Court File and Parties

Court File No.: CR-17-40000679 Date: 2019-01-02 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Vashindra Thakoordeen Accused

Counsel: Imran Shaikh, for the Crown Christophe Preobrazenski and S. Kimberg, for the Accused

Heard: December 17, 2018 to January 2, 2019

Reasons for Decision

Boucher, J.

I. Overview

[1] Mr. Thakoordeen is charged with having sexual assaulted AB on May 14, 2016.

[2] AB alleges she was sexually assaulted by Mr. Thakoordeen and his former co-accused Mr. Bacchus in a parking lot on Jane Street in Toronto. Her allegation is supported by Mr. Bacchus’s testimony admitting responsibility for the offence and also implicating Mr. Thakoordeen in it. The video surveillance from the parking lot documents much of the surrounding circumstances, and two taxi drivers provided supporting evidence of the departure from the scenes and about AB’s mental state following the incident. Mr. Thakoordeen testified in his own defence that he merely assisted Mr. Bacchus and helped AB across the parking lot, but that he did not sexually assault her.

[3] Based on all the evidence, I am convinced beyond a reasonable doubt that Mr. Thakoordeen is guilty of sexual assault. I have rejected Mr. Thakoordeen’s denial of responsibility, and have accepted much of the evidence of AB and Mr. Bacchus. Neither Mr. Thakoordeen’s evidence, nor any of the other evidence at trial or lack of evidence on any point raises a reasonable doubt about his guilt.

II. Evidence at Trial

A. Before the Parking Lot Incident – AB

[4] AB is a 26 year old resident of Toronto. On May 13, 2016, she visited with friends and watched a basketball game. AB testified she drank a few beers and shared a couple of marijuana joints with her friends during the evening. She had eaten very little, just a small bag of chips that afternoon.

[5] After the basketball game, she briefly visited another friend. She left that friend and proceeded to the bus stop to go home. There, she encountered some people she knew. AB drank a couple of beers with them and shared another joint. Immediately afterwards, she started to feel highly intoxicated and sick. She walked away from the bus stop, to the parking lot a nearby of pharmacy. She was unsteady on her feet, and removed her jacket, hat and shoes in an effort to relieve discomfort and gain stability.

[6] AB began vomiting. The defence attacked AB’s reliability because she varied in her estimation about how many times she vomited, from the police statement, to the preliminary hearing, to trial. AB denied that her story was changing as to the assault, and described that she was feeling very sick in the time leading up to the assault. I do not view AB’s variation on this point as impacting her reliability. The fact that she was sick during that night was confirmed by Mr. Bacchus, and was supported by the video showing her to be unsteady and crouching.

B. Before The Parking Lot Incident – Thakoordeen and Bacchus

[7] Mr. Thakoordeen and Mr. Bacchus had been drinking beer in the basement of Mr. Thakoordeen’s apartment building. The two men were friends. They had known each other for four years through friends they had in common, and they saw each other socially once a month. Mr. Thakoordeen testified that Mr. Bacchus brought a case of 24 beers to his garage sometime after 9 p.m. Mr. Thakoordeen drank six of those beers. Mr. Thakoordeen said that Mr. Bacchus drank beer and whiskey. Mr. Thakoordeen said that his girlfriend’s cousin Daniel had been drinking with them as well, and that his girlfriend brought them a snack during the evening. Mr. Bacchus did not recall the girlfriend or the cousin, and said that they were not there.

[8] After midnight, Mr. Bacchus became hungry, and Mr. Thakoordeen wanted cigarettes, so they decided to go a nearby grocery store. To get to the grocery store, they took a short cut through the pharmacy parking lot.

[9] Mr. Bacchus and Mr. Thakoordeen varied significantly on the next portion of the events. Mr. Bacchus said that they made only one trip to the store and that they encountered AB by chance on their way back to Mr. Thakoordeen’s house.

[10] In contrast, Mr. Thakoordeen testified that he and Mr. Bacchus made two trips to the parking lot. Mr. Thakoordeen testified that on the first trip, he, his girlfriend and Mr. Bacchus went to the store to get food. He identified the trio walking through the parking lot at 1:27 on the surveillance video, Exhibit 13. Mr. Thakoordeen said that on the way back, they saw someone in the parking lot, and that Mr. Bacchus spoke to her. Mr. Thakoordeen, Mr. Bacchus and the girlfriend proceeded home.

[11] Back at the garage, Mr. Thakoordeen said that Mr. Bacchus proposed going back to find the person who was sitting in the parking lot. Mr. Thakoorden agreed – he testified at trial that he wanted to ensure Mr. Bacchus’s safety. Mr. Thakoordeen and Mr. Bacchus walked through the lot. On their return, they saw AB.

[12] According to Mr. Bacchus, they began to “cat call” at her, and Bacchus alleged that she replied they were “turning her on”. Mr. Thakoordeen said it was only Mr. Bacchus speaking to AB.

C. The Sexual Assault Near The Jeep

i. Identity

[13] AB testified that she was assaulted by two males. Her descriptions of her assailants conflicted with their actual documented and admitted physical characteristics. The defence submits that these issues in AB’s identification poses a problem for her credibility and reliability. However, I note that in terms of identification, the identities of these males in the narrative were effectively admitted to be Mr. Thakoordeen (#1) and Mr. Bacchus (#2). Various pieces of evidence establish their respective identities as the parties in AB’s account.

[14] Exhibit 1, the agreed statement of fact identifies Mr. Thakoordeen and Mr. Bacchus, in the video. By naming Mr. Thakoordeen as the party to AB’s left, Mr. Thakoordeen’s identity through the rest of the video is established by their clothing and overall appearances. At trial, both Mr. Bacchus and Mr. Thakoordeen identified themselves on video. AB identified Mr. Bacchus from his arrest photo as male #2. Mr. Bacchus confirmed he was male #2 as described by AB and that male #1 was Mr. Thakoordeen.

ii. AB and Bacchus’s Versions of the Sexual Assault/Incident at the Jeep

[15] AB and Mr. Bacchus gave similar evidence for the next portion of the encounter. AB testified that male #1 (Mr. Thakoordeen) and male #2 (Mr. Bacchus) approached her as she was in the parking lot, sick. She did not know them. She said that male #2 was an inch taller than the other. She said there was conversation but that she did not recall what was said. Mr. Bacchus confirmed in his evidence that AB was in the corner, kneeling, and appeared intoxicated. He said that she had drooping eyes, was unsteady, and looked “really out of it”.

[16] AB testified that following the conversation, the two males dragged her by her arms against her will, as she was walking the opposite way. They dragged her to the other end of the parking lot, near a vehicle. This was recorded on the surveillance video Exhibit 13, at 1:48. Mr. Bacchus said they brought her there because it was more secluded.

[17] Once at the back of the lot, AB said she was told something like “get on the floor”. She refused and was pushed against a black jeep by Mr. Bacchus. She struggled, and the two males began pulling her belongings off her and then pushed her to the ground.

[18] AB said that male #1 (Thakoordeen) ripped off her leggings and underwear in one vigorous pull and dragged her across the ground. He climbed on top of her. She described that he “had himself out”, that she saw his penis, though he did not actually perform intercourse. She testified that he digitally penetrated her, putting what felt like 3 fingers inside her a couple of times. AB testified that he used a significant amount of force against her as she continued to struggle. Mr. Bacchus said he was standing by the Jeep smoking a cigarette while Mr. Thakoordeen was thrusting on top of AB. Mr. Bacchus said that AB was resisting and saying no.

[19] Once Mr. Thakoordeen got off her, she began looking for her underwear and leggings. She did not recall where she found them. Mr. Bacchus testified that the leggings and underwear were around one of her ankles, and that she seemed confused. Once she was dressed, AB saw that male #1 had left. She asked Mr. Bacchus, who was still standing there, as to the whereabouts of her phone, her purse and male #1. AB told Mr. Bacchus she wanted to go home. AB testified, and Mr. Bacchus confirmed, that he led her to believe that Mr. Thakoordeen and her belongings could be found at Mr. Bacchus’s residence.

[20] Mr. Bacchus called a cab. On arrival at Mr. Bacchus’s home, AB continued to ask for her belongings. AB wanted to go home. Mr. Bacchus and AB testified that he directed her to sit in a car in the driveway. He told her the battery was not working, and that he needed to get a charger. He went into the house, ostensibly to get a charger for the car. He returned, without the charger, and sat beside her in the backseat. AB began to “interrogate” him about her belongings and about the incident. Mr. Bacchus took his pants down, and asked her to do him “a favor”, which meant that he wanted her to perform oral sex. He then sexually assaulted her by forcing her hand to his exposed penis. AB testified that the assault ended there, and that Mr. Bacchus phoned and paid for a cab to take her home.

[21] Mr. Bacchus testified that the assault went further - he was successful in forcing her to perform oral sex, very briefly, and he attempted to force intercourse with her, unsuccessfully. He testified that they then both feel asleep for several hours. When they awoke, AB was upset and requested to go home. He called her a cab.

[22] In the cab, AB was upset. The cab driver testified that AB reported she had been raped. AB testified that she told the taxi driver she had been held down and harassed by two guys. The cab driver provided her with a word of encouragement, and a card with the address of the person who paid for the cab. A copy of that card was entered as Exhibit 3 and a screen shot of the cab driver’s call information was entered as Exhibit 2.

[23] AB testified that she arrived home, then took a bath and changed clothes because she felt dirty. She wanted to wait until morning to report what happened because it was so late at night. Later that day, she reported the incident to police and sought medical attention.

[24] AB identified photograph exhibits 10 a-d as documenting the injuries received to her arms and legs during the assault. She was challenged on the lack of injury to her buttocks given that she alleged being assaulted naked on the pavement. She countered that her buttocks were large and that the photographs showed some of the injuries. Mr. Bacchus explained that during the assault, AB was partially on the grass, and partially on the pavement.

[25] At trial, AB reviewed the surveillance video from the night of the incident, Exhibit 13. The video camera had been attached to the outside wall of the pharmacy, and was pointed at the parking lot. She identified herself on video at 1:30 a.m., walking through the parking lot. She described that she was walking around and adjusting her clothing trying to regain her composure prior to boarding the bus. At 1:35 a.m. she described herself walking around trying to relieve the nausea she was experiencing, and placed herself at a “9 out of 10” in terms of her level of intoxication. She testified that after she moved out of the video frame at 1:35 a.m., she had positioned herself near the landing of the pharmacy.

[26] At 1:45 a.m. on the video, she identified the two males that approached her, who then dragged her off on camera at 1:48. At 1:51 on the video she identified herself walking across the parking lot, then at 1:55 again walking with the 2 males, who were visibly handling her.

[27] She identified herself walking with Mr. Bacchus at 2:20 am, and then getting into a cab.

iii. Mr. Thakoordeen’s Version of the Incident

[24] Mr. Thakoordeen denied that a sexual assault occurred near the Jeep. He acknowledged all points in the video where the other witnesses identified him, and identified Mr. Bacchus. Mr. Bacchus was identifiable as the person carrying the white plastic bag from 1:45 and forward on the video.

[25] Mr. Thakoordeen said that he and Mr. Bacchus initially brought AB to the other end of the parking lot near a vehicle, as she tried to walk in the other direction. He testified that he did so to assist Mr. Bacchus. He acknowledged he was walking in front, in the lead, at 1:48:46 on the video.

[26] Mr. Thakoordeen testified that after they reached the Jeep, AB then walked to the other side of the parking lot away from them, looking for her purse. They followed her. He said Mr. Bacchus told her that her purse should be back near the Jeep. She went back in that direction. She fell down.

[27] He said that Mr. Bacchus helped her up, cuddled her, and spoke to her. Mr. Thakoordeen acknowledged that on video at 1:56:31 he was the person closest holding AB, walking back to the Jeep. He said he was helping Mr. Bacchus for one last attempt, according to Mr. Thakoordeen, to find the purse. He acknowledged that they then all disappeared from video into the darkness for 18 minutes. He said Mr. Bacchus was holding her, and that he himself was urinating and smoking.

[28] He testified that he then got a phone call. He walked away and then went home. He left the area at 2:14:57 as documented on video.

[29] He denied that any digital penetration occurred in the parking lot, replying that the suggestion was ridiculous as they were out in public in the middle of the night.

III. Analysis

A. General Principles

[30] My overall analysis is governed by two fundamental legal principles applicable to every criminal trial – the presumption of innocence and the onus on the Crown to establish guilt beyond a reasonable doubt.

[31] I have considered the evidence in accordance with R. v. W. (D.), [1991] 1 S.C.R. 742. If I believe Mr. Thakoordeen’s evidence, I must acquit him. If I do not believe Mr. Thakoordeen’s evidence, but am left in reasonable doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Thakoordeen’s evidence, I must be convinced beyond a reasonable doubt on the basis of all of the evidence I accept that he is guilty. I am not required to approach these issues in this order. It is acceptable to assess the Crown evidence first if it is a logical presentation of the issues, provided all of the principles in W.(D.) are in general respected.

[32] This case centres on the credibility of witnesses. I can believe all, some, or none of the evidence given by a witness. I must consider Mr. Thakoordeen’s evidence in the context of all of the other evidence when I assess it. This case is not however credibility contest between the Crown witnesses and the accused. W. (D.) prohibits me from concluding that the Crown has met its burden if I merely prefer the evidence of one side over another. If I am faced with contradictory versions of what happened in this case, and if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit Mr. Thakoordeen.

B. AB’s Account

[33] AB testified in a straightforward, candid manner. She appeared to fairly present her memory of the night and of the incident to the best of her abilities, admitting that she did not remember certain events captured on the surveillance video, and admitting when she had trouble recalling fine details on the periphery of the incident, such as the exact number or size of beer that she drank, the number of times that she vomited, and details of the exact routing through the parking lot during the incident.

[34] The defence pointed to the discrepancies in the last paragraph, as well as inconsistencies with the descriptions of the assailants and the routing through the parking lot as reasons to doubt the reliability of AB’s account. In my view, the discrepancies in her evidence on those points did not impact her overall credibility and reliability. AB’s level of intoxication, and the fact that she was vomiting at some point during the incident was corroborated by Mr. Bacchus who said that she was stumbling, confused, and intoxicated and that she vomited in his driveway. AB adequately explained the variations in her evidence, which she based both on the passage of time and on the fact that she was trying her best to recall though both intoxicated and sick at the relevant time. Similarly, the discrepancies with respect to her descriptions of the assailants physical characteristics is not significant for her reliability, given the supportive evidence on both identity and the allegations as I outline below, and the admissions with respect to identity as outlined throughout. The routing through the parking lot was similarly independently documented on video.

[35] Before I outline the rest of the evidence supporting AB’s version of events and of the offence, I wish to explain the legal background regarding corroboration in a sexual assault case, so that my references to the supporting evidence is properly understood. Section 274 of the Criminal Code provides that corroboration is not required for a conviction in a sexual offence case. Section 274 abrogates the historic common law rules with respect to corroboration and prevents antiquated instructions to juries about the need for corroboration in sexual offence cases. While corroboration is never required to prove a sexual assault, the existence of supportive evidence of course may still play a part in evaluating the witnesses’ evidence.

[36] Though corroboration was not legally required in this case, there was nonetheless extensive support for many important aspects of AB’s allegation of sexual assault. The most significant piece of supportive evidence is that the chronology of the event was recorded on the surveillance video, Exhibit 13. The video corroborates many of the details of AB’s evidence and of Mr. Bacchus’s evidence.

• AB walked in the parking lot at approximately 1:31 looking unstable, holding her hat and jacket as she had described removing them.
• Mr. Bacchus and Mr. Thakoordeen hauled AB to the back of the parking lot as she tried to walk in the opposite direction at 1:48. The defence noted that half way through that walk, AB turned around – however, the video does not clearly show whether she turned voluntarily or is spun around by Mr. Thakoordeen and Mr. Bacchus. In any event, the two men do not release their grip on her during their walk to the Jeep.
• Mr. Thakoordeen is recorded dragging or forcefully handling AB again on the way back to the Jeep where the incident occurred. I determine that Mr. Thakoordeen is the one grabbing her -- the other male carrying the plastic bag at that time on the video was confirmed to be Mr. Bacchus. Further, in his testimony, Mr. Thakoordeen effectively admitted holding AB as documented in the video at 1:51.
• Mr. Thakoordeen, AB and Mr. Bacchus then exit the camera’s view, having walked toward the dark end of the lot, for a significant period of time - 18 minutes – enough time for all of the subsequent actions to have occurred. This time period was slightly longer than AB’s time estimate for the assault. This variation is not significant in my view in the context of what was described as a traumatic encounter.
• The video shows then Mr. Thakoordeen leaving alone at 2:14, as both AB and Bacchus described, followed by AB and Mr. Bacchus walking towards the street and getting in a taxi as she testified, at 2:21. She looks unsteady on her feet as described.

[37] As noted, AB’s version is also largely corroborated by Mr. Bacchus’s evidence. Mr. Bacchus identified all of the people on video at the relevant times between 1:45 a.m. and 2:20 a.m. He confirmed that the video accurately depicted AB as being unsteady on her feet and appearing intoxicated. He confirmed that Mr. Thakoordeen was the primary aggressor in terms of force used in dragging AB to the back of the parking lot, as shown at 1:48 a.m. on the surveillance video. Mr. Bacchus confirmed that Mr. Thakoordeen was the person who had sexual contact with AB in the parking lot. He saw Mr. Thakoordeen between her legs as she described, and saw him moving up and down. Mr. Bacchus confirmed that Mr. Thakoordeen left the scene first, and that they followed, which was corroborated by Mr. Thakoordeen walking away first on video. Mr. Bacchus confirmed most of the major elements of AB’s narrative of the assault allegedly perpetrated by Mr. Thakoordeen, assisted by him, and confirmed many of the details of the incident at his home.

[38] While Mr. Bacchus and AB differed as to the extent of the assault at his own residence, I view this as not negatively impacting either’s credibility. Mr. Bacchus made a significant admission contrary to his interests. There is no evidence that AB intentionally under reported the incident, and she was both highly intoxicated and had allegedly been recently traumatized at the time of the second incident. Most of the details she recounted accorded with Mr. Bacchus’s version.

[39] The taxi drivers and their documentary evidence supported both AB and Mr. Bacchus’s account of the timing of the various events. They did not notice her intoxication specifically, though the first driver said they looked like they had just come from a party.

i. Consent/Recent Complaint

[40] The second taxi driver also provided relevant evidence about AB’s state of mind following the incident, and about her initial report of the offence. While neither of these issues is a required consideration in sexual offence cases, the two issues are nonetheless relevant in this trial.

[41] AB’s state of mind is relevant to assessing whether she consented to the sexual activity in question, as it was suggested to her that she agreed to the sexual activity. A complaint’s post-offence demeanour may be considered as circumstantial evidence to support her version of the events: R. v. J.A.A. 2011 SCC 17 para 60.

[42] The defence also argued that because AB did not take the taxi driver’s offer of assistance following the incident, her account was not credible. This is effectively a suggestion that because the reporting was not immediate, it was not credible. To refute arguments about whether the complaint was sufficiently recent to be credible, the Crown may rely on evidence as to the complainant’s state of mind and the circumstances of the reporting. See R v. D.D. 2000 SCC 43.

[43] In this case, apart from AB’s evidence that she did not consent, the video evidence showing she was dragged, the photographic evidence (see below) and Bacchus’s evidence that she did not consent, the taxi driver’s evidence also assists in determining lack of consent. The taxi driver observed AB to be visibly upset. While there is no set or expected way a sexual assault victim must act following an offence, evidence about a complaint’s state of mind following an incident and the reporting of the incident may still be included as a piece of circumstantial evidence in the mix in evaluating the complainant’s credibility: R v. D.D. 2000 SCC 43. I may consider the time of her reporting as a piece of circumstantial evidence in the context of all the evidence in evaluating AB’s credibility: R. v. Marshall 2017 ONCA 103 para 12-21.

[44] I accept that AB’s reporting to the police within a 24-hour period was timely and accords with her state of mind that she had been assaulted. The time window was small between the incident occurring and the report to police. Additionally, AB directly reported the incident to a third-party, the taxi driver, immediately after the second incident. As noted, I consider the evidence about her state of mind following the incident in the mix of the rest of the evidence indicating she had not consented to the incident.

ii. The Level of Injury/Photograph Support for Account

[45] AB’s credibility was also challenged regarding the level of injury that she suffered. The defence suggested that if her version were true, she would have been more injured.

[46] Apart from AB’s evidence and Bacchus’s evidence on the point, the photographs provide supporting evidence countering the defence suggestions. The photographic exhibits 9 a-b show some of AB’s belongings scattered in the parking lot, lending support for her account of her purse and clothing being forcibly removed. She was not challenged on this point.

[47] The photographic exhibits 10 a-d taken later that day of her injuries support her evidence that she was injured by being forcibly handled, and in a rough environment. The defence suggested the injuries shown were not reflective of AB’s account of a sexual assault on rough pavement. I note that there was no medical or other evidence called as to the injuries one would expect to see following such conduct, but that the injuries appear to accord with some of the parts of her body impacted by the assault. Further, Mr. Bacchus provided a reasonable explanation for a more mild presentation of injury: he explained that AB was partially on the grass and only partially on the pavement during the assault, and so not entirely on rough pavement.

[48] The defence also challenged AB about her evidence that her vagina had been injured. She testified at trial that she was sore following the incident. In her statement to police following the incident, she told the officer her vagina felt fine. While this may be an inconsistency, I do not view this as significant in the context. It did not appear to be a purposeful embellishment. In any event, given the extent of the overall evidentiary support for her evidence, this issue is relatively minor in the context.

iii. The Extent of the Assault by Bacchus

[49] One significant inconsistency in AB’s evidence was her denial of a more extensive sexual assault at Mr. Bacchus’s residence. Although significant, I do not view this as impacting AB’s credibility with respect to the main allegation that she was sexually assaulted by Mr. Bacchus at his residence, and by Mr. Thakoordeen in the parking lot. That incident was not the direct subject matter of this trial. Most of her evidence was detailed and precise and supported by Mr. Bacchus and the video. In all the circumstances, including the relatively straightforward manner in which AB presented her evidence, her appropriate concessions, and her respectful presentation of the allegations (including her own concern for Mr. Bacchus’s privacy interests when testifying about his assault), despite the listed inconsistencies, I accept AB’s evidence.

C. Mr. Bacchus’s Evidence

[50] I also accept Mr. Bacchus’s evidence, subject to the qualifications noted below. The defence argues that I should reject his evidence as self-serving, because he denies having seen AB during an earlier walk through the parking lot, and because Mr. Thakoordeen gives a completely different version of the assault in the parking lot.

[51] As noted through my reasons, Mr. Bacchus’s evidence is largely corroborated by the video surveillance and the evidence of the taxi drivers. His evidence constitutes a significant admission of culpability on his part, both for the events at his home, and for significant responsibility in the parking lot incident. His testimony that Mr. Thakoordeen was the primary aggressor at the parking lot accords with common sense and with the video evidence – it appears to be logical that AB left with Mr. Bacchus in a taxi since he was not the primary assaulter in the parking lot. Mr. Bacchus’s evidence, as noted, was also largely consistent with the video evidence and with AB’s evidence.

[52] Mr. Bacchus’s acceptance of further responsibility for the incident in the car is a compelling admission against interest, though I recognize that the evidence cannot be used against him at this stage.

[53] However, I do not accept Mr. Bacchus’s testimony that he and Mr. Thakoordeen only made one trip to the store. On this point, I prefer Mr. Thakoordeen’s evidence: that they actually made two trips to the store that night, that on the first trip they saw AB, intoxicated in the parking lot, and that they returned to find her on a second trip, following which the primary incident occurred. Mr. Thakoordeen was not significantly challenged on his self-identification on video at this point, and the parties on the video have some clothing similarities to Bacchus and Thakoordeen as identified later in the video. From a common sense perspective as well, given the speed with which the incident unfolded, Mr. Thakoordeen’s story of planning to find and interact with AB is more compelling than Mr. Bacchus’s description of the sexual assault occurring seconds after a chance encounter, with no prior coordination or discussion. In my view though this is not a sufficient reason to reject all of Mr. Bacchus’s evidence about the encounter, for the reasons outlined in this section and throughout. Nor is this distinction a point that raises a reasonable doubt in Mr. Thakoordeen’s favour as I further explain below.

[54] I make no specific finding as to the extent of the assault in Mr. Bacchus’s car. First, the extent of that second sexual assault is not directly at issue in this trial. Second, there are some problems with Mr. Bacchus’ version of the second assault, including that his trial evidence differs from his signed agreed statement of facts on his guilty plea to that sexual assault. While Mr. Bacchus’s evidence is compelling as an admission of misconduct against his interests (though he enjoys Charter protections over the use of the evidence), the variation from the guilty plea evidence causes me not to accept Mr. Bacchus’s evidence as to the extent of the assault at his residence.

D. Mr. Thakoordeen’s Evidence

[55] In the W.D. formulation, an acquittal must flow from either accepting the accused’s evidence or from being left in a reasonable doubt by that evidence even if not accepted.

[56] Many parts of Mr. Thakoordeen’s narrative were corroborated and objectively documented, including the timing and the people involved.

[57] For the reasons outlined above, I accept certain portions of Mr. Thakoordeen’s evidence. I accept that he and Mr. Bacchus travelled twice through the parking lot, on the second occasion for the purpose of finding AB.

[58] I also accept where he self-identified on the video, and his admission that he had his hands on AB on two occasions as seen on video. I accept that he was the first one to leave the scene, as that is captured on video as well.

[59] I reject however Mr. Thakoordeen’s evidence that he did not push AB or handle her once they got to the end of the parking lot and that it was Mr. Bacchus coupled up with AB near Jeep, not him. There are several problems with that part of his story.

[60] First, it is not credible that he did not continue to have further contact with AB once they were out of the camera’s view as he claimed, because immediately prior to going off camera, he was forcibly handling her. On his version of the evidence, which I accept, they were attending the parking lot specifically to find AB. The sexual assault that ensued accords with my impression of the general tone of the conversation that Mr. Bacchus said they had prior to leaving Mr. Thakoordeen’s garage, in terms of locating the female in the parking lot.

[61] That it was only Mr. Bacchus responsible for the entire incident is contradicted by Mr. Thakoordeen’s joint participation in directing AB’s movement from one end of the parking lot to the other, at two different times, and during the second time, Mr. Thakoordeen was at one point handling her completely on his own.

[62] His assertion that he was only helping AB to find her phone and purse is not credible. It is not clear from the video that they were looking for anything, and AB testified that she did not start looking for her things until after the assault was finished at the parking lot.

[63] Mr. Thakoordeen’s assertion that he attended the parking lot just to ensure Mr. Bacchus was safe is not credible. The entirety of the video evidence effectively contradicts his story – he does far more than simply assure Mr. Bacchus’s safety, and appears to be the leading force at various times in the encounter, by being the person in the lead dragging down the parking lot, and being the sole person dragging her the second time.

[64] I do not believe Mr. Thakoordeen’s assertion that he was smoking and urinating for the whole time off camera. His explanation is too convenient – he claims to have seen everything apart from the actual assault, and he conveniently absented himself for the main part of the incident, though only steps away. The 18 minute time frame also far exceeds what is required to urinate and smoke. His denial is not credible when looked at in light of the video surveillance footage that shows him leading AB off camera immediately preceding the alleged sexual assault.

[65] Additionally, more than one witness says that Mr. Thakoordeen was on the ground with AB, contrary to his denial: AB and Mr. Bacchus. While this case is not a credibility contest, and it is not a matter of stacking up witnesses on one side or the other, it is permissible for me to assess Mr. Thakoordeen’s denial in light of the multiple versions of the incident that do implicate him, and which I deemed to be credible for the reasons articulated above.

[66] Mr. Thakoordeen’s denial that there was struggle at the Jeep is not credible, given that both he and Mr. Bacchus had to effectively drag or forcefully guide AB to that area – she did not go willingly or on her own power. AB is not seen to reciprocate any touching. The parties also appeared to accept AB’s version that she was highly intoxicated.

[67] In light of my assessment, I reject Mr. Thakoordeen’s denial of sexual contact at the end of the parking lot. I took into account his evidence and his version of events in assessing the evidence of AB and Mr. Bacchus, and I assessed the various pieces of evidence with these various considerations in mind. Though I am cognizant of the burden and onus of proof and evidentiary standard, his evidence does not leave me with a reasonable doubt as to whether he committed a sexual assault.

IV. Conclusion

[68] Considering all the evidence, I am not left in a reasonable doubt either by Mr. Thakoordeen’s evidence or the Crown’s evidence.

[69] I find Mr. Thakoordeen guilty of sexual assault, as charged.

Boucher J. Released: January 02, 2019