Court File and Parties

COURT FILE NO.: CR-18-00000082-00AP DATE: 20190721 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SUKHBAJ SINGH

COUNSEL: P. Alexander, for the Appellant, Crown M. Dineen, for the Respondent, Mr. Singh

HEARD: 25 June 2019

S.A.Q. Akhtar J.

[1] On appeal from the acquittal entered on 25 October 2018 by Justice Richard Blouin of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[2] The respondent was charged with unlawful confinement and assault.

[3] The respondent, an Uber driver, was alleged to have picked up an 18 year old female requesting a ride home, cancelled the trip against her will, and taken her to an LCBO store away from her desired destination. The trial judge acquitted the respondent finding that the Crown had failed to disprove that he had an honest but mistaken belief that the complainant consented to the cancellation.

[4] The Crown appeals the acquittal on the basis that the trial judge misapprehended evidence, misapplied the doctrine of honest but mistaken belief, and failed to provide adequate reasons for his decision.

Background Facts

[5] On 21 May 2017 the complainant, an 18 year old woman, ordered an Uber ride to take her from Yonge and Eglinton to her home address in Mississauga. The respondent, the assigned Uber driver, arrived at approximately 2:43 p.m. to collect the complainant.

[6] En route to the complainant’s home, the respondent suggested that the complainant go for a drink with him. She informed him that she was not of drinking age. When the respondent proposed that they should share a drink at his residence, the complainant told him she had other plans and had no interest in going home with him.

[7] Half an hour into the journey, at 3:13:19 p.m., as the car approached the Hershey Centre in Mississauga, the respondent cancelled the contracted drive and turned the car around to drive in the opposite direction of the complainant’s home.

[8] The complainant testified that she had not requested the cancellation and spoke to her sister describing what had happened. When the complainant’s sister indicated that she was going to call the police, the complainant resisted because she was scared and “did not want to make it a big deal”. The complainant testified that she decided to “play along” with the respondent so that she could escape without police involvement. When questioned about this course of behaviour, the complainant said that she “didn’t want to get the police involved because, like I - who would?”

[9] At one point, the respondent grabbed the complainant’s hand and told her that he wanted to be with her. The complainant gave evidence that when he did so, she felt uncomfortable and unsafe but did not know how to respond.

[10] The respondent parked his car at an LCBO store near Eglinton and Warden, having driven past the original pick-up location. When the respondent entered the store, the complainant exited the car, and went to a nearby Winner’s store, using their phone to call the police.

The Trial Judge’s Reasons

[11] The trial judge found that the case turned on two issues: (1) whether the complainant had consented to the cancellation of the Uber ride and, (2) if she had not, whether the respondent knew or was wilfully blind to the fact that she was not consenting.

[12] The judge’s reasons centred on the issue of honest but mistaken belief in consent. He found that even though the respondent had not testified, there were two evidentiary examples demonstrating support for that defence.

[13] First, the complainant was inconsistent when cross-examined about the nine minute period following the ride cancellation. The judge found, at para. 7 of his reasons, that when it was suggested that the complainant had not told the respondent that “she did not want to go to his place and wanted to go home, she maintained “Yes, I did”. Then she allowed that it was only possible that she did say that. Then she was not certain. And finally, that she may not have said anything to the defendant about wanting to go home”.

[14] Second, the judge found that even though the complainant’s sister insisted that she come home, the complainant ended the call and played along with the respondent giving the appearance that she was acquiescing to the respondent’s desire to take her to his home.

[15] In addition, the judge accepted the defence argument that a security video recording of the respondent at the LCBO showed the respondent to be relaxed and in no rush to purchase alcohol. The judge found this behaviour to be inconsistent with the notion that the respondent had confined the complainant in his car. The judge placed “great weight” in the video because of “its independent recording of the last five minutes of this evolving scenario”. The judge also referred to the complainant’s text messages indicating that she did not want the police involved because it displayed “uncertainty to the gravity of the situation” and was “consistent with the complainant’s ‘playing along’ evidence”.

[16] The judge also agreed with the defence submission that the complainant was unreliable on “certain significant aspects of the Uber ride” including her texting at the time the trip was cancelled and the fact that when cross-examined on how long the respondent had placed his hand on hers, she initially said a “few minutes” but changed her testimony to a “few seconds” in cross-examination.

[17] In conclusion, the judge found the respondent’s conduct to be “reprehensible - both morally and professionally”. However, he found that the evidence showed an air of reality to honest but mistaken belief and a reasonable doubt that the Crown had established the necessary mens rea, including wilful blindness.

Grounds of Appeal

[18] The Crown appeals the acquittals entered by the trial judge on the following grounds:

1. The trial judge misapplied the honest but mistaken belief test;
2. The trial judge misapprehended a critical aspect of the complainant’s evidence;
3. The judge’s reasons were inadequate; and
4. The verdict was unreasonable.

[19] For the following reasons, I find that the appeal must succeed and a new trial is ordered.

DID THE JUDGE ERR IN HIS APPLICATION OF HONEST BUT MISTAKEN BELIEF?

Is Honest But Mistaken Belief an Issue?

[20] The appellant submits that the judge fundamentally erred in this case by erroneously applying the honest but mistaken belief defence by considering only the period after the respondent cancelled the Uber ride. The appellant argues that in order to pass the air of reality threshold, there had to be evidence giving rise to the mistaken belief before the ride was cancelled and the offence committed.

[21] The respondent, on the other hand, submits that when the judge’s reasons are read in their entirety, the judge’s acquittal was founded on a reasonable doubt about the respondent’s mental state based on the complainant’s unreliability and the respondent’s relaxed demeanour in the LCBO video rather than the defence of honest but mistaken belief.

[22] I cannot accept the respondent’s characterisation of the reasons for acquittal: the judge explicitly refers to the defence of honest but mistaken belief and considers the Supreme Court of Canada decision R. v. Pappajohn, [1980] 2 S.C.R. 120, when deciding whether evidentiary support exists for an honest but mistaken belief. The judge’s conclusion that the Crown failed to establish the necessary mens rea must be read in its entirety. At para. 12 of his decision the judge states that “I conclude not only ‘an air of reality’ to the honest belief submission, but a reasonable doubt that the Crown has established the necessary mens rea, including wilful blindness”.

[23] In my view, the judge’s verdict is based almost entirely on the Crown’s failure to disprove honest but mistaken belief. I will return to the judge’s comments on the complainant’s reliability later in these reasons.

Legal Principles

Unlawful Confinement

[24] The law defines unlawful confinement as occurring where for any significant period of time, the victim is restrained or directed contrary to their wishes, depriving them of their liberty to move from one place to another: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24; R. v. Luxton, [1990] 2 S.C.R. 711, at p. 723; R. v. Gratton, (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at pp. 472-473.

[25] There was no dispute in this case that unlawful confinement occurred when the respondent cancelled the Uber ride which he had been contracted to provide, and drove the car in an opposite direction from the complainant’s home.

Consent

[26] As noted, the judge felt that the outcome of the case turned on two issues: whether the complainant consented to the cancellation and/or whether the respondent knew she was not consenting or was wilfully blind to that fact.

[27] Consent is determined by reference to the complainant’s subjective state of mind at the time the offence occurred: R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 26. That consent must be communicated by words or actions: R. v. Barton, 2019 SCC 33, 86 Alta. L.R. (6th) 1, at paras. 86 & 91-2. When assessing this question, the accused’s perception of the complainant’s state of mind is irrelevant: Ewanchuk, at para. 30.

[28] The respondent argues that the definitions set out in Ewanchuk are not helpful because they apply to sexual assault and not forcible confinement. I agree that consent does not operate identically in every context: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 55. With respect, I see very little reason to distinguish between the two offences in the circumstances of this case.

[29] In this case, the complainant repeatedly testified that she did not consent to the ride cancellation. There was no evidence to the contrary.

[30] The judge, by focusing almost exclusively on the respondent’s state of mind, by implication accepted that there was no consent in this case.

Honest Mistaken Belief

[31] In Ewanchuk, at paras. 46-7, the Supreme Court of Canada defined honest but mistaken belief as a question of whether the accused believed that he had obtained consent by a complainant’s words and/or actions. The Court explained that:

In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence.

For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions.

[32] At paras. 48-9, the Court clarified the distinction between the actus reus and mens rea in relation to consent in the following way:

There is a difference in the concept of "consent" as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus, "consent" means that the complainant in her mind wanted the sexual touching to take place.

In the context of mens rea - specifically for the purposes of the honest but mistaken belief in consent - "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate. [emphasis added]

[33] In Barton, at para. 91, the Court underlined the point that “in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”.

[34] The Court in Barton cited, with approval, the comments of L’Heureux-Dubé J. in R. v. Park, [1995] 2 S.C.R. 836, at para. 44, that “[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant's actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary.”

[35] In determining whether to consider the defence of honest but mistaken belief in this case, the trial judge first had to decide whether there was an “air of reality” to the defence.

[36] In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53, the Court set out the following test:

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. See Osolin, supra; Park, supra. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.

[37] The court added, at para. 54, that the question is whether the evidence discloses a real issue to be decided by the trier of fact and not how the trier of fact should ultimately decide the issue.

The Trial Judge Erred in the Application of Honest But Mistaken Belief

[38] Following these principles, it was incumbent upon the trial judge in this case to scrutinise the evidence to determine if honest but mistaken belief was “in play”. The judge correctly identified that this evidence could come from any source and did not require the accused to testify: Cinous, at para. 53; R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 653-54 & 687.

[39] The judge pointed to two items that were “particularly instructive” of the existence of the respondent’s honest but mistaken belief: (1) the complainant’s cross-examination and inconsistency that she did not tell the respondent that she did not want to go his home; and (2) the complainant’s actions in both ending the phone call in which her sister had demanded she come home and in “playing along” with the respondent.

[40] The first item, the inconsistency, was described as follows:

Firstly, the complainant was cross-examined regarding what she said to the defendant during the nine-minute period after the trip home was cancelled. When it was suggested that she did not tell the defendant that she did not want to go to his place and wanted to go home, she maintained "Yes, I did". Then, she allowed that it was only possible that she did say that. Then, that she was not certain. And finally, that she may not have said anything to the defendant about wanting to go home.

[41] The judge’s reliance on this evidence was an error and a misapplication of the defence of honest but mistaken belief. I come to this conclusion for the following reasons.

[42] First, the supposed inconsistency related to a matter wholly irrelevant to the question of honest but mistaken belief. For the reasons set out above, the evidentiary foundation for honest but mistaken belief was not whether the complainant indicated that she did not want to go to the respondent’s home.

[43] The question for the trial judge was whether there was some evidence or air of reality to the fact that the respondent had an honest but mistaken belief that the complainant had communicated consent to go to his home by words or behaviour. In other words not saying “no” did not equate to saying “yes”. Any failure by the complainant to not indicate that she wanted to go to the respondent’s home could not afford the respondent the belief of “affirmative consent” required for the defence of honest but mistaken belief as set out in paras. 46-7 of Ewanchuk.

[44] Secondly, notwithstanding its irrelevance, the trial judge appears to have misapprehended the evidence relating to the “inconsistency”. The “Yes, I did” answer was a response to defence counsel’s suggestion that the complainant “hadn’t yet said anything to him about either wanting to go home or not wanting to go to his place”. The Crown objected to the suggestion as unfair because the complainant clearly had indicated to the respondent that she wanted to go home.

[45] In response, the defence counsel, very fairly, sought to clarify the question by saying “I’m not talking about before. During the nine minute period of time from my review of this text, I’m suggesting to you during that nine minutes from 3:13 to 3:22, you haven’t said either you want to go home or I don’t want to go to your place, at this point?”. The complainant then replied “it’s possible”.

[46] The two answers were not an inconsistency but responses related to different time periods.

[47] Thirdly, the evidentiary foundation required to support honest but mistaken belief had to involve an analysis of what occurred before or at the time the offence was committed. In other words, the judge had to scrutinise what had occurred prior to or at the time the respondent cancelled the Uber ride. However, there was no such scrutiny or reference. The judge simply concentrated on events after the respondent cancelled the ride.

[48] The absence of any analysis prior to the cancellation is even more troubling in light of the complainant’s repeated, and unchallenged assertions that she never consented to go to the respondent’s home. Indeed, at its highest, defence counsel’s lengthy and somewhat repetitive cross-examination only appears to suggest that the complainant had failed to say “no” more explicitly rather than communicate consent.

[49] I would add, with respect, that the additional evidence relied upon by the judge - the respondent’s behaviour at the LCBO and the complainant’s “playing along” after the respondent had cancelled the ride - could not provide a basis for the respondent’s honest but mistaken belief in light of the evidence that the complainant had repeatedly said that she did not want to go home with him: Ewanchuk, at para. 52.

[50] For these reasons, the appeal must be allowed.

DID THE TRIAL JUDGE GIVE ADEQUATE REASONS?

[51] The respondent argues that the reasons, when read as a whole, disclose that the acquittal was based on the complainant’s lack of reliability regarding the content of her conversation with the respondent during the Uber ride. In his submission, the respondent claims that in the absence of a reliable account from the complainant, the judge could only be left with a reasonable doubt.

[52] Such a finding was, of course, open to the trial judge. However, as I have already said, the judge’s reasons expressly decided the case on the basis that the Crown had failed to disprove honest but mistaken belief.

[53] The only paragraph referring to the complainant’s reliability is paragraph 11 reproduced below:

Although not necessary to decide the above issues, I agree with defence regarding the submission that Ms. Reiss was not reliable on certain significant aspects of the Uber ride, including what she said she was doing (texting) at the time the trip was cancelled. She clearly was not texting her friend until a significant period after the cancellation. Also, in cross-examination she conceded that the defendant placed his hand on hers for a few seconds. In chief, she said the defendant grabbed her hand for "a good amount of minutes". Those inconsistencies were just a few. There were others.

[54] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25, and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 25, the Supreme Court of Canada set out the test specifying when reasons for judgment could be deemed as sufficient: a trial court must provide reasons for its decision that explain the result of a case and permit meaningful appellate review.

[55] On appellate review, the courts are to take a functional, substantive approach to the sufficiency of reasons, reading them as a whole in the context of the evidence, arguments, and the trial. The basis for the trial judge’s verdict must be capable of being made out and a detailed description of the judge’s process in arriving at the verdict is unnecessary. In order to determine whether the verdict is so capable, the court looks not only to the evidence but the submissions of counsel to determine the live issues as they emerged during the trial. The party that lost is entitled to know “why” they lost and the reasons must provide for meaningful review: R.E.M., at para. 35; R. v. Newton, 2006 O.J. No. 1008 (C.A.), at para. 3; R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at paras. 45–6; R. v. Tong, 2014 ONSC 1861, at para. 36.

[56] Assuming that the respondent is correct and the judge found reasonable doubt based on the lack of the complainant’s reliability, it was essential that he explain how he did so, particularly as he identified consent as one of the critical issues in deciding the case.

[57] However, there is nothing in these reasons to explain the verdict based on the judge’s comments. There was nothing in paragraph 11 or the rest of the judgment explaining consent or lack of consent. There was no reference as to why the inconsistency in texting led to the conclusion of a reasonable doubt on the offences. There is nothing in the reasons for the losing party, the Crown, to know why they “lost” the case. Nor do the reasons provide for meaningful appellate review. Accordingly, I find that if the basis for the acquittal was the complainant’s lack of reliability, the judge failed to provide adequate reasons for his verdict.

[58] Whilst the respondent lists several factors that may have resulted in the judge’s decision that the Crown had failed to prove its case, these factors are absent from the judgment and one cannot know what caused the judge to have a reasonable doubt based on the reasons given.

Conclusion

[59] For the above reasons, the appeal is allowed and a new trial is ordered before a different jurist.

[60] As there must be a new trial, I find it unnecessary to deal with the appellant’s argument that the verdict was unreasonable.

[61] In accordance with the newly agreed protocol governing the setting of re-trials upon appeal, the respondent is ordered to attend courtroom 505 at the College Park courthouse in Toronto on Thursday, 29 August 2019 at 2:00 p.m.

S.A.Q. Akhtar J.

Released: 21 July 2019