should exercise caution about making ungrounded assumptions that are not based on the evidence. If they are obviously untrue and plainly observable, they constitute a palpable and overriding error warranting appellate review.

[17] Finally, the elements of a sexual assault were succinctly laid out by the Supreme Court of Canada in R. v. G.F., at para. 25:

“ The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent.” [9]

THE EVIDENCE

[18] I begin my reasons by observing that I do not intend to rehash the entire trial, but rather, I will focus my reasons on the key issues. In doing so, I want to make clear that I have considered all the evidence given in this trial, whether I mention it in my reasons or not. Indeed, the evidence must be weighed, and findings made in consideration of the whole of the evidence.

General Background Information

[19] There is little dispute between the parties about the background of this matter.

[20] Mr. Singh and A.B. are known to each other. They were friends at the time of the alleged offence.

[21] A.B. met Mr. Singh briefly in 2021 because of Mr. Singh’s relationship with Moriah Krahn[ph]. A.B. met Moriah through her brother Elijah, with whom A.B. went to school. Moriah’s family owned a pool shop in Aylmer, Ontario. A.B. worked at the pool shop in 2021 and 2022. [10] She became close friends with Moriah when she was employed there in 2021.

[22] Mr. Singh and Moriah began dating in the summer of 2021. He met A.B., albeit the two did not spend significant time together in 2021. Eventually, Mr. Singh moved in with Moriah to an address in London, Ontario, and then they moved into an address in Aylmer, Ontario.

[23] When living in Aylmer, Ontario, Mr. Singh and Moriah lived only a few doors down from A.B. They were essentially neighbours. The three started spending more time together, casually hanging out, and Mr. Singh and A.B. appeared to form a solid friendship.

[24] Mr. Singh married Moriah in March of 2022. A.B. attended their wedding reception.

[25] Moriah had past drug addiction issues, and Mr. Singh had expressed that he did not like her to be around drug addicts as a result.

[26] In February 2023, Mr. Singh and Moriah moved to Dorchester, Ontario. It was a basement apartment suite with two bedrooms, one washroom, an open-concept kitchen, and a living room.

[27] On April 24. 2023 A.B. attended that residence around 7 p.m. [11] She brought alcohol with her, wine and some cans containing an alcoholic beverage.

[28] While at the residence A.B., Moriah and Mr. Singh all consumed alcohol in differing quantities.

[29] A.B. stayed the night at the Dorchester residence. The main issue in this case is whether I can determine what happened that night beyond a reasonable doubt and, if so, whether that constitutes the offence of sexual assault.

[30] I also note that the defence conceded the court’s jurisdiction in this matter, which means the offences occurred in Ontario as alleged. Further, the defence also admitted identity, meaning that the accused before me was acknowledged to be the Simranjit Singh charged in the information before the court, and when A.B. referred to the male Sam, Simranjit or Mr. Singh, she referred to the accused before me.

The Evidence of Mr. Singh

[31] Mr. Singh’s evidence, summarized, is that A.B. unexpectedly invited herself over on April 24, 2023, and she showed up with a reasonable quantity of alcohol. He cooked, and then he left A.B. and Moriah to eat and drink alcohol while he went to his bedroom to watch a TV show, eat, and drink a beer. After 30 to 40 minutes, Moriah and A.B. came to his room and persuaded him to join them in the living room to play card games. He agreed to join them, and they played cards and drank more alcohol. At about 10:00 to 10:30 p.m., he went to his bedroom with Moriah, who had to go to bed as she had to work the next day. He only briefly left his bedroom once that night to use the washroom and then returned to sleep beside Moriah. After going to bed, he didn’t see A.B. until the next morning when she was seated on his couch in the living room. On his version of events, he never touched A.B. at any point or did anything that could constitute a sexual assault.

[32] Mr. Singh’s evidence is a complete denial of the offences. If I believe that evidence or if I am left in a reasonable doubt by it, I must find him not guilty.

[33] Considering the whole of the evidence in this case, I neither believe Mr. Singh’s evidence nor did it leave me in reasonable doubt. Below, I explain why.

[34] First, broadly speaking, Mr. Singh was not a credible witness. I had the advantage of watching Mr. Singh testify. He was impeached multiple times on prior inconsistent statements. Many of these inconsistencies were significant as his original statements would corroborate aspects of the complainant’s story, while his trial version was the opposite. I do not accept his explanations for those inconsistencies and found his attempts to explain them away to be deceitful. Mr. Singh further entrenched himself in positions that were aimed at attempting to prove that A.B.’s allegations could not have occurred; however, those entrenched positions turned out to either be baseless or based on untruths. Finally, some of the issues I had with Mr. Singh as a witness blended credibility and reliability concerns, as Mr. Singh would remain steadfast in his testimony at trial even when confronted with his contradictory police statement made much closer in time to the event when his memory would have been refresher, or it was demonstrated that he had no real basis for taking such a firm position.

[35] I pause here to note that Mr. Singh was not obligated to disprove the allegations against him or show they could not have occurred. That would be a reversal of the burden. To the extent, however, that he voluntarily offered to the Court evidence, including evidence about why the Court should have doubt about A.B.’s evidence because what she said was not possible, I am entitled to judge those statements like any other evidence from the accused. Further, if I find those statements not to be credible and/or reliable, that can undermine Mr. Singh's credibility and reliability more broadly as a witness. It is not evidence of his guilt, but it can lead to a rejection of his testimony, including other parts of his evidence.

[36] I begin by noting that Mr, Singh on all the evidence I do accept, had an apparent motive to lie, which was his marriage. Indeed, Mr. Singh offered up his marriage as one of the reasons I should not believe this happened. Of course, having an apparent motive to lie does not mean one lied. It is simply one factor to be considered on all of the evidence.

[37] I note that throughout his evidence, Mr. Singh attempted to cast himself as rather disinterested in the activities of Moriah and A.B. that evening while at the same time professing unfailing memory about many details that there would be little reason to have committed to memory if that were the case. Further, this was despite the fact they were drinking, which caused him concerns as his wife was a former addict. I found this overall narrative not to be credible.

[38] I examined the inconsistencies in Mr. Singh’s evidence before me with what he told the police and his explanations, if any, to explain those.

[39] Mr. Singh remained steadfast at trial that the beer he was drinking that night was Budlight. Mr. Singh, in cross-examination, agreed he told police on May 10, 2023, that although he likes drinking Budlight, he was probably drinking Busch beer that night. Mr. Singh agreed in cross-examination that his memory was fresher when he gave that statement, and he was being truthful and accurate.

[40] This is notable for two reasons. First, A.B. testified that she remembered Mr. Singh drinking Busch beer that night. If Mr. Singh corroborates that evidence, it could assist in showing that A.B.’s recollections of that evening are reliable. Second, as Mr. Singh likes drinking Budlight, his statement to police that he was probably drinking Busch that night tells me he had a specific recollection at that time that he was not drinking his preferred brand.

[41] Notwithstanding the above, Mr. Singh consistently refused to concede that he might have been drinking Busch beer. He gave no sensible explanation as to why he would have a specific recollection of drinking Busch at the time of the police statement and now was saying that it wasn’t even possible.

[42] Indeed, had Mr. Singh not taken such an obstinate position on this issue, I may have given the inconsistency little weight. Mr. Singh did himself great harm by refusing to concede what was reasonable on this evidence - that it was at least possible he drank Busch beer. Looking at the rest of his evidence, where he similarly painted himself into corners, I was left concluding this was not an issue with memory but an intentional recasting of the truth to suit Mr. Singh’s desired narrative.

[43] Another example arose when Mr. Singh gave evidence about what A.B. and Moriah were drinking. At trial, Mr. Singh was specific several times in his evidence that A.B. brought exactly a 1.5-litre bottle of what he described as neither white nor red wine, but a wine that “girls drink”, it was “cheap” and “sweet”. He testified that he told them they shouldn’t drink that wine because it was “cheap”. He also testified that A.B. brought cans of alcohol that he first testified were vodka and then later conceded he didn’t know what was in them.

[44] In his police statement given on May 10, 2023, Mr. Singh was asked by police about what the girls were drinking, and he advised police he could not remember. Mr. Singh attempted to explain away this inconsistency at trial, suggesting that he was only speaking about what was in the cans of alcohol brought by A.B., but then conceded he told the police nothing about the wine or cans of alcohol at all. When challenged, he stated that it “slipped my mind”.

[45] I completely reject Mr. Singh’s explanation that it slipped his mind. Considering his detailed and specific recollection of the wine at trial, this explanation makes no sense.

[46] Another example arose when Mr. Singh testified about where A.B. slept that evening. On direct examination, Mr. Singh testified that A.B. chose to sleep in a spare bedroom, which was located beside the main bedroom he shared with Moriah. When cross-examined on the basis of this evidence and a prior inconsistent statement to police where he advised them that he guessed she slept on the couch, Mr. Singh became more certain in his answer that A.B. slept in the spare bedroom and unconditionally denied she slept on the couch.

[47] In his trial testimony, Mr. Singh testified that when he and Moriah went to bed, they advised A.B. that she could sleep wherever she wanted, including on the couch or in the spare bedroom. He then testified that he and Moriah made their way down the hall where both bedrooms were located, and while still in the hall, he heard the door to the spare bedroom lock, which he described as a clicking noise. He never testified to having any other basis to believe that A.B. was in the spare bedroom. The next time he saw her, according to him, was the next morning when she was on the couch.

[48] Looking at the prior inconsistent statement, when asked by the police specifically where he remembered A.B. sleeping that night, he told police that A.B. slept “on the couch, I guess”. He did not mention the spare bedroom or having heard the lock.

[49] Mr. Singh tried to explain away this inconsistency by focusing on the words “I guess” in his answer to the police and some explanation about what it meant to him. I note that his trial evidence, as solidified by the end of cross-examination, was that A.B. slept in the spare bedroom and an outright denial that she slept on the couch. There was no “I guess” left in his position; he professed to know. As explained above, the basis of his knowledge was hearing a clicking sound. Not only was Mr. Singh’s trial evidence inconsistent with his prior statement, but the basis upon which he now professes being so certain is seriously lacking for an evidentiary basis. His explanation for the inconsistency fails, as does his explanation for why I should accept his trial evidence regardless of the inconsistency. It is both not credible and not reliable.

[50] When confronted by police about the specific incidents reported by A.B. Mr. Singh, unlike at trial when he just unequivocally denied them, instead provided equivocal answers such as “I don’t know” and “I don’t remember”, at least about two of the three incidents.

[51] First, police asked Mr. Singh if anything happened “sexually” with A.B.. Mr. Singh replied, “I don’t think so” and “I don’t know, I mean, I don’t, I, I don’t know. Nothing works.”

[52] When asked at trial if anything sexual happened with A.B. after Moriah went to bed, his answer was an unequivocal “no”.

[53] His explanation for what could be seen as an apparent inconsistency was that there was some language issue at play and that when he uses the English phrases ‘I don’t know’ and ‘I don’t remember’ that is the equivalent of saying ‘no’ and ‘that is not true’. This was essentially his explanation for all the inconsistencies in this area. I will return to this explanation after I examine the other potential inconsistencies in this area.

[54] Regarding the first incident involving the oil-like substance and massage, when asked by the police if he remembered it, he stated, “I don’t know” and “I don’t remember”.

[55] At trial, Mr. Singh professed to know and remember and testified unequivocally that nothing like that happened, stating on direct examination that “this is fabricated”. He then said it was essentially impossible for this to have occurred because the only oil in his house was the oil marked as Exhibit #2 in this proceeding and that if he had used it on her, it would have burned her skin and smelled awful.

[56] Concerning the second incident involving the alleged spooning, Mr. Singh advised police, “I don’t remember” when asked about it.

[57] At trial, like the first incident, he says he remembers, and it didn’t happen. When asked on direct examination about it, he responded, “this is a fabricated story”. He then stated it was impossible because the couch was too small.

[58] Mr. Singh testified on redirect that his understanding is that the literal translation of “I don’t think so” in Punjabi is “it doesn’t seem to me that something like this happened”. He did not testify that the translation is “no”.

[59] I make several observations and findings. First, the only evidence I have that Mr. Singh’s somewhat equivocal answers were the result of a language problem comes from him. Relying on the other reasons detailed in this judgment, I have found Mr. Singh to be not credible and reliable, and thus, his evidence on this point is tainted by those findings. While I accept that English is not Mr. Singh’s first language, considering all the evidence, this does not make me doubt my findings on this issue.

[60] Putting that aside, there are several good other reasons not to believe Mr. Singh when he states this was a failure of language. First, I look at the text messages in Exhibit #3 that Mr. Singh agrees he sent A.B., and I note his command of English seems quite solid; indeed, he appears to know English and English slang at a very competent level.

[61] Further, at trial, Mr. Singh had no issue answering with unequivocal denials when he was saying ‘no’ or conveying that nothing happened. He did not explain why his parlance would have changed so radically from the police statement to the trial when he had no problem expressing himself clearly at trial.

[62] Also, the police statement itself belies that he had a problem answering unequivocally and proves he understood how to answer ‘no’ when he wanted to convey that nothing happened. Indeed, it was in redirect that my attention was drawn to questions and answers that followed his equivocal answer to whether anything sexually happened with A.B., in which he was asked by police again if anything sexual happened between him and A.B., and he answered “no” twice.

[63] On the whole of the evidence, I reject Mr. Singh’s explanation. I also find his answers at trial materially different than some of his answers to the police, at least when confronted initially with the allegations. Notably, I don’t find his equivocal answers to be admissions or confessions by him. They are not evidence of his guilt. I don’t give much weight to the difference between his answers to the police and at trial on these points. However, Mr. Singh's credibility was tarnished by his attempted explanation, which I have rejected as untrue. The fact that Mr. Singh was prepared to try to mislead me on this issue is more damaging to his credibility than any inconsistency in these statements.

[64] Mr. Singh further damaged his credibility by attempting to ‘prove his innocence’ and offer evidence that I have found deleterious to his credibility and reliability.

[65] One example is when he brought in the oil, which is Exhibit #2.

[66] The Crown appropriately asked why this oil was produced. No one said this was the oil used on A.B.. She stated she had never seen it before and had no idea what was in it.

[67] The only answer provided by Mr. Singh was that this was the only oil-like substance in his house, and it somehow showed that A.B.’s story couldn’t be true. This was patently false.

[68] Mr. Singh himself admitted it was untrue. He agreed he at least had cooking oil in his house. Further, applying my common sense and life experience, I find it unbelievable that in the entire residence that Mr. Singh shared with his wife, there wasn’t any type of moisturizer or other like substance in the house.

[69] Even on Mr. Singh’s admission, other oils were in the house besides Exhibit #2. Further, the claims as to the potent stench of this substance were undermined by the actual demonstration in Court when I was given the opportunity to smell it freshly applied on a kleenex. I profess to not noting much of an odour at all. Further, the suggested intense burning it causes to the skin is belied by the use Mr. Singh attested to, which was to rub it all over one’s head. I pause to note that the head is covered by skin.

[70] This is another example of Mr. Singh painting himself into a corner he didn’t need to be in. In taking on an onus he didn’t have, he provided an explanation I find not credible, ultimately impacting his credibility and reliability deleteriously.

[71] Another example of this was Mr. Singh offering that it would have been impossible for him to have digitally penetrated A.B. as she testified her legs were closed. On cross-examination, when asked what he based his testimony on, he stated he was a 26 to 27-year-old man who performs sex and knows how it works. He refused to admit he couldn’t say if this were impossible to have done to A.B., even though he denied that he had tried to do this to her.

[72] Putting aside the misogynistic element of this evidence which is reminiscent of the rape myth that a woman cannot be sexually assaulted if they just keep their legs together, Mr. Singh’s evidentiary foundation for taking such a firm position is flimsy and contrary to common sense. A.B. testified that Mr. Singh would have penetrated her while she was initially sleeping, a stage where the body is relaxed. Further, there is no specific evidence about A.B.’s exact skeletal or muscular structure or her anatomy. To take a position on this basis that digital penetration of her would be impossible is demonstrative of someone careless with accuracy and, in this case, I found, the truth.

[73] Further, Mr. Singh decided to entrench himself in a position that he couldn't have tried spooning A.B. because the couch was only two feet wide.

[74] Again, I disagree. First, the two-foot-wide measurement was an estimate; there is no evidence that anyone had measured this span. Based on my life experience, I note this would be unusually shallow for even a small couch. Having said that, even at two feet wide, there remained room for Mr. Singh to try and spoon A.B..

[75] First, Mr. Singh, while tall, is not otherwise a large individual. He agreed that most people consider him slim. I agree and would categorize him as being slimmer. A.B., while of average height, is diminutive in size. Laying on their sides, on a couch made of normal cushion, fabric, and a wood frame, as Mr. Singh agreed it was, I have no problem envisioning Mr. Singh spooning A.B. in the manner she described. It must be remembered that the normal cushioning on couches compresses when people sit or lay against it, meaning it would create more room than that which appears to exist when no one is on it.

[76] Suggestions that she would have fallen do not accord with my common sense and fail to account for her evidence that Mr. Singh pulled her tight into his body.

[77] Mr. Singh’s attempts to make this simple act look impossible, as opposed to just a denial that it happened, made me further doubt his credibility.

[78] Mr. Singh further showed himself to be unreliable and not credible when he tried to testify that A.B. did not work at the Krahn[ph] pool family business in 2023. Putting aside the fact that this evidence was seemingly offered to refute a collateral fact raised by the defence in the cross-examination of A.B., Mr. Singh revealed himself to have no basis for his testimony. The evidence of his connection to the business and what he was told showed that he had little to do with the business. He would be called in to help periodically, and he didn’t work inside the store where A.B. worked. Indeed, when defence counsel tried to go down this road, it was quickly abandoned when it revealed itself without merit. Further, in answering these questions, Mr. Singh admitted to taking cash payments for his labour. [12] The fact that Mr. Singh would take such an unequivocal position without a basis was further evidence of his unreliability.

[79] I further found Mr. Singh’s evidence around drinking and drugs to be nonsensical and deleterious to his credibility and reliability.

[80] First, concerning the activities of April 24, 2023, Mr. Singh indicated that he was unhappy about his wife drinking to excess. She was a former drug addict; he hated drugs and viewed excessive drinking as a precarious activity for her. Yet, on his evidence, he sat drinking alcohol with his wife and A.B., notwithstanding this concern. I find it nonsensical that he would drink alcohol with them, given his stated concerns.

[81] Further, Mr. Singh unequivocally stated that he did not condone drug use and disliked drug users. Again, his wife was a former addict, and he had concerns about that. Given that, I find it nonsensical that Mr. Singh would joke so casually about drugs as he states he was doing in Exhibit #3.

[82] Finally, Mr. Singh’s evidence about the text messages in Exhibit #3 requires some examination. Ultimately, I found his explanations lacked credibility and reliability.

[83] Mr. Singh testified on direct examination that he had two phones and that everyone knew that. He did not explain how everyone would know that. One of the phones he agreed was the phone that I will call the ‘Mike Wiebe’ phone. He agreed that is the phone number he used to send the text messages in Exhibit #3.

[84] A.B., in her evidence, testified that before the incident on April 24, 2023, she had been receiving texts from two different numbers about hanging out. One was a number she obviously knew to be Mr. Singh’s. She testified that Mr. Singh was texting her, asking her to hang out, but when she asked him if Moriah would be there, he would be equivocal and state he didn’t know. She testified that the texts were getting increasingly pushy, and he would text her multiple times in a row, even if she didn’t respond. She began suspecting that he wanted more than a friendship with her, and she was not interested in that.

[85] A.B. also testified about texts from a different number she did not recognize. That person identified themselves as ‘Mike Wiebe’. That person was also texting her to hang out and meet up. She never took them up on their offer. Eventually, she asked them to stop texting her as she said it was creepy, and only then did Mr. Singh reveal that it was him all along. He proved this by sending a photo of himself and his wife and a photo of his wife.

[86] The first point I wish to make is that I am left wondering, other than again contradicting a collateral issue, what relevance there was to Mr. Singh’s evidence that everyone knew he had two phones. The relevant issue is that he was texting A.B. from a phone number she does not know. Mr. Singh could carry a dozen phones around for all to see, which would have zero relevance to this issue. Mr. Singh did not expect her to know it was him. On his evidence, he was pranking her and pretending to be ‘Mike Wiebe’; this only would work if she didn’t know this to be his phone number. This also belies his evidence that everyone knew he had the two phones, as A.B. was unaware of the number or providence of the ‘Mike Wiebe’ phone.

[87] Second, Mr. Singh offered no evidence on whether he texted A.B. from the phone she knew to be him, asking her for hangouts, seemingly without his wife, while growing increasingly pushy with them. He never denied sending these texts; I have only A.B.’s evidence on this issue, and for reasons I will give later in this judgment, I accept her evidence on this.

[88] Finally, when I consider Mr. Singh’s explanation for the text messages in Exhibit #3, which is that this was a prank and his wife was in on it, I do not accept his explanation. Further, I am not assisted by the texting of words of apparent mirth by the complainant, such as “haha” or “lol”. Those are equally consistent with being uneasy and trying to defuse tension and, in any event, don’t assist me in determining Mr. Singh’s state of mind.

[89] For other reasons, in this judgment, I found Mr. Singh not credible and reliable, and those findings also taint this evidence.

[90] Putting that aside, I have already found that it would be nonsensical that Mr. Singh, a man who professed to be so concerned with drug use, especially concerning his wife, would so casually joke about drugs, as he claims he was in Exhibit #3, especially if his wife was in on it.

[91] The fact that he sent photos that included his wife to A.B. and told A.B. his wife was in on it and that it was a prank doesn’t cause me to doubt my conclusions. There is no evidence of the date the photos were taken or whether Moriah was aware of their purpose, that they were being sent to A.B. or that she was in on a prank other than Mr. Singh’s testimony, which I clearly do not accept.

[92] On all the evidence, including the evidence of the other text messages, I find Mr. Singh was sending A.B. text messages about meeting up from two sources. The first, the number A.B. knows to be his, and when that was not producing results, he doubled down with the ‘Mike Wiebe’ line. Further, on all the evidence, I am satisfied beyond a reasonable doubt that he did so as he wanted to arrange a situation where he could meet up with A.B. alone, even if she didn’t know it was him beforehand, hoping to initiate a more intimate relationship with her.

[93] Of course, rejection of Mr. Singh’s evidence and my belief that he was purposely misleading and untruthful is not evidence of his guilt. The Crown’s case must still be scrutinized to determine whether, on all of the evidence, I accept that it proves the offence charged beyond a reasonable doubt.

[94] The Crown’s case, as stated, largely consisted of the evidence of A.B.

The Evidence of A.B.

[95] A.B.'s evidence summarized is that she and Moriah planned a girl’s night at Moriah’s house for the evening of April 24, 2023. A.B. testified to the aforementioned text messages, including those in Exhibit #3, her unease and belief that Mr. Singh may want something more. Still, she also believed they were good friends and thought it would be okay. Indeed, given all the circumstances and what she testified Mr. Singh did to her, A.B. was generally complimentary when asked questions about Mr. Singh and their relationship. She testified that she brought a normal bottle of white wine, and some cans of an alcoholic seltzer drink. She testified that she arrived around 7 p.m., Moriah was there, along with Mr. Singh and Moriah’s mother. A.B. began drinking around 7:30 p.m. She indicated she did not eat while there and was unaware of any food consumed. Initially, she was drinking the seltzer drinks, described as Captain Morgan Mai Tai’s. Moriah’s mother left not long after she arrived.

[96] A.B. testified that she, Moriah and Mr. Singh all sat on the floor right in front of a couch by the end of the hallway that contained the bedrooms; this area is next to the living room and the living room couch. They were playing drinking games. She testified that Mr. Singh was unusually quiet, but otherwise, she noted nothing odd. They were all drinking during the games. She recalled Mr. Singh was drinking Busch beer. A.B. drank some wine. All told, she recalled having 3 to 4 seltzers and a couple of glasses of wine. At some point, Moriah stated she was going to bed as she had to work the next day and told A.B. and Mr. Singh to finish the game they were playing. A.B. testified they did so, with Mr. Singh pouring them each a glass of wine. She did not finish hers; Mr. Singh was drinking his. Not long after Moriah went to bed, she said she felt intoxicated, tired, and not fully aware. She went to go to sleep and saw Mr. Singh go into the bedroom he shared with Moriah down the hall. She then went to sleep on the living room couch.

[97] A.B. testified she awoke on her stomach. She felt a greasy or oil-like substance pouring on her mid to lower back. She then felt hands rubbing her back, and they started making their way towards her front. It was dark, but she turned and saw Mr. Singh straddling her with his knees on the couch and hovering over her buttocks. He was clothed. She testified that none of her clothes were removed. She told him to leave her alone, go to bed and sleep with his wife. Mr. Singh then stopped and left. She doesn’t recall him saying anything. A.B. testified that she was still very tired and fell back asleep.

[98] A.B. testified she was next awoken by Mr. Singh attempting to spoon her. She assumed he went over the back of the couch as she only knew that he ended up behind her and was pulling her into his body. This woke her up. She came to and realized in was Mr. Singh. The incident was short and ended when she told him to leave her alone and to go back to his wife. She wasn’t sure, but he might have apologized to her on this occasion.

[99] A.B. testified that she did not want to go back to sleep at this point and tried to stay up but was unable to do so. She drifted off back to sleep. She was next awoken by Mr. Singh, seated on the end of the couch. She was lying on her back facing the ceiling, and her legs were closed. Mr. Singh had already reached into her pants and digitally penetrated her. She described feeling the discomfort of it. She stated she initially froze and then responded more emphatically than the other two times. Mr. Singh removed his hand. She said she did not yell but firmly told Mr. Singh he was way over the line. She was swearing. Mr. Singh, at this point, started apologizing and begging her not to tell, stating he did not want to ruin his marriage. Eventually, Mr. Singh left.

[100] A.B. testified she fell asleep again, woke up, and saw Mr. Singh lying on the couch in the hallway. She immediately got up and began packing to leave. Mr. Singh spent the time apologizing and trying to bribe her so that she would not tell his wife what he did. He indicated that he wasn’t sure why he did things to ruin his life.

[101] Was A.B. ‘totally fabricating’ these events, as suggested by Mr. Singh? I don’t accept that. Indeed, I found A.B. to be a completely credible witness. I don’t recall a single time she was impeached on cross-examination. Her story was internally and externally consistent with all but Mr. Singh’s evidence, which I have rejected outright. She was completely unshaken in cross examination. She made reasonable concessions, admitted things were possible if she had no basis to rule them out, and was candid and forthright. I was not concerned that she was doing anything other than trying to tell the Court the truth.

[102] Defence suggested several things that he said should cause me to doubt her credibility.

[103] It was argued she had motives to lie. It was suggested that she wanted to break up Moriah and Mr. Singh; perhaps she wanted to be with Mr. Singh or was jealous; or that she was angry about not being hired by Moriah’s parents for 2023, amongst others. I found no credible or reliable evidence to support any of these suggestions. Of course, the lack of evidence of a motive to lie is not evidence of an absence of a motive to lie. It doesn’t bolster credibility; it simply becomes neutral factor.

[104] It was also suggested that the Crown failed to call Moriah and that should raise doubt. Another was that the Crown did not produce the greasy or oily stained clothing of the complainant.

[105] Neither of these things cause me reasonable doubt. Corroboration of a complainant’s story is not a requirement for proof beyond a reasonable doubt. Corroboration may assist a case that is determined to lack evidence that proves the offence(s) beyond a reasonable doubt.

[106] In terms of the clothing, I note that no one asked A.B. at the trial whether her clothing was stained. Further, even if I assume it would be, she testified that the police didn’t ask for her clothes, so there is an explanation as to why none was produced to the extent that there needs to be one.

[107] The defence argued that if these things happened, Moriah would have heard and presumably done something, and she was not called as a witness, which should raise doubt that this happened. Certainly, there was evidence that the space was small, and that sound travelled easily through the space.

[108] While it is not complete speculation to suggest Moriah might have heard something in those circumstances, I note that there is no evidence that the parties were yelling, and Moriah had been drinking and went to a separate room to sleep. Of note, she told A.B. and Mr. Singh to keep playing the game, so whatever she could hear from that room, she wasn’t concerned it would keep her up or that she couldn’t sleep through it. Having to work the next day, I can reasonably assume she intended on being able to sleep.

[109] While I have considered the possibility that she heard something, this doesn’t assist me in determining what, if anything, she would have heard and, based on that, whether I would have expected her to do anything about that. It may be, for instance, that she slept through it all. Or that she heard muffled voices and paid them no mind, assuming the parties were playing the game. Or that she heard what was said and decided not to get involved. The Crown does not need to negate every possibility no matter how remote they may be on the evidence or lack thereof. Here I have considered the evidence and have determined it does not raise reasonable doubt.

[110] The defence also argued that the complainant’s evidence that none of her clothes were removed made it impossible for oil to be poured directly on her back, or perhaps the point was that it would have been stained as it would have to go through the clothing first. There is, of course, a difference between clothing being moved and removed. On a fair reading of A.B.’s evidence, her clothing would have been moved as she felt the liquid pouring on her back. There was no need for her clothing to be removed to do this.

[111] I turn now to a consideration of A.B.’s state of intoxication, which is certainly a concern. Intoxication by alcohol can impact the ability of a witness to observe and recall details. While the defence never argued that A.B. was mistaken, instead choosing to put all their eggs in the ‘total fabrication basket’, I must consider all the evidence and determine if it raises any reasonable doubt irrespective of whether it was argued.

[112] A.B. did not testify to being in an advanced state of intoxication, such as black-out drunk. Initially, before sleeping the first time, she testified in her forthright manner to not being fully aware, very tired and intoxicated. Afterwards, however, she describes herself feeling very tired, but she does not describe herself as not fully aware at these further points in time. She otherwise was able to recall and describe details well. Further, that makes sense to me. The effects of alcohol fade over time, and that is consistent with her description of the events.

[113] Further, the nature of the incidents lessens the chance of mistakes. The pouring of a liquid onto her back had a very specific feeling, along with being rubbed. Being grabbed and pulled into a body from behind and, finally and most significantly, the feeling of being digitally penetrated, in my view, are all instances in which the nature of the physical interference goes a long way towards negating any potential chance for mistake given the described state of intoxication.

[114] Further, the incident involving the digital penetration occurred last, after A.B., on her version of the events, had slept twice, which makes it least vulnerable to these concerns, and acceptance that it occurred assists in corroborating the other events.

[115] The evidence from A.B. about her interactions in the later morning with the accused when she says he is apologizing and bribing her not to tell his wife also negates the possibility that she mistook what took place. At this point, there is no suggestion from her that she is still feeling the effects of alcohol in any way.

[116] A.B.’s evidence that she was not certain of times was not concerning, she testified that she had nothing on her to tell the time and candidly wasn’t concerned with what time it was. This makes sense to me; the fact she wasn’t focused on time doesn’t cause me concern about her credibility or reliability.

[117] Further, the fact that she never saw Exhibit #2 in the house or could say what toiletries Moriah and Mr. Singh had or didn’t have, including in their washroom, makes sense to me. In my experience, it is totally normal not to investigate the toiletries of your guests who are hosting you in their home.

CONCLUSION

[118] After carefully considering all the evidence, I accept A.B.’s evidence beyond a reasonable doubt.

[119] Concerning the three incidents I find as fact that at some point during the night of April 24 over to 25, 2023, at his home in Dorchester, Ontario, Mr. Singh left his bedroom and obtained some oily or greasy liquid from inside the home. He attended the living room where A.B. was asleep, moved her shirt to reveal her lower back and poured it on that area. He massaged A.B.’s back under her clothing. This all occurred without A.B.’s consent, nor was any sought.

[120] I also accept beyond a reasonable doubt that A.B. stopped him as he moved his hands toward her front and told him to leave, and he did.

[121] Furthered considered objectively on all the evidence, I am satisfied beyond a reasonable doubt that this touching was of an objectively sexual nature.

[122] I find beyond a reasonable doubt that Mr. Singh returned later in the night and attempted to spoon A.B. by getting behind her on the couch and pulling her into his body from behind. I find that this incident began when A.B. was sleeping. Again, there was no consent to this touching, and none was sought. Furthered considered objectively on all the evidence, I am satisfied beyond a reasonable doubt that this touching was of an objectively sexual nature.

[123] I accept beyond a reasonable doubt that A.B. told Mr. Singh to leave again and that he did. Given her uncertainty, I cannot find beyond a reasonable doubt that he said anything at this time.

[124] Finally, I accept beyond a reasonable doubt that Mr. Singh returned a third time that night or early morning hours. I find that at that time, he found A.B. asleep, and he positioned himself so he could reach inside her pants, did so, and digitally penetrated her with at least one finger.

[125] I find this woke up A.B., who understandably froze initially and then became adamant that he had crossed a line. She made it clear that the behaviour was unacceptable. Mr. Singh, at this time, became apologetic and begged her not to reveal what he had done. No consent was given to the touching, and none was sought. Furthered considered objectively on all the evidence, I am satisfied beyond a reasonable doubt that this touching was of an objectively sexual nature.

[126] I also find beyond a reasonable doubt that during all three incidents, Mr. Singh intentionally touched A.B. and knew or was wilfully blind that A.B. was not consenting. All three incidents began when A.B. was sleeping and thus unable to consent. Further, based on the nature of their relationship and A.B.’s close friendship with Moriah, and her rejection of the text invites, I am satisfied that Mr. Singh knew or was wilfully blind that she, in any event, that she was not consenting.

[127] In summary, I am convinced beyond a reasonable doubt that between April 24 and 25, 2023, Mr. Singh intentionally touched A.B. for an objectively sexual purpose without her consent in circumstances in which he knew or was wilfully blind that she was not consenting. This constitutes the offence of sexual assault as charged, and thus, a finding of guilt is made on that offence.

Released: December 6, 2024 Signed: Justice J. Miller

Footnotes

[1] I have initialized the complainant’s name due to a s. 486.4 publication ban on evidence that would disclose her identity.

[2] R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 36; R. v. Sanichar, 2012 ONCA 117 at para. 46

[3] R. v. Morin, [1988] 2 SCR 345

[4] R. v. W.(D.), [1991] 1 SCR 742

[5] R. v. C.C., 2018 ONSC 1262, at paras. 61-62

[6] R. v. A.J.K., 2022 ONCA 487, [2022] O.J. No. 2862 at para. 32

[7] R. v. R.H. [2024] No. 4110 and R. v. J.J.R.D., [2006] O.J. No. 4749

[8] R. v. A.S., [2002] O.J. No. 1950

[9] R. v. G.F., 2021 SCC 20 at para. 25, see also R. v. Degale, 2024 ONCA 720 at para. 16

[10] The parties disagree on whether she worked there in 2023.

[11] Mr. Singh stated 7 to 8 p.m., A.B. stated around 7 p.m.

[12] I have chosen to just ignore this evidence in terms of its impact on his credibility and reliability