Ontario

Superior Court of Justice

Court File No.: 65/12

Date: 20140321

RE: Her Majesty the Queen v. Ranjit Santhosh

BEFORE: K.L. Campbell J.

COUNSEL: Stephania Fericean, for the Crown, respondent

Anthony Moustacalis, for the accused, appellant

HEARD: January 13, 2014

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

1At trial, the appellant, Ranjit Santhosh, was convicted of a single charge of sexual assault. Essentially, the trial judge, Madam Justice F. Bhabha of the Ontario Court of Justice, concluded that she was satisfied beyond a reasonable doubt that, at the end of the complainant’s physiotherapy treatment on August 5, 2010, the appellant slid his hand inside the complainant’s top and grabbed her breast. In reaching this conclusion, the trial judge accepted the evidence of the complainant and rejected the evidence of the appellant.

2This appeal turns on whether the trial judge erred in the manner in which she assessed the evidence of these two key witnesses. Essentially, the appellant contends that, in accepting the evidence of the complainant, the trial judge took extraneous and irrelevant considerations into account and, in assessing the evidence of the appellant, the trial judge adopted a more critical approach and drew illogical inferences from his evidence.

B. The Basic Evidentiary Background

1. Introduction

3The appellant worked as an assistant in a physiotherapy clinic in Toronto. The complainant was a patient of the clinic, and had been receiving treatments for her neck and shoulder injuries. By the time of trial, the complainant was 52 years old, and the appellant was 35 years old. As revealed by the evidence, the appellant was a person of previous good character, with a general reputation for morality.

2. The Complainant’s Evidence

4According to the complainant, during the August 5, 2010 physiotherapy treatment, she was wearing a strapless bra, covered by a sleeveless tank-top undershirt. She had removed a T-shirt, which she had been wearing over top of her undershirt, but was holding the T-shirt up in front of her to cover her upper chest area. The complainant was seated for her treatment.

5The complainant testified that, as the treatment was concluding, the appellant faced her, pulled her T-shirt down and placed his hand on the middle of her chest area. At the same time, the appellant put the index finger of his other hand to his lips, signaling that she should “be quiet.” While the complainant told him “no, no” and tried to move his hand away, the appellant quickly pushed his hand inside her undershirt and bra and grabbed her breast and nipple. The appellant again used the index finger of his other hand against his lips to signal to the complainant that she should not scream.

6The complainant testified that when this happened she was shocked and scared, but she pushed the appellant’s hand away. He then left the treatment cubicle, and she put on her T-shirt. The complainant testified that she remained in the treatment area for about five minutes thereafter praying, asking “Lord, help me … I don’t know what to do, I’m so scared … why did this happen to me?” She did not scream as she did not want to create any “scandal” with the people in the clinic.

7The complainant testified that as she went to leave the clinic, she wanted to tell one of the ladies at the reception desk what had happened, but she could not as the appellant was standing there in front of the reception desk as she left. Later, she complained to her friend and ultimately the police.

8The complainant also testified that, during earlier treatment sessions, the appellant had made her feel uncomfortable. She explained that he had once returned very quickly to a room in which he knew she was changing out of her clothes to put on a medical gown. The appellant also spoke to her about personal matters, teasing her that she was not married, and indicating that she looked good for her age.

3. The Appellant’s Evidence

9The appellant testified in his defence. He denied engaging in any sexual impropriety with the complainant, testifying that it had been the complainant who had been flirtatious and sexually suggestive with him, but that he had simply ignored her advances.

10The appellant testified that, when he first treated her, the complainant specifically asked for a medical gown and removed her pants even though it was only her shoulder that was being treated. Indeed, on one early occasion, according to the appellant, the complainant “hiked up” her medical gown to the top of her thighs, and wiggled her hips, and asked him if she looked “beautiful.” On another occasion, the complainant talked to the appellant about personal things, asking him whether he thought she looked young, and whether he thought that she could “get a boyfriend” at her age. The appellant told her that he could not talk to her about such personal matters as they had a therapist-patient relationship.

11The appellant testified that, on August 5, 2010, after he treated the complainant’s shoulder with ultrasound, she reminded him that there was still another treatment. The appellant confirmed that she was also to receive a hot-pack and a “Transcutaneous Electrical Nerve Stimulant” (TENS) treatment. According to the appellant, when he entered her cubicle for this second treatment, the complainant was “batting” and “blinking” her eyes at him provocatively, and moving around like she was pretending to be a “dancer.” The appellant testified that when he asked her if she was ready for her treatment, the complainant pulled down the straps of her sleeveless tank-top, exposing her bra and part of her breasts. The complainant then raised her eyebrows, crossed her arms in front of her and used them to lift her breasts up and down, and “suggestively” told the appellant that she was a “bad girl.” After exposing herself in this way for about 10 seconds, the complainant pulled her top back up.

12The appellant testified that, when this happened, he just stared at her and said nothing. He was shocked and uncomfortable, but he was busy and simply ignored it and went on to administer the treatment. This required him to apply the nerve stimulant pads and the hot pack. The appellant then left her alone for approximately 15 minutes. At that point, according to the appellant, he wanted to speak to his physiotherapist supervisor to report what had happened, but she was occupied with her own patient. When the appellant returned to the complainant’s cubicle, he removed the TENS pads and the hot pack, and she eventually left the office. The appellant testified that the complainant was lying in her evidence, he thought, because he had rejected her advances.

13The appellant testified that, later that afternoon, he advised his employer of the incident with the complainant. The owner of the clinic, a registered physiotherapist, confirmed that on the afternoon of August 5, 2010, when he arrived at the clinic, the appellant approached him and reported an incident with a client. More particularly, the clinic owner testified that the appellant advised him that the complainant had exposed her breasts to him and told him that she was a “dirty girl.” This incident was then noted in the complainant’s clinic chart by the supervising physiotherapist.

C. The Reasons for Judgment of the Trial Judge

14In her oral reasons for judgment, the trial judge accurately reviewed, in considerable detail, the relevant evidence and the positions advanced by the respective parties. The trial judge also expressly acknowledged that she was obliged to apply the three-pronged analysis suggested by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758, in determining whether the Crown had established the alleged guilt of the appellant beyond a reasonable doubt. The trial judge then turned to an assessment of the testimony of the appellant and the complainant.

15With respect to the appellant, Bhabha J. concluded that he was simply not a credible witness. More particularly, the trial judge described the appellant’s detailed and precise account of events as “contrived” and “well-rehearsed,” and she concluded that his evidence, suggesting that the complaint was “sexually provocative,” was not “credible in the least.” Bhabha J. also indicated that she thought the appellant’s testimony, to the effect that he simply continued with the treatment after the complainant had behaved in such a provocative and shocking manner, made “very little sense.” The trial judge described the appellant’s subsequent reporting of the incident to his employer as an “exercise in self-preservation” and as a strategic “pre-emptive reporting” to “control any potential damage” if the complainant made a complaint against him. In the end, after also noting that there were some inconsistencies in his evidence, Bhabha J. rejected the appellant’s testimony as “not having a ring of truth” and as being “somewhat contrived.”

16With respect to the complainant, the trial judge accepted her testimony. Bhabha J. noted that the complainant was a very diminutive person who presented as a “very fragile” witness. Bhabha J. also noted that it was “clear from her evidence” that she was a “God-fearing” person, in that she referred to “prayer,” and used the language “God is my witness” a number of times during her testimony. The trial judge indicated that this did not mean the complainant’s evidence should be accepted without reservation, but just that this was “part of who she was.” Bhabha J. then concluded that, while the complainant’s testimony exhibited some inconsistencies, and while the complainant lacked a “perfect recall” of events, these imperfections in the complainant’s testimony did not cause her to have any reasonable doubt as to the “veracity or reliability” of her evidence, which “lacked contrivance.” The trial judge noted that, had the complainant been fabricating her evidence, it would have been better planned and more logically orchestrated. The trial judge also expressly cautioned herself that she should “not place too much emphasis on demeanour,” as the way someone presents on the witness stand may be very different than the way they behaved privately at the time of the alleged sexual assault. Accordingly, the trial judge indicated that she was “careful not to place too much weight on [the complainant’s] demeanour in court.” Bhaba J. did observe, however, that the complainant did not appear to have a very forceful personality, and her manner of dressing in court – something that the trial judge acknowledged had to be taken “with a huge grain of salt” – did not suggest that she was “provocative.” In her conclusion, Bhaba J. indicated that, placing “more emphasis on her testimony rather than her demeanour,” she found that the complainant’s “credibility was strong” and the “core of her evidence was consistent.” The complainant was someone who was, according to the trial judge, “without guile.”

17Ultimately, after earlier expressing her appreciation that a criminal trial is “most definitely not a credibility contest,” or simply “preferring one version [of events] over the other,” the trial judge concluded that she was satisfied beyond a reasonable doubt that the appellant was guilty of the alleged offence.

18In the result, the trial judge imposed a 90 day conditional sentence on the appellant, followed by a 12 month period of probation.

D. Analysis

1. Introduction

19On this appeal against conviction, the appellant advances, essentially, two grounds of appeal. First, the appellant argues that the trial judge took into account extraneous factors in assessing the credibility of the complainant. Second, the appellant contends that the trial judge was overly critical of the appellant’s evidence, provided an inadequate explanation for rejecting his evidence, and drew illogical inferences from his evidence. For the following reasons, I reject these arguments.

2. The Credibility of the Complainant

Evidence of Religious Convictions and Courtroom Demeanour

20As I have already mentioned, in her analysis of the complainant’s evidence, the trial judge mentioned that it was “clear from her evidence” that the complainant was a “God-fearing” type of person. In this regard, Bhabha J. alluded to the fact that, in her evidence, the complainant testified that, after she had been sexually assaulted by the appellant, she remained in the treatment cubicle alone, praying and wondering why this had happened to her. The trial judge also noted that, during the course of her evidence, the complainant used the words “God is my witness” on more than one occasion. The trial judge expressly indicated that this did not mean that the complainant was necessarily a person whose evidence should be accepted without reservation, but rather that this was just “part of who she was” as a person.

21As another factor in her analysis of the complainant’s testimony, the trial judge also mentioned that the complainant did not appear to be someone who possessed a very “forceful personality,” and that her manner of dress in court suggested that she was not a “provocative” individual. Again, in so doing, the trial judge indicated that her manner of dress was something that had to be considered with a “huge grain of salt.”

22The appellant argued that the trial judge erred in considering the complainant’s “genuine religious beliefs” and her demure court dress in ultimately concluding that she was an honest and believable witness. I disagree. In my view, these were factors – albeit small factors – that the trial judge was entitled to take into account in the particular circumstances of this case.

23In her comprehensive reasons for judgment, the trial judge carefully reviewed the details of the testimony of the complainant, and expressly took into account the various arguments advanced by defence counsel as to the alleged frailties of her testimony.¹ Bhabha J. also subjected the testimony of the complainant to considered analysis on a variety of issues. The trial judge expressly recognized that it was important to place “more emphasis” on the substantive content of the complainant’s testimony than upon her courtroom demeanour. As I have indicated, in my view it was open to the trial judge to consider, as just two of the many factors that contributed to the overall credibility of the complainant, her evidence revealing her religious beliefs and commitment, and her appearance and demeanour in the witness box. Importantly, the trial judge viewed the evidence of the complainant’s religious beliefs as simply one of her personal characteristics, and she placed significantly reduced emphasis upon the courtroom demeanour of the complainant, properly focusing her attention on the substantive details of the complainant’s testimony. See: R. v. White, 1947 1 (SCC), [1947] S.C.R. 268, at p. 272; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 131; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, at pp. 763-764; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 24; R. v. N.S., 2010 ONCA 670, 102 O.R. (3d) 161, at para. 56; Affirmed: 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 16-29.

24It is important to appreciate that the comments of the trial judge as to the “God-fearing” personality of the complainant were based, quite accurately, upon aspects of the complainant’s testimony. As I have already indicated, the complainant did, in fact, testify that after she had been sexually assaulted, she remained in the treatment cubicle praying for about five minutes, asking “Lord, help me … I don’t know what to do, I’m so scared … why did this happen to me?” Further, at some points in her sworn testimony the complainant did, in fact, expressly draw upon her belief that God was a witness to the truth of her evidence. For example, in cross-examination, when defence counsel suggested that the appellant had never touched her bra or her breast in any way, the complainant responded: “He did, God is my witness and I’m telling the truth.”

25As a matter of principle, if the evidence reveals that a witness’s sworn oath has a greater hold over their conscience – and, in turn, the truthfulness of their testimony – as a result of their genuinely held religious beliefs, I do not see why that aspect of the evidence must be ignored by a trier of fact in assessing the credibility of the witness. Moreover, I am aware of no authority that would require a trier of fact to ignore such evidence. Indeed, as I understand them, the available authorities suggest that, in appropriate and limited circumstances, this kind of evidence may properly be weighed as one of the myriad of factors to be taken into account in assessing the credibility of a witness. See: R. v. Mehrban, [2002] 1 Cr.App.R. 561 (C.A.), at pp. 567-568; R. v. Wiebe (2006), 2006 3955 (ON CA), 205 C.C.C. (3d) 326 (Ont.C.A.), at paras. 2-11; R. v. Bell, 2011 ONSC 1218, [2011] O.J. No. 803, at para. 57; R. v. K.(A.H.), 2011 ONSC 5510, [2011] O.J. No. 4373, at paras. 27-28; R v Ali, 2012 SKPC 62, at para. 8; R. v. J.(T.R.), 2013 BCCA 449, 6 C.R. (7th) 207, at para. 4.

26Historically, at common law, all testimony was required to be given under oath. Belief in a supreme being who would appropriately punish, in this life or thereafter, the false swearing of an oath, was a legal pre-condition of the competency of witnesses. In the eyes of the common law, without such an honest belief, the administration of an oath would not bind the conscience of the witness. As late as 1861, the lack of any such religious beliefs was seen as a bar to the competence of witnesses. See: R. v. Walsh (1978), 1978 2490 (ON CA), 45 C.C.C. (2d) 199 (Ont.C.A.), at pp. 205-206; R. v. Hawke (1975), 1975 672 (ON CA), 22 C.C.C. (2d) 19 (Ont.C.A.), at p. 30; R v. Bannerman (1966), 1966 634 (MB CA), 48 C.R. 110 (Man.C.A.), at p. 138; Peter J. Sankoff, Witnesses (2013, loose-leaf ed.), vol. 1, § 3.2(a), at pp. 3-3 to 3-9; A.W. Bryant, S.N. Lederman and M.K. Fuerst, The Law of Evidence in Canada (2009, 3rd ed.), at pp. 874-876. Even in the decades thereafter, when this strict rule of competency was finally relaxed, the oath remained, as Professor Wigmore described, as “a special additional security for credibility.” See: Wigmore on Evidence (1976, Chadbourn Rev.), vol. 6, § 1824, at p. 408.

27There is no gainsaying the reality that, in modern society, the moral efficacy of the oath no longer possesses the same persuasive influence it once did for many people. See: R. v. Fletcher (1982), 1982 3907 (ON CA), 1 C.C.C. (3d) 370 (Ont.C.A.) at p. 377. Moreover, solemn affirmations and promises to tell the truth are now statutorily recognized as the functional and legal equivalents of an oath. See: Canada Evidence Act, R.S.C. 1985, chap. C-5, ss. 13-16. The purpose of all such measures are, of course, to enhance, by an appeal to an individual’s religious beliefs or secular moral conscience, the likelihood that the witness in question will feel an increased obligation to tell the truth in the witness box. See: Netherlands v. Clarkson, 2000 BCCA 461, 146 C.C.C. (3d) 482, at paras. 12-18.

28Accordingly, it seems to me that where, as in the present case, the evidence reveals that one of the witnesses has a personal religious commitment that might add some “special additional security” in support of the credibility of the witness, the trial judge is not obliged to wholly ignore that religious commitment in assessing the credibility and the reliability of the testimony of that witness. As McLachlin C.J.C. observed in R. v. N.S., at para. 53, “to remove religion from the courtroom is not in the Canadian tradition,” as illustrated by the fact that “Canadians have since the country’s inception taken oaths based on holy books — be they the Bible, the Koran or some other sacred text.”

29The authorities relied upon by the appellant do not, in my view, dictate a different result. This is not a case like R. v. Minuskin (2003), 2003 11604 (ON CA), 68 O.R. (3d) 577, 181 C.C.C. (3d) 542, where the Court of Appeal for Ontario, at paras. 30-31, held that the trial judge erred in relying heavily upon the fact that the complainant “attended a religious school” and the nature of his courtroom apparel as supporting his version of events in relation to an alleged assault. The mere fact that a witness has attended a religious school provides no clear evidence of their religious beliefs. People may attend such schools because they are sent there by their parents, or simply as a matter of geographical convenience.

30Nor is this case like R. v. J.(T.R.), where the British Columbia Court of Appeal held that the trial judge had erred in discounting the credibility of the accused in a sexual interference case because he had given his evidence under solemn affirmation, not under oath. Given the statutory equivalence of oaths and affirmations, a witness should generally not be viewed as less credible or less reliable as a witness because they have chosen to affirm rather that swear an oath before giving their evidence. Although significantly, in that decision, Hall J.A., delivering the judgment of the court, stated, at para. 4, that there “may be factual circumstances where it could be appropriate for a judge to permit some exploration of the issue of the degree to which an oath or affirmation may bind the conscience of a witness,” suggesting that, in some circumstances, such evidence may be relevant to the weight to be accorded to the testimony of a witness.

31It is perhaps important to remember that assessing the credibility of any witness is not a precise science or a purely intellectual exercise. Rather, it is a difficult and delicate task, often defying clear and comprehensive verbalization, especially given the “complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” See: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49; R. v. Wadforth, 2009 ONCA 716, [2009] O.J. No. 4176, at para. 66; R. v. H.(W.), 2013 SCC 22, at paras. 39-40.

32In any event, I am not convinced the trial judge erred in her assessment of the credibility and reliability of the complainant.

3. Assessing the Credibility of the Appellant

Common Sense Understanding of Human Behaviour

33As I have already mentioned, in her analysis of the appellant’s testimony, the trial judge noted that the appellant had testified that the complainant had been sexually suggestive with him on more than one occasion, and seemed to convey the impression that she had something of a history of “coming on” to him. The trial judge also noted that he testified that, on the day in question, the complainant hiked up her gown, asked him if she looked young and beautiful, and wriggled her hips in a seductive and provocative way. The appellant testified that he was shocked by the complainant’s conduct and yet he still proceeded with her treatment. The trial judge commented that this evidence “makes very little sense.” The trial judge also concluded that the fact that the appellant later reported the incident to his clinic supervisor was an “exercise in self-preservation” and a “pre-emptive reporting” to “control any damage” if the complainant made a complaint about his sexual assault.

34The appellant contends that the trial judge erred in drawing these conclusions. More particularly, the appellant argues that it was understandable that the appellant might want to just g