Court File and Parties

Court File No.: CR-15-10000098-00AP Date: 2017-02-15 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Arafat Bakshi

Counsel: Martin Sabat, for the Crown, Respondent Taro Inoue, for Arafat Bakshi, Appellant

Heard: February 13, 2017

R.F. Goldstein J.

Reasons for Judgment on Summary Conviction Appeal

[1] The complainant was leaving a Christmas party on December 14, 2012 at about 11:30 pm. She got into the back seat of the Appellant’s cab. He was a taxi driver. He tried to input her address into his GPS device. She moved in the front seat to help him. The Appellant then began to have a sexual conversation with her. He asked her questions about her sex life. She told him she was uncomfortable discussing these matters. The Appellant then grabbed the complainant’s breast and tried to touch her vagina but was prevented from doing so by her clothing. She told him not to touch her. She tried to maintain a friendly conversation with him as she was alone with him on the highway. He continued to try and touch her thigh and knee. When he dropped her off he asked if they could hang out. She said “no”. He asked for her phone number. She said “no” but agreed to take his. She testified that it was an instant reaction so that she could report the incident to her company supervisor. She had paid for the cab ride with a company taxi chit. In cross-examination she denied that she was sexually aggressive with the Appellant or made sexually suggestive comments.

[2] The Appellant testified that the complainant smelled like alcohol. The first thing she told him was that she was young and beautiful. She told him she used to be fat but had lost weight and now looked good. He testified that she was sexually aggressive with him. He testified that she said that she had not had sex in a while and needed a man. He said that he refused to have sex with her, as he is married and has a young child. He denied that he touched her inappropriately.

[3] The Appellant was charged with one count of sexual assault. The trial judge, Madam Justice Mocha of the Ontario Court of Justice, found him guilty. She imposed a suspended sentence and put him on probation for three years.

[4] The Appellant raises two issues: first, that the trial judge failed to provide adequate reasons: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. Second, he argues that the trial judge failed to apply the principles in R. v. W.D., [1991], 1 S.C.R. 742 because the trial judge only relied upon the complainant’s evidence to support a finding of guilt.

[5] Turning to the first issue, Mr. Inoue, for the Appellant, argues that the trial judge failed to provide reasons as to why she found the complainant so credible and compelling. He points out that the trial judge failed to resolve the issue of the complainant’s errors regarding the back seat and the complainant’s previous contact with the police. He also argues that the trial judge misstated the law at one point regarding the assessment of the complainant’s evidence.

[6] I respectfully disagree. Justice Mocha provided very detailed and careful reasons. She instructed herself correctly on the reasonable doubt standard, and then set out the principles to apply to the evidence of the accused. She correctly noted that it was not her role to simply decide who was more credible and prefer one version of events: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at para. 8. She conducted a detailed examination of the photographs that were filed in evidence. She observed that she was unable to tell whether the Appellant had actually touched the complainant from the photographs. Nonetheless she weighed how the photographs fit into the two opposing versions of the events. She found that they did not support a version of events where the complainant was flirting with or making sexual advances towards the Appellant. She also found that the photographs provided some corroboration for the complainant’s version of events.

[7] Where the trial judge does not provide detailed reasons, if the conclusion is obvious from the record then there will be no error: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. In my respectful view, it is not even necessary to examine the record in detail to see if the conclusions are obvious from it. That is because the trial judge provided detailed reasons why she found the complainant so credible and compelling. The sentence pointed to by the Appellant as merely a conclusion was exactly that – a conclusion. But it was a conclusion that came at the end of a long and detailed examination of the complainant’s evidence. A trial judge need not resolve every inconsistency, or deal with every piece of evidence: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639. That said, the trial judge dealt with errors and problems in the complainant’s testimony. She found that these errors did not affect her overall credibility, and she explained why they did not.

[8] Mr. Inoue points to two specific problems in the complainant’s evidence that the trial judge failed to resolve. The first was her previous contact with the police; the second failing to recall that she moved from the back seat to the front seat until confronted with the photographs. He says that the trial judge failed to adequately address these mistakes.

[9] Again, I must disagree. The trial judge dealt at length with the complainant’s testimony. She considered the complainant’s previous contact with the police. She assessed it and indicate that although it was an issue, she did not put any great weight on it. With regard to the movement from the back to the front seat, the trial judge noted that the complainant admitted that she made a mistake initially in her testimony when confronted with the photographs. The trial judge found that the complainant’s manner of dealing with a factual error did not detract from her credibility. In fact, the trial judge found that her forthright acknowledgment of an error added to her credibility. That finding was entirely with her purview.

[10] In my view, the trial judge made it very clear how she dealt with each aspect of the complainant’s credibility. She summarized the testimonial point, assessed the contradiction or error, and then decided how much weight to give it. The Appellant could have been in no doubt as to what the trial judge did and why she did it. Not only do I see no error, it is difficult to see what else the trial judge could have done.

[11] Mr. Inoue argues also that the trial judge also made a fundamental error of law in assessing the complainant’s credibility. He argues that the trial judge applied what was essentially a “some evidence” test rather than a “beyond a reasonable doubt test” to the complainant’s evidence. The trial judge said the following:

So the first question, of course, is that with regards to what the defendant had to say, if I accept what he has to Say or if it raises any reasonable doubt in my mind, then it’s simply an acquittal, and I don’t need to go any further from there in in the examination. But, of course, that’s only if I am satisfied that, as well, that the complainant’s version has some veracity or credibility.

[12] Respectfully, I cannot agree. A trial judge’s reasons must be read as a whole. Specific passages must not be read in isolation, without reference to the whole of the reasons: R. v. Morrissey (1995), 20 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.) at para. 28.

[13] The trial judge’s reasons, when read as a whole, demonstrate that she well understood that she could not convict simply on the basis of evidence that had “some veracity or credibility”. To simply point to this one passage would be to fall into the error described in Morrissey, supra. That is because the trial judge went on to say:

But as I pointed out at the beginning, the Crown doesn’t need confirmatory evidence. What it does need is evidence where I can be satisfied beyond a reasonable doubt of what occurred. And I am mindful that in a case where you have just the complainant’s version in essence, to rely upon that the Court has to be very careful, but that’s not to say that that can’t be a situation where the Crown can meet its burden with just the testimony from a complainant.

… I found the complainant’s evidence to be so credible and compelling that I find I am satisfied beyond a reasonable doubt. I am mindful of how high a test that is, but looking at the evidence in its totality, I am satisfied that what was described by the complainant as to what occurred on the day in question in relation to the sexual assault, that there was a touching of her breast, that he did put her, his hand on her thigh, that these advances were sexual in nature, and that they were intended to be so.

[14] There was no error by the trial judge in dealing with the complainant’s evidence. The trial judge did what trial judges are supposed to do: she made a finding, and she explained how she got there. That disposes of the first issue. I now turn to the second issue raised by the Appellant.

[15] Mr. Inoue concedes that the trial judge properly set out the W.D. principles but argues that she failed to properly applied them.

[16] Again, I respectfully disagree. The trial judge explicitly set out the W.D. steps in several places during her reasons for judgment. She described the standard correctly and succinctly. The trial judge’s analysis of the Appellant’s testimony demonstrated that she properly applied the W.D. principles. The trial judge noted concrete problems in the Appellant’s evidence. For example, she noted that the Appellant noted that the complainant was drunk – but he still asked her to input the information in the GPS unit and let her hold on to it during the drive. Overall, however, the trial judge, found his account of the complainant’s sexual aggression to be highly suspect and highly implausible. She found his evidence incredible when stacked against the complainant’s evidence. A review of the transcript shows that there was an ample basis for her to make that finding. As Doherty J.A. stated in R. v. (D.)J.J.R. (2006), 215 C.C.C. (3d) 252 (Ont.C.A.) at para. 53:

The trial judge rejected totally the appellant's denial because stacked beside A.D.'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.

[17] Ultimately this was a case about credibility. Trial judges, who have had the advantage of hearing and seeing the witnesses, are afforded a great deal of deference when assessing credibility: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 54.

[18] The appeal is dismissed.

R.F. Goldstein J. Released: February 15, 2017