Court File and Parties
COURT FILE NO.: CR-20-5-0000455 DATE: 20230721
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – TANEEM AZIZ Defendant
Counsel: Michael Wilson, for the Crown Kendra Stanyon, for the Defendant/Applicant
HEARD: April 17, 19, and 20, 2023
Reasons for Decision
A. Introduction
1Within a seven-month period, three women in Toronto, completely unknown to each other, went to the police and reported they had been sexually assaulted by an UBER driver. Taneem Aziz, an UBER driver, was charged with three counts of sexual assault. I will refer to the complainants throughout as A, B, and C, in chronological order based on the offence dates:
Count 1 – September 6, 2018 – assault on A Count 2 – March 17, 2019 – assault on B Count 3 – April 6, 2019 – assault on C
2Mr. Aziz initially elected to be tried before a jury but subsequently re-elected to judge alone. The Crown brought a motion for a ruling that the evidence with respect to each complainant would be admissible as similar fact evidence on the charges against the other two.
3Identity is not an issue. Mr. Aziz attempted to contact all three women on the day following the alleged assaults, using his personal phone registered to his home address. He left his DNA on two of the victims. At the outset of his trial before me, he pleaded guilty to the assaults on B and C, based on an agreed statement of facts. He also admitted to being the driver who picked up A on the date and time alleged. However, he denied the allegations made by A, sought to sever that count from the indictment and to proceed to trial separately on that count, and objected to the admissibility of the evidence of the other two assaults in determining whether the assault on A actually occurred.
4I ruled that it was not appropriate to sever the count involving A. I also ruled that, based on the evidence in the written record before me, I was satisfied that the similar fact evidence was admissible as relevant to whether Mr. Aziz assaulted A, and that its probative value outweighed any prejudicial impact. However, I also emphasized that this finding was subject to reassessment as the evidence at trial evolved and did not mean that I would actually use the evidence of the other admitted assaults in determining whether the assault on A occurred. I advised the parties that written reasons for both rulings would follow.
5The trial then proceeded against Mr. Aziz. A was the sole Crown witness. At the conclusion of her evidence, I ruled that I was still of the view that the evidence with respect to the assaults on B and C were admissible in determining whether A had been assaulted. The defence elected to call no evidence.
6At the conclusion of the evidence and argument, I found Mr. Aziz guilty of sexually assaulting A. My reasons for these findings are set out below.
B. Admitted Facts Regarding Assault on B
7On March 17, 2019, B left a nightclub in downtown Toronto at approximately 2:30 a.m. She was intoxicated. She ordered an Uber to take her home, but the driver cancelled after she had been waiting for 10 minutes. She ordered another Uber ride and was waiting for that car to arrive when Mr. Aziz approached her on the street. He told her he was an Uber driver, showing her his phone to prove that fact. He offered to drive her home so she would not have to wait any longer. B agreed. Mr. Aziz took her phone, telling her he was cancelling her ride.
8B got into the front seat of Mr. Aziz’s Uber car. She told him she lived in Liberty Village. Initially he headed west, going in the general direction of her home, but then he turned north into a residential area and parked the car. When she queried this, he told her to relax. B was feeling the effects of the alcohol and was unsure how things got started. Somehow, her seatbelt had been undone and her nylons removed. She does recall Mr. Aziz reclining her seat, rubbing her bare thighs and removing her dress and bra. He rubbed cream on her collarbone, chest and upper back and sucked on both her breasts. B told Mr. Aziz that she wanted to go home and that she did not want this from him. She was upset and crying. As she was gathering up her things, she found her purse had tipped over and her credit card was on the floor in the backseat. She could not find her phone. She believed Mr. Aziz had it and begged him to give it back. Mr. Aziz pulled over and searched the car for the phone. When he handed it to her, she discovered that it had been turned off. She had not done that.
9Mr. Aziz drove B to her home. She was crying throughout and telling him she had not consented to any of what happened. He told her that he did not want her to cry. He told her he thought she wanted what had happened. B reiterated that she did not, but told Mr. Aziz she would not report him.
10Mr. Aziz dropped B off at her apartment at 4:00 a.m. She went inside and immediately told her roommate what had occurred. They called the police who attended and took her to the Toronto Western Hospital where she underwent the collection of a Sexual Assault Evidence kit.
11The following day, on two separate occasions, Mr. Aziz used his personal cellphone, registered to his name and home address, to call B. She did not answer either call.
12DNA from Mr. Aziz was found on swabs from B’s breasts.
C. Admitted Facts Regarding Assault on C
13In April 2019, C (a 21-year-old exchange student from Poland) was living in Toronto while attending school. On April 5, 2019, she attended a party in Toronto with friends. The friends wanted to go to a nightclub, but C told them she was too drunk and wanted to go home. Her friends called an Uber for her. At 1:07 a.m., C’s friends helped her into an Uber that was operating as an “Uber Share,” which means that multiple passengers are picked up and dropped off at intersections near their home address, but not necessarily right in front of their home. The Uber Share driver dropped C off on Spadina Avenue, an approximate 10 minute walk from her residence.
14C was disoriented and did not recognize where she was. She was attempting to find her way home using her phone. At some point, she realized she was in the front seat of a vehicle being driven by Mr. Aziz. She cannot remember anything that happened in between. After a while, C realized that they had been driving too long and going too far to be close to her home. They were on a highway. She told Mr. Aziz that she wanted to get out. He refused. At 2:41 a.m., C sent concerned text messages to friends. Mr. Aziz swatted at her hands as though she didn’t need to send text messages and told her everything was fine. C continued to try to send text messages while holding her phone at her side.
15The next thing C recalled was being at a McDonald’s drive thru, where she ordered chicken nuggets and paid for them with her credit card. After getting the food, Mr. Aziz parked in the parking lot. C got out of the car, approached a man in another vehicle in the parking lot, and asked him if he would drive her home. He refused. C got back into the car with Mr. Aziz and he agreed to drive her back home. C got into the front passenger seat and remembers driving on the highway towards Toronto. The next thing she remembered was being parked on a residential street. Her shoes were off, and Mr. Aziz was between her legs. He pulled down her pants and underwear and performed oral sex on her. C did not know how to react or what to do. He then suggested they move to the back seat, which she did. There, he penetrated her vaginally without wearing a condom. He suggested that she come back to his place, but she declined, stating that she had a charity bike event in the morning, which was a lie. Mr. Aziz then proceeded to drive C home, caressing her hand along the way. He asked for her number, but she told him her phone was broken. At 5:24 a.m., he took her phone and entered his number on her phone. He then dropped her off at home.
16C immediately told her roommates what had happened. She then attended Women’s College Hospital where it was noted that her back hurt and there was redness or scratches on her thighs. She underwent the collection of a Sexual Assault Evidence kit.
17Later that day, Mr. Aziz texted C from his personal phone and called her twice. She did not answer and blocked his number.
18DNA evidence, likely from semen, located on external genitalia and anal swabs matched the DNA sample provided by Mr. Aziz.
19C noticed that she was missing the rings she had been wearing when she went out the night before.
D. The Testimony of A
20In May, 2018, A moved to Toronto for her first post-university job. Both her apartment and her workplace were downtown at Harbourfront and York St. On the evening of September 6, 2018, A attended a work-related party in the area of Dundas and Parliament in Toronto. She testified that she had three small glasses of wine and some snacks at the event. This was over a period of about three hours and she said the alcohol had no effect on her. At about 10:10 p.m. she decided to leave for home, as she had an early start at work the next day.
21She ordered an Uber on her cell phone at 10:20 p.m. She is clear about the timing because she later got a cancellation charge from Uber for this call.
22A testified that she came out of the venue where the party was held from the entrance on a side street and waited for the Uber. She saw a black Uber pull up, heading north on the side street towards Dundas St. She gave the driver her name and address and asked if he was there to pick her up. He said he was, so she got into the back seat. Notwithstanding all of the cautions given by Uber to check the license plate of an Uber before getting inside, A did not do that. It is an admitted fact that Mr. Aziz was the driver of the Uber that A got into. He was not the Uber driver who was supposed to pick her up. When the assigned driver arrived at the pick-up spot, A was not there, which is why she was charged for the cancelled ride.
23Mr. Aziz had been working earlier that evening and available for Uber assignments. However, Uber driver records subpoenaed by the police show that he was “offline” (not available to be assigned a ride) between 9:45 p.m. and 10:23 p.m. and also between 10:27 p.m. and 1:49 a.m. on September 7, 2018. He logged back in as “open” at 1:49 a.m. These times coincide with the period of time A says she was held captive by Mr. Aziz in his car.
24A testified at trial that she deliberately did not tell her friends she was leaving the party because she knew they were going on to a nightclub and would try to persuade her to go with them. She also testified that she remembers texting some people from the car, telling them that she had left. On cross-examination, she was taken to her police statement in which she said she said goodbye to her friends at the party before she left.
25According to A, Mr. Aziz, initially headed in the direction of her apartment building, going west on Dundas and south on York St. At some point along the route, she was experiencing nausea and asked Mr. Aziz to pull over. She said that initially she threw up through the passenger side rear window, but then Mr. Aziz came around and opened the door, and she sat in the seat but with her feet outside the car, and threw up again. A testified that she frequently gets carsick, and that she was not vomiting because she was intoxicated.
26After a 5 to 10 minute break at the side of the road, she felt well enough to continue, and Mr. Aziz headed again towards her apartment. During the drive, A realized her phone was missing. She had not looked at it since the point when they pulled to the side of the road because she was sick. She looked all around the back seat, but could not find it. A said that as they were nearing where she would be dropped off, Mr. Aziz was in the right lane and she told him he needed to get into the left-turn lane to get to her apartment. She said that he responded “No” and headed in the opposite direction, turning right onto the Gardiner Expressway. She said that at first she thought Mr. Aziz was just going the wrong way and kept telling him to go back. However, he kept going for about 15 minutes on the Gardiner and then turned off into an area with which she was completely unfamiliar. He kept telling her that he did not know how to find his way back, and that his phone was dead. She still could not find her phone. She suggested that he head for the CN Tower, as she would know how to get home from there. He refused, and kept driving around randomly.
27A testified that after driving around for a while, Mr. Aziz pulled into a parking lot behind an L-shaped building, and parked in a spot that could not be seen from the street. She tried to open the door to escape, but it was locked and she could not unlock it from the inside. She said Mr. Aziz got into the back seat and sat next to her, behind the driver’s seat. He then began to touch her hair, arm, outer leg, and the side of her body. He told her that she owed him sex because she had puked on his car. She said she kept telling him “No” to these advances, but he was persistent that she either had to have sex with him or “suck his dick.”
28She said that after they had been in the parking lot for about 10 minutes, a white, City of Toronto pickup truck drove into the parking lot. There were two men in the truck. A testified that she was frantically trying to get their attention so that they could rescue her, pounding on the windows and yelling, but that they did not look in her direction. She said Mr. Aziz was startled by their arrival and immediately got out of the back seat, got back in the driver’s seat, and drove away.
29On cross-examination, defence counsel pointed out two discrepancies between what A testified to at trial about this parking lot incident as compared to what she said in her statement to the police. At trial, A testified that the first sexual overtures made by Mr. Aziz were when he got into the backseat with her in the parking lot. In her statement to the police, she said that he had also made comments to her while they were driving, but that she thought he was joking until he got into the back seat in the parking lot. A said that her statement to the police would have likely been more accurate, but that she has no present memory of any sexual solicitations until they were in the parking lot.
30At trial, A testified that the two men in the pickup truck never noticed her or looked in her direction. However, in her statement to the police, A said that when the pickup truck showed up, the two men were looking at them in the backseat and laughing at having caught people having sex. Upon watching that portion of the view of her police statement, A said she thought her statement must have been right and that she has just forgotten that detail. She said she has a clear memory now of them not looking in her direction as she was trying to get them to help her, but that she must have been wrong about that.
31After leaving the parking lot, Mr. Aziz kept driving around randomly for a long time. A said she remembered seeing 1:19 a.m. on the car’s clock. That would have been about three hours since she first got into the car. A said that she was screaming and crying throughout much of this time. At about 1:29 a.m., they passed a construction crew doing work on the roads, with a police officer protecting them. Again, she tried to attract his attention, but she did not think he saw her. However, at this point, Mr. Aziz told her that if she wasn’t going to have sex with him or suck his dick, she would have to pay him $50 before he let her out of the car. She paid. Then he let her out. She immediately ran to the police officer, crying hysterically, and asked him to help her get home safely. He wanted to call for a police car to take her to the police station, but she was adamant that she just wanted to go home. The police officer therefore hailed a cab and asked the driver to get her home safely.
32The next day, A showed up at the office, but found she was too upset to work. She spoke to a female supervisor who walked home with her. Then she called her mother and got on the next train to Kitchener, where her parents lived. Once in Kitchener, she went with her father to the police station in Kitchener and provided a statement to the police there. While they were at the station, A’s mother called and told them that she received a call from Mr. Aziz who told her that he had found her daughter’s phone.
E. Severance and Similar Fact Evidence
The Applications
33At the outset of trial, the defence applied to sever the counts involving B and C from the indictment, and to proceed to trial only on the count involving A. Mr. Aziz indicated he would be entering a plea of guilty to the counts involving B and C, but would plead not guilty to sexually assaulting A.
34The Crown applied to have the evidence of B and C considered as similar fact evidence in the trial of A. Obviously, the two applications are interconnected. If the evidence with respect to B and C is not admissible at the trial involving the allegations made by A, they should be severed. Conversely, given that this is a judge alone trial, if the similar fact evidence is admissible, there is no point severing the other two charges. To do so would result in unreasonable delay of the charge involving A, which was ready for trial as of the date of the applications, and was already about five years after the incident occurred.
35The evidence on the applications consisted of the police statements given by each of the three complainants. I ruled that the similar fact evidence was admissible, subject to reviewing that determination after hearing the viva voce testimony at trial.
The Test
36As a starting point, similar fact evidence is presumed to be inadmissible. This is because of the danger that the trier of fact will engage in propensity reasoning, believing that because the accused did something like these charges before, he likely did this one as well. The classic statement for the test for the admissibility of similar fact evidence is from the Supreme Court of Canada’s decision in R. v. Handy, 2002 SCC 56. [1] Basically, the test is whether “the probative value of the evidence in relation to a particular issue outweighs its potential prejudice.” [2] The Court in Handy provides helpful guidance on the steps to be taken and relevant factors to consider.
37In Handy, the Court established a three-step process in determining whether evidence is admissible:
(i) Assess the probative value of the evidence. The first step is to identify the issue to which the similar fact evidence is said to be relevant. Then it is necessary to assess the cogency of that evidence. Any possibility of collusion, collaboration or tainting of the evidence must also be considered, as this would diminish the ability of the evidence to rule out coincidence. (ii) Assess the prejudicial impact of the evidence. This involves a consideration of moral prejudice (the danger of general propensity reasoning) and reasoning prejudice (the danger that the triers of fact will be dragged off into a complicated and distracting set of other facts, rather than stay focused on the issue before them). (iii) Weigh the probative value against any likely prejudice to the accused if the evidence is admitted.
38In considering the cogency of the evidence at the first stage (probative value), it is necessary to consider the connectedness between the similar fact evidence and the circumstances of the charge against the accused, including:
(i) proximity in time of the similar acts; (ii) extent to which the other acts are similar in detail to the charged conduct; (iii) number of occurrences of the similar acts; (iv) circumstances surrounding or relating to the similar acts; (v) any distinctive feature(s) unifying the incidents; (vi) intervening events; (vii) any other factor which would tend to support or rebut the underlying unity of the similar acts. [3]
Analysis and Conclusion
39The identified issue to which the similar fact evidence is said to be relevant is the actus reus of the event – whether the sexual assault happened. In such cases, the same degree of similarity between the different acts will not be required as would the case where identity is the issue. Rather, the similarity may be the circumstances, or context, in which the acts occurred. [4]
40There is no issue with respect to the cogency of the similar fact evidence. These are admitted facts and the accused was entering a guilty plea based on those facts. There is no possibility of collaboration, collusion, or tainting. All three complainants reported these incidents to the police soon after they occurred. None of them knew the accused, and they also did not know each other.
41With respect to the relevant factors at the first stage of the analysis, as listed in Handy, I note as follows:
(i) The three incidents are proximate in time, having occurred within seven months of each other. (ii) Some of the acts are different. Mr. Aziz engaged in more intimate contact with the other two complainants. However, B and C were both inebriated and more susceptible to Mr. Aziz’s advances, whereas A was in full control of her faculties and extremely non-compliant. Things evolved very differently. However, each of the three incidents started the same way, with Mr. Aziz picking up a lone female standing on the street looking at her cell phone. Each time, although supposedly working as an Uber driver, he was offline at the time of the incidents. Each of the women were driven away from their home and taken to a dark, isolated area. Apart from the non-consensual aspect of the sexual assault, there was little, if any, violence involved. (iii) The more similar acts there are, the greater the likelihood that this could not be coincidence. In this case there are only two other complainants, but that is still significantly stronger than only one similar act, particularly where there is a close proximity in time. (iv) The context in which the assaults on B and C occurred are strikingly similar to the circumstances surrounding the complaint by A. Mr. Aziz approached as an Uber driver for both A and C, and quite likely for B as well, although she does not remember getting into his car. He took advantage of this cover to prey on women, alone at night, expecting an Uber driver. Each time, he took the women to isolated locations, and assaulted them in his car, as is also alleged by A. Also, each time, he controlled the cellphones of the complainants. (v) One odd distinctive feature is that Mr. Aziz contacted each of the complainants the day after he assaulted them. With A, he had her phone, so he called her mother to report that he had it. In each case, he seemed keen to reconnect with his victim. (vi) There are no intervening events. (vii) The one thing that tends to rebut the underlying unity of the acts is the extent to which the actual assault alleged by A was different from what happened to B and C. However, no two sexual assaults are ever exactly the same and the dissimilarities here are due in part to the fact that A got into the back seat whereas B and C were in the front passenger seat, and by the degree of inebriation of B and C. The resistant attitude of A changed the course of contact considerably.
42The second step is to consider the prejudicial impact of the similar fact evidence. Here, there is no reasoning prejudice, as the facts with respect to those two complainants are admitted and will simply be exhibits at trial. There is less concern about moral prejudice in a judge alone trial than would be the case with a jury trial where the triers of fact are 12 lay people. That does not mean that the danger of propensity reasoning does not exist, but rather that as the trial judge I must be vigilant to ensure it does not intrude improperly upon my analysis of the evidence.
43Finally, my task is to weigh the extent to which the probative value outweighs the prejudicial impact. The probative value is high. In each case, Mr. Aziz preyed on women alone on the street at night. He used his position as an Uber driver to get them into his car, and he then sexually assaulted them in his car. These events were for substantial periods of time: one hour for B; three hours for C; and three hours for A.
44The sole issue in this case is the credibility of A. If her evidence is believed, it is clear this constitutes sexual assault. Given the complete impossibility of any collusion between A and the other two complainants, it is striking that she would make such an allegation about a person who, within the space of seven months, violated two other women in the same circumstances. It is hard to believe that this could be mere coincidence.
45If the issue was identity, I would be more concerned about the dissimilarities in the assaults once the women were in the car. But this is not a “cookie cutter” type of situation, where the suggestion is that the acts are so strikingly similar they must have been committed by the same man. Here identity is not the issue at all. Mr. Aziz admitted he was the driver of the car A got into, and he was offline for the entire period of time that she alleges she was in his car. According to A, she was accustomed to using Uber, and took Uber rides about three times a week. What are the chances that she would have invented a story about sexual assault against one of those drivers, and that driver turned out to be the same person who had sexually assaulted two other women in the same context?
46The prejudicial impact is minimal.
47I am satisfied that the probative value outweighs any prejudicial impact. I ruled the evidence to be admissible. At the conclusion of the evidence in the trial, I saw no reason to change that determination.
F. Factual Findings on the Sexual Assault Charge
48Mr. Aziz did not testify. Everything turns on the credibility and reliability of A’s testimony at trial.
49I found A to be an honest witness. There were times when she misremembered or forgot some of the details of that night. There were some areas in which she gave a slightly different version of the events the day after they occurred than she did at trial. This is not surprising given the passage of five years. None of these are issues of great substance, but rather involve peripheral details.
50It is useful to review some of the discrepancies:
(1) In A’s statement to the police, she said that she told her friends she was leaving the party and then ordered an Uber. At trial, she said she deliberately did not tell her friends she was leaving because she did not want to be pressured to go out to a nightclub. This is an immaterial fact. Both versions could be true. She could have told some people she was leaving, but not the ones that she knew would want to go to the nightclub. Five years after the fact, she is unsure of those details. I do not find this to be of any concern. (2) A said that when Mr. Aziz picked her up in his car, he was heading north on the side street. She was shown a Google map indicating that this is a one-way street heading south. Again, this is an inconsequential detail. I am by no means confident that the Google map is accurate, nor would I find it impossible that Mr. Aziz would go north on the street even if it was supposed to be one-way. Or, it is possible that A has misremembered this detail. (3) A testified at trial that the first sexual overtures by Mr. Aziz were in the parking lot. However, she readily adopted her statement to the police that he made suggestive comments earlier, but she thought he was joking. Again, I attribute this to the passage of time and the fact that she did not appreciate that the comments were problematic until Mr. Aziz followed it up with actual sexual assault in the parking lot. (4) The two men in the pickup truck may be another example of both versions of the evidence being accurate. A told the police that the two men saw them in the back seat and were laughing about it. However, at trial, she did not remember this, but only that she was trying to get their attention to rescue her, but they were not looking her way. With the passage of time, she remembers only the dashed hopes of a possible rescue, rather than the initial smirking. On either version, the sexual assault was underway in the backseat. (5) A repeatedly said she tried to get out of the back seat, but could not unlock the doors. However, at times she indicated that Mr. Aziz unlocked the doors from the front seat. It is clear on the evidence that on this model car, once child locks are activated, the rear doors can only be opened from the outside. Again, I accept that her evidence is confused on this issue. What she remembers clearly is being trapped and unable to escape because the doors were locked. The locking mechanism itself is a detail to which she likely paid little attention. However, it is a detail of some concern.
51I accept that these details are a concern with respect to the reliability of some of A’s evidence. She clearly has confused or forgotten some of the details. However, she cannot be simply confused or forgetful about the core of her complaint, that she was taken against her will to a parking lot and touched in a sexual manner without her consent. She reported this to police the very next day. Either she invented this story, or it is true. She cannot have simply forgotten whether it happened. On these core issues about the assault itself, A was consistent and reliable. Further, there was absolutely no exaggeration or embellishment. It would have been an easy matter to make more extreme allegations. She never did. She was completely fair in her evidence, readily admitting when her memory of details turned out to be inaccurate. I accept her evidence about the essence of what happened – that she was tricked into getting into the car, held against her will for hours, and touched in a sexual manner without her consent.
52I am satisfied beyond a reasonable doubt that A told the truth about being sexually assaulted by Mr. Aziz. Based solely on her evidence, I would have reached that conclusion. However, the similar fact evidence with respect to B and C make the case overwhelming. This could not have been coincidental.
53Accordingly, I find Mr. Aziz guilty of sexual assault as charged in Count 1 of the indictment.
Molloy J. Released: July 21, 2023
Endnotes
1R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.
2Ibid, at para. 55.
3Ibid, at para. 82.
4R. v. J.M., 2010 ONCA 117, 258 O.A.C. 81, at para. 91.