R. v. Shah, 2016 ONSC 903

CITATION: R. v. Shah, 2016 ONSC 903

COURT FILE NO.: CR-15-70000324-0000

DATE: 20160205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBERT SHAH

Defendant

Lindsay Kromm, for the Crown

Amanda Taylor, for the Defendant

HEARD: February 1-2, 2016 at Toronto

Michael G. Quigley J.

Reasons for Judgment

[1] Robert Shah is charged under an indictment containing seven separate counts of robbery and related offences arising out of those robberies against three separate complainants. All of the offences took place on October 22, 2014.

[2] Mr. Shah is charged with having robbed Debbie Lohnes, A.B., and Imelda Oller. In addition, he is charged with having sexually assaulted Ms. A.B. and having committed an aggravated assault on her by wounding. He is also charged with assault causing bodily harm against Imelda Oller. There was one further charge of confining Imelda Oller, but it was resolved by being withdrawn as part of the partial resolution of this matter.

[3] On Monday, February 1, 2016, after being arraigned on the first six charges, Mr. Shah pleaded guilty before me to having robbed Debbie Lohnes, to having robbed and committed an aggravated assault on A.B., and having robbed and committed an assault on Imelda Oller that caused her bodily harm. In light of these pleas, the matter was close to resolution. However, Mr. Shah would not plead guilty to having sexually assaulted A.B. and the Crown would not abandon or withdraw that charge.

[4] As a result, before reading in the agreed facts relative to the other five charges to which the accused has pleaded guilty and convicting him of those offences, a trial was held relative to count three, that Mr. Shah sexually assaulted A.B.. There were three witnesses on that trial: the complainant, A.B., and a passerby named Victor Edwards who lived in the neighborhood who was walking along D[…] towards the subway station at that hour of the morning and witnessed some of what transpired. The accused, Robert Shah, testified in his own defence. While he pleaded guilty to the other charges against him, Mr. Shah denies having sexually assaulted Ms. A.B..

[5] The case relies upon and falls to be determined based on the analytical methodology set out in the Supreme Court of Canada's decision in R. v. W. (D.). The question on this trial is whether Mr. Shah is guilty of the sexual assault charged against him.

Summary of Evidence

[6] A.B. lived at B[…]., one block south of D[…] Avenue. She was a student at the University of […] at the time of the offence, and now works as a teacher in English as a second language. She has a Masters degree from University of […]. She graduated in June of 2015.

[7] She regularly used the subway in Toronto and would go to the D[…] subway station to catch the train. She would walk up past the apartments on D[…] Avenue, through a laneway that connected D[…] and B[…] Ave, and then would walk west on the south side of the D[…] Avenue sidewalk towards the D[…] subway station. On October 22, 2014, she was walking along the street at 5:40 a.m. intent on catching the subway at 5:50 a.m. She had not had a lot of sleep the night before, as she was preparing for a presentation that she had to give at the University of […] that morning. She was heading towards the subway station to catch the train that would take her towards the bus station for the trip to […].

[8] As she walked along, she saw a male who she described as loitering. He was located near one of the apartment buildings on the south side of D[…] Avenue approaching Yonge Street. He was on or near the sidewalk, and she had a feeling of discomfort as she walked by him, and continued west on D[…]. Just after passing him, he grabbed her from behind and knocked her to the ground. He pulled her hair and was holding her down. The man she saw was the defendant, who she identified as the individual sitting in the prisoners box in this case. I note that identification is not an issue, although Ms. A.B.’s difficulties in identifying the accused in a photo lineup four hours after the assault took place is argued by defence counsel to undermine the reliability of her evidence.

[9] The accused was on top of her. She screamed "what do you want". He started punching her in the face with a closed fist. At trial she testified that he punched her eight or nine times. Previously, at the preliminary inquiry, and when she initially spoke to the police, she thought it was six or seven times, but frankly she could not be precise because of the speed of the attack and how quickly it transpired. The complainant was fully conscious throughout the attack. She was exceptionally frightened. She offered her assailant money. She did not know what he wanted. He was banging her head on the sidewalk and punching her in the face and telling her to shut up and keep quiet. She asked him if he wanted money and he said "yes give me the money". When she was attacked, she had been carrying a knapsack, which fell some feet away from her when she was pulled to the ground from behind. She reached for her backpack, opened the zipper, and took out a $20 bill and a $10 bill to give to the assailant.

[10] The assailant responded in anger. He said "only $30? Is that all? At the same time, she said that he told her "give me more money or get naked". Those were his exact words, she said, and she was very frightened. She offered him her debit card, and she had a recollection of fearing that he was going to rape her, and saying to him "anything but that."

[11] In the meantime, while this was transpiring, after she gave him the initial $30 but before she gave him her debit card, she said he started to pull her pants down a few inches. He did not undo the zipper that was the side of the pants, and his efforts were dedicated to pulling at her waist to try and pull the pants down but she did not think they went down more than a few inches. At the same time, however, he was repeating "give me more money or get naked." When she gave him her bank debit card, he started to scream at her to give her the PIN number. She gave him a number, and then he took the card and started to walk away. She said he was standing a few steps away from her at that time.

[12] Ms. A.B. thought that the assailant repeated the phrase “give me money or get naked” more than once, but she said she couldn't be sure that he tried to pull her pants down more than once. It was after she gave him money, and after she gave him her bank card, that two passersby walked by. The first was a very large man, Caucasian, and he did not look or ask if she needed assistance. Mr. Victor Edwards was the second man. He testified that he initially thought that it was an altercation between two people who were in a relationship. He had not seen the two of them until he was quite close to them, at which point he saw a man standing with his back towards the sidewalk, holding a bank card in one hand and a credit card in the other. Mr. Edwards was evidently close enough to be able to see and identify the cards as bankcards issued by CIBC, and definitely not TD. This was as the man was yelling at the woman who was on the ground to give him the PIN number for the card. Mr. Edwards testified that he heard nothing before that. Seconds later, after he had walked past by two or three metres, the woman was up off the ground, came up behind him, and he realized that it had not been an argument between two people involved in a relationship, but that the woman had been the subject of an attack of some kind. It was Mr. Edwards who called the police on 911 and remained with her until they arrived.

[13] Returning to the details of the alleged sexual assault, Ms. A.B., initially thought that the first time her assailant pulled at her pants was before she gave him the $30. She initially thought he tried to pull her pants down, and then she gave him money from the backpack and then he was unhappy and at that point said it was not enough and issued the threat for her to get naked. In cross examination, however, while I regarded as inconsequential, she reversed the order of the wording and said that the defendant threatened her to "get naked or give me money". What she didn't alter her evidence on, however, was that he was tugging on her pants. She did not know if he used one hand or two. She thought he told her to get naked more than once. She also acknowledged in cross-examination that the threat was made and the pulling was done after she gave him the initial $30, but before she gave him her bank card.

[14] Plainly, there was a difference in her evidence about the assault itself, given that she reported she was punched in the face nine or ten times at trial but only told the police officers that it was six or seven times when she gave her initial statement and at the preliminary inquiry. Stated simply, she told defence counsel she wasn't too sure of the number. Is not surprising given that in the course of several minutes, Ms. A.B. took a number of vicious shots to the head and had her head banged down the sidewalk numerous times by an obviously vicious and uncaring assailant. She thought the time elapsed between when she gave him the money and the bankcard was about a minute and she acknowledged to Ms. Taylor in cross-examination that was during that period that he was tugging on her pants she was equally certain during that period he “repeated the threat words several times”, "give me more money or get naked!"

[15] The complainant candidly acknowledged that the assailant did not try to kiss her, did not grope her breasts, and did not grab the zipper on her pants. He did not use any weapons. She acknowledged that there were details she does not remember. She does not recall which hand the assailant used to try and pull her pants off or whether he used two hands. She looked him straight in the face and claimed she knew what his face looked like, she remembered he had facial hair, but she could not remember the detail of what kind. It should be remembered that it was 5:55 in the morning when all of this took place in a period of several minutes as the complainant was rushing to the D[…] subway station to try and catch the train that would take her to […] to enable her to deliver the presentation at the University of […] that she was obliged to give that morning.

[16] It should also be acknowledged that the complainant was unable to identify the accused in a photo lineup that was conducted four hours after the incident took place, in connection with her reporting to the police. The photo lineup included a photograph of the accused, but she did not identify the picture of her assailant, but instead pointed the finger at two other photographs. I will have more to say below about the relevance of that to the overall reliability of her testimony.

[17] Finally, to her credit, Ms. A.B. plainly acknowledged in response to defence counsel's question that she had difficulty identifying the accused during the photo lineup, and that she could have been wrong about some of the details of the investigation, but that there were no other details she was unsure of.

[18] She plainly remembered having her headphones on as she walked along the street and that they came out and fell several feet away as she was assaulted by that early morning assailant. She also plainly remembered and testified to feeling the cold of an early late October morning against her skin at her waist area as her assailant pulled her pants down several inches from her waist while threatening her to “give him more money or get naked.” That was the totality of the Crown's evidence.

[19] While the accused testified, he was not the first defence witness to do so. First, defence counsel called Mr. Victor Edwards. As noted, he testified that he arrived on the scene and saw the altercation take place between the assailant and the female on the ground, but it was only at the point in time where he could see the assailant holding a bank card in each hand, and yelling at the woman to tell him the PIN number for those cards.

[20] He heard nothing of the words that were exchanged between the assailant and the complainant before that. He did not see the accused pulling on the complainant’s pants. He simply recalled seeing the events as I previously noted having the complainant come up behind him as her assailant fled the tell him that she had just got robbed and beaten by him, that it was not a relationship situation, and that is when he called 911. Essentially Mr. Edwards acknowledged that he couldn't really see any of the interaction that took place between the two of them, being distracted and focused at 6 o'clock in the morning on simply getting to the D[…] subway station, not expecting someone to be robbed on the street at that time, and therefore not having his antenna out to be alert for such altercations or exchanges.

[21] I turn now to a summary of the evidence of the accused. Mr. Shah lived at 111 D[…] Ave., between Mount Pleasant and Yonge Street. That is an area of Toronto that has many apartment buildings, and many of the individuals who live in that area hustle along D[…] Avenue in the early hours of the morning to get to D[…] subway station to get to work and go about their day’s business.

[22] Mr. Shah’s birthday was October 21, 2014. He turned 33 years of age that day. He went out that evening to a club that he was associated with located on Spadina Avenue and had a number of drinks with friends or associates. He left that club when it closed at 3 o'clock in the morning.

[23] Without belaboring his evidence, it will suffice for present purposes to say that Mr. Shah claims to have a perfect memory in his testimony before me of everything that transpired the evening before and in the morning during the time when the assault took place. He claimed to have a distinct recollection of having gone to the club to celebrate his birthday with friends and associates, to having had 10 to 15 shots of whiskey, to having left the club at 3:00 a.m., to having returned to his apartment on D[…] Avenue in a cab, to have a smoke of some pot at his apartment, to have been waiting for someone to come and see him, and then somehow to have gotten out to the side of the street on D[…] Avenue where he then sequentially perpetrated three robberies and significant assaults on three separate women in the very early and still dark hours of October 22, 2014.

[24] In his evidence before me, Mr. Shah protested that he only now wanted to tell the truth, that he had been forthright and truthful in pleading guilty to the other charges against him, but he insisted he was simply robbing Ms. A.B.. He said “I was robbing her, nothing else." He denied having said anything about telling her to get naked if she did not give him more money. He was adamant that he had not assaulted her sexually in any way. He acknowledged that he committed an aggravated assault on her, as Ms. A.B.’s extensive facial injuries, including a broken nose, attested to the viciousness and the repeated infliction of blows to the severity of his attack on an unsuspecting defenceless pedestrian simply trying to make her way quickly to the D[…] subway station to get on with her day's activities.

[25] In spite of this evidence, however, what was plain before the court was the entirely inconsistent and contradictory statement that Mr. Shah gave to the police the same morning he was arrested, some hours after these assaults took place. It is important to note that he was given his rights to counsel, permitted the opportunity to consult with duty counsel on the phone, when his own lawyer, Ms. Taylor, could not be reached, and that he then participated in a lengthy video statement, showing no reluctance at any time to continue with it, at no time requesting that the interview be brought to an end, and in which he gave evidence entirely contradictory to the testimony he tried to present before me at trial.

[26] Not only that, he put forward the proposition that unlike testifying under oath in court, he didn't think there was any expectation that he would be obliged to tell the truth to the police officers who were interviewing; he didn't think he was under that same obligation to tell the truth at that time. So that, he said, was why he now claims that everything that he said to the police officers during the course of his statement was a lie. There was some quibbling between crown and defence counsel about whether Mr. Shah lied to the police officer 23 separate times, or whether he simply told the same lie to the police officers 23 times when he said he had no recollection whatsoever of anything that happened from the time that he was at the club the night before on his birthday, when he claimed he probably drank a full bottle of vodka, not just the 10 or 15 shots he admitted to in his testimony before me, and had no recollection of how he got home or anything that happened thereafter until later the next morning after the assaults and robberies had taken place.

[27] So essentially, with extensive voluntarily pleading about how he would most certainly have told the truth then if he had understood that he needed to, he assured me that he was telling the truth before me in his testimony in court today, and adamantly but unconvincingly insisted that none of these sexual assault related details attested to the evidence of the complainant were true.

Analysis

[28] The methodology for analysis in a case like this, where the accused testifies in his defence, is mandated by the Supreme Court of Canada's decision in R. v. W. (D.). The test in W.(D.) requires that if I believe the evidence of the accused that he did not commit the offence with which he is charged, or other defence evidence that would exculpate him, then he must be acquitted. However, even if I do not believe his evidence, or other exculpatory defence evidence, if I am left in the state of reasonable doubt by it, then I must acquit. Finally, even if I do not accept or believe his evidence and I am not left in a state of reasonable doubt by it, I may convict him of the alleged offence only if I'm satisfied beyond a reasonable doubt on the rest of the evidence that the Crown has proven the elements of the offence beyond a reasonable doubt.

[29] Before stating my conclusions relative to the evidence of the defendant, I wish to make specific mention of an important point that frequently arises in cases such as this. In most cases where sexual assault of this kind is alleged, and in circumstances where the defendant testifies, the only evidence before the court is typically the evidence of the complainant and the evidence of the accused. Numerous cases contain appellate guidance and admonishment that the determination of the tests under W. (D.), and the third test in particular, must be made on the entirety, the whole of the evidence, as is the case in the assessment of evidence relative to charges in any criminal case. In cases of this kind, however, the problem arises that there are frequently two entirely competing “versions” of events, but the trier of fact is not permitted to simply choose between those two versions. Rather, appellate case law makes plain that the determination of whether the elements of the offence are proven to the criminal standard must take account of the entirety of the evidence, and cannot simply focus on small particular points which might otherwise have persuasive value in the mind of a trial judge and cause them to prefer the evidence of one witness over that of the other.

[30] Happily, in R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (O.C.A.), Doherty J.A. provided some common sense guidance to triers of fact faced with the frequently seeming impossibility of the test and conundrums imposed by W. (D.). In the context of the adequacy of reasons, Macdonell J. of this court helpfully expands on Justice Doherty’s reasons in R. v. Betata-Amaya, [2011] O.J. No 5136 (S.C.J.) at paras. 49-52 in language that I believe bears repetition in full:

49 It is well-established that a trial judge who convicts an accused has a duty to explain his or her reasons for doing so. Where the accused has testified and has asserted innocence, the accused is entitled to know why his or her testimony was rejected.

50 That is not to say that in any case where an accused testifies and denies the allegation of the Crown, the accused must be acquitted unless the trial judge can point to something about the accused's testimony itself or the manner in which it was given that supports a conclusion that the testimony is untrue. This was made clear by the Ontario Court of Appeal in R. v. (D.)J.J.R. (2006) 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252. In that case, the appellant was convicted of sexually assaulting his nine-year-old daughter after a judge-alone trial in which they were the only witnesses. The trial judge acknowledged that the appellant was articulate, responsive to the questions asked and unshaken in cross-examination. He also acknowledged that there was nothing in the substance of the appellant's evidence or in the manner in which it was given that suggested that it was untrue. However, he rejected it because it was contradicted by the testimony of the complainant, who he was convinced was telling the truth. On appeal from conviction, the appellant argued that the trial judge's failure to point to some reason for rejecting his testimony constituted reversible error. That submission was rejected. Speaking for the Court of Appeal, Justice Doherty stated, at paragraphs 53-54:

The trial judge rejected totally the appellant's denial because stacked beside [the complainant's] evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

On the trial judge's reasons, the appellant knew why he was convicted. His daughter's evidence, combined with the credibility enhancing effect of the diary, satisfied the trial judge of the appellant's guilt beyond a reasonable doubt despite the appellant's denial of the charges under oath. [emphasis added]

51 The principles articulated by Justice Doherty in (D.)J.J.R. were applied by the Court of Appeal in R. v. C.F., 2010 ONCA 424, [2010] O.J. No. 2499, at paragraph 9, and in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, [2010] O.J. No. 1046, at paragraph 77. They were also applied by McFadyen J.A. in her concurring judgment in R. v. Stamp, 2007 ABCA 140, [2007] A.J. No. 442 (C.A.), at paragraph 48. In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, Chief Justice McLachlin, speaking for a unanimous Supreme Court of Canada, albeit without reference to (D.)J.J.R., relied on the same principles to affirm the adequacy of the trial judge's reasons for conviction. She stated, at paragraph 66:

Finally, the trial judge's failure to explain why he rejected the accused's plausible denial of the charges provides no ground for finding the reasons deficient. 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. This explains why he rejected the accused's denial. He gave reasons for accepting the complainant's evidence, finding her generally truthful and "a very credible witness", and concluding that her testimony on specific events was "not seriously challenged" ... It followed of necessity that he rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt. [emphasis added]

See also R. v. Sheppard, 2002 SCC 26, at paragraphs 46 and 55, and R. v. Dinardo, 2008 SCC 24, at paragraph 32.

52 To be clear, the passages cited from (D.)J.J.R. and R.E.M. do not constitute an invitation to trial judges to reduce the resolution of factual disputes between complainants and accused persons to simple credibility contests. As Justice Doherty observed in (D.)J.J.R, at paragraph 37, "in some circumstances, a trial judge's failure to adequately explain the reasons for rejecting an accused's denial will make it impossible for the appellate court to satisfy itself that the conviction was based on an application of the correct legal principles to findings of fact that were reasonably open to the trial judge..." The context within which the rejection of an accused's testimony occurs will be a critical consideration in the assessment of the adequacy of the reasons provided for the rejection.

[31] This, however, is not a case that presents that kind of nuance or difficulty. This is not a case where the accused “was articulate, responsive to the questions asked and unshaken in cross-examination”, or where I have concluded as the trial judge did in that case that there was nothing in the substance of the appellant's evidence or in the manner in which it was given that suggested that it was untrue.

[32] In contrast, here I totally reject the defendant’s evidence that he was telling the truth before me and telling nothing but lies as he claims he was in giving his police statement shortly after his arrest in 2014. In his evidence, the accused testified that he lied to the police. He told them that he had drunk a full bottle of vodka the evening before, because he wanted the police to believe that he did not remember anything. He then attempted in an “apologetic manner”, to admonish himself for having lied when he gave his statement. He claims he did not know that he needed to be honest or to tell the truth to the police at that time. He claims he thought it was different than testifying in court. He engaged in self-remonstration saying that he only knows now that he had an obligation tell the truth at that time, and that if he could go back and give his statement again, he would have told the police the truth that he claimed he was now telling me.

[33] The accused insisted that the drinking did not affect his memory. He claimed he remembered every aspect of the early morning hours, when he robbed and assaulted two other victims in addition to this complainant, and that he remembered all of the details of this assault and robbery, including the time he left the nightclub, how he got home, what he did when he got to his apartment, and his evidence of then going out onto the street to stand and wait for the three victims that he robbed and assaulted that morning. Mr. Shah testified when challenged that the sexual assault of the complainant never happened, that he never tried to tug on her pants, that his memory is good, and that there was no possibility that the 20 shots of vodka or other alcohol that he consumed the night before caused his memory to be bad.

[34] When he gave his statement, however, first he acknowledged that he was read his rights to counsel, that he tried to contact Ms. Taylor but she could not be reached, and that he spoke to duty counsel instead. He indicated to the officer that he was content to give a statement after speaking to duty counsel.

[35] He then proceeded to give a statement in which he indicated in response to a multiplicity of questions that he could not remember anything that happened from the time that he left the nightclub the night before until after the robberies and assaults had been perpetrated. Whether as Crown counsel sought to portray it, Mr. Shah lied in his statement on 23 separate occasions, or whether as Ms. Taylor prefers to characterize it, he simply told the same lie 23 times in the course of giving that statement is frankly of little concern to me.

[36] He claimed in his testimony before me that he wanted the interview to be over and that he wanted the police to believe that he had no memory. He continually told them he remembered nothing from the time that he left the nightclub until later that morning after the assault and robberies had occurred, but it is also noteworthy that he did not once ask to have the interview terminated until he could speak to his own lawyer and did not once ask to again speak to duty counsel. This evidences no reluctance at least in the text of the interview (I did not actually see them videotape) to continue answering the questions posed to him by the officers, and indeed the interview carries on for the period of time during which enough questions were asked that Mr. Shah was able to, as he acknowledged under oath to me, lie 23 times to the police officers who were questioning him, because, if you can believe it, he claimed that he did not know that he needed to tell the truth when he was giving a statement to the police.

[37] The defendant needs me to believe his evidence at trial, tailored as it was to fit in with what he perceives to be the imperfections of the complainant’s evidence, and the helpful points offered by Mr. Edwards. He needs me to believe that if he really was as drunk as he told the police officers that he was in his statement, and then went home and smoked a joint before going out on the street to lie in wait for the women he assaulted, it would be reasonable to conclude that he might well not remember the details of the assaults and the robberies. In particular in relation to this charge, that he might not remember whether he had made the threat to this complainant to "give [him] more money or get naked", and had tried to pull down her pants as she testified.

[38] The defendant said to me as he testified that he must have remembered all of those events because he would not have pleaded guilty to the other charges if he did not remember having committed those offences and would not have wanted to come forward and tell the truth, own up to what he had done and take responsibility for it. The problem with this alleged profession of remorse and confession is that Mr. Shah, having received full disclosure from the Crown, including, as I understand it, videotape evidence showing him perpetrating the offences, may well have decided to plead guilty to the other offences, advised as he has been by his counsel, Ms. Taylor, not because he specifically remembers them or even if he does, but because the other extensive evidence that the Crown would have marshaled at trial to prove his guilt of those offences beyond a reasonable doubt would have done just that.

[39] Mr. Shah is one of the most unconvincing liars that I have had testify in front of me for many years. Looking at the test in W.(D.), I can say without hesitation that I do not believe his evidence, and I'm not left in a state of reasonable doubt by it. As such, under the third test in W. (D.), whether Mr. Shah is guilty of the offence of sexual assault with which he is charged against Ms. A.B., depends whether I am satisfied to the criminal standard that the elements of the offence are proven based on the other evidence that I accept.

[40] Turning to Ms. A.B., I have no hesitation in accepting her evidence as entirely credible. This was an honest and forthright witness. If there was any fault in her testimony, it was the detail with what she was willing to acknowledge particular points that she did not remember perfectly. Her evidence of having been grabbed from behind by the defendant, thrown to the ground, punched in the face numerous times resulting in a broken nose and damage to her cheekbones, and having had her head banged into the sidewalk 5 to 7 times during the course of 3 to 5 minutes as this accused robbed her, is entirely believable. Not only is it believable because of the detailed accuracy of her evidence, but his plea of guilty to robbery and aggravated assault against her, and the photographic evidence of the injuries she sustained, corroborates her testimony.

[41] It is only with respect to her allegations of a sexual assault that her evidence is challenged. That assault is defined in section 265 (2) of the Code to include sexual assault. The Crown relies on two aspects of the definition.

[42] First, under s. 265(1)(a), a person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly. Plainly, the action of Mr. Shah forcing the complainant to the ground at the moment of the alleged sexual assault and applying force to her by tugging on her pants, an application of force to which she did not consent, but which is also not de minimus in the context of the threatening words he used at the same time, would appear capable of satisfying the elements of the offence.

[43] Further, under section 265(1)(b), a person commits an assault "where he attempts or threatens by an act or gesture to apply force to another person if he has or causes that other person to believe upon reasonable grounds that he has present ability to affect his purpose." In my view, the alleged threat made to the complainant to "get naked or give me money" while tugging at the side of her pants is a plain and obvious threat of further physical force of a sexual nature emanating from Mr. Shah against Ms. A.B. that meets the requirements of a sexual assault as set out in the Code.

[44] The final point is what is it that makes an assault a sexual assault? The decision of the Supreme Court of Canada in R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, answers that question. It establishes the necessary elements of a sexual assault. I quote here part of paragraph 11 of that seminal decision:

Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. (citations and references omitted)

[45] It might be suggested by some that the alleged assault in this case approaches being de minimus in nature. The action that is alleged to constitute the assault took place in a split second with the accused claimed to have used one or two hands, the complainant could not be sure, to try and pull down the side of her pants. She acknowledged in her evidence that her pants did not go down more than 4 inches below her waist when they were pulled by the accused, but that matters not, nor does its brief duration, if the elements of the offence are satisfied.

[46] Returning to the evidence of the complainant, defence counsel claims that there are inconsistencies in aspects of her evidence and no doubt that is true, but I would be more troubled if those inconsistencies were not present. Rather, the honesty with which the complainant acknowledged points in her evidence of what she was unsure or permitted her story to be corrected, particularly relative to the threat to give him more money or get naked having taken place after she gave Mr. Shah the initial $30, and when he demanded more, before she gave him her bank card, satisfies me of the credibility of her evidence. I note as well here, that there can be no corroboration obtained from Mr. Edward’s evidence, because he only came on scene a few seconds after this. But he does corroborate much of the balance of the complainant’s evidence about the accused yelling threateningly at her to give him her PIN number while he held the bankcards she had just given him.

[47] Defence counsel relied on the complainant's inability to identify the accused in the photo lineup that was conducted several hours later as evidence that she is unsure about many details relating to the assault, and said it would be unsafe to rely upon her evidence. I reject that contention. It is an entirely different matter to remember detail of what transpired in a brief series of transactions that lasted not more than 3 to 5 minutes; an occurrence that caused the complainant to be fearful, as she put it, that she might be raped, as distinct from her ability to identify the accused in a photo lineup several hours later, even though she had the opportunity to look him square in the face as he perpetrated his assault against her.

[48] Here, there are several final precise and dispositive pieces of evidence that are of key relevance to me in determining whether the elements of the offence are satisfied in this case. First, the complainant vividly recalled saying to the accused, "please, anything but that", as she heard his threatening words and felt him tug on the side of her pants.

[49] She has no reason or motive to have fabricated that language. She could have no prior animus relative to the accused because she had never seen him before in her life. She has no reason or motive to accuse the defendant of sexually assaulting her, as almost a small component of the robbery and aggravated assault that was taking place contemporaneously, if it had not happened as she remembered it.

[50] Moreover, she was unrefuted on that evidence. More importantly, she was not challenged on her very precise, evocative and plainly frightening memory of having felt the cold of that late October morning on her skin below her waist as she felt the side of her pants being tugged down 4 inches or so by her assailant. That is a very visual and visceral memory. The complainant remembers that feeling so vividly, because it is so inextricably associated with the other events that happened in a nanosecond, where after giving the accused $30 from her knapsack, he said to her "That's all!?! Give me more money or get naked!", at the same time as she feels the tug on the side of her pants.

[51] The question here given that I accept the complainant’s evidence in its entirety as both credible and reliable, is whether a reasonable observer would consider these actions to amount to a sexual assault. As Crown counsel put it, the question is what would be the conclusion of a reasonable person walking by in the early morning of a day late in October on a residential street, and coming upon a woman lying on the ground screaming, a man holding her down or standing over top of her and holding her, violently assaulting her by punching her about the head and face, and telling her to shut up or more harm will come to her. The question is, would the mythical reasonable person consider a sexual assault to be present if in that sequence of events they saw the accused tug on the side of her pants while saying "get naked or give me more money"?

[52] In my view, it is beyond doubt that they would. A person viewing those events would certainly conclude, beyond the aggravated assault and robbery that was taking place, that there was a sexual threatening element present, and that sexual threatening element is sufficient to satisfy the elements of the offence.

[53] In the entirety of the circumstances, and notwithstanding the very able representation that the accused has had from Ms. Taylor, I have concluded, as I believe that a reasonable person would conclude, that it was beyond doubt that a sexual assault was being perpetrated by Mr. Shah on Ms. A.B.. On the whole of the evidence I am indeed satisfied beyond a reasonable doubt that Mr. Shah sexually assaulted Ms. A.B.. A conviction will be entered on count three in addition to the other counts to which the accused has pleaded guilty.

Michael G. Quigley, J.

Released: February 5, 2016

CITATION: R. v. Shah, 2016 ONSC 903

COURT FILE NO.: CR-15-70000324-0000

DATE: 20160205

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ROBERT SHAH

Defendant

REASONS FOR JUDGMENT

Michael G. Quigley J.

Released: February 5, 2016