CITATION: R. v. Singh, 2016 ONSC 6786

COURT FILE NO.: 12-5124

DATE: 2016/11/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JATINDER SINGH

Kerry McVey, for the Crown

Solomon Friedman, for the Appellant

HEARD: October 26, 2016

on appeal from the conviction entered on november 6, 2013 and the sentence rendered on december 11, 2013, by Justice peter coulson of the ontario court of justice

C. mcKINNON J.

[1] The appellant was convicted of sexual assault arising out of events that occurred on Halloween night, October 31, 2012.

[2] The facts are simple. The complainant, J.L., a University graduate who had served as the editor of the University’s newspaper celebrated Halloween with some friends. At the time, she was living in a townhouse with her mother which was about a ten to fifteen minute drive from downtown Ottawa.

[3] She testified that she arrived at a friend’s downtown apartment at approximately 10:00 p.m. and had two drinks of vodka with cranberry juice, each drink having two ounces of vodka in it. She had worked as a waitress in a bar and could readily calculate the amount of alcohol that she poured for herself.

[4] After the party at the apartment the group left and headed to a bar on Elgin Street in the City of Ottawa, where they stayed until 1:00 or 1:30 a.m. While at the bar, J.L. had one beer. She then left the bar with four friends and another male friend who had met up with the group at the bar. She and this male friend had been on a couple of dates prior to that evening, and it was planned that he would drive her home.

[5] The group went to a local restaurant located a few blocks from the bar, where the group ate and then went their separate ways. J.L. did not drink at the restaurant. Her male friend was criticizing J.L., saying that her behavior with her friends was embarrassing. They left the restaurant and continued to argue. J.L. no longer felt comfortable accepting a ride home with her male friend, and told him she would go home by taxi. She promptly entered a taxi parked nearby. Her male friend was upset and was knocking on the window and talking, but she could not hear what he was saying.

[6] J.L. asked the driver to take her to her mother’s home and provided the driver with the address. She estimated that the cab arrived at her home at around to 2:00 to 2:30 a.m. She asserted that she was quite sober when she was in the taxi, although distraught, and cried from time to time. She was seated in the rear of the cab on the passenger side. She found the driver to be sympathetic and “very sweet.”

[7] Following a 10 to 15 minute drive, the taxi arrived at her mother’s residence. She realized she did not have a credit card to pay for the ride, and decided to leave her cellphone and purse in the taxicab as “collateral,” and went into the townhouse. She unlocked the townhouse door, walked up three floors to retrieve her credit card, returned to the cab, got in the back seat, and began to process payment for the taxi ride. As part of the payment transaction, she tipped the cab driver $5.00.

[8] The appellant told her, “Don’t be upset,” and she replied, “Guys are jerks.” Following the payment, the appellant suddenly grabbed the complainant by the arms and held her torso against the back of the front passenger seat. She could not recall whether he grabbed her wrists or her forearms. He kissed her on the lips at least twice saying, “It’s okay.” The complainant pursed her lips together as the appellant moved towards her. He kissed her “relatively forcefully” but “not enough to hurt me.” She was able to break free, lean back into the rear of the taxi and kick at the appellant’s chest.

[9] She fled the cab, cellphone in hand but leaving behind her purse, ran into her townhouse and slammed and locked her front door. She could hear tires “screeching away.” She immediately telephoned her best friend, who commented that she was lucky that nothing more serious had happened and told her to phone 911, which she did. The 911 call was recorded and made an Exhibit at the trial. During her conversation with the 911 operator, her doorbell rang. She was alone in the house. Her mother was out of town. She refused to answer the doorbell fearing who it might be. The 911 operator asked her to look out the window to see if she could observe anyone but she was too frightened to do that. In due course the police arrived.

[10] The complainant provided a written statement to police while she was still upset, crying, and shaky.

[11] Following the attack as described by J.L., she immediately arranged to have the locks of her mother’s townhouse changed and was required to replace her driver’s license, OHIP card, and debit card. They had been in the purse that she abandoned in the taxi.

[12] The trial proceeded on November 4, 5 and 6, 2013. The complainant testified for the full first day of the trial. The examination in-chief comprises 30 pages of transcript. The cross-examination was exhaustive and comprises 152 pages of transcript. The second day of trial was brief with only one witness being heard, being a member of the Ottawa Police Service who tendered in evidence a series of images recorded by a camera located at the front of the taxi cab, which exhibits the taxi driver and J.L. in the rear seat. Significantly, there is no video footage available for the assault described by J.L. The camera, for some unknown reason, was blocked at that specific point in time.

[13] At the conclusion of the second day of trial, the trial judge asked counsel what was anticipated on the third day of trial, and stated:

It’s my practice not to reserve judgment and to deliver judgments promptly after hearing the argument, when the argument is fresh in my mind.

[14] On the following morning, the trial judge heard full argument and gave immediate judgment, in brief compass.

[15] The appellant appeals both conviction and sentence. With respect to conviction, it is submitted that the trial judge’s reasons were insufficient and did not deal with the issues raised through the cross-examination pertaining to the reliability of the complainant’s evidence. With respect to sentence, it is submitted that the trial judge relied on irrelevant considerations in imposing the sentence on the appellant.

[16] For the reasons that follow, the appeal against conviction is dismissed and the appeal against sentence is allowed.

The Appeal Against Conviction

[17] Mr. Friedman (not counsel at trial) submits that the reasons for the trial judge in convicting the appellant were insufficient and did not deal with the defence raised at trial, namely the reliability of the complainant’s evidence.

[18] The law with respect to the sufficiency of reasons has been set out by the Supreme Court of Canada in R. v. Sheppard 2002 SCC 26, and repeated and expanded in R. v. R.E.M. 2008 SCC 51.

[19] Between paragraphs 15 and 35, R.E.M. summed up the case law that had developed since the decision in Sheppard, and affirmed the requirement that trial judges have a duty to give reasons for judgment, but expanded on the test for what constitutes sufficient reasons. R.E.M. mandates that courts of appeal must read the reasons in the context of the evidence, the arguments and the trial with an appreciation of the purposes or function for which the reasons are delivered. These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion in a “watch me think” fashion. It is rather to show why the judge made the decision.

[20] What is required is a logical connection between the “what” – the verdict – and the “why” – the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. There is no duty on the trial judge to expound on evidence which is uncontroversial or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.

[21] In Sheppard, it was not possible to determine what facts the trial judge had found. Hence, it was not possible to conclude why the trial judge had arrived at what he concluded – the verdict. It is helpful to recall the complete reasons for judgment in Sheppard. They read as follows:

Having considered all the testimony in this case and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.

[22] No reference was made to the facts. Nothing was said about the credibility of witnesses. Nothing was said about the law relating to the offence. There was nothing to tell the public why the conviction had been entered, and nothing to tell the court of appeal whether the trial judge’s findings and reasoning were sound.

[23] Inferences may be found from the record itself to find that reasons are sufficient. There’s no need to prove that the trial judge was alive to and considered all of the evidence or answer each and every argument of counsel. Reasons are sufficient if they are responsive to the case’s live issues and the parties key arguments.

[24] Between paragraphs 42 and 47, R.E.M. described the degree of detail required and determined that the degree may vary with the circumstances. Less detailed reasons may be required in cases where the basis of the trial judge’s decision is apparent from the record, even without being articulated. More detail may be required where the trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue. Trial judges are presumed to know the law with which they work day in and day out regard will be had to the general time constraints and press of business in criminal courts.

[25] Between paragraphs 48 and 51, R.E.M. deals with findings on credibility and concluded that the factors supporting or detracting from credibility may be clear from the record. In such cases the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[26] Paragraphs 52 to 57 of R.E.M. deal with the role of appellate courts in assessing the sufficiency of reasons. An appellate court must proceed with deference and must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether the trial judge appears to have seized the substance of the critical issues on the trial. If there is a difficult or novel question of law, it should ask itself if the trial judge recognized and dealt with that issue. No error of law should be found because the trial judge failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.

[27] In the end, appellant courts must ask themselves the critical questions set out in Sheppard: Do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellant review. To conduct meaningful appellant review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made and critical issues of law must have been resolved. If the appellant court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case, then and only then, is it entitled to conclude that the deficiency of the reasons constitute error in law. New trials are ordered to address the potential need for correction of the outcome of a particular case. Poor reasons may coincide with a just result. Serious remedies, such as a new trial, require serious justification.

[28] It is instructive to recall the facts in R.E.M. In that case, a complainant testified to eleven separate incidents of sexual assault by the accused, her step-father, when she was a child between the ages of nine and seventeen. The trial judge found the complainant to be a credible witness, that much of her testimony was not seriously challenged, and that she was not prone to embellishment or vindictiveness. The trial judge largely disbelieved the accused’s evidence, although at some points found it was not seriously challenged. However, the trial judge did not clearly explain which of the offences were proved by which of the eleven incidents on which evidence had been led.

[29] The Court of Appeal of British Columbia allowed the appeal, finding that the trial judge failed to mention some of the accused’s evidence, failed to make general comments about the accused’s evidence, and failed to reconcile his generally positive findings on the complainant’s credibility with the rejection of some of her evidence.

[30] The Supreme Court of Canada allowed the appeal and restored the guilty verdicts, finding that the three offences of which the accused was convicted found support in the evidence as to a number of incidents. This gave rise to a reasonable inference that the trial judge accepted some or all of the evidence and grounded the convictions on that evidence. While reasons drawing a precise link between each count on which the accused was found guilty, and the particular evidence that the trial judge accepted in support of that count might have been desirable, this omission did not render the reasons deficient on the record. It was enough that the trial judge recognized, where applicable, that the complainant’s credibility was a live issue. He did explain why he rejected some of the complainant’s evidence, noting that many of the incidents testified to happened many years before and that the complainant was a child at the time, which explains certain inconsistencies. Finally, the trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. When the record was considered as a whole, the basis for the verdict was evident. The Court of Appeal should not have substituted its own assessment of credibility for the trial judge’s view by impugning the reasons for judgment for not explaining why a reasonable doubt was not raised.

[31] The case at bar is far more simple than the case of R E.M. In this case, the complainant was a highly intelligent, articulate, convincing witness. The appellant did not testify. It was essentially a one-witness trial. A review of the record reveals that the trial judge was alive to the issues in the trial. Counsel for the accused subjected the complainant to a lengthy and highly detailed cross-examination upon which the trial judge commented.

[32] A reading of the record convinces me that the complainant was completely responsive to all questions put by the accused’s counsel and made every effort to be fair in her answers. Her memory of the events of the night comes across as surprisingly clear. I shall use just one example found at page 46 of the transcript of day one of the proceedings. Counsel for the accused was attempting to show that the complainant had more to drink than she had alleged. He asked:

Q. So you wanted essentially the socializing effects of alcohol but not to get drunk.

A. Absolutely, yeah.

Q. Okay, and you don’t drink at the (restaurant)?

A. No.

Q. You eat at the (restaurant)?

A. Yes.

Q. Is it fair to say you don’t recall what you had to eat?

A. I do recall, actually.

Q. What did you have?

A. A club sandwich with a fried egg on it and poutine on the side.

[33] Exchanges such as this abound through the record.

[34] Counsel for the accused informed the trial judge that the case was “not so much based on credibility, although there are hints of some credibility issues that I will address, but more specifically, the main thrust of the argument, Your Honour, is reliability.” The trial judge responded, “What would you say was unreliable about this young woman’s story, or her reaction to what she says happened in the car?” Defence counsel made much of the fact that the complainant testified that she used her PIN number in order to pay the driver for the fare, when in fact the record discloses that the PIN numbers are not used on the terminals for the particular taxi company in question, but rather signatures are required. A signature similar to that of the complainant’s appears on the receipt. Again, I emphasize, a receipt that includes a $5.00 tip. The complainant’s evidence was that up until the completely unwanted advances made by the appellant upon her, everything was “innocuous,” and she did not particularly take note of her surroundings, nor the appearance of the accused, nor what they specifically discussed.

[35] The trial judge was live to the issue of the PIN number. At page 35 of the transcript of the submissions of counsel the trial judge commented, “The point is, does one remember precisely how it worked on any particular transaction?”

[36] Much was made of the time sequence photographs of the taxi drive. It is clear that the appellant has a beard. The complainant recollected a moustache in the initial statement to the police. At trial she stated the driver had facial hair. The trial judge was live to this issue, and during the course of argument observed that he himself has a moustache and that that is what his wife notices the most when he kisses her. At page 16 of the submissions the trial judge stated, “He’s got facial hair. … without drawing lines between the chin or the cheeks or above the upper lip. Yes, he’s got lots of facial hair. I would have – I would have thought she got that right… So maybe kissing a man with a moustache, it’s the moustache that one remembers.”

[37] Counsel for the accused at trial emphasized the fact that the complainant was unsure as to how the appellant grabbed her, whether by the wrists or by the forearms. Her answer was that it had happened so fast she couldn’t exactly recall. It would seem that this answer is completely consistent with a witness who is trying to be honest.

[38] During the course of the submissions of counsel for the appellant between pages 21 and 23 of the transcript, the suggestion is made that she had been drinking more than she admitted to, and had mistaken and misinterpreted the actions of the appellant. The trial judge intervened and stated:

It seems clear to me that this young woman is indicating that she didn’t know whether he had intentions of more than simply stealing a kiss, and I, perhaps shouldn’t use the expression ‘stealing a kiss’ because that makes it all seem rather innocuous. This young lady took it far more seriously than that. Look what she did afterwards. She promptly went in the house, she promptly called a friend, she took the friend’s advice to call 911 and then Crown counsel went to great pains to have me hear on the phone on the 911 call. This was a young woman who was very distressed. Now, was she distressed because she misunderstood what your client did, and didn’t need to be distressed, or was she legitimately distressed? Well, that causes me to reflect on who is she? She’s intelligent, well-educated, and not a mere youth, but a mature young woman. That diminishes the prospect of mistake, I think.

[39] Counsel for the accused pressed his argument that the complainant was mistaken as to the sequence of events of the assault upon and the trial judge stated, “I’m unimpressed.”

[40] This is a direct comment upon the reliability of the complainant’s testimony, and not its credibility. The suggestion that the trial judge did not deal with the reliability of the complaint’s evidence is betrayed by a thorough reading of the transcript of the exchange between the trial judge and each counsel.

[41] Much was made by counsel for the accused with respect to whether the accused had “tried to kiss” her or actually kissed her twice, as she testified. The trial judge in his reasons for decision dealt directly with whether she had mistakenly believed that appellant had kissed her.

[42] At page 51 of the reasons of the trial judge he states this:

In my view, Ms. J.L., who was then not a youngster, had completed University, and was 22 or 23, was not a young woman who would, in my view, mistake the intentions of a man trying to kiss her. If when she leaned into the front seat to use her credit card to pay for the fare, the accused had given her a peck on the cheek, that would be stealing a kiss. But it goes further than that by quite some measure, in my view. And I am satisfied that this man did restrain her and that he did kiss her, and that she didn’t imagine either the restraint or the kissing. She even talked about how she kept her lips shut, or together.

Where there are differences between her statement and her evidence, they are not about the essential act of restraining her and kissing her, or even if we diminish the kissing to trying to kiss her, it happened, that it had been a stolen peck on the cheek, I can’t imagine that a young woman, who, though young, is mature, well educated, and intelligent, would be so distraught as to leap from the car leaving her purse. … She left her purse, bounded back into her house and shut the door and locked. …I see no possibility, and have no doubt that this young woman was restrained in the taxi for a sexual purpose, touched and kissed, and that it was not the mere stealing of a kiss.

[43] In my opinion, these comments of the trial judge bear directly on the reliability of the testimony of the complainant and not her credibility. Counsel for the accused did not dispute the credibility of the complainant.

[44] Counsel for the accused pressed the issue as to where the complainant was restrained. In her handwritten statement, the complainant stated that the driver had grabbed her wrist forcefully and held her back against the back seat. At trial, she testified that she had been restrained against the front passenger seat. It is obvious from a review of the record that she clearly meant the back of the front passenger seat. In my view, this alleged discrepancy is of no account.

[45] With respect to the issue raised by counsel for the accused that initially the complainant agreed that she may have told her friend that the driver “tried to kiss” her. Indeed she told that to the 911 operator when she said, “He grabbed me, he held me down. He was trying to kiss me and I screamed.” I have already alluded to the trial judge’s comments with respect to the difference between kissing and trying to kiss. It is abundantly obvious that the complainant meant that the appellant was “trying to kiss her” against her will. In other words, the kiss or kisses were not consensual. The trial record provides convincing confirmation of that fact.

[46] During the final submissions of Crown counsel, the trial judge raised a number of inconsistencies pointed out by defence counsel. The trial judge asked questions about the alleged kick, the PIN number, and other issues, all of which were fully answered by Crown counsel, obviously to the satisfaction of the trial judge.

[47] Returning once again to the issue of intoxication, the trial judge was alive to the issue. It was the subject of significant comment by both counsel. Crown counsel at trial dealt specifically with the issue of inebriation, pointing out that the 911 call does not bear out any suggestion of intoxication. There is no slurring. The complainant is coherent, responsive and articulate. Crown counsel also pointed that the complainant left the car and returned in less than two minutes, during which time she was able to retrieve her key out of her purse, get out of the car unassisted, walk up her driveway, go to the third floor of her home where her MasterCard was located, find her way back down, and return to the cab unassisted in less than two minutes. Crown counsel reminded the trial judge that the complainant had told the police detective in her videotaped statement that, “Yes, I was drinking but I was perfectly capable.” The videotape evidence bears out this assertion. During the course of the appeal the Court had occasion to listen to the audio tape of the 911 call and it can be stated with confidence that the complainant was not intoxicated during the course of the telephone call.

[48] The trial judge was correct in using the 911 call in considering the demeanor of the complainant during the 911 call in assessing her reliability. Post-event demeanor or emotional state evidence is admissible and may be used to support a complainant’s evidence of a sexual assault, see R. v. Woolam, 2012 ONSC 2188, per Durno J.; Murphy v. The Queen, 1976 CanLII 198 (SCC), [1977] 2 S.C.R. 603, at p. 617; R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.); R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397, at para. 33; R. v. Arsenault, 1997 CarswellOnt3215 (C.A.), at para. 9; R. v. Clark (1995), 1995 CanLII 1474 (ON CA), 87 O.A.C. 178 (C.A.), at para. 7.

[49] In sum, I am completely persuaded that the trial judge was alive to the issues referring to the reliability of the evidence of the complainant. Her reliability was seriously challenged and each challenge, in my view, was rebuffed to the satisfaction of the trial judge. It seems absolutely impossible, in my view, that this young, intelligent, mature, well-spoken and fair-minded individual could have possibly mistaken a peck on the cheek that would cause her to leave her purse in the car, flee into the home, lock the home, telephone her friend, telephone 911, and have police attend in order to make a statement; and thereafter change her locks. As the trial judge correctly observed, she was not mistaken as to the conduct of the appellant. The complainant had absolutely no motive to lie.

[50] Given the state of the record, the exchanges that occurred between counsel while making submissions to the trial judge, together with the reasons of the trial judge, the appellant could not have had any doubt whatsoever as to why he was being convicted, and consequently the requirements of Sheppard and R.E.M. have been fully satisfied in this case.

[51] For these reasons, the appeal against conviction is dismissed.

The Appeal Against Sentence

[52] During the course of the sentencing of the appellant, the trial judge made numerous references to the fact that the appellant was a Sikh. Counsel for the appellant had provided the judge with a book of letters of reference, each speaking to the good character and background of the appellant, and sought a conditional discharge together with twelve months of probation and fifty hours of community service. Alternatively, he asked that the Court impose a conditional jail sentence. The Crown asked the court to impose a period of incarceration in the range of thirty to sixty days to be followed by nine months of probation. During the submissions of the Crown, the trial judge interjected and commented on the race and religion of Mr. Singh, stating at one point:

I am troubled in one respect that the Sikh community take some – a hit here. Sikh taxi drivers specifically take a hit here, and that’s not fair to them.

[53] At another point he stated:

In addition to the fact that all taxi drivers are diminished, all Sikh taxi drivers are diminished, it hurts all of them. That troubles me, and there’s a potential for a racial side to this. I am really uncomfortable about that. But it’s there.

[54] Prior to hearing the submissions of counsel, the trial judge had commented, “It might be my duty to sentence you to as much as 90 days because your conduct is to be condemned,” and referenced Mr. Singh’s ethnicity as a reason for imposing this sentence, saying:

The damage that I spoke of that troubled me with regard to Sikh taxi drivers, you have done to your fellow Sikhs, that damage. They do not deserve it, and I hope that people will not approach a Sikh and feel distrustful; they ought not to. I got to know a number of them riding in their taxis around in Delhi and got to chat with them at quite some length about their very fine country and got to like several of them. But here in Ottawa, there may be those that do not treat them as well as they should.

[55] At this point in the sentencing the appellant had a health issue and had to be taken to hospital. The sentencing resumed on December 11^th. Once again, the trial judge referenced the appellant’s religion and skin colour. He stated:

I was just adding another remark, a rather sensitive area, there is a racial overtone. You are a Sikh of swarthy complexion. We do not want people saying, ‘I won’t get in a taxi driven by a dark-skinned person.’ That is not fair to the driver who is trying to make a living this way. We do not want people reacting that way either. Therefore, something firm must happen to you…

[56] The judge then imposed a sentence of thirty days imprisonment, placed him on probation for a period of twelve months, and imposed the mandatory DNA order as well as the mandatory Sex Offender Information Registration Act order for a period ten years.

[57] In my opinion, with which Ms. McVey agrees, the trial Judge, while perhaps well-meaning, may have used the ethnicity of the appellant in fashioning what the trial judge believed to be the proper sentence. Although the sentence in the circumstances seems very lenient, it cannot be upheld due to the concerns with respect to the trial judge proceeding upon a breach of the appellant’s Charter rights to be treated equally to any other accused.

[58] For these reasons, the sentence of the trial judge is vacated and a new sentence hearing shall be held on a date to be scheduled by the trial coordinator.

C. McKinnon J.

Released: November 24, 2016

CITATION: R. v. Singh, 2016 ONSC 6786

COURT FILE NO.: 12-5124

DATE: 2016/11/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

JATINDER SINGH

REASONS FOR JUDGMENT

C. McKinnon J.

Released: November 24, 2016