COURT FILE NO.: CR-18-1363
DATE: 2019 10 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Lynch, for the Crown
- and -
WAQAR ALI
L. Daviau and L. Trevelyan, for the Defendant
HEARD: June 4, 5, 10, 11, 12, 13, 2019
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR JUDGMENT
D.E HARRIS J.
[1] The accused, an Uber driver, is charged with sexually assaulting two inebriated young women in separate incidents several months apart. It was admitted by the accused when he testified that each had been passengers in his vehicle. He denied in testimony, however, that there had been sexual contact. It is conceded that neither consented to sexual contact; neither, given their level of intoxication, had the capacity to consent.
[2] The only issue on this trial is whether the sexual contact took place. Because of their state at the time of the alleged assaults, neither complainants’ evidence is sufficiently strong either in isolation or taken together to anchor a finding of guilt. In fact, one of the complainants had no recollection of the events from start to finish. The other was in and out of consciousness. She testified to Mr. Ali putting his hand up her shirt and said that he was touching his penis. But there were some reliability and credibility concerns with her evidence.
[3] The question of guilt or innocence in this trial hinges on two pieces of circumstantial evidence: First, DNA evidence of the accused found on the complainants; and, Second, video evidence of what the Crown alleges is the accused’s vehicle in the area of one of the complainant’s residence.
[4] The lynchpin of the case is the Crown’s application to have the evidence of the two complainants used as similar fact evidence to bolster each of the allegations.
[5] A brief survey of the evidence led at trial is first necessary.
THE M.P. ALLEGATIONS
[6] The allegation is that M.P., 28 years old at the time of trial, was sexually assaulted in the early morning hours of June 12, 2016. She was to go out to a club with a friend of hers, J.W., on June 11. She had not been drinking for some months because of issues she had with alcohol. In this connection, in 2017, she was convicted of the drinking and driving offence of care and control “over 80.”
[7] She and J.W., along with others, began drinking at a friend’s house. M.P. had approximately 5-6 drinks of vodka and cranberry or orange. They then went to a club at about 11 p.m. where M.P. drank some more of the same. She could not remember how much she drank at the club.
[8] Ms. P. had no recollection of anything that transpired from this point on until about 12 hours later. She could not identify Mr. Ali nor say what occurred when she was with him. She was found completely disoriented the next morning in a parking lot at 374 Dupont Avenue near Spadina Road. At about 8 a.m., Ms. P. was noticed by firefighters and transported to Mount Sinai Hospital by ambulance. Toxicology was performed on a blood sample collected at 4:00 p.m. that day.
[9] Extrapolating it back to 5:00 a.m., around the time of the disputed events, Ms. P.’s blood alcohol concentration would have been between 185 to 295 milligrams of alcohol in 100 millilitres of blood.
THE EVIDENCE OF J.W.
[10] J.W.’s evidence differed in some respects from that of M.P. She was 31 at the time of trial. M.P. came to her apartment before they went to the club. She did not think there was any drinking before going to the club and said that M.P. was perfectly sober and had not drunk any alcohol well into their time at the club. J.W. went out for a cigarette and when she came back, M.P. was suddenly extremely intoxicated. Soon after, they went to a restaurant across the street from the club. M.P. could not walk very well and was helped into a cab that she rode in with J.W. The plan was that she was to stay with J.W. at J.W.’s apartment on Palmerston Avenue.
[11] When they arrived at the apartment in the cab at around 4 a.m., M.P. became irrational and would not get out of the cab or go into the apartment with J.W. It was at this point that Mr. Ali happened to drive up. He was not identified in court by either M.P. or J.W. but he admitted that it was him in his evidence. Eventually, despite J.W. asking him to leave them alone, M.P. got in Mr. Ali’s vehicle and he drove off with her at a high rate of speed.
THE VIDEO SURVIELLANCE EVIDENCE FROM THE PARKING LOT ON DUPONT
[12] There was a video camera recording the parking lot at 374 Dupont Street, not more than 2 kilometres from J.W.’s apartment on Palmerston Avenue. At 5:36 a.m. Mr. Ali’s Nissan Sentra drives into view. It parks. From then on, Mr. Ali can be seen getting out of the driver seat periodically and going over to the passenger seat area where Ms. P. was and talking to her. Ms. P. was in the front passenger seat well. Mr. Ali would return to the driver’s seat and the cycle would repeat itself. Mr. Ali audio recorded some but not all of their interactions. They were played to Ms. P. in cross-examination and in Mr. Ali’s examination-in-chief.
[13] At about 5:50 a.m., Mr. Ali pulled Ms. P. out of his car and left her on the pavement of the parking lot. It is alleged in the 3rd count of the indictment that Ms. P.’s knees were injured when she was dragged out of the car. The allegation is one of assault bodily harm. Mr. Ali then drove off. Ms. P. then stumbled around in the parking lot area for a period of time.
THE DNA EVIDENCE [M.P.]
[14] A sexual assault registered nurse examiner performed a rape kit on Ms. P. at Mount Sinai Hospital on June 12, 2016. When she first saw Ms. P. at about 12:15 p.m., Ms. P. was asleep. When she woke up at about 2:10 p.m., the kit was completed. Swabs were taken of the vagina, rectal area and the breasts. Two separate swabs were done of each breast, focussing on the nipples and the areole.
[15] Mr. Ali could not be excluded as the source of DNA found on the swab from the areole\nipple area of Ms. P’s right breast. It could not be discerned what type of bodily substance had left the DNA. Using the STRmix software program which is used to analyze mixtures of different DNA, the Centre of Forensic Sciences (CFS) expert found 3 individual DNA types. One was from Ms. P., one from a male and one was unknown. Comparing it to a known sample from Mr. Ali, the mixture was 18 billion times more likely to originate from Ms. P., Mr. Ali and the unknown than to originate from Ms. P. and two unknowns. In layman’s language, there was a very high probability that the male DNA came from Mr. Ali.
THE S.J.S. ALLEGATIONS
[16] At the time of trial, Ms. J.S. was 26 years old. On February 28, 2016 she was driven by a friend to another friend’s apartment near Square One in what are apparently called the Monroe Buildings. The group, including Ms. J.S. had some drinks and made dinner together. They then went out for drinks at a club in downtown Toronto. One of S.J.S.’s friends took her phone because he was concerned she was going to lose it.
[17] At the club, a girl she had never met before bought Ms. J.S. two tall can beers. The group of friends left at about 3:00 a.m.
[18] When Ms. J.S. came out of the bar on to the street, she immediately felt that something was wrong. She had never felt before the way she felt that night from drinking alcohol. Inexplicably, her friends vanished and she was alone. She sat down on the curb and cried.
[19] A man drove up, rolled down the passenger window and offered to take her home. She got in the passenger seat. His car was silver on the outside. She said it was a car, not a min-van or an SUV. She gave a relatively general description of the driver to the police which was not inconsistent with Mr. Ali but was quite vague and had little forensic value. As they drove, S.J.S. was not able to keep her eyes open. She was going in and out of consciousness. At some point she gave him her address in Mississauga.
[20] During the drive, the driver attempted to put his hand up her shirt. She swatted it away and said she would call the police. He was asking her for a “blow job” (bj) constantly, saying that he would drive her anywhere she wanted to go. He said she was so beautiful. At one point she awoke and saw that his penis was out of his pants and he was touching it.
[21] She testified that she told him that she had money and would pay him for the ride. In court, she protested that she did have money but added that her mother would pay in any case. The way this evidence came out and, in the context of all the evidence, there is some doubt in my mind whether Ms. J.S. had money to pay Mr. Ali.
[22] They first went, at Ms. J.S.’s request, to the area of the Square One apartment so she could retrieve her cell phone from her friend. She could not remember how he got this address but it seems clear that she must have given it to him. Ms. J.S. said she did not run from the car because she was not thinking clearly and was not in her right mind.
[23] She did not get her phone. Eventually they arrived at her home. She believed that she arrived at about 6 a.m. because the sky was just beginning to lighten. Because of her intoxication, she did not remember how she got up to her bedroom but thought it unlikely that she could have got there herself. Ms. J.S. remembered waking up in bed, fully clothed, and seeing the driver, Mr. Ali, standing in the corner of her bedroom. She testified that she saw his face.
[24] She fell back asleep but woke up in her bed sometime later with her pants off, wearing no underwear and with the bedroom door open. Because she has brothers, it was her testimony that she never would have slept without bottoms in that way. The contents of her wallet, as shown in police pictures, were strewn about. Her cards were out of their slots, something Ms. J.S. denied doing herself. She said that her money was gone from the wallet.
[25] Upon awaking, Ms. J.S. told her mother what she remembered. They phoned the police. She went to the hospital and a sexual assault kit was completed.
[26] In cross-examination, it was clear that there were many gaps in Ms. J.S.’s memory. She had no memory of getting into the house. She thought Mr. Ali might have carried her in. Her mother was regularly sleeping on a couch very close to the foot of the stairs to the second floor. S.J.S. did not remember going past her. She could not remember whether she smoked marijuana that night although at this time in her life, she admitted that she often did. The defence argued that she was not intoxicated as she said she was.
[27] Ms. J.S. denied offering Mr. Ali a “bj” for the ride home. Counsel was clear that in making this suggestion, she was not suggesting that Ms. J.S. was going to follow through. It was just an offer to get a ride. Given Ms. J.S.’s response and Mr. Ali’s evidence that Ms. J.S. did say this, it must be considered a possibility.
[28] I would note here that I dismissed a Section 276 application made pre-trial with respect to Ms. J.S. She had said to the police that she had a boyfriend at the time of the events. At the preliminary hearing she said that she did not have a boyfriend. This appeared to be a discrepancy rooted in semantics. In any case, it was not evidence of sexual activity and thus did not engage Section 276. It was admissible. The ruling was that if Ms. J.S. was to explain the discrepancy by referring to her sexual prior history, although this would engage Section 276, it would be admissible for that very narrow purpose. This, in essence, is what happened at the trial.
[29] Another part of the application was based on the finding of her boyfriend’s semen on her underwear. As she said to the police, the complainant could not remember having sex with him around that time. The defence wanted to cross-examine Ms. J.S. to test her memory generally. This, in my view, was a blatantly inadmissible purpose. It was completely irrelevant to any issues in the case. It also engaged the twin myths. Cross-examination on this subject matter was prohibited: R. v. Goldfinch, 2019 SCC 38, [2019] 8 W.W.R. 1 at paras. 45-46
THE DNA EVIDENCE (S.J.S.)
[30] At the hospital, in accordance with sexual assault protocol, swabs were taken of each breast as well as the vagina. Mr. Ali could not be excluded as the source of DNA found on the areole\nipple area of Ms. J.S.’s left breast.
[31] Specifically, the swab from the left breast analyzed with the STRmix program showed that there were four contributors. Ms. J.S. was the highest contributor, followed by Mr. Ali and two unknowns. Again, the source of the DNA could not be ascertained, whether it be blood, dry cells or other bodily fluids. It was 48,000 times more likely that it came from Ms. J.S. and Mr. Ali and two unknowns than if it came from Ms. J.S. and three unknowns. Although this was a lower unlikelihood than is often seen with DNA evidence, the CFS expert said it still would be a very unlikely coincidence if it were not Mr. Ali. Of course, the expert was not taking into account in her probability calculations the other evidence in the case, most notably, the undisputed evidence that Mr. Ali was with Ms. J.S. that night.
THE VIDEO EVIDENCE
[32] There is video surveillance on the street outside Ms. J.S.’s townhouse. There are two cameras and her unit is at the edge of each image caught by the two cameras. Unfortunately, neither camera for this reason recorded Ms. J.S. going into her unit on the morning of February 28, 2016.
[33] However, the surveillance does show a van coming into view at about 6:14 a.m. It backs into Ms. J.S.’s driveway and ultimately pulls in front ways. It stops moving shortly afterwards. The shadows of two people can be seen at about 6:16 a.m. It looks like they are going up the stairs. At 6:49 a.m., the van is now more easily visible as the sun has risen. It is a silver van; a police officer testified that it looked like a Dodge Caravan to him. The van then drove out of the driveway and away. Virtually no other vehicles other than the van can be see on the video between 6:14 a.m. and when the van leaves at 6:49 a.m.
THE EVIDENCE CONCERNING THE VEHICLES MR. ALI REGISTERED WITH UBER
[34] It was an agreed statement of fact between counsel that Mr. Ali had two vehicles registered with Uber: a black Nissan Sentra, and a 2007 Dodge Grand Caravan van. In his evidence, Mr. Ali said the van was beige or silver.
[35] It was also agreed that on February 28, 2016, Mr. Ali had indicated to Uber as he was required to do before a shift, that he was driving the Dodge Caravan that night.
THE EVIDENCE OF C.C.
[36] Mr. C. was 28 years old at the time of trial and is Ms. J.S.’s brother. He lives with her and her mother and another brother. On February 28, 2016, he watched Game of Thrones episodes in the basement all night long. At 6:00 a.m. to 6:30 a.m. he heard people coming in from the front door. There were two sets of footsteps. He assumed one of them was Ms. J.S. He said it was easy to hear; everything could be heard in the house because it was government housing and the walls were thin. He had lived there for 7-8 years and had become used to the sounds.
[37] Shortly afterwards, he went up to bed. His room was on the 2nd floor; Ms. J.S.’s was on the third floor. About 15-20 minutes after he laid down, he heard someone come down from the 3rd floor. He got up to look to see who was leaving but he did not see anyone.
[38] When he woke up around noon, there was a lot of commotion. Ms. J.S. was talking to their mom and was crying.
MR. ALI’S EVIDENCE
[39] Mr. Ali, now 30 years old, admitted being with both women on the dates of the alleged offences but denied touching them sexually. He testified that he picked up M.P. on Palmerston Avenue in his Nissan Sentra. It does not seem as though this was an Uber call although his GPS was still registered on the Uber system. It was an agreed statement of fact that he was in the immediate vicinity of J.W.’s apartment at 4:40 a.m.
[40] He said he came across two women fighting. One woman (J.W.) was trying to pull the other woman (M.P.) out of a taxicab. When finally successful, and the cab had driven away, the two women continued fighting. M.P. came towards his car and asked if she could come with him. He said yes. She got in and J.W. tried to get her out. M.P. said “drive” and so he did. Mr. Ali testified that although he knew the women had been drinking, he soon began to understand that Ms. P. was more drunk than he had thought. She began giving him random instructions to her home without even looking at the streets. He tried to get her address from her but could not.
[41] He stopped the car about four times before arriving at the parking lot at 374 Dupont. He gave her ultimatums to either give him her address or get out of the car. She became more and more unresponsive.
[42] He recorded some although not all of their interactions on audio. On these audio recordings, he is beseeching her to give him her address or agree to take a cab home. Eventually, as shown by the video surveillance camera, he pulled her out of his vehicle and left her on the pavement of the parking lot. He then drove away.
[43] When questioned in-chief, he said that he did not consider taking her to the hospital. He did not feel that he could go to the police as Uber was getting police tickets at the time—confirmed by an agreed statement of facts—and he did not want to get a ticket.
[44] With respect to Ms. J.S., Mr. Ali said that he ate some food in the King Street/Brant Street area on that night. As he was walking to his vehicle, a woman was walking towards him. He high fived her and he said, “Happy Saturday.” He asked how her night was and she unloaded, saying that she lost her phone, had lost her friend and was kicked out of a cab.
[45] Jokingly, he said that she should have given the cab driver a “bj” and he would have dropped her at home. She asked him to give her a ride to her home in Mississauga but said she had no money. He said, kidding again, can I get a “bj?” She said ok and Mr. Ali, not believing his good fortune, asked her whether she was serious. She replied in the affirmative. She got in the car and he started driving. He continued to ask if she was serious and she said that she was.
[46] As an aside, it is somewhat implausible that this interaction would have happened the way Mr. Ali said it did. Most single women—and I would include Ms. J.S. in this—who have been drinking in downtown Toronto would have been stand-offish with a male stranger late at night. The degree of familiarity I find unlikely. The sexual is equally implausible. Nonetheless, a judge cannot pretend to know the personality of witnesses in a real-life context. It is possible that it happened the way Mr. Ali said it did.
[47] According to Mr. Ali, Ms. J.S. told him to go to Columbus Crescent in Mississauga. When they got there, she said it was the wrong address and she asked to be driven to Mississauga, the Monroe buildings. She was upset about losing her phone. He realised that she was misleading him about the “bj” and they started arguing. Eventually in the midst of the verbal argument, she got out of the car. She said she was going to “fuck” him.
[48] Mr. Ali testified that he never went to Ms. J.S.’s home and was never inside it. The van seen on the video was not his, although the colour was the same as his. He was driving the Nissan Sentra that night. He had told Uber that he was driving the Dodge Caravan so he could get the XL rides, rides with 4-6 people in a larger car. There was more demand for these type of rides and they paid a better fare. He had lied to Uber before about what car he was driving.
[49] In cross-examination, Ms. Lynch asked what would happen when he arrived for an XL fare with a car that was too small for that many people. Mr. Ali testified that it was not a major problem. He often fit 5-6 people in the Nissan.
THE SIMILAR FACT EVIDENCE APPLICATION
[50] The decision in this case turns on the outcome of the Crown’s similar fact application. The Crown requested that the M.P evidence be held admissible with respect to the S.J.S. evidence, and vice a versa.
[51] The starting point with similar fact evidence is that evidence outside the scope of the indictment whether count to count or external to the indictment, is presumptively inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.
[52] The gateway to admission is opened if the probative value of the evidence outweighs it prejudicial effect. The test is the same whether it is a jury case or judge alone. The application of the test may differ, however: R. v. Tsigirlash, 2019 ONCA 650 at paras. 38-40; R. v. MacCormack (2009), 2009 ONCA 72, 241 C.C.C. (3d) 516 at 56, 68-69. Prejudice is often reduced when a judge is the trier of fact.
[53] The critical step in evaluating probative value is to isolate the live issues in the case: Handy at paras. 73-74; Tsigirlash at para. 32. Probative value and relevance are close cousins. Probative value is qualitative; relevance is quantitative. Both are based on the relationship of a primary fact to a proposed conclusion: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16 at para. 204
[54] The Handy emphasis on isolating the live issue reflects this process. The primary facts are the tendered evidence, the live issue is the proposed conclusion the Crown seeks to draw. A weakness with either impacts on the probative weight of the similar fact evidence. If the issue the primary evidence is directed towards is not indeed a live issue, no probative value is generated towards the proposed similar fact proposition.
[55] The live issue here is whether Mr. Ali intentionally touched the complainants in a sexual manner. His defence to the allegation is a straight denial. Furthermore, the evidence and argument raises the possibility that Mr. Ali’s DNA got on the complainants accidentally rather than by sexual touching.
[56] The probative value of the similar fact evidence in this case is momentous. It is best embodied in the expression, “Lightning never strikes the same place twice.” Mr. Ali had two highly intoxicated women in his vehicle. One of the two alleged sexual touching and sexual propositioning. Both were found soon afterwards to have Mr. Ali’s DNA on their breasts. How likely is it that the finding of DNA on both was a coincidence as opposed to Mr. Ali deliberately, for a sexual purpose, touching them on their breasts while they were unconscious?
[57] Similar fact evidence derives its power from the improbability of coincidence: R. v. Arp 1998 CanLII 769 (SCC), 1998 CarswellBC 2545, [1998] 3 S.C.R. 339, 129 C.C.C. (3d) 321 at paras. 44-46 (Carswell). As Wigmore said, “the improbability of a like result being repeated by mere chance … carrie[s] probative weight.” (Wigmore on Evidence, vol. 2 (Chadbourn rev. 1979), at p. 245, approved in Handy at para. 81). The conjunction of the evidence of Ms. P. and Ms. J.S. and the evidence of Mr. Ali’s DNA on their breasts powerfully magnifies the Crown’s case against Mr. Ali on both. There is a synergistic effect.
[58] There is no need to match minute details of the two different allegations. The DNA findings drive the similar fact admissibility. Coincidence being demonstrably improbable, the alternative that Mr. Ali deliberately and with sexual intent touched their breasts is greatly enhanced.
[59] The likelihood that Mr. Ali’s DNA was on both complainants as a result of bad luck or coincidence is negligible. In the R. v. Doodnaught case (2013 ONSC 8022,112 W.C.B. (2d) 199, aff’d 2017 ONCA 781, 358 C.C.C. (3d) 250 at paras 152, 157) 21 women said that they had been sexually assaulted during surgery by the accused, an anesthesiologist. It was agreed that each count could be treated as similar fact evidence. Justice McCombs concluded that,
…it is not merely improbable, but virtually impossible, that these … allegations against a single individual could be attributed to coincidence. (para. 849)
[60] The same is true of the foundational similar fact case, Makin v. A. G. New South Wales [1894] A.C. 57 (P.C.). One deceased baby buried in the backyard is one thing; a number of them is quite another.
[61] The “brides in the bathtub” case is another example. Justice Binnie commented in Handy,
43 …As it was put in one American case: "The man who wins the lottery once is envied; the one who wins it twice is investigated" (United States v. York, 933 F.2d 1343 (7th Cir. 1991), at p. 1350).
128 An alleged pattern of conduct may gain strength in the number of instances that compose it. The cogency of the similar act evidence in the "brides in the bathtub" case undoubtedly gathered strength from the fact the charge related to the third victim who had died under identical circumstances to her two predecessors: R. v. Smith (1915), 84 L.J.K.B. 2153 (C.C.A.).
[62] Three brides drowned in a bathtub. The identical tragic end of each, with the common element of being married to the accused, betrayed coincidence.
[63] There are only two instances here, as opposed to the 21 Justice McCombs was dealing with in Doodnaught. Nonetheless, the same principle holds. There is strength in numbers. Repetition engenders probative value.
[64] With respect to Ms. P., it could be said that the DNA found on her right breast was possibly deposited innocently. The 374 Dupont Avenue video shows Mr. Ali touching Ms. P. repeatedly to rouse her from her highly intoxicated, virtually comatose state. Furthermore, he was talking very close to her in the video clips and based on his evidence. He eventually pulled her bodily out of his car and left her on the pavement.
[65] It was Ms. P.’s evidence that she was wearing a body suit and shorts that night with no jacket or coat over it. When asked by the Crown whether she was wearing a bra she answered to the effect, “the body suit takes care of that.” The video from the parking lot and a still photograph of Ms. P. taken that night show that the body suit was similar to a one-piece bathing suit.
[66] In a skillful cross-examination of the DNA expert from the CFS by Ms. Daviau, it was raised as a possibility that Mr. Ali’s DNA was accidentally deposited from his mouth. It could also have been transferred. It could have got on her breast in an innocent way. This is unlikely but it is a remote possibility.
[67] The possibility of accidental DNA deposit does not exist with respect to Ms. J.S. She was wearing four layers on top that night in late February. She was wearing a bra, two tank tops and one close fitting long sleeve shirt. DNA from Mr. Ali could not have innocently been deposited on her left breast. Transfer is unlikely as well.
[68] I do not accept that DNA can so easily be conveyed and transferred as the defence would suggest. There is no possible innocent explanation for the accused’s DNA on Ms. J.S. While a statement of this same strength may not be available with respect to Ms. P., that this be coincidence boggles the mind. The two allegations are mutually reinforcing, and the probative value generated is highly cogent against Mr. Ali.
[69] With probative value of this order, it is a rare case in which prejudice can supersede and outweigh it. It does not here. First, the initial impact of this evidence by-passes the character forbidden reasoning which is the source of prejudice in the similar fact area: Handy at paras. 31-40. The DNA evidence is scientific evidence. It directly evidences acts, not disposition or character. It is specific and precise, enhancing probative value towards inferences that do not flow through the medium of character (Handy at para. 87).
[70] The evidence does not require a credibility evaluation as is often the case with similar fact evidence. Similarly, reliability of the DNA evidence is a non-issue.
[71] While it may be argued that the evidence brings with it the inference that Mr. Ali touched the women’s breasts, and this does not reflect well on his character, this is a distinctly secondary fallout from the evidence. In any case, as the finder of fact, I exclude any such reflections from my consideration of this trial. The discussion above with respect to probative value demonstrates the use to which the count-to-count evidence is being put on this trial: see R. v. Calnen 2019 SCC 6, 430 D.L.R. (4th) 471 at para. 188 per Martin J. dissenting in part.
[72] Therefore, the moral prejudice from the evidence is minimal if not non-existent. Justice Watt has held that reasoning prejudice is not generally an issue in a judge alone trial where the similar fact evidence is count-to-count: MacCormack at para. 69, also see Tsigirlash at paras. 38-41. That is certainly the case here as well.
[73] I conclude, for these reasons, that the count-to-count Crown application succeeds, and the allegations of each complainant can be used with respect to the other.
MR. ALI’S CREDIBILITY
[74] Mr. Ali denied being in Ms. J.S.’s room or even being near her townhouse. The evidence clearly shows that his testimony in this regard is false. Ms. J.S. testified through her hazy memory that she saw him in the corner of her room. On its own, this would be accorded little weight in view of her intoxication. However, it does not stand alone. A van matching the general description of Mr. Ali’s van registered with Uber that night arrives at the same time Ms. J.S. likely arrived. Although a Dodge Caravan is a common vehicle, this still rates as either an extraordinary coincidence or as proof of Mr. Ali’s presence. The latter is far more persuasive.
[75] Further support of Mr. Ali’s presence is the evidence of C.C. that he heard two people come in the townhouse and one person leave about a half hour later. Also, although a minor factor, this must be put together with Ms. J.S.’s wallet being strewn around and the cards out of their slots. She testified that she would not have done this and, despite her state, this is logical. Mr. Ali however, probably looking for money to compensate him for his troubles, having failed in persuading Ms. J.S. to grant him sexual favours, likely took the cards out of their proper place in the wallet.
[76] Mr. Ali denied that he or any vehicle he was driving was at Ms. J.S.’s townhouse. But Mr. Ali told Uber that he was driving the Dodge Caravan that night. In his evidence he attempted to explain this away by saying that he would often tell Uber he was driving the Dodge Caravan when he was driving the Nissan sedan in order to get more and better fares. Ms. Lynch’s cross-examination effectively demonstrated the absurdity of this as at least some of the fares would have been bitterly disappointed when he arrived in the smaller vehicle. He said he had gotten 6 people in his Nissan, obviously a ridiculous and impossible explanation. This explanation, particularly in light of the very strong Crown evidence with respect to the presence of the Dodge Caravan, is incredible.
CONCLUSION ON THE TWO SEXUAL ASSAULT COUNTS
[77] Care must be taken with respect to the application of the standard of proof to a case in which the accused testifies and credibility is important. The fundamental understanding, instilled by innumerable judicial authorities including R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and the judicial authorities before and since, is that a trial must not be decided on the basis of whether the Crown evidence or the defence evidence is preferred. It must be recognized that it is a pitfall to choose between the Crown’s case and the defence case. It is not a binary decision. This abridges the standard and burden of proof on the Crown. The Crown must prove guilt beyond a reasonable doubt. Belief of Mr. Ali’s denial or having a reasonable doubt about it, in the context of all the evidence, entitles him to an acquittal.
[78] The Crown evidence, in the context of all of the evidence, including the accused’s, must prove the case beyond a reasonable doubt in order for proof to have been made to the criminal standard. M.P. provided no evidence of sexual assault. Ms. J.S. testified to the accused’s hand going up her shirt, sexual talk and Mr. Ali touching his penis. There are reliability issues with Ms. J.S.’s evidence and some credibility issues, although not of major importance.
[79] However, taking the Crown’s evidence cumulatively, the nucleus being Mr. Ali’s DNA on the womens’ breasts but also including Ms. J.S.’s evidence that Mr. Ali put his hand up her shirt, touched his penis and made sexual comments to her, and adding to it the corroboration of Ms. J.S.’s evidence that Mr. Ali was indeed in her room by the presence of his van in her driveway and the C.C. evidence, the case for the Crown is formidable.
[80] Turning to Mr. Ali’s evidence, I reject it categorically with respect to his denial of his presence in Ms. J.S.’s townhouse. I have no doubt he was there. Furthermore, taking this rejection together with the evidence of his DNA on the two complainants and all the other evidence in the case, I have no hesitation in rejecting his testimony that he did not touch the two women sexually. His evidence has no credibility and does not leave a reasonable doubt.
[81] Subjecting the sum total of my factual findings to the reasonable doubt standard, as it applies to a credibility case, I have no reasonable doubt but that Mr. Ali touched both women on their breasts for a sexual purpose. He will be found guilty of both sexual assault counts against him.
THE ASSAULT CAUSING BODILY HARM COUNT
[82] Mr. Ali is charged in count #3 with assault causing bodily harm. It is alleged that this occurred when he dragged Ms. P. from his car and left her on the parking lot pavement at 374 Dupont Street. It is clear from Ms. P’s evidence and the sexual assault nurse’s evidence that it was discovered in the aftermath of this incident that her knees were badly scraped and abraded. Ms. P. had no recollection of how this occurred.
[83] As mentioned, the video from the Dupont parking lot shows Mr. Ali dragging Ms. P. out of the car. However, the passenger door obscures much of the picture. A clear image of her knees is blocked. The quality of the video is mediocre which does not help. However, what is clear is the way Ms. P. was hauled out of the vehicle, her knees would have been the first part of her body to make contact with the pavement.
[84] After Mr. Ali drives away, Ms. P. is left sitting on the pavement, with her legs in front of her. She seems to be rubbing her knees. Soon after, she stands up and begins aimlessly walking around the parking lot. Scrapes on both knees are clearly visible. They appear to be roughly of the same size, shape and colour on both legs which suggests that the injuries occurred simultaneously. The colour of the scrapes on the knees is similar to the pavement surface.
[85] Has the Crown closed off the possibility that Ms. P.’s knees were injured at a previous time that night? She had been highly intoxicated beginning several hours before. However, most probably, Ms. P. or Ms. W. would have noticed a fall or injuries of this type before Mr. Ali drove away with Ms. P. Ms. W. testified that she did not notice anything. Although she was intoxicated, this evidence was reasonably reliable.
[86] The accumulation of evidence proves that the knees were scraped when Mr. Ali hauled Ms. P. out of his car and left her on the pavement. Mr. Ali, desperate to remove Ms. P. from his car, dragged her knees on the pavement as he was removing her. The force applied was without her consent. The injuries to the knees were more than trifling and transient. Ms. P. testified that her knees took six months to heal and that she has permanent scars. Bodily harm is made out to the beyond a reasonable doubt standard.
[87] The defence of property under Section 35 (1) raised by the defence is not entitled to succeed. There are four requirements. Two of them are not met. Subsection (b) requires that there be reasonable grounds to believe that the person has entered the property unlawfully. That element cannot be satisfied as Mr. Ali voluntarily picked up Ms. P.
[88] More importantly, subsection (d) requires that the act of defence of property be reasonable. Dragging a comatose woman from his car whom he had offered to give a ride knowing that she was in a highly intoxicated state and then abandoning her in a parking lot very early in the morning about 30 feet from a busy street was far from a reasonable act.
[89] In the result, Mr. Ali will be found guilty of the assault causing bodily harm count as well.
D.E HARRIS J.
Released: October 4, 2019
COURT FILE NO.: CR-18-1363
DATE: 2019 10 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
WAQAR ALI
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: October 4, 2019