R. v. Faiyaz Date:, 2015 BCPC 181

Citation: R. v. Faiyaz Date: 20150402 2015 BCPC 0181 File No: 197844-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. Waheed Faiyaz REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. I. S. SUTHERLAND Counsel for the Crown: C. Smith Counsel for the Defendant: P. Dutt Place of Hearing: Surrey , B.C. Dates of Hearing: May 13, Aug. 25, 26, 27, Nov. 24, 2014; Feb. 3, 2015 Date of Judgment: April 2, 2015

Introduction [ 1 ] In the early morning of February 1, 2013, the accused Waheed Faiyaz hired the complainant M.R. to provide her services as a prostitute. Money was paid by the accused and they drove to a secluded spot for M.R. to provide the services. Early in the process, M.R. stopped because she felt uneasy about the accused. The accused became angry and assaulted her. M.R. claims he also threatened her in the course of the assault.

As a result of their interaction, the accused has been charged with sexually assaulting and threatening M.R. [ 2 ] The accused concedes that he assaulted M.R. but claims he did so to get back the money he paid for the sexual services he did not receive. He argues his conviction should be for assault not sexual assault. He denies having threatened M.R. The Crown argues that when the entire interaction between the accused and M.R. is considered, the assault falls within the definition of a sexual assault.

The Crown further argues that M.R.’s evidence should be accepted over the accused’s generally, and specifically regarding whether a threat was uttered. [ 3 ] To decide the issues, I will make findings of credibility regarding M.R. and the accused. I will also review the law relating to the distinction between assault and sexual assault and analyse the evidence as it relates to that distinction. Factual Overview [ 4 ] In the early morning hours of February 1, 2013, the accused was returning home from a late night soccer practice when he met M.R. who was working on the street as a sex trade worker.

They were unknown to each other. They spoke roadside about cost and services to be performed. They agreed on a price of $40 for the services but M.R. could not recall exactly what the services were that they had agreed to. M.R. got into the accused’s car. They drove to a couple of places for the accused to get money and eventually ended up in an alley in a residential neighbourhood where the services were to be performed. [ 5 ] The accused paid M.R. $40 which she placed in her shoe. A condom was placed on the accused penis. M.R.’s pants were down and the accused crawled over to the passenger seat overtop of M.R.

This was all consensual. M.R. then decided she did not want to continue. When the accused touched her breast she said “no”. She withdrew her consent from any further sexual activity at that point and the accused knew it. [ 6 ] M.R. tried to leave the car and the accused became angry. He pushed her back into the front passenger seat and held her there. A struggle ensued constituting the assault the accused has admitted to. During the assault, M.R. appeared to be trying to leave the car but the accused would not let her go.

The struggle was intense enough for M.R. to lose control of her bodily functions and urinate in the car. Eventually, M.R. pressed her leg against the horn resulting in the accused letting her go. She left the car, slammed the passenger door against a fence pole and ran leaving a shoe behind. [ 7 ] As a result of the assault, M.R. sustained bruising to her neck, legs and arm and a bump on her head. [ 8 ] There are disputed facts between the accused and M.R. that I will now address.

Disputed Facts and Related Findings M.R.’s Evidence [ 9 ] M.R. testified that after the accused had the condom on, he touched her breast and she said “no”. She said he then climbed over to her side of the car with his pants down, pulled her pants down, and got on top of her, facing her. At first she said he penetrated her vagina with his penis but she later said she wasn’t sure. At this point she felt very uneasy and said she withdrew her consent to any sexual activity, repeatedly saying “no”, and tried to push herself away from the accused.

She testified that he touched her breasts at various times during the encounter. She testified her withdrawal infuriated him and sent him into a rage. [ 10 ] M.R. testified that while the accused pants and her pants were still down and the accused was between her legs, she started sliding up the seat and pushing the accused away from her. She said he then grabbed her throat and started choking her. He kept her legs apart with his hands and knees and pulled her hair while maintaining a hold on her throat. She testified that she was screaming and fighting for her life.

She said she begged him to stop and repeatedly said she would give him his money back. She could not recall him asking for it, but conceded he may have but would not take it. [ 11 ] M.R. testified that in the course of the struggle, the accused told her he was going to kill her and she would never see her daughter again. These alleged comments constitute the threatening charge. [ 12 ] M.R. testified that, with her foot sounding the horn, the accused opened the passenger side door and pushed her out. She said her pants were still around her knees. The $40 came out the door as well.

Although she could not explain how, she surmised it must have been still in her shoe. The Accused’s Evidence [ 13 ] The accused testified that once they had parked, he gave M.R. $40, he pulled his pants down a little and M.R. put the condom on him. He then climbed on top of her and she pulled her pants down. Later in his evidence, he said he was never on top of her but was always in front of her between her legs. This contradicted the five occasions where he said in his statement to the police that he got on top of her. He said he then reached for her breasts over her clothing but she “nudged” his hand away.

In a statement to the police he described it as a “push”. He testified that he wasn’t upset but that this confused him because he thought she consented to him touching her breasts. He testified that he wasn’t sure if she was withdrawing her consent, so he reached to do it again in order to “clarify if there was consent”. She brushed his hand away again.

[14] After a brief exchange of words, the accused testified that M.R. pushed him back toward the dashboard and she pulled her pantsup. He said it was then that he realized she was not consenting, so he pulled his pants up. The accused omitted from his statement to thepolice that M.R. pulled her pants up and that he pulled his up. He said no further attempts to sexually touch M.R. took place once theirpants were up and that any further contact was not sexual in nature.

He testified that the only real touching for a sexual purpose waswhen M.R. put the condom on him. [15] In a statement to the police, the accused said consent was withdrawn just as he was about to engage in intercourse. [16] The accused said that once their pants were up, M.R. opened the car door and he then put his hand on her shoulder and hisforearm across her chest holding her back against the seat and asked for his money. He said she did not respond and kept trying to getout of the car so he kept pushing her back into the seat. He testified that she started using more force and was kicking and pulling hishair.

He alternated between holding her down as described and blocking her hits. The accused denied choking M.R. and placing hishand on her neck and face. He testified that he believed she was trying to rob him. He said he kept asking her for his money back andthat he would let her go once he had it. She repeatedly screamed to let her go. He denied that M.R. “begged” him to let her out of thecar. This contradicted his statement to the police where he used the term “begged”. [17] The accused testified that the struggle lasted a few minutes and that he was between her legs the whole time.

When M.R.kicked the horn he got scared, realized that the struggle wasn’t worth the $40, and got off her. He moved to the driver’s seat, and toldher she could keep the money and to leave. He said she got out, slammed the door against a pole and then he sped away. [18] The accused testified that had M.R. given him his money, there would have been no struggle. He denied being enraged butadmitted being angry. He denied threatening M.R. at any time. Credibility Findings [19] Where there are competing versions of the evidence between critical witnesses, the analysis does not come down to picking aversion.

Simply put, it is not a credibility contest. It is open to a trier of fact to accept all, some, or none of a witness’ evidence. When anaccused testifies, as he did in this case, the effect of his evidence on the case was set out in R. v. W.D., (SCC), [1991] 1S.C.R. 742. Boiled down, W.D. requires triers of fact to consider whether the accused’s evidence, considered in the context of theevidence as a whole, raises a reasonable doubt as to his guilt: R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788. [20] Mr. Faiyaz’s evidence did not mesh with his statement to the police in some material aspects.

For example, whether he was ontop of M.R. and when he and M.R. pulled their pants up. What is particularly significant about these contradictions is that he repeatedthem multiple times. He discussed the sequence of events in his police statement numerous times but never mentioned pulling theirpants up despite its significance. Furthermore, it was never put to M.R. in cross examination that she pulled her pants up in the vehicle. Similarly significant is his denial that he was on top of M.R. despite saying it five different times in his statement.

The accused gaveexplanations for these inconsistencies but I do not find them compelling. [21] The accused admitted that M.R.’s injuries could have been caused by their struggle but I do not find his version to be consistentwith her injuries. [22] Furthermore, it is not disputed that M.R. was screaming, urinated in the accused car, and fled leaving a shoe behind. Thisevidence is consistent with M.R. experiencing a desperate and traumatic event.

It is not consistent with the accused’s description ofM.R. creating the conflict and at all times having the power to end it by giving his money back; or not threatening M.R. but merelyholding her down against the seat while protecting himself from her violent blows; or that the whole dispute was isolated to the accusedbeing taken for $40. [23] On the core issues of whether the assault was a sexual assault, or whether he threatened M.R., I do not believe the accused’sevidence and it does not leave me with a reasonable doubt. [24] M.R.’s demeanour when testifying was hostile and argumentative with the defence when being cross examined.

She startedanswering questions before they had finished being asked and made assumptions about the accused’s mental state. [25] Although M.R. was a crack cocaine addict, she testified that she was not high at the time of her encounter with the accused andwas not going through withdrawal. She said she was 80% sure her last use of drugs was over 24 hours earlier. There is no evidencesuggesting otherwise. She conceded that she may have forgotten smaller details of the events, but that the main details are still clear inher mind. [26] M.R.’s evidence was detailed and consistent on the larger details.

Inconsistencies between her evidence and her policestatement related to smaller details which I find do not affect her credibility or the reliability of her evidence. [27] Furthermore M.R.’s evidence was corroborated by other evidence I accept.

For example: • That the accused was returning from soccer practice; • The accused’s clothing and physical description; • The accused vehicle had a dimmed headlight and the damage to the vehicle caused from her slamming the passenger door againstthe fence; • The gum package the accused had in the console of his vehicle; • The locations they went to so the accused could get money, and the location of the incident;

• The price negotiated; • The injuries she sustained; • Leaving her shoe behind when she fled the car. [28] I accept M.R.’s rendition of what happened in the car with the exception of her initial evidence that there was penetration by theaccused. Did the Accused Threaten M.R.? [29] I accept the evidence of M.R. in regard to the threats made to her by the accused for the reasons stated above. Further, thethreats are consistent with the accused degree of anger as reflected in the intensity of the assault and the extent of the injuries shesustained. The bruising to her neck was not trivial and must have been committed by

an act of force inconsistent with a calm demeanour. [30] Consequently, I am satisfied beyond a reasonable doubt that the accused threatened M.R. [31] Rejecting the accused’s evidence and accepting most of M.R.’s evidence does not end the matter relating to Count 1, the sexualassault charge. It must still be decided whether, based on the evidence I do accept, the accused’s actions constitute a sexual assault asopposed to assault simpliciteur. Law The distinction between assault simpliciteur and sexual assault [32] The test for sexual assault was stated by MacIntyre J. in R. v. Chase, (SCC), [1987] 2 S.C.R. 293, at para. 11. He stated that sexual assault is an assault within any one of the

definitions contained in what is now a. 265(1) of the Criminal Codewhich is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. He went on to state: The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in thelight of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" (Taylor, supra, per LaycraftC.J.A., at p. 269).

The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gesturesaccompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied byforce, will be relevant. [33] The accused testified that his motive in committing the assault was to retrieve his money and not sexual gratification.

Later inpara. 11, McIntyre J. addressed the significance of the accused motive: The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor inconsidering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from theevidence, it may be a factor in determining whether the conduct is sexual.

It must be emphasized, however, that the existence of such amotive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [34] Other cases assist in providing guidance to the analysis. The fact that an assaultive act does not have, when viewed in isolation,a sexual aspect to it, does not necessarily mean it is not a sexual assault.

Rather, all of the surrounding circumstances must be considered.In taking into account all the circumstances, it is important to view the assault in the context of the entire interaction between the partiesinstead of “discrete parcels”. In doing so, it is open to the court to view an interaction as continuous even though it may have differentsegments to it: R. v. B.A.R, [2010] B.C.J. No. 2523 at para. 41. [35] An example is found in R. v. Alceus (2000), 151 C.C.C. (3d) (Que. C.A.). In Alceus, the victim was assaulted for refusing toperform sexual acts with the accused.

The court concluded that sexual assault occurred as the sexual integrity of the victim had beenviolated and there was an “undisputed nexus between the sexual gratification demanded and the refusal to "deliver the goods": para. 34 [36] At paragraph 33 of that decision, the court went on to say: Had he struck the complainant only once upon her refusal to perform oral sex, I would consider this a violation of her sexual integrity. When a denial of sexual gratification is punished by physical harm, the sexual integrity of the victim is no less violated than whencompliance is secured by force. [37] In R. v.

Larue, [2003] S.C.J. No. 20, the accused was tried on a charge of aggravated sexual assault. The accused was allegedto have attacked the victim with a knife. In the circumstances, the accused was on top of the victim with a knife and her pants andunderwear were off. The evidence disclosed that her clothing may have been removed during consensual sexual relations before theassault with a knife. [38] Gonthier J. found that the circumstances met the test in Chase regardless of whether the victim became partially undressedthrough consensual sexual activity.

At para. 4 he stated: However, the trial judge had found that at the time of the assault, the complainant was naked from the waist down, and the accused wason top of her with a knife. Having regard to these facts, how she became undressed, and any prior sexual activity, were legally irrelevantconsiderations. The trial judge erred in law in basing his reasonable doubt on them. Was the Assault on M.R. a Sexual Assault?

[ 39 ] Considering the entire interaction between the accused and M.R. as I must, I note the following: • What brought the accused and M.R. together was an agreement between them for M.R. to provide sexual services to the accused.

Indeed, that is why they were in the car where the assault took place, and why the car was in the alley where the assault took place; • The conflict between them started when M.R. withdrew her consent to performing sexual acts on the accused and withdrew her consent to having the accused sexually touch her; • The assault occurred within seconds of M.R.’s withdrawal of her consent; • The assault took place while the accused was positioned between M.R.’s legs, both still had their pants down, the accused still wearing the condom that was put on moments before, and the accused had moments before he touched M.R.’s breast; • I do not find the accused’s rage to be completely confined to his concern over being robbed of $40.

This inference is supported by the words spoken just before the confrontation. In particular, words to the effect of: M.R.: Don’t touch my breasts. Accused: I paid you. And during the confrontation such as when M.R. pushed his hand away when he attempted to touch her breast: M.R.: Do you know what rape is?

Accused: Do you know what paying for sex is? [ 40 ] The assault and the payment for sex were clearly inextricably linked and had an undisputed nexus between the sexual gratification demanded and the refusal to provide sexual services. [ 41 ] Even if I accepted the accused’s evidence that his motivation for committing the assault was solely to recover his money, his motivation is one factor but it does not displace the conclusion drawn when the entire interaction is considered. [ 42 ] There were no real breaks or interruptions in the dealings between the accused and M.R. It was one continuous interaction.

When looking at the entire interaction, I am satisfied that when all the circumstances are considered through an objective lens that a reasonable observer would see that the interaction between the accused and M.R. had sex as its origin and the nexus between that origin and the assault was never broken. I am satisfied the assault violated M.R.’s sexual integrity.

Summary [ 43 ] In

summary, I am satisfied beyond a reasonable doubt that Mr. Faiyaz sexually assaulted M.R. and threatened her in the process. I find him guilty of both offences. The Honourable Judge J. I. S. Sutherland Provincial Court of British Columbia