Court File and Parties

COURT FILE NO.: CR-21-0758-00 DATE: 2023 07 20 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING -and

VISHAL MANDA

Counsel: Theo Sarantis, for the Crown David Locke and Glenn Henderson for Mr. Manda

HEARD: May 23-26, 2023

PUBLICATION BAN UNDER SECTION 486.4(1) OF THE CRIMINAL CODE WITH RESPECT TO INFORMATION THAT COULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS JUDGMENT COMPLIES WITH THE BAN AND CAN BE PUBLISHED.

Reasons for Judgment

D.E. HARRIS J.

[1] The defendant Vishal Manda is charged with sexual assault on K.M. committed November 16, 2018. Both testified. As is usually the case, guilt or innocence turns mainly on credibility.

[2] The complainant now 38 years old met the accused when she answered his Kijiji ad for a room for rent in his house. She went to look at the room on November the 10th, 2018 and realized that it was not suitable for her. It was too small and it did not have an ensuite bathroom. After texting between them, they agreed to have a date at a friend of the accused’s apartment on Friday November 16th, 2018. The accused picked up the complainant at her residence at about 2:30 p.m. and drove her to the apartment which was close by. The apartment had an impressive TV and high-fidelity speakers. They both planned to cook and brought food. She brought some wine and he brought whiskey.

The Complainant's Version

[3] They began by watching TV and drinking whiskey in front of the TV in the living room of the apartment. She remembered drinking three to four glasses of whiskey over about a one or two hour period. They may have eaten some snacks but she did not eat any other food. Although an experienced drinker, including of whiskey, she said that she got intoxicated unusually quickly.

[4] In the aftermath of the incident, she thought she might have been drugged. However, she conceded, as did the Crown, that this did not make sense. While on the couch, Mr. Manda tried to touch some pins of angry birds she had earlier affixed to the sweater, saying that they were really cute. She moved away from him slightly because she felt uncomfortable. Soon after, they began consensual kissing and hugging. After 10-15 minutes, they moved, with her consent, into the bedroom. They continued on the bed. Ms. M. testified that she fell asleep from the alcohol for a relatively brief time. When she woke up, Mr. Manda was standing next to the bed in only his underwear.

[5] She was shocked. He started kissing her and then tried to take her pants off to perform oral sex on her. She told him that she did not want him to do that. He tried to put his penis in her mouth. They were in the 69 position. She had a faint memory of crying while he was trying to do this. He performed oral sex on her for 10 seconds. She protested repeatedly and said to him that she did not even know him. He then replied “you are clean and I am clean.” She said at least seven or eight times that she did not want it. He then entered her without a condom on. She told him that it was hurting her. He said he was not even that big and asked why the intercourse was hurting her.

[6] She told him that she was concerned he was not wearing a condom. She believed that this led him to go get a condom although she was unsure whether it was at this time or some other time. At some point, she went to the kitchen and splashed water on her face to “get back into my senses.” When he followed her there, she went into the washroom. When she came out, he forced sex on her in other areas of the apartment.

[7] At some point, K.M. noticed that there were two missed calls on her phone. One was from her friend P.N. She called him back but she was crying and still intoxicated and could barely speak. She asked him to pick her up. She sent him her location by text. Mr. Manda walked her to the elevator and went down with her to the lobby. He brought the food and wine she had brought with her. P.N. drove her to her home. They got into her SUV there. The two used the SUV to make two trips to move him from his current residence to a new one. She stayed with him for some time afterwards and drank a glass of wine in this new residence.

[8] K.M. went to the police two days later. Photographs were eventually taken of her. These show bruising but it was relatively minor and she said it from was a fall in the friend’s apartment. She gave a statement to the police and a rape kit was done. Her underwear was found to have traces of male DNA. The profile did not match Mr. Manda. Also, a small vaginal tear was found, .2 of a centimeter in length.

[9] K.M. testified that she called Mr. Manda the next day and screamed at him for what he had done, calling him names. Also, a substantial number of texts back and forth between the two after the alleged sexual assault were introduced into evidence and were the subject of questioning by counsel. To summarize those texts, the complainant accused Mr. Manda of forcing sex on her despite her telling him that it was painful and that he should stop. He replied that he is always considerate with people. He said that her allegations did not make sense to him.

[10] In cross examination, the complainant testified that some parts of her memory were completely wiped out due to alcohol consumption and the time that has elapsed since the incident. She also testified that she is having memory problems generally and has been on medication to address this. She testified that the night before testifying, she remembered falling against the balcony door. This was a new memory that she had never mentioned before. Also, in her police statement, she had mentioned a fall in the living room of the apartment. Now, at this point during the trial, she had no recollection of this fall.

The Evidence of N.P.

[11] NP testified for the Crown. K.M. was his brother’s wife's friend. He had only known her for a relatively short time. At the time N.P. was living with a girlfriend. As K.M. testified, he picked her up when she requested. She was slurring her words and could not keep her balance. She was upset but was not crying. Although he had not said it in his statement, he testified that she was semi-conscious and could not put a sentence together. They then used her SUV to move him to a new condominium unit. He testified that she complained to him that she had been forced to have sexual intercourse. However in his police statements he only said that something did not seem right and he did not know how far it went because they did not get into details.

[12] When this discrepancy was pointed out in cross examination, P.N. asked Mr. Locke how long he (the witness) would need to be in court because there were people he had to see. This defiant attitude had been lurking close to the surface throughout his evidence. In my view, Mr. P. was a very fractious and difficult witness. Defiance in the formal setting of a courtroom is not conducive to a positive finding of credibility.

[13] A case management judge held based on the DNA found that was not that of the accused that questions about sexual intercourse between the complainant and N.P. could be asked. N.P. reluctantly admitted that the two had consensual intercourse the night of November 16.

The Defendant Mr. Manda’s Version

[14] Mr. Manda testified that not only was the sexual activity with consent but that it was initiated by the complainant. His account of the sexual activity differed strikingly from the evidence of K.M. It was Mr. Manda’s evidence that after vigorous sexual intercourse throughout the apartment, the complainant asked him to perform anal intercourse on her. He did not want to and told her so. A short argument ensued and she became angry. He was turned off. She went to the bathroom. She was very upset and then called her friend to pick her up. He tried to talk to her about it, but she refused According to him, she was not drunk at this point in time.

Discussion

[15] Ms. M. testified convincingly on the witness stand. One of the hallmarks of a good witness is openness and candor. She exhibited both. K.M. was not combative or difficult. She freely offered that her memory was poor despite the fact that she was well aware that this admission weighed against her. She admitted calling Mr. Manda some very nasty names. She did not get her back up or dispute many aspects of the events when challenged by Mr. Locke in cross-examination. Overall, K.M. did not shy away from admissions that did not portray her in the best light. She did not attempt to figure out where the questions were going before answering. Ms. M. stood her ground on the central theme that she did not consent.

[16] There were some issues with her evidence. She admitted lying during the rape kit questioning and saying that she had not had sexual intercourse with anyone else. She explained that she was embarrassed. As previously mentioned, K.M. testified that she had a flashback the day before her evidence and remembering falling in the balcony area when she had not remembered it before. That is thoroughly unreliable as these events occurred almost five years ago. At the same time, she did not remember a fall she had mentioned years earlier. Furthermore, her memory was admittedly poor with respect to details and the sequence of events. She was, however, immovable and very clear on the central fact that she did not consent. This question is by its nature very different from the question of recollecting subsidiary facts from her time in the apartment.

[17] There was some confirmation for K.M.’s evidence. She testified that she told Mr. Manda over and over that the sex was hurting her. He did not mention that she had said this in his evidence. It would have been inconsistent with his account of the sexual activity.

[18] As mentioned, upon examination at the time of the rape kit, a small vaginal tear was found. The tear could have been the source of the pain the complainant felt. However, not only was there no expert evidence on this issue, K.M. did not testify that the pain was a result of the tear either. The lack of an express evidentiary connection does not deprive the evidence of any value but it does diminish it when taken in context.

[19] Mr. Manda was cross-examined for almost four hours. The style of cross-examination was more a review of his evidence that it was a challenge to it. There were no substantial discrepancies or other problems turned up as a result.

[20] I did find it difficult to give credence to Mr. Manda’s evidence that the complainant’s mere request for anal intercourse would have put a sudden and decisive stop to the ongoing unencumbered, free flowing sexual proceedings alluded to in his testimony. K.M. of course denied that any of this ever occurred. However, upon examining my intuition, it is not well-grounded in the evidence. In R. v. Cepic, 2019 ONCA 541, Justice Benotto drew a vital distinction between stereotypes and assumptions of human behaviour based on gender-based generalizations as opposed to specific evidence as to how a particular person would act in the circumstances. Although there are many distinctions between Cepic and this situation, I must heed the caution from Cepic and the other cases on point. I do not know either party and it would be a mistake to draw too much from this intuition.

[21] Mr. Sarantis’ main argument was that Mr. Manda adopted by silence the allegations K.M. made in their text exchanges after-the-fact. That cannot be accepted. Mr. Manda’s initial reaction to the allegations was dismay. Soon after, he communicated that what she said did not make sense to him. In law, in the context of a text message conversation, this cannot amount to adoption by silence: see Watt’s Manual of Criminal Evidence (online), §36.04, Adoptive Admissions.

[22] In conclusion, for the reasons I have expressed, I strongly prefer K.M.’s evidence over that of Mr. Manda. There is some confirmation, although ambiguous, for her evidence. Of course, preference of her evidence over his is not the ultimate test. Guilt must be proved beyond a reasonable doubt. I can say that I do not have a positive belief in Mr. Manda’s evidence. But I find that I cannot safely reject it either. It occupies the middle, third ground. It raises a reasonable doubt.

[23] In the end, the essential element of lack of consent is not proved beyond a reasonable doubt. For these reasons, Mr. Manda must be acquitted on the sole count of the indictment.

D.E. HARRIS J. Released: July 20, 2023