CITATION: R. v. Khan, 2017 ONSC 7109
COURT FILE: SCA(P) 001/17
DATE: 2017 11 28
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. C. Presswood, for the Respondent
Respondent
- and -
KASHIF KHAN
M.C. Halfyard, B. Vandebeek, for the Appellant
Appellant
HEARD: November 14, 2017, at Brampton
REASONS FOR JUDGMENT
[on appeal against conviction by Kastner J. on August 26, 2016]
HILL J.
INTRODUCTION
[1] After a trial, the appellant was convicted of sexual assault.
[2] On appeal, three grounds of complaint are raised respecting the reasons for judgment of the trial judge:
(1) the trial judge erred in failing to deal with the reliability concerns with the complainant’s evidence
(2) the trial judge erred in her assessment of the evidence of the appellant’s prior good character
(3) the trial judge erred by engaging in improper speculation in the absence of specific evidence on how the airplane, and more specifically, the seats were configured, to reject the appellant’s evidence.
[3] For the reasons which follow, the appeal must be allowed.
BACKGROUND FACTS
The Aircraft Flight Begins
[4] The complainant, B.S., was 17 years of age in […] 2015.
[5] On June 16, 2015, the complainant, a high school student, boarded an aircraft in Abu Dhabi for the approximately 13-hour flight to Toronto departing at about 2:50 a.m. Abu Dhabi time. For B.S. her departure had been preceded by a 2-hour flight from Pakistan and a 3-hour wait in the Abu Dhabi airport.
[6] The 43-year-old appellant, a business owner and teacher, married with two daughters, boarded the same aircraft. He too was on his way back to Canada travelling through Abu Dhabi having flown from Karachi.
[7] In Row 45 of the aircraft, the complainant was situated in the aisle seat, the appellant in the centre seat, and an unidentified male in the window seat.
[8] At trial, the complainant’s evidence was received in the form of oral testimony and by the playing of her June 16, 2015 videotaped statement to the police, admitted pursuant to s. 715.1 of the Criminal Code and adopted as true while testifying. During parts of the interview, B.S. can be seen laughing and smiling.
[9] In her testimony, B.S. agreed that when she boarded the plane, having been up all day, she was very tired. She intended to sleep during the flight. To her recall, about two to two-and-a-half hours into the flight she fell asleep.
[10] Prior to sleeping, according to B.S., she chatted intermittently with the appellant. She discussed such things as her aunt, Pakistan, and her desire to go to medical school. When the appellant asked what high school she attended, she replied “Mississauga Secondary School”. To the complainant’s recall, the appellant spoke about his work as an engineer, his education background, his business, the death of a sister in Pakistan, his trip to Pakistan, his vacation and a hotel in Dubai where he had been approached by a prostitute. The witnesses’ recall of their discussions were not identical, for example, the appellant testified that he was unaware that B.S. attended high school.
[11] Food was served but, not being hungry, she did not eat. The appellant testified that B.S. did eat her Halal meal.
[12] As to other passengers in the vicinity, B.S. stated in her videotaped statement that there was a lady with a baby sitting “like right across” the aisle – the seating was “kind of like diagonal”.
[13] The complainant informed the police that the appellant had a slight accent. She thought he was about age 25 years. The appellant testified that he formed the view that B.S. was a “respectful” Muslim woman. While he had no idea of the complainant’s age, he thought, because of the discussion about studying medicine at Aga Khan University, that she was likely a post graduate student.
The Airplane Seats
[14] In her statement to the police, B.S. stated that there was not a lot of space in the plane so “everyone’s already like kind of touching” and as a result the appellant’s legs “were already touching” her.
[15] In cross-examination at trial, the complainant testified that she could not recall whether the armrest between her seat and the appellant’s seat was down or raised. She described the plane seats as “really close together”.
[16] The appellant testified that the armrest between their seats was never down.
The Complainant’s Clothing
[17] The appellant testified at trial that he had no recall as to what the complainant was wearing beyond a recollection that she wore a dupatta, a scarf traditionally worn in Islam.
[18] In her police statement, when asked what she wore on the plane, B.S. stated, “I’m wearing this exact thing”. At trial, Crown counsel asked the complainant no questions about her state of dress on the plane, beyond establishing that by way of undergarments she wore a bra and underpants. In cross-examination, B.S. gave this evidence:
Q. As we saw you on the statement, what is that that you’re wearing then? Is that a one piece outfit that you’re wearing on, during your statement or is that a scarf? A yellowy kind of a…
A. It’s a traditional outfit and it’s called a dupatta, D-U-P-A-T-T-A…
A. [I] wasn’t wearing that during the flight.
Q. You weren’t wearing that during the flight?
A. No.
Q. During the statement when the officer asks you, what were you wearing, you say it’s exactly what I’m wearing now?
A. Yeah, but exactly what I was wearing, but I didn’t know that included accessories and stuff too.
DEFENCE COUNSEL: Q. Okay, so, what were you wearing on the flight exactly?
A. It was wearing exactly what I was wearing in the video except my dupatta.
THE COURT: Sorry, exactly?
A. My dupatta, except my dupatta. Exactly what I was wearing except my dupatta.
Q. When you say, you say you were wearing – I asked you a question about what you were wearing on the plane, you said exactly what you were wearing except the dupatta.
A. Yeah.
Q. Okay.
THE COURT: So, I think what counsel’s asking is what you were wearing besides the dupatta?
A. Nothing, I was just wearing exactly what I was wearing and that’s it.
DEFENCE COUNSEL: Q. Okay, so what was the – put the dupatta aside, what else were you wearing?
A. Nothing, it was just, it was the same thing. It was what I was wearing and I wasn’t wearing anything else extra.
Okay, so what I was wearing is basically what you would call, like, a long shirt and pants. That’s what I was wearing in the flight.
A. Yeah, I was wearing my shirt and my pants.
Q. Did you have a jacket or anything else on the plane?
A. No.
[19] No questions were asked of the complainant about buttons or a belt or whether her clothing was loose or tight-fitting.
[20] On review of the police videotaped interview, the complainant can be seen wearing what appears to be a traditional shalwar/kameez-like outfit, including a lengthy cloth panel at the front, not infrequently seen in the Brampton courts. It cannot be determined from the video whether the upper part of the garment has buttons, a zipper or no fasteners. As well, one cannot see whether the pants are fastened with a tie or belt of sorts.
The Complainant Goes to Sleep
[21] B.S. testified that her first effort to sleep involved putting a pillow on the fold-down food table. She had a blanket on her legs. In her police statement, the complainant stated that in this position she was “resting”, not sleeping, before electing to sit upright with the pillow behind her head and the blanket pulled up to her shoulders because she was cold.
[22] In her videotaped statement, B.S. stated that at some point she came “kind of awake” sensing that someone was touching her. She perceived a “slightly pinching” over her clothes on her “breasts”. She felt groggy. She did not open her eyes, concluding, “[l]ike okay, maybe I’m just imagining things that someone’s like touching me or something”.
[23] The complainant testified at trial that, after she slept for one to three hours, sitting in an upright position, she felt pinching of the nipple of her right breast as she slept. The witness gave this evidence in-chief:
I felt it and I was like, maybe it’s just me.
I thought that maybe it was just, I wasn’t thinking right or I was maybe in my sleep.
Because I was like, maybe I’m sleeping – like I’m just going to sleep…
[24] In cross-examination, the complainant variously maintained that what she felt on her right breast was “a hand”, “a finger”, and “the palm”. The witness described herself as “groggy” when she felt this slight pressure or “glancing” – she was not “completely awake”. Her eyes were not open. She then fully returned to sleeping.
[25] In his evidence, the appellant denied that he deliberately touched the complainant’s right breast as she described.
The Further Groping Allegation
[26] B.S. informed the police that after again sleeping for three to four hours, she was sexually assaulted, providing these details:
(1) her blanket remained in position completely over her shoulders
(2) she awoke to find that the appellant had “half of his arm” on her stomach and a hand on her breasts
(3) there was a hand under her shirt and bra touching and pinching the skin of her right breast
(4) simultaneously, another hand was under her pants pressing the top part of her vaginal area – there was no penetration of her vagina
(5) when she “woke up”, at “the same time” she felt someone touching her, her arm was “in an awkward place” with her hand in the appellant’s lap.
[27] The complainant related to the police that she opened her eyes:
A. Um, I, I just look down and I see like someone like-, ‘cause like my blanket it’s, it’s all dark. And then I, I, I see my blanket and someone’s like pinching. And I can see like his hand at the bottom too. And so then I wake up, and he had notices that I wake up. And then he takes everything out.
Q. Okay. How long do you think this, this whole thing lasted?
A. I um like I guess two seconds after he was doing it. Like I noticed. I don’t know if it was lasting from before that, when I was sleeping or not. But I noticed when I woke up. Exactly when I woke up I noticed.
Q. What do you do?
A. And then I just looked at him and then he just took both his hands out. I looked at him like okay what’s going on right like. You know I, I…
Q. Did you see…
A. …looked at my. I looked at my like chest. Like okay is it actually like. And then um, what’s it called, I, I did see his hand there. And then he noticed that I’m, that I’m awake and he took all his hands out.
Q. Also I wanted to go back to the moment where you felt that somebody was touching your breast and touching your vagina. When you opened your eyes, where did you look? Where did your eyes go?
A. I looked, I looked at my…
Q. You looked down?
A. Yeah.
Q. What did you see exactly?
A. Then I saw like a hand on my, on my chest like on my breast.
Q. Okay, and did you see the other hand? Did you see the hand on your vagina?
A. No.
Q. No. Ah where was the blanket at that point?
A. The blanket was on me.
[28] When the complainant looked at the appellant he appeared to be sleeping (“he was acting like he was sleeping”).
[29] In her in-chief testimony at trial, B.S. informed the court that she awoke to the feeling of the pressure of a hand under her bra on her right breast. From a second hand, there was pressure in her vaginal area:
A. Like I’m pretty sure the whole hand was inside my pants, but I’m pretty sure the pressure was like one or two fingers.
Q. … And when you say the whole hand was, in your pants, do you mean your underwear or do you mean your trousers?
A. My underwear.
[30] B.S. further stated: “I could see his hands … coming out of the blanket”. The incident lasted about two seconds. The complainant also testified in-chief that the appellant’s blanket was up to his shoulders as well. When she awoke, she discovered her hand was on his lap over his blanket. She said nothing to the appellant.
[31] In cross-examination, B.S. testified that she was sitting upright with her feet on the floor or the footrest when sleeping although she is not sure where her arms were. The complainant initially rejected the suggestion that, at any point, she leaned into the appellant’s shoulder or fell sideways onto the appellant’s lap. When the question was next repeated, with B.S. asked if it was “possible”, she replied, “I don’t know”. Subsequently, B.S. disagreed that this could have happened.
[32] Cross-examined about finding her arm on the appellant’s lap, B.S. stated that this was at the time of the earlier sensation of being touched not when two hands were simultaneously touching her body. In re-examination on this point, when referring to her police statement, B.S. asked, “can I change my statement?”.
[33] Asked by defence counsel to describe what she observed when she awoke, B.S. gave this evidence:
Q. So, it’s fair to say you, you couldn’t – could you see his arms?
A. Yeah, yeah. I could see his arms coming out.
Q. Okay, where were, where were his arms then. Describe where his arms were?
A. Um, like from, they were coming outside from my shirt and from my pants.
Q. Okay. You could see both of his arms?
A. Yes.
Q. And you were still over in your, in your chair?
A. Yes.
Q. Do you know which arm was were?
A. No.
Q. You can’t tell us where his left arm was…
A. No.
Q. …at that time?
A. No, I don’t remember.
Q. You can’t tell us where his right arm was?
A. No, I just know both his arms were engaged in both my private parts.
[34] When the suggestion was put in cross-examination that more than once during the flight, in her deep sleep, when she fell against the appellant, he had to take steps to get her off of him, the complainant disagreed that that had happened.
The Appellant’s Account
[35] Testifying in his own defence, the appellant informed the trial court that after eating his meal he fell asleep. It was dark. He was “pretty tired” and “so sleepy”.
[36] At some point, on the appellant’s evidence, he awoke to find B.S. on him. She was leaning against his body. On one occasion, she fell into his lap having gone diagonal, touching his stomach. Her legs were up off the floor on her left side toward the aisle as she was curled up leaning toward and onto him. Her chest was against his shoulder. He formed the opinion that the complainant may be extremely tired. To his recall, there were two occasions, and perhaps two additional times, when he moved the complainant back into her own seat.
[37] Throughout his testimony, the appellant made reference, at least a dozen times, to moving the complainant back using such expressions as, “I moved her back”, “I moved her away again”, and “I moved her away”. He did so without paying particular attention to the complainant’s body – “all I see her body was on me and I did not check her out where her body part are”.
[38] The appellant informed the trial court that he did nothing of a sexual nature toward the complainant. As far as the appellant recalled, he never touched B.S.’s chest. In his in-chief testimony, the appellant gave this evidence:
Q. When she was lying on you, you lifted her up…
A. Yes.
Q. How did you get her up?
A. Basically, I went – I moved my head away like this, right…
Q. Can you just – so…
A. Okay.
Q. You put your arms together?
A. Yeah, like this. And then like this.
Q. So, you had your arms, your two arms hand in hand and you lifted it to your chest?
A. Yea, yeah.
Q. And it’s just to get her up?
A. That’s it.
[39] At other times in his testimony, as acknowledged by both counsel on appeal, both in-chief and in cross-examination, the appellant was apparently gesturing or demonstrating how he used his hands to move B.S., for example:
A. …both my hands were here.
She’s like this and I moved her away.
I moved her like this immediately.
Q. And you, pull up her body. How do you do that?
A. Like this because you know …
Remainder of the Flight
[40] The complainant testified that she spoke to a flight attendant 15 to 20 minutes after the sexual assault described in her evidence, asking to change seats because the man seated beside her was making her feel uncomfortable.
[41] According to the complainant, before she took the different seat offered by the attendant, she went to the washroom as she felt that her underwear was wet. In her videotaped statement, the complainant stated that she believed the garment was wet because she “was anxious or something”. In her trial evidence, B.S. thought this assessment was “pretty accurate” although she was unsure exactly why her underpants were wet. The complainant was not questioned as to whether the wetness was urine or another discharge. In the washroom, she urinated and washed her face. She removed her underwear and threw it away.
[42] B.S. next got her backpack down from the overhead storage bin at Row 45. She saw that the appellant was sleeping. The complainant then took a seat four or five rows further back from where she had been seated in Row 45. She sat next to an older woman. When that passenger saw her crying, and asked what was the matter, she said that the man who she had been sitting beside had touched her while she slept. The woman advised her to tell someone about it.
[43] In her video statement, the complainant testified that while waiting in the baggage area she texted a friend making some disclosure to him of what had happened. Her friend advised her to report the matter to her parents.
[44] B.S. testified in-chief that she was scared of telling her parents, unsure how they would react. The complainant’s parents met her at the airport. B.S. testified that she made disclosure to her mother as that was the person she was most comfortable with. The complainant’s father testified at trial to his daughter making disclosure in the car as he questioned her. The police were then contacted.
[45] The appellant testified that after an occasion when he moved B.S. back into her own seat, with the complainant then leaning to the left hand rest, a flight attendant asked B.S. if she could find her a seat at the back. The complainant declined saying, “I’m fine here”.
[46] The appellant testified that he slept for much of the flight until breakfast was served in the morning. The complainant had rice in her breakfast meal. He recalled B.S. playing with a young child seated across the aisle. Then, about an hour before the plane landed, she left her seat and did not return.
ANALYSIS
Reliability of the Complainant’s Evidence
[47] The defence acknowledged at trial that the appellant touched the complainant more than once during the flight to Toronto in order to reposition her into her own seat. The touching was not however sexual. The complainant had been up all day prior to the 3:00 a.m. flight and was very tired. In closing submissions, defence counsel noted the prospect for misperception and the dreams, emotions, feelings, and “all kinds of things” which occur in a sleeping state. When counsel submitted that his thought had been that the wetness of B.S.’s underwear was on account of urine, the trial judge observed, without express reference to manual stimulation or to a nocturnal emission, that “there’s another physical reason for that”.
[48] The defence did not allege fabrication by the complainant, submitting that she honestly believed the account she put forward. It was submitted that the complainant’s exhaustion and partial awakened state led to mistake on her part as to the circumstances of the appellant touching her.
[49] Defence counsel submitted that inconsistencies in B.S.’s testimony, as well as implausibilities inherent in her account, fairly gave rise to concerns about the complainant’s reliability.
[50] In closing submissions at trial, counsel for the appellant submitted that the reliability of the complainant’s evidence was a key issue, stating for example:
…her evidence is inherently unreliable.
…she’s groggy … she’s completely misapprehending anything that’s going on…
…there’s another explanation, she was just groggy and tired.
…it must be exhausting. And that is another reasonable explanation for … her thinking she’s feeling things that didn’t happen.
…she has some deep misapprehensions of what was happening because of her tiredness and extreme exhaustion…
She had deep misapprehensions of what was happening because of her exhaustion and … lack of sleep.
Her evidence is … not inherently reliable and it’s certainly can’t be so reliable as to … rise to that level of beyond a reasonable doubt that this happened.
She’s misapprehended this…
[51] In her reasons for judgment, the trial judge self-instructed on W.D. principles. After summarizing the evidence of the principal witnesses, the court stated:
As indicated, the primary evidence comes from the complainant and the defendant.
[52] The court then expressed the view that the complainant “was composed and presented well” while the appellant’s evidence “seemed rehearsed at times”. The trial judge noted the defence position respecting B.S. of a “misunderstanding of what occurred” – a witness whose evidence was “unreliable with huge leaps of logic”.
[53] After the trial judge found that the complainant “was not shaken in her account of the night”, she observed that:
This is a case like many where the evidence consists of two witnesses telling two versions of an event.
[54] Thereafter, the court concluded:
The defence does not challenge the credibility of the complainant, generally, but urges that a doubt arises from her impaired perception of the incident due to her extreme fatigue and grogginess. Thus, he said that she may well believe honestly what she testified to because of her processing the event. She was mistaken in her perception of what she saw and then took on a more sinister context.
I have considered all the evidence, all submissions by Crown counsel and [defence counsel] and the cases referred to me by both counsel. Although superficially attractive, the accused’s evidence does not bear up under scrutiny nor does it make common sense when considered in the total context of what happened that day. The inconsistencies revealed in cross-examination, the general manner in which he gave his evidence, and the lack of common sense all served to cause the court to reject his testimony as not reliable. His evidence does not raise a reasonable doubt. The court, clearly rejects the defendant’s evidence and is not left in a state of reasonable doubt by it.
[55] The trial court went on to find that:
(1) the appellant touched B.S.’s breasts over her clothing and subsequently was caught with his hands under her clothing
(2) the appellant’s version of events was rejected
(3) the complainant’s evidence “corroborated some in material ways by the defendant, otherwise by facts not in contention”
(4) the complainant’s evidence was “persuasive and credible” – “I find her to be a truthful witness, both candid and careful” – her evidence was “consistent and compelling” – the complainant’s recollection was “cohesive and makes common sense”
(5) even if the court was “in error” in its assessment of the appellant’s evidence, acceptance of B.S.’s evidence as “reliable and credible evidence” would necessarily lead to rejection of the appellant’s account, applying the decision in J.J.R.D.
[56] In R. v. Doodnaught, 2017 ONCA 781, the court observed at para. 80:
Where credibility is a determinative issue, a judge's findings are subject to deference and appellate intervention should be rare. Although the reasons must explain why the evidence failed to raise a reasonable doubt, the reasons need not be so detailed that they permit an appellate court to retry the case on appeal. The reasons need not establish that the trial judge was alive to and considered every crumb of evidence, or answered each and every argument advanced by counsel: R.E.M., at para. 32; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 26, 30.
(emphasis of original)
For the purposes of this appeal, I am prepared to apply these observations to the present case where reliability became a determinative issue.
[57] In R. v. M.(A.), 2014 ONCA 769, at para. 17, the court accepted that the failure of a trial judge to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error: Vuradin [2013 SCC 38], at para. 11; Dinardo [2008 SCC 24], at para. 26; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903 … at para. 23 (emphasis added).
[58] In a criminal trial, a reasonable doubt is based upon reason and common sense logically connected to the evidence “or absence of evidence”: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 36, 39, 40 (emphasis added). In R. v. A.R.J.D., 2017 ABCA 237, at para. 105 (appeal as of right filed [2017] S.C.C.A. No. 306), the court stated:
Gaps in the evidence count against the Crown, not for it. The accused is presumed to be innocent and has no obligation to fill in gaps in the Crown's case. The Crown is not entitled to the benefit of the most favourable inference that could be drawn from the evidence. It does not assist the Crown that another trier of fact might not have had a reasonable doubt. A doubt based on "no evidence" cannot, logically, be based on the "trial testimony". No particulars can be given of "no evidence". The courts should be hyper-vigilant against this type of reasoning which undermines the most basic principles of criminal law: the accused is presumed to be innocent, and the Crown has the never-shifting burden of proving the case beyond a reasonable doubt.
[59] In some instances, including the present case, it will be the reliability of the evidence of a principal witness which is of paramount importance as distinguished from that witness’ credibility. The concepts are different as described in R. v. C.(H.), 2009 ONCA 56, at para. 41:
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).
[60] The appellant submitted that the trial judge “spent the majority of her analysis dealing with the veracity” or credibility of B.S.’s account while being “largely silent on reliability concerns, which was one of the main planks of the defence position” – “[t]he bigger issue was the reliability of the complainant’s account” (emphasis of original). While the apparent honesty of B.S.’s account, including upset and disclosure, cannot be considered unimportant, the existence of such features in this case cannot be said to be inconsistent with narration of an unreliable account based upon misperception and innocent gap-filling by the complainant.
[61] As said, the trial judge had the benefit of defence counsel’s cross-examination of B.S. and closing argument, both intended to highlight reliability concerns. It cannot reasonably be argued that the trial judge was unaware that assessment of the complainant’s reliability was an essential task for the trier of fact. The trial judge’s reasons are not devoid of discussion of the reliability issue. In itself, nothing can necessarily be taken from the percentage of a court’s reasons expended upon a particular subject.
[62] Be that as it may, the real question here is whether the trial court, employing common sense, experience and scrutiny of the entirety of the evidence, including its deficiencies or gaps, truly came to grips with the inherent probabilities and improbabilities of the account advanced by the complainant including in the context of the appellant’s proffered version of events.
[63] The complainant variously described her state at the time of the initial perceived touching as causing her to wake up, and, as remaining groggy and only “kind of like awake” and “not completely awake”. The touching itself was variously described as “like being touched”, pinching, pressure, a sensation, or an imagined event. Though not related to the police, B.S. described, for the first time at trial, feeling a hand and a finger on her right breast.
[64] While a trial judge need not, of course, recite every frailty or inconsistency in reviewing a witness’ evidence, in the context of denial by the appellant, and a high degree of uncertainty on the part of the complainant given her sleeping state at the time, these inconsistencies were not minor. Standing alone, the evidence relating to the alleged first touching could not reasonably support a finding of sexual assault beyond a reasonable doubt.
[65] The complainant’s description of the subsequent event of two seconds’ duration, as she slept, while shoulder to shoulder with her fellow passenger seated in a separate seat, with her blanket remaining up to her shoulders, was said to involve two-handed simultaneous touching with a hand in her bra on her right breast and a whole second hand in her underwear pressing the top part of her vaginal area. B.S. claimed that, in her awakening state, down into her blanket she observed a hand on her right breast and saw two hands withdrawing from her body though unable to say what hand of the appellant had touched which of her body parts.
[66] While, as Crown counsel noted on appeal, “It probably could be done” with some considerable industry on the part of an adjacent passenger, on its face, this factual account required a degree of scrutiny as to the mechanics or physics of what was said to have transpired. Specifically, the circumstances described by the complainant invited consideration of both the state of B.S.’s clothing as well as the physical ability of an adjacent airline passenger to execute the sexual touching described. The reasons for judgment are silent in this regard.
[67] Unlike most sexual assault prosecutions, in the present case, there was next to no evidence as to the details of the clothing worn by B.S. on the aircraft. The evidence disclosed that she wore a long shirt and pants. At the time of her videotaped statement, the complainant stated that what she was then wearing, excepting her dupatta, is what she wore on the flight. Asked in oral submissions on appeal, counsel (who were not trial counsel) were unable to more particularly describe B.S.’s clothing. Resort to the police video is less than helpful because the complainant is seated, wearing a dupatta covering her neck and much of the front of her torso, with a purse or knapsack of sorts resting on her lap even with her waistline for much of the time. Were there buttons or clasps on the shirt? Or a belt or tie at the waist? Were the garments tight, loose or normally fitting? Was any of the clothing left in an undone or disturbed state after the assault she described?
[68] Turning to the second, and related, part of a natural inquiry into the scenario advanced by B.S. is how a forward-facing passenger, seated on the right and adjacent to the complainant, would be able to concurrently place two hands within her undergarments under an undisturbed blanket. The appellant denied that he did so only acknowledging the use of his hands to move B.S. off of him and back into her own seat without any sexual groping.
[69] On the latter point, the trial judge stated in her reasons that: “He was asked how he pulled her up and he was unable to explain it although he said he used his hands to get her off”. Crown counsel at trial did not make this submission in her closing argument. The meaning of the court’s observation is unclear.
[70] In-court “[d]emonstrations not unlike oral testimony constitute … evidence”: R. v. Kluke (1987), 22 O.A.C. 107 (C.A.), at para. 34; R. v. Tameshar and Another (1957), 41 Or. App. R. 161 (P.C.), at p. 166. A witness is generally at liberty to respond to a questioner by demonstrating a relevant action where it is feasible to do so and the witness box re-enactment is capable of achieving a degree of accuracy: R. v. Schultz, 2002 BCSC 43, at paras. 18-20.
[71] At a number of points during his testimony, it is apparent that the appellant purported to demonstrate in the witness box, in both in-chief and cross-examination, how he moved B.S. It is unclear whether the trial judge drew an adverse inference from the appellant’s failure to provide an exclusively oral explanation of his actions, or whether the court misapprehended the evidence in this regard or, from her assessment of the appellant’s demonstration efforts, concluded that what he demonstrated did not amount to an explanation of what he said he had done.
[72] No real effort was made, at the point of the witness’ demonstration/re-enactment, contrary to the usual convention by a court of record, to reduce the appellant’s physical re-enactment to words capable of reproduction in the transcript of evidence. This shortcoming led to an unresolved disagreement between the court and defence counsel during his closing submissions as to what the appellant had demonstrated earlier in his testimony. When asked, neither counsel on appeal could describe what the appellant showed the trial judge. In turn, this court is denied an adequate record for appellate review on a critical point.
[73] As observed in a summary conviction appeal, R. v. Giffin, [1980] N.S.J. No. 17 (Co. Ct.), at para. 8, “it is at least prudent and is probably essential that there be verbal evidence in the record” and therefore “[n]on-verbal communication … remains part of the case … but, unless recorded in some transmissible form, it cannot supply evidence that is necessary for the case”. There may be an element of unfairness where an appeal court, discharging its review function, is denied access to evidence adduced before the trial court: R. v. Sénécal, 2017 QCCA 954, at paras. 11, 30-32. As held in DL v. R., [2017] NSWCCA 57, at paras. 87, 98-100, lack of an appellate record of a demonstration at trial leaves “no basis in the evidence in this Court to make any meaningful assessment” of a related ground of appeal. As in the instance of gaps in a transcript, where there must be “a serious possibility” of error in the incomplete transcript or clear prejudice unfairly restricting an appellant’s ability to appeal a conviction (R. v. Hayes, 1989 CanLII 108 (SCC), [1989] 1 S.C.R. 44, at paras. 10, 33-35; R. v. Dobis (2002), 2002 CanLII 32815 (ON CA), 163 C.C.C. (3d) 259 (Ont. C.A.), at para. 22) before the record deficiency is material, here critical witness-box evidence of the appellant remained in the witness box subsequently inaccessible to all attempting to process the appellant’s submission respecting the trial court’s treatment of the complainant-reliability issue. Mr. Presswood quite fairly recognized that this was problematic given that the missing record relates to a critical aspect of the appellant’s evidence. It cannot be said that the missing evidence is unnecessary to a just resolution of the appeal.
[74] In view of these shortcomings in the trial court’s assessment of the reliability of the complainant’s account in the context of all of the evidence, the court’s reliance upon the approach in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) (leave to appeal refused [2007] S.C.C.A. No. 69) is unavailing as there was not a considered and reasoned analysis of the complainant’s testimony and the whole of the evidence: J.J.R.D., at para. 53; R. v. A.N., 2017 ONCA 647, at paras. 15-16, 18-19; R. v. D.H., 2016 ONCA 569, at para. 71.
Relevance of Good Character Evidence
[75] The evidence at trial established that the appellant did not have a criminal record, that he was married with two daughters, a successful businessman and a teacher of law enforcement courses respecting cellphone technology. The appellant had been the subject of an article in a Top Ten CEO magazine and testified to having “a very high reputation”.
[76] In its reasons for judgment, the trial court held:
The defence evidence. The fact that Mr. Khan is of previous good character and has no prior record as adduced is some evidence. It is evidence of good character, but I find the weight to be given to it is less because these types of offences most often occur in private or in circumstances where secrecy is paramount. They are often out of character for how a person presents in the community at large. Recent cases have considered the effect of the evidence of good character and charges of sexual assault and I have referred to them in the context of these reasons. The court has taken this evidence into account, but little weight is given to it in this case in light of the relevancy to this type of offence generally committed in private and unlikely to be reflected in the reputation in the community. The evidence did not comment on his reputation for morality or honesty. In the circumstances of this case, that evidence does not persuade the court that the accused is less likely to have committed the offence which is alleged to be committed in relative seclusion.
Mr. Khan is not inhibited by the presence of other persons on the plane, as the rest of the plane was asleep or not in a position to see what was going on. He is an executive officer for a number of corporations and clearly in charge. It appears he does not fear reprisals from others, the acts were momentary. The age and power differential between the parties was significant. If caught, he could easily deny everything and put his word against that of a 17-year old girl.
(emphasis added)
[77] The trial judge accepted that evidence of good character was led through the appellant’s own testimony which can stand as a legitimate source for such information: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 31. In appropriate cases, good character evidence may be sufficient of itself to raise a reasonable doubt: R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at paras. 99-101.
[78] Where good character evidence is properly admitted, it may be capable (1) of supporting the accused’s credibility as a witness and (2) may circumstantially enhance the improbability that he or she committed the offence(s) charged: R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 29; R. v. Sheriffe, 2015 ONCA 880, at para. 69 (leave to appeal refused [2016] S.C.CA. No. 299); R. v. F.E.E., 2011 ONCA 783, at para. 67; R. v. Dees (1978), 1978 CanLII 2269 (ON CA), 40 C.C.C. (2d) 58 (Ont. C.A.), at p. 65.
[79] In R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, at pp. 637-8, the court held that as a matter of common sense, a trial judge may take into account in sexual assault cases involving children that sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality – “the propensity value of character evidence as to morality is diminished in such cases”. Accordingly, in such cases the good character evidence may still act to bolster an accused’s credibility as a witness.
[80] The trial judge’s reasons do not expressly reject or accept the good character evidence as relevant to the appellant’s credibility. The appellant has not directly raised this issue. In any event, on occasion, the purposes for which character evidence is introduced, improbability and credibility, may be “inextricably interwoven” with one another: R. v. Flis (2006), 2006 CanLII 3263 (ON CA), 205 C.C.C. (3d) 384 (Ont. C.A.), at p. 397 (leave to appeal refused, [2006] S.C.C.A. No. 120); R. v. R.B., 2005 CanLII 30693 (ON CA), [2005] O.J. No. 3575 (C.A.), at paras. 27-8.
[81] The trial court’s reasons for judgment:
(1) accepted that Profit and its progeny applied to the good character evidence led at trial justifying less weight being afforded to this evidence
(2) this line of authority, relating to the commission of sexual offences in private, fit the circumstances of the present case of alleged sexual misconduct committed in “relative seclusion”.
The only features of the case referred to by the court which appear to support the “relative seclusion” or privacy characterization were:
(1) the rest of the plane was asleep
(2) other passengers were not in a position to see what was going on.
[82] The appellant submits error on the part of the trial judge in applying the Profit principle to the present case to discount the value of the good character evidence given that the principals were strangers to one another and the sexual assault was allegedly committed in a public place with others all around: R. v. Strong, [2001] O.J. No. 1362 (C.A.), at para. 10; R. v. Lizzi (1996), 1996 CanLII 21269 (ON SC), 2 C.R. (5th) 95 (Ont. Ct. Gen. Div.), at pp. 99-100.
[83] The respondent seeks to support the trial court’s approach by reference to the fact of an overnight flight, with passengers likely to make efforts to sleep, darkness in the aircraft cabin as acknowledged by the appellant, and the use of blankets by the appellant and the complainant.
[84] Countervailing factors impacting upon the reasonableness of the trial court’s finding of relative seclusion or privacy include the following:
(1) the principals were seated on a commercial aircraft described by B.S. as a full flight
(2) the alleged sexual assault occurred in the plane seat nearest the centre aisle of the plan
(3) as to the unlikelihood of sexual misconduct given the likelihood of detection, with respect to Row 45, flight attendants could approach at any time from the front or rear of the plane as could passengers accessing plane washrooms (see Doodnaught, at paras. 86, 89, 94)
(4) there was no evidence that the complainant’s seat could not be observed by others – indeed in B.S.’s video statement when she was asked if there were other people “around” her, she responded that there was a lady with a baby “like right across” the aisle
(5) contrary to the trial judge’s finding that “the rest of the plane was asleep”, there was no evidence that everyone in the vicinity of Row 45 was asleep
(6) no witness described the aircraft as being in total darkness – the complainant herself described use of a back-of-seat TV monitor – no witness was otherwise questioned about passenger use of these devices in the area at or around Row 45
(7) while the presence of blankets might afford privacy in the circumstances of a one-handed, surreptitious sexual touching, it is difficult to see how the contortion of a passenger with one hand in the bra of the immediately adjacent aisle passenger, and his whole other hand simultaneously beneath her underwear, could undertake such activity with invisible stealth.
[85] On balance, the appellant has established that the Strong decision ought to have governed the approach of the trial court as opposed to the Profit principle. That said, considering that the adduced character evidence was of relatively modest value, this error standing alone could not reasonably have impacted upon the verdict.
The Improper Speculation Argument
[86] It was submitted that the trial judge in part rejected the appellant’s version of events by injecting additional facts into the record not otherwise in evidence and not properly the subject of judicial notice. The impugned passage from the reasons for judgment reads as follows:
I reject the defendant’s evidence. It fails to accord with common sense, particularly with respect to the manner in which the physical contact took place. They are small airline seats. The physical arrangement of passengers was [B.S.] on the aisle, on her right the defendant and on his right the other male at the window. I observe[d] the stature of both the complainant and the accused if they were upright in their seats and that it would be a physical impossibility for her to have her feet on the ground and her torso and head on his lap.
She denied, which I accept, that her feet left the ground and that she was ever curled up on the seat and even if so, and if her legs were elevated, it would be highly improbable and likely physically impossible for her to have her head on his lap if she had gone over unintentionally onto his body.
(emphasis added)
[87] The Appellant’s Factum framed the argument in this way:
The trial judge appears to have observed the parties in court, seated in different chairs and in different circumstances, and surmised from these observations that “it would be a physical impossibility” for the complainant’s feet to remain on the ground and yet still have her body and head resting on the Appellant’s lap, as he described in finding her when he woke up. The trial judge then applied this finding to support her acceptance of the complainant’s evidence and her rejection of the Appellant’s. This is an exercise in impermissible speculation because there was no specific evidence called on the configuration of the airplane seats – such as height (both of the backrest and of the seat off the floor of the aircraft), width and depth (from the seats in the other rows) – or the aisle length and spacing on this particular aircraft. Further the trial judge did not hear any specific evidence about the complainant’s and the Appellant’s height and weight, beyond her observations of their respective appearances. Given that the trial judge never saw the parties seated on this particular flight on this specific aircraft, nor was there evidence before the court of the plane’s configuration, it is either impermissible speculation or improper resort to judicial notice to find that the complainant court not have been positioned in the manner the Appellant described, Either way, this amounts [to] legal error that infected her reasoning process.
(emphasis of original)
[88] The Respondent’s Factum took a contrary view:
It is respectfully submitted the trial judge did not engage in improper speculation with respect to the seat configuration within the aircraft. There was evidence provided in relation to three seat set-up and where the Appellant and complainant were located. Noting the configuration of an aircraft and the seats within does not require improper speculation; the experience is a common one.
Furthermore, Her Honour accepted the complainant’s evidence that her feet did not leave the ground in coming to the conclusion that the Appellant’s testimony was highly improbable; she concluded it was “likely physical impossible” for the complainant’s head to end up in the lap of the person sitting right beside her on the aircraft when her feet never left the floor.
(emphasis added)
[89] It cannot be disputed that the trial judge was entirely within her jurisdiction to observe the complainant and the appellant in the courtroom, including while they testified, taking account for example of their statute. No questions were asked of the witnesses respecting their height or other measurements. The appellant’s evidence was uncontradicted that the intervening armrest was raised. It is unclear whether the trial judge’s factual conclusions included the assumption that the complainant was wearing a seatbelt. No questions were asked of the complainant or the appellant as to whether they had their seatbelts fastened.
[90] Beyond the complainant’s evidence that the plane seats were close together in her 3-seat row, and that passengers were kind of touching, there was no evidence as to the precise dimensions and contours of the plane seats. No one would reasonably suggest that there is a universal size for airplane passenger seats. There were no photos of the Row 45 seats of the plane upon which the witnesses flew to Toronto. There was no out-of-court- videotaped re-enactment evidence. Nor was a view taken of the relevant aircraft pursuant to s. 652 of the Criminal Code as occurred in R. v. Wu (2002), 2002 CanLII 8304 (ON CA), 170 C.C.C. (3d) 225 (Ont. C.A.), at para. 68.
[91] As observed in R. v. Knezevic, 2016 ONCA 914, at para. 28, it is an error of law to make a finding of fact for which there is no supporting evidence.
[92] The Crown’s submission on appeal in support of the trial judge’s reasons, that knowledge of the “configuration” of aircraft seats is a matter of “common” “experience”, and not speculation, imports the notion of judicial notice. The term “configuration”, as commonly understood, refers to the arrangement, layout, shape and design of an item.
[93] In R. v. MacIssac, 2015 ONCA 587, at para. 49, the court stated: “A trial judge ought not to supplement and supplant the evidentiary record, except in very limited situations where taking judicial notice is permitted”.
[94] There are strict limits in criminal cases as to when a trier of fact may take judicial notice of adjudicative facts – a court can only take judicial notice of a fact if it is (1) so notorious or generally accepted that no reasonable person would disagree, or (2) capable of immediate demonstration by reference to sources of indisputable accuracy: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48, citing R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.) (leave to appeal refused [1982] 1 S.C.R. xi). Notoriety is not to be confused with a trial court “acting on its own personal knowledge of or familiarity with a particular matter, alone and without more”: Potts, at pp. 262-263.
[95] No questions were asked by the court of counsel in their closing submissions touching upon the topic of improbability or impossibility respecting the appellant’s version of events given the nature of aircraft seats, such as to alert the defence that the court had under consideration taking judicial notice in this regard. In the absence of notice, the defence had no opportunity to make submissions or potentially to seek leave to call additional evidence. In MacIsaac, at para. 49, the court observed:
An accused in a criminal proceeding must make any number of strategic decisions based upon the evidence that is presented at trial. He or she bases decisions about what questions to ask, what evidence to lead, whether to testify and what arguments to advance, based on the state of play of the trial.
[96] I cannot accept the respondent’s submission that the configuration of an aircraft seat is a matter of notoriety or common experience such as to found judicial notice of adjudicative facts.
[97] The error here of importing extra-judicial facts to the resolution of disputed facts was very material in that it significantly contributed to the trial court’s rejection of the central feature of the appellant’s defence as to the circumstances of B.S. falling across him necessitating his lifting her fact into her own seat. The error was not of a trivial character in a case where it cannot be said that the prosecution case was overwhelming.
CONCLUSION
[98] The appeal is allowed. The conviction is set aside and a new trial ordered before a differently constituted summary conviction trial court.
[99] The appellant is ordered to appear on December 6, 2017 at 9:00 a.m. in courtroom #104 of the Brampton courthouse to set a new trial date. Bail pending the new trial can be addressed on that appearance. Should the appellant fail to appear, the Crown may apply for a warrant to effect his attendance.
[100] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.
Hill J.
DATE: November 28, 2017
CITATION: R. v. Khan, 2017 ONSC 7109
COURT FILE: SCA(P) 001/17
DATE: 2017 11 28
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. KASHIF KHAN
COUNSEL: C. Presswood, for the Respondent
M.C. Halfyard, B. Vandebeek, for the Appellant
REASONS FOR JUDGMENT
[on appeal against conviction by Kastner J. on August 26, 2016]
Hill J.
DATE: November 28, 2017