Court File No.: CR-24-10000017-00AP Date: 2024-11-05 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Baldeep Singh Aujla, Appellant

Counsel: J. Balgopal, for the respondent C. McKeown and R. Nanni, for the appellant

Heard: November 1, 2024

Reasons for Decision

On appeal from the conviction entered on November 3, 2023 by the Honourable Justice H. Pringle of the Ontario Court of Justice.

Schreck J.:

[1] Following a summary conviction trial, Baldeep Singh Aujla was convicted of sexually assaulting a co-worker at a bar. He appeals his conviction and alleges that the trial judge erred by failing to consider evidence that the complainant had a motive to fabricate, wrongly treating surveillance video evidence as “corroborative,” and reversing the burden of proof in relation to the complainant’s failure to describe details of the assault in her testimony.

[2] The following reasons explain why I would dismiss the appeal.

I. Evidence

A. The Alleged Assault

[3] The appellant and the complainant worked together at a government agency. On June 4, 2022, they and a number of other employees went to a bar. Security video from the bar was tendered at the trial and agreed by the parties to accurately depict what occurred.

[4] At one point, the appellant was standing at the bar and the complainant was standing between him and another co-worker, A.M. They were talking and having a good time. The appellant agreed that he was flirting with the complainant.

[5] The complainant testified that at one point, the appellant put his hand up her dress, into her underwear and touched her vagina “slightly inside.” She was shocked when this occurred and immediately turned to A.M. and said, “He’s touching me.” A.M. testified that the complainant had said this to him, but at the time he did not think anything of it. A.M. did not see the appellant touch the complainant.

[6] The video shows the appellant and the complainant talking. They are standing very close together. At one point, the appellant moves his hand down below the bar area where it is not visible and it remains there for about seven seconds. After he moves his hand back up, the complainant turns and faces him momentarily.

[7] The appellant testified that he had been flirting with the complainant while she stood at the bar and she had flirted back. He denied touching her vaginal area and maintained that any physical contact between them was incidental. He could not recall why he had moved his hand below the bar.

[8] After the alleged touching, the complainant left the bar area and joined another group of co-workers in the bar. At one point, the appellant approached her and they hugged.

B. The Appellant’s Altercation With Another Co-Worker and the Complainant’s Disclosure of the Allegations

[9] Later that evening, the appellant had a physical altercation with another co-worker, A.A. A.A. was injured and had to go to the hospital and the complainant and A.M. went with him. At the hospital, the complainant spoke to the police and alleged that the appellant had sexually assaulted her.

C. The Reasons for Judgment

[10] The trial judge rejected the appellant’s evidence and concluded that it did not raise a reasonable doubt. No issue is taken on appeal with her reasons for doing so.

[11] The trial judge had some concerns about the complainant’s credibility, which in her view was inconsistent in some respects. However, she accepted the complainant’s evidence about the sexual assault because it was confirmed by the video and to some extent by A.M.’s testimony.

II. Grounds of Appeal

A. Failure to Consider Motive to Fabricate

(i) Overview

[12] At trial, the appellant submitted that the complainant had two motives to fabricate her allegations. The first was because she was behaving “inappropriately” in front of her colleagues and wanted to “control the narrative.” The second was that because of her relationship with A.A., the person the appellant had a fight with, she took his side and wanted to depict the appellant as an “impulsive aggressor.” The appellant submits that the trial judge erred in law by failing to consider these motives in her reasons for judgment.

[13] The appellant’s argument is based on authorities which suggest that it is an error in law for a trial judge to fail to consider a complainant’s motive to fabricate. Recently, in R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 65, the Court stated:

While it is a myth that women regularly fabricate allegations of sexual assault, it is not an error to consider whether the circumstances of a particular case support the existence of a motive to fabricate (see, e.g., R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326, at paras. 9-15) -- indeed, where the defence adduces evidence on this point, a trial judge is obliged to consider it to give full effect to the presumption of innocence, and a failure to do so constitutes reversible error. [Emphasis added].

Similarly, in R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at para. 35, the Court stated: “[T]he trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive to fabricate.”

(ii) The Duty to Give Reasons

[14] While I am obviously bound by these authorities, I do not view them as creating a special rule respecting an alleged motive to fabricate on the part of a complainant. A trial judge is required to consider all of the evidence she has heard in a trial, including any evidence of a motive to fabricate, but this does not mean that she is required to expressly mention all of the evidence in her reasons. What a trial judge is required to do is to give reasons that explain the result she reached: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras.24-33; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 71.

[15] In some cases, to adequately explain the result that she reached, a trial judge will have to make specific reference to relevant evidence, as was explained in Harper v. The Queen, [1982] 1 S.C.R. 2, at p. 14 (cited in Sheppard, at para. 31):

Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.

[16] This can include evidence of a motive to fabricate. For example, in R. v. J.L., 2024 ONCA 36, 170 O.R. (3d) 97, the trial judge’s reasons were found to be insufficient partly because he had failed to address the complainant’s motive to fabricate. The court noted, at para. 38:

While there may be a valid explanation for rejecting the defence theory that the complainant had a motive to fabricate, the trial judge’s reasons do not allow this court to assess whether and how the trial judge grappled with this issue: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, leave to appeal refused, [2021] S.C.C.A. No. 127, at para. 35; R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 30.

See also R. v. Murillo, 2023 SKCA 78, 89 C.R. (7th) 129, at paras. 27-30.

[17] However, not every failure by a trial judge to mention relevant evidence will justify appellate intervention. It is well established that an appellate court should take a “functional and contextual” approach, as was explained in G.F., at paras. 70-71:

This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge’s reasons. This is because “bad reasons” are not an independent ground of appeal. If the trial reasons do not explain the “what” and the “why”, but the answers to those questions are clear in the record, there will be no error: R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3] at paras. 38-40; Sheppard, at paras. 46 and 55.

The reasons must be both factually sufficient and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why: Sheppard, at para. 55. Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record. Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the record may explain the factual basis of the finding to the aggrieved party: para. 52. It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings: paras. 50 and 52.

[18] The approach is no different with respect to evidence of a motive to fabricate. The failure to expressly mention such a motive in reasons for judgment is not per se an error of law. Ultimately, the issue to determine is whether the reasons are sufficient to explain why the trial judge reached his or her decision and to permit meaningful appellate review. The reasons need not address every piece of evidence, but must address evidence that is crucial to a determination of the case: R. v. G.(C.), 2021 ONCA 809, 158 O.R. (3d) 721, at para. 42.

(iii) Application to This Case

[19] As noted, the defence advanced two theories with respect to a motive to fabricate. The first was that the complainant was flirting with the appellant at the bar and “behaving inappropriately” in front of her colleagues so she alleged improper conduct on his part to “control the narrative.” This was suggested to the complainant in cross-examination and she denied it. Given this denial, there was no evidentiary basis for the theory and the trial judge did not err by failing to consider it: R. v. Lights, 2020 ONCA 102, 60 M.V.R. (7th) 47, at para. 9.

[20] The second theory related to the fight between the appellant and A.A. and it was suggested that the complainant fabricated the unwanted sexual touching in order to portray the appellant as an “impulsive aggressor.” The difficulty with this theory is that the complainant had told A.M. that the appellant was touching her while she was at the bar, before the fight with A.M. occurred, although she did not describe the nature of the touching at that time.

[21] In any event, the trial judge did consider the complainant’s wish to protect A.A. in her reasons, where she stated:

The complainant’s testimony was not without flaw, and I had difficulty accepting it wholesale. For example, I was concerned that when asked about the fight between A.A. and the defendant, she was colouring her evidence to protect A.A. I found this occurred only when she was testifying about the subsequent fight, however. A.A. was not relevant to the allegation of sexual assault.

It is clear from this that the trial judge was alive to the complainant’s motive to protect A.A., but found that it did not affect her testimony with respect to the alleged sexual assault. It was open to her to come to that conclusion.

[22] Furthermore, the only effect evidence of a motive to fabricate could have had would be to lead the trial judge to question the complainant’s credibility, something she did in any event. Ultimately, her decision to convict was based on the fact that the video confirmed the salient aspects of the complainant’s evidence.

[23] I would not give effect to this ground of appeal.

B. Treatment of the Video as “Corroborative”

(i) Overview

[24] The trial judge had some concerns about the credibility and reliability of the complainant’s evidence, but ultimately accepted it because of the video, which the trial judge viewed as a “strong corroborative piece of evidence.” The appellant submits that the trial judge erred in doing so because the video did no more than provide some support for the complainant’s version of events. More specifically, the appellant submits that the trial judge effectively misapprehended what could be seen on the video, in particular that the appellant touched the complainant’s back and that she had a “startled” expression.

(ii) Use of the Term “Corroborative”

[25] I agree that the trial judge should not have described the video as “corroborative,” although as I will explain, the fact that she did so is of no consequence. The use of the term “corroborative” was recently discussed in R. v. Casarsa, 2023 ONCA 826, at para. 12:

It is nonetheless worth pointing out that evidence is not “corroborative” simply because it confirms some of the testimony a witness provides. Technically, evidence is not corroborative unless it is independent proof that confirms a material feature of the criminal allegation: R. v. Baskerville, [1916] 2 K.B. 658 (Eng. C.A.). If all evidence does is provide some support for the credibility of a witness, it should not be described as “corroborative”. Doing so presents the risk that the impact of that evidence may be given exaggerated importance. In R. v. Brown [infra], the court found the trial judge did not err by misusing the technical term “corroboration” after concluding, in context, that trial judge was using the term in its informal sense as evidence providing some support for the complainant’s testimony. Had Mr. Casarsa raised this issue in this appeal we would have disposed of it the same way. There is no basis for concluding that the trial judge did anything other than this in this case. Still, care should be taken in using the term “corroboration” to describe evidence that lends no more than incidental support to some feature of a witness’s testimony.

The term “corroboration” in the sense it was used in R. v. Baskerville, [1916] 2 K.B. 658 (C.A.), that is, as evidence which confirms a witness’s testimony in a “material particular,” has not been part of Canadian criminal law since R. v. Vetrovec, [1982] 1 S.C.R. 811, where Dickson J. (as he then was) opined at p. 823 that it was “unfortunate that the word ‘corroboration’ ever became part of the legal lexicon.”

[26] In this case, as in Casarsa and R. v. Brown, 2022 ONCA 417, at para. 22, the trial judge was clearly using the term in the informal sense of “evidence providing some support for the complainant’s testimony.”

(ii) Touching of the Complainant’s Back

[27] The only mention the trial judge made of the touching of the complainant’s back was during her consideration of a defence submission that the video contradicted the complainant’s evidence:

S.H. claimed that for a couple of minutes, the defendant put his hand on her back somewhere between “her back and her behind.” The defence position was that this did not occur. She was confronted with surveillance video that contradicted the notion that his hand was on her back for a few minutes.

I was sure the defendant’s hand was not on the complainant’s back for a few minutes. That said, the surveillance video corroborated that his hand was on her back at some point. It also corroborated the location of his hand was, at some point, her lower back. It happened, just not for a long as she thought. I found this raised little concern. [Emphasis in original].

[28] Having viewed the video, it appears that the appellant did touch the complainant in the waist area at some point. While it is not clear that he touched her back, the trial judge was using the term “back” to refer to what the complainant described as being between “her back and her behind,” which the trial judge took to mean “the location of her lower back.” In these circumstances, I see no error in the trial judge’s treatment of this evidence.

(iii) The Complainant’s “Startled” Appearance

[29] In her reasons, the trial judge stated:

At one point, the video conclusively showed that, before S.H. turned to A.M. and the two left, the defendant’s right arm dipped downwards below the bar. That bar blocked any footage of his hand. But when he moved his arm down, and given the physical position of the complainant at the time, his right hand must have been in close proximity to the complainant’s genital area.

The video then showed the complainant's facial expression changing, looking at the defendant as though startled. I found the video footage to be compelling evidence.

[30] Having viewed the video, I confess to being unable to tell that the complainant’s facial expression changed, although she did look at the appellant after his hand went below the bar. [1] As counsel for the appellant points out, upon seeing the video, the complainant herself described her reaction at the time as being “internal.”

[31] It is possible that the trial judge erroneously conflated her recollection of the complainant’s testimony with her recollection of what can be seen on the video. However, even if she did, this was not the type of palpable and overriding error that warrants appellate intervention. The real confirmatory value of the video was that it depicted the appellant putting his hand below the bar in the area of the complainant’s genitals. While the video did not conclusively establish that the appellant committed the offence, it was open to the trial judge to conclude that it provided some support for the complainant’s account.

(iii) Contradiction of the Complainant’s Account

[32] The appellant also submits that the video contradicted the complainant’s account and therefore could not have been corroborative. However, the trial judge was aware that the video contradicted some aspects of the complainant’s testimony, such as her assertion that the appellant hand was on her back for several minutes. More importantly, the trial judge was alive to the frailties in the complainant’s evidence overall and scrutinized it accordingly.

C. Reversal of the Burden of Proof

[33] In response to a defence submission that the complainant did not provide details about how the appellant touched her vagina, the trial judge noted that the complainant was never asked to provide such details and concluded that “[h]er failure to provide details, that she was never specifically asked about, did not tell against her credibility or reliability.” The appellant submits that this reversed the burden of proof because the trial judge in effect resolved a gap in the evidence in favour of the Crown. In oral argument, counsel for the appellant’s focus was on a submission that the trial judge failed to consider the implausibility of the complainant’s version of events.

[34] I do not agree that the trial judge reversed the burden of proof. She simply noted that the complainant’s failure to provide details could be explained by the fact that she was never asked to do so. Furthermore, while defence counsel pointed out in submissions that the appellant’s hand was only under the bar for seven seconds, he did not expressly submit that the complainant’s version of events was inherently implausible.

III. Disposition

[35] The appeal is dismissed.

Justice P.A. Schreck

Released: November 05, 2024

[1] It appears from a review of the transcript of counsel’s submissions that counsel and the trial judge were able to zoom in on portions of the video. Neither I nor appellate counsel were able to figure out how to do so.