COURT FILE NO.: CR-13-10000094-0000

DATE: 20140925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AMITABH CHAUHAN and SUGANTHAN KAYILASANATHAN

Cara Sweeney and Michael Lockner for the Applicant, Her Majesty the Queen,

Marlys Edwardh and Daniel Sheppard for the Defendant, Amitabh Chauhan

David M. Humphrey and Naomi Lutes for the Respondent, Suganthan Kayilasanathan

HEARD: March 31, April 14-18, 21-25, 28-30, May 1-2, 5-9, 12-16, 19-23, 26-30 June 2-3, 5-6, 23-25, and July 4, 2014

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify either of the two complainants A.C. or P.W. or the witness H.V. shall not be published in any document, broadcast or transmission.

Thorburn j.

REASONS FOR JUDGMENT

TABLE OF CONTENTS

1. THE CHARGES. 7

2. OVERVIEW OF THE EVIDENCE. 7

The Case Involving the First Complainant, A.C. 7

The Case Involving the Second Complainant, P.W. 9

3. THE ISSUES. 10

4. THE RULES TO BE FOLLOWED IN CONSIDERING THE ISSUES. 11

The Onus of Proof 11

The Rules to be Followed in Reviewing and Assessing the Evidence. 12

The Essential Elements of Drugging. 13

The Essential Elements of Sexual Assault 13

A. Consent 13

B. The Effect of Loss of Memory on Consent 14

C. Honest but Mistaken Belief in Consent 14

Party to an Offence with Another 16

5. THE POSITIONS OF THE PARTIES. 16

The Crown’s Position. 16

The Defence Position. 17

6. ANALYSIS AND CONCLUSION REGARDING THE CHARGES PERTAINING TO.......................... A.C. 18

(a) Did Chauhan Meet A.C. in September or October of 2003?. 18

(b) Is there Proof Beyond a Reasonable Doubt that A.C. was Drugged or Sexually Assaulted by Chauhan? 22

7. ANALYSIS AND CONCLUSION REGARDING THE CASE INVOLVING P.W. 23

(a) Is there Proof Beyond a Reasonable Doubt that P.W. was Drugged?. 23

(b) Is there Proof Beyond a Reasonable Doubt that P.W. was Sexually Assaulted by Either or Both of Chauhan and/or Kayilasanathan?. 27

(i) Assessment of the Evidence of the Accused. 27

(a) The Effect of Kayilasanathan’s Lie. 27

(ii) Assessment of the Crown Evidence. 29

(a) P.W.’s Outward Appearance. 29

(b) Whether P.W. Would Have Consented to the Incident in the Hotel Room.. 29

(c) Whether P.W. Consented to the Incident in the Hotel Room.. 29

8. CONCLUSION.. 31

APPENDIX A: THE EVIDENCE RELATED TO THE ALLEGATIONS INVOLVING A.C. 34

Amitabh Chauhan’s Account of what Happened in the Fall of 2003. 34

The Relationship Between A.C. and Chauhan in 2001. 34

Chauhan’s Response to A.C.’s Claim that she was Drugged and Sexually Assaulted on the Ex-Cadet Weekend in 2003 34

Cindy Legarie. 35

Renato Duarte. 35

A.C.’s Account of what Happened in the Fall of 2003. 36

A.C.’s Relationship with Chauhan. 36

A.C.’s Drinking Habits at the Time. 36

The Incident 36

a. How Much She Drank on the Night in Question. 37

b. A.C.’s Symptoms on the Night in Question. 37

c. The Alleged Sexual Assault 38

d. Symptoms After the Alleged Assault 38

Report of the Incident 39

No Consent to Sex with Chauhan. 39

Contact with Chauhan the Following Year 39

R.F. 39

A.C.’s Mother 40

Dr. Karen Woodall 40

APPENDIX B: EVIDENCE PERTAINING TO P.W. 42

Chauhan’s Evidence. 42

The Objective of the Evening. 42

Time at the Sheraton Hotel 43

The C Lounge. 43

Suganthan Kayilasanathan. 45

The Objective of the Evening. 46

The Sheraton Hotel 46

The C Lounge. 46

The Incident 47

The Police Interview.. 48

P.W.’s Evidence. 49

General 49

The Nature of P.W.’s Relationship with Chauhan and Kayilasanathan. 49

P.W.’s Drinking Habits. 50

Communications between the Parties on the Night in Question. 51

The Events that Took Place on the Evening in Question. 51

P.W.s Use of her Cellphone. 54

Trips to the Hospital 55

Statement to the Police. 55

P.W.’s Telephone and Text Messages. 56

Jason Cheung. 56

H.V. 56

Expert Testimony that Pertains to P.W. 57

Dr. Karen Woodall 57

Joey Gareri 58

Sabia Malik. 58

Detectives’ Evidence re P.W.’s Cellular Telephone. 58

Thorburn j.

REASONS FOR JUDGMENT

1. THE CHARGES

[1] There are two accused in this case: The first accused, Amitabh Chauhan is charged with offences involving two different complainants. The second accused, Suganthan Kayilasanathan is charged with offences involving only the second complainant, P.W.

[2] Amitabh Chauhan is charged with the following offences:

(a) drugging A.C. in September or October of 2003 for the purpose of overpowering and sexually assaulting her;

(b) sexually assaulting A.C. in September or October of 2003;

(c) drugging P.W. in the late hours of February 12 or early hours of February 13, 2011 for the purpose of overpowering and sexually assaulting her;

(d) sexually assaulting P.W. in the late hours of February 12 or early hours of February 13, 2011; and

(e) sexually assaulting P.W. in the late hours of February 12 or early hours of February 13, 2011 to which assault Kayilasanathan was also a party.

[3] Suganthan Kayilasanathan is charged with the following offences:

(a) drugging P.W. in the late hours of February 12 or early hours of February 13, 2011 for the purpose of overpowering and sexually assaulting her;

(b) sexually assaulting P.W. in the late hours of February 12 or early hours of February 13, 2011; and

(c) sexually assaulting P.W. in the late hours of February 12 or early hours of February 13, 2011 to which assault Chauhan was also a party.

2. OVERVIEW OF THE EVIDENCE

The Case Involving the First Complainant, A.C.

[4] The first complainant, A.C., had a consensual sexual relationship with Chauhan in 2001 while both were students at the Royal Military College (RMC) in Kingston, Ontario.

[5] A.C. says she met Amitabh Chauhan again, along with Cindy Legarie and Richard Boyle, during the ex-cadet weekend at the Royal Military College in Kingston in the Fall of 2003. They met in the RMC gym and planned to go to a bar in downtown Kingston. Cindy Legarie and Richard Boyle went on ahead. Chauhan and A.C. stayed behind and then went to a different bar.

[6] A.C. says Chauhan bought her a drink at the bar. After taking a few sips, she began to feel overcome with confusion and could only see in intermittent flashes. She had difficulty walking. Although her eyes were open, it seemed to her as though they were shut. They left the bar and drove back to Chauhan’s room. She does not recall how she left the bar.

[7] She had a flash at one point of seeing Chauhan come forward on his knees on top of her pelvic area. A.C. says Chauhan sexually assaulted her. She then told him she had to go to the washroom and he held her over the sink. She said she needed to use the toilet and he drove her back to her residence. She says she had trouble walking and could not open her room door with her card key. She went to her friend R.F.’s room, told him what had happened, and slept in his room overnight. She says she called her mother a day or two later to tell her what had happened.

[8] Cindy Legarie believes she met Chauhan and A.C. on or about September 6th, 2003 at a soccer game. Legarie asked both of them to come out for a drink with a group. Neither showed up. Legarie says she could not have met them on the ex-cadet weekend (which we now know was September 26 and 27, 2003) as suggested by A.C., because Legarie was deployed to Bosnia on September 22, 2003.

[9] R.F. and A.C.’s mother testified that A.C. told them about the assault shortly after it happened in 2003. A.C.’s mother says she received a frantic call at three or four o’clock in the morning from A.C. (This would seem to suggest that the call was not made a day or two later as A.C. suggested.) The Crown says R.F. and A.C.’s mother’s evidence is proof that A.C. did not recently fabricate her claim. A.C.’s mother also testified that A.C.’s demeanour changed after the alleged assault.

[10] There are no witnesses to the alleged drugging or assault. No DNA, blood or urine samples were taken for testing in respect of A.C.

[11] Chauhan denies drugging or sexually assaulting A.C. and says the incident never happened. He claims he was not at the Royal Military College during the ex-cadet weekend, or at any time in September or October of 2003. Chauhan flew to England on August 18, 2003, and did not return to Canada until September 16, 2003. He says he was in Winnipeg on either the September 26-27 or October 3-4 weekend.

[12] It is agreed that any encounter between A.C. and Chauhan must have taken place between September 16, 2003 (when Chauhan returned from England) and September 22, 2003 (when Legarie left for Bosnia). Therefore A.C.’s recollection that it occurred on the ex-cadet weekend in 2003 (which, to repeat, was held on September 26 and 27) must be mistaken.

The Case Involving the Second Complainant, P.W.

[13] The second complainant, P.W., claims Amitabh Chauhan and Suganthan Kayilasanathan administered a drug to her with the intention to overpower her and enable them to have illicit sexual intercourse with her.

[14] P.W. says she was introduced to Amitabh Chauhan by a mutual friend because he was a resident in plastic surgery and she was a medical student interested in pursuing work in plastic surgery. After meeting a few times and exchanging several emails, P.W. met Chauhan for a drink at 23:30 on February 12, 2011. She learned an hour before they met that his friend Suganthan Kayilasanathan would be joining them. The three of them had a few drinks at the hotel bar and in Kayilasanathan’s hotel room, whereupon they decided to go to a club called C Lounge.

[15] P.W. claims that shortly after having a drink at the club with both accused at approximately 1:52, she became unable to see and had intermittent visual and auditory flashes.

[16] They left the club shortly after 2:15 and took a taxi back to the hotel. After they arrived at the hotel at 2:45 hours, she continued to be unable to see except for intermittent visual and auditory flashes. Although she desperately wanted to move, P.W. says she was unable to do so, enabling both Chauhan and Kayilasanathan to sexually assault her. She says each of the accused was a party to the sexual assault committed by the other.

[17] From a review of the videotape from the club from approximately 1:10 to 2:20 and the videotape from the hotel parking and lobby from approximately 2:45 hours, P.W. seemed to have no difficulty walking or controlling her physical movements.

[18] Four text messages were sent from P.W.’s cellular telephone just after 3:10 hours. The messages were not retrieved by police shortly after the incident and are no longer available.

[19] There are no third party witnesses to this incident.

[20] Blood, urine and hair samples were taken in the case of P.W., albeit not until 12 or more hours after the incident took place. Some of the clothing she wore on the night in question was also taken for testing. Each of the accused offered a sample of his DNA for testing. No evidence of drugs or semen was found, but DNA that very likely belongs to both accused was detected on P.W.’s breasts and in the crotch area of her underwear.

[21] Chauhan and Kayilasanathan agree that each of them had a sexual encounter with P.W. on the evening in question. Kayilasanathan says he and P. W. kissed one another and he licked her breasts. This was consensual. Chauhan says P.W. pulled him up from his bed by the arms saying, “The party is not over yet.” They sexually touched one another, kissed and he performed oral sex on P.W. He claims she moaned and otherwise appeared to consent.

[22] Both accused claim this was an unplanned but consensual sexual encounter which followed a night of drinking and partying.

[23] Suganthan Kayilasanathan told police at the time of his arrest that he had no sexual contact with P.W. He claims he was terrified at being arrested and strip searched and the officer interviewing him presented him with an exaggerated view of his participation. He says he lied because he panicked and worried about what his girlfriend and father would think of him.

3. THE ISSUES

[24] In respect of the charges involving the first complainant, A.C., the following issues must be determined:

(a) Did A.C. meet Chauhan in September or October, 2003?

(b) If so, was A.C. drugged by Amitabh Chauhan for the purpose of facilitating a sexual encounter with him between September 1 and October 31, 2003?

(c) If so, was she sexually assaulted by Chauhan thereafter?

[25] The evidence of A.C., A.C.’s mother, R.F., the toxicologist Dr. Karen Woodall, Amitabh Chauhan, Renato Duarte, and Cindy Legarie is relevant to the determination of these issues. A more comprehensive review of the relevant portions of their evidence is attached as Appendix A.

[26] In respect of the charges involving P.W., it is agreed there was a sexual encounter between P.W. and each of the accused in the early morning hours of February 13, 2011.

[27] The issues to be determined separately in respect of each of the accused are as follows:

(a) Did the accused drug P.W. for the purpose of engaging in sexual acts on February 12 or 13, 2011?

(b) If the accused did not drug P.W., was he nonetheless part of a plan to drug P.W. for the purpose of engaging in sexual acts with her?

(c) If P.W. was not drugged, did she consent to the sexual acts and what was the nature of those acts?

(d) If she did not consent, did the accused have an honest but mistaken belief that she was consenting to the sexual acts?

(e) If Chauhan drugged and/or sexually assaulted P.W., was Kayilasanathan a party to that incident?

(f) If Kayilasanathan drugged and/or sexually assaulted P.W., was Chauhan a party to that incident?

[28] The evidence of P.W., Amitabh Chauhan, Suganthan Kayilasanathan, Jason Cheung, H.V., the toxicologists Dr. Karen Woodall and Joey Gareri, the biologist Sabia Malik, Detective Luff, and Detective Constable Percival are relevant to the determination of these issues. A more comprehensive review of the relevant portions of their evidence is attached as Appendix B.

4. THE RULES TO BE FOLLOWED IN CONSIDERING THE ISSUES

[29] Before reviewing the evidence, it is important to explain the legal context within which the evidence must be reviewed.

The Onus of Proof

[30] This is not a civil claim for damages brought by one individual against another. If it were, the court would be asked to decide which party is more likely to be telling the truth.

[31] Nor is this the forum to decide whether either or both accused behaved in a morally reprehensible way.

[32] Criminal charges have been brought by the State against Chauhan and Kayilasanathan. The task is not to decide whether the accused are guilty or innocent, but whether the Crown has established beyond a reasonable doubt that the accused are guilty of committing any of the crimes listed in the indictment.

[33] I am acutely aware that complainants have a very difficult task. They must present themselves in a public forum and describe, in excruciating detail, aspects of their personal lives that are often intimate, embarrassing and painful. Moreover, in some cases they must try to remember details about things that happened a very long time ago. Their credibility and the reliability of their testimony may be vigorously challenged. Everything they say and do is meticulously compared and contrasted with other statements they or others may have made about these incidents.

[34] I understand their frustration upon learning that those they claim committed serious crimes are presumed to be innocent.

[35] However, it is important to understand why this is so: both accused face serious criminal charges and if they are found guilty, they will in all likelihood go to jail. They will wear the stigma of being convicted of very serious crimes for the rest of their lives. The fact that charges have been laid may lead others to look at them in a very different way.

[36] Because the consequences are so serious, and the State itself is a party to the process, our system of law requires that the Crown prove each of the essential elements of each offence beyond a reasonable doubt. While this does not involve proof with absolute certainty, it is closer to certainty than it is to probability.

[37] The accused must know the case he has to meet. Therefore the offences he is charged with and the timeframe of the commission of the alleged offences are set out in the indictment to enable the accused to prepare and respond to the Crown’s case. It is essential to the accused’s right to a fair trial that the case be restricted to the offences and timeframes specified in the indictment.

The Rules to be Followed in Reviewing and Assessing the Evidence

[38] All of the evidence should be considered together, rather than assessing individual items of evidence in isolation. (R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at para 41, 44 C.C.C. (3d) 193). This is particularly true where the principal issue is the credibility and reliability of witnesses. (R. v. Gostick, (1999) 1999 CanLII 3125 (ON CA), 121 O.A.C. 355 (C.A.), 137 C.C.C. (3d) 53 at paras 14-18 and R. v. B. (R.W.), (1993) 40 W.A.C. 1, [1993] B.C.J. No. 758 (C.A.) at para 28).

[39] The court must be satisfied of two things beyond a reasonable doubt: (1) that a complainant is a credible witness, and (2) that her account is reliable. (R. v. J.W., 2014 ONCA 322, 316 O.A.C. 395 at para 26.)

[40] Credibility is the witness’ willingness to tell the truth. Reliability is the accuracy of the witness’s testimony. Accuracy is affected by the witness’s ability to accurately observe, recall and recount events.

[41] A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. (R. v. Morrissey, 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (CA) at para 33.) The reliability of the evidence is what is paramount. (R. v. Norman (1993) 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 at para 47, 87 C.C.C. (3d) 153 (C.A.) at para 47.)

[42] Parts of a witness’ evidence may be accepted and others rejected. Some parts may be more important than others. While a guilty verdict may be founded on the evidence of a single witness, a determination of guilt must not devolve into a credibility contest between two witnesses. Such an approach undermines the presumption of innocence and the requirement of proof beyond a reasonable doubt. (R. v. Vuradin, 2013 SCC 38 at para 21, [2013] 2 S.C.R. 639.).

[43] An accused person is not required to testify. In a case where credibility is important, if he chooses to testify, I am required to take the following approach:

(a) If I believe the accused that he did not commit the offence in question, I must find him not guilty;

(b) If I do not believe that he did not commit the offence but I am left with a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole, I must find him not guilty; and

(c) If I do not believe his assertion that he did not commit the offence in question, and it does not leave me with a reasonable doubt, I must still consider whether, on the whole of the evidence that I do accept, I am satisfied of his guilt beyond a reasonable doubt. (R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 at para 28), R. v. J.H.S., 2008 SCC 30 and R. v. J.J.R.D., (2006) 2006 CanLII 40088 (ON CA), 218 O.A.C. 37, 215 C.C.C. (3D) 252.)

The Essential Elements of Drugging

[44] In order to find that a complainant was drugged, there need not be conclusive expert evidence to corroborate the complainant’s assertion that she was drugged. Drugging can be established by the Complainant’s evidence alone. (R. v. Fleming, 2007 ONCA 808, [2007] OJ No 4562 at para 4; R. v. Bell, 2007 ONCA 320, [2007], OJ No 5066 at para 35; R. v. L.G., 2007 ONCA 654, [2007] OJ No 3611) and (R. v. Vant, 2010 ONSC 2474 at para 174, [2010] O.J. No. 2623.)

[45] It is not necessary to establish the precise drug given, the precise dosage, or exactly how or when the drug was administered. Nor is it necessary, where a joint venture is established, to identify who administered the drug. However, the party asserting the claim must establish that “the only reasonable inference to arise on the evidence is that a drug had been administered.” (R. v. Jorgge, 2010 ONSC 6272 at para 210.)

The Essential Elements of Sexual Assault

[46] Sexual assault is the intentional application of force, committed in circumstances of a sexual nature, such that the sexual integrity of the complainant is violated. (R. v. Chase, (1987), 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97 at para 11 and R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 at para 7.)

A. Consent

[47] Consent is a defence to a claim of sexual assault. Consent is defined in section 273 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, as “… the voluntary agreement of the complainant to engage in the sexual activity in question.” It involves knowledge of what is going to happen and a voluntary decision to do it or let it be done.

While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, [1999] S.C.J. No. 10 at paras 29 and 30).

[48] No consent is obtained where,

(d) the complainant is incapable of consenting,

(e) the complainant expresses, by words or conduct, that she does not agree to engage in the activity, or,

(f) the complainant, having consented to engage in sexual activity, expresses by words or conduct that she no longer agrees to continue to engage in the activity. (Ewanchuk, supra para 45 at para 50.)

[49] Because consent and the capacity to consent are exercised only by the complainant, for the purposes of determining the absence of consent, the complainant’s state of mind is determinative. (Ewanchuk, supra, para 45 at para 50 .)

B. The Effect of Loss of Memory on Consent

[50] The fact that the complainant cannot remember what happened means that “any number of things may have happened during the period in which she had no memory.” Therefore, her denial of consent is based on an assumption about how she thinks she behaved at a time she cannot remember. (R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777 at para 16, 116 C.C.C. (3d) 289 at 296.)

[51] Evidence of memory loss may, when considered with other evidence, permit inferences to be drawn about whether or not a complainant did or could consent to the act in question. While not required as a matter of law, for such evidence to be probative some expert evidence will almost always be essential. (R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (S.C.), at paras 18 and 19, 40 C.R. (6th) 97.)

[52] Courts can infer a decision not to consent where there is direct evidence that the complainant was extremely intoxicated while the sexual touching occurred and there is other evidence that the complainant would not have consented.

[53] For example, in the case of J.R. (supra para 49), Ducharme J. held that the complainant did not consent to sexual intercourse with the accused based on her evidence that:

1. she would not have agreed to have sex with anyone because she had recently had an abortion and was told by her doctor to abstain from sexual intercourse for two weeks (para. 31);

2. she would not consent to sexual intercourse with a black man, or with the other accused whom she considered to be a friend (para. 34 and 35); and

3. she would not have consented to sexual intercourse without the use of a condom (which was not used) (para. 36).

[54] Similarly, in R. v. Morden, (1991) 1991 CanLII 5766 (BC CA), 69 C.C.C. (3d) 123, [1991] B.C.J. No. 3624 (C.A.), the complainant was found not to have consented to have sex with the male accused based on her evidence that she would not have consented to have sex with the male accused because she was a lesbian.

C. Honest but Mistaken Belief in Consent

[55] The defence of mistake of fact is available when an accused honestly but mistakenly believes the claimant consented to his actions. There is no burden of proof on the accused; it is a denial of criminal intent. (R. v. Osolin 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, [1993] S.C.J. No. 135 at paras 116-118.)

[56] The Criminal Code places some limits on this defence. Section 273.2 of the Criminal Code provides that, “It is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the activity that forms the subject matter of the charge where:

(a) the accused’s belief arose from the accused’s

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”

[57] There must be an “air of reality” to the defence. In other words, there must be: (1) evidence of lack of consent to the sexual acts; and (2) evidence that, notwithstanding the actual refusal, the accused honestly but mistakenly believed the complainant was consenting. (Osolin, supra para 53 at para 115, per McLachlin J. [as she then was].)

[58] The accused need not meet the objective test of what the reasonable person would have believed, but there must be some support arising from the circumstances. (R. v. Bulmer, 1987 CanLII 56 (SCC), [1987] 1 S.C.R. 782, [1987] S.C.J. No. 28 at para 12.) Plausible evidence may come from the testimony of the complainant or the accused, or from the circumstances surrounding the assault. The accused’s description of a complainant’s words and actions that led him to believe she was consenting may be enough to raise the defence.

[59] In R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, [1995] S.C.J. No. 57 at para 25, L’Heureux-Dubé J. stated at para. 25 that the test is whether it is realistically possible to “settle upon a reasonably coherent set of facts, supported by the evidence that is capable of sustaining the defence of mistaken belief in consent.”

[60] In R. v. Esau (supra para 48), the accused had sexual intercourse with the complainant after a party at her home. The accused was later charged with sexual assault. The complainant testified that she would not have consented to have sex with the accused because he was her second cousin. She claimed she was drunk and had no memory from the time she entered her bedroom until the next day when she realized she had engaged in sexual intercourse.

[61] The accused testified that she consented to have sexual intercourse with him. He testified that, in his view, the complainant was in a condition to be “able to control what she was doing”. He said that they kissed each other and then she invited him to come to her bedroom, where they had consensual sexual intercourse.

[62] Major J. for the majority held that, “The accused’s evidence of the complainant’s participatory actions, if believed, might lead a jury to conclude that he honestly believed she was consenting despite his being mistaken about her ability to legally consent because of intoxication. This meets the threshold of a plausible explanation of the facts and should have been put to the jury.” The matter was therefore sent back for a new trial as this issue had not been put before the jury.

Party to an Offence with Another

[63] When two or more people join together in a criminal venture, each may be responsible for what the other does in pursuing the original goal. Section 21 of the Criminal Code requires proof of an agreement, an offence, and knowledge. (See, e.g., R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411 at paras 57-59; R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565 at paras 51-52.) The agreement may arise on the spur of the moment, even at the time the offence is committed. Something may but does not have to be said about it. It can be established by the way the parties acted.

5. THE POSITIONS OF THE PARTIES

The Crown’s Position

[64] A.C. testified that she was not interested in sexual contact with the accused. Moreover, A.C. testified that she had just broken up with her boyfriend and was grieving the loss of this relationship. Finally, she would not consider having sex with someone she would not consider marrying.

[65] P.W. testified that she would not have had sexual contact with Chauhan because she was not sexually attracted to him and because she knew he was married and marriage means something to her. P.W. testified that she was not sexually attracted to Kayilasanathan.

[66] Both complainants claim that on the evening in question, they had drunk alcohol but neither was intoxicated.

[67] Both claim that suddenly, after having a drink in a public place, they developed strange symptoms that are distinctive and inconsistent with intoxication due to alcohol. These symptoms include blindness interspersed with visual and auditory flashes, memory loss, and an inability to move despite a desire to do so.

[68] Both complainants believe they were drugged.

[69] The Crown claims that both accused planned to drug and sexually assault P.W.

[70] The Crown claims Chauhan made sexual advances to both complainants, and neither was able to resist.

[71] The Crown claims that Chauhan’s bald denial that he was at RMC in the Fall of 2003 is at odds with the evidence of A.C. and Legarie.

[72] The Crown also claims Chauhan’s assertion that P.W. consented to have sexual relations with him is not believable. Moreover, Kayilasanathan lied to the police at the time of his arrest. The Crown suggests this is evidence of his consciousness of guilt and reflects poorly on his credibility.

[73] The Crown contends the evidence should satisfy the court beyond a reasonable doubt that each of the two complainants was drugged and sexually assaulted.

The Defence Position

[74] Chauhan says he had a casual sexual relationship with A.C. in 2001 but they never had a serious monogamous relationship.

[75] Chauhan claims he did not meet A.C. in September or October of 2003. He disputes A.C.’s claim that there was an encounter with Chauhan, A.C., Cindy Legarie and Richard Boyle on the ex-cadet weekend and that later that evening she was drugged and sexually assaulted by Chauhan.

[76] A.C. says she is sure the event took place during the ex-cadet weekend which we now know was held on September 26 and 27, 2003. Legarie left for Bosnia on September 22nd. Therefore the incident as described by A.C. could not have taken place during the ex-cadet weekend.

[77] Chauhan further claims there is no evidence to corroborate A.C.’s claim that she was drugged and sexually assaulted. Moreover, her memory and interpretation of other important events are faulty and at odds with the testimony of other witnesses.

[78] Chauhan and Kayilasanathan agree there was a sexual encounter with P.W. in the early morning hours of February 13, 2011. They deny any plan to drug her. They went out for an evening of drinking and partying and they got carried away. They claim P.W.’s sexual encounter with each of them was consensual. They all willingly consumed large quantities of alcohol. P.W. continued to dance and socialize. Neither her speech nor her ability to walk was impaired. She remained conscious and did not seem to be ill or say she felt ill. She chose to come back to the hotel room with them and had made no arrangements to sleep elsewhere. They returned to Kayilasanathan’s room in the hotel at 2:45 hours.

[79] Chauhan says he passed out shortly after entering the room and therefore did not witness the sexual encounter between P.W. and Kayilasanathan. Kayilasanathan says that shortly after re-entering the hotel room, he and P.W. began dancing and kissing and he licked her breast area. After a few minutes, she left him and went over to Chauhan.

[80] Both Chauhan and Kayilasanathan say that P.W. roused Chauhan from his bed and began dancing with him and kissing him. Kayilasanathan says he was uncomfortable and a few minutes later, he began to feel sick. He went to the bathroom and vomited. When he returned, he saw Chauhan and P.W. on a bed together.

[81] Chauhan says that while Kayilasanathan was out of the room, he and P.W. fondled one another and he became aroused. He was unable to get an erection. He performed oral sex on P.W. She was actively involved in the foreplay and moaning while he was performing oral sex, leading him to believe that she consented.

[82] Four text messages were sent from P.W.’s cellphone beginning at 3:10 hours. Two were sent to P.W.’s father and two to her mother. The defence claims the failure to provide the content of these four text messages raises a reasonable doubt as to the accused men’s guilt on the charge of sexual assault, because P.W. claims that she was unable to move at the time when the four text messages were sent from her cellphone.

[83] Defence counsel suggests that P.W.’s testimony was highly confrontational and disingenuous in the following respects:

• she lied to her father and said she had stayed with her friends Pete and Kelly on the night in question when she had not;

• she testified that she always tries to pay for her drinks, but she did not do so on the evening in question or the preceding night;

• she did not acknowledge the flirtatious tenor of her email exchanges with Chauhan;

• she found it difficult to acknowledge any social reason for the encounter on the evening in question; and

• although she always plans ahead, she clearly changed her original plan on the night in question and decided not to have one drink and go home (as she says she originally planned) but rather, to go up to the hotel room to drink and then go to a club and she took no steps to ensure she had another place to stay.

[84] By contrast, Chauhan and Kayilasanathan each suggest their own testimony was credible and reliable and each should be found not guilty of the charges he faces.

6. ANALYSIS AND CONCLUSION REGARDING THE CHARGES PERTAINING TO A.C.

[85] Because Chauhan chose to testify, I must begin by reviewing his evidence.

(a) Did Chauhan Meet A.C. in September or October of 2003?

[86] Chauhan claims A.C. knew and accepted that they had no more than a casual sexual relationship in 2001. He claims the relationship was never formalized and never formally ended.

[87] He denies he met A.C. in September or October of 2003. He cannot now account for some of his whereabouts during the two month period of September and October 2003. He claims he was in London, England on September 1st to submit his Master’s thesis at the London School of Economics. He believes he then spent time with a girlfriend in England and her family. In early September he believes he returned to Canada and went to meet friends and family in the Toronto area and Winnipeg before beginning his pilot’s training in mid-October in Winnipeg.

[88] A.C. claims she had a serious monogamous relationship with Chauhan in 2001 which ended in September 2001 when she realized that he was not “on the same page” and that her feelings were not being reciprocated.

[89] She testified she is sure she met Chauhan, Legarie and Boyle in the gym of RMC on the ex-cadet weekend in 2003, and that the drugging and sexual assault occurred that weekend after she met them at RMC.

[90] A.C. was a credible witness who testified in a forthright manner.

[91] I accept her testimony that she thought she had a serious relationship with Chauhan in 2001. I do not accept Chauhan’s assertion that A.C. knew and accepted that in 2001, theirs was no more than a casual sexual relationship.

[92] A.C.’s testimony on this point is corroborated by Legarie, who testified that A.C. was naïve and inexperienced and therefore she believed Chauhan was unsuitable for A.C. This is also borne out by the email sent by A.C. to her mother and copied to Chauhan where she expressed surprise and hurt that he had not bothered to respond to her emails in the summer of 2001 while they were apart.

[93] Both A.C.’s mother and R.F. testified that A.C. told them of the alleged sexual assault many years ago. A.C.’s mother testified that A.C.’s demeanour changed after she made this disclosure. Both A.C.’s mother and R.F. were credible witnesses who testified in a forthright manner.

[94] The evidence of A.C.’s mother and R.F. cannot be admitted for the truth of its contents. However, it demonstrates that A.C. did not fabricate her claim after hearing of P.W.’s accusation but rather, made her claim many years before.

[95] A.C. offered a plausible explanation for not coming forward earlier: she thought it would harm her career in the military. She decided to come forward after she received information that another woman claimed to have been sexually assaulted by Chauhan and she felt very badly that, had she come forward earlier, this might never have happened to the other woman.

[96] Finally, I recognize the possibility that although lesser details may be forgotten or confused with the passage of time, other more poignant memories may not.

[97] However, for the reasons that follow, I have a reasonable doubt as to whether Chauhan met A.C. during the period set out in the indictment, that is, in September or October of 2003. For this reason, I am not satisfied beyond a reasonable doubt that Chauhan drugged or assaulted her during that specific time.

[98] At the time A.C. testified, the information as to the precise date of the ex-cadet weekend in 2003 was not available. We now know that the ex-cadet weekend was September 26 and 27, 2003. She described in detail, the circumstances of that meeting and Legarie was an important part of the narrative.

[99] She says Cindy Legarie and Richard Boyle were with Chauhan when she met him in the gym at RMC. They invited her to come out with them for a drink and she accepted. She talked to Chauhan because she needed to know whether he had cheated on her while they were dating a year and a half before. He told her he had not. Legarie and Boyle went ahead to the bar. She and Chauhan were to follow but Chauhan asked her to take him to a new bar in Kingston first which she did. He ordered a drink for her while she was in the washroom and soon after drinking some of it, she began to feel strange.

[100] Cindy Legarie testified that she was not in Canada on September 26 and 27. However, she testified that she believes she ran into A.C. and Boyle and probably Chauhan on September 6th, 2003 at a soccer game. She arranged with them to go out for a drink that evening. Neither Chauhan nor A.C. showed up. She believes the date was September 6th because this was her only day off in September before she left to see her spouse prior to her deployment to Bosnia on September 22nd. She believes she left RMC on September 13th, 2003.

[101] The incident as it was described by A.C., could not have taken place on the ex-cadet weekend of September 26-27, 2003 because Cindy Legarie was no longer in Canada after September 22nd.

[102] The incident Legarie thinks probably took place on September 6th could not have taken place on September 6th because at that time, Chauhan was still in England. Moreover, given that she believes he told her he was either about to start his Master’s degree or was in the process of doing so, the meeting may not have taken place in September 2003 at all: by that time, Chauhan had completed his dissertation.

[103] These findings are supported by evidence obtained by the Crown during the course of the trial:

(a) flight information obtained by the Crown from the Department of National Defence shows that Chauhan flew to Brize Norton, England on military aircraft on August 18, 2003 and returned to Trenton, Canada on military aircraft on September 16, 2003; and

(b) flight information from the Department of National Defence shows that Cindy Legarie was deployed to Bosnia on September 22, 2003.[^1]

[104] In closing submissions, the Crown conceded that the drugging and sexual assault had to have taken place between September 16 and 22, 2003. No witness has suggested the incident took place between September 16 and 22, 2003.

[105] Finally, there are discrepancies between A.C.’s rendition of events and those of other witnesses that lead me to further question the reliability of her testimony:

(i) A.C. and Legarie give very different accounts as to where, when and how they met in September 2003.

(a) A.C. was sure the plan to meet at a bar was made in the evening when A.C. was with Chauhan, Legarie and Boyle outside the gym at RMC on the ex-cadet weekend (September 26 and 27, 2003). There is no mention of a soccer game earlier in the day;

(b) Legarie said she was sure that A.C. and Boyle were part of the plan but could not be sure whether Chauhan was. Legarie believes the event occurred on September 6, 2003 because that was her only day off. She recalled going to a soccer game during the day and going out that same evening to a bar.

(ii) A.C., her mother and R.F. have different recollections of the telephone call made by A.C. to her mother wherein A.C. told her mother about the incident:

(a) A.C. testified that she believes she called her mother a day or two after the incident;

(b) her mother testified that she received a frantic call from her daughter at 3 a.m. to advise her that now she was safe and was at home; and

(c) R.F. testified that he has no recollection of A.C. making a telephone call when she arrived at his door just after her disclosure because she had been locked out of her room. She therefore spent the night in his room. He says he would have remembered had she made a lengthy phone call to her mother.

[106] A.C.’s first statement to police was given eight years after the alleged incident. She testified three years after that first disclosure to authorities. It is impossible to know whether and to what extent the passage of eleven years has impaired her memory.

[107] Given that,

(a) Chauhan and Legarie were integral to A.C.’s description of the incident and she was sure they were both there on the evening in question;

(b) Legarie could not have been at the ex-cadet weekend in 2003 because she was in Bosnia;

(c) Legarie thought the plan to go to a bar with A.C., Chauhan and others was made at a soccer game on the 6th of September;

(d) Chauhan could not have been at RMC on September 6th because he was in England;

(e) the Crown concedes that the incident must have taken place between September 16 and 21, 2003 ( because the event took place in the evening and Legarie was deployed on the 22nd); and

(f) Legarie does not believe she was at RMC after the 13th of September,

it is unlikely that Chauhan was at RMC with Legarie and Boyle in September or October of 2003 as set out in the indictment.

[108] Because an accused must know the case he has to meet and may have other evidence to adduce depending on the time set out in the indictment, it is essential that the offence take place within the time frame set out in the indictment.

[109] Therefore, notwithstanding my conclusion that A.C. was an honest witness, the reliability of A.C.’s evidence regarding the timing and the surrounding details of the event leave me with a reasonable doubt as to whether Chauhan met A.C. in September or October 2003.

(b) Is there Proof Beyond a Reasonable Doubt that A.C. was Drugged or Sexually Assaulted by Chauhan?

[110] In addition to the above, given that,

(a) the incident was not reported until many years after the fact;

(b) there are no witnesses to the event and there is no DNA or toxicological evidence available;

(c) the only evidence of drugging is A.C.’s recollection of her symptoms many years after the fact;

(d) the toxicologist testified that the symptoms described by A.C., which include flashes of memory, difficulty walking, nausea, vomiting and headache, could result from the rapid and excessive consumption of alcohol;

(e) A.C.’s memory is wrong in some important respects and at odds with the testimony of others, as set out above, so it is possible that she is wrong about how much she had to drink on the evening in question;

(f) Dr. Woodall testified that some people have a greater propensity to experience alcoholic blackouts than others, and

(g) A.C. acknowledges that she had blacked out from excessive consumption of alcohol at RMC, both before and after the time set out in the indictment,

I am not satisfied beyond a reasonable doubt that the only reasonable inference is that A.C. was administered a drug or that she was sexually assaulted in September or October 2003. As such, I find Chauhan not guilty of drugging or sexually assaulting A.C. in September or October 2003.

7. ANALYSIS AND CONCLUSION REGARDING THE CASE INVOLVING P.W.

(a) Is there Proof Beyond a Reasonable Doubt that P.W. was Drugged?

[111] Because each of the two accused chose to testify, I must begin by reviewing the evidence adduced by the accused in the context of the evidence as a whole.

[112] Chauhan and Kayilasanathan assert that neither of them administered a drug to P.W. Each denies he was part of a plan to drug and sexually assault P.W. Each claims his intention was to drink and “party”.

[113] It is agreed that on the evening of Friday February 12, 2011, P.W. agreed to meet Chauhan for a drink at Traders bar in the Sheraton hotel in downtown Toronto. As she was on her way down, she learned that Chauhan’s friend Kayilasanathan would be joining them. She had a drink at Traders bar with Chauhan, met Kayilasanathan and went up to Kayilasanathan’s hotel room to have a few more drinks. They all then agreed to go out to the C Lounge.

[114] Although P.W. herself gave different accounts of how much she drank on the evening in question and the precise quantity cannot be confirmed[^2], P.W. consumed a good deal of alcohol that evening:

(a) She had one Cosmopolitan drink at Traders bar. The menu available at the time lists only one Cosmopolitan made with 2½ ounces of alcohol. I prefer this evidence to P.W.’s assertion that she thought the drink contained only one ounce of alcohol.

(b) She had two drinks in the hotel room which were free poured by Kayilasanathan. He estimates that it was about 2 ounces per glass while P.W. estimates that it was 1 to 1½ ounces per glass. Although there is no way of knowing exactly how much alcohol was in the two glasses, I accept that they may have contained two ounces of alcohol each, given that P.W. seemed to underestimate how much alcohol was in the Cosmopolitan, and Kayilasanathan’s explanation that he poured the alcohol freely because he would save money if they drank more of his alcohol and less of the alcohol at the bar to get intoxicated is believable.

(c) P.W. had several more drinks at the C Lounge.

(d) It is evident from the videotape that P.W. was served three drinks. For the reasons set out immediately below, she may have been served more than three drinks at the C Lounge.

[115] There is objective evidence of most of what transpired at the C Lounge from 1:10 to 2:20 hours although the videotape taken by the C Lounge is not altogether clear and it did not capture approximately 10 minutes of the time when the complainant and the accused were in the bar.

[116] On the videotape, P.W., Chauhan and Kayilasanathan are drinking alcohol, socializing and dancing. The bartender pours several drinks at several different times and puts them on the counter. Kayilasanathan pays for most of the drinks. Although the tape is of poor quality, there is nothing evident on the videotape that shows either accused placing anything into the drinks.

[117] As they leave the C Lounge at approximately 2:20, P.W. is seen with her coat on, wearing high heels and walking without difficulty. Videotape from the Sheraton hotel depicts P.W.’s return to the hotel lobby. She walks without difficulty through the hotel lobby with Chauhan and Kayilasanathan at approximately 2:45. Although P.W. was adamant that subjectively she was blind, she admitted that objectively she was able to see, because she saw herself on the video walking and interacting.

[118] About 25 minutes later, at approximately 3:10, four text messages were sent in quick succession from P.W.’s phone: two to her father’s cellphone and two to her mother’s cellphone. P.W. says she may well have had a password on her phone and there is no evidence either accused knew her password.

[119] It is reasonable to infer that it was P.W. who sent these messages at or about the time she claims she was being sexually assaulted and could not move.

[120] The content of those messages was never retrieved by police. P.W.’s father does not remember receiving messages from P.W. that evening, although by the time inquiries were made of him he had changed his phone several times. P.W.’s mother was not asked about the messages.

[121] The toxicologist opined that if someone were under the influence of a drug such that they could not move properly or lift their arms (as P.W. described her condition in the hotel room) they would be unable to push “send” to transmit the text messages.

[122] According to the toxicologist, the symptoms described by P.W. (including sensory flashes interspersed with black, fatigue, and confusion) could result from fast and copious alcohol consumption. During an alcoholic blackout a person can behave normally and if someone is used to drinking alcohol they may not seem intoxicated. There may also be a lack of social inhibition. The toxicologist testified that it is possible for a 130-pound female who consumes four alcoholic beverages quickly to suffer an alcohol induced blackout.

[123] The following day P.W. says she was nauseous, vomited, had a headache and felt cold.

[124] The Crown asked the toxicologist to identify drugs that could be used for a drug-facilitated sexual assault, and that could have been administered to P.W. and then been eliminated from her blood within 12 hours. The toxicologist suggested four drugs:

• GHB (a drug that has a very short half-life);

• Midazolam (a benzodiazepine with a short half-life);

• Triazolam (another benzodiazepine with a short half-life); and

• Ketamine (an anesthetic that Woodall said “might” be eliminated within 12 hours)

[125] The toxicological evidence is that the symptoms of most drugs peak within one to two hours.

[126] According to the toxicologist, none of these drugs produce symptoms of seeing black while objectively being able to see. Finally, according to the toxicologist, GHB is not known to produce a hangover effect at all; the hangover effect of Midazolam and Triazolam is drowsiness, not nausea or hand tremor; and given the timing of the late onset of nausea, she would not link it to Ketamine.

[127] No drugs were detected in P.W.’s blood, urine or hair samples taken within a few days of the alleged incident.

[128] There were many people at the C Lounge on the evening in question. No witnesses testified about anything being placed in P.W.’s drink.

[129] There need not be conclusive expert evidence to corroborate the complainant’s assertion that she was drugged, identification of the precise drug administered, exactly how or when the drug was administered or who as between two coconspirators administered the drug. Nonetheless, in order to be satisfied beyond a reasonable doubt that P.W. was drugged, that must be the only reasonable inference that I can draw from the evidence.

[130] As more fully set out above, the fact that,

(a) there are no witnesses or independent evidence to corroborate P.W.’s evidence that she was drugged, although the videotape shows that there were many people at the bar;

(b) the blood, hair and urine samples taken provide no evidence of drugging;

(c) the videotape excerpts show no impairment of P.W.’s motor skills as late as 2:45, almost one hour after she says she began to feel “weird”;

(d) the toxicological evidence is that the effects of most drugs peak within one to two hours which, on P.W.’s evidence would have been between 2:52 and 3:52 (during the time the text messages were sent);

(e) if P.W. were under the influence of drugs such that she was unable to move, she would have been unable to push “send” to transmit the four text messages at 3:10;

(f) some of the symptoms described by P.W. are not known to be associated with the more common “date rape” drugs (GBH, Midazolam, Triazolam and Ketamine) described by the toxicologist; and

(g) P.W. may have consumed 10½ ounces of alcohol over a three hour period, and this quantity of alcohol in a person weighing 130 pounds can lead to blackout and flashes, loss of memory or a lack of social inhibitions without showing outward signs of impairment,

lead me to conclude that the Crown has not satisfied the high onus of establishing beyond a reasonable doubt that the only reasonable inference is that either or both of Chauhan or Kayilasanathan administered a drug to P.W.

(b) Is there Proof Beyond a Reasonable Doubt that P.W. was Sexually Assaulted by Either or Both of Chauhan and/or Kayilasanathan?

(i) Assessment of the Evidence of the Accused

[131] There was a sexual encounter with P.W. on the evening in question, but Chauhan and Kayilasanathan claim it was a consensual act. There are no independent witnesses to confirm what actually happened in the hotel room.

[132] The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence.

[133] Chauhan says he was semi-conscious while Kayilasanathan was dancing and kissing P.W. Chauhan says P.W. then initiated the sexual contact with him by rousing him from his bed and beginning to dance with him. They started to caress and kiss one another. This progressed to touching one another. Chauhan says he touched her vagina and she touched his crotch over his clothes and then touched his penis under his clothing. He was unable to get an erection because he had had too much to drink. He performed oral sex on her and she moaned which led him to believe she was enjoying it. Thereafter he passed out.

[134] Kayilasanathan says shortly after they came back to the hotel room at 2:45, Chauhan passed out on one of the beds. He and P.W. listened to music and began to dance. They danced close to one another and then kissed one another. He pulled her bra to one side and licked her breasts. He claims she consented to this. Kayilasanathan says that although he saw P.W. rouse Chauhan from his bed and begin dancing with him, he does not know what happened after that because he was throwing up in the bathroom.

[135] Saliva belonging to Kayilasanathan was found on P.W.’s breast area and saliva belonging to both Chauhan and Kayilasanathan was found on her underpants.

(a) The Effect of Kayilasanathan’s Lie

[136] The Crown suggests that Kayilasanathan should not be believed because he has admitted he lied when questioned by police when he was arrested. He told police no sexual encounter took place. The Crown suggests Kayilasanathan’s answers not only reflect on his credibility but demonstrate his consciousness of guilt. The Crown suggests that not only did Kayilasanathan deny any involvement in a sexual encounter with P.W., he said there was no sexual contact between them; that is clearly a lie, since he now admits he kissed her and licked her breasts.

[137] The fact that Kayilasanathan lied reflects poorly on his credibility because he chose not to tell the truth.

[138] However, I do not share the Crown’s view that the lie also demonstrates that he was conscious of his own guilt on these charges. There is another plausible explanation: he was lying because he was embarrassed that his father and girlfriend would know that he had been involved in an illicit sexual encounter with another woman. Kayilasanathan expressed to police a good deal of anxiety about the fact that his girlfriend and father would be very upset with him.

[139] In Regina v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, (1998) 125 CCC (3d) 385 at para. 22 , the Supreme Court of Canada stated that:

… when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt … a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.

[140] In R. v. Coutts, (1998) 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545 (C.A.) at para 15, Doherty J.A. for the court stated that,

This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic. In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony. … If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused's guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events: R. v. Tessier (1997), 1997 CanLII 3475 (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.), per Ryan J.A. at p. 556, per Southin J.A. at p. 561; R. v. Pleich, (1980), 1980 CanLII 2852 (ON CA), 55 C.C.C. (2d) 13, 16 C.R. (3d) 194 (Ont. C.A.).

[141] Evidence that supports the case for the Crown, which if accepted would result in the rejection of accused’s evidence as unworthy of belief, should not be equated with evidence of concoction. I therefore decline to find that his lie is evidence of concoction.

[142] However, I have concerns about relying on the evidence of Kayilasanathan given that he demonstrated a capacity to lie. I also accept that Chauhan’s evidence is self-serving. I look therefore to the evidence that I do believe to determine whether I am satisfied beyond a reasonable doubt as to the guilt of either or both Chauhan and Kayilasanathan.

(ii) Assessment of the Crown Evidence

[143] Although it may not have been her original intention, P.W. willingly went to the Sheraton hotel bar and had a drink with Chauhan, went up to a hotel room with Chauhan and his friend Kayilasanathan to have a few more drinks, and then decided to go out to the C Lounge club with the accused. At the C Lounge, she drank, danced and socialized with Chauhan and Kayilasanathan.

(a) P.W.’s Outward Appearance

[144] Although P.W. said she had an onset of symptoms at the C Lounge just after 1:52 hours, she was able to retrieve her coat from the coat check before leaving with the accused. She did not seek assistance. Her outward appearance while at the Club, leaving the Club and entering the hotel appeared unchanged.

(b) Whether P.W. Would Have Consented to the Incident in the Hotel Room

[145] P.W. claims she was not attracted to Chauhan or Kayilasanathan and although she would go out to drink and socialize with them, she would never have consented to any sexual activity with Chauhan because he was married and marriage means something to her. She claims she was not attracted to Kayilasanathan.

[146] However, given,

(a) the tenor of the emails with Chauhan leading up to the incident most notably, “Can I borrow some of your brown charm and brains… strawberry blonde hair and boobs only gets you so far” and, “I believe that whatever you say goes. Consider yourself special”,

(b) the videotape that depicts P.W. dancing, drinking and having fun with both Chauhan and Kayilasanathan, and

(c) the fact that P.W. did not implement any plan to stay somewhere for the night and instead returned to the hotel room with the accused at the end of the evening when there was no plan to engage in any other activity,

I do not rule out the possibility that she might have consented to engage in a sexual encounter with either or both of the accused.

(c) Whether P.W. Consented to the Incident in the Hotel Room

[147] P.W. claims she was aware that she was being sexually assaulted but was unable to do anything to prevent it because she could not move. She felt extremely tired. She says that in the case of Chauhan she said, “Wait. Stop. Aren’t you married?”

[148] However, the objective evidence on the videotape suggests that P.W. was able to control her movements when she re-entered the hotel to go back up to Kayilasanathan’s hotel room at 2:45, minutes before the alleged assault. Moreover, P.W. did not tell anyone at the C Lounge she was feeling “weird” and she was able to retrieve her coat.

[149] There are four text messages sent from P.W.’s cellphone just after 3:10 although P.W. testified that she was unable to move. P.W. says her cellphone may have been password protected. The police inadvertently failed to retrieve the four text messages from her cellphone.

[150] It is possible that these messages contained content that would have provided evidence of P.W.’s ability to move her arms and think clearly. With clear evidence of her ability to walk at 2:45 and without the content of the four text messages sent from P.W.’s cellphone at or around the time of the offence, I am left with a reasonable doubt as to whether P.W. was able to control her physical movements and whether she consented to the sexual encounter described by both accused.

[151] There is no biological evidence to suggest either of the accused had sexual intercourse with P.W. The saliva found on P.W.’s breast and the inside of her pants is consistent with the rendition given by the accused that Kayilasanathan had licked her breast area and then Chauhan licked her breast area and then performed oral sex on P.W.[^3] The urine sample detected no drugs except diphenhydramine (found in Gravol and P.W. testified that she took Gravol) and quinine (found in tonic water and she had tonic water on the evening in question).

[152] No semen was found on any of the articles seized. This also is consistent with Chauhan and Kayilasanathan’s evidence that they did not have sexual intercourse with P.W.

[153] Finally, I accept that Kayilasanathan’s credibility is diminished because he lied to the police officer upon his arrest. I also accept that P.W.’s credibility is imperfect. For example, she admitted that when her father asked her where she had been on the night of the incident, she told him she was “at Pete and Kelly’s”. This was not true. She had difficulty accepting the jocular and social tenor to her early email exchanges with Chauhan. While she asserted that she has always been sure how much she drank, she gave different accounts of how much she had to drink on the night in question to the North York General Hospital, to York Central Hospital, and to police.

[154] P.W.’s ability to control her movements shortly before the incident, as evidenced by the videotape; the toxicological and biological evidence which is consistent with the version of events offered by the accused; the failure to provide evidence of the text messages that could provide valuable evidence as to P.W.’s ability to think and act; together with the absence of any evidence to corroborate P.W.’s version of events, leave me with a reasonable doubt as to whether she consented to the sexual incidents with each of the two accused.

[155] In the alternative, if P.W. did not consent, I accept the evidence of each of the accused that he had an honest if mistaken belief that P.W. consented to the sexual encounter because her outward appearance as shown on the video was that of a person who seemed to be in control of her movements.

[156] P.W. drank a considerable amount in a short period. I note that the evidence of the toxicologist is that P.W.’s symptoms could result from a rapid and excessive consumption of alcohol and that a third party might not be aware that such an individual was not in full command of her faculties.

[157] Moreover, the videotape of P.W. re-entering the hotel at 2:45 hours just before the incident, and the four text messages sent from P.W.’s cellphone that she stated may well have been password-protected, suggest that P.W. was able to move without difficulty. This is consistent with the testimony of each of the two accused. Finally, her credibility was not unblemished. For these reasons, I find that the Crown has not met the high onus of satisfying me beyond a reasonable doubt that P.W. did not consent to the encounter.

8. CONCLUSION

[158] In summary, I am not satisfied beyond a reasonable doubt that Chauhan met with A.C. in September or October of 2003 because,

(a) the fact that Cindy Legarie was at the meeting with A.C. and Chauhan was a significant and integral part of A.C.’s account of the incident;

(b) the incident as described by A.C. could not have taken place during the ex-cadet weekend (on September 26 and 27, 2003) because Legarie was out of the country;

(c) the event as described by A.C. could not have taken place after September 22 (when Legarie left the country), or before September 16 (when Chauhan arrived in the country); and

(d) Legarie does not believe she was in Kingston after September 13, 2003.

[159] Moreover, given that,

(a) the incident was not reported until many years after the fact and the only evidence of drugging is A.C.’s recollection of her symptoms many years after the fact;

(b) the toxicologist testified that the symptoms described by A.C. could result from the rapid and excessive consumption of alcohol;

(c) A.C.’s memory is known to be wrong in some important respects and may now be wrong about how much she had to drink on the evening in question; and

(d) A.C. had blacked out from excessive consumption of alcohol at RMC both before and after the time set out in the indictment,

I am not satisfied beyond a reasonable doubt that the only reasonable inference is that A.C. was administered a drug.

[160] For these reasons, I find Chauhan not guilty of drugging or sexually assaulting A.C. in September or October 2003.

[161] It is agreed that Chauhan and Kayilasanathan had a sexual encounter with P.W. in the early morning hours of February 13, 2011.

[162] However, I am not satisfied beyond a reasonable doubt that the only reasonable inference is that P.W. was drugged and that she did not consent. This is because:

(a) there is no evidence to support the Crown assertion that Chauhan and Kayilasanathan planned to drug and sexually assault P.W.;

(b) P.W. and the two accused willingly consumed a considerable amount of alcohol that evening and early the next morning;

(c) there is no evidence to corroborate P.W.’s testimony that she was drugged or sexually assaulted;

(d) P.W. appeared to be in full command of her physical movements at approximately 2:45, a few minutes before going up to the hotel room where she says the assault took place; and

(e) four text messages were sent from P.W.’s cellular telephone at or around the time she testified that she was unable to resist the sexual encounter with each of the two accused. She could not have composed and sent text messages if she were unable to move. The missing text messages could assist in determining whether and to what extent she was physically or mentally impaired.

[163] In the alternative, even if P.W. did not or could not consent due to her condition, there is an air of reality to the accused’s claim that they had an honest but mistaken belief that P.W. consented to the sexual encounter. P.W. appeared to be in command of her movements shortly before going back up to the hotel room; there is evidence to support Kayilasanathan’s assertion that P.W. was on her cellphone in the room dealing with messages; and the toxicologist testified that although consuming a large quantity of alcohol in a short period could result in an alcoholic blackout, a third party might not be aware that an individual in such a condition was not in full command of her faculties.

[164] For the above reasons, I find Chauhan,

(a) not guilty of drugging for the purpose of overpowering and sexually assaulting P.W., or sexually assaulting P.W.; and

(b) not guilty of being a party to a sexual assault by another.

[165] I find Kayilasanathan,

(a) not guilty of drugging P.W. for the purpose of overpowering and sexually assaulting her, or sexually assaulting P.W.; and

(b) not guilty of being a party to a sexual assault by another.

Thorburn J.

Released: September 25, 2014

APPENDIX A: THE EVIDENCE RELATED TO THE ALLEGATIONS INVOLVING A.C.

Amitabh Chauhan’s Account of what Happened in the Fall of 2003

The Relationship Between A.C. and Chauhan in 2001

[1] Chauhan testified that he had a casual sexual relationship with A.C. from January through May of 2001. He disagrees with A.C.’s assertion that they had a monogamous relationship for nine months. He disagreed with the Crown’s contention that she was naïve and impressionable. He claims neither suggested to the other that they were dating. He saw other girls during that period and made no effort to conceal it.

[2] A.C. and Chauhan did not spend time together as a couple with friends or family. They rarely if ever went off the RMC base for a date. Chauhan says he never bought her a gift or sent her a handwritten note. He does not recall any photographs taken of the two of them as a couple.

[3] During the summer while he was away, he received a copy of an email A.C. had sent to her mother that said, “Look mum. Not even an email or a letter [referring to him].” He thought this was strange but did not respond.

[4] Chauhan says there was no conversation about the continuation or end of the relationship as it was never formalized. Thereafter, Chauhan developed a serious committed relationship with another woman and had no further relationship with A.C.

[5] Chauhan graduated from RMC in 2002.

[6] Chauhan testified that from 2002 to 2007, he believes there was a gatehouse manned by personnel after hours to check the identification of all persons (including passengers) who entered the base.

Chauhan’s Response to A.C.’s Claim that she was Drugged and Sexually Assaulted on the Ex-Cadet Weekend in 2003

[7] Chauhan denies he drugged or sexually assaulted A.C.

[8] Chauhan testified that he strongly believes he was not at the ex-cadet weekend in 2003 as he would have remembered had he been there. Later in the trial, it was determined that the RMC ex-cadet weekend was on September 26 and 27, 2003. Chauhan does not recall being at RMC in September or October 2003 and has no recollection of seeing A.C. or Cindy Legarie during that period.

[9] Chauhan cannot account for all of his whereabouts during the two month period. However, he says he was physically present in London England on September 1, 2003 to hand in his dissertation at the London School of Economics. Flight records show that he travelled to England on August 18, 2003 and returned to Canada on September 16, 2003.

[10] Chauhan and his friend Renato Duarte testified that Chauhan went to Winnipeg to visit Duarte and another friend, Matt Carere, either the last weekend of September or the first weekend in October. According to medical records he was again in Winnipeg on October 15, 16 and 17. He began pilot training in Winnipeg on October 20, 2014.

[11] Chauhan has not seen Legarie since they graduated from RMC in the Spring of 2002.

Cindy Legarie

[12] Cindy Legarie testified that she was not aware of any intimate relationship between Chauhan and A.C. while she was at RMC.

[13] She discouraged A.C. from having an interest in Chauhan because he was a very urban person and he was open with Legarie about his relationships with several women. Legarie thought A.C. would not be a good match for him because she was a small town girl who was deeply religious, very close to her parents and naïve.

[14] Legarie says she was not at the ex-cadet weekend as she was deployed to Bosnia on September 22, 2003. Her best recollection now is that she was in Kingston for pre-deployment training from September 2 to 13, 2003, then in P.E.I. for a week to be with her spouse, and then to Petawawa to prepare for her deployment. She was deployed to Bosnia on September 22, 2003.

[15] On the Friday or Saturday afternoon of early September she approached A. C. and Boyle at a soccer game. She believed it was likely that Chauhan was also part of the plan. She suggested they go out to a bar that evening. She thinks A.C. and Chauhan never showed up.

[16] Legarie believes that when she saw Chauhan he told her he was either about to start his Master’s degree or was in the process of doing so.

[17] A.C. contacted her in 2011. She said she had been assaulted by Chauhan. She did not tell her the details of what had happened but said she had not shown up where they had planned to meet because she had been assaulted.

Renato Duarte

[18] Renato Duarte is one of Chauhan’s best friends. He does not know A.C.

[19] A few weeks before he testified, he remembered that after Oktoberfest in Winnipeg he, Chauhan and Carrere spent a few days together. To the best of his recollection, the weekend they spent together was either the last week of September or first week of October, 2003. It was a planned visit.

A.C.’s Account of what Happened in the Fall of 2003

A.C.’s Relationship with Chauhan

[20] A.C. met Chauhan in early 2001 when they were both students at the Royal Military College in Kingston, Ontario. They had a committed, monogamous relationship from January through September 2001.

[21] A.C. was more serious about the relationship than Chauhan.

[22] They seldom if ever went on dates, although Chauhan publicly acknowledged their dating relationship by having her attend his 4 Squadron party at the end of the year. She did not know much about Chauhan’s family and upbringing and never met his family. He never met her family.

[23] When they were separated in the summer of 2001, A.C. emailed him almost every day. She was frustrated that Chauhan did not seem to be “on the same page” and only responded to emails she sent him. Once when she forgot to email him, he did not initiate contact. She communicated her frustration to her mother in an email which email was copied to Chauhan.

[24] When Chauhan returned to RMC on September 18, 2001 A.C. said she was very happy to see him. However, shortly after he returned, when they were in his room chatting, he said something about her being fat. She felt deeply offended by his remark. She felt they were not looking for the same thing because he did not seem to have the same level of commitment and respect for her as she did for him. She ended the relationship although he tried to persuade her not to.

A.C.’s Drinking Habits at the Time

[25] A.C. says she drank a lot of alcohol in first year at RMC but stopped drinking a great deal in second year (which is when she met Chauhan). She was probably drunk at her graduation (after the incident).

[26] She has blacked out before due to excessive consumption of alcohol. She has vomited from drinking too much but has never experienced symptoms like the ones she described that night.

The Incident

[27] A.C. is sure Chauhan sexually assaulted her during the RMC ex-cadet reunion in the early Fall of 2003. She is also sure that Cindy Legarie and Richard Boyle were also there that weekend.

[28] The ex-cadet weekend is one of the biggest events of the year and consists of organized events followed by a formal dinner and a military parade.

[29] A.C. testified that Chauhan, Cindy Legarie and Richard Boyle had graduated from RMC but returned to RMC on that weekend.

[30] A.C. said she met Chauhan just outside of the gym doors at RMC. A.C. was upset because she had just broken up with a boyfriend whom she had been seeing for two years. Chauhan appeared to be with Cindy Legarie and Richard Boyle both of whom she knew.

[31] When A.C. saw Chauhan, she asked him to answer a question that had been bothering her; that is, whether he had been unfaithful to her while he was in Germany over the summer of 2001. Chauhan said he had not.

[32] Legarie and Boyle were waiting to go somewhere with Chauhan. Chauhan told them to go ahead. They invited A.C. to come along to a bar in downtown Kingston and she agreed. Legarie and Boyle drove ahead and a little while later, Chauhan drove A.C. in his car. On the way, Chauhan asked her to take him to a different bar. Although she thought this was strange, she went with Chauhan to the other bar. They stayed for about 45 minutes.

a. How Much She Drank on the Night in Question

[33] A.C. testified that she had no more than two drinks at the RMC event.

[34] When she and Chauhan went to the bar, she did not want anything to drink but he insisted that she order something she liked. She went to the washroom and asked him to order something for her. When she returned, he was standing with a Mike’s Hard Lemonade. They remained at the bar for about 45 minutes. She did most of the talking. She does not recall what he said.

b. A.C.’s Symptoms on the Night in Question

[35] Shortly after consuming the drink at the bar, A.C. suddenly became overcome with confusion and was unable to see. Her eyes felt like they were closed although they were open.

[36] She does not remember making it outside the bar and she could not see or hear anything. She felt she was in a moving car. She remembers she felt “freaked out” as this had never happened to her before. It was very scary as “you don’t just go blind”.

[37] The last person she saw before going blind was Chauhan. Although she could not see she could hear. She heard them go across the causeway and asked where they were going. She called out to Chauhan. Later, as they went across the causeway he said, “I thought you wanted to see my room on the base.” She was shocked because all of the rooms on the base are the same. She said “no” and stumbled for words. She knew she had a parade the following morning to attend to and thought, “What the hell is going on? Why would he say that? Why am I here? Where am I going? Why doesn’t he respond?”

[38] She does not remember getting out of the vehicle. As they walked across the parade square, Chauhan propped her up as she tried to walk. It was as though she had broken her leg. He took her up the stairs and along a hallway into his room. She was unable to read things on the doors. They said nothing to one another.

c. The Alleged Sexual Assault

[39] A.C. was held down and penetrated vaginally but she could not see. (In her first interview with Detective Luff on February 25, 2011, she told Luff that she was not sure if Chauhan had had vaginal sex with her. At trial she said she took that position because he could not see while he was having sex with her and therefore could not prove it was him.) She was unable to move when she wanted to move her body and could feel she was held down by her arms. She does not remember having her clothes taken off and does not know where she was.

[40] She had a blackout and then had a flash of seeing Chauhan coming forward on his knees on top of her with his pelvic area in her face like he was trying to have oral sex with her. Her clear impression was that he was moving toward her although she cannot say with 100% certainty that his penis penetrated her mouth. He was holding her arms down and his pelvis was coming at her mouth. A.C. does not believe Chauhan wore a condom.

[41] A.C. said she did not consent to any sexual contact that night. There was no conversation about that.

[42] She felt a brief pause and told him she had to use the washroom. Chauhan then lifted her onto the sink. She was not wearing any clothes but by this point, could move a little. She said she had to go to a washroom and she searched for her clothes. She could not find her underwear or her pantyhose but put on her skirt and top and dressed herself as best she could.

[43] Chauhan helped her walk back to his car. He buckled her into the car and drove her back to the military college. She remembers that they drove quickly. Her legs were like Jello and she repeatedly dropped her keys in the car. She had difficulty holding her ID and pass code.

[44] They pulled up in front of her building. She tried to get into her room but could not hold her identity card. She then tried to use a coat hanger to open her door but failed.

[45] She went to the door of her closest male friend R.F. and knocked on the door. He let her in and she told him what had happened. He told her she looked terrible. She was nauseous and tired and had a headache. They could not get into her room so he allowed her to sleep in his room.

[46] A day or two later she confided in her parents and they told her she was “nuts” not to report it right away.

d. Symptoms After the Alleged Assault

[47] A.C. mentioned for the first time at trial that she felt discomfort in her vaginal area the day after the alleged assault. The discomfort was not enough to see a doctor. She felt as though she had had sex without lubrication or foreplay. She also reiterated the symptoms she had told police and the court on prior occasions that she felt nauseous and weak and had a headache.

[48] Although she has no clear recollection of participating in the parade, she thinks she did as it is obligatory to participate in the parade unless a doctor’s note is provided. The parade usually lasts a couple of hours and is physically demanding.

[49] The next day she felt like she would vomit. Her legs and hands felt weak and she had a headache.

Report of the Incident

[50] Although R.F. and her parents told her to report the incident to police, she did not want to go to the police because she did not want to taint her military career. She just tried to forget the incident.

[51] A.C. believes she spoke to Cindy Legarie before she gave her video statement to police.

[52] After a friend sent her a link to the news story of the P.W. incident, she went to the police on February 19, 2011. She wanted to tell police that in her heart she knew she had been through the same thing with one of the men they were mentioning. She felt guilty thinking that this might not have happened to P.W. if she had reported the incident earlier.

No Consent to Sex with Chauhan

[53] A.C. says she would not have consented to sex with Chauhan that night because she was still hurting from her break up with a long-term boyfriend. Moreover, she said she was raised Catholic and did not believe in having sex with someone before marriage although she was open to the idea of having sex with someone you “might want to marry”. She says she shared this view with Chauhan.

Contact with Chauhan the Following Year

[54] A.C. testified that the next time she saw him after the alleged incident was in October 2004 when they were both in Winnipeg doing pilot training. She was at a party and was waiting outside the washroom when Chauhan approached her. He appeared friendly, touched her arm and asked her if she might like to connect. He asked for her telephone number and suggested they have coffee. She told him she had no interest in speaking with him and that he knew exactly why, whereupon she left.

R.F.

[55] R.F. was in the same squadron as A.C. at RMC.

[56] Sometime during the four years they were together, A.C. came into his room because she had been locked out of her room. The gist of the conversation was that she had been given the date rape drug and was raped by Chauhan. She was acting flustered and confused.

[57] He recommended that she report this to the police but she told him she did not wish to because she was afraid it would have a negative effect on her career.

[58] R.F. did not know Chauhan personally. He does not remember the time of year or even the year this happened. He and A.C. have not kept in touch since they left RMC.

[59] R.F. did not know the details of the relationship between A.C. and Chauhan and whether it had been just casual sex or whether they were boyfriend and girlfriend.

A.C.’s Mother

[60] A.C.’s mother testified that one evening when her daughter was at RMC, she was awakened about 3 or 4 a.m. to a telephone call from her daughter. Her daughter repeated over and over that she was ok, she was safe and she was now at home. She asked A.C. if she was in her room and she replied that she was.

[61] She had never called this late at night before. They spoke for one or two hours.

[62] Her daughter was crying on the phone as she recounted little pieces of the story that she had been sexually assaulted by Chauhan and then held over a sink and taking her underwear off. At one point she “cracked up completely”. She was “foggy, like she was coming out – slowed down on things.”

[63] After hearing the story, A.C. asked her mother if there was a chance something was put into her drink. She is alert to this because A.C.’s mother is a licensed Practical Nurse with 25 years of experience. A.C. knew about her mother’s knowledge of drugs. A.C. was trying to figure out what could have happened and whether a date-rape drug could have been used. From the things A.C. was describing, her mother thought this was possible.

[64] Thereafter, A.C. became a shell of her former self. She was afraid to go out by herself and was even afraid of hugs and touches.

[65] A.C.’s mother believes her daughter had three or four dates with Chauhan two years earlier.

Dr. Karen Woodall

[66] Dr. Woodall is a forensic toxicologist and pharmacologist. She is an expert on the subject of the effects of drugs and alcohol on the body.

[67] Drug-facilitated sexual assaults are difficult to investigate. Many drugs can be used; there are no known methods for testing some drugs; each substance affects different people in different ways; and the drugs must be found in large enough quantities to allow for investigation.

[68] Alcohol is a central nervous system depressant. Alcohol may also be a social lubricant. If large quantities of alcohol are consumed, a person can become unconscious or “black out” and may suffer amnesia. There are two kinds of alcohol blackouts: an “en bloc” memory loss and fragmentary memory loss where there are flashes and bits of information are forgotten. Fragmentary blackouts are more associated with social drinkers who drink a lot during a short period. Those with blood alcohol levels of 150 are at risk of alcoholic blackout although this is also possible with those with a lower blood alcohol level.

[69] During a blackout a person can behave normally and if someone is used to drinking alcohol they may not seem intoxicated. It is possible to have high blood alcohol levels with no outward signs. The higher the blood alcohol level, and the more rapid the consumption of alcohol, the higher the risk of blackout. To some extent the reaction also depends on a person’s tolerance to alcohol.

[70] Four drugs are most likely to be used to facilitate a sexual assault: GHB, Midazolam, Triazolam and Ketamine. The onset of each of these drugs when taken orally ranges from one to thirty minutes. The effects peak in approximately one to two hours.

[71] The effects of GHB last 2.5 to 5 hours, Midazolam 2 to 3 hours, Triazolam 4 to 5 hours and Ketamine 6 hours (though the effect of Ketamine would begin to decline after one to two hours). None of these drugs produce symptoms of seeing black while objectively being able to see. Midazolam would enable someone to walk. They would experience memory loss but not blindness. According to the toxicologist, GHB is not known to produce a hangover effect. The hangover effect of Midazolam and Triazolam is drowsiness, not nausea or hand tremor.

APPENDIX B: EVIDENCE PERTAINING TO P.W.

Chauhan’s Evidence

[1] Chauhan denies he drugged or sexually assaulted P.W. or that he was part of a plan to do same. He admits that he had a sexual encounter with P.W. in the early morning hours of February 13, 2011, but claims P.W. consented to the sexual interaction.

The Objective of the Evening

[2] In 2010, Chauhan became acquainted with P.W. through a fellow medical student and friend, Jason Cheung. P.W. had expressed an interest in plastic surgery and Chauhan was doing his residency in plastic surgery.

[3] They exchanged several emails and Chauhan gave her career advice. He described her personality style as “a little flirtatious” which is borne out in the email exchanges.

[4] On September 29th 2010 Chauhan emailed P.W. to tell her that he might have some research for her to do. Chauhan sent her an article on January 1 and asked her to read and comment on it. On January 2 she responded and they agreed to meet.

[5] In mid-January they met in the late afternoon at a Second Cup in Burlington. P.W. said she hadn’t had time to read the article. Chauhan suggested they finish their conversation elsewhere so they went to Chauhan’s friend, H.V.’s home which was nearby. They went over and they were drinking. Both Chauhan and H.V. asked her to be careful driving home.

[6] On February 11 Chauhan and P.W. had no firm plan to meet up. On February 12 he worked from 9 am to 7 pm.

[7] Chauhan and Kayilasanathan were close friends and when they both got a night off they tried to get together for drinks and to party. Typically this was in Toronto. Chauhan tried to convince others to come out that night.

[8] At approximately 22:55 on February 12, Kayilasanathan called Chauhan and they discussed getting together. At approximately 19 hours Kayilasanathan told Chauhan he had booked a hotel room.

[9] In the early evening Chauhan spoke with Jason Cheung and invited him come out with them. At 19:19 he sent a text message to P.W. about making plans to go out that evening. He was with Cheung by about 19:40. He spoke to H.V. at about 22:09 and again at 22:53 for 28 minutes, because H.V. was unsure whether he wanted to come out. Both Cheung and H.V. declined the invitation.

[10] Chauhan understood that P.W. had gone on a few dates with H.V. but had no idea whether there was a falling out or whether there had been a real dating relationship.

[11] Chauhan also spoke with P.W. at about 22:32. He says he told her where to meet and that Kayilasanathan was coming down and they had booked a hotel room. Chauhan intended to go out and party that evening.

Time at the Sheraton Hotel

[12] When Chauhan arrived at the Sheraton hotel he went to the Traders bar and may have ordered a drink before P.W. arrived. She arrived shortly thereafter, wearing casual clothing, and brought no work with her. She ordered a Cosmopolitan that he paid for. The drink menu available at the time advertised only one Cosmopolitan which was included in the martini section. The listing reads, “All martinis contain 2 ½ oz. of liquor.” P.W. did not pay for her drink.

[13] After a few minutes Kayilasanathan arrived. He was carrying a small black bag.

[14] After a few minutes they went up to the hotel room that Kayilasanathan had booked for the night. They got to the room sometime after midnight. They told P.W. that they were childhood friends and they had just been to Panama together. Kayilasanathan told P.W. what his father and brother did for a living and Kayilasanathan mentioned the plastic surgery conference in Vancouver that he understood P.W. might be coming to. They did not discuss where P.W.’s father worked. (This is relevant to the later discussion of the text messages sent from P.W.’s phone in the early morning hours.)

[15] Kayilasanathan had brought a bottle of vodka and free poured a drink for each of them into glasses provided by the hotel. Chauhan explained that the purpose of drinking before going out was to “get a few drinks into you” before going out to have fun. The portions are generous for that reason. They each had two drinks in the hotel room.

[16] They then proceeded to discuss where they might go. They left without having made a firm decision and got a taxi because it was close to one o’clock and if they did not leave soon it would be too late to go to a club or bar. In the taxi someone told the taxi driver to go to C Lounge.

[17] P.W. advised that “I’m going to crash here tonight” – meaning the hotel room --and Chauhan said that was fine.

The C Lounge

[18] When they arrived at the C lounge Chauhan showed his military badge and they were allowed entry at 1:08. Kayilasanathan paid the cover charge for all three of them.

[19] The C Lounge is very noisy and you must scream or be very close to one another to be heard. There were lots of people there that evening. There is a video taken by the C Lounge. It is not a high quality recording and there is a gap between 1:13 and 1:25 during which police were unable to locate the parties on the video.

[20] Shortly after entering C Lounge, the three of them had a first drink at 1:11. At 1:30 the three of them ordered a shot of Tequila and a mixed drink each. A second round of drinks was then ordered which was a Jaegerbomb.

[21] They went to the middle section of the bar and were then not seen on camera for 13 minutes and Chauhan can’t say whether they ordered drinks during that period. At 1:52 a mixed drink was poured for all of them with a single shot in hers and double in the others. At 1:54 the bartender handed out more mixed drinks. At 2:01 more shots were handed out by Kayilasanathan.

[22] Chauhan has no recollection of P.W. pouring out a drink onto the counter.

[23] P.W. drank a shot of Tequila on the night in question. She also did so on an earlier occasion at H.V.’s home.

[24] During the evening, P.W. spent some time with Farhan, who was at the club.

[25] At the club, Chauhan and P.W. touched one another. It was playful tapping here and there. P.W. danced with him and with Kayilasanathan.

[26] Chauhan did not keep track of exactly what P.W. drank but says they all drank a considerable amount. Kayilasanathan paid for the drinks at the C Lounge. They both had drinks in their hands most of the night.

[27] P.W. never told him anything was wrong, or that she was seeing black. Nor was there anything about her condition that alarmed him. There was no time during the evening when P.W. stopped interacting with the group.

[28] By the time they left the C Lounge Chauhan was very drunk. P.W. and Kayilasanathan had been drinking too. He did not add a drug to P.W.’s drink nor did he see anyone else do so.

[29] The three of them left in a taxi and went back to the hotel. All three of them went up to the hotel room booked by Kayilasanathan. Chauhan was exhausted and lay down on the bed. He had a general sense that P.W. and Kayilasanathan were dancing.

[30] Chauhan has some sense that before the activity on the bed, she went toward the washroom and came back and he heard Kayilasanathan vomiting. P.W. went over and pulled him up to his feet saying, “No one is going to bed. We’re not done partying yet.”

[31] They then began close and intimate dancing and they were kissing one another. He does not remember who kissed who first. This went on for five to ten minutes.

[32] He fell back onto the bed and she followed on top of him. She was straddling him with her legs. He fondled her breasts and she put her hands on top of the crotch of his jeans stroking him outside the jeans. Then she put her hand into his pants and rubbed his penis. He put his hand on her crotch. He had his hands on her vagina and put his finger in her vagina. He was aroused but was too physically exhausted to get an erection. He felt a little embarrassed that he was not able to have an erection. He performed cunnilingus on her. This was a fluid progression.

[33] Chauhan testified that he believes she was moaning and he had the general impression she was enjoying it. He believes she had an orgasm but can’t be sure. She did not agree to perform oral sex on him. She never said she wanted to leave nor did she resist in any way. She never said she felt overwhelmed.

[34] Thereafter he fell back down on his back and passed out on the bed. That was the last he saw of her that evening.

[35] He does not recall P.W. saying, “No. Stop. Aren’t you married?”

[36] He woke up when Kayilasanathan spoke to him about his concern that P.W. was leaving as she had been drinking heavily only a few hours before. He is not sure what Kayilasanathan was saying. By the time he got up she was gone.

[37] At 7:03 he called her and asked her to call him to make sure she got home safely. He left a voice mail message. At 7:06 he sent her a text message asking her why she left so quickly and asking her to let him know when she got home safe. At 7:07 and 7:16 there were missed messages from him to her and at 8:04 she sent him a text message saying “I’m home.”

[38] At 10:45 he sent her a message saying he was glad she made it home safe.

[39] He was not concerned about her failure to respond to his text messages that morning as he knew she was working shift work.

[40] At the time of his arrest, there were no text messages from P.W. on his phone. Chauhan admits he may have deleted text messages from his phone because he does delete messages periodically. He does not specifically recall doing this.

[41] Chauhan did not believe she would be mad or embarrassed about what happened. He would prefer that she not tell anyone but was not worried because they did not have too many friends in common.

[42] When asked why he thought P.W. came forward with these allegations Chauhan said that if this got out “perfect P.” [P.W.] would be done. Some might suggest she was trying to sleep with someone to advance her career. He admits there would have been ramifications for him at home if P.W. disclosed what had happened.

Suganthan Kayilasanathan

[43] Kayilasanathan denies he had any involvement in either drugging or sexually assaulting P.W. He admits that he kissed P.W. and licked her breasts in the early morning hours of February 13, 2011 but he claims P.W. consented to the sexual interaction.

The Objective of the Evening

[44] Kayilasanathan and Chauhan are childhood friends. Until the time of their arrest they talked on the phone and saw one another regularly. They went out clubbing from time to time. When they did they often went to Toronto and if they drank too much would book a hotel room. Pre-drinking was something they often did to keep the cost of drinking down a little.

[45] On February 12, 2011 he spoke to Chauhan. He knew they both had the evening off and it was Saturday night. Often on occasions such as this, they kept plans loose until the evening itself. Chauhan contacted Jason Cheung and H.V. but both indicated earlier that evening that they did not wish to come. He found out shortly before he left his home to come to Toronto that P.W. would be coming also.

[46] Kayilasanathan understood from Chauhan that they were going to go downtown in Toronto to drink and party at a club. He booked a hotel room because it was common for him and his friends to book a room when they planned to be drinking.

The Sheraton Hotel

[47] They were supposed to meet in the lobby of the Sheraton hotel. He drove down to the Sheraton hotel and brought a black duffel bag that contained clothing, toiletries, a bottle of vodka and some snacks.

[48] After a few minutes at Traders bar he, Chauhan and P.W. went to his hotel room and he poured each of them two drinks into tumblers provided by the hotel. He free-poured the drinks and estimates that they contained two to three ounces of alcohol each. He had a third drink alone because he wanted to catch up with the others. He says the drinks were strong because it saved a little money to drink in the hotel room before going out and paying for drinks at a bar.

[49] While in the hotel room they spoke of going to Vancouver on a conference. He told P.W. he was a doctor and spoke a little about his family.

[50] Kayilasanathan intended to stay the night because he knew he would be drinking and had lost a friend to drinking and driving. He thought Chauhan would be spending the night too. Kayilasanathan said that at some point before leaving to go to the C Lounge, P.W. told them she would spend the night in their hotel room.

The C Lounge

[51] They left to go to C Lounge. After Chauhan showed his military credentials, they were admitted. P.W. went to leave her jacket at the coat check and he ordered drinks. They ran into his friend Farhan and his friends at the bar. Farhan chatted intermittently with P.W.

[52] Kayilasanathan says he has a pretty good memory as to what was ordered because he paid for the drinks at C Lounge and poured them in the hotel room. He estimates that P.W. had about 9 ounces of alcohol without counting the Cosmopolitan drink she had before he arrived at Traders.

[53] As they became more relaxed they began dancing. P.W. touched and hugged Chauhan a few times consistent with someone who had been drinking. She was laughing and dancing and having a good time. She was boisterous but not slurring her words or stumbling. She never said she felt weird or was seeing black. He did not observe her spill a drink on the counter. She refused the last drink.

[54] P.W. did not offer to pay for any drinks that evening.

[55] At one point later in the evening she went to the washroom and came back.

[56] Kayilasanathan denied he ever exchanged anything with Chauhan while they were at the C Lounge.

[57] As he left the club, they were pretty drunk but neither he nor she was slurring words or having any trouble walking. She was wearing high heels.

The Incident

[58] When they were back in the hotel room they started playing music and he poured drinks and ate most of a chocolate bar. P.W. accepted a drink though he does not know if she drank it. At some point he rolled a joint. P.W. was on her phone texting.

[59] He and P.W. were trying to encourage Chauhan not to fall asleep.

[60] After Kayilasanathan smoked most of his joint, he and P.W. started dancing. They were just bopping back and forth and twirling around and then got closer. His chest was touching hers and they began “grinding” with his buttocks touching her pelvis. Then they started kissing spontaneously. They were French kissing one another, she was holding him and he was responding. The kissing progressed. He kissed her neck, chest and licked her breast area. She seemed to respond by moaning and holding him.

[61] She was fully clothed and he slid her bra over to one side. This all happened within two or three minutes.

[62] P.W. then abruptly stopped and asked where Chauhan was. She said he had to get up and join the party. She encouraged him to get up whereupon he responded and got up. The next thing he knew they were dancing. Then they began caressing one another.

[63] He was surprised and a little hurt because he thought they had something going on. He then began to feel nauseous, went to the bathroom and started to vomit. When he went into the bathroom they were dancing and at one point Chauhan was kissing her.

[64] He was in the bathroom between five and ten minutes. He cleaned himself up and wanted to brush his teeth and change his clothes. He peered out the door and saw P.W. and Chauhan kissing and fooling around. He grabbed his overnight bag and went back into the bathroom.

[65] When he returned to the room the television was still on and P.W. was sitting on the edge of the other bed resting her head on the headboard. He got into his bed and she came over and asked if he was ok. She was on her phone typing on her keypad. Shortly afterwards he fell asleep.

[66] When he woke up P.W. was watching television. She said it was 6:50 a.m. and she needed to go home. He asked her why.

[67] She said, “I was so hammered last night” and he replied “and being a naughty girl”. He was joking and she jokingly tried to hit him with her elbow. He called over to Chauhan that P.W. was leaving and that he was not sure she was fit to drive. Chauhan did not respond. He never left his bed and did not try to physically restrain P.W. from leaving. (He was six feet tall and 180 pounds and could have done so.)

[68] He denies trying to put his penis into her mouth or sending any text messages from her phone.

[69] He left the hotel between 10 and 10:30 in the morning.

[70] The next day he sent a text message to Chauhan at 13:48 and had a conversation with him at 20:08.

The Police Interview

[71] On February 18 between 17:30 and 18 hours, Chauhan’s spouse told him Chauhan had been arrested for gang sexual assault. He became aware that they were looking for him also and arranged for his surrender to 52 Division. He volunteered to provide a sample of his DNA.

[72] He was placed under arrest at the police station. He was fingerprinted and strip searched. He was then interviewed by Detective Luff. He was advised that he was under no obligation to say anything.

[73] Although he had been advised by his lawyer at the time, not to say anything, he was terrified and started to question the advice of his lawyer. Moreover, the officer told him a number of things that were untrue to elicit admissions. He panicked and was no longer thinking rationally. The officer told him Chauhan had told police Kayilasanathan had drugged P.W. He was stunned that his friend would implicate him. The officer also suggested that if P.W. told him that he had given her a marijuana cigarette he could also add a charge of drug trafficking “so you are a drug trafficking doctor, is that what you are trying to tell me?” Finally, the officer suggested he was involved in a violent incident of vaginal and anal sexual intercourse.

[74] He panicked and told the officer, “My life is done already. Everything I have worked for is lost.”

[75] Thereafter, he lied, and denied any sexual interaction with P.W.

[76] In his testimony at trial, Kayilasanathan explained that he knew he had kissed and licked P.W.’s breasts. He was specifically asked by the officer whether DNA would be found on P.W. “whether it be saliva, licking her breasts or any other part of her body”. He asked whether Kayilasanathan was denying “even kissing”. Kayilasanathan maintained the denial of any sexual contact. He claims he knew that DNA would be found in his saliva on P.W.’s breasts but wasn’t thinking rationally when he denied it.

P.W.’s Evidence

General

[77] In February 2011, P.W. was a medical student at McMaster medical school.

[78] She has always been a high achiever and understood that to succeed in her chosen field of medicine, she had to network. As such, she approached Chauhan whom she thought could help her decide whether to pursue plastic surgery and if so, give her helpful advice.

[79] P.W. describes herself as a totally analytical person who does not make decisions on a whim.

[80] At the time of the events, P.W. was five feet four inches tall and weighed 130 pounds.

The Nature of P.W.’s Relationship with Chauhan and Kayilasanathan

[81] P.W. met Chauhan and his wife at a party in 2009 and became reacquainted through Jason Cheung, a mutual friend at the medical school where they were both enrolled. P.W. was considering pursuing a specialty in plastic surgery and Chauhan was a first year resident in plastic surgery whom she believed could help advance her career. He was a friend of her former boyfriend and she had met him at a party. She felt comfortable with Chauhan as a result of these connections and because he was doing his residency in plastic surgery at McMaster.

[82] Chauhan and P.W. communicated through Facebook, email and a few telephone calls. They also met a few times over the six or seven-month period before the night in question. Chauhan was encouraging and helpful giving her career advice and offers of assistance. He suggested she assist with a paper and that her name would go on as a contributor.

[83] The tone of their communications was jocular. While P.W. sought and received advice and provided information as to her progress in medicine, the communications also contained jocular remarks, most notably, “Can I borrow some of your brown charm and brains… strawberry blonde hair and boobs only gets you so far” and, “I believe that whatever you say goes. Consider yourself special.” P.W. explained that although she was very smart she was not always taken seriously due to her gender. She did not find the remarks to be flirtatious but sees how other people could.

[84] On December 19, 2010 Chauhan sent her a paper and a proposal to work on a study with him for which she would be given credit as a contributor. They met on January 1 about working together on the paper. She had not yet read the materials but stated there was nothing awkward about the meeting as it was just an initial meeting to talk about working together as these were the sorts of things she needed to be doing to obtain a residency in plastic surgery.

[85] P.W. met Chauhan at a coffee shop a few weeks before the incident. As the shop was closing, they went to Chauhan’s friend H.V.’s home nearby. They drank alcohol and chatted socially. Thereafter, P.W. went out on a few dates with H.V. but decided they were not well suited to one another. She therefore ended the relationship. Neither P.W. nor H.V. suggested it was a fractious ending or that they would be uncomfortable in a group setting together.

[86] On February 5, 2011, P.W. and Chauhan met again about the paper. She had not done any work on the paper because she had been very busy.

P.W.’s Drinking Habits

[87] When P.W. went out, from time to time she consumed large quantities of alcohol. Eight weeks prior to the event in question, she went out and had 2 signature drinks, two to three mixed drinks and three to six shots in an evening. She felt fine the next day.

[88] P.W. has been “black out drunk” before but on those occasions she did not remember anything until the next day but did not experience flashes as she did in this case. When she was black out drunk, she woke up with no memory of what happened the night before. She was groggy, nauseous, and sometimes vomited. She often but did not always get a headache. She sometimes but does not always become more sociable when she drinks.

[89] By contrast, at the time this incident was unfolding she did not feel drunk. She had no physical reaction; it was all confusion and a series of flashes. The morning after the incident, she felt weak and trembled but was otherwise fine. She was able to walk without difficulty. Only hours later did she begin to feel nauseous and then start vomiting. If she had been hung over she would not have been able to get out of bed.

[90] She never loses track of how much she drinks and always makes judgment calls about how much she is going to drink. Drinking sometimes makes her more sociable.

[91] She does not want others to pay for her drinks because that can be taken the wrong way. She therefore feels an obligation to pay.

[92] She did not want Chauhan or Kayilasanathan to pay for her drinks on the night in question but did not offer to pay for any of her drinks or the taxi fare.

[93] P.W. stated that she was sure the mixed drinks she had on the night in question had only one ounce of alcohol, because drinks with two ounces of alcohol are too strong for her. The first drink she had in the Traders bar was a Cosmopolitan. The menu from Traders bar that was available at the time shows that the only Cosmopolitan drink on the menu contained 2 1/2 ounces of alcohol.

[94] When she first spoke to police she told them she had about the same amount to drink as she had the prior night which she had said was between 7 and 11 ounces of alcohol.

[95] When P.W. attended the hospital on February 13, 2011 Dr. Blicker has a note that she indicated she had had 5 to 6 alcoholic beverages. When she went to the Hospital for Sick Children to give a hair sample for drug testing she told staff she had had 4 drinks. P.W. admits she does not have a clear memory of exactly how much she drank but denies she was trying to minimize what she drank.

Communications between the Parties on the Night in Question

[96] P.W. had been on call on Thursday night and only got 1 or 2 hours sleep on Thursday. On Friday she was waiting to hear from Chauhan because she understood they were going to meet but when she did not hear from him she went out with a friend. On Friday evening she returned home at 2 a.m. and then slept until 13 hours the following day.

[97] On Saturday February 12th P.W. sent Chauhan a text message to tell him she had decided to do plastic surgery and wanted his support. She went out to dinner with her parents in Markham at approximately 19 hours. During the dinner she received a text message from Chauhan sent at 20:51 and she read it upon her return home. He asked her to meet him that evening at the Sheraton Hotel in Toronto.

[98] There are various communications between Chauhan and Cheung, H.V. and Kayilasanathan the contents of which are no longer available.

[99] Chauhan called her later that evening and she called him back. She sent a text message at 22:33 advising Chauhan that she was on her way downtown.

[100] Chauhan sent her a text message at 22:36, advising her for the first time that Kayilasanathan would be joining them.

[101] P.W. drove herself to the hotel and arrived at the Sheraton hotel at 23:23. She testified that they were meeting to discuss the paper they were going to write together and that she was “going to hang out” to talk to him. She testified that it was important to “schmooze” to get ahead and that is part of what success in medicine is about. Her plan was to have one drink and then leave.

The Events that Took Place on the Evening in Question

[102] P.W. met Chauhan at Traders bar at approximately 23:31. She had a Cosmopolitan drink and Chauhan had a gin and tonic. The menu available at Traders at the time contained only one Cosmopolitan drink which was included in the Martini section. The menu read, “All Martinis contain 2 ½ ounces of liquor.” P.W. did not believe her drink contained 2 ½ ounces of alcohol.

[103] Chauhan paid for the drink at Traders.

[104] Shortly thereafter Kayilasanathan arrived. Kayilasanathan had rented a hotel room in the Sheraton hotel and arrived carrying a bag. It was not unusual for friends to book a hotel room when they were going to a bar. One of the reasons for getting a room is to be able to drink and party.

[105] The three of them went up to the room just after midnight and Kayilasanathan brought some alcohol which they shared. P.W. does not recall who poured the drinks.

[106] P.W. and the two accused each had approximately two drinks of a clear alcoholic beverage (possibly vodka) with a 7-up or soda water. She testified that hers was a weak drink. It was filled about 3 inches high and was less than 50% alcohol. They had a second drink that was the same but also contained ice. Kayilasanathan smoked marijuana in the room.

[107] P.W. described this part of the evening as “hanging out with someone I thought was a friend”. P.W. said she was having a good time, she trusted them and she could continue to network.

[108] Kayilasanathan told her about himself: that he drives a Porsche, is a family doctor and has a brother who is a lawyer. There was no discussion about the company associated with P.W.’s father.

[109] At 1 o’clock, the three of them left to go to C Lounge, a club in Toronto’s entertainment district. They met others there.

[110] She knew she could always stay over at the home of her friends Pete and Kelly and had done so on two occasions in the past few months. She had no key to their premises and had not called to make arrangements but said she was free to come over and had gone over to their home late before. Given that she made no arrangements, Defence counsel suggests she meant to stay over at the hotel with the accused.

[111] P.W. denied that she had any intention of sleeping with the accused in the hotel room. She has slept in a hotel room before but only ever with girlfriends.

[112] At the club she had a one ounce shot and a mixed drink at approximately 1:11 a.m. At 1:35 a round of shots was ordered.

[113] She says she was trying not to drink too much because she intended to drive home that evening.

[114] She recalls going to the bathroom at approximately 1:52 and returning at approximately 1:57 hours. While she was in the bathroom she began to feel strange. After she left the bathroom to return to the bar, she does not really remember much because “things got weird”. She began to feel trapped in her body, dissociated from it, although she continued to be able to walk and talk.

[115] At 2:01, the video shows her having another vodka and cranberry juice. She says that because she did not want it, she dumped it surreptitiously on the bar (though this cannot be clearly seen on the video). At 2:13 another shot is poured and she puts that drink down after taking two sips.

[116] At approximately 2:19 they left the bar.

[117] She never saw anyone put anything into her drink. She also agreed that the video does not depict her pouring a drink onto the bar. She agreed that she can only say what she did or did not have to drink from watching the video of the C Lounge.

[118] Her impression was that Chauhan and Kayilasanathan had both had a lot to drink.

[119] Although the videotape depicts her dancing at the bar she had no memory of doing so.

[120] She remembers someone telling her to grab her coat but could not see anything. It was as though someone had pulled a curtain in front of her eyes: everything was black and thereafter there were sensory flashes interspersed with blackness.

[121] Thereafter, according to the video surveillance footage, she walked out of the bar without difficulty. She got into a taxi but could not see anything. She could not think rationally or make decisions. (She testified that she seemed wobbly and that she held onto the railing while leaving.)

[122] She is seen walking without difficulty through the hotel lobby with Chauhan and Kayilasanathan at approximately 2:45.

[123] P.W. recalls being back in Kayilasanathan’s hotel room with him and Chauhan sitting on the bed. They smoked marijuana and offered her some but she declined.

[124] She felt very tired. She felt a flash of a couple of seconds and everything else was blank. Based on her feeling of extreme fatigue, she does not believe she danced in the hotel room. She denies she ever kissed Kayilasanathan or rubbed up close to him or that they kissed one another.

[125] In the next flash, she was standing between two beds. Chauhan was in front of her and Kayilasanathan was behind her and they were feeling her all over, kissing and touching her. She could not do anything because she was too tired, overwhelmed and confused.

[126] In the next flash she was lying down. Chauhan was on top of her. She was not sure if he was “doing stuff” to her or not. She said, “Wait. Stop. Aren’t you married?” Chauhan did not answer, he just grunted. She thought she had to get away and although she found it very difficult to move, she took great pains to move to the other bed.

[127] Kayilasanathan was on her left hand side and whispered, “Aren’t you a dirty girl? Doesn’t this feel good?” She could not rationalize, analyze or do anything about it. She could not move her limbs. She does not recall whether she had clothes on at this point.

[128] Her clothes came off at some point. She was on her back unable to move. She raised her head and it flopped back down. Chauhan ripped off her jeans without difficulty.

[129] She had a flash of Chauhan being on top of her and feeling him penetrate her. She heard Chauhan say “Oh, she’s really wet”. She had no voice. She felt a sharp pain in her buttocks and felt she was being pushed over.

[130] P.W. denied demanding that Chauhan get out of bed and dancing with him. She did not fall on top of him, he did not fondle her breast and she did not put her hands on his crotch over his pants.

[131] She says Chauhan engaged in vaginal and anal sex with her. She says she had clear flashes of memory of this.

[132] She recalls Kayilasanathan getting physically ill in the bathroom.

P.W.s Use of her Cellphone

[133] Four text messages were sent from P.W.’s cellphone between 3:10 and 3:11 on February 13, 2011: two to her father and two to her mother. Her father’s address is a work address that provides the company name (not his).

[134] P.W. thinks she had a password on her phone at the time but is not sure. She does not recall sending any text messages from the bar or hotel that evening.

[135] She awoke at 6:50. She does not recall how she knows this. All she wanted to do was turn the television off and she was pressing buttons. Someone turned the television off and then she remembered hearing the sound of a condom being torn.

[136] Kayilasanathan lay beside her and tried to put his penis in her mouth. He was wearing a condom. He was touching her vagina with his fingers.

[137] She began searching for her belongings. She was still disoriented but found her pants, jacket, shoes and purse but not her underwear.

[138] Kayilasanathan kept asking her where she was going. Chauhan was in the other bed sleeping. Kayilasanathan yelled to Chauhan that she was trying to leave and asked Chauhan what he should do. P.W. testified that she took off the security lock and Kayilasanathan tried to hold the door closed but she moved the door and left.

[139] Kayilasanathan could have physically prevented her from leaving but did not.

[140] P.W. felt embarrassed and ashamed and put her hood up as she left the hotel. She had no difficulty walking but had difficulty finding her car. When she found it she texted her friend and told her she thought she had just been sexually assaulted. She said at this point she was still not able to judge what had just happened to her.

[141] The content of that text message is no longer available.

[142] On the way home she got two telephone calls were made to her phone by Chauhan. Minutes later, at 7:06 she got a text message from Chauhan, “Hey why did you leave in such a hurry? Please let me know when you are home safe. Sorry for passing out.” At 8:04 she responded, “I’m home.” He replied, “Hey glad you made it home safe. Had a great time last night.”

[143] She immediately went to bed and when she woke up, she still felt physically weak, shaky, confused and very tired. She ran into her father on the way to the bathroom and he asked her where she had been. She told him she had been at the home of her friends Pete and Kelly. (This was not true.) She said she lied to protect him. She felt terrible because she was the perfect child who had never done anything wrong in her life.

[144] P.W. said her father just accepted that as normal and that was the end of the conversation.

[145] She awoke a few hours later. She intended to go to study but when she went to the washroom she noticed marks on her body and experienced difficulty and pain going to the washroom. She was unable to have a bowel movement. She decided not to have a shower and to go to the hospital instead.

[146] P.W. said she would never have consented to sexual intercourse with Chauhan because where she comes from, marriage means something and he had kids. She was not physically attracted to him.

Trips to the Hospital

[147] P.W. attended North York General Hospital at 15:48 on February 13. She had an examination for sexually transmitted diseases and was given antibiotics, a “morning-after” pill and a prescription for Gravol. A blood sample was taken. She left the hospital feeling very nauseous.

[148] The doctor’s note indicates that she told him she had 5 to 6 drinks. She also told him, “she is insistent that she is not at all interested in pursuing legal action.”

[149] Later that evening, she told her family she had been sexually assaulted. She decided to tell police. She returned to York Central Hospital with police where a rape kit was administered. Some of the clothing she was wearing was seized for examination and a urine sample was taken for testing. Swabs from P.W.’s genitals, mouth and anus were also taken. While there she told the nurse that she had had 7 to 8 drinks on the evening of February 12th.

[150] The photographs taken at the hospital show that P.W. had scratches on her stomach, thighs and other areas and bruising on her leg.

Statement to the Police

[151] She gave her first statement to police a half hour after she got home from hospital.

[152] P.W. described her experience as vastly different from her previous experiences with excess alcohol. She maintained that the five drinks of alcohol she said she consumed were not enough to make her black out or feel hung over the next day.

P.W.’s Telephone and Text Messages

[153] P.W. spoke to Detective Luff after the fact about her phone. She says the police wanted to take her phone and take everything off of it. She resisted as she saw this as an invasion of privacy. She was under the impression he could have taken her phone. It was not seized.

[154] She showed them whatever they asked her to show them and agreed to come back at a later date to photograph the relevant communications.

[155] P.W. believes her phone was password protected at the time.

[156] The police were only interested in communications between her and Chauhan on February 12 and 13, 2011.

[157] She told them they could take photographs of the relevant communications between her and Chauhan.

[158] P.W. did not look at the message she sent to her friend just before her return home on February 13th so she cannot say if the message was garbled or clear.

[159] On June 12, 2012 when she told Detective Luff she was getting a new phone he told her not to get rid of her old phone. In January 2014 the issue of the phone came up again. This time he told her police would take all information off the phone but would only pass on information relevant to the incident on February 12 and 13, 2011.

[160] In a communication to police P.W. stated that, “It is possible I deleted messages – possibly to rid the reminder of what happened to me.”

Jason Cheung

[161] On February 12, 2011, Chauhan invited him out to Toronto to socialize and party. Cheung does not like going to bars and clubs so that ended the conversation. He was not told anything about the plans for the evening.

[162] Chauhan came to his condominium around 19:40 and they each had a glass of Scotch. About 12 minutes after his arrival Chauhan received a telephone call from Kayilasanathan.

[163] Cheung recalls seeing P.W. in group settings and she was intoxicated about a dozen times. When in that state, he observed that she became very emotional, argumentative and labile (which he identified as exhibiting fluctuating mood).

H.V.

[164] Chauhan called him and asked him to come out to party but he declined the offer. He was working early the next morning.

Expert Testimony that Pertains to P.W.

[165] The evidence of the expert toxicologist Karen Woodall applies to P.W. In addition to the evidence outlined at paragraphs 151 to 157 above, the following evidence is relevant to the case of P.W.

Dr. Karen Woodall

[166] If a 130 pound female took four drinks of alcohol within three hours and consumed them very quickly, she could suffer an alcohol induced blackout. This depends on tolerance to alcohol, whether the alcohol was consumed on a full stomach, and other factors.

[167] Dr. Woodall opined that,

It’s very, very hard to predict when somebody will suffer from an alcohol induced memory loss. However, it is also known that some people do seem to be more prone to suffering from it. So although in any situation it will be impossible to predict if somebody had suffered one, even with a drinking scenario and a blood alcohol concentration, the fact that somebody has suffered one in the past may suggest that they, you know, would also suffer from one in the future.

[168] P.W. testified that she has suffered an alcohol induced blackout before.

[169] Dr. Woodall testified that four drugs are most likely to be used to facilitate a sexual assault: GHB, Midazolam, Triazolam and Ketamine. The onset of each of these drugs when taken orally ranges from one to thirty minutes. The effects peak in approximately one to two hours.

[170] The effects of GHB last 2.5 to 5 hours, Midazolam 2 to 3 hours, Triazolam 4 to 5 hours and Ketamine 6 hours (though the effect of Ketamine would begin to decline after one to two hours). None of these drugs produce symptoms of seeing black while objectively being able to see. Midazolam would enable someone to walk. They would experience memory loss but not blindness. According to the toxicologist, GHB is not known to produce a hangover effect. The hangover effect of Midazolam and Triazolam is drowsiness, not nausea or hand tremor; given the timing of P.W.’s late onset of nausea, she would not link it to Ketamine.

[171] When presented with the symptoms described by P.W., Dr. Woodall stated that,

…the out of body experience and feeling like they were looking down on herself, both those descriptions sound like a dissociative anaesthetic and ketamine is the classic example of that type of drug, and those types of descriptions are very, very common if somebody is under the influence of a drug like ketamine.

[172] Woodall was asked whether any of these drugs could produce what P.W. described as having a persistent experience of seeing black, while objectively having the ability to see. She indicated that she has never seen any reference in the literature to these symptoms as a product of any of the drugs under discussion. In terms of ketamine, Woodall testified that given that the hypothesis in this case is that drugs were orally ingested, peak symptoms ought to have been experienced sometime around 2:30 a.m.

[173] If somebody was under the influence of a drug so they were incapable of moving properly and lifting their arms, they wouldn’t be able to send text messages.

[174] Urine samples were taken from P.W. approximately 24 hours after the alleged assault. No drugs were found except for diphenhydramine (found in Gravol) and quinine (found in tonic water). P.W. consumed both Gravol (when she felt nauseous the day after the incident) and tonic water.

[175] Hair testing was done by the Motherisk Lab and by Dr. Kintz of the International Association for Forensic Toxicology. No sign of drugs was found in the hair samples.

[176] This could mean the person never consumed a drug, it was eliminated by the time the sample was collected, it was there but the levels were too low to detect, or it was a drug which these facilities are unable to detect.

Joey Gareri

[177] Joey Gareri is an expert in analytical toxicology and performs drugs tests from hair samples. He has a note that when P.W. attended to see him she advised that she had had four drinks of alcohol.

[178] Gareri testified that in this case, the likelihood of detecting drugs from P.W.’s hair samples was low.

[179] No drugs were detected in the samples taken.

Sabia Malik

[180] Sabia Malik is a forensic biologist who analyzed the DNA samples given by Chauhan and Kayilasanathan and compared them with DNA found on P.W.’s bra and pants.

[181] Amylase, a protein found in saliva, was found on P.W.’s bra. Kayilasanathan could not be excluded as the major contributor. Chauhan could not be excluded as the major contributor and Kayilasanathan as the minor contributor of Amylase on the inside of PW’s pants. Amylaze was found in the front fly region, the seams of the front portion and along the seam of the back rear panel.

[182] No semen was found on any of the articles seized.

Detectives’ Evidence re P.W.’s Cellular Telephone

[183] Four text messages were sent from P.W.’s cellphone between 3:10 and 3:11 on February 13th, 2011. Two were sent to P.W.’s father and two to her mother.

[184] Another text message was sent to her friend at 7:21 on February 13, 2011.

[185] On November 20, 2012, Detective Percival asked P.W.’s father if he could recall getting a text message from his daughter at 3:12. He could not and said he had since owned four or five other phones. P.W.’s mother was never asked if she received any test messages from P.W. that morning.

[186] Luff said he did not think he needed to make inquiries about the context of the text message to P.W.’s friend because the friend was contacted by police and a statement was obtained.

[187] Detective Luff first met with P.W. on February 15, 2011. Luff did not seize her phone as he does not like to take a victim’s phone because it is a lifeline. Moreover, P.W. indicated that she had privacy concerns about handing over her phone and that she needed it. She told Luff the phone could be examined if necessary.

[188] On February 7, 2012 at a judicial pre-trial, Defence counsel sought the history of telephone calls, BBMs, or text messages on P.W.’s phone or, alternatively, production of the phone itself. Luff agreed that counsel was seeking the content of those messages. A production order was prepared. As of May 11, 2012 Luff was advised by his supervisor that text messages would no longer be on the phone.

[189] In June 2012 he changed the numbers to names and saw that the four emails were to P.W.’s parents.

[190] He did not focus on those messages until October 2012.

[191] Luff said he never seriously considered seizing her phone and it did not occur to him to ask for all messages from 21 hours on February 12 to 8 hours on February 13th, 2011. He indicated that P.W. was highly cooperative when she understood the relevance of what he was asking for.

[192] When he learned that text messages were sent to P.W.’s father and mother, her father was interviewed.

[193] Luff agreed he had no information about ATX Incorporated and did not know it was P.W.’s father’s workplace until Crown counsel googled it and advised him. He never asked when she deleted things or why.

[^1]: Given the Crown concession that the incident could not have taken place on the ex-cadet weekend of September 26 and 27, I disagree with the Crown’s assertion that what Chauhan was doing on the weekend of September 26 and 27 is either material or alibi evidence. Watt J.A. in R. v. Tomlinson, 2014 ONCA 158 at para 49, [2014] O.J. No. 930 held that,

An alibi is a claim that a person, usually a person charged with a crime, was elsewhere when the allegedly criminal conduct took place and thus it was impossible for him or her to have committed it...

Second, to constitute an alibi the supportive evidence must be dispositive of the final issue of guilt or innocence of the accused…

Third, alibi, as with any defence, justification or excuse advanced at trial, is subject to the air of reality test … there must be some evidence upon which a properly instructed jury, acting reasonably, could acquit, if the jury believe the evidence to be true.

The evidence about Chauhan’s visit to Winnipeg on the last weekend in September or the first weekend of October neither makes it impossible for him to have committed the drugging and sexual assault of A.C. nor is it dispositive of his guilt or innocence on these charges. As such, it is not alibi evidence and no adverse inference should be drawn against Chauhan on the basis that no notice of alibi evidence was given prior to trial.

[^2]: When she attended North York General Hospital, P.W. told Dr. Blicker that she had between 5-6 drinks;

When she attended York Central Hospital, P.W. told the Sex Assault Nurse that she had between 7-8 drinks;

When she provided a videotaped statement to Detective Luff and Detective Constable Kim Percival, P.W. told the officers that there was “no difference” between the amount she had to drink on the night of February 11th and the night of the 12th, and that on the night of the 11th she may have had as many as 11-13 oz. of alcohol; and

When speaking with Joey Gareri at Motherisk Labs, P.W. indicated that she had approximately 4 drinks.

[^3]: Amylase, a protein found in saliva, was found on P.W.’s bra. Kayilasanathan could not be excluded as the major contributor. Chauhan could not be excluded as the major contributor and Kayilasanathan as the minor contributor of Amylase found in the front fly region, the seams of the front portion and along the seam of the back rear panel. Sabia Malik gave expert evidence that Kayilasanathan’s saliva could be found on P.W.’s underwear if Chauhan licked her chest area and thereafter licked her vaginal area transferring Kayilasanathan’s saliva to P.W.’s underwear.