SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18-70000412-0
DATE: 20191219
ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AHSAN ULLAH KHAN
M. Gharabaway, for the Crown
A. Farooq and S. Balcharan, for Ahsan Ullah Khan
HEARD: November 18-22, 2019
P.J. Monahan J.
[1] Ahsan Ullah Khan is charged with sexually assaulting LO on June 1, 2017, contrary to s. 271 of the Criminal Code.[^1] He is also charged with attempting to obstruct justice, contrary to s. 139 (2) of the Criminal Code, by preventing LO from completing a 911 call to report the assault.
[2] As will be described below, I reject Mr. Khan’s evidence regarding the events of May 31 and June 1, 2017, as well as his description of his relationship with LO more generally. His account was contradictory, illogical, and implausible.
[3] That said, the burden remains upon the Crown to establish Mr. Khan’s guilt of the offences charged beyond a reasonable doubt. As such, even rejecting Mr. Khan’s evidence, I must still find, based on the evidence which I do accept, that the Crown has met its burden.
[4] The Crown has demonstrated that it is probable that Khan sexually assaulted LO and prevented her from completing the 911 call to police. But proof of probable guilt is not proof beyond a reasonable doubt. As is explained below, given the concerns with certain aspects of LO’s evidence, I am left with a reasonable doubt as to whether Mr. Khan committed the offences with which he has been charged. I therefore find him not guilty of both counts in the indictment.
I. Evidence
a. Crown Evidence
[5] LO was the main witness for the Crown. She commenced studies at a community college in Toronto in the spring of 2017. She had been in Canada for a little over a year and was living with her brother. She was 21 years old at the time.
[6] Mr. Khan was a student in the same program as LO. They met after class one day in May 2017. LO testified that Mr. Khan told her that he had not been in a committed relationship for some time and that he lived with some relatives. He offered to help her with her studies. She agreed and gave him her telephone number. They spoke a couple of times after class and, on one occasion, Mr. Khan drove LO home to her apartment.
[7] On May 31, 2017, LO told Mr. Khan that she was taking her brother to the airport as he was going on a trip. When she returned home that evening, she received a call from Mr. Khan. He told her that he was in the neighbourhood visiting a friend and wanted to come over to her apartment. LO agreed and met Mr. Khan outside of her apartment a little before 9 PM.
[8] LO and Mr. Khan stood outside and spoke for about 20 minutes. LO testified that Mr. Khan initially offered to buy a bottle of wine and bring it upstairs to her apartment. When she refused, he offered to take her to dinner. After discussing various options, they eventually agreed to go to a sports bar in downtown Toronto. LO believed that they were merely friends and that this was not a date. LO and Mr. Khan got into his vehicle and drove to the sports bar, about 20 minutes away.
[9] LO testified that she had not consumed alcohol for a couple of months and she informed Mr. Khan that she did not want to have anything alcoholic to drink. Nevertheless, Mr. Khan ordered a bottle of white wine and LO was persuaded to share the wine. After the first bottle was finished, Mr. Khan ordered a second bottle of wine. In addition to the two bottles of wine, Mr. Khan ordered four shots of tequila and LO drank two of those. LO also ordered some fries but did not otherwise eat any food. She estimated that over a period of approximately two hours she drank a total of three half glasses of wine and two shots of tequila.
[10] LO testified that while they were at the bar, Mr. Khan told her that he liked her and attempted to hold her hand. However, LO told Mr. Khan that she just wanted to be friends and would not hold his hand.
[11] Mr. Khan paid for the food and alcohol and they left the sports bar shortly after 11:30 PM. LO testified that at this point she was feeling drunk and dizzy. As they walked away from the sports bar, LO testified that Mr. Khan kissed her.[^2]
[12] LO believed that Mr. Khan was going to take her home. However, she fell asleep as they were driving. When she woke up, they were parked at the lakeshore. LO asked why Mr. Khan had driven there and he replied that she had told him that this was her favourite place. At this point, LO felt nauseous. She got out of the car and vomited a couple of times. LO told Mr. Khan that she was upset with him because she had told him that she did not want to have any alcohol that evening, and he had not respected her wishes. She said she was not feeling well and wanted him to drive her home.
[13] LO indicated that she again fell asleep on the ride home. When she woke up, they had arrived at her apartment. As she said good night and was getting out of the car, Mr. Khan asked her if he could come upstairs to her apartment to use her washroom. She agreed.
[14] Upon entering the apartment, LO again felt nauseous and went into the washroom where she vomited. She felt sleepy and dizzy, lay down on her bed and fell asleep, fully clothed.
[15] When she woke up sometime later, all her clothing except for her bra had been removed. Mr. Khan was lying on top of her and inserting his penis into her vagina. When she realized what was happening, LO pushed Mr. Khan off her.
[16] LO was very upset. She put her clothing back on and told Mr. Khan to leave. He refused. She then called 911 at 1:22 AM on June 1, 2017. LO testified that Mr. Khan grabbed her phone out of her hand and ended the call. He told her that if she called police, he would tell them that she had kissed him.
[17] After Mr. Khan left, LO spoke with a couple of her friends who told her she should call the police. She then spoke with the police a second time at 1:57 AM and explained what happened. The police came to her apartment and took her to the hospital where a sex assault examination was performed. She was then taken to the police station where she provided a videotaped statement. This led to the arrest and charges being laid against Mr. Khan.
[18] The Crown also tendered a forensic toxicologist from the Centre of Forensic Sciences, Ms. Rachelle Wallage. After reviewing her qualifications and experience, she was accepted as an expert in the absorption, distribution, and elimination of alcohol in the human body, as well as on the effects of alcohol on human cognition and behaviour.
[19] Ms. Wallage conducted an analysis of the blood and urine samples that were taken from LO at the hospital on the morning of June 1, 2017. Ms. Wallage estimated that at the time of the alleged assault (i.e. between 1 AM and 1:22 AM on June 1, 2017) LO would have had a blood alcohol concentration (“BAC”) of between 80 and 144 mg per 100 mL of blood. Ms. Wallage indicated that the effects of this amount of alcohol would depend on a variety of factors, including the tolerance of the individual to alcohol. However, she would expect a person with this level of blood alcohol to experience slurred speech, difficulty with balance, nausea, vomiting, and sleepiness. Nevertheless, she would not expect a person with this BAC to be unconscious or to be rendered incapable of being woken up from sleep.
[20] The Crown also played recordings of the 911 calls described in LO’s testimony. The first call at 1:22 AM lasted approximately 40 seconds. LO told the 911 operator that there was a man in her apartment who was refusing to leave. She provided her address, at which point the call ended abruptly.
[21] The 911 operator immediately attempted to call back on the number that had been used to initiate the first call. The 911 operator made two calls within the next few minutes but neither of them was picked up. At 1:57 AM, the 911 operator called back a third time and, on this occasion, LO answered the call. She spoke with the operator for approximately six minutes and described the assault involving Mr. Khan.
b. Defence Evidence
[22] Mr. Khan testified in his own defence. He had come to Canada in December 2015. In the spring of 2017, he was married, living with his wife, and was 28 years old. He was studying at a community college in Toronto.
[23] Mr. Khan and LO were enrolled in the same course of study. One day in May of 2017 they spoke after class. Mr. Khan and LO continued chatting on a number of occasions after class over the next few weeks. Mr. Khan does not remember what they spoke about, although he does recall advising her that he was married.
[24] One day LO asked Mr. Khan for his telephone number. She did not say why she wanted his number, but Mr. Khan thought it was perhaps because she was interested in him. Mr. Khan gave LO his number and she gave him hers.
[25] One day, Mr. Khan and LO decided to go to Humber Beach. They drove there in his car. While there, LO told Mr. Khan that she liked him, and he told her that he also liked her.
[26] On May 31, 2017, LO told Mr. Khan that she was taking her brother to the airport later that day. She suggested that they get together around 9 PM that evening for a date. He agreed. He called her at about 8:30 PM that evening and told her that she did not need to bring any money on the date as he would pay for everything.
[27] They met outside her apartment just before 9 PM and spoke for around 20 minutes about where to go. She wanted to go to a Latin dance club, but he was unenthusiastic. He suggested they go to a sports bar in the downtown Toronto area and she agreed.
[28] At the sports bar, LO immediately ordered a bottle of white wine. They shared the bottle, with Mr. Khan drinking about two glasses. After they finished the first bottle of wine, Mr. Khan ordered a second bottle. Mr. Khan estimates that he drank just one glass from the second bottle. He is not sure how much LO drank, as there was some wine left from the second bottle. However, each of them also ordered and drank two shots of tequila.
[29] Mr. Khan indicates that when they left the bar sometime after 11:30 PM, neither of them was drunk. In fact, Mr. Khan was not feeling any effects of the alcohol. As they walked out the front doors of the sports bar, Mr. Khan headed to the right, intending to exit through some nearby doors and proceed to the parking lot where he had left his car. However, LO motioned for him to follow her to the left. When he did so, LO grabbed his hand and began hugging and kissing him. He reciprocated. Mr. Khan estimates that they continued hugging and kissing while standing near the entrance to the restaurant for about 5 to 7 minutes. They then walked back to his car.
[30] Once in his car, LO suggested that they drive to the lakeshore. LO did not explain why and Mr. Khan did not ask. It took about 20 to 25 minutes to drive to the lakeshore, and LO was awake the whole time. Khan has no recollection of what they talked about. Once there, they got out of the car and began walking. LO vomited and Mr. Khan attempted to assist her. She then suggested that he should take her home and he agreed.
[31] LO was awake during the entire drive back to her apartment, which took about 20 minutes. When they arrived, LO invited him to come up to her apartment to rest and sleep. There had been no discussion of Mr. Khan coming up to her apartment prior to their arrival. Mr. Khan does not know why LO invited him upstairs to rest and sleep. He was not tired and was not drunk.
[32] As soon as they entered her apartment, they began hugging and kissing. She took off all her clothes except for her bra and underwear, and he removed his clothing.
[33] They lay down on her bed. As Mr. Khan was lying on top of her, LO took off her bra, while he pulled down her underwear. Just as he was about to enter her with his penis, LO told him to stop. He stopped and asked her why. She indicated that he had to pay her.
[34] Mr. Khan became angry and swore at her. He thought it was wrong for her to ask him for money for sex, particularly since he had taken her on a date, paid for her drinks, and she had told him that she liked him. He threatened to call the police to report LO’s demand for money in return for sex. He then got dressed and left the apartment. He was not there when LO called 911 at 1:22 AM.
[35] Mr. Khan went home and did not call the police. Nor did he speak again with LO. Subsequently he was arrested at school and charged.
[36] In addition to his own testimony, Mr. Khan also called Officer S.R. Kim as a witness. Officer Kim was one of the police officers who responded to LO’s 911 call on the morning of June 1, 2017. LO told Officer Kim that she had told Mr. Khan to rest and sleep on her brother’s bed in her apartment because he was too drunk to drive himself home.
c. Agreed Statement of Facts
[37] The parties also filed an agreed statement of facts (“ASF”). The ASF discloses, amongst other things, that Mr. Khan’s DNA was found on swabs taken from LO’s breasts but was not detected on swabs taken internally or externally from her vagina.
II. Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[38] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.
[39] Thus, Mr. Khan is presumed innocent of the charge brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
[40] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that Ahsan Khan is probably or likely guilty. In that circumstance I am required to give him the benefit of the doubt and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
[41] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I must consider all of the evidence and be sure that Ahsan Khan committed the offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.
b. Assessing Credibility
[42] Mr. Khan and LO testified to two contradictory versions of events. Their evidence cannot stand together. To reach a verdict in this case I must assess the credibility of each. This task, however, does not simply involve choosing which version of events I prefer. The decisive question is whether, considering the evidence as a whole, the Crown has proven the guilt of the accused on the specific charges alleged, beyond a reasonable doubt.
[43] The correct approach in cases such as this was set out by the Supreme Court of Canada in R. v. W.(D.),[^3] where the Court directed, first, that if I believe the evidence of Mr. Khan that he did not commit the offence with which he is charged, I must find him not guilty. Second, even if I do not believe Mr. Khan’s testimony, if it leaves me with a reasonable doubt of his guilt regarding the offence charged, I must find him not guilty. Third, even if Mr. Khan’s testimony does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me of his guilt beyond a reasonable doubt.
[44] There is no singularly correct or scientific method for assessing credibility. However, it is important to avoid credibility assessments based on what Paciocco J.A. has described as “impressions [that are] the product of stereotype, emotional evaluation, or ill-founded confidence in what is no more than guesswork.”[^4] In particular, it is now increasingly recognized by both trial and appellate judges that a witness’s demeanour when testifying has limited value in assessing credibility.[^5]
[45] I also emphasize that the Supreme Court of Canada has repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. In particular, the Supreme Court has categorically rejected the now-discredited “twin myths”, namely, that a complainant who has previously engaged in sexual activity is more likely to have consented to the sexual activity that forms the subject matter of the charge, or is somehow less worthy of belief.[^6] Moreover, Parliament has enacted an absolute bar to the admissibility of evidence introduced for the purpose of drawing such twin-myth inferences.[^7]
[46] As Watt J.A. noted in R. v. M. (A.), one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions, whether or not under oath.[^8] Inconsistencies may emerge not just from a witness’ testimony at trial, but also from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions. That said, inconsistencies vary in their nature and importance. Some inconsistencies may, on closer examination, not materially impair a witness’s credibility or reliability. In other cases, however, an inconsistency on a matter central to events or circumstances that form the basis of a charge may call into serious question the credibility or reliability of a witness’s testimony.
III. Analysis
a. Assessing Ahsan Khan’s Evidence
[47] According to Mr. Khan, almost immediately after they met LO became interested in him romantically. She pursued him at every turn, while he merely responded to her overtures. Their budding romantic relationship came to an abrupt end when, after inviting him up to her apartment after their first date, she demanded money in return for sexual intercourse. He threatened to call the police and report her improper demand, which prompted her to call 911 and falsely claim that he had sexually assaulted her.
[48] When Mr. Khan’s account of his relationship with LO is scrutinized more closely, it is evident that his evidence is implausible and contradictory.
[49] I begin by considering the circumstances of the parties at the time. LO was just 21 years old and had been in Canada for a little over a year. She was living with her brother and had limited ability in the English language. Mr. Khan, on the other hand, was 28 years old and married. He and LO had spoken a few times after class but Mr. Khan has no recollection of what they spoke about. Mr. Khan testified that he did not know that LO was just 21 years old. However, he also maintains that he told LO that he was married and living with his wife. (LO, on the other hand, testified that Mr. Khan had told her that he had not been in a committed relationship for some time and was living with relatives.)
[50] I do not accept Mr. Khan’s evidence that he told LO that he was married. He could offer no explanation as to how this subject would have come up in their brief chats after class, nor why he would have wanted her to be aware of his marital status. Far more likely is that Mr. Khan lied to LO and told her that he was not involved romantically, just as LO testified, in the hopes that he could interest her in a romantic relationship with him.
[51] But assuming for a moment that Mr. Khan was telling the truth and that LO was actually aware that he was married and living with his wife, on what basis could it possibly be supposed that LO would then want to get involved in a romantic relationship with Mr. Khan? Neither Mr. Khan nor his counsel could offer any explanation as to what possible motivation she would have had for such a relationship with an older married man.
[52] What was also striking about Mr. Khan’s account was the extent to which LO relentlessly pursued him from their very first meeting. Mr. Khan claimed that LO asked him for his telephone number on the first or second occasion that they met. Mr. Khan could not explain why she wanted his number, although he believed it was because she found him attractice. After they had chatted a few times following class, LO told him she liked him. Mr. Khan cannot remember what they spoke about or plausibly explain why she would have almost immediately expressed this sentiment. LO then invited Mr. Khan on a date in order to take advantage of the fact that her brother would be out of town and she would have her apartment to herself. She kissed and hugged him for over five minutes as they left the sports bar on the evening in question. She then invited him back to her apartment and engaged him in sexual activity, only to demand the payment of money in return for sexual intercourse.
[53] There is limited independent evidence against which to assess the credibility of Mr. Khan’s testimony. Yet the evidence which does exist tends to contradict, or is at the very least inconsistent with, his description of their relationship. For example, shortly after 8:30 PM on May 31, 2017, the parties exchanged text messages just prior to meeting outside her apartment. In one of his messages, Mr. Khan calls LO “dear” and sends her a suggestive emoji, depicting a kiss and a heart. She does not respond in kind, but merely asks where he is. This brief exchange tends to indicate that it was Mr. Khan pursuing LO, rather than the other way around.
[54] A video showing the parties leaving the sports bar at about 11:30 PM that evening is also inconsistent with Mr. Khan’s account. The video shows Mr. Khan walking to the right, while LO walks to the left. Mr. Khan claimed that LO was motioning him to join her to the left of the sports bar so that they could hug and kiss for an extended period of time. However, an earlier video shows that the parties had entered the sports bar from the left. In short, it appears that LO was walking to the left not because she wanted to kiss and hug Mr. Khan, but simply because this was the direction back to the garage where Mr. Khan had parked his car.
[55] The surveillance video does not capture the parties as they walked away from the sports bar. However, Mr. Khan tendered a video he had taken outside the sports bar a few weeks before the trial. Mr. Khan’s video showed that, after exiting the sports bar, the parties would have walked along an indoor pedestrian mall in order to get to the underground parking garage where Mr. Khan had left his car. If LO had actually wanted to hug and kiss Mr. Khan, why choose such a public setting when, within a few moments, they would have been in his car where they could have hugged and kissed with more privacy? I accept LO’s evidence that Mr. Khan kissed her as they left the sports bar (rather than the other way around), but that the parties did not otherwise engage in hugging or kissing.
[56] Mr. Khan’s account of what occurred in LO’s apartment is similarly improbable. The parties agree that LO had vomited at least once after leaving the sports bar. Mr. Khan maintained, however, that immediately upon entering her apartment they began hugging, kissing, and removing all their clothing. Even assuming that LO was intent on engaging in sexual activity with Mr. Khan, it stands to reason that she would have wanted to use the washroom to clean herself up after vomiting.
[57] Mr. Khan’s claim that LO asked him for money in return for sex, just as they were about to commence sexual intercourse, also strains credulity. Mr. Khan’s theory is that, up to this point, LO was romantically interested in him. Having led him on to the verge of intercourse, she refused to continue unless she was paid. Yet this explanation contradicts Mr. Khan’s claim that LO genuinely liked him and wanted to become romantically involved.
[58] Mr. Khan’s claim that he then threatened to call the police to report LO’s improper demand is also obviously untrue. Mr. Khan was a married man. His wife was unaware of the fact that he was engaging in sexual activity with a 21-year-old fellow student. Had Mr. Khan gone to the police to report this incident, his wife would have discovered his deception. Far more likely is that, upon realizing that LO was calling police, Mr. Khan intervened to end the call and told her that if she reported the assault he would claim that she had kissed him first.
[59] I find that Mr. Khan’s evidence was largely a fabrication and I reject his evidence in its entirety. Moreover, his evidence does not leave me with any reasonable doubt as to whether he committed the offences with which he is charged.
[60] That said, in order to make a finding of guilt, I must determine whether, based on evidence which I do accept, the Crown has proven its case beyond a reasonable doubt. I turn now to consider that question.
b. Assessing the Crown’s Evidence
[61] As described above, the Crown’s case consisted largely of the evidence of LO.
[62] LO testified in a direct and straightforward manner. For the most part, her evidence was internally consistent, logical, and plausible. I accept her evidence that it was Mr. Khan who pursued her in the hopes of engaging her in a romantic relationship, rather than the other way around. To that end, I make the following factual findings:
● Mr. Khan told LO he was not involved in a romantic relationship when he was in fact married and living with his wife;
● Mr. Khan persuaded LO to give him her telephone number by offering to help her with her studies;
● Mr. Khan invited LO out on a date on May 31, 2017 because he knew that her brother was out of town and he hoped to be able to persuade LO to invite him back to her apartment; and
● Mr. Khan ordered the wine and the tequila at the sports bar. He also kissed LO as they walked away from the sports bar, but the parties did not hug and kiss for over five minutes.
[63] While I accept these aspects of LO’s testimony, I also find that there were certain aspects of her evidence that were inconsistent, inaccurate, or improbable. I would note, in particular, the following:
i. LO gave inconsistent accounts as to whether she had agreed that Mr. Khan could sleep in her apartment. In her evidence at trial, LO stated that she allowed Mr. Khan to come up to her apartment because he said he needed to use the washroom. After she vomited in her washroom, she claimed that she lay down on the bed and fell asleep without speaking further to Mr. Khan. She denied having told Mr. Khan that he could sleep on her brother’s bed in her apartment. She also denied having made a statement to this effect to Officer Kim.
However, in his testimony, Officer Kim indicated that when he spoke with LO at her apartment on the morning of June 1, 2017, she told him that she had invited Mr. Khan to sleep on her brother’s bed in the apartment. Officer Kim noted that he had made reference to this statement by LO in his notes. I accept Officer Kim’s evidence, with the result that I am unable to account for the inconsistency in LO’s evidence on this point.
ii. LO’s evidence that her clothes were removed and that Mr. Khan commenced sexual intercourse while she was sleeping is unconvincing. In addition to her underwear, LO was wearing a sweater, leggings, socks, running shoes, and a jacket that was buttoned and zipped up. She testified she lay on the bed fully clothed and went to sleep. In her initial statement to police, she estimated that she slept for about two hours, and that during this time Mr. Khan removed her clothing without waking her. She also indicated that when she woke up, Mr. Khan’s penis was inside her vagina.
At trial, she was invited by counsel for Mr. Khan to put on certain items of clothing and to show what would have been involved in removing them. It is evident that Mr. Khan would have had to move her entire body back and forth numerous times as well as lift her arms over her head, before inserting his penis into her vagina. I conclude that it would have been extremely difficult for Mr. Khan to have done all this without waking LO.
I also note that LO was mistaken in her claim that she slept for about two hours prior to the assault. I find that the parties arrived back at her apartment sometime between 12:30 AM and 12:45 AM on the morning of June 1, 2017. I make this finding on the basis that they left the sports bar around 11:35 PM on May 31, 2017,[^9] spent 15 or 20 minutes walking back to the car and exiting the underground parking, and spent another 15 or 20 minutes driving to the lakeshore where LO vomited. They then drove back to her apartment, which would have taken another 15-20 minutes.
Since LO called the police at 1:22 AM, the assault would have occurred within 30 minutes of the parties’ arrival at the apartment. This makes it impossible for her to have slept for two hours.
I also note that LO did not indicate that she was a particularly deep sleeper or that it was difficult to wake her. In fact, she indicated that she had already fallen asleep twice while driving in Mr. Khan’s car and had woken up on her own on both occasions. I also accept Ms. Wallage’s evidence that, given LO’s BAC, it is unlikely that she would have been unconscious.
Given these facts and circumstances, I find it unlikely that Mr. Khan could have removed LO’s clothing and initiated sexual intercourse in the manner she described.
iii. LO testified at the preliminary inquiry, as well as in her initial trial testimony, that she called the police back after Mr. Khan left her apartment. In fact, this was incorrect. After the first 911 call was cut off, the police called her back three times before she picked up the third police call at 1:57 AM.
The point is not whether LO should or should not have called the police back. The concern, rather, is the inconsistency between her evidence on this point and what actually occurred. In closing argument, Crown counsel argued that LO had simply forgotten that the police had called her back, and this explained her mistaken evidence that she had called the police a second time to report the assault by Mr. Khan. The difficulty with this explanation is that LO did not claim to have forgotten that the police had called her back, either at the preliminary inquiry or in her initial trial testimony. In fact, LO testified that when the police called her back the first time, i.e. right after she made the initial 911 call, Mr. Khan was still in her apartment. This suggests that she was able to recall the fact that the police had called her back.
[64] These various inconsistencies, inaccuracies, and improbabilities in LO’s evidence do not relate to peripheral or incidental matters. Rather, they go to the very heart of the Crown’s case, namely, what occurred between the parties after they arrived back at LO’s apartment.
[65] As I have earlier explained, proof beyond a reasonable doubt is a high standard. It is not sufficient for me to find that Mr. Khan probably committed the offenses with which he is charged. Rather, I must be sure that he did so before finding him guilty.
[66] I accept much of LO’s evidence and find that it is likely that she was sexually assaulted by Mr. Khan. However, the concerns I have identified with respect to the Crown’s case are significant and material, and I find that there is no adequate explanation to account for them. Taking into account these areas of concern as a whole, I am left with a reasonable doubt as to Mr. Khan’s guilt.
IV. Conclusion
[67] For the reasons set out above, I find Mr. Khan not guilty of the two counts in the indictment.
P. J. Monahan J.
Released: December 19, 2019
COURT FILE NO.: 18-70000412-0
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AHSAN ULLAH KHAN
REASONS FOR JUDGMENT
P. J. Monahan J.
Released: December 19, 2019
[^1]: R.S.C., 1985 c. C-46.
[^2]: I note that in LO's initial statement to the police on the morning of June 1, 2017, she stated that there had been no physical contact between herself and Mr. Khan at the sports bar. However, at the preliminary inquiry, she indicated that there "may have been a kiss" between them as they left the bar. As is discussed below, Mr. Khan maintained that the parties hugged and kissed for at least 5 minutes as they left the sports bar. A voir dire was held mid-trial, in accordance with s. 276 (1) and ss. 278.92 to 278.94, to determine whether evidence relating to the hugging and kissing alleged by Mr. Khan was admissible. Taking into account the factors identified in s. 278.92 (3), I delivered oral reasons at the conclusion of the voir dire ruling that the evidence was admissible. LO was subsequently examined on these issues. She testified that Mr. Khan had kissed her as they left the bar, but that she had forgotten this when she provided her initial statement to the police.
[^3]: 1991 93 (SCC), [1991] 1 S.C.R. 742, at para. 11.
[^4]: D. M. Paciocco, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (2017), 22 Can Crim L Rev, 31, at p. 57.
[^5]: R. v. S. (N.), 2012 SCC 72, 3 S.C.R. 726, at para. 27; R. v. Hemsworth, 2016 ONCA 85, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, at paras. 85-89; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. G. (G.) (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 7-10; R. v. S. (W.) (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 12, leave to appeal refused [1994] 2 S.C.R. x (note); R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 34-36; R. v. C. C., 2018 ONSC 1262, at paras. 61-62.
[^6]: See generally, R. v. Goldfinch, 2019 SCC 38.
[^7]: See s. 276 and ss. 278.92 to 278.94 of the Criminal Code.
[^8]: 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-14.
[^9]: The receipt from the sports bar shows that it was printed at 11:33 PM on May 31, 2017.